Schreiber v. Cherry Hill Construction Co.

BISHOP, Judge. Appellee, Gayle Ann Schreiber (“Schreiber”), filed a five-count complaint and two amended complaints in the Circuit Court for Baltimore County against Pamela K. Benton (“Benton”), Johnson, Mirmiran & Thompson, P.A. (“JMT”), and appellant, Cherry Hill Construction, Inc. (“Cherry Hill”). In her second-amended complaint, Schreiber sought damages resulting from injuries she sustained while performing her duties as a Maryland State Trooper.

Schreiber alleged that, while she was investigating an automobile accident at a road construction site monitored and supervised by JMT and Cherry Hill, Benton’s car struck her, throwing her approximately sixty feet. Schreiber avers in her complaint that Benton drove in a careless and negligent manner (Count I), that JMT breached its duty to monitor and inspect the construction site in a prudent and safe manner (Count II), that Cherry Hill breached its duty to engineer, design, supervise, arid monitor the construction site in a safe and prudent manner (Count III), that JMT was grossly negligent and blatantly disregarded the dangerous condition of the construction site (Count IV), and that Cherry Hill was grossly negligent and blatantly disregarded the dangerous condition of the construction site (Count V). In addition to the complaint filed by Schreiber, JMT filed a third-party complaint against Earth Engineering Sciences, ⁴⁶⁷ Inc. (“EESI”), an inspection firm that supplied employees to JMT on a subcontractor basis. JMT also filed cross-claims against Cherry Hill and Benton.

Cherry Hill filed cross-claims against Benton, JMT, and EESI, and Benton filed cross-claims against JMT and Cherry Hill. Schreiber, however, settled with Benton, JMT, and EESI prior to trial; therefore, Benton, JMT, and EESI are not parties to this appeal. Cherry Hill filed a motion to dismiss Schreiber’s claim for punitive damages, and a motion for summary judgment. The trial court denied both of these motions.

Prior to submitting the case to the jury, however, the trial court granted Cherry Hill’s motion to dismiss the punitive damages claim. The jury returned a verdict in favor of Schreiber on her negligence claim against Cherry Hill and found that JMT and EESI negligently performed their inspection services. The jury awarded Schreiber $22,989.83 in stipulated medical expenses, $100,000 for lost wages/earning capacity, and $50,000 for pain and suffering. The trial court entered judgment in favor of Cherry Hill on its cross-claims against Benton, JMT, and EESI.

Schreiber filed a motion for judgment notwithstanding the verdict and/or new trial, as to damages only, contending that the jury’s verdict was tainted by the admission of certain evidence. The trial court denied the motion. Issues Schreiber raises five issues on appeal, and Cherry Hill raises two issues on cross-appeal. For clarity and convenience, we shall address Cherry Hill’s issues first.

Cherry Hill’s Issues: I. Whether Schreiber’s claims are barred by the Fireman’s Rule?

II

Whether the trial court erred in refusing to instruct the jury on active/passive negligence. ⁴⁶⁸ Schreiber’s Issues: III. Did the trial court err when it admitted evidence of Schreiber’s receipt of disability pension benefits where there was no evidence of malingering?

IV

Did the trial court err when it admitted evidence that Schreiber should be required to obtain a graduate degree to enhance her wage-earning potential and mitigate her damages? V. Did the trial court err in allowing Cherry Hill’s vocational rehabilitation expert to testify concerning the existence of higher paying jobs which he thought may be available to Schreiber?

VI

Should Schreiber’s claim for punitive damages have been submitted to the jury? .

VII

Did the trial court err when it denied Schreiber’s motion for judgment notwithstanding the verdict as to the liability of JMT and ESSI? Facts On the afternoon of July 4,1989, Schreiber responded to the scene of a motor vehicle accident on eastbound 1-695 in Anne Arundel County. The accident occurred in the right, eastbound lane of 1-695, just past the Route 3 exit ramp. Trooper Leroy Truitt, who arrived on the scene before Schreiber, had set up a flare line to provide a zone of safety for rescue personnel.

Benton, who was travelling in the right, eastbound lane of 1-695, approached the accident scene, saw the flares, and tried to slow her vehicle and move to the left lane; however, she lost control of her car, which caromed off a jersey barrier, crossed the two eastbound traffic lanes, and struck Schreiber. When Benton’s vehicle struck Schreiber, Schreiber was within the safety zone established by Trooper Truitt. Schreiber was thrown sixty feet and sustained a closed head injury, contusions to the head, two black eyes, a contusion to the left elbow, a hematoma to the left buttock, a separated shoulder, a sprained left ankle, and a left tibia fracture that extended into her kneecap. ⁴⁶⁹ The evidence showed that, prior to the accident, Benton had been driving for approximately one year. Benton’s license had a restriction requiring that she use a driving knob because extensive brain surgery, which she had undergone as a child, left her unable to control her vehicle at all with her left arm.

The Motor Vehicle Accident Report indicated that, on the day of Schreiber’s accident, it was raining, and that, prior to Benton’s losing control of her vehicle, she was driving fifty-five miles per hour, the posted speed limit. Additionally, the Motor Vehicle Accident Report revealed that Benton was “under medication for seizures.” When Schreiber’s accident occurred, Cherry Hill, a contractor hired by the State Highway Administration (“SHA”), was building the I—97/1—695 Interchange. Schreiber’s accident occurred along the second curve of a reverse “S” curve, constructed by Cherry Hill as a temporary crossover, which took eastbound traffic past the Route 3 exit ramp and joined it with westbound traffic. The entire road project, including the temporary crossover, was to conform with design plans prepared by the Greiner Engineering Company (“Greiner”).

Cherry Hill’s contract with the SHA required preparation of an alternative plan for any construction that did not conform to Greiner’s design plans and submission of the alternative plan for review and approval by the State Traffic Engineer, Larry Elliott. Construction of any area of the roadway could not proceed without prior approval by the State Traffic Engineer. According to Schreiber, the reverse “S” curve, where her accident occurred, did not conform to Greiner’s design plans, because those plans- did not provide for any curves, and therefore, Cherry Hill did not have an approved alternative plan for the construction of the reverse “S” curve. Schreiber’s expert witness, Andrew E. Ramisch, testified concerning the design of the “S” curve: [Mr. Ramisch]: In this particular case the radius of the curve was 135 feet on the curve where Ms. Schreiber was hit.

The 42 degree curve that I talked about is a little bit different measurement. In highway engineering a cord ⁴⁷⁰ [sic], which is a straight line, to a point on a curve is struck. Where that curve is one hundred feet long the angle subtended by the one hundred foot curve was measured, in this case it was 42 degrees. For a gentle curve like this for a interstate standard the same cord of one hundred feet gives a much, much smaller angle.

I believe it is something like three degrees. So. radius and angle are interrelated as are radius and other factors, but the sharper the radius, the more of a kink it is. It is a quick, abrupt curve. That’s the best that I can explain it.

Q: And this curve was 135 feet and 42 degrees? [Mr. Ramisch]: Yes. Q: And design standards dictated by AASHTO would have dictated what type of radius for a 55 mile per hour speed? [Mr. Ramisch]: I believe I calculated it out to 1600 and some feet. Q: Which would be what in degrees? [Mr. Ramisch]: Three degrees. According to a mathematical formula, which gives the design speed for any given radius, the design speed for a forty-two degree “S” curve is thirty miles per hour.

Additionally, Schreiber asserted that the curve was banked improperly and that there were no advance warning signs. According to Cherry Hill, however, “[t]he undisputed evidence at trial established that significant site considerations limited the manner in which Cherry Hill could configure the geometries of the crossover.” Cherry Hill also maintained that signs could not be posted and the speed limit could not be changed without the express direction and approval of the State. Cherry Hill conceded that its contract with the SHA required it to post appropriate signs, in accordance with the Manual on Uniform Traffic Control Devices, on all roadways under its construction. Also, Cherry Hill conceded that it had a duty to set and keep the jersey barriers in proper alignment.

Schreiber argued that the jersey barriers along the reverse “S” curve were constantly misaligned, and therefore, any vehicle that struck a misaligned barrier, inevitably, would be ⁴⁷¹ deflected across the roadway, in the same manner as was Benton’s vehicle. Schreiber maintained, at trial, that Cherry Hill knew of, but ignored, the safety hazards that the forty-two degree, reverse “S” curve posed to motorists. Schreiber specifically pointed to the increased number of automobile accidents in the road construction area after Cherry Hill had built the reverse “S” curve. Cherry Hill’s Grade Foreman, Jim Rogers, its Superintendent, Steve Kitchen, and its Project and Traffic Manager, James Openshaw, testified that they were aware of the numerous accidents along the reverse “S” curve.

Cherry Hill, however, maintained that the testimony of its employees did not demonstrate an awareness that the accidents were causally connected to a defect in the design of the construction area. According to Schreiber, Cherry Hill ignored its contractual duty to “maintain pedestrian and vehicular traffic safely, adequately and continuously on all portions of existing facilities affected by [Cherry Hill’s] work.” Schreiber noted that Cherry Hill’s construction contract specifically required that “[Cherry Hill] shall provide, erect and maintain all necessary barricades, suitable and sufficient lights, danger signals, signs and other traffic control devices and shall take all necessary precautions for the protection of the work and safety of the public.” Schreiber maintained that the reason for Cherry Hill’s failure to implement safety precautions was its concern about receiving a $1,000,000 bonus from the State for completing construction by August 1, 1989; if Cherry Hill failed to complete the project by the deadline, the bonus would diminish by $5,000 a day for each day the project remained uncompleted. Cherry Hill denied this allegation, specifically stating that it had no reason to ignore safety measures, such as realigning jersey barriers, because the re-setting of the jersey barriers was a specific category of labor under the contract for which Cherry Hill was paid on a time and material basis. Cherry Hill maintained that there was no evidence to support Schreiber’s allegations that it had “a financial disincentive to avoid ⁴⁷² bringing deficiencies in design to the attention of the State because it might create a delay and ... diminish its bonus.” At the time Schreiber was injured, she was twenty-six years old and had been promoted to the position of State Trooper First-Class.

Because of her injuries, Schreiber was unable to meet the physical demands of her job and was forced to retire from the Maryland State Police force. Schreiber began career counseling immediately with Lee Mintz, a vocational rehabilitation specialist, and, shortly afterward, accepted employment as a receptionist for a forensic psychiatrist. According to Schreiber, this was the highest paying job available to someone with her education, training, experience, and physical limitations. Cherry Hill, however, asserted at trial that Schreiber did not sustain a total disability to any part of her body, that she could have obtained a higher-paying job, and that she exaggerated her wage loss.

Discussion I. Fireman’s Rule Cherry Hill argues that Schreiber’s claims are barred because, “as a matter of public policy, firemen and police officers generally cannot recover for injuries attributable to the negligence that requires their assistance.” Flowers v. Rock Creek Terrace Ltd., 308 Md. 432, 447 , 520 A.2d 361 (1987). According to Cherry Hill, “the doctrine known as the fireman’s rule generally prevents ... police officers injured in the course of their duties from recovering tort damages from those whose negligence exposed them to injury.” Southland Corp. v. Griffith, 332 Md. 704, 713 , 633 A.2d 84 (1993). Recently, in Southland Corp., the Court of Appeals discussed in detail the principles underlying the fireman’s rule. The Court explained that, “[pjrior to 1987, the rationale behind the fireman’s rule focused on the status of the safety officer on the landowner’s premises[,]” and that courts “generally held that fire fighters and police officers were licensees when they entered property in the performance of their duties.... ” Id. at 713-14 , 633 A.2d 84 .

In Flowers , howev ⁴⁷³ er, the Court departed from the traditional application of the fireman’s rule: Instead of continuing to use a rationale based on the law of premises liability, we hold that, as a matter of public policy, firemen and police officers generally cannot recover for injuries attributable to the negligence that requires their assistance. This public policy is based on a relationship between firemen and policemen and the public that calls on these safety officers specifically to confront certain hazards on behalf of the public. A fireman or police officer may not recover if injured by the negligently created risk that was the very reason for his presence on the scene in his occupational capacity. Someone who negligently creates the need for a public safety officer will not be liable to a fireman or policeman for injuries caused by this negligence.

Flowers, 308 Md. at 447-48 , 520 A.2d 361 . The Flowers Court also stated that “[t]he fireman’s rule does not ... bar [public safety officers] from recovering tort damages for all improper conduct.” Southland, 332 Md. at 714 , 633 A.2d 84 . In Southland , the Court indicated that negligent acts not protected by the fireman’s rule included “ ‘pre-existing hidden dangers where there was knowledge of the danger and an opportunity, to warn,’ ” id. at 714 , 633 A.2d 84 (quoting Flowers, 308 Md. at 448 , 520 A.2d 361 ), “ ‘acts which occur subsequent to the safety officer’s arrival on the scene and which are outside of his anticipated occupational hazards,’ ” id., and injurious acts which occur after “the initial period of his anticipated occupational risk,” or which are not reasonably foreseeable as part of that risk. Id. at 715, 633 A.2d 84 .

As support for its summary, the Court cited Prosser and Keeton on the Law of Torts § 61, which states that the fireman’s rule has been held only to apply when the firefighter or police officer is injured from the very danger, created by the defendant’s act of negligence, that required his professional assistance and presence at the scene in the first place, and the rule will not shield a defendant from liability for independent acts of misconduct which otherwise cause the injury. ⁴⁷⁴ W. Page Keeton et al., Prosser and Keeton on the Law of Torts § 61, at 431 (5th ed. 1984). In the case sub judice, Cherry Hill maintains that Schreiber may not recover tort damages because her injuries resulted from “the negligently created risk that was the very reason for her presence on the scene in [her] occupational capacity.” Flowers, 308 Md. at 448 , 520 A.2d 361 . In Flowers , however, the Court of Appeals recognized “that the fireman’s rule does not apply when a public safety officer sustains injuries after the initial period of his anticipated occupational risk, or from perils not reasonably foreseeable as part of that risk----” Southland Corp., 332 Md. at 715 , 633 A.2d 84 . Schreiber visited Cherry Hill’s construction site to investigate an automobile accident.

During Schreiber’s investigation of the accident, Benton’s car caromed off a jersey barrier and struck Schreiber. Schreiber did not allege that her injuries resulted from negligence associated with the automobile accident that she had been investigating; rather, Schreiber alleged that her injuries resulted from Benton’s negligent driving and Cherry Hill’s negligent supervision of the road construction site. As the Court stated in Southland , the fireman’s rule does not bar a police officer from recovering tort damages when that officer sustains injuries from perils not reasonably foreseeable as part of her occupational risk. Trooper Truitt established a safety zone by setting up a flare line and, when Schreiber was injured, she was within that safety zone.

Schreiber could not have reasonably anticipated that Benton’s car would come hurtling through the flare line and strike her. Benton’s negligence, coupled with Cherry Hill’s negligence, created an unforeseeable risk, which existed outside Schreiber’s anticipated occupational hazards. Furthermore, the application of the fireman’s rule in Schreiber’s case does not promote the public policy rationale upon which the rule is based. We agree with the trial court’s ruling that [Cherry Hill’s negligence] is not why [Schreiber] was on the scene.

That doesn’t promote the public policy of encourag ⁴⁷⁵ ing citizens to use safety servants, if you will, because it is good for everybody if they do. To me that doesn’t promote the public policy that is represented by the fireman’s rule at all. It is just a penalty for no purpose and I think [Cherry Hill’s negligence] is a separate event. As support for its argument that the fireman’s rule bars Schreiber’s tort claims, Cherry Hill relies on Steelman v. Lind, 97 Nev. 425 , 634 P.2d 666 (1981), in which the Supreme Court of Nevada considered the claims of a state trooper injured by a passing vehicle while he was assisting another vehicle negligently stopped on the highway.

The Lind court held that the trooper’s claims against Lind, the driver of the negligently stopped vehicle, were barred under the fireman’s rule; however, the court recognized that the trooper’s claims against the driver of the passing vehicle were not barred by the fireman’s rule. “[I]t is evident that if the act of negligence that causes the injury is something other than what necessitated the presence of the safety officer, then the fireman’s rule does not apply.” Southland Corp., 332 Md. at 715 , 633 A.2d 84 . Similarly, in the case sub judice, the fireman’s rule would bar Sehreiber’s negligence claims against the driver of the vehicle involved in the accident she was investigating prior to being struck by Benton; however, the fireman’s rule would not preclude Schreiber from maintaining a negligence action against Benton or Cherry Hill.

II

Passive/Active Negligence Cherry Hill asserts that the trial court erred when it failed to instruct the jury regarding “the passive-active negligence test.” Palms v. Shell Oil Co., 24 Md.App. 540, 546 , 332 A.2d 300 (1975). According to Cherry Hill, [o]ne of the things the jury could conclude is we negligently failed to recommend additional signage which would reduce speed limit or curve signage or whatever. The jury may conclude while that may be something that should have been done and it is a minor cause of the accident or whatever, the fact of the matter is that ... Benton on a day that was so rainy they closed a portion of the beltway was ⁴⁷⁶ going along at 55 miles per hour in a construction zone and could not bring her vehicle under control, that is the direct active cause of ...

Schreiber’s injuries. The result of that is that we would be entitled to common law indemnification from ... Benton under the release that [Schreiber] gave to ... Benton, that would translate in [Schreiber’s] being limited to the recovery against ...

Benton. With regard to instructing the jury on the issue of passive and active negligence, the trial court ruled as follows: In my judgment the active and passive negligence is no more than' whether the negligence, at least as far as [Palms v. Shell Oil Co., 24 Md.App. 540 [ 332 A.2d 300 ] (1975) ] and the case of Bloom versus Good Humor Ice Cream that it discusses, is no more than whether the negligence, if there was negligence, was a cause of the happening of the accident or whether there was an independent supervening, if you will, cause that was the cause of the accident. These weren’t cases involving instructions to the juries where they try to decide whether one is passive and the other is active. These are cases where they claim the plaintiff should get judgment as a matter of law because as a matter of law it should be determined that there was a supervening [sic] independent act of negligence having nothing whatsoever to do with the circumstances of the negligence of another defendant in the case.

I’m refusing to give the active-passive. In my judgment under question number one on the verdict sheet as proposed, if the jury determines.that the defendant in this case was negligent and that that negligence contributed to the happening of the accident, the most that the defendant can get is joint tort[-]feasor liability. By that verdict the jury would have found that the defendants [sic] negligence was not the passive negligence discussed by the appellate courts in these decisions when they are really talking about cause of an accident, not the nature of the negligence. They are ⁴⁷⁷ talking about whether it was the cause of the accident or whether there was an independent intervening cause which caused the accident.

In Palms v. Shell Oil Co., we cited Bloom v. Good Humor Ice Cream Co., 179 Md. 384 , 18 A.2d 592 (1941), for its discussion on passive and active negligence: Variously stated, the universally accepted rule as to the proximate cause is that, unless an act, or omission of a duty, or both, are the direct and continuing causes of an injury, recovery will not be allowed. The negligent acts must continue through every event and occurrence, and itself [sic] be the natural and logical cause of the injury. It must be the natural and probable consequence of the negligent act, unbroken by any intervening agency, and where the negligence of any one person is merely passive, and potential, while the negligence of another is the moving and effective cause of the injury, the latter is the proximate cause and fixes the liability. Bloom, 179 Md. at 387 , 18 A.2d 592 .

In Bloom , the Court stated that the question of proximate cause “must be determined by the peculiar facts and circumstances of the particular case.” Id. at 388 , 18 A.2d 592 . The Bloom court held that the appellant’s accident “was brought about entirely by reason of the appellant leaving the [appellee’s] ice cream truck, walking behind it to a place between the truck and the east sidewalk, and the sudden appearance of the automobile.” Id. According to the Bloom court, the acts of negligence attributed to the appellee had “[no] connection between the alleged negligent acts of the appellee ..., and the injury, [which] was broken by the intervening, immediate causes, which he had no reason to anticipate, and over which he had no control.” Id. at 389 , 18 A.2d 592 . In Palms , the appellant was injured when she slipped and fell on a thin, sheet metal advertising sign displayed in the appellee’s service station waiting room.

The sign, designed to be placed inside a tire casing, was improperly set in a stand and “exhibited bare.” 24 Md.App. at 542 , 332 A.2d 300 . The ⁴⁷⁸ trial judge granted appellee’s motion for judgment, ruling that the appellant’s act of slipping was the proximate cause of her injury, and the improper display of the sign was “ ‘not in and of itself the proximate- cause of the serious consequences.’ ” Id. at 543 , 332 A.2d 300 . We reversed the trial court’s decision and held that “[a]n instrument with exposed sharp edges on every side made stationary and left in a stand on the floor ... in an area open to the public by invitation, is something more than ‘passive negligence.’ It constitutes an overt exposure of a continuing danger.” Id. at 547 , 332 A.2d 300 . Reviewing the case sub judice, we hold that the trial court did not err when it refused to submit the issue of passive negligence to the jury. “An act is negligent if the actor should realize that it is likely to affect the conduct of another or a third person in such a manner as to create an unreasonable risk to the other----” Jubb v. Ford, 221 Md. 507, 513 , 157 A.2d 422 (1960).

Schreiber alleged that Cherry Hill negligently supervised the road construction site, thereby creating a danger for motorists. Schreiber specifically alleged that Cherry Hill failed to construct the temporary crossover according to approved design plans, and that the jersey barriers were misaligned. Unlike the driver of the ice cream truck in Bloom , Cherry Hill had reason .to anticipate the alleged danger, as well as the ability to exert control over the situation. Any defect in the design and supervision of the road construction site “constitute[d] an overt exposure of a continuing danger[,]” Palms, 24 Md.App. at 547 , 332 A.2d 300 , for which Cherry Hill may be held responsible.

Cherry Hill also maintains that it did not get its “day in court” because the trial judge declined to determine that its claim for indemnification failed as a matter of law; however, implicit in the trial judge’s refusal to instruct the jury on passive negligence was the trial judge’s finding that Cherry Hill was not entitled to indemnification. The trial judge stated that, if the jury found that Cherry Hill’s negligence caused the accident then, “the most [Cherry Hill could] get ⁴⁷⁹ [would be] joint tort feasor liability.” Moreover, that refusal to submit the issue of passive negligence to the jury is supported by Schreiber’s allegations that Cherry Hill’s negligence, JMT’s negligence, and Benton’s negligence each “contributed directly and proximately to the injuries and damages [she] sustained.” Cherry Hill argues that the judge should have submitted the issue of passive negligence to the jury because the evidence demonstrated that Benton’s negligence was “the primary, active cause of the accident, and that [Cherry Hill’s] negligence was secondary to that of Benton.” Cherry Hill’s contention, however, ignores the evidence presented by Schreiber that Cherry Hill negligently designed, implemented and monitored the traffic control plan for the area where Schreiber’s accident occurred. It was, therefore, within the jury’s province to conclude, from all of the evidence, that Cherry Hill’s negligence was a direct and proximate cause of Schreiber’s injuries. We note that the trial court entered judgment in favor of Cherry Hill regarding its cross-claims against Benton, JMT, and EESI.

Cherry Hill is entitled to contribution, not indemnification, from those cross-defendants.

III

Admission of Disability Pension Benefits “[T]he collateral source rule allows admission of collateral source payments only if there is a preliminary showing of malingering or exaggeration of injury....” Swann v. Prudential Ins. Co., 95 Md.App. 365, 379 , 620 A.2d 989 (1993), rev’d on other grounds, Dover Elevator Co. v. Swann, 334 Md. 231 , 638 A.2d 762 (1994). “[E]vidence as to collateral payments is inadmissible in the absence of evidence of malingering or exaggeration or where the real purpose of the evidence offered as to collateral sources is the mitigation of liability for damages of the defendant.” Kelch v. Mass Transit Admin., 42 Md.App. 291, 296 , 400 A.2d 440 (1980) (citations omitted). Schreiber asserts that, in order to mitigate damages, Cherry Hill offered evidence that, after her accident, she received disability payments. Cherry Hill asserts that Schreiber failed to preserve the collateral payments issue for appellate review, ⁴⁸⁰ and that, even if the issue were preserved, the evidence demonstrates that Schreiber exaggerated the impact of her injuries on her future wage earning capacity.

We agree with Cherry Hill that Schreiber failed to preserve the collateral payments issue for our review. We explain. In the case sub judice, Schreiber moved in limine to prevent Cherry Hill from introducing evidence that she received disability payments. According to Schreiber, there was no evidence that she lacked the motivation to return to work or that she exaggerated her injury, and therefore, there was no basis for the admission of evidence that she received disability payments.

Cherry Hill argued, however, that the admission of Schreiber’s receipt of disability benefits addressed the deposition testimony of Schreiber’s vocational rehabilitation expert, who testified, “I might have pushed harder, but why should I if due to the disability benefits [Schreiber’s] doing great?” Cherry Hill maintained that that statement indicated that, because she was receiving disability payments, Schreiber did not obtain the best job available for someone of her experience and education. Initially, the trial judge ruled as follows: I’m going to deny [Cherry Hill’s] motion subject to ... if you laid a foundation that the plaintiff is malingering, I’ll reconsider this. But the fact that [the vocational rehabilitation expert] says she didn’t push hard because [Schreiber] was getting the disability benefits, in my judgment that is not sufficiently relevant to outweigh the other. After hearing more argument from both parties, however, the trial judge decided that the evidence that Schreiber received disability payments “[went] to the testimony of the expert,” and that Cherry Hill could' refer to Schreiber’s receipt of disability payments, but