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Persley v. New Jersey Transit Bus Operations

January 17, 2003

KEVIN T. PERSLEY, PLAINTIFF-APPELLANT,
v.
NEW JERSEY TRANSIT BUS OPERATIONS AND GABE BARRENTINE, DEFENDANTS-RESPONDENTS.



On appeal from Superior Court of New Jersey, Law Division, Morris County, L-524-99. Arthur J. Russo argued the cause for appellant.

Before Judges Wefing, Wecker and Lisa.

The opinion of the court was delivered by: Lisa, J.A.D.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued October 17, 2002

Plaintiff, Kevin T. Persley, appeals from a judgment entered on a jury verdict awarding him no damages in this personal injury action where liability was conceded by defendants, New Jersey Transit Bus Operations, Inc. and Gabe Barrentine. On appeal, plaintiff argues the trial judge committed reversible error by permitting a video presentation to the jury of a computer-generated simulation of the accident. He further argues he was denied a fair trial because the trial judge (1) improperly curtailed his cross-examination of certain defense experts, (2) allowed defense counsel to pose improper questions in cross-examining him, (3) refused to permit plaintiff to present certain rebuttal testimony, and (4) allowed the defense to utilize certain inadmissible evidence and make improper arguments. We reject these arguments and affirm.

I.

On May 17, 1990, plaintiff was a passenger in defendants' bus, commuting to work in New York City. According to the bus driver, Barrentine, while traveling on Route 80, he slowed the bus to thirty-five to forty miles per hour when it began to drizzle. When a car spun out approximately two car lengths in front of the bus, Barrentine applied his brakes, but was unable to stop before colliding with the rear-end of the car in front of him, operated by James Marquis. Barrentine immediately inquired whether any passengers were injured, with no response. The police soon arrived, and again no passengers reported injuries. All passengers, including plaintiff, were loaded onto a replacement bus and continued to their destination. The impact was at a low velocity. Marquis' car was stopped when it was struck by the bus, and was pushed forward only about one to two feet. It sustained only minor damage to the rear bumper.

The trunk did not pop open, and there was no damage to the sides. The bus incurred no damage. Both vehicles were driveable. According to the unrefuted testimony of defendants' accident reconstruction expert, the speed of the bus at impact was six miles per hour.

Plaintiff was asleep just prior to the accident. He described the events as follows: He recalled waking up as his body was being thrown forward and flinging up his hands in an unsuccessful attempt to prevent his head from striking the metal handle on the seat in front of him. As his hands and the left side of his head, including his left eye area, struck the handle, plaintiff heard a pop, saw a bright light and lost consciousness. While he quickly regained consciousness, he remained dazed and confused. Although disoriented, plaintiff managed to board the new bus without incident and did not report the problems he was having because he thought he would soon feel better. Once on the new bus, however, his hands started to shake uncontrollably and, upon arriving in New York, he immediately located a pay phone and called his longtime chiropractor, Dr. Hellender, who specialized in headache relief. After scheduling an appointment for that same day, he called in sick to work and returned to New Jersey.

According to plaintiff, as a result of the accident, he sustained: (1) disc herniations in his cervical and lumbar spine which were treated with surgery in 1996 and 1997, but which left him with periodic back pain which sometimes spreads down his arms and legs; (2) continuous migraine headaches; (3) a retinal tear in his left eye, which was repaired in 1991; (4) a permanent brain injury which left him with intermittent vertical jumping (a vision impairment), balance problems and considerable neurological deficits; (5) hearing loss and tinnitus; (6) an injury to his temporal mandibular joint, requiring the permanent usage of an orthodontic device; and (7) bilateral carpal tunnel syndrome, which was treated with surgery but ultimately returned. He treated with numerous doctors. Plaintiff reported that, due to his ongoing problems, and after being fired from several sales jobs for lack of production, he finally stopped working in May 1998. He stated he takes ten or eleven medications on a regular basis and no longer enjoys life or has any goals.

On May 29, 1986, plaintiff was rear-ended by a small pickup truck while stopped at a traffic light, with sufficient force to push his car sixty feet. As a result, he obtained treatment for neck stiffness and pain, lower back pain, "rubber band" headaches, dizziness, blurred vision, and numbness and tingling in his hands. Plaintiff also acknowledged receiving treatment for many of these same symptoms prior to the 1986 accident, as far back as 1984. Although plaintiff asserted his chiropractor, Dr. Joseph Tuzzeo, discharged him pain and symptom free a year after the 1986 accident, he admitted that: (1) he had been told that his headaches were chronic and would continue; (2) he subsequently returned to Tuzzeo complaining of vertigo, blurred vision, neck pain, stiffness and trembling in his hands; (3) he consulted with at least five doctors between late 1987 and early 1990 complaining of persistent neck pain, chronic headaches, dizziness and trouble with his vision; and (4) in connection with the lawsuit he filed following the 1986 accident, he executed a certification dated July 1990 in which he represented he had been advised he would have headaches for the rest of his life as a result of the 1986 accident.

Plaintiff was involved in a third automobile accident on November 10, 1993, when a seventeen-year-old driving an old car in the wrong direction across a parking lot rammed into the side of his car. Plaintiff acknowledged he had increased neck and back pain from this accident, but contends it lasted only about two weeks, after which he returned to his condition before that accident. Plaintiff complained of severe back pain and left the scene in an ambulance. However, plaintiff reported that none of his treating physicians felt he sustained any new injury and he decided not to sue the driver responsible for the accident.

The trial of the case before us spanned three weeks. Both sides called numerous medical experts, specializing in fields including dentistry, neurology, opthamology, neuropsychiatry, orthopedics, ear, nose and throat, and rehabilitation and pain management. Plaintiff also called an expert in speech and language pathology and a psychological-vocational expert. We need not recount the conflicting testimony and opinions of these experts because the substantive aspects of their testimony is not a basis of the appeal. Nor is it contended the verdict is against the weight of the evidence. Rather, plaintiff contends that the trial was conducted unfairly, with the trial judge improperly injecting himself into the trial, improperly curtailing his ability to cross-examine defense witnesses, allowing defendant's counsel to utilize improper cross-examination techniques on him, and allowing defendants to utilize inadmissible evidence and make improper arguments. We can summarize the medical opinions by noting that plaintiff's doctors opined that his complained-of conditions were caused by the May 17, 1990 accident. Defendants' doctors, on the other hand, opined that plaintiff suffered no substantial injury, that either the injuries did not exist or they were not caused by the May 17, 1990 accident, and that plaintiff was a malingerer who was grossly exaggerating his complaints.

Dr. Wayne Nolte, an engineer, testified on behalf of the defense as an accident reconstruction expert. Nolte gathered data regarding the size and weight of the bus and the Marquis car, the damage to the Marquis car, plaintiff's height, weight, position in the bus and recollection of the accident, and the dimensions of the seat on which plaintiff was sitting and the location of the handle he struck. Nolte also reviewed: (1) Barrentine's deposition testimony that he was traveling at only thirty to forty miles per hour when the spin-out happened, that he pumped his brakes and did not skid, and that the entire sequence of events took place within three to four seconds; and (2) Marquis' deposition testimony that he was stopped for four to six seconds before the bus struck him and that his car moved forward only one to two feet upon impact.

Assuming the bus was traveling at forty miles per hour at the time the spin-out occurred, and the collision occurred four seconds later, Nolte determined the bus struck the car at six miles per hour. He further determined that, as the bus decelerated, plaintiff's head moved forward at a speed of 3.6 inches per second. Nolte furnished all of this information to an animator and instructed him to prepare a simulation depicting the movement of plaintiff's body during the four-second period leading up to the impact. Nolte later reviewed the finished animation to confirm its accuracy.

Nolte conceded that, because he was not a biomechanical engineer, he could not say, nor was the animation intended to depict, the force with which plaintiff's head struck the seat in front of him. Nolte further acknowledged that, if the various factors he used in his calculations, such as the speed of the bus, were not accurate, the video would not be an accurate representation of the movement of plaintiff's body. The four-second animation was shown to the jury first in real time, and then in slow motion over the course of sixteen seconds.

Although Nolte insisted that his animation was accurate, he admitted that: (1) there was deposition testimony from Marquis that he and all of the traffic around him was traveling at 55 miles per hour at the time of the spin-out; (2) at the time of the accident, Barrentine had reported to the responding police officer that he braked and slid into the car in front of him; and (3) Barrentine had not been certain that the accident occurred over the course of four seconds. Nolte additionally conceded that the animation did not depict the effect on plaintiff's body of Barrentine's admitted swerving just prior to the accident.

II.

Plaintiff contends he is entitled to a new trial because of the trial judge's improper curtailment of his cross-examination of four medical expert witnesses and Dr. Nolte. According to plaintiff, not only was he denied the right to properly cross- examine these witnesses, but the judge's actions and remarks in this regard revealed the judge's disdain for plaintiff's counsel and his disbelief in the merits of plaintiff's case.

The conduct of a trial, including cross-examination and its appropriate limits, is within the discretion of the trial court. Casino Reinvestment Dev. Auth. v. Lustgarten, 332 N.J. Super. 472, 492 (App. Div.), certif. denied, 165 N.J. 607 (2000); see also N.J.R.E. 611(b). Exercise of that discretion is ordinarily not interfered with unless there is a clear abuse of discretion which has deprived a party of a fair trial. Daisey v. Keene Corp., 268 N.J. Super. 325, 334 (App. Div. 1993).

Although great latitude is given to a trial court in the conduct of a trial, there are bounds within which the judge must stay. Mercer v. Weyerhaeuser Co., 324 N.J. Super. 290, 298 (App. Div. 1999). A judge must "conduct the trial in a fair and impartial manner, without making remarks that might prejudice a party or which are calculated to influence the minds of the jury." Cestero v. Ferrara, 110 N.J. Super. 264, 273 (App. Div. 1970), aff'd, 57 N.J. 497 (1971). A judge should never unfairly criticize or humiliate counsel, especially in front of the jury. Mercer v. Weyerhaeuser Co., supra, 324 N.J. Super. at 298. A judge's failure to abide by these guidelines "can easily prejudice a jury since it conveys the opinion of the judge as to his belief or disbelief in one side of the case." State v. Zwillman, 112 N.J. Super. 6, 21 (App. Div. 1970), certif. denied, 57 N.J. 603 (1971). Alleged misconduct by a trial judge must be reviewed within the context of the entire record in order to determine its prejudicial impact. Mercer v. Weyerhaeuser Co., supra, 324 N.J. Super. at 298.

Plaintiff complains of the trial judge's rulings and demeanor in cross-examination by his counsel of Doctors Kutner (neuropsychiatrist), Heller (orthopedist), Rothman (neurologist), and Liva (opthamologist). From our review of the record, we are satisfied the trial judge did not abuse his discretion. The recurring problem that arose during cross- examination of these witnesses involved the attempts by plaintiff's counsel to read favorable portions of reports from plaintiff's doctors under the guise of posing questions to defendants' doctors. This was after the defense doctors testified they had reviewed the plaintiff's doctor's report and it did not change their opinions. Upon objections being made, the trial judge admonished plaintiff's counsel at sidebar conferences to refrain from this practice. When counsel persisted, the judge did admonish him in the presence of the jury. To a lesser extent, plaintiff points to instances where the judge admonished his attorney in the jury's presence for asking repetitive questions and questions regarding matters not in dispute.

In the overall context of this lengthy trial we are not persuaded that these incidents, individually or collectively, deprived plaintiff of a fair trial. We agree with the trial judge's rulings substantively, and we do not detect in the judge's demeanor any pervasive criticism of plaintiff's counsel or undermining of plaintiff's case. We note that the judge sustained and overruled many objections made by both sides throughout the trial. We are convinced he conducted the trial evenhandedly. Contrary to plaintiff's suggestion, the judge's conduct and remarks here pale in comparison to the numerous "intemperate rebukes" of counsel and insulting asides to the jury in Mercer v. Weyerhaeuser Co., supra, where the trial judge frequently "telegraphed to the jury that he had little respect for defense counsel's legal acumen and trial skills" and "create[d] the impression that she did not know what she was doing." 324 N.J. Super. at 313, 314, 315.

Plaintiff contends the trial judge improperly interfered with his cross-examination of Nolte as follows:

[Plaintiff's counsel]: Okay. Well, let's talk about first the speed. Did you look at Mr. Marquis' deposition as to what he indicated the speed of ...


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