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Accident Liability - Automobiles Simko v. Blue (L-2845-06)



DOCKET NO. A-4991-08T24991-08T2












Argued March 16, 2010 - Decided

Before Judges Wefing, Messano and LeWinn.

On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Docket No. L-2845-06.

Michael J. Confusione argued the cause for appellant (Hegge & Confusione, LLC, attorneys; Randall L. Tranger, on the brief).

Alan J. Baratz argued the cause for respondents (Weiner Lesniak, LLP, attorneys; Mr. Baratz, of counsel; Adam Kenny, on the brief).


Following a jury trial in this motor vehicle accident case, judgment was entered in favor of plaintiff Jonathan Simko, and against defendants Scott R. Blue, and his employer, Monmouth-Ocean Hospital Services Corporation, in the amount of $15,000, plus pre-judgment interest, reflecting plaintiffs non-economic damages. The jury rejected plaintiffs claim for lost earnings as a result of his injuries. Plaintiff subsequently moved for a new trial on damages, or, alternatively, for additur. The trial judge denied that motion, and this appeal ensued.

Plaintiff contends that the judge committed reversible error by instructing the jury to disregard: 1) his testimony regarding a loan from his mother that was used to fund the start-up costs of his motorcycle repair business that allegedly failed as a result of his injuries; and 2) plaintiffs personal opinion regarding the financial viability of that business. Plaintiff also argues that the judge committed reversible error by permitting defendant to testify.

We have considered these arguments in light of the record and applicable legal standards. We affirm.

Plaintiff obtained partial summary judgment pre-trial on the issue of defendants negligence, and, therefore, the trial proceeded on the issues of causation and damages only. The salient evidence demonstrated that plaintiff was injured while stopped at a traffic light when his car was struck in the rear by a vehicle driven by defendant and owned by his employer. Plaintiff suffered injuries that resulted in lower back surgery and a recommendation for future surgery on his cervical spine.

On the date of the accident, plaintiff was the sole proprietor of a motorcycle repair shop that he had opened six months earlier. He claimed that as a result of his injuries, he was forced to close his business. Plaintiff further claimed that he had invested an undisclosed amount of savings in the business, as well as $57,000 that had been loaned to him by his mother. Plaintiff opined during testimony that "the venture . . . was going to be successful . . . ."

Defendants objected to the testimony on two grounds. First, they asserted surprise because plaintiff never notified them of any claim for economic damages based upon the loss of his business. Second, they noted that this claim was contrary to the report and deposition testimony of plaintiffs identified expert, Dr. Robert Wolf. Wolf, who ultimately testified before the jury, opined that plaintiff sustained lost earnings of $494,720 as a result of the injuries from the accident and his inability to work as a motorcycle mechanic. However, Wolf also testified that any claim of lost profits from plaintiffs business was "speculative," given the high failure rate of new businesses and the general economic climate.

The judge overruled defendants objection to plaintiffs testimony, but noted that she would deal with the issue in her jury charge.

Over plaintiffs objection, defendant testified. A paramedic with "nearly 18 years" of experience, defendant exited his vehicle after the collision to see if plaintiff was hurt and if he needed help. Plaintiff said he was "fine" and did not need an ambulance. Defendant described the impact as "light to medium."

Defendants "employability expert and . . . vocational counselor" opined that plaintiff was not disabled by the accident, but was employable in various positions that were "sedentary and light where he could intermittently sit and stand during the course of the workday." Defendants orthopedic surgical expert testified that plaintiff did not suffer any permanent injury as a result of the accident.

As part of her charge, the judge gave the following instruction to the jury:

I charge you that a permissible element of plaintiffs damages claim cannot include any speculative past or future earning loss from his own business. For that reason[,] you are not to consider plaintiffs testimony regarding the anticipated success of his business or the loan that he received . . . from his mother as elements of any determination that you may reach concerning alleged earnings loss.

The jury determined that plaintiffs damages for pain, suffering, disability, and loss of enjoyment of life were $15,000; it further determined that he suffered no lost earnings as a result of his injuries in the accident.

Regarding plaintiffs first argument, we note that plaintiff lodged no objection to the charge. The trial transcript reveals that before summations, the judge asked both lawyers to confirm that there had "probably" been "three charge conferences . . . ." Unfortunately, none of them was transcribed. See R. 1:8-7(a) ("[A] verbatim record shall be made of any charge conference the court holds."). However, the judge further noted that she "incorporated all of the suggestions and changes," and that the parties had "agreed on the charge." In his summation, plaintiffs counsel never advanced any argument that plaintiffs economic damages included the loss of his business.

We are convinced that the judge was correct in excluding the evidence because it was purely speculative. See Desai v. Bd. of Adjustment of Phillipsburg, 360 N.J. Super. 586, 595 (App. Div.), ("Anticipated profits that are too remote, uncertain or speculative are not recoverable.") (citing Stanley Co. of Am. v. Hercules Powder Co., 16 N.J. 295, 314 (1954)) certif. denied, 177 N.J. 492 (2003); see also Friedman v. C & S Car Serv., 108 N.J. 72, 78 (1987) (distinguishing this type of compensatory damages from non-economic damages because "the anticipated loss of future earnings can be calculated simply, accurately, and objectively"). Plaintiff produced no evidence that in any way supported his own opinions about the future profitability of his motorcycle repair shop. He produced no profit and loss statements, or any future projections of same. Moreover, any personal opinion held by plaintiff was impeached by his own expert who testified that most small businesses fail within the first three years, and that any projection of the profitability of the business would be "speculative." Since plaintiff produced insufficient evidence that his business was rendered unprofitable because of his injuries, it follows that his claim that an element of his economic damages included the loan from his mother is similarly speculative.

Even if we are incorrect in our assessment, because there was no objection, we must review the issue as an allegation of plain error, i.e., error that was "clearly capable of producing an unjust result." R. 2:10-2. Considering the testimony of Wolf, and defendants vocational expert, we are convinced that even if the jury instruction was omitted, the result would not have been altered.

Plaintiff objected to defendant testifying at trial because of what had occurred before trial. In response to defendants notice to depose plaintiff, plaintiffs counsel responded with a letter requesting that defendant also be produced. Defense counsel answered, advising that defendants

[a]dmit liability and intend to defend . . . only on issues of causation and damages. In light of that representation, I will assume that you no longer require that I produce [defendant] to offer his deposition testimony in the matter.

Before defendant testified at trial, plaintiff objected and claimed surprise. He acknowledged, however, that he never sought to depose defendant, never sought an order compelling his deposition based upon any failure to appear, and never sought an order barring his testimony for any reason. Despite these admissions, the judge required defense counsel to provide a proffer of defendants anticipated testimony; she barred some of the proffered testimony, and she permitted defendant to testify only as to causation and damages. Plaintiff lodged no objection to any of defendants actual testimony at trial.

Before us, plaintiff essentially contends that permitting defendant to testify was unfair. We find the argument to be of insufficient merit to warrant any extensive discussion. See R. 2:11-3(e)(1)(E). Defendant never refused to be deposed and plaintiff never sought any further relief. Thus, we fail to see any equitable reason why defendants testimony should have been precluded.

Moreover, in light of the other testimony at trial, defendants testimony was relatively insignificant. Plaintiff admitted that he did not immediately seek medical treatment at the scene, and that he went to the emergency room much later when his pain worsened. Defendant described the impact of his car colliding with plaintiffs vehicle exactly as did plaintiffs own witness. In short, permitting defendant to testify was not error.


References throughout the opinion to "defendant" in the singular are to Scott R. Blue.

Plaintiff raised two other points in his appellate brief: that the judge erred in denying his motion for a new trial; and, that she committed reversible error by barring any testimony regarding the post-accident determination by the Social Security Administration that he was disabled. However, at argument before us, plaintiff specifically abandoned these two contentions; therefore, we do not consider them.

We explain in greater detail below the nature of the objection.

A disinterested witness called by plaintiff on his case, Donald Potts, described the accident using the same terms.



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Kenneth Vercammen is the Managing Attorney at Kenneth Vercammen & Associates in Edison, NJ. He is a New Jersey trial attorney has devoted a substantial portion of his professional time to the preparation and trial of litigated matters. He has appeared in Courts throughout New Jersey each week for litigation and contested Probate hearings.

Mr. Vercammen has published over 125 legal articles in national and New Jersey publications on elder law, probate and litigation topics. He is a highly regarded lecturer on litigation issues for the American Bar Association, NJ ICLE, New Jersey State Bar Association and Middlesex County Bar Association. His articles have been published in noted publications included New Jersey Law Journal, ABA Law Practice Management Magazine, and New Jersey Lawyer.

He is chair of the Elder Law Committee of the American Bar Association General Practice Division. He is also Editor of the ABA Estate Planning Probate Committee Newsletter and also the Criminal Law Committee newsletter. Mr. Vercammen is a recipient of the NJSBA- YLD Service to the Bar Award. And past Winner "General Practice Attorney of the Year" from the NJ State Bar Association. He is a 22 year active member of the American Bar Association. He is also a member of the ABA Real Property, Probate & Trust Section.

He established the NJlaws website which includes many articles on Elder Law. Mr. Vercammen received his B.S., cum laude, from the University of Scranton and his J.D. from Widener/Delaware Law School, where he was the Case Note Editor of the Delaware Law Forum, a member of the Law Review and the winner of the Delaware Trial Competition.


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