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Soma Mandal, M.D v. Port Authority of New York and New Jersey and Modern Facilities Services

April 4, 2013

SOMA MANDAL, M.D., PLAINTIFF-RESPONDENT/ CROSS-APPELLANT,
v.
PORT AUTHORITY OF NEW YORK AND NEW JERSEY AND MODERN FACILITIES SERVICES, DEFENDANTS-APPELLANTS/ CROSS-RESPONDENTS, AND TIMBERLAND COMPANY, DEFENDANT.



On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Docket No. L-5169-07.

The opinion of the court was delivered by: Fisher, P.J.A.D.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

APPROVED FOR PUBLICATION

April 4, 2013

APPELLATE DIVISION

Argued October 16, 2012

Before Judges Fisher, Waugh and St. John.

The opinion of the court was delivered by

Defendant Port Authority of New York and New Jersey and defendant Modern Facilities Services, Inc., appeal from a judgment based on a jury verdict in favor of plaintiff Soma Mandal, M.D., for injuries suffered as a result of her fall at Pavonia Station in Jersey City on March 18, 2007. Because, among other things, the trial judge erroneously instructed the jury that the Port Authority was burdened by the heightened standard of care imposed on common carriers, we reverse and remand for a new trial.

Plaintiff commenced this action against the Port Authority, Modern Facilities Services and Timberland Company.*fn1 At the conclusion of a twelve-day trial, the jury reached a verdict for plaintiff, apportioning seventy-five percent of the liability to the Port Authority and twenty-five percent to Modern, and awarding plaintiff $7,231,397, which included $106,397 for past and future household expenses incurred as the result of her injury, $4,125,000 for past and future lost earnings, and $3,000,000 for pain and suffering. Defendants unsuccessfully moved for judgment notwithstanding the verdict, remittitur and a new trial, and judgment was entered in favor of plaintiff in the amount of $7,735,002.24, which included $503,605.24 in prejudgment interest.

The Port Authority and Modern appeal, and plaintiff cross-appeals. Defendants' arguments require our consideration of:

(1) whether the Port Authority should have been held to the traditional standard of "utmost caution" for common carriers when plaintiff's fall occurred in a station and not while getting on or off or riding on a train, and the consequences of that determination; (2) whether plaintiff should have been permitted to read portions of a deposition of a witness who resided in Texas regarding the circumstances of his fall in Pavonia Station eighteen hours earlier than plaintiff's fall;

(3) whether the judge erred in permitting plaintiff's treating physician to provide an opinion about permanency and whether the judge also erred in limiting cross-examination of that witness;

(4) whether the judge erred in instructing the jury that it could draw an adverse inference from the failures of the Port Authority and Modern to provide records or videotapes; (5) whether the Port Authority may be compelled to pay prejudgment interest; and (6) whether ...


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