"we have recognized that the cumulative effect of small errors may be so great as to work prejudice, and we have not hesitated to afford the party suffering that prejudice relief where it has been warranted"
How later courts described this case
- "we have recognized that the cumulative effect of small errors may be so great as to work prejudice, and we have not hesitated to afford the party suffering that prejudice relief where it has been warranted"
Written by the judges who cited it.
The opinion
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-2120-15T3
JUAN MORALES-HURTADO,
Plaintiff-Appellant, APPROVED FOR PUBLICATION
v. December 6, 2018
APPELLATE DIVISION
ABEL V. REINOSO and NEW
SERVICE, INC.,
Defendants-Respondents.
___________________________
Submitted December 13, 2017 – Decided December 6, 2018
Before Judges Alvarez, Nugent and Geiger.
On appeal from Superior Court of New Jersey, Law
Division, Bergen County, Docket No. L-1450-13.
Jae Lee Law, PC, attorneys for appellant (Martin S.
Cedzidlo, on the brief).
Gallo Vitucci & Klar LLP, attorneys for respondents
(Eric J. Plantier and Kenneth S. Merber, on the brief).
The opinion of the court was delivered by
NUGENT, J.A.D.
This is a vehicular negligence action. Plaintiff, Juan Morales-Hurtado,
appeals from an order of judgment entered on a jury's verdict. The jury found
defendant, Abel V. Reinoso, eighty percent negligent and plaintiff twenty
percent negligent for causing the rear-end collision. 1 The jury awarded
plaintiff $50,000 for pain and suffering, impairment, disability, and loss of
enjoyment of life. The jury also awarded plaintiff $71,615.73 for past medical
expenses.
Plaintiff contends that defense counsel's prejudicial conduct, the court's
denial of a motion for a directed verdict on liability, and the court's decision to
bar a life care expert's testimony deprived him of a fair trial. We agree the
cumulative effect of many errors tainted the verdict. We thus reverse and
remand for a new trial.
I.
A.
Plaintiff filed a complaint in February 2013, in which he sought
compensation for injuries he claimed to have sustained in an August 24, 2011
automobile accident. Defendant filed an answer and asserted affirmative
defenses, including plaintiff's comparative negligence. The parties completed
discovery, argued numerous in limine motions, and tried the case during non -
consecutive days in December 2015 and January 2016. On January 7, 2016,
1
For ease of reference, we refer to Abel V. Reinoso as "defendant."
A-2120-15T3
2
the jury returned its verdict. The following day, after molding the verdict, the
trial court entered an order of judgment. This appeal followed.
B.
Defendant did not dispute at trial that he was partially responsible for
causing the accident. The parties disputed whether plaintiff was liable and, if
so, to what extent. According to the trial testimony and documentary
evidence, the sun was still shining and the intersection of Lemoine Avenue and
Bridge Plaza South in Fort Lee was dry on the evening the accident occurred .
The right front corner of the jitney — or minibus — defendant was driving
struck the left, driver's side rear corner of the 2003 Honda Civic plaintiff was
driving.
Plaintiff testified that Lemoine Avenue has two lanes in each direction.
He was driving on Lemoine Avenue toward its intersection with Bridge Plaza
South, where he intended to make a right turn on his way to the job where he
and his passengers worked. According to plaintiff, he passed the bus a short
distance before the intersection. He activated his right turn signal and began to
turn through the green traffic light onto Bridge Plaza South but had to stop for
pedestrians crossing Bridge Plaza South. Glancing into his rear view mirror,
plaintiff saw the bus "was still stopped and a passenger was getting on it." The
bus was approximately "three to four cars distance." Plaintiff looked back
A-2120-15T3
3
toward the pedestrians. Seconds later, he felt the impact as the bus struck the
rear of his car.
Defense counsel began his cross-examination by asking plaintiff his
birthdate. He then questioned him about his native country, his citizenship,
and his ability to speak English, interjecting a declaratory statement as he did
so:
[Defense Counsel]: Sir, you were born in Columbia?
[Answer]: Correct.
[Defense Counsel]: And you came to the United
States in approximately 2002. Is that correct?
[Answer]: Correct.
[Defense Counsel]: Are you a United States citizen?
[Answer]: Correct.
[Defense Counsel]: Have you been living in the
United States continuously since 2002 when you came
here?
[Answer]: Correct.
[Defense Counsel]: Ok. I am not questioning your
right as a citizen or as a witness to use an interpreter
but I would just like to ask you briefly about your
ability to understand English. Okay sir? You do
understand English, right, sir?
[Answer]: A little.
A-2120-15T3
4
[Defense Counsel]: Okay. And after you came to the
United States what – what – I'm sorry, withdrawn.
What age were you when you came to the United
States?
[Answer]: [Nineteen] years old.
[Defense Counsel]: And you took classes in English
when you – after coming to the United States?
[Answer]: Correct.
[Defense Counsel]: And throughout the trial you've
been communicating with your attorney in English,
including yesterday while I was doing my opening
statement, correct?
[Answer]: Correct.
[Defense Counsel]: I just – I'm trying to understand
do you understand the statements that are being said in
this courtroom before they are translated for you?
[Answer]: A little.
[Defense Counsel]: Let's talk about the accident. . . .
In addition to posing other questions about the accident, defense counsel
brought out that the airbags in plaintiff's car did not deploy upon impact.
Defendant's trial version of the accident differed from his interrogatory
answers, the police report, and from plaintiff's version of the accident. He
testified plaintiff's Honda was the first car stopped for a red light in the outside
lane of Lemoine Avenue at its intersection with Bridge Plaza South.
Defendant stopped his twenty-five passenger bus behind plaintiff's Honda.
A-2120-15T3
5
According to defendant, when the light changed to green, plaintiff's Honda
turned right, but then suddenly stopped. Defendant "didn’t have time to stop."
Defendant added that while stopped for the red light behind the Honda, the
Honda did not have a turn signal on. Defendant "tried to turn left a little"
when the Honda stopped suddenly, but could not do so because the Civic had
"stopped immediately." Defendant saw the Honda's brake lights come on and
applied his brakes but was unable to avoid the collision. He exited the bus and
briefly spoke to plaintiff, who said he had stopped suddenly because there
were people crossing the street.
Although defendant testified at trial he had intended to go straight
through the intersection, the police report included a diagram showing
defendant turning the bus to the right. In addition, in response to an
interrogatory asking defendant to describe how the accident occurred,
defendant responded: "I was in the process of making a turn and there was a
vehicle ahead. The vehicle ahead stopped suddenly without warning and there
was contact between our two vehicles." Defendant explained that he
misunderstood the question the officer at the scene asked him and perhaps he
was misunderstood as well when he answered interrogatories.
During cross-examination, plaintiff's counsel brought out the
inconsistencies. When he attempted to cross-examine defendant about his
A-2120-15T3
6
deposition testimony, defense counsel objected. The following exchange
occurred.
[Plaintiff's Counsel]: Okay. You were asked by an
attorney from my office to say, tell me how the
accident happens, tell me what happened. And at no
point did you ever say, I was planning on going
straight, did you?
[Defense Counsel]: Your Honor, I'm objecting
because the question is misleading. If he was never
asked the question, he didn't give the answer because
he was asked the question. It's misleading to tell the
jury that he said something or he didn't.
[Plaintiff's Counsel]: Judge, the answers to
interrogatories say, tell us your version of the
accident. He gave one version. At a deposition we
said, tell us your version of the accident. And he
doesn't contradict his answers to interrogatories.
[Defense Counsel]: Read him something that's
inconsistent with what he's testified to. Confront him
with the question where he's asked that question.
[The Court]: . . . overruled.
During his examination of defendant and plaintiff, defense counsel asked
questions that were irrelevant to the liability and damage issues. The court
ruled that defense counsel could not inquire about whether the other
passengers in plaintiff's car were injured in the accident. Nonetheless, defens e
counsel brought out on cross-examination of plaintiff that two of his
passengers were sixty years old. He proffered doing so to show that the
A-2120-15T3
7
passengers were at the accident scene and "to the extent [one] communicated
what happened to the cop." Yet, the last question he asked defendant on direct
examination was "Did any of the occupants, other than [plaintiff], sue you?"
The court immediately struck the question and instructed the jury it was
irrelevant to any liability issue.
C.
The parties disputed whether the bulging and herniated discs in
plaintiff's cervical, thoracic, and lumbar spine were caused by or predated the
August 2011 accident. They also disputed the extent of his injuries. Experts
expressed differing opinions about October 2011 medical resonance imaging
studies (MRIs) of plaintiff's cervical and lumbar spine, a February 2012 MRI
of his thoracic spine, and a May 2012 post-discogram lumbar MRI.
Plaintiff testified he experienced pain in his back and legs following the
accident. He was taken to a hospital emergency room where he was treated
and released. He then came under the care of a chiropractor, who treated him
conservatively with electrostimulation modalities and acupuncture. When
plaintiff did not improve with the conservative treatment, his chiropractor
referred him to Dr. Gregory J. Lawler, a board certified anesthesiologist and
pain management physician.
A-2120-15T3
8
Plaintiff's primary complaint to Dr. Lawler was low back pain, with
some pain in his legs and some left and right leg weakness. Dr. Lawler
testified the October 2011 and February 2012 MRI studies showed disc
herniations in plaintiff's cervical spine at C5-C6, thoracic spine at T7-T8 and
T8-T9, and lumbar spine at L4-L5 and L5-S1. The doctor also noted some
"slight slippage of the vertebral bodies at L5-S1," called spondylosis.
The doctor analogized vertebral discs to a jelly doughnut, "where . . .
fibers . . . encircle the cushioning in the middle." The discs "provide
cushioning in an area [so] . . . the bones don't crush into each other and [wear]
down." Dr. Lawler explained that the middle portion of the disc – which
people often refer to as the "jelly" – has "chemical mediators." When a disc
herniates, "those mediators leak out from the disc [and] cause inflammation ."
The mediator, or chemical substance, can cause a patient to develop a chemical
neuritis with corresponding pain.
Dr. Lawler treated plaintiff by having him undergo several epidural
injections — the injection of steroids to decrease inflammation — and by
prescribing muscle relaxants. The doctor also had plaintiff continue with
chiropractic care. When plaintiff's pain did not resolve, the doctor had him
undergo a discogram — the insertion of needles into the vertebral discs to
locate pain and to introduce contrast material for an MRI study. The
A-2120-15T3
9
discogram and post-discogram lumbar MRI confirmed plaintiff's disc
herniation at L4-L5.
The doctor referred plaintiff to a "board certified orthopedic and
fellowship trained spine physician," Dr. Louis Quartararo, for a consultation.
When plaintiff's condition had not resolved by August 2012, a year after the
accident, Dr. Lawler referred him to a neurosurgeon, Dr. Mark Arginteanu,
who eventually operated on plaintiff's low back.
Dr. Lawler testified plaintiff had a herniated disc in his cervical spine at
C5-C6, a bulging and a herniated disc in his thoracic spine, the latter at T8 -T9,
and two herniated discs in his lumbar spine at L4-L5 and L5-S1. He also
testified the herniations were caused by the accident and constituted permanent
injuries. The doctor's prognosis for plaintiff was poor, especially considering
plaintiff was only twenty-eight years old and had "hardware" in his lower back
as a consequence of surgery.
When Dr. Lawler came to court, he brought his file with him. The file
contained a copy of a draft narrative report he had sent to plaintiff's counsel.
The report included the notation, "draft for attorney review." Based on that
notation, defense counsel cross-examined the doctor about whether it was his
custom and practice while treating patients to write reports to the patients'
lawyers for their approval of what the doctor was recommending.
A-2120-15T3
10
Dr. Marc Arginteanu, a board certified neurosurgeon, performed a
surgical procedure called a "decompression fusion instrumentation" on
plaintiff's low back. 2 Dr. Arginteanu removed from plaintiff's spine the
portion of the bone that was pressing on the nerves in the low back. The
doctor also removed the disc fragments pressing on the nerves. To stabilize
and fuse the bones in the area where the disc material was removed, the doctor
inserted a "cage device." The cage device was filled with bone taken from the
posterior region and implanted into the disc space. The doctor fastened
everything together "with screws and rods," placing two screws in L4, two in
L5, and two in S1.
Following the February 2013 surgery, plaintiff returned to Dr.
Arginteanu periodically through 2015. The surgery had improved plaintiff's
condition, but not to the level of his pre-accident status. Dr. Arginteanu
opined that plaintiff's spondylolisthesis existed before the accident but was
asymptomatic and aggravated by the injury sustained in the accident. Dr.
Arginteanu also opined plaintiff's herniated discs were caused by the injuries
from the accident. The doctor's prognosis for plaintiff's complete recovery
2
Dr. Arginteanu's testimony was presented to the jury by way of a video
recording.
A-2120-15T3
11
was poor. In the doctor's opinion, plaintiff would continue to suffer "with at
least some element of pain for the remainder of [his] life."
During cross-examination of the doctor, defense counsel inquired about
the concept of secondary gain:
[Defense Counsel]: Are you familiar with the
medical concept of secondary gain?
....
[Doctor]: Yes. Secondary gain is when a patient has
a reason to have symptoms beyond organic reasons,
beyond reasons that you could explain with the
pathology you have discovered.
[Defense Counsel]: Okay. And you are familiar
with the concept of secondary gain as it might relate to
patients who are involved in litigation in which they're
seeking monetary compensation for injuries they
claimed they suffered, correct?
[Doctor]: Yes.
[Defense Counsel]: And the concept of secondary
gain is one that is generally understood and accepted
in the medical profession, correct?
[Doctor]: Yes.
[Defense Counsel]: So a doctor such as yourself
understands that a patient such as [plaintiff] might
have a motive to make complaints because he feels
that those complaints might result in his receipt of
monetary compensation. Is that correct?
[Doctor]: Yes.
A-2120-15T3
12
Neither Dr. Arginteanu nor any other doctor testified that plaintiff was
exhibiting secondary gain.
Dr. Arginteanu noted in his records that on August 12, 2013, plaintiff's
lumbar spine was "under control." Following a December 2013 accident, his
spine was out of control. Thereafter, plaintiff's pain began radiating down his
left lower extremity with persistent pain, numbness, and weakness. During
defense counsel's cross-examination of Dr. Arginteanu on these points, the
following exchange occurred:
Q. Did you – withdrawn. Well, you knew that Mr.
Morales was a plaintiff in a lawsuit at the time that
you treated him, right?
A. No. Not at the time when I first saw him, he
was a patient.
Q. At the time that you formulated your opinion on
causation at plaintiff's attorney's request you
understood that he was claimant in a lawsuit, right?
A. Yes.
....
Q. I'm asking you questions and you're supposed to
be here to answer questions. Objectively we had a
whole dispute about being objective versus - -
A. Yes.
Q. - subjective. If you're not here to advocate for
Mr. Morales, you'll just answer my questions and
answer whatever they happened to be. And if Mr.
A-2120-15T3
13
Morales' lawyer who's actually paid to be his advocate
wants to ask questions he'll do so. And it's not your
job, in my opinion, the jury will make their own
assessment, for you to try to just volunteer
information or ask other questions. Will you agree
with that? That's not what you're supposed to be
doing.
A. I don't understand the whole lawyer thing, but
me being – as I try to be – an honest person I can't sit
by when you read half a note and then don't read the
end of it.
Plaintiff presented the testimony of two other medical witnesses, Duncan
B. Carpenter, a neurosurgeon, and John Michael Athas, a board certified
neuroradiologist. Dr. Carpenter had examined plaintiff for the defense, a fac t
the court barred plaintiff from eliciting during the doctor's examination. 3 Dr.
Carpenter opined that the condition of plaintiff's low back, which necessitated
the surgery, was caused by the vehicular accident involving defendant. Dr.
Carpenter also testified plaintiff's post-surgical low back condition was
permanent.
Dr. Athas confirmed the October 2011 MRIs showed bilateral
spondylolysis at L5/S1, as well as a disc herniation at L4/L5. The cervical
3
During a discussion about whether a defense attorney had telephoned Dr.
Carpenter's office and asked if he was really going to testify for plaintiff,
defense counsel represented that the doctor had been retained by the defense
and the defense had never "disavowed him," though they had made a strategic
decision not to present his testimony.
A-2120-15T3
14
MRI revealed a disc herniation at C5/6. Lastly, the February 2012 thoracic
MRI disclosed herniations at T8/9 and T9/10, and disc bulges at T6/7 and
T7/8. The post-discogram MRI also showed the herniations that had been
disclosed on the October 29, 2011 lumbar MRI.
Defendant presented the testimony of two doctors. Dr. Jeffrey Lang, a
board certified radiologist, had interpreted flexion-extension x-rays of
plaintiff's lumbar spine on June 26, 2012. 4 Dr. Lang interpreted the films as
showing a "bilateral spondylolysis with grade one spondylolisthesis at L5."
He explained that the spondylolysis is a type of fracture through part of the
vertebrae and a spondylolisthesis "is when one vertebrae slips anterior or
posterior."
Dr. Lang also interpreted an MRI of plaintiff's lumbar spine on January
29, 2014. Dr. Arginteanu ordered the study. Dr. Lang interpreted the MRI as
showing a "[n]ormal postoperative MRI of the lumbosacral spine."
Dr. Robert Traflet, a board certified diagnostic radiologist, interpreted
the cervical, thoracic, and lumbar MRIs at defendant's request.
Notwithstanding plaintiff's age — twenty-eight at the time of the report — Dr.
Traflet opined that the changes throughout plaintiff's cervical, thoracic, and
lumbar spine were all degenerative. Dr. Traflet explained why, in his opinion,
4
Dr. Lang's testimony was presented by way of a videotape.
A-2120-15T3
15
the MRI studies revealed a chronic, longstanding process, resulting in
plaintiff's bulging and herniated discs. This was particularly so, according to
the doctor, because "every part [of the spine] didn't just have one abnormality,
it had multiple abnormalities."
Dr. Traflet noted that if a person added the abnormalities throughout
plaintiff's spine, there would be approximately fourteen abnormal levels. This
was significant "because if you were going to postulate a traumatic disc
herniation, which can happen, that means that whatever the trauma is has to
direct all of the force on that disc." Dr. Traflet explained that discs do not
herniate easily, "so if you have multiple things going on and multiple
abnormalities over and over and over again it just further supports the
degenerative nature" of the condition. Dr. Traflet concluded the herniations
and bulges in plaintiff's spine were caused by a degenerative process and were
not related to the accident involving defendant.
Defendant also played video surveillance of plaintiff to the jury. His
attorney had mentioned the surveillance in his opening statement in the context
of a litigious society.
The jury returned a unanimous verdict on liability, finding defendant
80% responsible for the accident and plaintiff 20% responsible. The jury
awarded $50,000 to plaintiff for pain, suffering, disability, impairment and
A-2120-15T3
16
loss of enjoyment of life by a vote of seven to one. The jury unanimously
awarded plaintiff $71,615.73 for past medical expenses.
II.
Plaintiff argues the court erred by permitting defense counsel to interject
the concept of "secondary gain" through his cross-examination of a medical
witness, even though none of the experts said plaintiff was experiencing
secondary gain. Plaintiff also contends defense counsel's conduct, including
his personal attacks on witnesses and plaintiff's counsel, warrant a new trial.
He contends the court improperly denied his motion for a directed verdict on
liability and improperly granted defendant's motion to bar plaintiff's expert's
opinion concerning a life care plan.
Defense counsel responds that the questions about which plaintiff
complains constitute nothing more than aggressive cross-examination and
valid impeachment. He asserts the court did not err either by denying
plaintiff's motion for a directed verdict or by barring the testimony of
plaintiff's life care expert.
III.
A.
We begin our analysis by reiterating that in our system of justice, cross-
examination is "the greatest legal engine ever invented for the discovery of
A-2120-15T3
17
truth." California v. Green, 399 U.S. 149, 158 (1970) (quoting 5 Wigmore on
Evidence, §1367 (1940); see also State v. Cope, 224 N.J. 530, 555 (2016)).
Nonetheless, neither cross-examination nor zealous advocacy is unbounded.
Generally, in trial, a lawyer shall not
allude to any matter that the lawyer does not
reasonably believe is relevant or that will not be
supported by admissible evidence, assert personal
knowledge of facts in issue except when testifying as
a witness, or state a personal opinion as to the justness
of a cause, the credibility of a witness, the culpability
of a civil litigant or the guilt or innocence of an
accused.
Rule of Professional Conduct 3.4(e); see also Matter
of Vincenti, 152 N.J. 253 (1998). [5]
Fundamental principles also circumscribe the conduct of trials.
Attorneys address juries in opening and closing statements. R. 1:7-1(a) and
(b). Direct and cross-examination of witnesses generally proceed by way of
interrogation, that is, questioning. See N.J.R.E. 611(a). It is improper for an
attorney to interject personal assertions or opinions while interrogating
witnesses. It is also improper for attorneys to make arguments in front of the
jury in the guise of objections, a practice often referred to as "speaking"
objections.
5
Our opinion should not be read to imply any finding on our part that either
attorney deliberately violated the Rules of Professional Conduct.
A-2120-15T3
18
The court, not the attorneys, is empowered to "exercise reasonable
control over the mode and order of interrogating witnesses." Ibid. For this
reason, it is improper for an attorney, under the guise of objecting or
otherwise, to tell an adversary how to ask a question or to direct arguments and
assertions to an adversary rather than to the court. And once the court has
ruled on an objection, "counsel must abide by [the court's] ruling, saving
objections for appeal." Greenberg v. Stanley, 51 N.J. Super. 90, 102 (App.
Div. 1958), aff'd in part, rev'd in part, 30 N.J. 485 (1959).
Credibility determinations are to be made by the jury. "The courts of
this State have long adhered to the cardinal principle that '[i]t is within the sole
and exclusive province of the jury to determine the credibility of the testimony
of a witness.'" Rodriguez v. Wal-Mart Stores, 449 N.J. Super. 577, 590 (App.
Div. 2017) (quoting State v. Vandeweaghe, 351 N.J. Super. 467, 481 (App.
Div. 2002), aff'd, 177 N.J. 229 (2003)), certif. granted, 230 N.J. 584 (2017).
"[T]he jury is charged with making credibility determinations based on
ordinary experiences of life and common knowledge about human nature, as
well as upon observations of the demeanor and character of the witness." Ibid.
(citing State v. Jamerson, 153 N.J. 318, 341 (1998)). For these reasons, courts
"do not allow one witness to comment upon the veracity of another witness."
Vandeweaghe, 351 N.J. Super. at 481-82. "This prohibition applies even if the
A-2120-15T3
19
witness proffered to render such a credibility opinion is an expert." Rodriguez,
449 N.J. Super. at 591.
An innocuous violation of any of these principles does not necessarily
require a new trial. Taken together, however, numerous small errors can
accumulate so as to deprive a party of a fair trial. Torres v. Pabon, 225 N.J.
167, 191 (2016); accord, Pellicer ex rel. Pellicer v. St. Barnabas Hosp., 200
N.J. 22, 53 (2009) ("we have recognized that the cumulative effect of small
errors may be so great as to work prejudice, and we have not hesitated to
afford the party suffering that prejudice relief where it has been warranted").
We conclude this is such a case.
Defense counsel correctly points out that plaintiff did not object in many
of these instances. That is so. In fact, plaintiff has not raised many of the
issues on this appeal. Nonetheless, an "appellate court may, in the interest of
justice, notice plain error not brought to the attention of the trial or appellate
court." R. 2:10-2.
With these principles in mind, we turn to the trial.
B.
We first address defendant's opening statement. During his opening
statement, defense counsel told the jury: "[a]s one might expect, not surprising
in our litigious society, defendant, I - - we made arrangements to have an
A-2120-15T3
20
investigator look for the plaintiff to see what's he doing in his private life.
He's claiming that he's injured. And you'll see, it is not a lot of tape, he's doing
what normal people do. . . . "
The statement was improper.
An opening statement has a narrow purpose and scope.
It is to state what evidence will be presented, to make
it easier for the jurors to understand what is to follow,
and to relate parts of the evidence and testimony to the
whole; it is not an occasion for argument. . . . [I]t is
fundamentally unfair to an opposing party to allow an
attorney, with the standing and prestige inherent in
being an officer of the court, to present to the jury
statements not susceptible of proof but intended to
influence the jury in reaching a verdict.
[United States v. Dinitz, 424 U.S. 600, 612 (1976)
(Burger, C.J., concurring).]
Counsel's reference to one's expectations in a litigious society was
improper. The remark was not a statement of evidence, and it arguably was an
appeal to prejudice.
C.
Several improprieties occurred during defense counsel's cross-
examination of plaintiff and his witnesses. Defense counsel cross-examined
plaintiff about when plaintiff came to the United States, his citizenship,
whether he had been in the United States continually since his arrival, and
plaintiff's need for an interpreter. During the cross-examination, counsel
A-2120-15T3
21
explained he was not "questioning [plaintiff's] right as a citizen or as a witness
to use an interpreter but I would just like to ask you briefly about your ability
to understand English." In State v. Sanchez-Medina, the Supreme Court noted
that "today . . . evidence of a defendant's undocumented immigration status
could appeal to prejudice, inflame certain jurors, and distract them from their
proper role in the justice system: to evaluate relevant evidence fairly and
objectively." 231 N.J. 452, 463 (2018). Those same considerations apply to
questions about a party or witness's citizenship, length of time in United
States, and need for an interpreter. True, plaintiff's attorney elicited that
plaintiff was born in another country. That did not, however, open the door to
questions about plaintiff's citizenship and his need for an interpreter, questions
that some might suggest have racial undercurrents. Besides, the court, not a
party's adversary, is charged with the responsibility of providing an interpreter
when necessary. And an attorney's view about a party's "right as a citizen or
as a witness to have an interpreter" is irrelevant.
Even if the latter considerations were relevant – a proposition difficult to
discern – their probative value was substantially outweighed by the risk of
undue prejudice. See Serrano v. Underground Utils. Corp., 407 N.J. Super.
253, 281 (App. Div. 2009). If defense counsel intends to pose such questions
on retrial, he should first make an appropriate proffer to the trial court.
A-2120-15T3
22
However, "[a] generalized invocation of witness 'credibility' issues will not
suffice." Ibid.
Also irrelevant was defense counsel's cross-examination of plaintiff
about the age of the passengers in his car. Although defense counsel proffered
he was asking about the passengers' ages merely to show they were present at
the accident scene, one is hard pressed to comprehend how their ages
established their presence. Moreover, defense counsel's question to his own
client, "did any of the occupants, other than [plaintiff], sue you," undermines
his proffer about the occupants' ages. Although the court immediately struck
counsel's question about whether other occupants sued plaintiff, the question
must be considered in the context of the totality of inappropriate comments
and questions throughout the trial. "As we have recognized, sometimes jury
instructions about the misuse of evidence are simply inadequate to effectively
blunt the risks of significant prejudice." Rodriguez, 449 N.J. Super. at 598
(citing James v. Ruiz, 440 N.J. Super. 45, 76-77 (App. Div. 2015)). 6
6
Defense counsel also asked plaintiff a question about a comment
plaintiff's attorney made in his opening statement. Cross-examining a
party about his attorney's opening statement is improper. See State v.
Woods, 687 P.2d 1201, 1208-09 (Ariz. 1984). As a court instructs the
jury in virtually every case, the attorneys' statements are not evidence.
See Model Jury Charges (Civil), 1.11, "Preliminary Charge" (Approved
Nov. 1998, Revised May 2007).
A-2120-15T3
23
Defense counsel also cross-examined plaintiff about the airbags in
plaintiff's car not deploying upon impact with defendant's bus. In Taing v.
Braisted, ____ N.J. Super. ____ (Law Div. 2017), the trial court held that such
evidence was inadmissible absent expert testimony. We agree. Moreover, in
the case before us, the evidence might have been misleading. There is no
evidence airbags are engineered to deploy in rear-end accidents. See, e.g., Air
Bags Quick Facts, SaferCar.gov powered by National Highway Traffic Safety
Administration,
https://www.safercar.gov/Vehicle%20Shoppers/Air%20Bags/Quick%20Facts
(last visited Nov 21, 2018). Evidence concerning airbags deploying or not
deploying is inadmissible in the absence of expert testimony. Accordingly,
such evidence should be excluded when this case is retried.
D.
Plaintiff contends defense counsel's cross-examination of Dr. Lawler and
of Dr. Arginteanu was improper and unduly prejudicial. Cross-examination
about the doctors' relationship with plaintiff's law firm was not improper. The
doctors' relationship with the law firm, the number of times they have testified
at the firm's request, and the basis of their remuneration arguably demonstrate
bias.
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Similarly, establishing a doctor knew plaintiff was involved in a lawsuit
when the doctor wrote a report for plaintiff's counsel was not improper.
Granted, the implication of bias from such a fact alone is, to some extent,
artificial. The requirement of an expert report is legal, not medical. Discovery
rules require lawyers to serve expert reports. So it is arguably artificial to
impeach a doctor's credibility based on a legal requirement. Nonetheless, such
cross-examination is not inappropriate. Plaintiff may, however, move to
exclude the evidence on the ground that in view of the legal requirement its
probative value is substantially outweighed by the risk of undue prejudice or
by the other factors enumerated in N.J.R.E. 403. The trial court can exercise
its broad discretion to admit or exclude the evidence or perhaps explain the
discovery requirement to the jury.
In addition, in this case, if such cross-examination is permitted, the trial
court should reconsider its decision to preclude plaintiff from bringing out that
Dr. Carpenter examined plaintiff on behalf of defendant. After all, Dr.
Carpenter presumably understood he was examining plaintiff to render an
opinion in a legal action. Such knowledge, and the similarity between his
opinions and those of plaintiff's treating physicians, become increasingly
relevant in view of defendant's attacks on the credibility of plaintiff's medical
experts. Dr. Carpenter's knowledge of the litigation and opinions arguably
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refute defendant's suggestion that plaintiff's treating physicians embellished
their opinions because they either knew plaintiff was involved in litigation or
had previously worked with plaintiff's lawyers.
Defense counsel's cross-examination of Dr. Lawler about his draft report
should be barred on retrial. Rule 4:10-2(d)(1) precludes discovery of
communications between an attorney and experts concerning the collaborative
process during preparation of reports. We can discern no reason why the rule's
policy underpinnings would not bar cross-examination concerning the
collaborative process when a draft report is inadvertently discovered. Of
course, the rule has an exception. If defense counsel contends the exception
applies, he can seek leave of court to pursue an appropriate line of cross-
examination.
The following assertions defense counsel made while cross-examining
Dr. Arginteanu should be disallowed on retrial:
Q. I'm asking you questions and you're supposed to
be here to answer questions. Objectively we had a
whole dispute about being objective versus - -
A. Yes.
Q. - subjective. If you're not here to advocate for
Mr. Morales, you'll just answer my question and
answer whatever they happened to be. And if Mr.
Morales' lawyer who's actually paid to be his advocate
wants to ask questions he'll do so. And it's not your
job, in my opinion, the jury will make their own
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assessment, for you to try to just volunteer
information or ask other questions. Will you agree
with that? That’s not what you're supported to be
doing.
These purported questions were assertions, not questions or
interrogation. See N.J.R.E. 611. More significantly, they were not-so-veiled
opinions by defense counsel that the doctor was being an advocate, not an
objective expert, and was therefore not credible. And they usurped the
function of the trial court by commenting on how the doctor should answer
questions and suggesting how the jury should assess the doctor's testimony.
Ibid.; see also RPC 3.4(e).
We also conclude the trial court erred by denying plaintiff's in limine
motion and permitting defendant to cross-examine Dr. Arginteanu about the
concept of secondary gain. In Rodriguez, we explained that "in a jury setting,
there is a great danger that an expert witness who characterizes a plaintiff as a
'malingerer' or a 'symptom magnifier,' or some other negative term impugning
the plaintiff's believability will unfairly infect the trier of fact's assessment of
the plaintiff's overall narrative on both liability and injury." Rodriguez, 449
N.J. Super. at 596. We explained that "[s]uch opinion evidence from a doctor
inherently has a clear capacity to deprive a plaintiff of a fair jury trial." Ibid.
(quoting R. 2:10-2). We thus held "that such testimony at a civil jury trial
should be categorically disallowed under N.J.R.E. 403." Ibid.
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We discern no difference between eliciting a medical opinion that a
plaintiff has secondary gain "as it might relate to patients who are involved in
litigation in which they're seeking monetary compensation for injuries they
claimed they suffered," and interjecting the issue into a trial when it has no
support in any documentary evidence or any medical testimony. The latter
instance may be even more egregious, because it suggests there is a medical
basis for an attack on plaintiff's credibility, when in fact no medical testimony
supports such attack. That is what happened here.
E.
Defense counsel's penchant for making inappropriate comments in front
of the jury and usurping the court's trial role was not limited to his cross -
examination of plaintiff's witnesses. He engaged in the same conduct during
plaintiff's cross-examination of defendant. Defendant's trial testimony that he
intended to go straight through the intersection was significant to his
comparative negligence defense. The police report suggested defendant was
making a right turn, and he expressly said so in a sworn interrogatory answer.
He changed his testimony at trial. Plaintiff's counsel attempted to impeach
him by pointing out he did not say at his deposition that he intended to proceed
through the intersection. Defense counsel objected on the ground that the
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question was misleading. When plaintiff attempted to pursue the line of
questioning, the following exchange occurred:
[Defense Counsel]: Your Honor, I'm objecting
because the question is misleading. If he was never
asked the question, he didn't give the answer because
he was asked the question. It's misleading to tell the
jury that he said something or he didn't.
[Plaintiff's Counsel]: Judge, the answers to
interrogatories say, tell us your version of the
accident. He gave one version. At a deposition we
said, tell us your version of the accident. And he
doesn't contradict his answers to interrogatories.
[Defense Counsel]: Read him something that's
inconsistent with what he's testified to. Confront him
with the question where he's asked that question.
[The Court]: . . . overruled.
Contrary to defense counsel's assertion, the questions were not
misleading. Defendant had sworn in interrogatories that he intended to make a
right turn. He did not recant that answer or testify differently at his deposition.
Plaintiff's counsel pursued a proper line of questioning to establish defendant
did not change his testimony until trial. In fact, if the change in testimony was
material to the defense of comparative negligence, defense counsel had an
obligation to disclose the anticipated change in testimony. McKenney v.
Jersey City Med. Ctr., 167 N.J. 359, 371 (2001); T. L. v. Goldberg, 453 N.J.
Super. 539, 556-57 (App. Div. 2018), certif. granted, ____ N.J. ____ (2018).
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Defendant's argument in front of the jury — in the guise of an objection — and
his assertion that plaintiff's attorney was misleading the jury, were improper,
as was his demand that plaintiff's counsel read something from the deposition.
So-called "speaking objections" are prohibited. If an attorney for some reason
cannot concisely state an objection in the language of the relevant evidence
rule, he or she should request a sidebar, which the court may, in its discretion,
grant or deny. "[C]ounsel must abide by [the court's] ruling, saving [further]
objections for appeal." Greenberg, 51 N.J. Super. at 102.
That is not to say defense counsel could not have elicited whatever he
considered significant from his client's deposition testimony and countered
with an alternative argument. But proper procedure required he do so on re-
direct examination and in closing argument, not by blurting out opinions and
demands of his adversary in front of the jury.
F.
Plaintiff also argues that defense counsel elicited hearsay medical
evidence during his cross-examination of plaintiff's medical experts, and
continued his excoriation of plaintiff's doctors and plaintiff's attorney during
his summation. Because we are remanding this matter for a new trial, and
because plaintiff did not object to many of the comments he challenges on
appeal, we will merely reiterate some general principles concerning these
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30
issues so that the court and parties may be guided accordingly when they retry
the case.
N.J.R.E. 703 provides that the facts or data upon which an expert bases
an opinion "need not be admissible in evidence" if such facts are "of a type
reasonably relied upon by experts in the particular field in forming opinions or
inferences upon the subject." N.J.R.E. 808 limits the admissibility of expert
opinion included in an otherwise admissible hearsay statement. N.J.R.E. 703
may not be used as "a vehicle for the wholesale [introduction] of otherwise
inadmissible evidence." Vandeweaghe, 351 N.J. Super. at 481 (quoting State
v. Farthing, 331 N.J. Super. 58, 79 (App. Div. 2000)). As we have previously
explained,
the combined impact of Rules 703 and 808 is to limit
the ability of a testifying expert to convey to a jury
either (1) objective "facts or data" or (2) subjective
"opinions" based upon such facts, which have been set
forth in a hearsay report issued by a non-testifying
expert. In either instance, the testifying expert may
not serve as an improper conduit for substantive
declarations (whether they be objective or subjective
in nature) by a non-testifying expert source.
[Ruiz, 440 N.J. Super. at 66.]
These principles apply to diagnostic tests, the interpretation of which is
relevant to the issues in a case. Id. at 69. As a general proposition, a
testifying medical expert must possess the credentials to interpret diagnostic
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studies, such as MRIs and x-rays, and must have personally reviewed such
films before being permitted to testify to their interpretation. See Agha v.
Feiner, 198 N.J. 50, 67 (2009). A testifying medical expert should generally
be precluded from testifying to another doctor's interpretation of diagnostic
tests relevant to the issues in the case.
In addition, it is improper to cross-examine experts on details of
documents they have not seen or relied upon. State v. Rose, 112 N.J. 454
(1988); Corcoran v. Sears Roebuck & Co., 312 N.J. Super. 117 (App. Div.
1998); see also, Crispin v. Volkswagonwerk AG, 248 N.J. Super. 540, 551-52
(App. Div. 1991).
As previously noted, it is improper to ask a witness a question requiring
that witness to comment upon the veracity of another witness. Vandeweaghe,
351 N.J. Super. at 481-82. The prohibition applies to experts as well as lay
witnesses. Rodriguez, 449 N.J. Super. at 591.
Concerning closing arguments, we explained in Rodd v. Raritan
Radiologic Assocs., PA, 373 N.J. Super. 154, 171-72 (App. Div. 2004):
Although attorneys are given broad latitude in
summation, they may not use disparaging language to
discredit the opposing party, or witness, Henker v.
Preybylowski, 216 N.J. Super. 513, 518-19 (App. Div.
1987); Geler v. Akawie, 358 N.J. Super. 437, 470-71
(App. Div.), certif. denied, 177 N.J. 223 (2003), or
accuse a party's attorney of wanting the jury to
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evaluate the evidence unfairly, of trying to deceive the
jury, or of deliberately distorting the evidence.
We trust the parties will adhere to these principles when they retry this case.
IV.
Plaintiff next contends the court erred by not directing a verdict in favor
of plaintiff on liability, negligence, and proximate causation. The issue
warrants little discussion. As defendant concedes in his brief, he "never
contended that his negligence played no part in the accident. In fact, defense
counsel urged the jury to find negligence on the part of the
[d]efendant/[r]espondent." The evidence at trial established beyond dispute
that defendant was negligent and that his negligence was a proximate cause of
the accident. The trial court should have directed a verdict on those issues.
On the other hand, defendant's testimony, if believed, provided a basis
for the jury to conclude plaintiff was negligent and his negligence was a
proximate cause of the accident. Of course, the jury could have disbelieved
defendant's testimony. But in view of defendant's testimony, the issues of
whether plaintiff was negligent, whether plaintiff's negligence was a proximate
cause of the accident, and whether liability should be apportioned presented
questions for the jury to decide. The trial court properly denied a directed
verdict on these issues.
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V.
Finally, plaintiff argues the court erred by barring his life care expert
following a lengthy hearing pursuant to N.J.R.E. 104. Significantly, the trial
court, in its decision, did not explicitly conclude the life care expert had
rendered a net opinion. For the following reasons, we vacate the court's verbal
order precluding the testimony and remand for further consideration on retrial.
Plaintiff's life care expert, Dianne C. Simmons-Grab, met with plaintiff
and his wife at their home. She reviewed Dr. Lawler's records from Bergen
Pain Management as well as records from Paramus Surgical Center and the
"Comprehensive Pain Management Therapy Center." She reviewed the
records from Metropolitan Neurosurgery, where Dr. Arginteanu practiced, as
well as records from Spine Center and Orthopedic Rehabilitation of
Englewood, where a Dr. Kim practiced. She also reviewed the medical records
of Dr. Ermann, the chiropractor, as well as diagnostic studies. Following her
consideration of the medical records, Simmons-Grab followed up with the
medical offices, either by talking to staff or sending a questionnaire.
The questionnaires were comprehensive. Simmons-Grab would also
send a "summary" letter to a doctor confirming information she received. The
doctor would indicate approval by signing the summary. For example,
Simmons-Grab prepared the following summary, which Dr. Arginteanu signed:
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34
This writer spoke with Emily, the nurse for Marc S.
Arginteanu, M.D., on May 20, 2014 regarding Juan
Morales Hurtado and his care that is required
pertaining to the accident of August 24, 2011.
Emily noted that Dr. Arginteanu stated that Mr.
Morales Hurtado has currently reached
maximum medical improvement regarding his
active spine surgery care.
Mr. Morales will require an orthopedic surgeon
evaluation every two years, as well as x-rays of
the spine (cervical, thoracic, lumbar) to monitor
and evaluate his pain and to assure the stability
of the spine and if any other procedures are
necessary.
It is recommended that Mr. Morales Hurtado be
evaluated by a pain management specialist to
develop a treatment plan to control his pain.
It is also recommended that Mr. Morales
Hurtado be evaluated by a rehabilitation doctor
to develop a treatment plan to restore his
functional activities and quality of life.
In the current lumbar fusion that was completed
recently, the possibility of some of the hardware
requiring removal is under 50%.
Following are questions that still need to be
answered:
o What is the probability of Mr. Hurtado
requiring cervical surgery some time in
the future? 10%
o What is the possibility of a lumbar
adjacent segment disorder? 10-15%
o Should Mr. Hurtado be participating in
physical therapy periodically such as zero
to 24 times per year to help reduce pain
and maintain strength? Yes. 7
7
The answers were handwritten on the typewritten letter.
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Below the summary appeared a signature which the expert identified as
Dr. Arginteanu's.
Although the court found the expert qualified to render an opinion in the
field of life care planning, and though the expert testified the medical records
and questionnaires she relied upon were of the type reasonably relied upon by
experts in the particular field, the court nonetheless precluded her from
testifying. In doing so, it appears the court believed that if the underlying data
and records were inadmissible, the expert's opinion must be barred. The court
also made credibility determinations about the information the expert relied
upon — credibility determinations that should have been made by a jury.
The court undertook an analysis of the medical records, questionnaires,
and follow-up letters the expert relied upon and determined they were
inadmissible under N.J.R.E. 703, N.J.R.E. 808, and Ruiz, 440 N.J. Super. at
45. The court then appeared to conclude that because the underlying
information was inadmissible, the expert's opinion must be barred. If this is
what the court intended, it reached an incorrect conclusion. Experts are
permitted to "apprise the trier of fact of the bases for [their] opinion, includin g
the opinions of other experts," but are not entitled "to introduce an out -of-court
expert's report for its 'truth', where it is critical to the primary issue in the case
and the adversary objects." Ruiz, 440 N.J. Super. at 65 (quoting Agha, 198
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N.J. at 50). Exclusion of the information or data an expert has relied upon
does not require exclusion of the expert's opinion.
The court appears to have made the same mistake concerning the
expert's interview with plaintiff's wife. The court noted plaintiff's sp ouse had
not been named as a witness and could not testify at trial. Nonetheless, the
expert had the right to apprise the jury she relied on, among other things,
interviews with plaintiff and his wife. Of course, a trial court should provide
"a limiting instruction to the jury in situations where a testifying expert
identifies or alludes to the sources upon which he or she has professionally
relied. Such an instruction is necessary to assure that the jurors do not
improperly consider those outside sources for their truth." Ruiz, 440 N.J.
Super. at 70.
Citing N.J.R.E. 808, the trial court determined the information
underlying the expert's opinion was not trustworthy, particularly the
questionnaires the expert submitted to the doctors and the letters or
memoranda the doctors signed. But the court's reasons for such find ings were
based on facts that may or may not have been disputed, which a jury should
have determined. Other reasons were unsupported by precedent concerning
expert testimony. For example, though the expert identified the signature of
doctors on certain documents, the court questioned how the expert could make
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37
such an identification when the signatures appeared to be illegible. Of course,
the issue could have been resolved definitively by asking the doctor. But once
the expert authenticated the signature, any dispute presented a question for the
jury.
The court repeatedly noted the questions posed by the expert to the
doctors were "leading." The court also repeatedly stated the questionnaires
and letters the expert relied upon were not prepared in the ordinary course of
business. And the court pointed out Simmons-Grab was unaware plaintiff had
been involved in two subsequent motor vehicle accidents.
The jury was entitled to consider these matters when deciding what
weight to give to the expert's testimony. The court, however, cited no
authority for the proposition that such considerations were appropriate when
considering the admissibility of expert testimony. Nor has defendant. In fact,
defendant has cited no case law in support of the arguments in his brief
contending the trial court's decision to exclude the life care expert should be
upheld.
The court also stressed that the questionnaires and summaries utilized by
the expert, even if signed by the doctors, were uncertified, did not express
opinions within a reasonable degree of medical certainty, and contained
information not contained in the medical experts' narrative reports and records.
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The court cited no precedent, nor has defendant, to suggest that underlying
medical information relied upon by a life care or other expert must be
certified. And at least at the time the expert wrote the report, the parties did
not know if the doctor's opinions had been expressed within a reasonable
degree of medical probability, because the parties had not deposed the doctors
about that issue.
The life care expert's report covered a range of future needs, including
surgery, therapy, medication, and periodic evaluations. Even if some of the
underlying information was somehow improperly considered by her, such was
not a basis for the wholesale exclusion of her entire opinion. 8
Although we vacate the oral order striking the expert's opinion, we do
not reach the conclusion that the opinion is or is not admissible. On remand,
defendant may renew his motion to bar the expert. The trial court may
exercise its discretion to employ any procedure it deems fit to resolve the
motion. Considering a transcript of the life care planner's testimony is now
available, the court might consider having the parties brief the issue well in
advance of trial. The trial court will then have the time to make detailed
findings of fact and conclusions of law supported by appropriate precedent.
8
Plaintiff points out in his appellate brief that defendant submitted the report
of a life care expert that was based on less information than that relied upon by
plaintiff's expert.
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VI.
We conclude the cumulative effect of multiple errors and improprieties
deprived plaintiff of a fair trial and of a verdict based on the merits of the
parties' claims. For that reason, plaintiff is entitled to a new trial on all issues.
Reversed and remanded for trial.
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