Opinion
DOCKET NO. A-2216-12T4
04-16-2014
SOFIA T. TORRES, Plaintiff-Respondent, v. JAVIER PABON and SUBURBAN DISPOSAL, INC., Defendants-Appellants.
James P. Lisovicz argued the cause for appellants (Coughlin Duffy LLP, attorneys; Mr. Lisovicz, of counsel and on the brief; Timothy P. Smith and Brooks H. Leonard, on the brief). Jean Abigail Amagsila argued the cause for respondent.
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Reisner, Ostrer and Carroll.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. L-1529-08.
James P. Lisovicz argued the cause for appellants (Coughlin Duffy LLP, attorneys; Mr. Lisovicz, of counsel and on the brief; Timothy P. Smith and Brooks H. Leonard, on the brief).
Jean Abigail Amagsila argued the cause for respondent. PER CURIAM
Defendants Suburban Disposal, Inc. (Suburban) and Javier Pabon appeal from a June 24, 2011 judgment in favor of plaintiff Sofia T. Torres, in the amount of $2,735,455.08, and from an order dated August 26, 2011 denying defendants' motion for a new trial.
To put the issues in context, plaintiff, then age twenty-one, was severely injured when her car struck the rear of a garbage truck driven by Pabon and owned by his employer, Suburban. The accident occurred at about 4:40 a.m., near a construction site on Route 46 East (highway). The speed limit was fifty miles per hour on the highway. Plaintiff contended that Pabon's negligence caused the accident, because the rear lights on the garbage truck were covered with debris, and on the dark, unilluminated highway, plaintiff was unable to see that there was a slow-moving, gray vehicle ahead of her until it was too late to avoid a collision. After a two-week trial, the jury found Pabon fifty-five percent liable and plaintiff forty-five percent liable for the accident, and awarded plaintiff $4.5 million in damages.
The trial court molded the verdict to reflect the allocation of liability between the parties. Defendants do not claim that the damage award was excessive.
On this appeal, defendants raise the following issues:
I. DEFENDANTS' MOTION FOR A DIRECTED VERDICT SHOULD HAVE BEEN GRANTED BECAUSE PLAINTIFF'S LIABILITY EXPERT'S TESTIMONY CONSTITUTES INADMISSIBLE NET OPINION AND PLAINTIFF HAS NOT MET HER BURDEN OF PROOF ON THE ISSUE OF PROXIMATE CAUSE.Having carefully reviewed the trial transcripts and exhibits provided to us, we conclude that defendants' appellate contentions are either without merit or involve errors which, in the context of the entire record, were harmless. The verdict was not a miscarriage of justice, and we affirm.
A. Plaintiff's liability expert's conclusions constitute inadmissible net opinion and should not have been admitted into evidence.II. THE TRIAL COURT ERRED BY FAILING TO PROPERLY MODIFY THE DOLSON CHARGE WHEN INSTRUCTING THE JURY ON PLAINTIFF'S NEGLIGENCE IN FAILING TO KEEP A SAFE DISTANCE.
B. Plaintiff set forth no evidence to demonstrate that defendants' conduct was the proximate cause of her injuries.
III. THE TRIAL COURT ERRED IN BARRING DEFENDANTS' LIABILITY EXPERT FROM TESTIFYING TO THE SPEED OF PLAINTIFF'S VEHICLE.
IV. THE TRIAL COURT ERRED IN ALLOWING PLAINTIFF TO READ PABON'S DEPOSITION TESTIMONY INTO EVIDENCE AND THERAFTER GIVING THE JURY AN ADVERSE-INFERENCE CHARGE WITH RESPECT TO HIS FAILURE TO TESTIFY.
V. THE TRIAL COURT ERRED IN ALLOWING PLAINTIFF TO SERVE IMPROPER DEMANDS FOR ADMISSIONS AFTER THE CLOSE OF DISCOVERY AND IN ALLOWING PLAINTIFF TO READ THEM INTO EVIDENCE.
VI. THE TRIAL COURT ERRED IN ALLOWING PLAINTIFF'S DAMAGES EXPERT TO TESTIFY AT TRIAL WHEN HIS EXPERT REPORT WAS SERVED ON DEFENDANTS THE DAY BEFORE HE TESTIFIED AT TRIAL, WHICH WAS NEARLY ONE MONTH AFTER THE REPORT WAS WRITTEN AND MONTHS AFTER DISCOVERY HAD CLOSED.
VII. THE TRIAL COURT ERRED WHEN IT PERMITTED THE JURY TO DRAW AN ADVERSE INFERENCE AS A RESULT OF DEFENDANTS NOT CALLING THEIR ORTHOPEDIC EXPERT TO TESTIFY.
VIII. THE TRIAL COURT COMMITTED PLAIN ERROR WHEN IT DID NOT INSTRUCT THE JURY WITH REGARD TO THE RECOVERY OF
PERSONAL INJURY PROTECTION (PIP) BENEFITS FOR PLAINTIFF'S MEDICAL EXPENSES (not raised below).
IX. THE CUMULATIVE ERRORS AT TRIAL RENDERED THE TRIAL UNFAIR AND DEFENDANTS WERE DEPRIVED OF THEIR RIGHT TO HAVE AN IMPARTIAL JURY REACH A FAIR VERDICT.
Despite the language of this point heading, defendants do not actually argue that the court erred in permitting plaintiff to read portions of Pabon's deposition. Defendants only contend that the court erred in giving an adverse inference charge due to Pabon's failure to testify.
I.
We set forth some of the facts and procedural history here, and discuss others when we address the legal issues.
Plaintiff presented testimony from Officer Thomas Crowell, who had thirty years of experience performing accident reconstruction and investigated this accident for the local police department. According to Crowell, the rear-facing lights on the garbage truck were "all covered with a heavy crud." However, he admitted on cross-examination that the top lights were not covered with dirt. There were a tail light, a brake light, and a "back-up" light on each side of the bottom of the truck. By examining the filaments in the lights, Crowell determined that at the time of the accident, the tail lights were on but the brake lights were off.
In his deposition, Pabon confirmed that the back-up light was only illuminated if the truck was operating in reverse.
On direct examination, Crowell testified that he did not find any evidence at the crash scene that plaintiff's car was going faster than fifty miles per hour. On cross-examination, Crowell explained that there were two different tests that could be performed to determine a car's speed: a crush analysis or a test measuring "[c]onservation of [linear] momentum." He confirmed that using those tests, one could "come to a reasonable conclusion as to how fast that car was traveling." However, his department did not ask him to perform those tests, because the accident did not involve a fatality. He also did not test the tail lights to see how much light they produced in their dirt-covered condition.
At the trial, plaintiff's counsel read the jury several portions of Pabon's deposition. Pabon testified that on the morning of the accident, he began work at about 4:00 a.m. He admitted that he followed the required routine of turning on and checking the headlights and tail lights on the truck to see that they were working. He saw that the lights were dirty and had "safety concerns" about that, but he was unable to clean them because they were "stained." He testified that it was "the company's responsibility" to wash the truck. He confirmed that the dirt on the lights had been there for weeks before the accident.
He also confirmed that although there were several lights on the top of the truck, most of them either served special purposes or did not work, and hence, they would not have been illuminated at the time of the accident. Only a small red reflector light and a larger red light on each side of the top would have been illuminated. The larger red light was designed to become brighter when the brakes were applied.
According to Pabon, he was traveling at forty or forty-five miles an hour down Route 46 East. When he saw signs for a construction site, notifying drivers that the right lane was closed ahead and to merge left, he took his foot off the gas pedal, which slowed the truck "a little." Later in his direct testimony, he agreed that he "had slowed somewhat significantly" just before the accident occurred. He did not apply the brakes, so the brake lights would not have illuminated.
Plaintiff's expert, Walter Suhaka, testified that, with respect to this accident, it was not possible to use the types of speed tests that Crowell described, without either examining plaintiff's car, which was unavailable, or measuring skid marks at the scene, of which there were none. He also explained that because the back of the garbage truck was curved underneath, allowing plaintiff's car to go under it, he could not use the "energy crush" test, which requires that a car run into a flat, solid, rigid object, as opposed to "riding" under an object.
Suhaka explained that because most modern cars have anti-lock brakes, they do not leave skid marks.
Suhaka also explained that it was not possible, or permissible, to test the actual lights from the garbage truck to see how much light they emitted, because this would involve "destructive" testing. Defendants' expert did not provide any testimony contradicting Suhaka on this point, and the defense expert also did not perform any such testing on the truck lights. However, the jury had the opportunity to view the actual dirt-covered lights, which Crowell had removed from the truck. In the exercise of their common sense and experience, the jurors could draw their own conclusions as to whether a tail light covered with "crud" was likely to be less visible than a clean light.
Through plaintiff's testimony, that of her family members and several medical experts, plaintiff presented evidence of the agonizing and devastating injuries she suffered in the accident. In essence, before the accident she was a beautiful, vibrant, twenty-one year old woman. The accident caused multiple bone fractures and internal injuries, put her in a coma for a week, and left her with extensive scarring, impaired mobility, and other permanent injuries that affected her quality of life.
The record presented to us strongly supports these findings, although, as further discussed later in this opinion, defendants did not provide us with a transcript of the testimony of plaintiff's orthopedic expert, Dr. Hirsch, or her treating physician, Dr. Sirkin, whose videotaped de bene esse depositions were shown to the jury. As a result, defendants have not presented an adequate record to permit us to evaluate the alleged prejudice suffered as a result of plaintiff's counsel being permitted to read to the jury requests for admissions concerning defendants' orthopedic expert, whom the defense decided not to call as a witness after plaintiff rested.
II.
On this appeal, defendants argue that the court should have granted their motion for a directed verdict at the close of plaintiff's evidence. In support of this argument, they contend that the trial court should have stricken plaintiff's expert report. We review that decision for abuse of discretion. Townsend v. Pierre, 429 N.J. Super. 522, 528 (App. Div. 2013). Having reviewed Suhaka's report, as well as his trial testimony, we cannot agree with the defense that he rendered a net opinion. Suhaka, an expert in accident reconstruction, gave a detailed explanation for his opinions. See Pomerantz Paper Corp. v. New Cmty. Corp., 207 N.J. 344, 372 (2011). The fact that he accepted as true Pabon's and plaintiff's testimony concerning the speed at which they were each traveling, rather than calculating the probable speed of each of their vehicles, does not make his opinion net.
As previously noted, in his testimony, Suhaka explained why it was not possible to calculate the relative speeds of the two vehicles.
Nor does the fact that he did not estimate the distance from which one could see the tail lights on the truck make his opinion net. Suhaka, a former police officer, concluded that the "crud" on the tail lights would prevent a following driver from seeing the lights. He also offered a cogent explanation as to why the visual clutter at the construction site, combined with the lack of street lights, would make plaintiff less likely to notice the already-obscured tail lights of Pabon's truck. He further explained why the few working lights at the top of the truck would not alert a following driver, who would be looking for tail lights near the road surface, not top lights nine or ten feet off the ground.
Unlike defendants' expert, who based his opinions on calculations that Suhaka believed could not legitimately be drawn from the available evidence, Suhaka's report provided information about how drivers typically react in certain situations and what they typically perceive while driving. We conclude that his opinion contained enough explanatory detail, based on his expertise, to make it helpful to a lay jury. The missing details, of which defendants complain, went to the weight the jury might give his opinion. See Creanga v. Jardal, 185 N.J. 345, 362 (2005).
Further, even without expert testimony, plaintiff presented enough evidence to survive a motion to dismiss. Through the testimony of Officer Crowell, she presented both the dirt-encrusted lights, and Crowell's opinion that the dirt would have compromised the visibility of the lights. That was a commonsense conclusion that lay jurors could also have drawn for themselves. Plaintiff testified that she could not see vehicle lights ahead of her, but only a vague silhouette in the darkness. Even without expert testimony, reasonable jurors could have inferred that she could not see the truck's tail lights because they were filthy, and she could not see the truck because it was gray and blended into the surrounding darkness. Accepting all of plaintiff's evidence as true and giving her the benefit of all favorable inferences to be drawn from that evidence, the motion was properly denied. See R. 4:37-2(b); Monaco v. Hartz Mtn. Corp., 178 N.J. 401, 413 (2004); Dolson v. Anastasia, 55 N.J. 2, 5 (1969).
III.
Next we address errors in the Dolson charge, concerning a driver's obligation to maintain a safe distance from the vehicle ahead. In her final instructions to the jury, the judge initially read the charge as though Pabon were charged with following plaintiff's vehicle too closely. After defense counsel pointed out the error, the judge re-read the charge, but again made errors:
Dolson v. Anastasia, supra, 55 N.J. at 10-11.
If you find that the defendant has violated the statute by following another vehicle, in this case, Pabon's vehicle more closely than reasonable and prudent having -- vehicle, the traffic upon, the condition of the highway, such conduct -- the plaintiff is also negligent.
[Emphasis added; dashes in original.]
It is appellants' obligation to provide us with the record. Apparently, certain portions of the audio recording of the trial were inaudible to the transcriber. We are unaware of any effort on appellants' part to have the record reconstructed. We infer that the quoted portions represented by dashes were correct readings of the Dolson charge.
This time, defense counsel did not object. Clearly, the judge mis-read the charge by substituting the word "plaintiff" for "defendant" and by inserting the word "also." She also failed to read to the jury the motor vehicle statute on following too closely, N.J.S.A. 39:4-89. However, we conclude that these errors were harmless. First, the jury obviously knew that plaintiff was following Pabon's vehicle and not the other way around. Second, there was no issue that Pabon was at least somewhat negligent. His own expert admitted that Pabon was careless and was operating the truck in violation of the conditions of his CDL license. Hence, the inclusion of the word "also" was harmless error. We infer, from defense counsel's failure to object, that he saw nothing prejudicial in the wording. See Ewing v. Burke, 316 N.J. Super. 287, 293 (App. Div. 1998) ("The absence of an objection to the charge may suggest that trial counsel perceived no error or prejudice . . . .").
Additionally, there was no evidence that plaintiff was following Pabon's vehicle too closely; defense counsel did not even make that argument to the jury. Instead, he argued that plaintiff was inattentive and should have seen the truck ahead of her in time to slow down. Immediately after giving the Dolson charge, the court accurately read the charge applicable to a driver's failure to observe a clearly visible obstacle ahead of her. Lastly, the jury plainly understood the issue before them, because they found plaintiff forty-five percent liable for the accident. We find no plain error in the jury charge concerning plaintiff's negligence.
In fact, during their deliberations the jury asked if plaintiff would recover anything if they found her fifty percent liable. The judge re-read the ultimate outcome charge. Thereafter, the jury found plaintiff forty-five percent liable.
IV.
Defendants next argue that the trial court committed prejudicial error by precluding their expert from testifying to the speed of plaintiff's car at the time of the accident. After carefully reading the trial transcript, we conclude this argument is not supported by the record. The argument is primarily based on preliminary comments, not rulings, which the trial judge made during in limine motions, rather than on her actual rulings during the trial.
Some background discussion is required to understand the issue. Defendants' accident reconstruction expert, John Karpovich, issued a detailed report opining that plaintiff's car was traveling at least forty miles per hour faster than the garbage truck at the time of the crash. Assuming that Pabon's truck was traveling twenty-five miles per hour, he calculated in his report that plaintiff was traveling at least sixty-five miles per hour in a fifty-mile per hour zone, and that the tail lights on the truck should have been visible to her at a distance of 150 feet, giving her time to brake and avoid the accident.
In pre-trial in limine motions, plaintiff's counsel asked the judge to bar Karpovich from testifying that Pabon's truck was traveling at twenty-five miles per hour at the time of the crash, because there was no evidence that he had slowed the truck to that speed. The judge agreed that if Pabon did not testify that he was traveling twenty-five miles an hour, and there was no other lay testimony that he was going that slowly, the expert could not provide that testimony with no analysis as to how he calculated that speed. She also barred Karpovich from speculating that the speed limit in the construction area was lower than the regular posted speed limit of fifty miles per hour, because there was no evidence to support that conclusion. However, the judge rejected other objections to Karpovich's testimony, such as his use, in visibility tests, of a 1995 Mitsubishi Galant, when plaintiff had been driving a 1993 Nissan Altima. She also did not rule that Karpovich would be barred from testifying to the probable speed of plaintiff's car, and plaintiff's counsel stated that he was not objecting to that testimony.
In his deposition, Pabon could not recall at what speed his truck was traveling at the time of the accident.
Notably, in his opening statement, plaintiff's counsel assumed that there would be testimony about how slowly Pabon's truck was going at the time of the accident. He attempted to use that to his client's advantage by pointing out to the jury that Pabon's truck was going slowly, and the defense expert was expected to testify that it would take two seconds for plaintiff to react and start braking once she saw the truck ahead of her. He told the jury that if plaintiff was traveling fifty miles an hour, approaching a slow-moving truck with obscured tail lights, she would not have seen the truck in time to avoid a collision.
Just before Karpovich testified at the trial, plaintiff's counsel moved to bar Karpovich from referring to a portion of Crowell's police report which mentioned plaintiff's "unsafe speed" as a factor in the accident. The judge held that since Crowell had already testified, and defense counsel had not elicited any testimony from Crowell about plaintiff's alleged unsafe speed, the defense could not put that unexplained hearsay opinion before the jury through Karpovich's testimony. However, plaintiff's counsel made it clear that he would not object to Karpovich's testimony as to his own analysis of the speed of plaintiff's car, based on an alleged crush analysis of the vehicle. In fact plaintiff's counsel indicated that he anticipated cross-examining Karpovich on that subject. In response, the judge confirmed that, other than Crowell's hearsay opinion about unsafe speed, defense counsel "can bring in anything else that's not the subject of [objection] by the other side."
Karpovich's trial testimony included the following pertinent information. Karpovich was an accident reconstruction specialist whose credentials were very similar to Suhaka's. Karpovich testified that it was possible to do a crush analysis of plaintiff's car based on accident photographs, since the car itself was unavailable for inspection. Karpovich explained how he was able to do that, using a database that contained the standard measurements for a 1993 Nissan Altima. For example, he explained that, knowing the length from the front of the car to the driver's side support pillar was forty-eight inches, if an accident photo showed the front of the car crushed all the way back to the pillar, he would infer that the crush distance was forty-eight inches. He stated that he then used an EDCRASH computer program, as well as standard models of staged crashes of similar cars, to calculate the speed when the collision occurred. However, he did not, at this point in his testimony, state how fast he thought plaintiff's car was traveling or how he reached that conclusion with respect to her car. Karpovich agreed with Suhaka and Crowell that the truck had its tail lights on, but not the brake light or the turn signal, at the time of the crash.
Karpovich testified that he performed "visibility testing" under conditions similar to the night of the accident, and concluded that the garbage truck would have been visible to Torres "as she approached." Notably, in his direct testimony, Karpovich stated that the garbage truck was going twenty-five miles per hour at the time of the crash, although the judge had previously ruled he could not give that testimony because there was no factual basis for it. Plaintiff's counsel did not object.
We have viewed the DVD of the visibility tests, which consisted of taking videos of the garbage truck at various distances from an automobile parked on the shoulder of Route 46. The DVD suffered from a number of weaknesses. It was taken at 10:00 p.m. when the highway appeared to have a significant amount of traffic, as opposed to 4:00 a.m., when the highway was relatively deserted according to Pabon's testimony. The highway appeared much more well-illuminated than Pabon, plaintiff, and later, Suhaka, had all observed it to be. The truck used its left turn signal and brakes, which were not being used at the time of the crash. Use of either or both would make the lights brighter. And the record suggests that the truck lights in the DVD were considerably cleaner than those in use on the night of the crash.
Toward the end of Karpovich's direct testimony, defense counsel asked him to state his conclusions about the causes of the accident. Karpovich first stated that plaintiff was driving in a careless manner. He then began to testify that plaintiff "was traveling at a minimum speed of 15 miles per hour. . . ." At that point, plaintiff's counsel objected that Karpovich's prior testimony, providing the factual predicate for his conclusions, contained "nothing" about "what [plaintiff's] speed was at the point of impact" or prior to the point of impact. In other words, at that point in Karpovich's testimony, there was an insufficient foundation for testimony that plaintiff's car was going 15 miles per hour over the posted speed limit, which presumably was what Karpovich was about to say. Defense counsel stated that he thought there had been some testimony about her speed. The judge sustained the objection.
Our review of the transcript reveals that Karpovich's only testimony up to that point was that he assumed plaintiff's car was traveling at 50 miles per hour prior to the accident. His expert report was not before the jury and was not placed in evidence.
Instead of backtracking and eliciting testimony from Karpovich to lay a foundation as to what plaintiff's speed was before the crash and how he calculated that information, defense counsel began questioning Karpovich about his next conclusion, which had nothing to do with the speed of either vehicle. Shortly thereafter, defense counsel ended his direct examination without ever going back to the issue of the speed of plaintiff's car prior to or at the time of the accident.
On cross-examination, Karpovich admitted that Pabon was operating the truck in violation of the conditions of his CDL license and State law, by operating the truck with dirty lights. He admitted that "[i]t was careless" of Pabon to do so. He also admitted that it was "dark" on Route 46 at the time of the accident and, including two seconds of reaction time for a following driver to apply the brakes after seeing the truck, it would require 230 feet of distance to slow plaintiff's car from 50 to 25 miles an hour.
In his summation, plaintiff's counsel argued, based on Karpovich's visibility charts, that the truck would not have become visible to plaintiff until it was 150 feet away, whereas she would have needed 230 feet to slow down enough to avoid a collision. In that argument, plaintiff's counsel used relative speeds of 50 miles per hour for plaintiff's car and 25 miles per hour for the truck — information the defense had chosen to place before the jury.
Karpovich's testimony was also challenged on cross-examination in other ways. He admitted that the photographs of the garbage truck that he used in his visibility experiment were taken years after the accident, and that the truck's original lights had been replaced by then. Plaintiff's counsel also challenged Karpovich on cross-examination as to whether the amount of dirt on the new lights was equivalent to that on the lights involved in the accident. The judge noted for the record, during argument outside the jury's presence, that the lights on the truck in the photographs did not look nearly as dirty as those on the truck at the time of the accident.
Viewing the testimony in context, we find no merit in the argument that Karpovich was unfairly prevented from testifying about plaintiff's speed at the time of the crash. He was not barred from giving that testimony. Instead, after the judge properly sustained an objection based on lack of foundation, defense counsel simply abandoned that line of questioning.
V.
Next, defendants argue that the trial court should not have given the jury an adverse inference charge based on Pabon's failure to testify at the trial. Relying on Bender v. Adelson, 187 N.J. 411 (2006), defendants contend that it was error to give a Clawans charge, after the court precluded Pabon from testifying. See State v. Clawans, 38 N.J. 162 (1962). In Bender, the plaintiff's counsel unfairly exploited a prior order precluding defendant's experts from testifying, by arguing to the jury that they should draw an adverse inference based on defendant's failure to present the experts' testimony. Here, defendants' argument is not supported by the record, and Bender is inapplicable.
Pre-trial discovery was managed by a different judge than the judge who presided over the trial. At some point during discovery, the first judge had entered an order precluding Pabon from testifying, apparently due to discovery violations. However, just prior to the trial, defense counsel told the trial judge that he intended to call Pabon as a witness, and during a hiatus in the opening statements, plaintiff's counsel confirmed on the record that he did not object to Pabon testifying at the trial. Later during the trial, when plaintiff's counsel requested a Clawans charge and defense counsel objected, the trial judge noted on the record that, during the trial, she had seen Pabon present in court sitting next to defense counsel. Defense counsel responded that Pabon was present because he wanted to consult with him. Defense counsel did not state that Pabon refused to testify or that he was unavailable to testify. Because Pabon was available in court and was not precluded from testifying, Bender is not on point.
Defendants also argue that a Clawans charge was inappropriate because plaintiff had already placed Pabon's testimony before the jury. Plaintiff took Pabon's deposition before the trial. In his deposition, Pabon admitted that he knew the rear lights of the truck were covered with dirt, but neither he nor his employer cleaned the lights before he drove off on his route on the night of the accident. He also admitted that when he entered Route 46, he was traveling forty to forty- five miles per hour. When he came to the merge he slowed the truck by taking his foot off the accelerator, but could not recall the truck's speed after he did so. He did not use his brake, so the brake lights would not have come on. He also admitted that several of the other lights on the truck either were not working or would not have been illuminated at the time of the accident, although he claimed that a couple of the top lights "would" have been illuminated. That testimony was read to the jury by plaintiff's counsel.
In his summation, plaintiff's counsel argued that the truck's tail lights were covered with dirt, and there was no trial testimony from Pabon or anyone from Suburban as to whether the top lights on the truck were "functioning and working" at the time of the accident. That was significant, because the defense argued that even if plaintiff did not see the tail lights on the lower part of the truck, she should have seen the lights at the top of the truck. Plaintiff's counsel did not, however, demean the defense or imply that they had tried the case dishonestly. He simply argued that the defense had not produced certain testimony. At plaintiff's request, the judge also read the jury a missing witness charge concerning defendants' failure to present Pabon as a witness.
In Clawans, the Court held that a missing witness charge is appropriate under certain circumstances:
[The] failure of a party to produce before a trial tribunal proof which, it appears, would serve to elucidate the facts in issue, raises a natural inference that the party so failing fears exposure of those facts would be unfavorable to him.
[Clawans, supra, 38 N.J. at 170.]
Before giving the charge, the trial court must analyze four factors concerning its appropriateness:
Our Supreme Court has since cautioned that "[c]are must be exercised because the inference is not invariably available whenever a party does not call a witness who has knowledge of relevant facts." As a result, trial judges must take into consideration four factors in determining whether the charge is appropriate in a given case: (1) whether the "uncalled witness" was "peculiarly within" one party's control; (2) whether the witness was available "both practically and physically"; (3) whether the uncalled witness's testimony "will elucidate relevant and critical facts in issue"; and (4) whether "such testimony appears to be superior to that already utilized in respect to the fact to be proven."
[Washington v. Perez, 430 N.J. Super. 121, 128-29 (App. Div. 2013) (citations omitted), certif. granted, 215 N.J. 487 (2013).]
We agree with defendants that the trial judge did not make specific findings on the four Clawans factors. However, we find no error in giving the charge, because the four factors were present here. Pabon was a party in the case. He was available and obviously willing to cooperate because he was in court with defense counsel. He was the only witness with any personal knowledge about the condition of the garbage truck on the night of the accident, and particularly, what lights were functional or actually illuminated. While portions of his deposition were read to the jury, that was not the equivalent of hearing him testify in court and submit to cross-examination. For example, had he testified, he might have admitted that he did not know if the two red top lights were actually working on the day of the accident. Further, unlike the attorney in Washington, supra, plaintiff's counsel did not seek to unfairly exploit the Clawans charge by making demeaning remarks about the defense. We review a trial judge's decision to give a Clawans charge for abuse of discretion. Gonzalez v. Safe & Sound Sec. Corp., 185 N.J. 100, 119 (2005). We find no abuse of discretion in giving the charge regarding Pabon's failure to testify.
VI.
Next, we address the Clawans charge with respect to Dr. Helbig, an orthopedic expert retained by defendants, who examined plaintiff and was listed as a defense witness on damages. Before discussing the merits, we pause to consider the state of the record with respect to plaintiff's injuries. As previously noted, defendants have not provided us with transcripts of the de bene esse videotaped depositions of plaintiff's orthopedic expert or one of her treating physicians. As a result, defendants have not presented an adequate record to permit us to evaluate the alleged prejudice suffered as a result of the errors they claim with respect to the judge's rulings concerning Dr. Helbig. Nonetheless, even on the record presented, we find no prejudicial error because there was little dispute over plaintiff's injuries, as opposed to defendants' liability.
During his opening statement, defense counsel admitted to the jury that plaintiff suffered serious injuries; he emphasized that the real issue in the case was liability. However, the defense presented testimony from Dr. Rabin, a neurologist, who implied that plaintiff was exaggerating some of her neurological symptoms, including her alleged difficulty in walking. But, he admitted she had some mild but permanent nerve damage to her right arm and hand. Dr. Rabin was presented as a witness out of turn, during plaintiff's case, as an accommodation to the defense.
In response, plaintiff presented testimony from her treating physiatrist (rehabilitation doctor), Dr. Peter Yonclas, who described the results of EMG tests that showed nerve damage in plaintiff's right arm and hand. Dr. Yonclas explained that the tests were objective, using electric currents, and a patient could not fake a response to the test. He also testified that her consistent, similar level of effort on certain tests for muscle strength showed she was not faking her arm injury.
Dr. Rabin had opined that plaintiff had no difficulty walking. However, Dr. Yonclas testified that plaintiff had atrophy of her leg muscles, a phenomenon that Dr. Helbig had found also in examining plaintiff. Atrophy results from an inability to use a muscle over an extended period of time. That finding supported Dr. Yonclas's view that plaintiff's injuries affected her ability to walk.
During in limine motions prior to trial, defense counsel had stated that he intended to call Dr. Helbig as a witness. However, during the trial, the defense announced, out of the jury's presence, that it did not intend to call Dr. Helbig.
With the judge's permission, on plaintiff's rebuttal case, plaintiff's counsel read to the jury plaintiff's requests for admissions with respect to Dr. Helbig's examination of plaintiff, essentially summarizing several of Dr. Helbig's findings, all of which supported plaintiff's case.
In his summation, as in his opening argument, defendants' counsel conceded that plaintiff's injuries were really not in issue.
Ladies and Gentlemen, you'll recall when I first spoke to you approximately two weeks ago, I told you that the defendants were not really disputing the plaintiff's -- the seriousness [sic] nature of her injuries.
As I said then and I still say now, there's no getting around the fact that the plaintiff did in fact, suffer some very serious injuries at the time of this accident.
I told you then and I still believe now that the real question to be answered in this case is why did this accident happen at all?
Counsel then briefly attempted to downplay the ongoing impact of the injuries, arguing that plaintiff was still able to drive, walk, talk, go back to school, and there was no medical testimony that she was "disabled" or unable to work. However, he quickly returned to the main issue of liability for the accident.
In addressing plaintiff's injuries, her attorney touched only briefly on the failure to call Dr. Helbig as a witness:
And then the defense also had . . . an orthopedic doctor examine Sofia, Dr. Helbig. Again, they didn't call him and it's up to you to decide why they didn't call him as a witness, but I read to you this morning what Dr. Helbig would have said if he came to court.
The vast majority of plaintiff's counsel's argument on damages was a discussion of the evidence from plaintiff's doctors and from plaintiff herself, concerning her horrendous injuries and her enormous pain and suffering.
The issue of giving a Clawans charge with respect to an expert witness was most recently addressed in Washington v. Perez, supra. In Washington, the panel assumed without deciding that in some circumstances, a Clawans charge might be appropriate when a party fails to present the testimony of an expert it previously retained and listed as a witness. However, Washington recognized that the charge is not available unless the requesting party satisfies the four threshold factors. Washington, supra, 430 N.J. Super. at 128-29.
In Washington, as in this case, the trial judge failed to undertake an analysis of the four factors. In Washington, the appellate panel found that factors one and four were not satisfied, because the expert was equally available to both sides, having been named as a witness in defendant's interrogatories, id. at 130 (citing Fitzgerald v. Stanley Roberts, Inc., 186 N.J. 286, 301 (2006)), and his testimony would not have been superior to that of plaintiff's expert witnesses. Additionally, in summation, the plaintiff's counsel made unfair use of the charge to cast aspersions on defense counsel's candor. Id. at 131. And, even without the charge, plaintiff's counsel was free to argue that plaintiff's expert medical proofs were unrebutted. Ibid. Because the court's charge was prejudicial error, reversal was required in Washington.
We are aware that the Supreme Court is currently considering Washington, specifically on the issue of the missing witness charge as applied to expert witnesses. However, assuming that a Clawans charge may sometimes be appropriate when an expert witness is not called, it nonetheless was error for the trial judge to give a Clawans charge here without engaging in any analysis of the issue.
Further, because the judge had already permitted plaintiff's counsel to read into the record defendants' admissions concerning Dr. Helbig's observations of plaintiff, there was no need for a Clawans charge. The jury already knew that the defense expert would not have been helpful to the defense, and there was no reason to believe his trial testimony would have been more helpful to plaintiff than the admissions were. In particular, Dr. Helbig agreed that plaintiff had atrophy of her left leg. While it may be argued that it was error to allow requests for admissions concerning an expert's opinions, we conclude that even if it was error, it was harmless. See R. 4:22-1; Pressler & Verniero, Current N.J. Court Rules, comment 1 on R. 4:22-1 (2014) (noting that R. 4:22-1 "is limited to facts" as opposed to opinions).
So much of the record as we have been provided supports a conclusion that the evidence of plaintiff's damages was overwhelming and Dr. Helbig's information would not likely have caused the jury to return a damages verdict it would not otherwise have reached. Not surprisingly, the defense in this case was not focused on damages, but on liability. We cannot conclude that any errors respecting Dr. Helbig, a damages expert, influenced the jury's decision on liability.
VII.
For the first time on appeal, defendant argues that the judge should have given the jurors a "PIP charge" directing them to disregard plaintiff's medical expenses. See N.J.S.A. 39:6A-12; Espinal v. Arias, 391 N.J. Super. 49, 62-63 (App. Div.), certif. denied, 192 N.J. 482 (2007). Plaintiff's lengthy testimony included a couple of sentences about having thousands of dollars in medical expenses. The judge should have instructed the jury not to consider plaintiff's medical expenses in calculating her non-economic damages. However, defense counsel did not object to the jury instructions and we find no plain error in the judge's failure to give the medical expense charge. The jury asked no questions about plaintiff's medical bills and, on this record, we find no basis to speculate that the pain and suffering award was inflated due to the jury's consideration of plaintiff's very brief remark about medical bills. In fact, given plaintiff's terrible suffering and serious injuries, the damage award could well have been higher. See Dolan v. Sea Transfer Corp., 398 N.J. Super. 313, 332 (App. Div.) (upholding a ten million dollar verdict for somewhat similar injuries), certif. denied, 195 N.J. 520 (2008).
Her statement was true. There was no dispute that her PIP benefits were capped at $250,000, and were exhausted years earlier.
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VIII.
We review a trial court's evidentiary rulings for abuse of discretion. Hisenaj v. Kuehner, 194 N.J. 6, 12 (2008). We apply the same standard to the trial court's scheduling and other case management decisions. See Ponden v. Ponden, 374 N.J. Super. 1, 10-11 (App. Div. 2004), certif. denied, 183 N.J. 212 (2005). We find no abuse of the trial court's discretion in allowing Dr. Yonclas to testify at the trial. Dr. Yonclas was plaintiff's treating physiatrist, and the trial judge accurately noted that his testimony was not a surprise to the defense. Nor do we find any abuse of discretion in extending plaintiff's time to serve requests for admissions. Likewise, we find no merit in defendants' argument that the judge was biased and the trial unfair. These points, and any others not specifically addressed here, are without sufficient merit to warrant discussion. R. 2:11-3(e)(1)(E).
In summary, defendants were entitled to a fair trial, not a perfect trial. State v. Wakfield, 190 N.J. 397, 537 (2007). None of the trial errors noted had a clear capacity to produce an unjust result. R. 2:10-2. Further, given plaintiff's severe injuries and the evidence of negligence on the part of the truck driver, it is highly unlikely that a re-trial would yield a result more favorable for the defense. The verdict was not a miscarriage of justice, and consequently, we affirm.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION