Lupia v. Port Auth. Trans-Hudson Corp.

CARL LUPIA, Plaintiff-Respondent/Cross-Appellant, v. PORT AUTHORITY TRANS-HUDSON CORPORATION, Defendant-Appellant/Cross-Respondent.

DOCKET NO. A-3750-17T2

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION

Argued September 11, 2019

August 11, 2020

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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.

Before Judges Koblitz, Gooden Brown and Mawla.

On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-3939-15.

Thomas R. Brophy argued the cause for appellant/cross-respondent (Port Authority Law Department, attorneys; Thomas R. Brophy, of counsel and on the briefs).

Charles Arthur Cerussi argued the cause for respondent/cross-appellant (Cerussi & Gunn, PC, attorneys; Charles Arthur Cerussi, of counsel and on the briefs).

PER CURIAM

Defendant Port Authority Trans-Hudson Corporation (PATH) appeals from a final judgment in the amount of $469,500, entered pursuant to a jury verdict in favor of plaintiff Carl Lupia, a PATH employee injured in a workplace incident. In molding the final judgment, the trial judge accepted plaintiff's interpretation of the Federal Employers' Liability Act (FELA) set-off provision embodied in 45 U.S.C. § 55, allowing defendant to set-off its pre-trial payment of $819,111.72 in stipulated damages for past medical expenses. Thus, in calculating the final judgment, the judge first added the stipulated damages amount to the $939,000 jury award for a gross damages amount of $1,758,111.72. Thereafter, the judge subtracted the stipulated damages amount from the gross damages amount, to arrive at a net of $939,000. Finally, the judge reduced the net by plaintiff's fifty-percent comparative fault found by the jury for a final judgment of $469,500.

On March 16, 2018, the judge entered a memorializing order denying defendant's post-trial motion to alter or amend the judgment pursuant to Rule 4:49-2. In appealing the March 16 order, defendant challenges the court's interpretation of FELA's set-off provision, arguing that the $939,000 jury awardand $819,111.72 in stipulated damages for past medical expenses should have first been combined for a total gross damages amount of $1,758,111.72, and then reduced by plaintiff's fifty-percent comparative fault for a net damages amount of $879,055.86. Thereafter, according to defendant, its payment of $819,111.72 in past medical expenses included in the stipulated damages amount should then offset the net, resulting in PATH being liable for only $59,944.14.¹ Plaintiff cross-appeals, arguing that if we agree with defendant's methodology for calculating the set-off, then plaintiff is entitled to a new trial on damages only, or, in the alternative, an additur, because $59,944.14 is a manifestly unjust award. Because we affirm, we need not address plaintiff's cross-appeal.

We glean these facts from the record. On February 12, 2015, while performing an inventory check in a small equipment room at the Journal Square PATH station in Jersey City, a shelving unit detached from the wall, striking plaintiff and knocking him to the ground, resulting in plaintiff sustaining injuries. On the same date, plaintiff completed and signed a PATH Employee Occupational Injury Report (injury report), in which he stated that as a result of the incident, he suffered injuries to his "[h]ead," "neck," "back," "left hand,""left ankle," and "right shoulder," and sustained "cuts on [his] forehead [and] nose."

In the injury report, plaintiff acknowledged:

I hereby apply for payment of all necessary medical expenses authorized by the Port Authority Office of Medical Services arising out of an alleged injury on duty on [February 12, 2015,] at [the equipment office]. I understand and acknowledge that PATH . . . has the right to a lien for any such medical expenses against any subsequent judgment or settlement of any action brought against PATH . . . arising out of said alleged injury on duty and I also understand and acknowledge that any payment by PATH . . . of such medical expenses is made on the specific condition that such payment is in no way an admission on the part of . . . PATH as to any liability for said alleged injury on duty.

. . . PATH . . . WILL NOT UNDERTAKE NOR CONTINUE TO MAKE THE PAYMENT OF ANY MEDICAL EXPENSES UNLESS AND UNTIL THIS FORM IS SIGNED AND TREATMENT IS AUTHORIZED BY [THE] OFFICE OF MEDICAL SERVICES.

From the date of the accident, when plaintiff was transported to the hospital by ambulance, to December 28, 2017, the Office of Medical Services approved all medical treatment requested by plaintiff, and the Port Authority Claims Department made direct payments on plaintiff's behalf totaling $819,111.72 in medical expenses. During that period, plaintiff treated withvarious doctors and underwent various treatment modalities, including physical therapy, cortisone and epidural injections, as well as steroid, anti-inflammatory, and pain medications to relieve pain. Plaintiff also underwent four surgeries, including two cervical spine surgeries and a lumbar spine fusion surgery when the other treatment failed to provide relief. Although plaintiff's condition improved from the treatment, some of his limitations and disabilities were permanent. After plaintiff returned to work, he was placed on restricted duty which prevented him from performing many of the physical activities he had previously performed in his capacity as an operations examiner. Plaintiff also experienced functional limitations in his normal activities at home.

On July 7, 2015, plaintiff filed a personal injury complaint pursuant to FELA, 45 U.S.C. § 51-60, alleging that his injuries, caused by "defective metal shelving [falling] on top of him," were a result of defendant's "negligence and failure to provide [plaintiff] with a safe place to work." A seven-day jury trial was conducted on non-consecutive days from January 30 to February 8, 2018. During the trial, in addition to producing the deposition testimony of Dr. Charles Gatto, Dr. Kevin Finnesey, and Dr. John Capo, three orthopedic surgeons who treated plaintiff, plaintiff called Ronald A. Fermano, an expert in the field of architecture and facility safety. Fermano opined that defendant departed fromaccepted industry standards in the way that the shelving unit was assembled and/or maintained.² Plaintiff also produced William Harris, a forensic economist, who testified regarding plaintiff's past lost wages, future loss of earning capacity, and cost of future medical treatment, quantifying those losses as follows:

1) $89,895 for past loss of earnings to date;

2) $124,865 for future loss of overtime pay;

3) $778,580 for future loss of pay if no longer employed by PATH; and

4) $530,500 for future medical treatment.

Throughout the trial, the admission of the past medical expenses paid by defendant prior to trial in conjunction with the methodology for setting off the payment were hotly contested. As to the set-off, plaintiff and defendant proposed conflicting methodologies for the calculation. Regarding the past medical expenses, on the first day of trial, with defense counsel's consent, plaintiff's attorney informed the judge that the parties stipulated "to the amount" paid for plaintiff's past medical expenses, and "[t]he parties . . . stipulated and agreed that the medical treatment received by plaintiff to date [was] . . .medically necessary and causally related to the subject incident." The judge agreed to present the stipulation to the jury. However, two days later, defense counsel withdrew the stipulation, except for the amount paid for plaintiff's medical expenses.

Plaintiff asserted that defendant was legally bound by the stipulation and argued that the stipulation and the medical bills should be admitted into evidence because the expenses were directly related to the issue of causation and the credibility of the defense in contesting causation.³ Plaintiff explained that the past medical expenses constituted "an item of damages" just "like any other item of dam[ages]," and "it would be more confusing if [the jury] didn't hear about it," because then plaintiff would be "putting in a claim for future medicals" without presenting anything "about past medicals." Defendant countered that since the parties stipulated to the amount, it was unnecessary for the jury to be informed of the expenses. Further, according to defendant, any evidence of defendant's prior payment of plaintiff's past medical expenses was prejudicial to defendant because the payments were not recoverable by plaintiff and had nobearing on any other damages at issue in the case. According to defendant, the speculation and confusion alluded to by plaintiff "goes both ways."

As to the stipulation and the past medical expenses, the judge agreed with defendant and ruled that there was "no need to put th[e] stipulation on the record in front of the jury" as the past medical bills were "not . . . probative of . . . future medical [expenses]" and were "not probative of proximate cause." The judge explained that there was "no need . . . to read a stipulation to a jury on an issue that they're not going to consider, [or] a number they're not going to see."⁴ As to the handling of the set-off, the judge agreed with plaintiff to apply the set-off only "to the medical expenses," rather than "any future pain and suffering award." Therefore, according to the judge, the pre-paid medical expenses would be added to any verdict and then reduced by that amount in order to apply the set-off. Any comparative fault found by the jury would then be applied to the net. The judge explained that such an approach would avoid any "double recovery" or "under compensation of the injured party."

On February 8, 2018, the jury returned a verdict totaling $939,000,...