Opinion
DOCKET NO. A-3387-14T2
05-10-2016
DOREEN HAYES, Plaintiff-Respondent, v. BARBARA DELAMOTTE, Defendant/Third-Party Plaintiff-Appellant, v. GEICO INSURANCE COMPANY, Third-Party Defendant.
Stephen A. Rudolph argued the cause for appellant (Rudolph & Kayal, attorneys; Mr. Rudolph, on the brief). Kimberly L. Gozsa argued the cause for respondent (Levinson Axelrod, P.A., attorneys; Ms. Gozsa, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Alvarez, Ostrer and Manahan. On appeal from Superior Court of New Jersey, Law Division, Ocean County, Docket No. L-1703-10. Stephen A. Rudolph argued the cause for appellant (Rudolph & Kayal, attorneys; Mr. Rudolph, on the brief). Kimberly L. Gozsa argued the cause for respondent (Levinson Axelrod, P.A., attorneys; Ms. Gozsa, on the brief). PER CURIAM
Defendant Barbara Delamotte appeals from the entry of two orders: a July 31, 2014 order granting plaintiff's motion for a new trial following a no cause verdict; and a March 2, 2015 order denying defendant's motion for a new trial after the second trial resulted in a verdict in favor of plaintiff. We reverse the July 31, 2014 order granting a new trial and reinstate the first jury verdict. In accord with our decision, we vacate the jury verdict and judgment following the second trial.
On May 12, 2008, plaintiff was a front seat passenger in a minivan operated by defendant when the vehicle veered off the road, hitting several trees and crashing into a pole. Plaintiff was pulled from the car using the "jaws of life" and transported to the hospital on a backboard wearing a cervical collar.
Plaintiff's husband, Joseph Hayes, was a named plaintiff in the first trial based on per quod claims. However, we refer to Doreen Hayes, the injured party in the incident, as "plaintiff."
Plaintiff complained of pain in her chest, back and neck after the accident. She was x-rayed and received pain medication before she was discharged. The pain did not subside and her primary care physician ordered an MRI of her cervical spine, which was performed on May 17, 2008. Plaintiff continued treatment with her primary care physician for several months. She then commenced treatment with Dr. Ted Freeman, who increased plaintiff's pain medication, ordered more MRIs, and performed facet injections. However, the pain continued unabated. Plaintiff also consulted with Dr. Cary Glastein, an orthopedic surgeon, who ordered more MRIs and recommended surgery.
Plaintiff had previously suffered an injury to her neck in a 2002 accident which required cervical fusion surgery at C4-5 and C5-6 the same year. Plaintiff also had a "syrinx" — a fluid-filled cavity in the thoracic spine causing pain and discomfort in the neck, chest and arms — which was discovered in 2001, and was still being treated at the time of the 2008 accident. An MRI of the cervical spine was taken on May 4, 2007, approximately one year before the May 2008 accident.
In August 2013, plaintiff sought treatment from Dr. Robert Sabo, a board certified neurosurgeon. Sabo ordered another MRI and reviewed previous MRI studies of plaintiff's neck, which included studies of her cervical spine done prior to the May 2008 accident. Sabo concluded there were cervical herniations at C6-7 and C7-T1 as a result of the 2008 accident, a permanent injury which required surgery. He performed cervical fusion surgery on November 1, 2013.
On May 3, 2010, plaintiff and her husband filed a complaint against defendant. An answer was filed on or about December 16, 2010. Amended complaints, which included an uninsured motorist (UM) claim against GEICO Insurance Group, were filed on August 24, 2011, and July 11, 2012.
Prior to trial, Dr. Arthur Vasen, defendant's testifying expert and an orthopedic surgeon, examined plaintiff and also reviewed plaintiff's pre- and post-accident MRIs. The doctor opined in several reports that plaintiff sustained a cervical sprain in the accident, which was not a permanent injury, and that the surgery performed by Sabo was not necessary. Vasen did not discuss the syrinx condition in his reports because it was not within his field of expertise.
The matter proceeded to a jury trial on April 15, 2014, and concluded on April 22, 2014. Both liability and damages were tried. The jury heard testimony from plaintiff and her husband; defendant; Sergeant Scott Hall of the Freehold Township Police Department, a responding officer at the scene of the accident; Lynne Reid, who was driving behind defendant's car and witnessed the accident; Sabo; and Vasen. Vasen testified via de bene esse deposition, which was recorded on April 9, 2014.
During the de bene esse deposition, Vasen displayed MRIs on his computer. Vasen testified that the first MRI on the screen was from May 4, 2007, while the second was from May 17, 2008, and stated there was no change in the films. However, it appeared that both films referenced by the doctor were labeled as being from May 17, 2008. None of the parties addressed the issue at the time of the deposition or at trial, but plaintiff's counsel was apparently aware of the discrepancy with the displayed MRI films at the time of the deposition.
The judge noted in his July 31, 2014 opinion, and defendant concedes, that both films depicted the cervical spine but were mislabeled as depicting the lumbar spine.
At the conclusion of testimony and prior to summation, plaintiff's counsel sought to replay the video of Vasen's deposition during summation to demonstrate to the jury that the doctor erred by comparing MRI films from the same date. Defendant opposed the application. Following oral argument on the issue, the judge denied plaintiff's request and further barred plaintiff's counsel from mentioning the discrepancy during summation, reasoning there was no testimony from Vasen or a radiologist to differentiate between the films or to account for a potential mislabeling.
Plaintiff's counsel initially attempted to make an ex parte request for this purpose, which the judge denied.
Following summations, the jury returned a no-cause verdict based upon lack of proximate cause for the injury, and also found there was no unknown vehicle which caused the accident. Plaintiff moved for a new trial on May 12, 2014. Oral argument on the motion was heard on July 18, 2014. The judge granted plaintiff's motion in a written opinion on July 31, 2014, holding plaintiff "did not receive substantial justice[,]" because "the jury gave greater weight to Dr. Vasen's testimony than to Dr. Sabo[.]" The judge's determination as to liability of the defendant was "confirmed[,]" and plaintiff's UM claim against GEICO was dismissed with prejudice.
Prior to summations, the judge found as a matter of law that negligence occurred. Thus, by finding there was no phantom vehicle, liability was wholly attributed to defendant by the jury.
The second trial took place from January 20 through 26, 2015. Joseph Hayes's per quod claims were voluntarily dismissed prior to the second trial. The matter was tried solely on the issue of proximate cause. The jury returned a verdict in favor of plaintiff and awarded her $250,000 in damages. Defendant filed a motion for a new trial on February 5, 2015, which the judge denied on March 2, 2015. An order entering judgment in favor of plaintiff was entered on March 17, 2015. This appeal followed.
Defendant raises the following arguments on appeal:
We limit defendant's arguments to those concerning the July 31, 2014 order.
POINT I
A NEW TRIAL IS WARRANTED BECAUSE THE TRIAL COURT ABUSED ITS DISCRETION AND MISAPPLIED THE LAW WHEN IT THREW OUT THE TRIAL [ONE] NO-CAUSE JURY VERDICT, BASING ITS DECISION ON COMPLETE SPECULATION THAT THE JURY GAVE
GREATER WEIGHT TO THE OPINIONS OF THE DEFENSE MEDICAL EXPERT.
POINT II
THE PROPER RULE[] THAT THIS COURT SHOULD ENUNCIATE[] IS THAT WHEN SOME EXPERTS ARE ON VIDEO AND SOME TESTIFY LIVE[] NO PARTY SHOULD BE ABLE TO PLAY BACK ANY PORTION OF THE EXPERT'S VIDEO BECAUSE IT CREATES AN UNFAIR [IMBALANCE] DURING SUMMATIONS.
In reviewing an order granting a motion for a new trial "[t]he trial court's ruling on such a motion shall not be reversed unless it clearly appears that there was a miscarriage of justice under the law." R. 2:10-1. An appellate court must give due deference to the trial court's "feel of the case[,]" that is, its regard for "the jury to pass upon the credibility of the witnesses" and whether "it clearly and convincingly appears that there was a miscarriage of justice under the law." Carrino v. Novotny, 78 N.J. 355, 361 (1979) (quoting R. 4:49-1(a)); see also Baxter v. Fairmont Food Co., 74 N.J. 588, 597-98 (1977); Dolson v. Anastasia, 55 N.J. 2, 7 (1969) (holding that in reviewing the trial court's denial of a motion for a new trial, "the appellate court must give deference to the views of the trial judge . . . .").
Our Supreme Court has discussed the miscarriage of justice standard:
[A] motion for a new trial should be granted only where to do otherwise would result in a
miscarriage of justice shocking to the conscience of the court. . . . Thus, a trial judge is not [to] substitute his [or her] judgment for that of the jury merely because he [or she] would have reached the opposite conclusion[.]In deciding a motion for a new trial, the trial judge must "canvass the record, not to balance the persuasiveness of the evidence on one side as against the other, but to determine whether reasonable minds might accept the evidence as adequate to support the jury verdict . . . ." Kulbacki v. Sobchinsky, 38 N.J. 435, 445 (1962).
A miscarriage of justice has been described as a pervading sense of wrongness needed to justify [an] appellate or trial judge undoing of a jury verdict . . . [which] can arise . . . from manifest lack of inherently credible evidence to support the finding, obvious overlooking or undervaluation of crucial evidence, [or] a clearly unjust result[.]
[Risko v. Thompson Muller Auto. Grp., Inc., 206 N.J. 506, 521 (2011) (internal citations and quotation marks omitted).]
The appellate court must "make [its] own determination as to whether or not there was a miscarriage of justice, deferring to the trial judge only with respect to those intangible aspects of the case not transmitted by the written record — such as witness credibility, demeanor and feel of the case." Borngesser v. Jersey Shore Med. Ctr., 340 N.J. Super. 369, 377-78 (App. Div. 2001); see also Dolson, supra, 55 N.J. at 6-7.
Defendant argues the judge erroneously granted a new trial despite his legally correct decision to preclude plaintiff from replaying a video of Vasen's de bene esse deposition during summation. We agree.
Similar to Rule 2:10-1, Rule 4:49-1(a) states that a judge should only grant a motion for a new trial "if, 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." The "appellate court's review is essentially the same as the standard governing the trial judge's disposition." Pressler & Verniero, Current N.J. Court Rules, comment 4 on R. 2:10-1 (2016) (citing Dolson, supra, 55 N.J. at 6-8).
The court must "consider both tangible and credibility factors and the feel of the case to determine if the jury's verdict was a clear error or mistake." Id. at comment 1.1 on R. 4:49-1 (citing Kita v. Borough of Lindenwold, 305 N.J. Super. 43, 49 (App. Div. 1997)). We have held that a new trial is required when the judge concludes that his rulings at trial resulted in a prejudice to a party. Ibid. (citing Cty. of Monmouth v. Hilton, 334 N.J. Super. 582, 595-96 (App. Div. 2000), certif. denied, 167 N.J. 633 (2001); Crawn v. Campo, 136 N.J. 494, 511-12 ( 1994 )); see also Hill v. N.J. Dept. of Corr. Com'r Fauver, 342 N.J. Super. 273, 302 (App. Div. 2001), certif. denied, 171 N.J. 338 (2002).
At trial and at oral argument on the motion for a new trial, the judge applied the test set forth in Condella v. Cumberland Farms, Inc., 298 N.J. Super. 531 (Law Div. 1996), in order to determine whether the video replay during summation was permissible. Applying that test, he noted there was no credible evidence or expert testimony in the record that the MRI films were incorrectly used. When ruling on the motion, the judge held that his decision to bar plaintiff from replaying the video or referencing the discrepancy was legally correct. The judge also initially noted that "we [do not] know what swayed [the jury]." Nevertheless, the judge found cause to grant a new trial:
Yet, at the same time, the court finds that if a new trial is not granted on at least the damages aspect of the case, the plaintiff herself would likely suffer an injustice if, as it appears, the defendant's medical expert likely misrepresented the MRI films to the jury.
On this point, it is clear that the jury gave greater weight to Dr. Vasen's testimony than to Dr. Sabo, the only other medical expert to testify. However, the jury may have questioned Dr. Vasen's credibility had they known of his apparent mistake on a critical piece of evidence.
The court finds therefore that the plaintiff did not receive substantial
justice and is ordering a new trial on the issue of damages only.
We agree with the judge that his decision to bar the video replay was legally correct. However, since that decision is not before us on appeal, we need not address it at length. Suffice it to say that at trial and on the motion for a new trial, the judge correctly applied the test for determining whether video recording of trial testimony may be played during summation, which was discussed in Condella, supra, 298 N.J. Super. at 535-38, a Law Division case cited approvingly and expanded upon in State v. Muhammad, 359 N.J. Super. 361, 379-81 (App. Div.), certif. denied, 178 N.J. 36 (2003).
We note that had plaintiff appealed the judge's decision following the first trial, the abuse of discretion standard applies to a trial judge's rulings regarding summation, as well as a trial judge's evidentiary rulings (including the scope of expert testimony). Estate of Hanges v. Metro. Prop. & Cas. Ins. Co., 202 N.J. 369, 382 (2010); Hisenaj v. Kuehner, 194 N.J. 6, 12 (2008).
Applying the test for video playbacks set forth in Condella and Muhammad, a video replay during summation would have been prejudicial given the lack of testimony by any medical expert or radiologist who could have explained the discrepancy in the films displayed by Vasen during his testimony. See Bender v. Adelson, 187 N.J. 411, 438 (2006) (Rivera-Soto, J., dissenting) ("'[T]he scope of . . . summation argument must not exceed the "four corners of the evidence"' and . . . '[t]he "four corners" include the evidence and all reasonable inferences drawn therefrom.'") (quoting State v. Loftin, 146 N.J. 295, 347 (1996)). The proffered replay and argument at summation was therefore outside the four corners of the evidence presented to the jury, ibid., and arguably constituted unfair surprise. See Biunno, Current N.J. Rules of Evidence, comment 7 on N.J.R.E. 403 (2016). The judge aptly held that an expert would have been required to testify that Vasen was reviewing the same MRI films or that there was a mislabeling in order to challenge his credibility. Accordingly, since the judge's decision was legally correct, there was no judicial "mistake" or "erroneous trial ruling result[ing] in a prejudice to a party." Pressler & Verniero, supra, comment 1.1 on R. 4:49-1 (citing Crawn, supra, 136 N.J. at 512; Cty. of Monmouth, supra, 334 N.J. Super. at 595-96); see also Hill, supra, 342 N.J. Super. at 302.
In the absence of legal error that would provide the basis for the occurrence of a "substantial injustice," the judge's decision that the jury gave greater weight to Vasen's testimony over Sabo's testimony was, in effect, a determination that the verdict was against the clear weight of the evidence. In that vein, we must "accept as true the evidence supporting the jury's verdict and all permissible inferences therefrom." Pressler & Verniero, supra, comment 4 on R. 2:10-1. "The [trial judge's] object is to correct clear error or mistake by the jury. Of course, the judge may not substitute his judgment for that of the jury merely because he would have reached the opposite conclusion[.]" Dolson, supra, 55 N.J. at 6 (emphasis added).
Despite the judge's decision at trial that there was no evidence in the record to substantiate plaintiff's contention that the MRI films were the same, the judge held in deciding the new trial motion that "it is more likely than not that Dr. Vasen was in fact displaying" the same post-accident films in the video. The judge's finding was not based upon his "feel of the case" but upon his belief that the jury was influenced by erroneous testimony from Vasen. As the judge appropriately held in denying the video reply, the determination that Vasen's testimony was tainted by error could only be premised on expert testimony establishing that error. Since that testimony was not presented for the jury's consideration, the judge's determination that the jury's verdict was influenced by erroneous testimony is without basis in the trial record. The judge, presuming both the error of the testimony and the jury's reliance thereupon, assumed the role of the factfinder and "reached the opposite conclusion[.]" Ibid.
We also conclude that in focusing on Vasen's testimony alone the judge did not engage in an appropriate canvass of the entire record. Kulbacki, supra, 38 N.J. at 445. From our canvass of the record, we note that prior to the commencement of the trial plaintiff moved in limine to strike portions of Vasen's videotaped deposition discussing the opinions of non-testifying doctors. The motion was denied. The judge held "[a]s long as Dr. Vasen says on that videotape that he specifically relied on those non-testifying experts in forming his opinion and he says that, [I am] going to let it in with the limiting charge . . . ." The judge read Model Jury Charge (Civil), 1.13(E), "Expert Testimony" (2015), regarding the limited use of hearsay from non-testifying experts, three separate times: prior to Sabo's testimony, prior to the playing of Vasen's videotaped deposition, and once more during the jury charge. Vasen and Sabo both testified as to non-testifying experts' opinions.
The judge's ruling on this issue has not been appealed. Although plaintiff did not file a cross-appeal, in her brief she argued that the judge's ruling on the in limine motion left Sabo "on an island" to testify against Vasen and all of the non-testifying doctors.
The jury heard testimony from both experts, both plaintiffs, defendant, a responding officer, and another individual who witnessed the accident. The jury also heard testimony regarding MRI reports and an x-ray administered by non-testifying experts, and reference to conclusions generated by non-testifying doctors who treated or consulted with plaintiff in connection with the 2002 and 2008 accidents, as well as her syrinx condition. Although non-evidentiary, the issue of the 2008 accident's causal nexus (or lack thereof) with plaintiff's injury was a matter addressed by counsel in their openings and summations, with reference being made to the non-testifying experts' opinions by defense counsel. Based upon the trial record we conclude the jury verdict could have been influenced by several factors, including the credibility of witnesses or the adverse opinions of non-testifying witnesses. While Vasen's testimony on the MRI images was an important component of defendant's case, it was not the exclusive means by which the jury could have reached its verdict.
In reaching the determination that a new trial was warranted, the judge placed the onus for the jury's verdict entirely on the testimony of Dr. Vasen. Notwithstanding our deference to the judge's "feel of the case," Carrino, supra, 78 N.J. at 361, we conclude there was insufficient support for his determination that it was "clear that the jury gave greater weight" to Vasen's testimony over Sabo's testimony, particularly given the evidence in the record and the judge's conflicting statement at oral argument that it was unknown what ultimately swayed the jury.
"Jury verdicts should be set aside in favor of new trials only with great reluctance, and only in cases of clear injustice." Boryszewski v. Burke, 380 N.J. Super. 361, 391 (App. Div. 2005) (emphasis added), certif. denied, 186 N.J. 242 (2006). In light of our review of the record and after consideration of the bases upon which the jury could have reached its verdict, other than a choice between the opinion testimony of Vasen or Sabo, we conclude that the verdict should not have been set aside. Predicated upon our decision, we need not address defendant's remaining arguments.
Plaintiff argues in a footnote that regardless of our decision, the judge's order granting a new trial should be affirmed on the grounds that the judge improperly barred plaintiff's counsel from showing the deposition video and improperly allowed defendant to use the opinions of non-testifying doctors as a tie breaker. However, plaintiff did not seek a new trial on those bases; nor has she filed a cross-appeal seeking relief from those decisions or raised the argument in a point heading. See Pressler & Verniero, supra, comment 2 on R. 2:3-4; id. at comments 1 and 2 on R. 2:6-2; R. 2:6-4(a). --------
The July 31, 2014 order granting a new trial is reversed, and the April 22, 2014 jury verdict is reinstated. The January 26, 2015 jury verdict and March 17, 2015 judgment are vacated.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION