$2.025 Million Verdict for Widow of Machinist Whose Aortic Dissection Was Missed in Emergency Room

In 1992 Joseph F. DeHanes was 38 years old, an experienced machine operator at Westinghouse earning more than $55,000 a year, married, with children aged eleven and six. He was taken to the emergency room of Raritan Bay Medical Center in Perth Amboy, where he was treated by emergency physician Dr. Michael Rothman. What he had was an aortic dissection, a tear in the inner lining of the main artery leaving the heart. Dr. Rothman did not diagnose it. While DeHanes was still in the emergency room the tear gave way, the aorta ruptured, and blood poured into the space around his heart. He died.

His widow, Mary Beth DeHanes, sued Dr. Rothman and others in the Superior Court of New Jersey, bringing a survival claim for her husband's pain and suffering and a wrongful death claim for herself and the children. Michael B. Zerres of Blume Goldfaden Berkowitz Donnelly Fried & Forte tried the case. The plaintiff's cardiothoracic expert testified that a properly diagnosed and treated dissection gave DeHanes at least an 80 percent chance of surviving; the jury ultimately put that chance at 70 percent.

The damages case turned on what DeHanes would have earned over the 27 working years he had left. A labor economist walked the jury through year-by-year projections of wages, fringe benefits, taxes, personal consumption, and the discount to present value, and valued the family's lost household services, but under the New Jersey Supreme Court's 1975 Tenore rule he was not permitted to state a bottom-line total, and his exhibits were not admitted. The defense cross-examined him but called no economist of its own. In summation Zerres did the arithmetic for the jury, telling them the decedent's lost earnings and benefits came to $2,042,246. The judge instructed the jury that summations were not evidence.

The jury returned $1,500,000 for lost earnings, $450,000 for the family's loss of companionship, guidance, and counsel, and $75,000 on the survival claim, a total of $2,025,000.

Dr. Rothman appealed, arguing that the summation violated Tenore. The Appellate Division affirmed, holding that Tenore did not forbid a lawyer from stating in summation a total that an expert could not. The Supreme Court granted certification and, after argument in October 1998, asked the parties to brief whether Tenore itself should be revisited. On April 19, 1999, in a unanimous opinion by Justice O'Hern, the Court affirmed the judgment. It held that it was not improper for counsel to sum the year-by-year economic losses established by competent expert testimony, and went further, abandoning the Tenore prohibition so that qualified economists may now testify to aggregate net figures and put their exhibits in evidence, subject to a cautionary instruction. The decision, DeHanes v. Rothman, 158 N.J. 90, remains the governing New Jersey rule on bottom-line economic damages testimony in wrongful death cases.