July 17, 2007
XIANG YU, PLAINTIFF-RESPONDENT,
CHING LUNG WEN, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Somerset County, L-1241-05.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued June 26, 2007
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 jury will handle it I'm sure appropriately." The jury then returned a verdict of $90,000 molded to $95,675.13 by the judge.
On appeal, defendant presents the following arguments for our consideration:
THE COURT ERRED IN DENYING ADMISSION INTO EVIDENCE OF DR. GINDE'S DISCIPLINARY RECORD WHICH WAS HARMFUL ERROR.
THE DISPARAGING REMARKS OF PLAINTIFF'S COUNSEL ABOUT PLAINTIFF AND DEFENSE COUNSEL CREATED AN ADDITIONAL CUMULATIVE BASIS FOR A NEW TRIAL.
THE JURY VERDICT OF $90,000 FOR PAIN AND SUFFERING WAS EXCESSIVE AND SHOULD BE ADVERSE [sic] AND A NEW TRIAL GRANTED.
DEFENDANT WEN WAS ENTITLED TO JUDGMENT NOTWITHSTANDING THE VERDICT.
THE COMBINATION OF ERRORS AND UNFAIRNESS SUPPORTED A NEW TRIAL.
Our review of the record convinces us that none of the arguments raised by defendant warrant discussion in a written opinion.
R. 2:11-3(e)(1)(B), (E). Nevertheless, we add the following brief comments.
Plaintiff's comments as to defendant's failure to accept responsibility were clearly improper. Whether defendant accepted the responsibility for the accident and questioned the quantum of damages sought by the plaintiff or simply required plaintiff to prove an entitlement to damages has no logical connection with the injuries sustained by plaintiff. It had the clear capacity to suggest to the jury that defendant's failure to resolve the matter with plaintiff justified a punishment of defendant rather than compensation to plaintiff.
Nevertheless, defendant did not object to the comments and elected instead to portray himself sympathetically by arguing to the jury that he had, in fact, accepted responsibility. The tactical decision to treat the matter this way, rather than make a timely objection that would allow the court to provide a prompt instruction to cure plaintiff's counsel's misstep, precludes defendant from seeking some remedy when his tactics failed to work. R. 1:7-2; State v. Chew, 150 N.J. 30, 82 (1997), cert. denied, 528 U.S. 1052, 120 S.Ct. 593, 145 L.Ed. 2d 493 (1999); Bradford v. Kupper Assocs., 283 N.J. Super. 556, 573-74 (App. Div. 1995).
Similarly, counsel's comment with respect to the "lawyer tricks" of the defendant was met by the judge's comment that, in the context of the entire trial, was appropriate and adequate to cure any prejudice that might have resulted otherwise. See Fertile v. St. Michael's Med. Ctr., 169 N.J. 481, 496 (2001) (noting the effectiveness of a curative instruction); Mahoney v. Podolnick, 168 N.J. 202, 222 (2001) (noting the ability of jurors to follow curative instructions).
Defendant's last-minute attempt to produce documentary evidence relating to Chang's suspension was, in our view, appropriately rebuffed by the trial court. The documents were hearsay evidence and required an evidential exception to the hearsay rule. Defendant now suggests that admission of the documents was authorized by N.J.R.E. 803(c)(6) (excepting business records from the prohibition against hearsay), N.J.R.E. 803(c)(8) (excepting public records, reports, and findings from prohibition against hearsay), and N.J.R.E. 806 (excepting a hearsay statement used to attack the credibility of a declarant whose hearsay statement has been admitted from prohibition against hearsay). None of these bases were suggested to the trial judge and no specific request was made to admit the documents or use them in any particular manner. Because these arguments were not raised in the trial court, we need not consider them here for the first time. See Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973) (noting that arguments not made to the trial court may not be raised on appeal). For the sake of completeness, we consider the arguments nevertheless.
Even if the records constituted a business record within the meaning of N.J.R.E. 803(c)(6), the conditions of admissibility were not met. There was simply no way of knowing, especially at that late moment, whether the document was what it purported to be. See N.J.R.E. 901. As to N.J.R.E. 803(c)(8), the judge quite properly might have exercised the discretion vested in him by N.J.R.E. 807 to exclude the evidence because the intent to offer it had not been made known to plaintiff. Finally, the judge's comment respecting the age of the proffered evidence clearly suggests a determination that the probative value of the evidence was outweighed by the possible prejudice, justifying a refusal to admit the document under N.J.R.E. 806. See N.J.R.E. 403. In any event, the decision to admit or exclude evidence is discretionary and "a trial court is afforded 'considerable latitude regarding the admission of evidence,' and is to be reversed only if the court abused its discretion." State v. Nelson, 173 N.J. 417, 470 (2002) (quoting State v. Feaster, 156 N.J. 1, 82 (1998)), cert. denied sub nom. Kenney v. New Jersey, 532 U.S. 932, 121 S.Ct. 1380, 149 L.Ed. 2d 306 (2001). Finally, the jury's evaluation of plaintiff's injury was not "so disproportionate to the injury and resulting disability shown as to shock [the judicial] conscience . . . ." Baxter v. Fairmount Food Co., 74 N.J. 588, 596 (1977); Sweeney v. Pruyne, 67 N.J. 314, 315 (1975)). The verdict is supported by sufficient credible evidence in the record. R. 2:11-3(e)(1)(B).
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