July 13, 2007
SUSAN A. LANE, PLAINTIFF-RESPONDENT,
BRIDGESTONE/FIRESTONE, INC. D/B/A MOORESTOWN FIRESTONE TIRE AND SERVICE CENTER AND CHRIS WALKER, DEFENDANTS-APPELLANTS.
On appeal from Superior Court of New Jersey, Law Division, Burlington County, Docket No. L-756-00.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued December 5, 2006
Before Judges Skillman, Lisa and Holston, Jr.
This is an appeal from an order, entered on May 5, 2005, which awarded Andres & Berger, P.C. $29,100 representing counsel fees and $7,650 representing out-of-pocket costs for the testimony of expert witnesses, based on a finding that comments of defendants' counsel in summation that resulted in a mistrial were made in bad faith.
The case in which this award of counsel fees and costs was made was a personal injury action. On March 28, 1998, plaintiff brought her car to the premises of defendant Bridgestone/ Firestone, Inc. d/b/a Moorestown Firestone Tire & Service Center (Bridgestone) for repairs to the brakes and servicing.*fn1 After shopping at a nearby mall, plaintiff returned to defendant's premises to pick-up her car. As she was backing the car out of a service bay, the brakes failed and plaintiff drove into a light post, which resulted in her suffering personal injuries.
The circumstances of the accident were disputed. According to plaintiff, one of defendant's employees told her they had completed the repairs to her car and returned the keys. According to defendant's employees, plaintiff took the car without permission from the service bay before the repairs had been completed.
The case was sharply contested as to both liability and damages. The primary issue regarding damages was whether the accident at defendant's premises was a proximate cause of the injuries to plaintiff's cervical spine, which required surgery in September 2000.
After defendant's summation, plaintiff moved for a mistrial on the ground that defendant's counsel had made improper comments in summation which misrepresented the evidence and impugned the integrity of plaintiff's counsel and were so prejudicial they could not be remedied by a curative instruction. Following extensive argument, the trial court granted plaintiff's motion and declared a mistrial. The court also indicated that it would entertain a motion by plaintiff's counsel for counsel fees and costs at a later date.
The case was subsequently retried. The jury found both parties to have been negligent and assigned 49% responsibility to defendant and 51% responsibility to plaintiff for the accident, as a result of which a judgment of no cause of action was returned in defendant's favor. No appeal was taken from this judgment.*fn2
After the retrial, plaintiff's counsel made a motion for counsel fees and the costs it had incurred for the testimony of expert witnesses at the first trial. At the argument on the motion, the court expanded upon its reasons for declaring a mistrial. The court also found that the improper comments by defendants' counsel that necessitated a mistrial were made in bad faith. The court stated that this finding was based on "the egregiousness of the comments" and the "experience" of defendants' counsel as a trial litigator. Consequently, the court granted the motion and awarded plaintiff's counsel $29,100 representing counsel fees and $7,650 representing out-of-pocket costs for the testimony of expert witnesses.
This State follows the "American Rule," under which each litigant generally bears responsibility for its own counsel fees. Dziubek v. Schumann, 275 N.J. Super. 428, 438 (App. Div. 1994). In accordance with this rule, a court ordinarily cannot award counsel fees against an opposing party or attorney unless such an award is authorized by statute, court rule, or contract. Ibid. Therefore, a court may not award counsel fees as a matter of course against a party or attorney whose conduct has precipitated a mistrial.
However, "[a] court has the inherent power in appropriate circumstances, to sanction an attorney, rather than the client, particularly when the attorney's improper conduct has resulted in additional costs to the adverse party or the judicial system." Pontidis v. Shavelli, 296 N.J. Super. 420, 424 (App. Div. 1997); see also Vargas v. A.H. Bull Steamship Co., 25 N.J. 293, 296 (1957), cert. denied, 355 U.S. 958, 78 S.Ct. 545, 2 L.Ed. 2d 534 (1958) ("Thus we find no error in conditioning the order of dismissal upon the payment of counsel fees. Allowance of fees in such circumstances is within the inherent power of the court; in effect they are but reimbursement for expenses."); Trieste, Inc. II v. Twp. of Gloucester, 215 N.J. Super. 184, 188 (App. Div. 1987) ("[A] court has inherent power to impose sanctions on litigants[.]").
"[T]he threshold for the use of inherent power sanctions is high." Dziubek, supra, 275 N.J. Super. at 440 (quoting Reed v. Iowa Marine & Repair Corp., 16 F.3d 82, 84 (5th Cir. 1994)). "[T]he imposition of such a sanction is generally not imposed under this power without a finding generally that the attorney's conduct constituted or was tantamount to bad faith." Ibid.
The trial court found that the improper comments in the summation of defendant's counsel were made in bad faith. A finding of bad faith is a factual findings. See Chestone v. Chestone, 322 N.J. Super. 250, 259 (App. Div. 1999). Consequently, as with any other factual finding by a trial court, we are required to defer to that finding if "supported by adequate, substantial and credible evidence." Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974). Thus, the determination of this appeal requires us to review each of the three comments in the summation of defendant's counsel that the trial court found to be improper and the court's finding of bad faith based on those comments.
The doctor who performed the surgery upon plaintiff's cervical spine was Dr. Elisabeth M. Post, a neuro-surgeon. Although Dr. Post testified at a discovery deposition conducted on October 14, 2002 that the cervical injury she performed surgery to correct was causally related to plaintiff's March 28, 1998 automobile accident, she later submitted a written report, dated April 3, 2003, which concluded that "[plaintiff's] herniated cervical discs were caused by an event unrelated to her accident." In another discovery deposition, Dr. Post again asserted that the cervical injury for which she performed surgery on plaintiff was causally related to the accident, and Dr. Post so testified in a videotaped de bene esse deposition shown to the jury at trial. At that deposition, defendant's counsel vigorously cross-examined Dr. Post concerning the inconsistency between her April 3, 2003 written report, finding that plaintiff's cervical injury was not caused by the accident, and her testimony for trial that there was such a causal relationship.
In his summation, defendant's counsel made the following comments regarding this inconsistency:
With respect to the opinion she gave on the connection between the neck operation and the accident, she changed her testimony on -- at the videotaped deposition.
She changed her opinion. She went from writing this to testifying to something else. She writes that the -- the neck problem from the surgery is not accident related. She comes in and she testifies that it's accident related.
What do you think happened before her doctor testifies, via videotape deposition, what do you think happened? You can just think about that. I mean, is there some preparation, or did they go in without any preparation? Is there a meeting, or did they just go on the screen without a meeting? Was there some pressure?
You can infer what you want. She diametrically, 180 degrees, changed that opinion. [Emphasis added.]
In concluding that this comment was highly improper, the trial court stated:
My view of that is, is that counsel was -- was very strongly implying that the plaintiff's attorney in meeting with Dr. Post was asking Dr. Post to commit perjury, and I think that's beyond the pale.
I think a perfectly acceptable closing would have been, Dr. Post's testimony is different than her report. You have to decide whether that's a legitimate difference -- whether she may have taken the -- or she's trying to help the plaintiff. That's a different comment than saying, they, like it's a team, meet; they do this; was there some pressure? I don't think it's a problem if one comments on the change of opinion by a medical -- by any expert -- by any witness, by an expert. Okay.
I think the problem is when you -- when you want a jury to conclude that the attorney and the doctor are in cahoots because it's that attorney who's going to stand up right after you, in this sequence, who's going to be trying to impress the jury with the sincerity of his efforts and his client's claim. . . . [T]o try to have a jury see that visualization that this doctor was nothing more than the puppet of the plaintiff's attorney and that the plaintiff's attorney is trying to get them to change a position just before the testimony under oath, I think that goes beyond the pale.
The second improper comment found by the trial court in the summation of defendant's counsel related to the testimony of Dr. Leonard Strobel, a family practitioner to whom plaintiff was referred by her former counsel, Michael Cascio, approximately two weeks after the accident. Dr. Strobel testified at trial that there was a causal relationship between plaintiff's accident and not only her cervical injury but also another condition called thoracic outward syndrome. Plaintiff's trial counsel, Kenneth Andres, brought out during his direct examination of Dr. Strobel that he had a long-standing professional and social relationship with Dr. Strobel and had been a guest on his boat. In his summation, defendant's counsel commented:
One opinion that [Dr. Post] did not change was the thoracic outward syndrome.
[Co-counsel for defendant] asked her, "Okay, would you also agree that in your April 3rd, 2003 report, you state that her thoracic outward syndrome was not accident related? Yes. Are you still of that opinion, Doctor? Yes."
So that opinion did not change. And that is why we heard from Dr. Strobel and Dr. Gleimer.
Dr. Strobel, the doctor that invites plaintiff's Counsel on to his boat, either for business reasons or social reasons. What would business reasons be?
One, referrals from plaintiff's lawyers. Is that what business reasons mean, or social reasons, they're friends?
It's not clear. But that's why Dr. Strobel was in the case because this doctor did not give the plaintiff everything she wanted in the case.
In concluding that this comment was improper, the court stated:
Well, that's a factual misrepresentation, because [Dr. Strobel] was in the case before Mr. Andres took over the case. Mr. Cascio had the case -- Mr. Cascio referred the plaintiff, and it became very clear in the trial, which is fine. . . .
Dr. Strobel was not in the case because Dr. Post did not give the plaintiff everything she wanted in the case. Dr. Strobel was in the case because Mr. Cascio sent the plaintiff to Dr. Strobel.
The third comment in the summation of defendants' counsel that the trial court found to be improper asserted that plaintiff's counsel knew his client's testimony was not believable:
Ladies and gentlemen, I submit to you that my very able opponent here is gonna say some things to you when I sit down because he knows his client's story is not believable. It's a very hard to sell. He's gonna try to do -- he's gonna try to make some arguments to overcome that.
And I ask you, be weary. Listen carefully, use your -- your reasoning powers to analyze what he's trying to do here.
His client came in with a version. The version was locked down at deposition. It can only change so much.
Is Mr. Andres trying this case on his client's version, or is he gonna try to construct some different factual scenarios that might play a little better? I submit to you that you can't have it both ways. (Emphasis added.)
In concluding that these comments were highly improper, the court stated:
I think it's improper at any time in any closing for an attorney to say that the other attorney doesn't believe in the case. That in and of itself to me is grounds for a mistrial.
. . . [T]o imply that the plaintiff's counsel doesn't believe in his client's position, and, therefore, is coming up with a new theory, to me is beyond the pale.
The trial court not only concluded that these comments in the summation of defendant's counsel were improper but also found that they were made in bad faith.
You're one of the most prepared attorneys I've had try a case before me in the four and a half years I've been a Judge, and I don't think anything is inadvertent in this matter.
I believe that you knew what you were doing and that you assumed that the worst possible result was a cautionary instruction.
It's not coincidental that these three areas were attacks on Mr. Andres. In two of them, maybe you didn't mean to say construct a factual scenario, although I find it hard to believe you didn't. But the point I'm making is, you intended to attack Mr. Andres and when you intend to do that, it's bad faith not to know exactly what words you're going to choose.
We agree with the trial court's conclusion that the comments of defendants' counsel in summation that precipitated a mistrial and award of counsel fees, especially the insinuation that plaintiff's counsel had pressured Dr. Post to change her testimony and that plaintiff's counsel knew his client's testimony was unbelievable, were highly improper. We also conclude that the trial court's finding that those comments were made in bad faith is adequately supported by the record and that the court did not abuse its discretion in awarding plaintiff's counsel the counsel fees and costs he had to incur as a result of the retrial necessitated by the declaration of a mistrial.
The common thread in the comments upon which the court based the declaration of a mistrial and award of counsel fees was that they impugned the integrity of plaintiff's counsel. Our cases have repeatedly expressed disapproval of comments in summation that improperly attack the integrity of opposing counsel. See, e.g., State v. Smith, 167 N.J. 158, 177-78 (2001); State v. Rose, 112 N.J. 454, 518-19 (1988); Rodd v. Raritan Radiology Assocs., P.A., 373 N.J. Super. 154, 171 (App. Div. 2004); Geler v. Akawie, 358 N.J. Super. 437, 467-68 (App. Div.), certif. denied, 177 N.J. 223 (2003); Henker v. Preybylowski, 216 N.J. Super. 513, 518-19 (App. Div. 1987); Tabor v. O'Grady, 59 N.J. Super. 330, 340-41 (App. Div. 1960). The insinuation of defendant's counsel that plaintiff's counsel had pressured Dr. Post to change her testimony was clearly improper. Defendant was entitled to attack Dr. Post's credibility on the basis of the inconsistency between her testimony at the de bene deposition and her April 3, 2003 written report on the issue of the causal relationship between the March 28, 1998 accident and the injury that required spinal surgery two years later. However, there was no evidence that could support an inference that plaintiff's counsel had pressured Dr. Post to change her testimony, and the insinuation that he had constituted an improper attack on his professional integrity.
The statement of defendant's counsel in his summation that "he [plaintiff's counsel] knows his client's story is not believable" and that he is going to "try to construct some different factual scenarios that might play a little better" was even more clearly improper. The belief of opposing counsel in the truthfulness of his client's testimony is irrelevant, and the assertion opposing counsel will "construct" a different version of the facts suggested ethical impropriety that is unsupported by the record and inappropriate.
Defendant relies upon the statement in Colucci v. Oppenheim, 326 N.J. Super. 166, 177 (App. Div. 1999) that "[c]counsel may argue from the evidence any conclusion which a jury is free to reach . . . even if the inferences that the jury is asked to make are improbable, perhaps logical, erroneous or even absurd[.]" However, Colucci also recognizes that counsel's comments must be "confined to the facts shown or reasonably suggested by the evidence introduced during the course of trial[,]" and that they may not be "couched in language transcending the bounds of legitimate argument[.]" Ibid. There was no evidence that plaintiff's counsel had pressured Dr. Post to change her testimony and the assertion of defendant's counsel that plaintiff's counsel knew his client's testimony was unbelievable was not a legitimate form of argument.
Finally, the same inherent power of a court to award counsel fees for improper comments in summation made in bad faith also supports the trial court's award of counsel's out-of-pocket costs for the testimony of expert witnesses at the trial that was mistried. See Fagas v. Scott, 251 N.J. Super. 169, 199-200 (Law Div. 1991).