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DOCKET NO. A-2888-13T2 (N.J. Super. App. Div. Aug. 11, 2015)

DOCKET NO. A-2888-13T2


PAUL S. MILICI, Plaintiff-Respondent, v. KERN DUBOIS, Defendant-Appellant.

Walter F. Kawalec, III, argued the cause for appellant (Marshall Dennehey Warner Coleman & Goggin, attorneys; Mr. Kawalec, on the briefs). Kenneth G. Andres, Jr., argued the cause for respondent (Andres & Berger, P.C., attorneys; Mr. Andres, of counsel and on the briefs; Tommie Ann Gibney and Abraham Tran, on the brief).

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges St. John and Rothstadt. On appeal from Superior Court of New Jersey, Law Division, Gloucester County, Docket No. L-1333-11. Walter F. Kawalec, III, argued the cause for appellant (Marshall Dennehey Warner Coleman & Goggin, attorneys; Mr. Kawalec, on the briefs). Kenneth G. Andres, Jr., argued the cause for respondent (Andres & Berger, P.C., attorneys; Mr. Andres, of counsel and on the briefs; Tommie Ann Gibney and Abraham Tran, on the brief). PER CURIAM

In this personal-injury suit arising from a motor-vehicle accident, defendant Kern Dubois appeals from a jury award of $432,000 in favor of plaintiff Paul Milici, and the denial of his motion for a new trial. Upon our review, in light of the record and governing law, we affirm.


We derive the facts from the trial record. "In particular, in light of the applicable standard of review, we need not describe the evidence produced by defendant that tended to cast doubt on plaintiff['s] claims, but instead we only set forth the proofs in the light most favorable to plaintiff[]." He v. Miller, 207 N.J. 230, 236-37 (2011).

On August 25, 2009, the parties were involved in an automobile accident in Mantua Township. Plaintiff was traveling northbound on Woodbury-Glassboro Road, when he attempted to turn left into a parking lot. Defendant, driving southbound, was unable to see due to sun glare and collided with plaintiff's car. Later that day, plaintiff was treated by Barry S. Gleimer, D.O., for neck and back pain.

We note plaintiff had been experiencing lower back pain since falling off a roof in 2008.

Defendant retained Adlo Iulo, M.D., to conduct an independent medical examination of plaintiff, which occurred on January 8, 2013. Iulo's report concluded plaintiff did not suffer a permanent injury as a result of the accident, but rather was experiencing degenerative changes in the cervical and lumbar spine.

Trial was initially scheduled for November 4, 2013. However, in a letter dated August 28, defense counsel informed the court that Iulo would be "away on a prepaid vacation that week" and therefore unavailable to testify. In a second letter to the court, dated September 4, defense counsel requested an adjournment due to Iulo's unavailability. The trial court granted the adjournment and trial was rescheduled for December 2. However, on November 22, defense counsel notified the court Iulo had informed her, only the day before, that he had extended his vacation and was unavailable the week of December 2. The court denied defense counsel's request to adjourn the trial a second time. Counsel's subsequent attempts to contact Iulo to arrange his presence at trial or to videotape his testimony were unsuccessful. Trial commenced on December 2, and the court denied defendant's renewed request for an adjournment. We denied defendant's motion for leave to file an interlocutory appeal and trial proceeded.

Gleimer, plaintiff's medical expert, was also unable to appear to testify at trial. However, plaintiff's counsel offered Gleimer's previously-recorded videotaped testimony taken pursuant to Rule 4:14-9. Defendant moved to bar a portion of the testimony concerning the possible need for and details of spinal fusion surgery, on the grounds that Gleimer, as plaintiff's treating physician, never recommended plaintiff undergo the procedure nor referenced it in his expert report. After oral argument, the judge allowed the jury to hear the objected-to portion of the testimony, but provided a limiting instruction that surgery had not been recommended. The judge further emphasized to the jury:

[Y]ou can't consider this testimony as a basis for [plaintiff] receiving surgery at some point in time or having received a recommendation for surgery at some point in time.
However, you can consider it for the purpose of evaluating whether there is a cure for what it is that [p]laintiff alleges that he suffers from and one of the things that's in the test for your evaluation of permanency is whether the circumstance . . . has healed or can be healed.
Whether the body part can be healed and this evidence relates to that question, of whether it can be cured or not. You are allowed to use this testimony for that purpose.

Upon the judge's inquiry, defense counsel stated the instruction was satisfactory.

Plaintiff also offered his own testimony as well as that of his daughter. Defendant objected to the daughter's testimony, because plaintiff's response to defendant's interrogatory requesting the names and addresses of all persons with knowledge of the case provided only the parties, "their family members and relatives," as well as those identified at depositions, but did not specifically provide the daughter's name. The judge overruled the objection and plaintiff's daughter testified to how plaintiff's physical activity changed "drastically" after the accident, as well as how she and her siblings helped with household chores.

Defendant did not call any witnesses. During its deliberations the jury requested, and was permitted, to view Gleimer's videotaped testimony a second time. Ultimately, the jury returned a verdict in favor of plaintiff and awarded him $432,000 for past and future pain and suffering.

Defendant subsequently moved for a new trial or, alternatively, remittitur. In so moving, defendant argued the trial judge erred in declining to grant a second adjournment and in allowing the jury to hear the testimony of plaintiff's daughter and that of Gleimer concerning the surgical procedure. Defendant also contended the jury award was excessive. Plaintiff opposed and, following oral argument, the judge denied defendant's motion in its entirety.

This appeal ensued.


On appeal, defendant argues the trial court erred in: not granting a second adjournment due to defendant's medical expert's unavailability; permitting plaintiff's expert to testify outside the scope of his report; permitting the testimony of plaintiff's daughter since the response to interrogatories did not specifically list her as a potential witness; and denying defendant's motion for a new trial or remittitur. We address each argument seriatim.

"The trial court's decision to grant or deny an adjournment is reviewed under an abuse of discretion standard." State ex rel. Comm'r of Transp. v. Shalom Money St., LLC, 432 N.J. Super. 1, 7 (App. Div. 2013). Courts recognize the difficulty attorneys have in coordinating trial dates with the schedules of witnesses. As a result, a party is ordinarily entitled to an adjournment if a witness is unavailable for the first trial date, provided a timely request is made. R. 4:36-3(b).

In particular, we recognize the unusual difficulty in scheduling expert witnesses for trial. Nevertheless, acknowledging the need to balance this consideration against the "'strong interest that management of litigation, if it is to be effective, authority must lie ultimately with the trial court and not counsel trying the case,'" Leitner v. Toms River Reg'l Sch., 392 N.J. Super. 80, 89-90 (App. Div. 2007) (quoting Kosmowski v. Atl. City Med. Ctr., 175 N.J. 568, 574 (2003)) (internal quotation marks omitted). In order to minimize multiple adjournments for the same expert, the Rules provide that after the first adjournment for an expert witness, no further adjournment will be granted for that witness absent a showing of exceptional circumstances. R. 4:36-3(c). However, the witness may appear by videotape. Ibid.

See also Pressler & Verniero, Current N.J. Court Rules, comment 4 on R. 4:36-3 (2015) ("Because the cooperation or lack thereof by experts with trial schedules is so common a cause for multiple adjournments, the rule provides that if a prior adjournment request has been granted because of the inability of an expert to appear at trial, a second request based on the same expert's unavailability will not be granted. That expert must appear at the next scheduled trial either in person, by videotaped deposition . . . [or] by the reading to the jury of a de bene esse deposition provided all parties consent.").

Here, the trial court granted defendant's first request for an adjournment because of his medical expert's unavailability. In denying the second request, the judge determined the expert's decision to extend his vacation did not constitute an exceptional circumstance justifying a second adjournment. The judge contrasted the reason for Iulo's non-appearance with an unexpected illness or the need to be on emergency duty, which are "under no one's control." Furthermore, the judge noted defendant had ample time to ensure compliance with the Rule by securing Iulo's testimony on videotape. We agree.

In light of the documentary evidence citing Iulo's unavailability as the sole reason for requesting the first adjournment, the trial judge properly rejected defendant's subsequent attempt to argue it was also due to counsel's competing trial schedule. On appeal, defendant avers trial counsel sent a letter to the court notifying of an attorney conflict for the original trial date. No such letter is part of the record before us and, in the absence of any documentary support, we reject consideration of this assertion. --------

Although, as a general proposition, we abide by "'the salutary principle that the sins of the [expert] should not be visited on the blameless litigant,'" Kosmowski, supra, 175 N.J. at 574 (quoting Aujero v. Cirelli, 110 N.J. 566, 573 (1988)), we conclude the trial court did not abuse its discretion in denying defendant's second request for an adjournment. See Shalom Money St., supra, 432 N.J. Super. at 7. We further determine defendant's contention Rule 4:36-3(c)'s mandate must yield to Rule 1:1-2(a)'s provision for permissive relaxation of the Rules to prevent injustice lacks sufficient merit to warrant further discussion in a written opinion. R. 3:11-3(e)(1)(E).

We are similarly unpersuaded by defendant's challenge to the trial court's evidentiary rulings, which are generally "reviewed on appeal for abuse of discretion." State v. Rose, 206 N.J. 141, 157 (2011); see also Estate of Hanges v. Metro. Prop. & Cas. Ins. Co., 202 N.J. 369, 374 (2010) ("[O]rdinarily, an evidentiary determination made during trial is entitled to deference and is to be reversed only on a finding of an abuse of discretion[.]"). This standard applies equally to the issue of admissibility of expert testimony. See Townsend v. Pierre, 221 N.J. 36, 52 (2015).

Concerning the disputed portions of the expert's testimony concerning spinal fusion surgery, "[a]n expert's testimony at trial may be confined to the matters of opinion contained in his or her report. However, the logical predicates for and conclusions from statements made in the report are not foreclosed." Velazquez v. Jiminez, 336 N.J. Super. 10, 45 (App. Div. 2000) (citations and internal quotation marks omitted), aff'd, 172 N.J. 240 (2002). In his report, Gleimer concluded plaintiff sustained a permanent injury as a result of the accident. The trial judge admitted the portions of his videotaped testimony concerning the details of the surgery "for the purpose of evaluating whether there is a cure for what it is that [p]laintiff alleges . . . he suffers from," and instructed the jury accordingly. "We must assume that the jury faithfully followed that instruction." State v. Mays, 321 N.J. Super. 619, 633 (App. Div.), certif. denied, 162 N.J. 132 (1999). In light of the circumstances, we hold the judge did not abuse his discretion in admitting the testimony because it was a "logical predicate" to Gleimer's conclusion regarding permanent injury and therefore was not "foreclosed." Velazquez, supra, 336 N.J. Super. at 45.

Likewise, the trial court did not err in permitting, over defendant's objection, plaintiff's daughter to testify. "'Ordinarily, unnamed witnesses should be permitted to testify where the failure to supply their names in discovery was not the result of a design to mislead and there was no surprise or prejudice to the opposing party if the testimony were to be allowed.'" D.G. ex rel. J.G. v. N. Plainfield Bd. of Educ., 400 N.J. Super. 1, 21 (App. Div.) (quoting Brown v. Mortimer, 100 N.J. Super. 395, 401 (App. Div. 1968)), certif. denied, 196 N.J. 356, cert. denied, 555 U.S. 1085, 129 S. Ct. 776, 172 L. Ed. 2d 756 (2008). In response to defendant's interrogatory concerning potential witnesses, plaintiff provided his "family members" as well as those people identified in depositions. In his deposition, taken ten months before trial, plaintiff specifically provided the name and address for his daughter. Nothing in the record suggests plaintiff attempted to mislead defendant through his discovery responses or that defendant could have reasonably been surprised or prejudiced by the admission of the testimony. Therefore, we determine the trial judge did not err in permitting plaintiff's daughter to testify.

Finally, we reject defendant's argument the trial court erred in denying his motion for a new trial or, alternatively, remittitur, because the jury award was excessive. "[A]n appellate court only can reverse a trial judge's decision to deny a motion for [a] new trial where 'it clearly appears that there was a miscarriage of justice under the law.'" Jastram v. Kruse, 197 N.J. 216, 230 (2008) (quoting R. 2:10-1). In assessing defendant's request for remittitur, "we begin with the presumption that [the] verdict is correct," and "must also defer to the trial court[] and [its] firsthand feel of the case as it bears on an analysis of whether the jury's verdict was motivated by improper influences." He, supra, 207 N.J. at 249-50 (citation and internal quotation marks omitted). In light of our "enormous faith in the ability of juries to equate damages with dollars to make the plaintiff whole," we do not exercise the power of remittitur lightly. Id. at 248-49. Only where a jury award "shock[s] the judicial conscience" will we intervene. Johnson v. Scaccetti, 192 N.J. 256, 281 (2007).

Here, the trial court determined the jury award of $432,000, given plaintiff's life expectancy, equated to "$28 a day, $198 a week, [or] $10,000 a year." In light of these findings, we are not "clearly and convincingly persuaded that it would be manifestly unjust to sustain the award," and we decline to substitute our judgment for that of the jury. Ibid. (internal quotation marks omitted).

Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.