June 26, 2007
KATHLEEN BRADY, PLAINTIFF-RESPONDENT,
PETER T. TOMORY, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Sussex County, L-708-04.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued telephonically February 13, 2007
Before Judges Kestin and Payne.
Defendant, Peter T. Tomory, appeals from a post-verdict order granting a new trial in an action instituted by plaintiff Kathleen Brady and arising from an automobile collision occurring on January 17, 2003.
The matter was tried in July 2006. Following the three-day trial and lengthy deliberations, the jury returned a verdict finding defendant wholly liable for the accident, but additionally determining that plaintiff, who was subject to the limitation on lawsuit provisions of the Automobile Insurance Cost Reduction Act (AICRA), N.J.S.A. 39:6A-8a, had not proven that she sustained the permanent injury required for recovery of monetary damages for pain and suffering. Plaintiff thereupon moved for a new trial, arguing that the jury's verdict, which plaintiff claimed was influenced by the disclosure of her history of alcoholism, constituted a miscarriage of justice. Accepting plaintiff's argument, the trial court granted the motion. We granted defendant's subsequent motion for interlocutory appeal and now reverse.
At trial, plaintiff claimed that she sustained a cervical disk herniation at the C5-C6 level as the result of the accident, and that her activities had been severely curtailed as the result of continuing pain arising from irritation of nerves caused by the herniation. The defense countered plaintiff's claim by arguing that plaintiff, who was seventy-three years of age at the time of trial, suffered from longstanding osteoarthritis, and that the herniation pre-dated the accident. The defense also claimed that plaintiff's physical limitations arose from a hip fracture sustained on February 10, 2004, which was stabilized by use of pins, and required a second surgery in March 2005. Additionally, plaintiff underwent a total left knee replacement on August 26, 2004. Evidence suggested that plaintiff also had osteoarthritis in the right knee.
At trial, evidence was produced demonstrating that an x-ray taken on the day of the accident showed a narrowing of the disc space at the C5-C6 level, accompanied by degenerative changes. Additionally, a CT scan of the neck, performed that day, showed diffuse degenerative changes throughout the cervical spine. On January 28, 2003, eleven days after the accident, plaintiff consulted with orthopedic physician Dr. Koss, who was then treating plaintiff for her knee complaints. Dr. Koss's record of that office visit disclosed a diagnosis of severe osteoarthritis and degenerative disk disease of the cervical spine with acute cervical strain. The record also stated that plaintiff had reported prior problems with her neck, but did not specify the nature of those problems.
Dr. Koss ordered physical therapy, which plaintiff attended on a somewhat irregular basis for twelve treatments in the period from February 14, 2003 until April 2003, when plaintiff discharged herself from treatment after refusing to perform some of the suggested therapy and expressing dissatisfaction with her progress. Plaintiff then returned to Dr. Koss, who referred her to Dr. Dwyer, an orthopedic physician specializing in treatment of the spine. Dr. Dwyer ordered an MRI of plaintiff's cervical spine, which disclosed a disk herniation at the C5-C6 level. Defense expert, Dr. Levine, described the MRI films to the jury, stating:
[T]hese are not the clearest MRI pictures, but you can get the gist of what's going on in this patient's neck and you see something sticking out right here and that's cervical 5-6. . . . And the disk at that level is smooshed down, if I can use that non-medical term. It's narrowed, it's crushed, and that takes years to form, along with these big, bony spurs forward, as well as back into the spinal canal towards the spinal cord. Here it's almost touching the spinal cord, but it doesn't indent the spinal cord.
This big thing protruding out at C5-6 is mostly bony spurs and inside is disk material. I described it on my review as a spur/disk protrusion. And that takes years to form. It takes years for this to narrow.*fn1
Dr. Dwyer treated plaintiff's neck with two epidural injections of cortisone, the second of which plaintiff described as "fabulous." Although she claimed that the pain recurred after five to seven months, she had not received a third epidural injection.*fn2
During cross-examination of plaintiff, defense counsel sought to prove that plaintiff's neck condition did not cause significant pain or physical restriction by demonstrating that she did not complain about the condition when giving a history of her physical complaints to the multiple doctors that treated her for unrelated conditions after the accident on January 17, 2003. Counsel's cross-examination was compromised by plaintiff's inability to hear the questions asked of her and her exceedingly poor memory of medical consultations occurring after the automobile accident.
Counsel commenced this aspect of his examination by reviewing with plaintiff a report by her family physician, Dr. McGraw, to her hip surgeon, Dr. Bash, medically clearing her for her second hip surgery in March 2005. In that report, Dr. McGraw described an extensive medical history of chronic obstructive pulmonary disease, coronary artery disease, myocardial infection, hypertension, increased cholesterol, and total knee replacement, but made no mention of neck complaints. That evidence was followed by a chronological inquiry into the post-accident medical histories given by plaintiff to her treating physicians, commencing with plaintiff's treatment by a cardiologist, Dr. Watson, on July 16, 2003, because of increasing shortness of breath. When asked, plaintiff stated that she did not recall a Dr. Watson, and she testified further:
Well, the only thing I could think of, I had ammonia [sic] and he probably was the doctor in the hospital checking me out. That's the only thing I could think of. Watson?
The following colloquy between defense counsel and plaintiff then ensued:
Q: Ms. Brady, I show you two reports, the first one dated July 16th, 2003. You see that? You see the patient's name Kathleen Brady?
A: Yes, I do. Well, she's . . . an assistant to McGraw.
Q: Okay. And do you remember Michelle Clarise (phonetic) referring you to this Dr. Richard Watson back on that date?
Q: Okay. Do you remember experiencing increasing shortness of breath back on July 16th 2003?
A: I really don't.
Q: Well, do you remember seeking out or receiving any medical treatment back in July of 2003 because of a shortness of breath?
A: I want to read this first.
Q: Absolutely (Witness reviews exhibit.)
What she . . . is writing had a lot to do in Pennsylvania before I had my heart attack.
Q: Okay. And what you're referring to is the first paragraph . . . . And do you recognize that to be your medical history that you gave to this Dr. Watson back in July of 2003?
A: (Witness reviews exhibit.)
I probably went to her because I had a bad barnacle. That's the only thing I could think of.
Q: Well, when you say "her," I mean, I believe --
A: Michelle. Michelle.
Q: Okay. Michelle.
Q: But this report is authored by a Dr. Richard Watson, so a gentleman.
A: I don't know. I -- they could have sent me to the hospital for -- I don't remember, though.
Following this exchange, plaintiff contested the accuracy of Dr. Watson's statement, contained in his records, that her "activity is mainly limited by her de-conditioning, increased weight, and severe knee pain," while continuing to profess no knowledge of having been seen by that doctor. In further cross-examination regarding a second examination by Dr. Watson on August 27, 2003, plaintiff again stated that she did not recall a Dr. Watson, she denied being admitted to the hospital in July 2003 and seeing a cardiologist at the time, and she had no recollection of being advised to have a myocardial perfusion imaging study done, but being unable to do so because of her knee problems.
Counsel then returned to the subject of the medical history given by plaintiff, as reflected in Dr. Watson's records, and, after being advised by the court to ask specific questions as to what plaintiff recalled her medical history to have been at the time, the following exchange occurred:
Q: And back in July 2003, you had a past medical history of osteoarthritis of the knee, correct?
A: I had it for years, It's not only then.
Q: And there's also mention of a history of alcoholism here as part of your medical history?
A: Well, after my son passed away, I started drinking.
Q: Now, you see there's no mention here of any neck problems. It that because it was not part of your past medical history back in July of 2003?
A: I . . . didn't get that one. I'm sorry.
Q: Okay. You see, at least in these reports, there's no mention of any neck problems --
Q: -- herniations or any problems.
A: No, I never did.
Counsel for plaintiff raised no immediate objection to the reference to alcoholism. However, at the conclusion of cross-examination regarding the history given by plaintiff to Dr. Watson, plaintiff's attorney objected, as he had previously, to defense counsel's examination of plaintiff regarding statements given to a doctor whom she did not recall. During the course of an unrecorded sidebar discussion of this objection, the reference to alcoholism was apparently briefly raised and a mistrial was mentioned. However, no action was taken at the time. Cross examination then turned to other doctors that plaintiff had consulted after her accident, and whether their records contained any reference to a history of neck problems. None did.
At the conclusion of cross-examination, plaintiff's counsel requested a brief opportunity "to discuss that issue with my partner, the one that was raised before." After that discussion, the following exchange with the court occurred:
[PLAINTIFF'S COUNSEL]: We had that very quick sidebar with the Court regarding that issue of alcoholism. I've spoken with my client. As indicated, she had lost a child. She drank for a period of about four months. Never drank thereafter. My concern is that there's -- the jury is obviously going to be left with the impression that Ms. Brady is an alcoholic.
THE COURT: That's why we don't usually go into that. It has no bearing on the case, especially if she isn't an alcoholic.
[PLAINTIFF'S COUNSEL] So you mentioned to us the issue of a mistrial or the possibility of a mistrial. Of course, I'd rather not have a mistrial, but I want to preserve that issue and I don't know that the court will give me an opportunity to kind [of] have it both ways, so to speak.
Counsel then discussed the possibility of a curative instruction, and the court offered counsel the opportunity to address the circumstances of plaintiff's drinking on re-direct examination. The offer was accepted, and plaintiff testified to using alcohol as a "crutch" for two or three months after her son's death, "and that was it." She denied being an alcoholic, and no evidence of further misuse of alcohol was presented. Plaintiff's counsel again addressed the issue of plaintiff's alcoholism in his closing argument to the jury, stressing that the evidence was irrelevant to the issues being tried, and claiming that the reference by defense counsel to the subject had been meant to embarrass and humiliate the plaintiff.
During the charge conference, the judge indicated that she had conducted research regarding the statement at issue, and had determined not to call a mistrial. However, on two occasions, she offered to instruct the jury that no evidence existed of drinking on the day of the accident, and she requested that counsel "write a sentence or two, whatever [it] is you think is appropriate about that issue that I can put in the charge." Counsel did not proffer the requested curative instruction, and raised no objection to a charge that omitted any mention of the subject.
Following deliberations, the jury returned a verdict in which it answered "no" in response to the following question: "Has the plaintiff Kathleen Brady proven that she sustained permanent injuries that were proximately caused by this accident by a preponderance of the evidence?"
Plaintiff thereupon moved for a new trial. The trial judge granted that motion, stating:
The court is of the view that it erred in proceeding with the trial after the prejudicial alcoholism questioning, and the fact that plaintiff acquiesced by waiving her request for a new trial does not cure that error. A new trial may be granted where there has been a "miscarriage of justice under the law." Taking into consideration not only the tangible factors relative to the proofs in the record but also the intangible "feel of the case" from presiding over the trial, the court concludes that there is a significant possibility that the jury discredited the plaintiff and her credibility due to her prior alcoholism.
On appeal, defendant claims that plaintiff waived the right to a mistrial by not requesting it when plaintiff's history of alcoholism was disclosed to the jury, when plaintiff waived that relief at the conclusion of the plaintiff's cross-examination, and when that relief was not sought at the conclusion of the evidence. In support of that argument, defendant relies on the Supreme Court's decision in Maladowitz v. Coley, 47 N.J. 55 (1966), in which waiver was found to exist in factually analogous circumstances.
In her opinion granting a new trial, the judge in the present matter acknowledged the absence of objection at trial by plaintiff, and nonetheless concluded that she should have granted a mistrial sua sponte. When a judge acts sua sponte in this fashion, the "propriety of the mistrial depends upon the sound exercise of the court's discretion, to be utilized 'only in those situations which would otherwise result in manifest injustice.'" State v. Rechtschaffer, 70 N.J. 395, 406 (1976) (quoting State v. DiRienzo, 53 N.J. 360, 383 (1969)); see also R. 2:10-1 (applying standard of "miscarriage of justice under the law" to the grant of a new trial).
In reviewing a decision such as this, we owe deference to the trial judge's feel for the case. Lanzet v. Greenberg, 126 N.J. 168, 175 (1991). Nonetheless, "[j]ury 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), certif. denied, 186 N.J. 242 (2006). We perceive no such injustice to have been exhibited here as the result of the introduction by defense counsel of a single reference to a history of plaintiff's alcoholism -- a brief circumstance that plaintiff fully explained as having resulted from the untimely death of her only son.
In reaching this conclusion, we find no evidence of an attempt by defense counsel to prejudice the jury. Plaintiff was a difficult witness, and cross-examination was, as a consequence, an arduous process. At the time the reference at issue occurred, counsel was pursuing a proper line of inquiry regarding plaintiff's own description to various treating physicians of her post-accident physical condition in a successful effort to demonstrate that plaintiff failed to make any mention of her neck complaints, while specifically detailing multiple other physical ailments and conditions, some dating back many years. The inquiry itself was of considerable relevance to plaintiff's claim for damages arising out of the pain and suffering she allegedly sustained as the result of the accident. In this context, the reference to alcoholism served merely to illustrate one of the many conditions that plaintiff did, in fact, disclose, thereby highlighting the significance of the absence of any reference by plaintiff to her neck. While, in retrospect, it might have been preferable to omit that particular item from plaintiff's medical history, we cannot conclude, in light of the court's requirement of specific questions and the content of the document upon which cross-examination was being attempted, that the reference was made in bad faith.
Moreover, we do not discern the potential for prejudice that impelled the trial court to order a new trial in this matter. Clearly, the jury could not have determined that plaintiff was under the influence of alcohol at the time of the accident, since it found defendant to be fully responsible for its occurrence. Additionally, we perceive no basis for concluding that the jury would, somehow, be prejudiced against plaintiff because, for a short period of time, she resorted to alcohol as a crutch while coping with the emotional effects of her son's death. In this regard, the "mere possibility that evidence could be prejudicial does not justify its exclusion." State v. Swint, 328 N.J. Super. 236, 253 (App. Div.), certif. denied, 165 N.J. 492 (2000). That being the case, the same mere possibility cannot justifiably serve as a basis for a sua sponte mistrial declaration.
We note as well that the evidence in question related solely to the issue of pain and suffering and not to the issue of the existence of a permanent injury that was causally related to the accident. Having heard substantial evidence that plaintiff sustained a permanent injury in the form of a cervical herniation, but that the herniation was degenerative in nature and pre-existed the accident that was the subject of suit, the jury found against plaintiff on this point. It is unlikely that the jury's determination in this regard was premised on testimony by plaintiff or any determination by it that plaintiff lacked credibility. Plaintiff did not testify regarding the etiology of her neck complaints; she was incompetent as a lay person to do so. That evidence was derived from x-ray, CT scan and MRI reports, along with the testimony of defense expert Dr. Levine -- evidence that, by its nature, could not readily have been contaminated by a reference to plaintiff's transitory abuse of alcohol. Because the jury found no causal relationship between plaintiff's cervical herniation and the accident, it never addressed the question of damages for pain and suffering. Therefore, if the evidence of plaintiff's alcoholism raised doubts in the jury's mind regarding plaintiff's credibility, it is unlikely that those doubts ever came into play in the course of the jury's deliberations.
In sum, we perceive no injustice to have been occasioned by the court's failure to have granted a mistrial when the evidence of plaintiff's alcoholism was first presented to the jury and, for the reasons that we have stated, determine that the trial judge misused her discretion when, reconsidering the mistrial issue, she declared that relief to have been appropriate and granted a new trial.
As a consequence, we reverse the court's order for a new trial and reinstate the jury's verdict against plaintiff.