On appeal from Superior Court of New Jersey, Law Division, Passaic County, Docket No. L-4805-06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued September 13, 2010 - Decided Before Judges Grall and C.L. Miniman.
This is an appeal from a final judgment entered on a jury verdict in a personal injury action. The jurors determined that defendant Michael Stubbs' negligence was the proximate cause of injury to Anthony Romano's elbow but not of the injury to his cervical spine. The jurors awarded Romano $273,000 for pain, suffering, and disability and his wife, Madeline Romano, $20,000 for loss of his services.
In his appeal, Stubbs reiterates arguments he raised on motions for a mistrial and for a new trial or remittitur - specifically that the form of the verdict sheet and plaintiffs' use of a prejudicial Power-Point presentation during summation led to an excessive award of damages for pain, suffering, disability and impairment attributable to Romano's elbow injury. On plaintiffs' cross-appeal, they contend the court erred by refusing to charge the jury on aggravation of a pre-existing disability related to Romano's cervical spine.
We conclude that plaintiffs' summation requires a new trial on damages but reject plaintiffs' request for a new trial on a claim of pre-existing disability. In addition, we hold that a judge should not use a verdict sheet that requires isolation of damages for pain and suffering from damages for disability and impairment, a deviation from the sample verdict sheet, Model Jury Charge (Civil) 8.10B, absent a reason justified with reference to the evidence in the case and articulated on the record.
The incident that gave rise to the lawsuit occurred in the Bergen County Courthouse on February 23, 2006. Romano was working as a sheriff's officer and Stubbs was in a courtroom for a hearing to adjudicate the domestic violence complaint filed by his wife and determine whether the temporary restraining order should be made permanent.
Earlier that day, municipal police officers responded to a call from Mrs. Stubbs. She said Stubbs broke into their house in violation of the temporary restraining order. According to Stubbs, he had made arrangements with his son to pick up clothes to wear to court, but his son was not home and his wife had agreed to leave the clothes outside. Although the clothes were not outside, Stubbs' wife would not let him in. Angered, Stubbs broke the glass in the front door and entered. After hearing Mrs. Stubbs' account, the officers obtained a warrant for Stubbs' arrest.
While Stubbs waited for court to convene, an officer approached him and told him about the warrant. Stubbs did not know about the warrant and did not cooperate. Consequently, Romano and other officers lent their assistance. A scuffle ensued, and Romano and Stubbs both fell to the floor. According to Romano, Stubbs landed on him and pushed Romano's elbow and shoulder down.
Stubbs was charged with and pled guilty to disorderly conduct, N.J.S.A. 2C:33-2, as a result of the scuffle. At the personal injury trial, the judge explained that disorderly conduct means "improper behavior" and elaborated, "A person is guilty of a petty disorderly persons offense if with purpose . . . to cause public inconvenience, annoyance or alarm or recklessly creating a risk thereof he, one, engages in fighting or threatening or in violent or tumultuous behavior or, two, creates a hazard of physically dangerous condition by any act which serves no legitimate purpose of the actor."
Romano claimed that he sustained injuries to his elbow and cervical spine as a consequence of his participation in the arrest. Following the incident, Romano had two operations and two courses of physical therapy. The treatment improved but did not eliminate the intermittent numbness, tingling and pain in his right hand or the pain in his neck and right shoulder that radiated into his right arm. Stubbs conceded that Romano's elbow was injured in the struggle, but he contended that the condition of Romano's cervical spine was degenerative and disputed the severity of the impact of Romano's conditions.
Romano did not present evidence of medical expenses or lost wages at trial. The jurors were asked to consider damages for Romano's pain, suffering, disability and impairment and his wife's loss of his services. Plaintiffs' evidence relevant to damages concerned Romano's surgeries and recovery periods and contrasted his physical condition and activities prior and subsequent to his encounter with Stubbs.
Before the incident, Romano regularly went to the gym to workout with his friends; took walks and went wave running, boating and fishing with his wife; and wrestled and played ball with his six-year old son. He never declined to participate in any activity because of physical limitations. He also did the work needed to renovate and maintain the home and yard of the property he and his wife bought in 2000.
During the years preceding the accident, Romano had been treated by Dr. Ramundo, a chiropractor. He saw Dr. Ramundo twenty-two times in 1999, twenty-five times in 2000, once in 2001 and 2002, twice in 2003, thirteen times in 2004, twelve times in 2005 and twice in January 2006. The treatment was for spasm and misalignments of the cervical, thoracic and lumbar spine. Although Dr. Ramundo took steps to restore and maintain alignment of Romano's spine, he had never ordered x-rays or MRIs or referred Romano to an orthopedist, neurologist or specialist in pain management.
When Romano arrived at home on the night of his struggle with Stubbs, his arm was shaking and he was in pain. When he woke up the next morning, he went to Hackensack Hospital with a complaint of "clicking" in his right elbow and pain shooting into the fingers of his right hand. Romano was subsequently referred to Dr. Mark Berman of Hackensack Medical Center, an orthopedic surgeon. Dr. Berman referred Romano to a neurologist for MRI and EMG tests, which confirmed injury to the ulnar nerve running on the inside of Romano's right elbow. Dr. Berman scheduled Romano for surgery in the first week of May to transpose that nerve.
Despite his condition, Romano had returned to work within two days of his encounter with Stubbs. Although he stayed on the job until the elbow surgery, on April 17, 2006, Romano went to Dr. Berman with a complaint of pain in his right shoulder radiating down his right arm. To diagnose the cause of that pain, Dr. Berman ordered an MRI and EMG. The MRI showed arthritic changes in Romano's cervical spine and foraminal encroachment, an area of the spine in which a nerve gets pinched. In Dr. Berman's opinion, Romano's degenerative changes were normal for a person of Romano's age, thirty-nine, and not the cause of his pain, which was the result of damage to a nerve caused by trauma and consistent with someone having fallen on Romano's right arm. While the nerve damage was detectable on an EMG, it was less severe than the damage to Romano's ulnar nerve.
In the opinion of Stubbs' expert, Dr. Irwin Cohen, Romano's spinal condition had nothing to do with the encounter with Stubbs. It was the product of the degenerative changes visible on imaging tests, not of traumatic injury.
The elbow surgery was done on schedule the first week of May, which was about two months after the incident with Stubbs. After that operation, Romano wore a soft-foam cast and sling for about two weeks and later underwent a course of post-operative physical therapy. But for the subsequent operation on Romano's cervical spine, Dr. Berman believed that he would have been able to return to work within three months of his elbow surgery.
The spinal surgery, a fusion requiring placement of a bone from a cadaver and a metal plate with screws, was performed in October 2006. That operation was followed by a recovery period that did not end until the spring of 2007, when Romano was again cleared to return to work without restrictions.
Although Romano returned to work, he had continuing symptoms. The expert and treating physicians agreed that the damage to Romano's ulnar nerve is permanent, cannot be further corrected and causes "intermittent numbness and pain" and tingling that is expected to continue. According to Romano, the surgery on his cervical spine reduced the symptoms of pain radiating from the shoulder and weakness in his right arm but only by about forty percent.
The weather affects how Romano feels, and he has difficulty sleeping, throwing a ball to his son, riding a bicycle, driving on long trips, and working. Although it was difficult for him, Romano was able to re-qualify to carry a service weapon, as he must to keep his job. His shooting, however, is not as accurate as it was prior to his struggle with Stubbs.
Romano's wife has seen a dramatic change in him. He had been "happy go lucky" and now is "crabby" and not in a good mood when he is in pain. He cannot do the things he had done with her and their son before, is unable to do the work he had done around the house and often resorts to sleeping on the couch because his discomfort keeps him awake.
Stubbs has several objections to plaintiffs' summation. First, plaintiffs were permitted to use a Power-Point presentation they had not shown to the judge or defense counsel in advance. Second, portions of the oral summation were unfairly prejudicial and improperly reinforced by phrases displayed in the presentation stressing the impermissible content of the oral summation. As we understand the argument, he urges us to consider an inherent "difference between the spoken word and the written word" and require prior screening to detect unfairly prejudicial statements.
Some background is needed as context for our discussion of Stubbs' arguments. Plaintiffs' counsel prepared the Power-Point presentation without notice to the court or his adversary. It appears that his plan to use the presentation was disclosed during the recess that followed defense counsel's closing argument. When the proceeding resumed, the judge made a record of what transpired during the recess. He explained that plaintiffs' counsel intended to "project onto the wall portions of his closing argument" and that defense counsel objected. Observing that he saw little difference between an attorney writing on an easel while delivering a closing ...