On appeal from the Superior Court of New Jersey, Somerset County, L-1241-05.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Parker and Seltzer.
Defendant, Ching Lung Wen, appeals from a July 11, 2006, judgment entered after a jury verdict in favor of plaintiff, Xiang Xu, in the amount of $95,675.13. We affirm.
The record reveals that plaintiff sued for injuries claimed to have been sustained as the result of a collision with defendant's motor vehicle. An unopposed motion for summary judgment resolved the liability issue in favor of plaintiff.
The damages trial began on June 19, 2006. Plaintiff's attorney opened to the jury by indicating that (2T9)
After this accident the defendant [was] seen walking around surveilling the damage. He doesn't even go over to Mr. Yu's car and ask him if he's okay.
Now, the reason why we're coming here today in trial and the reason why we're suing the defendant is because the defendant for the last three-and-a-half years since this accident has refused to accept responsibility for the harm that he's caused Mr. Yu.
There was no objection to these remarks. To the contrary, defense counsel responded in his opening statement that, "plaintiff's counsel was -- was wrong when she said to you that the defendant refused to acknowledge that he was at fault. He did. You're not being asked to rule on his liability. We have agreed that he's liable."
The evidence respecting plaintiff's injuries was a classic credibility contest. Dr. Barry Fass testified for plaintiff. He relied in part upon radiological reports of Dr. Ravindra V. Ginde. Although the fact of reliance was placed before the jury in answer to a passing question, Ginde was never identified by name. Fass opined that plaintiff suffered from a disc herniation and bulges and that his conclusions were consistent with those of Ginde. Fass explained that these conditions were not degenerative but were trauma related. Fass testified that two years post-accident plaintiff still suffered from loss of motion, muscular tightness, and spasm. The defense expert, Bernard A. Rineberg, disputed that testimony, asserting that the radiological studies were normal and demonstrated only degenerative, not traumatic, changes.
Immediately before summations, the defense called to the court's attention that he had discovered evidence that Ginde, the radiologist on whose report Dr. Fass relied, had once had his medical license suspended on "charges that he inaccurately interpreted MRIs." That information was discovered when defense counsel "reviewed a database last night." The documents that defendant had located included a consent order placing Ginde on probation for a three-year term under specified conditions. The trial judge ruled the documents were hearsay and that they were "somewhat stale too. It's the late '90's. Who knows what's happened in the interim?"
In summation, plaintiff returned to the theme of responsibility. Again there was no objection. Counsel confessed to the jury that he was nervous and said, "I still feel that we should get the truth without the fancy lawyer tricks. And I haven't learned those fancy lawyer tricks as yet." A defense objection was met with a comment from the court in front of the jury: "I'm not aware of what fancy lawyer tricks you have in mind, but -- so I'll just attribute it to your enthusiasm and the ...