Opinion
DOCKET NO. A-4529-12T1
06-09-2015
FRANCIS DEPINTO, Plaintiff-Respondent, v. ABM JANITORIAL SERVICES, ABM INDUSTRIES INC., and MICHAEL RAA, Defendants-Appellants, and ISS INTL SERV SVS, WHEELS INC., DEPARTMENT OF TRANSPORTATION, STATE OF NEW JERSEY, Defendants.
Barry J. Muller argued the cause for appellants (Fox Rothschild, L.L.P., attorneys; Mr. Muller, of counsel and on the brief). Rosemarie Arnold argued the cause for respondent (Law Offices of Rosemarie Arnold, attorneys; Ms. Arnold and Evan D. Baker, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Yannotti, Fasciale and Hoffman. On appeal from Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-9135-10. Barry J. Muller argued the cause for appellants (Fox Rothschild, L.L.P., attorneys; Mr. Muller, of counsel and on the brief). Rosemarie Arnold argued the cause for respondent (Law Offices of Rosemarie Arnold, attorneys; Ms. Arnold and Evan D. Baker, on the brief). PER CURIAM
This case arises from a motorcycle accident on the New Jersey Turnpike (the "Turnpike"). Defendants ABM Janitorial Services, ABM Industries, Inc., and Michael Raa (collectively referred to as "defendants") appeal from a judgment entered in favor of plaintiff Francis DePinto, after a jury trial, and an order denying their motion for a new trial. We affirm.
I.
We begin by summarizing the most pertinent trial evidence. On August 3, 2009, plaintiff was driving his motorcycle northbound on the Turnpike when, after changing lanes and getting behind a white van, he was pelted with debris and saw that the van was drifting onto the shoulder. Plaintiff claimed he could make out the driver's profile through the van's tinted rear windows, and saw that the driver was repeatedly diverting his attention from the road. It appeared to plaintiff that the driver was texting. Plaintiff stated that this was the only white van in the vicinity at the time of the accident. The van drifted a second time, and hit a tire remnant that was in or near the shoulder of the roadway. The tire remnant ricocheted under the van and then hit plaintiff in the face, causing him to wipe out.
The tire remnant was variously described as a tire, a tire tread, or a piece of rubber.
According to Raa's testimony, plaintiff's accident occurred ahead of him and he came upon the accident scene after the accident had occurred. Raa testified that he was driving a white minivan ("the minivan") northbound on the Turnpike, behind a white construction van ("white construction van"), when traffic came to a stop. He stopped, got out of his minivan, and saw plaintiff's motorcycle on the ground. Two men exited the white construction van, and Raa and another person helped them lift up the motorcycle so that it could be moved out of the travel lane. Raa burned his finger on the muffler while doing so. Raa denied hitting or running over anything.
After he stopped rolling, plaintiff said that he "popped up" and spoke with two persons who had stopped behind him, one who was driving a blue pickup truck ("blue truck"). After looking at his motorcycle, plaintiff's gaze shifted to "a man in a white van outside of his van . . . with his hands on his head." Plaintiff then told the driver of the blue truck to make sure that the driver of the white van "doesn't go anywhere. He caused the accident."
During his testimony, plaintiff identified this man as Raa
Plaintiff said that Raa then got into his van and drove away, and the driver of the blue truck "got in his truck and sped off after him." After the State Police arrived, the driver of the blue truck returned to the scene and provided a license plate number to State Trooper Minh Ngo, and the license plate number was traced to Raa's vehicle. At trial, Trooper Ngo testified as to the license plate number written on the paper.
Prior to trial, defendants moved to preclude testimony concerning the unknown operator of the blue truck having provided a license plate number to one of the State Troopers at the scene. That evidence was reflected in a video recording of the event by the dash cam installed on the police vehicle, in the trooper's written report, and in testimony that might be presented by the Trooper at trial. After extensive argument, the trial judge barred the video recording and the police report, except for possible use in refreshing the Trooper's recollection. However, the judge did not preclude oral testimony about the event. Rather, the judge reserved on that aspect of defendants' motion until it had the opportunity to hear plaintiff's testimony, so that the Trooper's interaction with the unknown driver could be placed in context.
At the time of the accident, Victoria Sanzone was driving a truck in a different lane, about 200 feet behind plaintiff, when she observed that a tire tread laying in the travel lane was "kicked up from under a white van" and struck plaintiff in the face, knocking him off his motorcycle. Sanzone testified that the rear doors on the white van did not have windows, and was "positive" that the vehicle that struck the tire tread was not a minivan. She stated, however, that there was only one white van involved in the accident or anywhere around it.
After the accident, Sanzone continued northbound on the Turnpike. She watched two men move the motorcycle in her rearview mirror, and could not determine whether one was Raa. Sanzone saw the white van pull over, approximately a quarter mile from plaintiff. Sanzone said that the driver got out of the van and she spoke with him. She further testified that the driver was not Raa. She drove further down the road, and called 9-1-1.
An ambulance transported plaintiff to Hackensack University Medical Center ("HUMC"). Plaintiff testified, "I couldn't breathe. I had extreme pain in my lung. I had extreme pain in my shoulder. And I had extreme pain in my hand, my legs, and plus the burns on my body -- the road rash."
Plaintiff provided the following account of his six-day stay in the hospital:
I couldn't move. I couldn't even eat. I couldn't lift my arms up. Obviously I had a broken wrist; I had a collarbone which was broken. Luckily I had my friends there to feed me. . . . I couldn't go to the bathroom, so I had a catheter put in. After that, the pain was excruciating . . . .
Plaintiff underwent surgery approximately one month after the accident, to mend what he described as "crushed" bones in his wrist. When he awoke from the general anesthesia, his wrist was in "[e]xtreme pain" and encased in a white plaster cast. His wrist remained in this cast for seven months, until it was removed by a doctor. During his cross-examination, plaintiff denied ever taking the cast off himself. His recollection was not refreshed by his doctor's notes, which indicated otherwise.
Plaintiff also underwent surgery to relieve his back pain. Following this surgery, he was bedridden for "[a]bout a week." He required three doses of hydrocodone every day and one to three sessions of physical therapy each week.
At the time of trial, plaintiff continued to wake up every night in pain. He described his pain as follows:
Every time I lift my shoulder, my shoulder hurts. I can't use my hand. After about ten minutes of using it -- whether writing, playing video games, reading, holding a book, any kind of usage -- it starts to hurt and go limp. Now, as for sitting, it hurts right now. I'm sitting. I can't sleep. . . . I can't drive. I can't do anything normal. . . . I can't exercise. I can't ride my mountain bike. I can't do anything, nothing, because of the pain that I have. I'm afraid walking. I'm afraid to go on stairs. I'm afraid of even driving.
Prior to the accident, plaintiff had been a union marble mechanic. He laid marble and tile in commercial and residential buildings. Plaintiff was not employed at the time of the accident and had filed for unemployment, which was common practice for members of his union during downtime between projects. When working, plaintiff's gross income was approximately $2100 per week, and he netted approximately $1000 to $1080.
Plaintiff initially said that, before the accident, he was in "excellent physical shape," but later admitted to having had "back problems" caused by "working" and "extreme sports." These problems included herniated discs, which required epidural treatment and daily doses of hydrocodone. Prior to the accident, plaintiff had been suffering from these problems "[o]n and off for about seven years." However, plaintiff did not miss time from work as a result of this condition, and did not have trouble riding his motorcycle.
Plaintiff testified that he could not work after the accident due to the injuries he sustained in the accident. Because of these permanent injuries, he would never be able to work as a marble mechanic again. He had planned to work until the age of sixty-five or seventy. When asked about his current plans for the future, he responded, "I have to do something, but concrete plans? No."
In July 2010, plaintiff was referred to Dr. John Cifelli, a neurosurgeon, for a consultation. At that time, plaintiff complained of "back pain radiating down both his legs." Dr. Cifelli tested plaintiff's nerve function, and observed that plaintiff "had weakness of his right extensor halluces longus muscle and ankle dorsiflexion muscles, which are muscles that move the foot." These muscles are activated with electrical current, which is provided by nerves exiting the spine.
Dr. Cifelli described the injuries that plaintiff sustained in the accident, including a pneumothorax (punctured lung); a right wrist fracture; a clavicle fracture; a rib fracture; various lacerations; and an aggravation of a pre-existing low-back injury. Regarding plaintiff's pre-accident back problems, Dr. Cifelli explained that
Plaintiff is right-hand dominant.
[plaintiff] was having back pain prior to the accident. He had been treated [by] pain [doctors] only, and you know seemed to get -- to have some improvement with the multiple injections. He had never seen a surgeon before the accident. Surgery was never, as far as I know, was never seriously discussed with him. So, but you know, the proverbial straw that broke the camel's back, so to say, was this accident.Accepting Dr. Cifelli's recommendation, plaintiff underwent a lumbar fusion operation on October 21, 2010. Dr. Cifelli stated with, "reasonable medical probability," that plaintiff's surgery "was causally related . . . and necessitated by the motorcycle accident" of August 3, 2009.
As for plaintiff returning to work as a marble mechanic, Dr. Cifelli testified, "I don't think he can go back to being a marble mechanic by any means." This type of "heavy duty work," requiring lifting and bending, would put plaintiff at risk for re-injury.
Dr. Francis DeLuca testified for the defense as an expert in orthopedic surgery. After examining MRI films of plaintiff's lumbar spine both before and after the accident, Dr. DeLuca opined that plaintiff's condition was unchanged. He stated that the back surgery performed on plaintiff was the same surgery he required prior to the accident. Dr. DeLuca acknowledged that the navicular, "the little bone" in the wrist, did not heal properly, and that this was a permanent injury.
In its verdict, the jury apportioned negligence eighty percent to defendants and twenty percent to plaintiff, but found that plaintiff's negligence was not a proximate cause of the accident. The jury awarded plaintiff $1,248,000 in damages for lost wages, $357,488 in medical expenses (an amount stipulated by the parties) but made no award for pain and suffering. Plaintiff accepted the jury's allocation, even though it was inconsistent with the finding that his negligence was not a proximate cause of the accident. The judge molded the verdict to reflect the 80/20 apportionment of responsibility and added pre-judgment interest, resulting in a final judgment of $1,302,470.07.
Defendants filed a motion for a new trial pursuant to Rule 4:49-1, claiming that the jury's verdict was inconsistent as to liability and to damages and based upon impermissible and prejudicial hearsay and summation. In the alternative, defendants moved for judgment notwithstanding the verdict, arguing that the jury's verdict was against the weight of the evidence. The trial court denied the motion.
On appeal, defendants argue that the judge erred by failing to grant their motion for a new trial because plaintiff failed to 1) present testimony from a lost-wage expert, and 2) show that he was permanently injured. Alternatively, defendants contend that a new trial is warranted on all issues because the judge erroneously admitted hearsay into evidence, allowed improper remarks by plaintiff's counsel in summation, and provided an erroneous response to a jury question.
II.
We reject defendants' contention that the trial court should have granted their motion for a new trial because plaintiff failed to present testimony from a lost-wage expert. We also reject the claim that plaintiff failed to show that he was permanently injured.
Pursuant to Rule 4:49-1(a), a trial court shall order a new trial when, "having given due regard to the opportunity of the jury to pass upon the credibility of the witnesses, it clearly and convincingly appears that there was a miscarriage of justice under the law." Thus, "[a] trial court should set aside excessive verdicts only in 'clear cases.'" Caldwell v. Haynes, 136 N.J. 422, 431-32 (1994) (quoting Fritsche v. Westinghouse Elec. Corp., 55 N.J. 322, 330 (1970)). "[A] trial court must consider the evidence in the light most favorable to the prevailing party in the verdict[,]" when assessing "whether the quantum of damages assessed by the jury is excessive[.]" Id. at 432 (citing Taweel v. Starn's Shoprite Supermarket, 58 N.J. 227, 236 (1971)). Consequently, a trial court should not interfere with a jury verdict unless the verdict is clearly against the weight of the evidence. Horn v. Village Supermarkets, Inc., 2 60 N.J. Super. 165, 178 (App. Div. 1992), certif. denied, 133 N.J. 435 (1993). The verdict must shock the judicial conscience. Carey v. Lovett, 132 N.J. 44, 66 (1993).
A trial court's decision on such a motion will not be reversed unless it clearly appears that there was a miscarriage of justice under the law. R. 2:10-1. To decide if there has been a miscarriage of justice, we defer to the trial court with respect to intangibles not transmitted by the record (e.g., credibility, demeanor, and "feel of the case") but we will otherwise make an independent determination of whether a miscarriage of justice has occurred. Carrino v. Novotny, 78 N.J. 355, 360-61 (1979); Baxter v. Fairmont Food Co., 74 N.J. 588, 597-98 (1977); Dolson v. Anastasia, 55 N.J. 2, 6-8 (1969). However, "a trial court's determination is 'not entitled to any special deference where it rests upon a determination as to worth, plausibility, consistency or other tangible considerations apparent from the face of the record with respect to which [the trial court] is no more peculiarly situated to decide than the appellate court.'" Caldwell, supra, 136 N.J. at 432 (quoting Dolson, supra, 55 N.J. at 7). Measured under these standards, we discern no basis to disturb the trial court's ruling.
Defendants argue that plaintiff failed to present necessary expert testimony connecting his injury to the diminution of his earning capacity, and the amount of projected lost income. They contend that plaintiff's evidence was limited to his prior position as a marble mechanic, and that plaintiff failed to present any evidence showing his complete inability to work. Thus, his loss of income claim should not have gone to the jury. We disagree.
"[A] claim for future lost wages must be supported by two things: (1) 'a reasonable probability' of such a loss flowing from the past harm; and (2) 'sufficient factual matter upon which the [quantum] of diminishment can reasonably be determined.'" Haywood v. Harris, 414 N.J. Super. 204, 214 (App. Div.) (quoting Coll v. Sherry, 29 N.J. 166, 176 (1959)), certif. denied, 204 N.J. 38 (2010). This is often referred to as the two-pronged Coll standard. See Lesniak v. Cnty. of Bergen, 117 N.J. 12, 14 (1989).
"Ordinarily, expert testimony would be required to establish the severity of the injury and its connection to the diminution of future-earning capacity, as well as the amount of the predicted lost income." Frugis v. Bracigliano, 177 N.J. 250, 285 (2003) (citing Lesniak, supra, 117 N.J. at 31). But see Lesniak, supra, 117 N.J. at 26 (recognizing an exception to the requirement of expert testimony on the quantum of diminishment where the plaintiff is an infant).
While the Supreme Court in Lesniak stated that "the value of expert testimony as an aid" in establishing the two prongs of the Coll analysis cannot be denied, the Court did not set a per se requirement for expert testimony, stating that expert testimony is a necessity only when "the matter to be dealt with is so esoteric that jurors of common judgment and experience cannot form a valid judgment . . . ." Lesniak, supra, 117 N.J. at 31 (alteration in original) (citations and internal quotation marks omitted).
In Adamson v. Chiovaro, 308 N.J. Super. 70, 76-78 (App. Div. 1998), we held that an economic expert was not required in a case where the jury awarded the plaintiff $80,000 for past lost wages and $500,000 for future lost wages. The plaintiff in Adamson alleged that she suffered a closed head injury, with resulting significant cognitive impairment. Id. at 75. At trial, she presented testimony from her psychiatrist, neurosurgeon and neuropsychologist, and the defendant produced no medical evidence. Id. at 76.
Here, plaintiff presented expert testimony from his treating neurosurgeon, Dr. Cifelli, who described plaintiff's injuries and the extensive medical treatment plaintiff received. Dr. Cifelli performed a lumbar fusion operation on plaintiff on October 21, 2010, removing two discs, at L4-L5 and L5-S1. As part of the operation, six titanium pedicle screws were drilled into plaintiff's spine, two at each level, L4, L5, and S1. Dr. Cifelli explained that "by doing a fusion operation, we're eliminating any movement at those levels." Thus, there was sufficient evidence to show that plaintiff had suffered a severe injury, which rendered him incapable of working as a marble installer.
Although plaintiff failed to produce testimony from an economic or vocational expert, he introduced testimony from his doctor indicating that plaintiff's accident-related wrist injury permanently prevented him from performing the work for which plaintiff had been trained. The doctor's opinion corroborated plaintiff's testimony that he was unable to continue working as a marble mechanic. In general, the necessity for expert testimony to prove lost-income capacity pertains to the severe nature and lasting extent of the injury. Here, plaintiff introduced evidence from his doctor.
Defendants argue that the damage award was flawed because it was inconsistent with the jury's determination that no damages should be awarded for pain and suffering, disability, or the loss of enjoyment of life. "[I]nconsistent and irreconcilable verdicts are fatally defective and should normally be set aside." Brendel v. Pub. Serv. Elec. & Gas Co., 28 N.J. Super. 500, 507 (App. Div. 1953). Although a trial judge should not substitute his judgment for that of the jury, "a trial judge must intervene to correct an injustice when a damage award is patently inadequate or excessive, i.e., the result of mistake, compromise, bias, or prejudice, motivating factors that cannot be discounted or disregarded." Love v. Nat'l R.R. Passenger Corp., 366 N.J. Super. 525, 533 (App. Div.), certif. denied, 180 N.J. 355 (2004).
In Love, we declined to find inconsistency based solely on the discrepancy between economic and non-economic damages, noting:
In fitting circumstances, a jury might well — and quite rationally — determine, on the one hand, that a showing of medical causation had been made and that a plaintiff's loss of income was a direct consequence of the accident, while at the same time concluding that the plaintiff had not discharged his burden of proving the pain and suffering adequate to support a damages verdict therefor.
[Id. at 528.]
Our Supreme Court reached a similar conclusion in another case:
That the jury awarded plaintiff all of her past lost wages and apparently utilized that annual sum to extrapolate into the future simply tells us that they agreed that she is unable to work. Those awards tell us nothing, however, about plaintiff's pain and suffering or loss of the enjoyment of life. That is, although many things could have factored into the jury's decision that plaintiff would not be able to return to work, including her limited English language proficiency, her limited education, and lack of job skills, those same considerations do not necessarily bear on plaintiff's pain and suffering . . . . Because there is no
necessary correlation between a sizeable lost wage award and non-economic damages, the appellate panel's criticism of the trial court for remitting one category of awards but not the other is unpersuasive.
[He v. Miller, 207 N.J. 230, 259 (2011).]
We similarly find the jury's economic loss award not shocking to the judicial conscience. In our view, a future wage loss award of $1,248,000 is not a miscarriage of justice for a forty-year-old man with a demonstrated earnings history, who suffered serious injuries that disabled him from his previous occupation as a skilled laborer. We conclude that the testimony of plaintiff and Dr. Cifelli provided a sufficient basis in the record to sustain the award.
Defendant's argument that the future lost-wage award is unsound as a matter of law, is premised on the inference that the jury "must have determined" that there was no permanent injury because they awarded plaintiff zero dollars for pain and suffering. A plaintiff can sustain a permanent injury without any associate permanent pain and suffering. Here, the jury may have concluded that plaintiff's permanent wrist injury prevented plaintiff from doing marble work, but the wrist injury had no associate permanent pain and suffering. And they could have concluded that the other alleged injuries were pre-existing and unrelated to the accident.
III.
Defendants' next argue that the trial judge erroneously allowed the State Troopers to testify regarding information obtained from the driver of the blue truck and that this error warrants a new trial on liability. We disagree and also conclude that any error regarding this issue was nevertheless harmless.
"In reviewing a trial court's evidential ruling, an appellate court is limited to examining the decision for abuse of discretion." Hisenaj v. Kuehner, 194 N.J. 6, 12 (2008). We are required to disregard an error unless, after consideration, we find "it is of such a nature as to have been clearly capable of producing an unjust result[.]" R. 2:10-2.
"It is well established that a reviewing court grants substantial deference to the evidentiary rulings of a trial judge." Fitzgerald v. Stanley Roberts, Inc., 186 N.J. 286, 319 (2006) (citing DeVito v. Sheeran, 165 N.J. 167, 198 (2000)). "'For a hearsay error to mandate reversal, [t]he possibility [of an unjust verdict] must be real, one sufficient to raise a reasonable doubt as to whether the error led the jury to a result it otherwise might not have reached.'" Neno v. Clinton, 167 N.J. 573, 586 (2001) (alterations in original) (quoting State v. Hightower, 120 N.J. 378, 410 (1990)).
Defendants identify two transcript references in support of their claim that "at trial, DePinto's counsel was permitted to elicit the barred testimony from the State Troopers over defendants' strenuous objection." The first instance relates to testimony by Trooper Rich Korpi. Over defendants' objection, Trooper Korpi was permitted to state that after the accident, Trooper Ngo gave him the license plate number of the vehicle that reportedly struck the tire tread. On plaintiff's representation that the "other" Trooper - the source of Korpi's information - would be coming to testify the next day, the judge reserved on defendants' motion to strike, noting that he would instruct the jury if it became necessary, i.e., if the second Trooper did not appear. However, Trooper Ngo did appear.
Defendants' second transcript reference is to Trooper Ngo's testimony, which follows:
A. The next thing I remember is the -- a vehicle pulled over on the southbound lane. And a pedestrian attempted to cross the highway. And at that time I screamed at him to go back to his vehicle. And at the time I got back into my Troop car and proceeded to that vehicle.
Q. Now when you say that a vehicle was pulled over to the side, that was in the opposite lane of travel; - -
A. Opposite lane, southbound - -
Q. - - is that correct?
A. - - lane. The - - the accident occurred going northbound.
Q. And when you got to where that vehicle was could you observe the vehicle?
A. Yes.
Q. And what did the vehicle look like?
A. It was parked on the right shoulder. It looks like a Ford Explorer pick[-]up truck. A dark - -
Q. Was it dark?
A. - - colored - - a dark color.
At this point, the Trooper was asked about his interaction with the pick-up truck driver:
Q. And what if anything did you do next? A. Okay, I approached the vehicle on the passenger side. I was speaking to the driver; he sounded a little excited, stating that -
Upon defendants' objection, the court barred Trooper Ngo from relating what the unknown driver said to him. However, without further objection, Trooper Ngo was permitted to state the following:
THE COURT. What happened next?
A. Basically he provided me with the - - plate of what transpired. He followed the vehicle, jot[ted] down [the] plate and gave me the information for the plate.
THE COURT. Okay.
A. To a white vehicle, New Jersey plate.
[Plaintiff's Counsel]. And what, if anything, happened next?
A. Basically I called it in to the communications center, stating what a piece of paper that was given to me that was written down for a plate, and provide that information for the investigating Trooper of what transpired.
Q. And do you remember off the top of your head what that plate number was?
A. No, I don't.
After a brief search for the police report, Trooper Ngo was permitted to use it to refresh his recollection as to the plate number provided to him.
Q. Trooper, does this refresh your recollection of what the plate number that you received at the scene of the accident was?
A. Yes, ma'am.
Q. Can you tell us what it is?
A. It was a New Jersey plate, Romeo-Golf-Kilo-345.
It was not contested at trial that the plate was registered to the ABM van that Raa was operating at the scene of the accident. There was no objection to the refreshed recollection testimony and defense counsel did not move to strike it. Rather, counsel proceeded to elicit on cross-examination that the Trooper could not verify the information given to him by the pick-up driver, acknowledging that the driver "could have been wrong." Following that admission, defense counsel did not renew any objection to the testimony, move to strike it, or seek a curative instruction.
Nevertheless, defendants now claim they were seriously prejudiced by this license plate testimony. We disagree.
Plaintiff identified the van that hit the tire remnant and caused it to throw him from his motorcycle. He was "absolutely sure" of his identification. After picking himself up off the roadway, plaintiff said that he saw Raa standing, with his "hands on his head," outside of a white van on the left side of the road, near the "turnaround" area a short distance away. Seeing the driver of the blue truck walking back to his vehicle, plaintiff pointed to Raa, and told the driver of the blue truck to make sure Raa "doesn't go anywhere. He caused the accident." At that point the blue truck sped off toward Raa and his van, while Raa also "started to take off." Plaintiff saw the blue truck speeding down the highway toward the white van, and catching up to it near the turnaround.
From these circumstances, it could readily be inferred that the driver of the blue truck caught up to and obtained the license plate number of the white van, and returned to the accident scene where he gave a paper with the plate number to Trooper Ngo. Plaintiff agrees that the testimony now under attack amounts to statements by the unknown driver that "this is the plate number of the white van DePinto pointed out to me." The jury was entitled to conclude that there was only one such van, as defendants' own witness Victoria Sanzone testified. Even more important, it is reasonable to infer that the unknown driver saw the van that plaintiff pointed out, which was then stopped a short distance away, followed that white van, and obtained its license plate number. The credible evidence of record supports this conclusion.
We note that the judge's in limine ruling on the excited utterance exception was made on an incomplete record. However, since there was no contemporaneous objection, the judge was never given an opportunity to address possible hearsay exceptions in light of the testimony presented at trial.
"N.J.R.E. 803(c)(2) defines an excited utterance as 1) '[a] statement relating to a startling event or condition'; 2) 'made while the declarant was under the stress of excitement caused by the event or condition'; and 3) 'without opportunity to deliberate or fabricate.'" State ex rel. J.A., 195 N.J. 324, 340 (2008) (alteration in original). There are several pertinent factors to weigh in determining whether a statement was an excited utterance, including:
(1) the amount of time that transpired between the initial observation of the event and the subsequent declaration of the statement; (2) the circumstances of the event; (3) the mental or physical condition of the declarant; (4) the shock produced; (5) nature of the statement; and (6) whether the statement was made voluntarily or in response to a question.
[State v. Buda, 195 N.J. 278, 294 (2008) (citations and internal quotation marks omitted).]
Here, the "event" in its totality encompassed plaintiff's request for the declarant, the driver of the blue truck, to not let the vehicle to which he pointed "get away," as well as the driver speeding off after the van in response to the request and returning with a license plate number. To the driver of the blue truck, the event was likely startling — it was unanticipated, happened rapidly and followed shortly after a driver was thrown from his motorcycle onto the busy highway in front of him.
Trooper Ngo's testimony supports a finding that the driver of the blue truck was still under the stress of excitement when he returned to the scene. The driver was about to attempt to cross the travel lanes of the Turnpike before Trooper Ngo "screamed at him to go back to his vehicle." Upon reaching the driver on the shoulder of the southbound lanes of the Turnpike, Trooper Ngo stated that the driver "sounded a little excited." Further, the record indicates there was no time to fabricate nor motive to do so. The man "sped off" after the van immediately and returned with the plate number after approximately ten minutes.
"In deciding whether there was an opportunity to fabricate or deliberate, a court should consider 'the element of time, the circumstances of the incident, the mental and physical condition of the declarant, and the nature of the utterance.'" State v. Long, 173 N.J. 138, 159 (2002) (quoting State v. Williams, 106 N.J. Super. 170, 172 (App. Div.), certif. denied, 55 N.J. 78 (1969), cert. denied, 397 U.S. 1057, 90 S. Ct. 1405, 25 L. Ed. 2d 675 (1970)). Although the time delay in this case falls comfortably within those in cases cited with approval in Long, the time is not as important as "whether nervous excitement was generated, whether there was a reasonable proximity in time between the event and the declarant's subsequent description of it, and whether there was a lack of opportunity to deliberate or fabricate the circumstances." Id. at 159-60 (citing State v. Lyle, 73 N.J. 403, 413 (1977)); see also J.A., supra, 195 N.J. at 340-41.
People v. Guiterrez, 92 Cal. Rptr. 2d 626 (Ct. App. 2000), addressed a similar situation as presented here. There, Guiterrez and another man robbed the victim Claro, and then drove off in a green minivan. Id. at 628. Soon after the van drove away, an unknown man approached Claro and gave him a piece of paper with a license plate number on it. Ibid. Claro provided that information to the police which led them to Guiterrez, who Claro identified as one of the robbers. Ibid. At trial, the court acknowledged that the piece of paper "purport[ed] to narrate, describe, or explain an act perceived by the declarant," but admitted the writing under the excited utterance exception to the hearsay rule. Id. at 629-30. The Court of Appeal agreed. Id. at 632. The testimony permitted an inference that the declarant had witnessed the robbery; had he not done so, there would have been no reason for him to write down the plate number and provide it to Claro, within three or four minutes of seeing the robbery. Id. at 632-33.
Noting Claro's testimony that the declarant was "quite a little like nervous," the court concluded that the requirement that the writing was made and provided to the victim while under the stress of excitement, was satisfied. Id. at 633. The fact that the "statement," i.e. the license number, was reduced to writing did not establish the type of deliberation that would remove the paper from the exception. It was "not the product of processing information in a deliberative manner." Id. at 634.
Although the judge here, in ruling on defendants' pre-trial motions, did not find the license plate testimony to be an excited utterance, he was never given the opportunity to reevaluate that ruling in light of the complete record at trial. Indeed, he had reserved on the admissibility of this testimony until he heard the trial proofs. If the judge had the opportunity which an objection would have provided, we conclude that he would have decided, as we have, that the excited utterance exception was applicable.
Additionally, to the extent that the "statement" by the driver constitutes an affirmation that plaintiff pointed to a particular van and the unknown driver followed that van, returning with its plate number, the testimony also constitutes a prior consistent statement by plaintiff rebutting an express or implied charge of recent fabrication. N.J.R.E. 803(a)(2).
Defendants completed a vigorous cross-examination of plaintiff, attempting to demonstrate that his version of events was entirely fabricated. Consistent with this attack on plaintiff's credibility, defense counsel argued in summation that plaintiff's story is "nonsense. It's a cockamamie story." The testimony that plaintiff had identified defendant Raa as the cause of his accident to a bystander, who then chased after Raa's van and obtained its license number, constituted a prior statement consistent with his in-court testimony, thereby rebutting the accusation of recent fabrication. See State v. Muhammad, 359 N.J. Super. 361, 384-88 (App. Div.), certif. denied, 178 N.J. 36 (2003); State v. Torres, 313 N.J. Super. 129, 158-59 (App. Div.), certif. denied, 156 N.J. 425 (1998).
This conclusion is not undermined by Neno, supra, 167 N.J. 573, upon which defendants place principal reliance. There, a police officer was permitted to relate the statements of two drivers who had witnessed an accident wherein two plaintiffs were struck while crossing a highway. Id. at 577-78. The Court found the police officers' testimony was hearsay and that no hearsay exception applied, rendering the testimony inadmissible. Id. at 580-81. However, the only exception advanced was that relating to prior consistent statements. Id. at 580-81. Since there was no claim of recent fabrication, improper influence or motive on the part of the police officer, that exception was clearly inapplicable. In light of defendants' attack on plaintiff's credibility, the applicability of N.J.R.E. 803(a)(2) is quite different here. As a result, Neno provides no support for defendants' position.
Finally, even if no exception applied and the testimony constituted inadmissible hearsay, its admission was harmless. R. 2:10-2. The issue at trial was not whether defendant's vehicle was at the scene of the accident. Defendant admitted he was there but presented an entirely different and exculpatory version of his presence. He denied hitting anything that might have struck plaintiff, claiming he was simply not involved in the accident at all. As the trial judge noted, the issue before the jury was which version to accept. The fact that a witness followed defendant's van because it was pointed out to him by plaintiff, only confirmed that the van was at the scene, which defendant readily admitted.
IV.
Defendants further contend that the trial court erred by permitting the jury to hear plaintiff's counsel's remarks regarding future lost wages, arguing that counsel is barred from referencing a specific sum with respect to an element of damages, and citing Rule 1:7-1(b) for support. We disagree.
Specifically, defendants argue that plaintiff's counsel twice improperly referenced a specific sum for future lost wages during summation. As for the first instance, counsel showed the jury a document projecting plaintiff's future earnings. Defense counsel objected, and the court ordered the document removed. As for the second instance, counsel orally referenced the table's bottom-line figure of $1.572 million. Defense counsel did not object.
Prior to the start of summations, the trial judge instructed the jury, "So at this stage we move to the closing argument, okay, and again, this is argument, it's not evidence." Following summations, the trial judge reminded the jury, "Remember what the attorneys say to you is not evidence, okay. The evidence is what people swore to and the documents you're going to have in the courtroom with you."
During summations in a civil case, "counsel may argue from the evidence any conclusion which a jury is free to arrive at." Spedick v. Murphy, 266 N.J. Super. 573, 590 (App. Div.), certif. denied, 134 N.J. 567 (1993). Moreover, "[c]ounsel may draw conclusions even if the inferences that the jury is asked to make are improbable, perhaps illogical, erroneous or even absurd, unless they are couched in language transcending the bounds of legitimate argument, or there are no grounds for them in the evidence." Id. at 590-91.
Counsel may provide a "bottom-line" figure during summation when referencing claims of loss of future income. See DeHanes v. Rothman, 158 N.J. 90, 96, 102 (1999). Such damages may be included in counsel's summation if consistent with testimony and if the jury is advised that such statements do not constitute evidence. See Lovenguth v. D'Angelo, 258 N.J. Super. 6, 10 (App. Div. 1992), appeal dismissed, 133 N.J. 417 (1993).
Moreover, Rule 1:7-1(b) provides, with regard to unliquidated damages:
In civil cases any party may suggest to the trier of fact, with respect to any element of damages, that unliquidated damages be calculated on a time-unit basis without reference to a specific sum. In the event such comments are made to the jury, the judge shall instruct the jury that they are argument only and do not constitute evidence.Rule 1:7-1(b), by its own language, only applies to unliquidated damages, i.e., pain and suffering and loss of enjoyment of life, making it inapplicable in this case.
Here, the jury awarded plaintiff nothing for pain and suffering. Trial counsel are given broad latitude during summation to argue any legitimate inference that may be drawn from the evidence. Colucci v. Oppenheim, 326 N.J. Super. 166, 177 (App. Div. 1999), certif. denied, 163 N.J. 395 (2000). Plaintiff's counsel properly referenced figures related to plaintiff's loss of future income that were based on testimony presented during trial. Dr. Cifelli testified that plaintiff is physically unable to work as a marble mechanic due to the injuries he sustained in the accident, and that his condition is permanent. Plaintiff testified that prior to the accident he earned a net take-home of approximately $52,000 per year, and that he did not expect to retire until between the ages of sixty-five and seventy. Summarizing such figures during summation is appropriate as:
[i]t is entirely conceivable that . . . jurors might scribble down the testimony of the witness for each of the years involved and knowing the work expectancy of the claimant, would do their own calculations. Having an attorney summarize these net figures is not an undue intrusion upon the jury's function.
[DeHanes, supra, 158 N.J. at 96.]
The summation of plaintiff's counsel included bottom-line arithmetic based upon the testimony of plaintiff and his treating physician. Any dangers associated with the "false precision" and "undue impact" of counsel's statement is "averted when the trial judge does a proper job of instructing the jury . . . that a lawyer's argument is not to be taken as evidence." Lovenguth, supra, 258 N.J. Super. at 10. Any undue impact claimed by defendants was alleviated by the court's instruction that nothing in either party's summation was to be taken as evidence, and that the jury was to rely on its own recollection of the testimony of each witness.
V.
We also reject defendants' argument that the trial judge failed to properly instruct the jury on negligence following a jury question that asked whether the tire's location was relevant to the negligence evaluation.
On the day that deliberations began, the jury submitted the following inquiry to the court:
[I]s there a definition of negligence relative to where the tire was on the roadway?
In response, the judge stated, "No." The question continued, asking:
Does it make a difference whether the tire was on the shoulder, in the lane, or partially in the lane or on the white line?To this the judge responded:
That's for you to decide. That's the fact -- you have to make those fact findings. You've had testimony, conflicting factual testimony as to where . . . the item was.
So that's unfortunately or fortunately your job to make that determination. Remember that preponderance of the evidence standard, okay. All right.
Initially, we note that defendants did not object to the court's response when it was provided, and did not raise this issue in their new-trial motion. Therefore, their argument here is governed by the plain error standard. R. 2:10-2. That is, the error must be "of such a nature as to have been clearly capable of producing an unjust result[.]" Ibid.
Here, defendants never requested that the court instruct the jury in its main charge that the position of the tire remnant on or just off the roadway was in any way dispositive of the issue of defendant Raa's negligence. Also, they never suggested what the judge's answer to the jury question should include, nor did they object to the response the judge provided. From this, we conclude that trial counsel saw no prejudice in the judge's answer. See Ewing v. Burke, 316 N.J. Super. 287, 293 (App. Div. 1998) (a reviewing court should only reverse if there is the "tendency to confuse or mislead the jury").
In any event, the court's response was entirely correct. The issue posed by the evidence was whether Raa was negligent in failing to observe the tire remnant and avoid it. The court's instruction to the jury concerning the duty of a driver to make observations of objects on the road was consistent with the arguments of counsel on that issue:
The law does not impose upon a motorist an absolute duty to observe and avoid obstacle[s] and defects in a street or highway. The operator of a vehicle has the right to place reasonable reliance upon proper preservation of a street or highway in a reasonably safe condition, but where a defect or obstacle is obvious or clearly visible or where a reasonable observation would disclose it in time to avoid or prepare for it, the operator of . . . a vehicle is liable for failure to exercise reasonable care to avoid it or its effects.This instruction mirrors Model Jury Charge (Civil), 5.30G, "Duty of Automobile Driver to Make Observations" (1995), and there was no objection to this instruction.
Plaintiff was not, as defendants argue, confined to the version of events recounted in his testimony. Thus, while plaintiff testified that "[t]here was a tire on the shoulder," there was evidence that the tire remnant could be seen from a considerable distance away. Sanzone, a defense witness, testified that she was 250 feet away when she first saw the tire remnant. How far away Raa could see it, and whether he could have avoided it, were factual issues for the jury. Thus, the judge correctly responded by stating that it was the jury's province to decide such facts. The essence of plaintiff's case was that Raa was negligent in failing to observe and avoid the tire remnant which struck plaintiff.
We discern no error, much less plain error, or any possibility that the judge's response to the jury's questions had a "tendency to confuse or mislead the jury[.]" Ewing, supra, 316 N.J. Super. at 293 (citing Conklin v. Hannoch Weisman, 154 N.J. 395, 409 (1996)).
To summarize, plaintiff suffered severe and life-changing injuries as the result of this accident. The damage award was supported by sufficient evidence and was not excessive, and the verdict was not a miscarriage of justice. See R. 4:49-1. Accordingly, we reject defendants' challenges to the verdict and affirm.
We also deny plaintiff's motion to strike defendants' brief and appendix.
--------
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION