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Hitchman v. Nagy

January 23, 2006

DORRETT HITCHMAN, PHYLLICIA BROWN, AN INFANT BY HER GUARDIAN AD LITEM PHYLLIS BROWN AND PHYLLIS BROWN, INDIVIDUALLY, AND PETE BROWN, HER HUSBAND PER QUOD, DENISE WILSON AND JAMES WILSON, HER HUSBAND PER QUOD, PLAINTIFFS-RESPONDENTS,
v.
ROBERT NAGY AND JOSEPH ABBOTT, DEFENDANTS-APPELLANTS.



On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Docket Number MID-L-007403-01.

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

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

APPROVED FOR PUBLICATION

Argued October 12, 2005

Before Judges Stern, Parker and Sapp-Peterson.

Defendants Robert Nagy and Joseph Abbott appeal from a pre-trial order entered on August 8, 2003, denying their motion for summary judgment; a judgment entered against them on March 1, 2004, after a jury trial; and a post-trial order entered on May 5, 2004, denying defendants' motion for a new trial or for judgment notwithstanding the verdict (J.N.O.V.) pursuant to R. 4:40-1 and -2.

Plaintiff and defendants were involved in an automobile accident on August 20, 1999. Plaintiff was diagnosed as having suffered disc herniations at C3-4, C4-5 and C5-6, along with straightening of the normal curvature of the cervical spine as a result of the accident. Apparently, there was no dispute that she suffered a permanent injury. The jury rendered a verdict in plaintiff's favor, awarding $100,000.

On February 27, 2004, defendants moved for a new trial or, alternatively, J.N.O.V. After hearing oral argument, the trial judge rendered a written decision denying the motion. An order memorializing the decision was entered on May 5, 2004. In this appeal defendants argue (1) their pre-trial motion for summary judgment should have been granted because plaintiff failed to satisfy the "serious impact" prong of Oswin v. Shaw, 129 N.J. 290 (1992); (2) the trial judge improperly injected racial issues into the jury selection process and prohibited defense counsel from using peremptory challenges; and (3) the trial judge improperly injected racial issues into the cross-examination of defendants' expert doctor.

I.

Defendants' first point may be disposed by virtue of the Supreme Court's decision in DiProspero v. Penn, 183 N.J. 477, 481 (2005), which held that the plain language of the Automobile Insurance Cost Reduction Act (AICRA), N.J.S.A. 39:6A-1.1 to -35 or 39:6A-8(a), does not contain a serious life impact standard and that a plaintiff need only demonstrate a permanent injury to satisfy the verbal threshold. We subsequently held that DiProspero afforded "pipeline retroactivity" to "all prejudgment matters pending in the trial courts and to those matters that are on direct appeal." Pungitore v. Brown, 379 N.J. Super. 165, 169 (App. Div. 2005); Beltran v. DeLima, 379 N.J. Super. 169, 176-77 (App. Div. 2005). Since this matter was pending appeal when DiProspero was decided by the Supreme Court, this argument is rendered moot. R. 2:8-2.

II.

The second issue on appeal arose during the course of jury selection. The jury pool included three African-American women. After exercising one peremptory challenge excusing a white male, defense counsel exercised a second challenge excusing an African-American woman. Immediately after defense counsel exercised the challenge, the following colloquy occurred between the court and defense counsel:

THE COURT: Juror number 7 . . . . [Defense counsel], let me see you at side bar. [Plaintiff's counsel], let me see you at side bar.

(Side Bar)

THE COURT: Just so that the record is clear, you've just excused the black juror. I have a black plaintiff. In order to protect the class, you've got to put on the record the reasons why you excused her.

[DEFENSE COUNSEL]: Your Honor, I excused her for the same reason that I excused the white male juror. Just struck me as a person who would be generous to the plaintiff.

THE COURT: How do you know that?

[DEFENSE COUNSEL]: I don't know that. I don't know if the white male would have been generous to the plaintiff or not.

THE COURT: You're going to have a better reason next time you excuse a member of a protected class, especially when it's a black juror and you have a black plaintiff. Just your own gut feeling is not going to be enough in my court room.

[DEFENSE COUNSEL]: Your Honor --

THE COURT: If there was something she said or something that had background that would point to that, that's fine, but just say -- just say --

[DEFENSE COUNSEL]: Your Honor, I would ask that you keep your voice down.

THE COURT: Pardon me?

[DEFENSE COUNSEL]: I would ask Your Honor that -- I think the people can hear what you're saying.

THE COURT: I don't think so, but I know you can hear it and you're not happy with it, but guess what, I don't like people who excuse black jurors in a situation where I have a black plaintiff because that leads to charges later on, counselor. Charges that are perhaps not founded.

That's why the case was decided the way it was, and that's why I ask you to put the reasons on the record and to tell me I think that she's going to be too generous is not enough for me. I need specific reasons based on the facts that you have on this juror.

[DEFENSE COUNSEL]: Beyond the fact that I believe, Your Honor, there has to be an indication of some kind of pattern before this kind of unfortunate accusation is made, she was a third grade teacher. The plaintiff works with children at the school -- at the religious school that she works at --

THE COURT: That's all you have to tell me. You see, now you're giving me a valid excuse.

[DEFENSE COUNSEL]: Your Honor, I'm very disturbed. I really am.

THE COURT: You should be. Just like I was disturbed when you gave the first reason, but when you give me that kind of a reason, now I can say absolutely correct. If the situation is she's a third grade teacher. The plaintiff is a teacher -- children, and therefore, there might be some kind of a situation there where there might be some --

I can understand that, but you have to give me some reasons, counselor.

[DEFENSE COUNSEL]: Well, Your Honor, I believe that this entire discussion is premature. There's two other black women --

THE COURT: It's never premature, counselor. ...


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