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Kearney v. Clifford


November 9, 2010


On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Docket Nos. L-3682-06 and L-5-07.

Per curiam.


Argued April 20, 2010

Before Judges Skillman, Fuentes and Gilroy.

This is a consolidated personal injury negligence action. Defendant Corey Clifford appeals from the April 28, 2009 order that entered judgment against him based on a jury verdict in the amount of $17,550,000, together with prejudgment interest. Defendant also appeals from the May 15, 2009 order that denied his motion for a new trial, or, in the alternative, for a remittitur. We affirm in part, reverse in part, and remand to enter an amended judgment.


On August 5, 2006, plaintiff Jennifer Roden operated her automobile in Parkertown, with her then husband, Alvin Roden, seated in the front passenger seat, with the parties' son Gavin Roden, and Jennifer Roden's two daughters, Victoria Kearney and Madeline Kearney, seated in the rear passenger seat. While the Roden vehicle proceeded northbound on East Main Street, defendant Corey Clifford, operating a vehicle owned by his father, defendant Colin Clifford, proceeded in the opposite direction on the same street. Suddenly and without warning, the Clifford vehicle crossed the center dividing line on the roadway and struck the Roden vehicle head-on. The Roden vehicle was then struck from behind by a vehicle operated by defendant Casey Walsh. The Clifford vehicle was insured by New Jersey Manufacturers Insurance Company (NJM) with a combined $500,000 single limit liability insurance policy.

On November 20, 2006, Alvin Roden and the minor plaintiffs filed a personal injury negligence action against defendants Corey Clifford, Colin Clifford, and Casey Walsh. Jennifer Roden filed a separate complaint on December 18, 2006.*fn1 On April 27, 2007, the trial court consolidated the two actions.*fn2

On November 7, 2007, one of plaintiffs' counsel sent a letter to defense counsel demanding that NJM deposit the insurance policy proceeds into court. NJM did not comply with the demands. On November 7, 2008, defense counsel sent plaintiffs' counsel a letter advising that he had obtained authority from NJM to offer $478,122.81 in full settlement of all claims, said amount representing defendant's policy limits, less $21,877.19 previously paid to Jennifer Roden on her automobile property damage claim. Plaintiffs' rejected the offer to settle.

On November 13, 2008, defendant filed a motion seeking to deposit the balance of his insurance policy proceeds into court. The court granted the motion, and defendant deposited the insurance proceeds on January 14, 2009. On March 30, 2009, the matter proceeded to trial on the issue of damages only, defendant having stipulated to liability.


Plaintiffs Jennifer Roden and Alvin Roden testified on their own behalf and in support of the children's claims. Although the children were present in court, they did not testify themselves. Plaintiffs also presented testimony of four medical experts via de benne esse videotape depositions: Dr. Loretta Christensen, a board certified trauma surgeon, testified to the injuries sustained by the three minor children; Dr. Arthur Mark, an orthopedic surgeon, testified to the injuries suffered by Gavin Roden; Dr. Aaron Green, an orthopedic surgeon, testified to the injuries suffered by Jennifer Roden; and Dr. Robert Dengrove, a board certified forensic psychiatrist, testified to his psychological evaluation of Jennifer Roden. Defendant did not present any medical witnesses to refute plaintiffs' experts' testimony. The testimony and exhibits introduced at trial evidenced that plaintiffs suffered the following injuries in the accident.

Gavin Roden

Gavin Roden*fn3 was three-and-one-half months old at the time of the accident. Following impact, Gavin was transported by emergency personnel to the Southern Ocean County Hospital where he was evaluated and released. Within days, Gavin was brought back to the hospital after his great aunt noticed swelling of his right leg and that upon movement of the leg, Gavin cried. X-rays revealed a fracture of Gavin's femur. On August 7, 2006, Southern Ocean County hospital transferred Gavin to Jersey Shore University Medical Center (JSUMC) in Neptune, where he came under the care of Dr. Mark. Dr. Mark placed Gavin in a "Pavlik" harness, an immobilizing device used on children because their bones are still growing.

Dr. Mark described Gavin's discomfort while using the brace for four to six weeks as "the idea [of using the brace] is that the brace will keep the legs or the hip joint flexed at 90 degrees and the knee flexed at 90 degrees so that the hip will stay still." Individuals using the brace "have to either remain on their back or in a seated position. Their legs are always flexed at 90 degrees, both the hip and the knee at all times with the brace on." Lastly, the doctor opined that he believed Gavin would have permanency of "some minor limp disturbances" from the leg injury.

While at JSUMC, Gavin underwent a neurological examination that revealed "extra axial cerebrospinal fluid space," that is, fluid collecting between the brain and its covering. Gavin's treating pediatrician raised a concern that the child's head had grown abnormally large. On September 22, 2006, a CAT scan, disclosed hydrocephalus, or an accumulation of fluid in the brain. Following the CAT scan, JSUMC transferred Gavin to the Children's Hospital of Philadelphia (CHOP), where he was seen by CHOP's neurosurgical service. An MRI disclosed that the child suffered from bilateral chronic subdurals or fluid collecting on both sides of the brain. CHOP treated the condition by implanting subdural peritoneal shunts on both sides of Gavin's head. As described by Dr. Christensen, [t]hey actually go in through that covering [of the brain], place drains, tunnel them out of the brain, in his case down the back.

It goes down along the torso, they make an opening into the abdomen and put the drain into the abdomen so that extra fluid would drain into the peritoneal cavity and therefore relieving pressure on the sides of the brain.

Dr. Christensen opined that the injuries suffered by Gavin were caused by the motor vehicle accident, and that Gavin will require neurosurgical and neurologic monitoring treatment for an indeterminate period of time. She stated that the surgical scars on Gavin's head and stomach are permanent. Lastly, she testified that because of his brain injury, Gavin was at a high risk for further head injury and should always wear a helmet while engaging in daily activities.

Jennifer Roden testified that because of Gavin's head injury, he is not able to run around or participate in sports like other children. She described the back of Gavin's head as being "severely deformed." As of trial, Gavin continued to require use of the shunts, which could be seen beneath the skin. According to Gavin's parents, he has also started experiencing seizures.

Victoria Kearney

Victoria Kearney was four years old at the time of the accident. At the accident scene, paramedics diagnosed Victoria as suffering from abdominal tenderness and a "large evulsion wound of the scalp" which pulled "off all the layers [of skin] and expose[d Victoria's] skull." Victoria required intubation while in flight to Cooper University Hospital because she became "less responsive to stimuli"; she remained intubated until the next day.

At Cooper Hospital, Victoria was admitted into pediatric intensive care. When discharged on August 11, 2006, Victoria's discharge summary listed her diagnoses as: (1) mesenteric and colonic hematoma, (2) lung contusion, (3) subdural hematoma with closed head injury, and (4) degloving injury of the scalp. Surgeons performed plastic surgery on Victoria's scalp wound and performed exploratory abdominal surgery during which surgeons removed Victoria's appendix. Victoria now has a scar that reaches "from the hairline down just above the eyebrow and back up into the hairline" and a second scar on her abdomen from beneath her navel to her ribs. Jennifer Roden testified that Victoria is self-conscience of anyone seeing the scars on her stomach and forehead.

Dr. Christensen opined that Victoria's injuries were caused by the automobile accident. The doctor also testified that since the accident, Victoria has been treated for an exacerbation of attention deficit hyperactivity disorder symptoms.

Madeline Kearney

Madeline Roden was six years old at the time of the accident. When the accident occurred, she had been restrained by the rear passenger seat lap belt. Initial examinations of Madeline at the accident scene and at Cooper Hospital revealed abdominal tenderness and "no observed motor movement of the lower extremities and 'questionable' sensation of the lower extremities." Within three days, Madeline was experiencing an "unrelenting headache with photophobia" consistent with a concussion, and displaying "emotional distress." Nine days after the accident, Madeline was transferred to Children's Specialized Hospital (CSH) at Mountainside, with a diagnosed spinal cord injury. At CSH, physicians treated Madeline for "paraplegia" or "a compromise of motor or sensory functions of [her] two [lower] extremities." She also suffered from a "neurogenic bladder and bowel," requiring catheterizations every four hours. Madeline was in in-patient rehabilitation at CSH for approximately three months.

Dr. Christensen opined that Madeline is presently a "paraplegic from the waist down," and because of her spinal cord injury, she now must use a wheelchair or a reverse walker, and ankle foot orthotics to stabilize her feet, to prevent foot drop and toe drag. She can use crutches for short distances. While she is able to urinate independently by self-catheterizations, she still needs to wear diapers because of episodes of incontinence. According to Jennifer Roden, Madeline's diapers are changed six to eight times per day.

Lastly, Dr. Christensen testified that because of the severity of Madeline's spinal cord injury, she is at an increased risk to suffer future health problems and has a shortened life expectancy. According to Dr. Christensen, Madeline will require long-term supervised healthcare.

Jennifer Roden

Jennifer Roden suffered fractures to her right and left feet, including a minimally displaced fracture of her right calcaneus (heel) bone. She was hospitalized for eleven days.

Dr. Green began to treat Jennifer in August 2007. He testified that a review of a December 26, 2006 MRI disclosed "post-traumatic type arthritis[,] the sequalae of a calcaneus fracture." Because Dr. Green found Jennifer suffered from a decrease in range of motion, he administered corticoid injections between August 2007 and July 2008. Dr. Green opined that Jennifer presently has "a healed calcaneus fracture with post-traumatic arthritis of the subtalar which will be permanent and potentially aggressive." He described the injury as significant, caused by the accident, and one that will require future treatment including surgery.

Jennifer testified to her first memories of the accident, stating that she lost consciousness at least twice and, when she awoke, her legs were "stuck" and her daughter Victoria was "not breathing." She testified that when she "turned around, [it appeared that] Victoria's head was ripped off. And Madeline kept telling [Jennifer] that she couldn't feel her legs. And the baby was just screaming . . . . [And blood was] everywhere." She watched emergency medical technicians tie Victoria's head to the car's seat. She then sat with Madeline until she and her child were put on stretchers and flown to the hospital, after being first told she should "kiss Victoria goodbye because they didn't know if she was going to make it to [the hospital]." When Jennifer "gained consciousness the next day [she] found out that . . . Madeline was paralyzed and Victoria was on life support."

Jennifer testified to the havoc that the accident wrecked on her family, including the loss of her employment because of time spent taking the children to doctor appointments, the pressure from unpaid medical bills, loss of her home, and the dissolution of her marriage in 2006. Jennifer testified that she now experiences chronic pain in her leg and, emotionally, she is "an absolute mess [and that] not a day . . . goes by that [she doesn't] cry and think about, you know, what happened to these kids." She has not sought counseling because she has "no time."

Although Jennifer did not seek counseling for her emotional distress, she did present testimony from Dr. Dengrove who had performed a psychological evaluation of her prior to trial. Dr. Dengrove testified that he diagnosed Jennifer with post traumatic stress disorder, major depressive disorder, chronic adjustment disorder, and chronic pain disorder. Dr. Dengrove opined that these diagnoses were caused by the automobile accident. He stated that "treatment would probably need to extend for the foreseeable future, probably years[,]" particularly given that Jennifer is confronted daily with issues related to the accident in caring for her children.

Alvin Roden

Alvin Roden suffered a non-displaced fracture of his right leg for which he was prescribed a walking boot. The boot was removed on September 1, 2006. Because Alvin did not suffer a qualifying serious or permanent bodily injury under the limitation on lawsuit threshold, N.J.S.A. 39:6A-8a, he voluntarily dismissed his claim for damages based on the fracture of his leg at the end of plaintiffs' case. Alvin and Jennifer also voluntarily dismissed their individual per quod claims. However, Alvin continued to prosecute his claim for emotional distress pursuant to Portee v. Jafee, 84 N.J. 88 (1980). See Jablonowska v. Suther, 195 N.J. 91, 95 (2008).


Prior to closing arguments, defendant moved for a directed verdict on Alvin Roden's Portee claim, contending that it should be dismissed for lack of evidence that Alvin suffered severe emotional distress from viewing the injuries sustained by his wife and son immediately after the accident. The court denied the motion, determining that the issue was for the jury.

Before the jury returned its verdict, the parties entered into a settlement with plaintiffs agreeing to release defendant of any claims against him in excess of NJM's policy limits in exchange for Colin and Corey Clifford assigning their rights to plaintiffs to pursue a Rova Farms*fn4 faith claim against NJM in failing to protect Corey Clifford's assets.

The jury returned a verdict in favor of the five plaintiffs as follows: The jury awarded Madeline Kearney $10,000,000; Gavin Roden, $4,000,000; Victoria Kearney, $2,000,000; Jennifer Roden, $1,500,000; and Alvin Roden, $50,000. On April 17, 2009, the court denied defendant's motion to suspend prejudgment interest on the basis that he did not possess sufficient assets to satisfy the judgment. On April 28, 2009, the court entered an order confirming the jury's verdict, together with prejudgment interest commencing six months after the filing of the complaint until January 14, 2009, when NJM deposited the balance of defendant's insurance proceeds into court.

On May 15, 2009, the trial court heard defendant's motion for new trial and, in the alternative, for remittitur. Defendant challenged the verdict as excessive and as against the weight of the evidence. Defendant also argued trial error regarding (1) the admission of Dr. Christensen's testimony concerning the "prognoses and . . . various problems" faced by the minor plaintiffs; and (2) the admission of certain portions of Dr. Green's testimony without Jennifer Roden having provided a pretrial report from the doctor. Lastly, defendant renewed his argument that Alvin Roden had failed to prove his Portee claim.

On May 15, 2009, the court rendered an oral decision denying defendant's motion. The court determined that none of the awards were excessive as they were "fully supported by the weight of the evidence," rendering defendant's request for a remittitur moot. The court concluded that plaintiffs suffered "permanent and catastrophic [injuries] of a type that could never be really fully compensated for" and that to "substitute [his] judgment" for that of the jury would be a "miscarriage of justice."

On appeal, defendant argues that the trial court erred in denying his motion for a directed verdict on Alvin Roden's Portee claim; in assessing prejudgment interest against defendant; in admitting that part of Dr. Christensen's testimony, which exceeded the scope of her pretrial report; and in admitting Dr. Green's previously undisclosed opinions. Defendant also contends that because the verdict was excessive, the judgment should be vacated and the matter remanded for a new trial or, in the alternative, remanded for the trial court to consider a remittitur.


Defendant argues that the trial court erred in denying his motions for judgment at the close of the evidence and for judgment notwithstanding the verdict (JNOV) on Alvin Roden's Portee claim, contending that plaintiff failed to prove that he suffered "severe emotional distress" from witnessing the injuries to his wife and son. Defendant contends that Alvin Roden failed to present evidence that the emotional distress he suffered from the accident "affected his ability to function physically or psychologically on a daily basis." Defendant further asserts that Alvin Roden failed to support his claim with expert testimony.

Motions for judgment at the close of evidence, R. 4:40-1, and for JNOV, R. 4:40-2(b), are "governed by the same evidential standard: '[I]f, accepting as true all the evidence which supports the position of the party defending against the motion and according him [or her] the benefit of all inferences which can reasonably and legitimately be deduced therefrom, reasonable minds could differ, the motion must be denied. . . .'" Verdicchio v. Ricca, 179 N.J. 1, 30 (2004) (quoting Estate of Roach v. TRW, Inc., 164 N.J. 598, 612 (2000)). On appeal, we apply the same standard of review as the trial court. Boyle v. Ford Motor Co., 399 N.J. Super. 18, 40 (App. Div.), certif. denied, 196 N.J. 597 (2008).

Portee established a cause of action for "the severe emotional harm that may be expected from [an individual] having perceived the death of, or serious injury to, a spouse or intimate family relation." Jablonowska, supra, 195 N.J. at 94. A Portee claim "transcend[s] the need to prove permanent physical injury [to the plaintiff] because it focuses on a unique type of heartsickness." Id. at 110. Nor is it necessary for the plaintiff to have been "within the zone of danger created by the defendant's negligent conduct." Id. at 107. To establish a Portee claim, a plaintiff must present sufficient evidence meeting a four-prong test. "(1) the death or serious physical injury of another caused by defendant's negligence; (2) a marital or intimate, familial relationship between plaintiff and the injured person; (3) observation of the death or injury at the scene of the accident; and (4) resulting severe emotional distress." 84 N.J. at 101.

Because of concern about the genuineness of emotional distress claims without the plaintiff having suffered a consequential physical injury, see Decker v. Princeton Packet, Inc., 116 N.J. 418, 429-30 (1989), the Court has held that to recover on an emotional distress claim the distress must be "so severe that no reasonable man could be expected to endure it." Buckley v. Trenton Sav. Fund Soc'y, 111 N.J. 355, 366 (1988); see also Restatement (Second) of Torts, § 46, comment j (1965). The "severity of the emotional distress raises questions of both law and fact. Thus, the court decides whether as a matter of law such emotional distress can be found, and the jury decide whether it has in fact been proved." Buckley, supra, 111 N.J. at 367.

The Court has provided guidance in determining whether a plaintiff has proven the severity element of an emotional distress claim. In Buckley, the Court determined that "complaints [that] amount to nothing more than aggravation, embarrassment, an unspecified number of headaches, and loss of sleep," failed as a matter of law to constitute severe emotional distress. Id. at 368; accord Decker, supra, 116 N.J. at 430. In Taylor v. Metzger, 152 N.J. 490, 515 (1998), the Court, in the context of an intentional emotional distress claim, stated that "severe emotional distress means any type of severe and disabling emotional or mental condition which may be generally recognized and diagnosed by professionals trained to do so . . . ." 152 N.J. 490 at 515 (quotation and citation omitted).

In Aly v. Garcia, in determining the plaintiffs failed to prove an intentional infliction of emotional distress claim, we held that "[i]t is not enough to establish that a party is acutely upset by reason of the incident. In order to be actionable, the claimed emotional distress must be sufficiently substantial to result in physical illness or serious psychological sequelae." 333 N.J. Super. 195, 204 (App. Div. 2000), certif. denied, 167 N.J. 87 (2001); accord Schillaci v. First Fidelity Bank, 311 N.J. Super. 396, 406 (App. Div. 1998); Lingar v. Live-In Companions, Inc., 300 N.J. Super. 22, 34-35 (App. Div. 1997).

Here, Alvin Roden presented limited testimony in support of his Portee claim.

[Plaintiffs' Counsel]: What was your first focus once you got yourself together?

[Alvin Roden]: Well, when I got my bearings, I looked over at Jen and I thought she was dead. She wasn't moving. The kids were just screaming. There was glass –

[Plaintiffs' Counsel]: Did you see the blood?

[Alvin Roden]: Oh, there was blood everywhere.

[Plaintiffs' Counsel]: What was your first concern?

[Alvin Roden]: My first concern was the kids. I . . . looked over at Jen and she wasn't moving. So I thought she was dead. But the kids were screaming. And then she started moving. And, you know, I went into this over-protective parent mode and just my main concern was the kids . . . . I don't know if I had adrenalin or what, I just busted out of the car and, you know, I got my son out. But then people ran over and just like, you know, "Don't move, don't move, don't move." Then my leg started really hurting.

[Plaintiffs' Counsel]: And eventually - -

[Alvin Roden]: And then they forced me down. They made me sit down. They didn't want me moving.

[Plaintiffs' Counsel]: Let's talk about emotions.

[Alvin Roden]: Oh, it was a nightmare, you know. I'm not even really an emotional guy, but as soon as you brought those pictures, I mean, I'm trying to get the whole thing, you know.

[Plaintiffs' Counsel]: Did you forget it?

[Alvin Roden]: No, I can't.

[Plaintiffs' Counsel]: Every time you see your son - -

[Alvin Roden]: You know - -

[Plaintiffs' Counsel]: - - every time you see Maddie or Victoria?

[Alvin Roden]: I was trying to put it behind me, man, but, you know, like I said, I mean, I'm not even an emotional guy, but man, I can't. I mean, you know, it's just I see him now and, you know, now he's starting to get seizures and, you know. It's hard stuff. I mean, you know, I don't know how to put it anymore, you know.

[Defense Counsel]: Mr. Roden, I just have a couple of questions. You haven't gotten any psychiatric and psychological counseling or anything?

[Alvin Roden]: I keep it to myself. I mean, I'm not really an emotional guy.

Maybe I had a bad upbringing or something.

We recognize the general difficulty on appellate review to discern the emotion expressed by a witness when testifying. See Fiorino v. Sears Roebuck & Co., 309 N.J. Super. 556, 571 (App. Div. 1998) (holding that "it has been said that even the best and most accurate written trial transcript is like a dehydrated peach, in that it has neither the substance nor the flavor of the peach before it was dried.") (internal quotation and citation omitted). Nonetheless, we are satisfied that in considering Alvin Roden's testimony after giving him all favorable inferences, he failed to prove he suffered the degree of emotional distress needed to prove his Portee claim.

Although Alvin Roden was not required to present expert medical testimony in support of his claim as his wife did, he did not present sufficient evidence from which a jury could conclude that any emotional distress he suffered resulted in "physical illness or serious psychological sequelae." Aly, supra, 333 N.J. Super. at 204. Nor did he show by his own testimony that he suffered from "headaches, difficulty in sleeping or an incapacity to perform his normal daily routines." Griffin v. Tops Appliance City, Inc., 337 N.J. Super. 15, 26 (App. Div. 2001). Accordingly, we reverse and vacate that part of the May 15, 2009 final judgment that entered an award in favor of Alvin Roden in the amount of $50,000, together with any prejudgment interest awarded on that part of the judgment.


In Point IV of his brief, defendant contends that the trial court erred in denying his motion for a new trial on the basis that the jury awards were excessive or, in the alternative, in failing to grant a remittitur. We disagree.

The standard of review of a trial court in ruling on a motion for a new trial was recently addressed by our Supreme Court in Jastram v. Kruse:

In analyzing whether a damages award is excessive, a trial judge's review must be grounded substantially in the totality of the evidence in the record which is viewed in a light most favorable to the plaintiff. In particular, the judge is to evaluate the nature and extent of the injury, the medical treatment that the plaintiff underwent and may be required to undergo in the future, the impact of the injury on the plaintiff's life from the date of injury to the date of trial, and the projected impact of the injury on the plaintiff in the future . . . .

So analyzed, where an award, even if generous, has reasonable support in the record, the jury's evaluation should be regarded as final. [197 N.J. 216, 229-30 (2008) (citations, quotations and alterations omitted).]

As to appellate review, the Court stated:

Further, under Rule 2:10-1, an appellate court only can reverse a trial judge's decision to deny a motion for new trial where it clearly appears that there was a miscarriage of justice under the law. That inquiry requires employing a standard of review substantially similar to that used at the trial level, except that the appellate court must afford due deference to the trial court's feel of the case, with regard to the assessment of intangibles, such as witness credibility.

The feel of the case is not just an empty shibboleth--it is the trial judge who sees and hears the witnesses and the attorneys, and who has a first-hand opportunity to assess their believability and their effect on the jury. It is the judge who sees the jurors wince, weep, snicker, avert their eyes, or shake their heads in disbelief. Those personal observations of all of the players is the feel of the case to which an appellate court defers. Obviously, insofar as the trial judge's decision rests on determination[s] as to worth, plausibility, consistency or other tangible considerations apparent from the face of the record, an appellate court need not defer. [Id. at 230-31 (citations and quotations omitted).]

Here, the trial court indicated that it had a "feel for the case," having listened to, observed, and assessed the witnesses' credibility. The court determined that the awards "were supported by the trial evidence," and that it would be inappropriate for it to substitute its judgment for the jury's, "especially . . . in a case where the defendant didn't even call as a witness [his] own [examining] doctor to contest the injuries of any of the plaintiffs."

We reject defendant's argument that the trial court improperly denied him a new trial based on excessive jury awards or in denying him a remittitur of those awards substantially for the reasons expressed by the trial court. Although the amount of the awards collectively may on first blush seem excessive, those amounts only seem excessive out of context to the injuries sustained by plaintiffs. Jennifer Roden and the three children suffered severe permanent injuries that will affect them throughout their lives. We discern no reason to interfere with the jury's verdicts. Johnson v. Scaccetti, 192 N.J. 256, 280 (2007).


We have considered plaintiffs' remaining arguments in light of the record and applicable law. We conclude that they are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). Nevertheless, we add the following comments.

Defendant argues that the trial court erred in assessing prejudgment interest on the jury awards. He contends that his lack of personal assets to satisfy the awards over and above the limits of his automobile liability insurance policy constitutes an "exceptional case" for the court to have suspended the running of prejudgment interest. We disagree.

An award of prejudgment interest in tort actions is governed by Rule 4:42-11(b). Because the rule provides "that in exceptional cases the court may suspend the running of such prejudgment interest," the award of prejudgment interest rests in the discretion of the trial court. R. 4:42-11(b); Pressler & Verniero, Current N.J. Court Rules, comment 3.1 on R. 4:42-11 (2011).

The purpose of awarding prejudgment interest tort actions is twofold: 1) "to compensate plaintiffs for not having use of the judgment money while their actions are pending and to require defendants to give up the benefits of their use of the money during that time"; and 2) "to encourage defendants to settle cases." Hein v. Wolpaw, 271 N.J. Super. 538, 542 (App. Div.), certif. denied, 137 N.J. 316 (1994). Accordingly, courts should not award prejudgment interest where "[j]udgment proof defendants do not enjoy the use of the money before judgment and the threat of having to pay prejudgment interest cannot induce them to settle their cases." Ibid. Under those facts, a court should "suspend the running of such prejudgment interest." Ibid. (quoting Rule 4:42-11(b)). We determine Hein distinguishable from the present matter.

In Hein, the appellant (insurer) had deposited its insurance policy proceeds into court and offered the proceeds to settle the plaintiffs' claims soon after the plaintiffs had filed their lawsuit. 271 N.J. Super. at 542. Accordingly, we concluded that the purposes of the rule would not have been served because "[t]he threat of having to pay prejudgment interest would not reasonably have encouraged appellant to offer more than its offer to settle for the full amount of its policy, an offer that, for reasons not apparent from this record, plaintiffs refused to accept." Id. at 544. Here, there is no indication in the record that defendant or his insurer offered to settle for defendant's policy limits early in the proceedings.

What is more, prior to the jury returning its verdict, plaintiffs and defendant entered into an agreement relieving defendant from personal liability for any damages above his insurance policy limits, including any liability for prejudgment interest. Thus, this is not such as a case as in Hein where the burden of payment of prejudgment interest would fall upon an impecunious defendant, nor is there need for us to consider NJM's responsibility for prejudgment interest as NJM is not a party to this appeal. NJM's potential liability for prejudgment interest can and should be decided in a separate Rova Farms action. 65 N.J. at 489-90.


Lastly, defendant argues the trial court erred in admitting portions of Dr. Christensen's and Dr. Green's testimony. Defendant contends that Dr. Christensen exceeded the scope of her pretrial report by testifying that "Gavin was at risk for future head injury, should wear a helmet, be under constant hourly surveillance, and is at a higher risk even in normal circumstances" because of the implanted devices and the disproportionate weight of his enlarged head. Defendant also asserts that Dr. Christensen exceeded the scope of her report as to Madeline, testifying that she is "also at long-term risk for pulmonary and cardiovascular complications [and] a shortened life expectancy." As to Dr. Green, defendant argues that although he had not been provided with a pretrial expert report from Dr. Green, the doctor was permitted to testify that Jennifer Roden may in the future need either injections or "curative and definitive treatment for her post-traumatic arthritis," which he described as a "subtalar fusion."

A trial court should not exclude evidence when the court determines that there was an "absence of a design to mislead" on the proponent's part, an "absence of the element of surprise" to the opponent if the evidence is admitted, and "absence of prejudice which would result from admission of the evidence." Velazquez v. Jiminez, 336 N.J. Super. 10, 46 (App. Div. 2000), aff'd, 172 N.J. 240 (2002). A trial court's evidentiary rulings are subject to deference and are reviewed under the abuse of discretion standard. Brenman v. Demello, 191 N.J. 18, 31 (2007). On appeal, the decision should stand unless it is "so wide [of] the mark that a manifest denial of justice resulted." Ibid. (quoting Green v. N.J. Mfrs. Ins. Co., 160 N.J. 480, 492 (1999)).

We have considered defendant's arguments in light of the record and applicable law. We find no error in the trial court's evidentiary rulings warranting reversal. For the most part, the testimony objected to either constituted logical inferences from the findings and opinions contained in the experts' reports that were provided to defendant, or minimal deviations therefrom. Nor do we determine that defendant was surprised by the experts' testimony. Although Dr. Green did not provide his own pretrial report in discovery, Jennifer Roden provided a pretrial report from Dr. Steven Berkowitz, Dr. Green's associate. Dr. Berkowitz's report was provided for trial purposes and clearly referenced that he was only an examining physician and that Jennifer had been treated for her injuries by Dr. Green. The report contained Dr. Berkowitz's opinion that Jennifer Roden's injuries were permanent.

Affirmed in part, reversed in part, and remanded to enter an amended judgment vacating the award entered in favor of Alvin Roden together with any pretrial interest that was awarded thereon.

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