Gibbs vs. Camillo: Measuring the Value of Pain and Suffering, Disability, Impairment, Loss of Enjoyment of Life


Submitted by New Jersey Personal Injury Lawyer, Jeffrey Hark.

Evidence Issue:    Should the jury be allowed to see the medical records from the doctor’s who testified at the time of trial? 

In this case, which a jury returned a personal injury verdict of 1 million dollars, the defense appealed arguing the court erred in allowing into the jury deliberation room medical records from the plaintiff’s treatment with various doctors.  The court on appeal rejected this agreement finding the records were, concise, legible, not confusing, and supported the plaintiff’s physical complaints and were spurred by the doctor’s testimony.  As well, the court reasoned it was the trial judge’s exercise of his discretion when he allowed the records in, invited defense counsel to provide redacted copies excluding certain text they believed to be embedded hearsay to which they never did, and in the end the court found the judge did not abuse his discretion. As a matter of an evidentiary ruling, this is an interesting decision because operative reports, office notes, and other comments made to the doctor by the plaintiff incorporated into the records will be useful at the time the jury deliberates because those comments made years earlier will help reveal any plaintiff’s deposition testimony and trial testimony creating a consistent and clear picture of long term ongoing symptoms and complaint for the jury to sink their teeth into when they are determining credibility!

Here is the court’s straight forward analysis:

Defendant next argues the court erred in admitting unredacted treatment and hospital records. At trial, defense counsel objected that the documents were confusing and cumulative in that they mirrored much of the testimony of Drs. Gizzi and Demesmin. In argument before the trial court for a new trial, counsel conceded there was no other basis for contending the documents were inadmissible. Counsel acknowledged it was unlikely the jury actually reviewed the documents in detail, given their brief deliberation, but contended that the jury may have been swayed merely by the volume of documents. On appeal, defendant argues that some of the records did contain objectionable hearsay under N.J.R.E. 808, including records of plaintiff’s primary care physician and emergency room records. During trial, the trial judge examined the documents before admitting them into evidence, and concluded they were not confusing. He found that the meaning of the abbreviations was self-evident, the handwriting was legible, and the testifying physicians had explained the medical terms found in the records. Plaintiff’s counsel argued the records corroborated the testimony of plaintiff and Drs. Gizzi and Demesmin. The court declined to find they were cumulative. The court also offered defense counsel the opportunity to propose redactions of sections, apparently to avoid admission of embedded hearsay.

A trial judge may exclude relevant evidence “if its probative value is substantially outweighed by the risk of (a) … confusion of issues . . . or (b) . . . needless presentation of cumulative evidence.” N.J.R.E. 403. The trial court’s decision not to exclude the reports is entitled to great deference. “Determinations pursuant to N.J.R.E. 403 should not be overturned on appeal unless it can be shown that the trial court palpably abused its discretion, that is, that its finding was so wide off the mark that a manifest denial of justice resulted.” Green v. N.J. Mfrs. Ins. Co., 160 N.J. 480, 492 (1999) (internal quotation marks and citation omitted). Defendant has fallen short of meeting this high standard. Indeed, defendant failed to include in the record on appeal the exhibits about which she complains. We therefore cannot meaningfully review whether the exhibits were confusing. Nor can we properly consider the argument that the documents were in fact cumulative, let alone so needlessly cumulative that a denial of justice resulted. See R. 2:6-1(a)(1) (stating that the appendix “shall contain . . . such other parts of the record . . . as are essential to the proper consideration of the issues”); Cmty. Hosp. Grp., Inc. v. Blume Goldfaden, 381 N.J. Super. 119, 127 (App. Div. 2005) (“Nor are we obliged to attempt review of an issue when the relevant portions of the record are not included.”).

The failure to include the allegedly inadmissible documents also frustrates our review of defendant’s newly minted argument that some records contained embedded hearsay barred by N.J.R.E. 808, which is subject to a plain error standard. See State v. Frisby, 174 N.J. 583, 591 (2002) (“Because no objection was advanced with respect to that hearsay evidence at trial, it must be judged under the plain-error standard: that is, whether its admission ‘is of such a nature as to have been clearly capable of producing an unjust result.'”) (quoting R. 2:10-2). In sum, we reject defendant’s argument that she is entitled to a new trial because of the admission of the various medical and hospital records.

Closing Arguments:     What can you say to the jury regarding one’s future life worth in order to persuade a greater jury verdict???

The plaintiff’s attorney in this case argued that the jury should consider the life long effects of this collision and made a long term time argument to the jury.  The appeals court did not find any harm in this ‘big picture’ argument and infant found it to be entirely consistent with the model jury charge the trial court is required to give.  It is a good closing comment section for any plaintiff’s attorney in a substantial injury case as this, where there has been a final diagnosis of ‘lumbago’ after spinal surgery leaving long term residual effects.  Again, the appeals court deferred to the trial court’s exercise of its discretion and analyzed this judge’s decision to allow such argument under the ‘plain error’ standard.   The argument is as follows:

Defendant also argues she is entitled to a new trial because plaintiff’s counsel allegedly urged the jury in summation, without objection, to increase its compensatory award to account for inflation.vWe apply a plain error standard. R. 2:10-2. Defendant premises her argument on the principle in Friedman v. C & S Car Service, 108 N.J. 72, 79 (1987), that “damages for future non-economic injuries should not be discounted or reduced to reflect their present value.” The Court reasoned: The discounting to present value for such damages is artificial and unrealistic because of the imprecise and speculative nature of the elements underlying such determinations. Such a requirement would add to the time, expense, and complexity of civil trials without any corresponding enhancement of the reliability, accuracy, or fairness of damages awards. Defendant argues that, based on the same reasoning, a may not ask a jury to increase an award to account for inflation. Although the logic may be compelling, we need not decide whether Friedman compels the principle that jury awards for non- economic losses may not be increased for inflation. That is because plaintiff did not ask the jury to apply a fixed inflation formula to its damage award. Plaintiff’s counsel urged the jury to consider that the award was plaintiff’s sole opportunity to obtain compensation for her permanent injuries and non-economic losses. Counsel illustrated the length of time encompassed by plaintiff’s more than thirty-three-year life expectancy by harking back to aspects of American culture thirty-three years earlier. He highlighted increases in the federal budget and the cost of various consumer goods over the years. He reminded the jury to be mindful of the “value of money” and that the sum of the jury award was “for the rest of [plaintiff’s] life.” This appeal to the jury simply did not invite the kind of artificial, mathematical calculation the Court criticized in Friedman. Counsel did not ask the jury to overlay an inflation factor to what is an inherently speculative and imprecise calculation. Consistent with Model Jury Charge (Civil) § 8.11E, “Disability, Impairment And Loss Of The Enjoyment of Life, Pain And Suffering” (1996), the trial judge instructed the jury to consider that its award must compensate plaintiff for future losses: You must also consider their duration as any award you make must cover the damages suffered by . . . Ms. Gibbs since the accident, to the present time, and even into the future, if you find that Ms. Gibbs’ injuries and their consequences have continued to present time or could reasonably be expected to continue into the future. The law does not provide you with any table, any schedule or formula by which a person’s pain and suffering, disability, impairment, loss of enjoyment of life may be measured in terms of money. The amount is left to your sound discretion.

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Jeffrey Hark is a New Jersey Civil and Criminal Lawyer.

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