NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-0572-22
JOHN VALDEZ,
Plaintiff-Respondent/ Cross-Appellant,
v.
GEORGE MITILENES and HORSEHILL PROPERTIES, LLC,
Defendants-Appellants/ Cross-Respondents.
Submitted January 29, 2024 – Decided February 8, 2024
Before Judges Sabatino and Vinci.
On appeal from the Superior Court of New Jersey, Law Division, Morris County, Docket No. L-0584-19.
Donnelly Minter & Kelly, LLC, attorneys for appellants/cross-respondents (Patrick B. Minter, of counsel; Thomas J. Coffey, III, and Alison L. Moody, on the briefs). The Harrell Law Firm, LLC, attorneys for respondent/cross-appellant (Kenneth McCall Harrell and Leigh Ann Raffauf, on the brief).
PER CURIAM
This personal injury case arose from an accident in New York City on
June 18, 2018, in which a pickup truck owned by defendant Horsehill Properties,
LLC, and driven by defendant George Mitilenes collided with a car owned and
driven by plaintiff John Valdez. Plaintiff sustained neck and back injuries as a
result of the collision. He had cervical and lumbar injections, culminating with
lumbar fusion surgery in May 2019.
The case was tried before a jury in May 2022 during the COVID-19
pandemic. The jury found defendant 80% at fault for the accident and plaintiff
20% comparatively negligent. Those liability findings have not been appealed.
As for damages, the jury awarded plaintiff $20,000 in pain and suffering,
$80,000 in past lost wages, and $230,000 for unpaid medical expenses above his
$50,000 Personal Injury Protection ("PIP") coverage. These figures were
molded by the court and reduced by 20% to take into account plaintiff's
comparative fault. The net award, as molded, was $263,966.63. The court also
awarded $14,183.23 in prejudgment interest.
A-0572-22 2 I.
Defendants solely raise issues on appeal contesting the award of damages.
In particular, defendants appeal the trial court's decisions allowing plaintiff to
present to the jury a lost wage claim and evidence of unpaid medical bills.
Plaintiff cross-appeals, solely with respect to the trial court's
undercalculation of prejudgment interest. Defendants agree prejudgment
interest was calculated incorrectly.
For the reasons that follow, we affirm the damages awarded by the jury
and therefore deny defendants' appeal. However, as to plaintiff's unopposed
cross-appeal, we remand to the trial court to correct its calculation of
prejudgment interest.
A.
We first consider defendants' challenge to the award of lost wages. This
is the pertinent background.
Before the accident, plaintiff did general maintenance work at an
apartment complex. He testified that he could no longer perform those tasks
after the accident because, in his words, it was "heavy duty work."
To substantiate his injuries, plaintiff presented expert testimony from his
treating orthopedic surgeon. The surgeon first saw plaintiff in October 2018, at
A-0572-22 3 which time plaintiff presented with neck and back pain extending into his hips
and legs. The surgeon reexamined plaintiff in March 2019, and noted plaintiff's
symptoms had worsened. According to the surgeon, plaintiff's responses to a
low back pain questionnaire rated him 100% disabled. Eventually, the surgeon
performed the aforementioned fusion procedure in May 2019. Plaintiff reported
that the surgery improved his condition. The surgeon opined that plaintiff's
condition was causally related to the motor vehicle accident, and that the
medical treatment provided to him was necessary and appropriate.
Defendants' orthopedic expert examined plaintiff in June 2020, about a
year after his surgery. Based on that examination and a review of the pertinent
records, the defense expert opined that plaintiff exhibited a normal range of
cervical motion, but a diminished lumbar range of motion that would be
expected from a lumbar fusion. The examination was otherwise normal.
Defendants maintain plaintiff did not present sufficient evidence to
establish his claim of lost wages. They stress that his medical expert did not
specify in his testimony that plaintiff was unable to work after the accident.
Defendants consequently moved to dismiss the lost wage claim at the end of
plaintiff's case in chief. The trial court denied that midtrial motion, without
A-0572-22 4 prejudice. Defendants renewed the motion at the end of the trial, and the court
reserved its decision.
After the jury verdict was returned, the court heard further argument on
the lost wages issue. Following that argument, the court denied defendants'
motion. With respect to plaintiff's inability to work, the court noted that plaintiff
had presented evidence of his limited post-accident range of motion of his arm,
neck, and shoulder.
The court also noted that the jury had specifically inquired during their
deliberations about the dates on which the parties' medical experts had examined
plaintiff, which was indicative of their attentiveness to the timing of plaintiff's
recovery. In fact, as plaintiff's brief points out, the jury's $80,000 lost wages
award is roughly consistent with a determination that plaintiff was able to
resume work by the time he was examined by the defense orthopedist in June
2020.
On appeal, defendants repeat their contention that plaintiff's wage claim
lacked sufficient evidential support. We reject that contention. To be sure, a
personal injury plaintiff seeking recovery of lost wages has the burden of
showing by a preponderance of the evidence that plaintiff was unable to work
as the result of injuries caused by the subject accident. Caldwell v. Haynes, 136
A-0572-22 5 N.J. 422, 436 (1994); see also Model Jury Charges (Civil), 8.11C, "Loss of
Earnings" (Jul. 2010).
Plaintiff presented adequate credible evidence here to satisfy that burden,
including but not limited to his own testimony recounting his post-accident
limitations and the nature of his work as a maintenance employee, his treating
surgeon's findings of his condition and the consequences of his treatment, his
100% rating on the disability questionnaire, and the corroborating medical
records moved into evidence.
Although plaintiff's doctor did not specifically state in his testimony that
plaintiff was unable to perform his job duties after the accident, the jury could
have reasonably inferred that physical condition from the evidence as a whole.
Indeed, the jury reasonably cut off the lost wages as of the time when defendants'
expert determined he had recovered most of his physical capabilities. The wage
calculations themselves for the three years in question (2018, 2019 and part of
2020) were amply supported by unopposed testimony from plaintiff's expert
accountant.
A-0572-22 6 B.
Defendants further argue the trial court erred in allowing plaintiff to be
reimbursed for unpaid medical expenses. This issue was also the subject of
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-0572-22
JOHN VALDEZ,
Plaintiff-Respondent/ Cross-Appellant,
v.
GEORGE MITILENES and HORSEHILL PROPERTIES, LLC,
Defendants-Appellants/ Cross-Respondents.
Submitted January 29, 2024 – Decided February 8, 2024
Before Judges Sabatino and Vinci.
On appeal from the Superior Court of New Jersey, Law Division, Morris County, Docket No. L-0584-19.
Donnelly Minter & Kelly, LLC, attorneys for appellants/cross-respondents (Patrick B. Minter, of counsel; Thomas J. Coffey, III, and Alison L. Moody, on the briefs). The Harrell Law Firm, LLC, attorneys for respondent/cross-appellant (Kenneth McCall Harrell and Leigh Ann Raffauf, on the brief).
PER CURIAM
This personal injury case arose from an accident in New York City on
June 18, 2018, in which a pickup truck owned by defendant Horsehill Properties,
LLC, and driven by defendant George Mitilenes collided with a car owned and
driven by plaintiff John Valdez. Plaintiff sustained neck and back injuries as a
result of the collision. He had cervical and lumbar injections, culminating with
lumbar fusion surgery in May 2019.
The case was tried before a jury in May 2022 during the COVID-19
pandemic. The jury found defendant 80% at fault for the accident and plaintiff
20% comparatively negligent. Those liability findings have not been appealed.
As for damages, the jury awarded plaintiff $20,000 in pain and suffering,
$80,000 in past lost wages, and $230,000 for unpaid medical expenses above his
$50,000 Personal Injury Protection ("PIP") coverage. These figures were
molded by the court and reduced by 20% to take into account plaintiff's
comparative fault. The net award, as molded, was $263,966.63. The court also
awarded $14,183.23 in prejudgment interest.
A-0572-22 2 I.
Defendants solely raise issues on appeal contesting the award of damages.
In particular, defendants appeal the trial court's decisions allowing plaintiff to
present to the jury a lost wage claim and evidence of unpaid medical bills.
Plaintiff cross-appeals, solely with respect to the trial court's
undercalculation of prejudgment interest. Defendants agree prejudgment
interest was calculated incorrectly.
For the reasons that follow, we affirm the damages awarded by the jury
and therefore deny defendants' appeal. However, as to plaintiff's unopposed
cross-appeal, we remand to the trial court to correct its calculation of
prejudgment interest.
A.
We first consider defendants' challenge to the award of lost wages. This
is the pertinent background.
Before the accident, plaintiff did general maintenance work at an
apartment complex. He testified that he could no longer perform those tasks
after the accident because, in his words, it was "heavy duty work."
To substantiate his injuries, plaintiff presented expert testimony from his
treating orthopedic surgeon. The surgeon first saw plaintiff in October 2018, at
A-0572-22 3 which time plaintiff presented with neck and back pain extending into his hips
and legs. The surgeon reexamined plaintiff in March 2019, and noted plaintiff's
symptoms had worsened. According to the surgeon, plaintiff's responses to a
low back pain questionnaire rated him 100% disabled. Eventually, the surgeon
performed the aforementioned fusion procedure in May 2019. Plaintiff reported
that the surgery improved his condition. The surgeon opined that plaintiff's
condition was causally related to the motor vehicle accident, and that the
medical treatment provided to him was necessary and appropriate.
Defendants' orthopedic expert examined plaintiff in June 2020, about a
year after his surgery. Based on that examination and a review of the pertinent
records, the defense expert opined that plaintiff exhibited a normal range of
cervical motion, but a diminished lumbar range of motion that would be
expected from a lumbar fusion. The examination was otherwise normal.
Defendants maintain plaintiff did not present sufficient evidence to
establish his claim of lost wages. They stress that his medical expert did not
specify in his testimony that plaintiff was unable to work after the accident.
Defendants consequently moved to dismiss the lost wage claim at the end of
plaintiff's case in chief. The trial court denied that midtrial motion, without
A-0572-22 4 prejudice. Defendants renewed the motion at the end of the trial, and the court
reserved its decision.
After the jury verdict was returned, the court heard further argument on
the lost wages issue. Following that argument, the court denied defendants'
motion. With respect to plaintiff's inability to work, the court noted that plaintiff
had presented evidence of his limited post-accident range of motion of his arm,
neck, and shoulder.
The court also noted that the jury had specifically inquired during their
deliberations about the dates on which the parties' medical experts had examined
plaintiff, which was indicative of their attentiveness to the timing of plaintiff's
recovery. In fact, as plaintiff's brief points out, the jury's $80,000 lost wages
award is roughly consistent with a determination that plaintiff was able to
resume work by the time he was examined by the defense orthopedist in June
2020.
On appeal, defendants repeat their contention that plaintiff's wage claim
lacked sufficient evidential support. We reject that contention. To be sure, a
personal injury plaintiff seeking recovery of lost wages has the burden of
showing by a preponderance of the evidence that plaintiff was unable to work
as the result of injuries caused by the subject accident. Caldwell v. Haynes, 136
A-0572-22 5 N.J. 422, 436 (1994); see also Model Jury Charges (Civil), 8.11C, "Loss of
Earnings" (Jul. 2010).
Plaintiff presented adequate credible evidence here to satisfy that burden,
including but not limited to his own testimony recounting his post-accident
limitations and the nature of his work as a maintenance employee, his treating
surgeon's findings of his condition and the consequences of his treatment, his
100% rating on the disability questionnaire, and the corroborating medical
records moved into evidence.
Although plaintiff's doctor did not specifically state in his testimony that
plaintiff was unable to perform his job duties after the accident, the jury could
have reasonably inferred that physical condition from the evidence as a whole.
Indeed, the jury reasonably cut off the lost wages as of the time when defendants'
expert determined he had recovered most of his physical capabilities. The wage
calculations themselves for the three years in question (2018, 2019 and part of
2020) were amply supported by unopposed testimony from plaintiff's expert
accountant.
A-0572-22 6 B.
Defendants further argue the trial court erred in allowing plaintiff to be
reimbursed for unpaid medical expenses. This issue was also the subject of
midtrial and post-trial motions by defendants, which the trial court denied.
It is undisputed that, under the terms of his automobile insurance policy
and applicable New York law, plaintiff's PIP coverage was capped at $50,000.
Once plaintiff's medical bills exhausted that cap, he was eligible to have the jury
award him the reasonable amount of unpaid bills over that threshold.
Plaintiff retained an expert in medical billing to evaluate the charges for
the medical services he had been provided. The expert reviewed the bills as they
existed prior to trial. She rendered a report that was served on the defense on
January 12, 2021, approximately two weeks after the discovery period ended,
along with a certification under Rule 4:17-7. Her report opined that plaintiff
had incurred medical bills totaling $296,778.58, based on usual and customary
rates.
Despite the fact that the billing expert's report was served slightly out of
time, defendants did not move to strike it before trial. The trial took place over
a year later in May 2022.
A-0572-22 7 After the trial started, plaintiff's billing expert updated her opinions and
calculations based on the results of recent PIP arbitrations involving plaintiff's
medical providers. Her updated report was served on defendants before she
testified. In her testimony, the expert explained her calculations and why she
concluded that plaintiff's medical bills substantially exceeded the $50,000 PIP
cap.
We discern no abuse of discretion in the trial court's decision to allow
plaintiff's medical billing expert to present her opinions and calculations to the
jury. See Ehrlich v. Sorokin, 451 N.J. Super. 119, 128 (App. Div. 2017)
(reiterating the well-settled principle that trial court rulings on the admissibility
of evidence are generally reviewed on appeal by an abuse-of-discretion
standard). The expert presented a sound basis for her analysis of the bills.
In addition, we decline defendants' urging that we vacate the unpaid
medical expense award as a sanction for plaintiff serving the report and the
updated report outside of the discovery period. As we noted, defendants did not
lodge a timely objection to the late report when it was served, and took no action
for more than a year thereafter until the time of trial. The trial court did not
misapply its wide discretion over discovery-related matters in declining to
impose sanctions on plaintiff, in the circumstances presented. Pomerantz Paper
A-0572-22 8 Corp. v. New Cmty. Corp., 207 N.J. 344, 371 (2011) (recognizing the civil trial
court's wide discretion over discovery-related matters).
Moreover, as plaintiff's brief points out, the collateral source rule codified
at N.J.S.A. 2A:15-97 precludes a double recovery of medical expenses. The
record contains no evidence that plaintiff's medical providers accepted their
portions of the PIP cap, as determined in arbitration, as payment in full. We
conclude the award of unpaid medical expenses was proper and should be
sustained. Perreira v. Rediger, 169 N.J. 399, 409 (2001).
II.
As noted above, plaintiff's cross-appeal asserts that the final judgment
miscalculated prejudgment interest by omitting the two percent enhancement
prescribed by Rule 4:42-11(a)(iii). Defendant does not dispute this omission,
nor the need to remand for recalculation of the interest award. Accordingly, we
grant the unopposed relief sought in the cross-appeal.
Affirmed in part, remanded in part as to the prejudgment interest
calculation. We do not retain jurisdiction.
A-0572-22 9