Waldorf v. Shuta

Page 601

142 F.3d 601

Mark WALDORF, Appellant in No. 97-5195, v. Edward J. SHUTA; Carolyn Wood; Kenneth C. Spence, Jr.;

Mary Kay Spence; Borough of Kenilworth; Joseph Rego;

Henry J. Moll; Victor Smith; Lawrence Stickle; Charles

David; Joseph Ventre; Thomas Neville; William J. Ahern;

William E. Conrad; Livio Mancino; Gary Rowinsky; Mario

Dibella; Vincent Scorese; Harry Grapenthin; Mary Kelly;

Richard McCormack; William Holt; A. Zeleniak; Richard

Lomax; C. William Gutekunst; Frederick Bailey; Michael

Padula; Charles Scheuermann; Fred Sues; Joseph Walyuf;

Thomas McHale; Philip Ernst; Frank J. Mascaro; Walter E.

Boright, Jr.; Albert Simmenroth; James E. O'Brien; Frank

J. Johdof; Raymond Blydenburgh; Edward Kasbarian; John J.

O'Lock; Edmac Enterprises; Edward McDermott.

Mark WALDORF v. Edward J. SHUTA; Carolyn Wood; Kenneth C. Spence, Jr.;

Mary Kay Spence; Borough of Kenilworth; Joseph Rego;

Henry J. Moll; Victor Smith; Lawrence Stickle; Charles

David; Joseph Ventre; Thomas Neville; William J. Ahern;

William E. Conrad; Livio Mancino; Gary Rowinsky; Mario

Dibella; Vincent Scorese; Harry Grapenthin; Mary Kelly;

Richard McCormack; William Holt; A. Zeleniak; Richard

Lomax; C. William Gutekunst; Frederick Bailey; Michael

Padula; Charles Scheuermann; Fred Sues; Joseph Walyuf;

Thomas McHale; Philip Ernst; Frank J. Mascaro; Walter E.

Boright, Jr.; Albert Simmenroth; James E. O'Brien; Frank

J. Johdof; Raymond Blydenburgh; Edward Kasbarian; John J.

O'Lock; Edmac Enterprises; Edward McDermott.

Borough of Kenilworth, Appellant in No. 97-5222.

Nos. 97-5195, 97-5222.

United States Court of Appeals Third Circuit.

Argued March 11, 1998.

Decided April 15, 1998.

Warren W. Wilentz, Michael J. Barrett (argued), Wilentz, Goldman & Spitzer, Woodbridge, NJ, for Appellant and Cross Appellee Mark Waldorf.

Richard A. Amdur (argued), Elizabeth A. Wilson, Amdur, Boyle & Maggs, Oakhurst, NJ, for Appellee and Cross Appellant Borough of Kenilworth.

Richard M. Tango, McDermott & McGee, Millburn, NJ, for Appellees Kenneth C. Spence, Jr. and Mary Kay Spence.

Before: GREENBERG, SCIRICA, and ALDISERT, Circuit Judge.

OPINION OF THE COURT

GREENBERG, Circuit Judge.

                              TABLE OF CONTENTS
I.    FACTUAL AND PROCEDURAL HISTORY ..................................... 605
II.   JURISDICTION ....................................................... 608
      A.    District Court Determination ................................. 608
      B.    Discussion ................................................... 610
             1.    Finality .............................................. 611
             2.    Just Reason for Delay ................................. 613
III.  BINDING EFFECT OF THE STIPULATION .................................. 613
      A.    District Court Determination ................................. 614
             1.    Prejudice to the Borough .............................. 614
             2.    Prejudice to Waldorf .................................. 615
             3.    Prejudice to the Judicial System ...................... 615
      B.    Discussion ................................................... 616
             1.    Subsequent Proceedings ................................ 616
             2.    Manifest Injustice .................................... 617
             3.    New Jersey Open Public Meetings Act ................... 619
IV.   ADEQUACY OF THE JURY VERDICT ....................................... 620
      A.    Scope of the Appellate Record ................................ 620
      B.    Pain and Suffering ........................................... 621
      C.    Award for Past and Future Economic Loss ...................... 623
             1.    Mitigation of Damages ................................. 623
             2.    Qualification of Dennis Rizzo ......................... 625
             3.    Remarks of Defense Counsel in Summation ............... 627
             4.    Improper Use of the Testimony of James Pascuiti ....... 628
                   a.  Redirect Examination of Pascuiti .................. 628
                   b.  Closing Argument by the Borough ................... 628
V.    COLLATERAL SOURCE SET"OFF .......................................... 629
VI.   CONCLUSION ......................................................... 631
I. FACTUAL AND PROCEDURAL HISTORY

This case involves an appeal and a cross appeal from a judgment of $3,005,941 entered on a jury's verdict in favor of the plaintiff, Mark Waldorf, after a deduction for a collateral source recovery, in this personal injury action. Waldorf suffered injuries rendering him a quadriplegic in a motor vehicle accident in 1982 when he was 24 years old. First, Waldorf appeals from the denial of his motion for a new trial on damages and the refusal of the district court to grant him an additur as he contends that the verdict was inadequate and against the weight of the evidence. Second, Waldorf argues that he should receive a new trial based on the district court's improper qualification of a witness as an expert and based on the allegedly improper conduct of defense counsel during the trial. Defendant, Borough of Kenilworth, New Jersey ("the Borough"), contends, however, that we do not have jurisdiction over Waldorf's appeal, because the district court has not entered a final judgment. In a cross appeal, the Borough also argues that the district court improperly bound it to a stipulation of liability to Waldorf that it made prior to an earlier trial, and that the court also erred in limiting a collateral source set-off against the jury's award. We hold that we have jurisdiction over this appeal and cross appeal and will affirm the district court's orders.

This appeal is the third occasion that this case has been before us during the over 13 years that it has been litigated in the federal courts. See Waldorf v. Shuta, 3 F.3d 705 (3d Cir.1993); Waldorf v. Shuta, 896 F.2d 723 (3d Cir.1990). Although our prior opinions relate the circumstances surrounding this case, we set forth the facts again because of their relevance to the present appeal.

On November 17, 1982, at approximately 11:45 p.m., Waldorf was involved in a two-car accident at the four-way intersection of Monroe Avenue and North 14th Street in the Borough. He was a passenger in a van driven by Kenneth C. Spence, Jr., and was riding on a seat that was not bolted down, but instead was secured only by elastic straps. Waldorf was not wearing a seat belt at the time of the accident.

The intersection of Monroe Avenue and North 14th Street had only one traffic light facing in each direction. On the night of the accident, the red light facing west at the intersection failed. Corporal Victor Smith of the Kenilworth Police Department discovered at approximately 11:00 p.m. that the red light was not working. He attempted to fix the light; but he could not repair it, nor could he switch it into the blinking mode. Smith radioed police headquarters and discussed the situation with his supervisor, Lieutenant Joseph Rego. However, instead of ordering an officer to direct traffic at the intersection, Rego assigned Smith and the other officer on duty to what he regarded as more pressing matters.

At approximately 11:45 p.m. that night, Spence was traveling south on 14th Street. Edward J. Shuta, driving a Datsun Sedan, was traveling at approximately 60 miles per hour heading east on Monroe Avenue at the same time. The green light was facing Spence, and he proceeded into the intersection at approximately 20-25 miles per hour. Shuta testified that he saw a green light when he was crossing railroad tracks 237 feet from the intersection. However, he did not see the light turn yellow, nor did he notice that the red light was not working. Thus, he entered the intersection at the same time as Spence, and the vehicles collided. The force of the collision threw Waldorf from his seat, and the bench upon which he had been sitting struck his head.

Waldorf was taken to Memorial Hospital in Union, New Jersey, where neurosurgeon Dr. Howard Lieberman diagnosed that he had a fracture and dislocation at the C6-C7 level of the spine with a transection of the spinal cord and a total lack of function below that level resulting in quadriplegia. See app. at 129-31. While Waldorf was at the hospital, Dr. Lieberman initially treated him with cervical traction to reduce the fracture in the cervical spine, and Dr. Lieberman later fitted him with a halo brace, which was screwed into his skull to help his neck fractures heal. Waldorf remained in the hospital for three weeks and then transferred to the Kessler Institute for Rehabilitation in West Orange, New Jersey, where he began a rehabilitation program, physical therapy, and occupational therapy.

In March 1983, Waldorf transferred to the Rusk Institute for Rehabilitation at New York University Medical Center. At Rusk, Waldorf came under the care of Dr. Kristjan Ragnarsson, a board certified physician who specializes in physical medicine and rehabilitation. Waldorf received physical therapy, occupational therapy, counseling by social workers and psychologists, vocational counseling, and therapeutic recreation. See id. at 142-50. Ultimately, Waldorf was discharged on December 23, 1983. In all, Waldorf spent 404 days at Memorial Hospital, Kessler Institute, and Rusk Institute. Upon discharge, Waldorf continued under Dr. Ragnarsson's care as an outpatient. For a time, Waldorf was under the care of Dr. Asa Ruskin, a physical medicine specialist at Kinsgbrook Jewish Medical Center, but he returned to Dr. Ragnarsson's care in April 1991, after Dr. Ruskin's death.

Waldorf's injuries as a result of this accident are catastrophic. He has lost control of all motor, muscle, and sensory functions below the C6-C7 neurological level. Waldorf can move his facial, neck, and shoulder muscles and can raise and bend his elbow; but he cannot move his fingers....