On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-404-04.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Parrillo and Sapp-Peterson.
In this automobile negligence lawsuit, plaintiff Danielle Paradowski appeals from entry of judgment in favor of defendant Evelyn Reid after a jury verdict of no-cause of action, and from denial of plaintiff's motion for a new trial. We affirm.
Defendant rear-ended plaintiff's vehicle on April 18, 2002,*fn1 stipulated to liability, and proceeded to a damages trial based on plaintiff's claim of "permanent injury" under the verbal threshold, N.J.S.A. 39:6A-8, due to cervical and lumbosacral disc herniations her doctor causally related to the car accident. Prior to trial, the court granted plaintiff's in limine motion barring defendant's biomechanical expert from testifying. Specifically, the court found that the expert's opinion that the force imparted to plaintiff's body in the collision was insufficient to cause the injuries of which plaintiff complained was a net opinion and therefore inadmissible. The court, however, denied plaintiff's other in limine motion, based on Brenman v. Demello, 383 N.J. Super. 521 (App. Div.), rev'd, ___ N.J. ___ (2007), seeking to bar "severity of impact" references at trial.
Consequently, in their respective opening statements, plaintiff's counsel was the first to introduce the notion of the nature of the impact and lack of property damage, by stating to the jury:
Well, you're going to hear evidence about what happened to Danielle . . . . [Y]ou will hear how the force of that impact, irrespective to the damage done or lack of damage done to either vehicle threw her like a rag doll . . . .
Defense counsel, in her opening, responded in kind, arguing that:
You are going to hear testimony as to the severity of the impact, and the injuries that -- the alleged injuries as a result. The impact actually was -- that was so minor, that the police weren't even called to the scene. In fact, plaintiff didn't report this accident to the police until six days later.
The evidence is going to show you that in all reality it was a tap. The evidence will also show that plaintiff was involved in a prior motor vehicle accident wherein she injured her neck and back, and received treatment.
On direct examination, plaintiff testified as to the nature of the impact, explaining that her body jerked "back and forward" "like a rag doll." Following up on plaintiff's characterization, defense counsel asked plaintiff on cross-examination "I guess the seatbelt didn't work, did it?" The court sustained opposing counsel's objection and instructed the jury to disregard the comment. The court also sustained the objection to defense counsel's comment "[s]o the back of your vehicle must have been totaled?", in response to plaintiff's confirmation, on cross, of her earlier deposition testimony that the impact was "medium to heavy." When asked about property damage, plaintiff said "there was damage to the bumper." Defense counsel then showed plaintiff photographs depicting two nicks on the bumper and asked her if the photos fairly and accurately depicted the damage to plaintiff's car, to which plaintiff responded "I don't recall." The court sustained counsel's objection to the photos, which were apparently taken after plaintiff's bumper cover had been replaced, and therefore were never admitted into evidence. Nor were any estimates of property damage or invoices even proffered, let alone introduced into evidence. Finally, when defense counsel asked plaintiff whether the property damage was less than $1000, the court again sustained the objection and instructed the jury not to consider any reference to property damage.
At the close of evidence and prior to summations, the court cautioned both counsel not to mention the nature of impact in closing statements. Despite this directive, plaintiff's counsel in summation used the word "smashed" to describe the rear-end hit and to suggest the causative correlation:
There is no other cause of these injuries in this case. There is no other evidence of trauma. There's no other evidence of pre-accident symptoms. There's no evidence of limitation. This can be linked directly to April 18, 2002 when defendant Reid carelessly smashed ...