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Dennis J. Knitowski v. Frank M. Gundy

November 10, 2011

DENNIS J. KNITOWSKI, PLAINTIFF-RESPONDENT/ CROSS-APPELLANT,
v.
FRANK M. GUNDY, JR., DEFENDANT, AND STATE OF NEW JERSEY AND JOHN GLOVER, DEFENDANTS-APPELLANTS/ CROSS-RESPONDENTS.



On appeal from the Superior Court of New Jersey, Law Division, Hunterdon County, Docket No. L-0182-07.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued October 12, 2011

Before Judges Carchman, Baxter and Nugent.

Defendants State of New Jersey and John Glover appeal from a July 14, 2010 Law Division order that denied their motion for judgment notwithstanding the verdict (JNOV) and for a new trial. By denying their motion, the judge permitted the jury's $1,440,000 economic damages award to stand. We reject defendants' argument that plaintiff's expert rendered an inadmissible net opinion and that the judge erred by failing to exclude the expert's testimony.

On plaintiff's cross-appeal, we affirm the Law Division's January 22, 2010 order striking plaintiff's claim for non-economic damages, as we are satisfied that the judge correctly determined that plaintiff had not satisfied the standards established by N.J.S.A. 59:9-2(d) for an award of non-economic damages against a public entity.

I.

On June 5, 2005, defendant Frank Gundy, Jr.,*fn1 whose car had a flat tire, was instructed by defendant John Glover, who was an employee of the Department of Transportation, to remain with his vehicle in the grassy median while awaiting the arrival of the State Police. Ignoring Glover's instructions, Gundy abruptly pulled into the travel lanes of westbound Route 78 to reach the shoulder on the right side of the roadway. At the same time, plaintiff was traveling west on Route 78, and was forced to swerve to avoid Gundy's vehicle. As a result of swerving, plaintiff's vehicle collided with a tractor trailer.

At the scene, while being treated by emergency medical personnel, plaintiff became unresponsive and suffered violent seizures for approximately two minutes. Plaintiff was taken from the scene by helicopter to Morristown Memorial Hospital, where he remained for two days, and was diagnosed with multiple facial fractures, traumatic brain injury and post-traumatic seizures. In the weeks following the collision, plaintiff complained of dizziness, insomnia, poor concentration and faulty memory.

On July 13, 2007, two years after the collision, plaintiff was evaluated by Edward A. Maitz, Ph. D., a licensed psychologist and diplomate in clinical neuropsychology. After reviewing plaintiff's medical records, and administering a battery of tests, Dr. Maitz found plaintiff to be "impaired" with regard to "immediate" and "delayed memory skills." According to Dr. Maitz, plaintiff also "demonstrated a tendency to become easily overwhelmed when presented with lengthy verbal information, which resulted in difficulty learning and remembering new information."

Plaintiff reported to Dr. Maitz that his problems affected him in his daily life. For example, he had difficulty recalling names, conversations or events; he would forget where he parked his car or why he went to the store and would write lists, notes or reminders to compensate; he sometimes became momentarily confused while driving, even in familiar places; and would often lose or misplace things and coped by "be[ing] very conscious of where he put[] things." At work, plaintiff "found that he would often ask his supervisor the same questions over and over again." Plaintiff continued to have difficulty with "word finding," and did not write as clearly or concisely as he had prior to the collision.

Dr. Maitz issued a report in which he found that plaintiff suffered a "moderate traumatic brain injury from which he has made a partial but incomplete recovery." Dr. Maitz continued:

[Plaintiff] has excellent verbal skills, which has allowed him to mask or cover up some of the cognitive impairment that he continues to experience. In addition, he has reasonably good problem-solving skills and has been able to independently develop some compensatory strategies that have allowed him to work around or compensate for his cognitive deficits. Nevertheless, it is clear that [plaintiff] is not functioning at his previous level of cognitive capability. . . . Fortunately for [plaintiff], he has been able to develop some effective coping strategies that have allowed him to be successful in his work despite the difficulty he has with concentration, memory, and communication.

Given the amount of time that has elapsed since [plaintiff's] injury, it is not expected that he will experience any additional improvement as a result of spontaneous recovery, and the areas of impairment that were evident on the neuropsychological evaluation are permanent in nature.

Dr. Maitz opined that plaintiff's brain impairment was the direct result of the June 2005 motor vehicle collision. Dr. Maitz's trial testimony, offered in the form of a de bene esse deposition, was consistent with the opinions he expressed in his earlier expert report.

Three and one-half years after the collision, plaintiff was examined by Brian D. Greenwald, M.D., medical director of the Brain Injury Rehabilitation Program at Mount Sinai Hospital in New York. After reviewing various records, including Dr. Maitz's report, Dr. Greenwald opined that plaintiff had sustained a traumatic brain injury. He testified that plaintiff continued to suffer from impairments in his attention, concentration, memory and expressive language skills. He also testified that plaintiff's "processing speed" and "mathematical skills" had been adversely affected as the result of the traumatic brain injury he suffered in the collision.

As an example, Dr. Greenwald commented on the significance of plaintiff's report that he experienced difficulty calculating the tip at a restaurant, explaining that this particular impairment demonstrated the extent of plaintiff's brain injury. He testified:

[O]ne of the things that had happened to him which was shocking to him given his mathematical skills was that he couldn't calculate a tip at a restaurant, which for him seemed extremely unusual, considering he's a particularly high achiever in math and gotten 700 on the math scholastic aptitude test, and that his employment requires very high level mathematical skills.

He opined that all of the impairments and deficits suffered by plaintiff were permanent and would not remit with the passage of time. Dr. Greenwald further testified that plaintiff's brain injuries would cause him to experience cognitive decline faster than an individual who had not suffered a brain injury:

Over the years, as we all get older, you have heard of the senior moments. . . .

[T]here is a cognitive decline . . . that just generally occurs as we get older. And people who have less cognitive reserve just in general, like someone who's had a traumatic brain injury . . . are going to see more of an [e]ffect as they get older. So those senior moments are going to come on earlier . . . .

At trial, plaintiff listed the problems the brain injury had caused in his work and personal life. He described difficulty with concentration, reading comprehension, reading retention, writing, sleeping and word recall. At work, he frequently lost his train of thought. He described his frustration when giving a presentation to a client or to a rating agency, stating "you know where you are, . . . you know who's there, you know what you are there to talk about, but you completely lose your train of thought. And after that happened . . . , you don't feel so good. And ultimately I think it impacts how you perform, it weighs on you." He also described his need to proofread everything he wrote because when writing quickly, his work "had blocks of text that just made no sense." Unlike in the past, when he was "always super fast at processing" math, he found after the collision that people at work "would approximate . . . much, much quicker than [he] could. . . ."

After describing the effects the collision had on his life, plaintiff explained the nature of his employment. Asked his profession, plaintiff responded, "I am an accountant by training and banker by profession," noting that he holds a Bachelor of Arts in accounting and a Masters in Business Administration. Licensed as a certified public accountant, plaintiff also holds other finance-related licenses and certifications.

From 1999 to June 1, 2005, plaintiff worked at JP Morgan in the field of "structured finance." On June 1, 2005, four days before the collision, plaintiff resigned his position at JP Morgan after accepting an offer from Deutsche Bank for a position as Director, which was to start on June 15, 2005.

Plaintiff worked at Deutsche Bank from the summer of 2005, until January 2009, when he resigned for family-related reasons. Plaintiff's work at Deutsche Bank involved trading asset-backed securities, and initially required him to travel back and forth between New York and Japan. In March 2006, he agreed to move to Japan as part of his employment with Deutsche Bank, and in 2008, was promoted to Managing Director.

Describing his income, plaintiff testified that in 2004, which was the last full year that he worked at JP Morgan, he earned $816,181. In 2005, plaintiff earned $502,715 from JP Morgan for the five months that he worked there prior to resigning on June 1. In 2006, 2007 and 2008, plaintiff earned $1.2 million, $1.3 million and $1.4 million, respectively. In 2009, plaintiff earned an income of approximately ...


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