On appeal from the Superior Court of New Jersey, Law Division, Union County, L-1252-04.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Parrillo and Sapp-Peterson.
Plaintiff Rosa V. Diaz appeals from a jury verdict of no cause based upon her failure to prove she sustained a permanent injury within the meaning of the verbal threshold provisions of the Automobile Insurance Cost Reduction Act (AICRA), N.J.S.A. 39:6A-8(a). On appeal, plaintiff claims the trial court erred when it (1) permitted defense counsel to argue that the jury should draw an adverse inference from the non-appearance of plaintiff's treating physician and charged the jury on the witness' non-appearance, (2) permitted defendant to reopen his case to present proof that he was operating a passenger vehicle, and (3) limited plaintiff's ability to demonstrate the extent of the defense expert's bias and prejudice evidenced by his personal relationship with defense counsel's firm. Having reviewed the record and applied the applicable law, we reject all of plaintiff's arguments and affirm.
The case was tried over three days, at the end of which the jury, by a seven-to-one vote, found defendant one hundred percent liable for the accident. The jury, by unanimous vote, also found that plaintiff, who was subject to the verbal threshold, failed to prove that she had sustained a permanent injury.
Plaintiff's claims arise out of a motor vehicle accident that occurred on April 7, 2003. At the time, plaintiff was the operator of a motor vehicle that was stopped at a traffic light in Watchung when she was rear-ended by a vehicle operated by defendant resulting in injuries to her neck, chest, and shoulders.
Fifteen days after the accident, plaintiff commenced treatment for her injuries with a chiropractor, Dr. Joseph D'Agostini. At trial, however, plaintiff did not call Dr. D'Agostini as a witness. Instead, she produced one expert witness, Dr. David Wolkstein, an orthopedic surgeon, who first examined plaintiff for her accident-related injuries in 2005.
Prior to opening statements, defense counsel objected to plaintiff's counsel offering any explanation to the jury as to why Dr. D'Agostini would not be produced as a witness. The court ruled that neither party could comment about the doctor's non-appearance in their opening statements.
Just prior to the testimony of Dr. Wolkstein, plaintiff's counsel requested that he be permitted to elicit from the doctor the fact that plaintiff was examined at his request because Dr. D'Agostini was unavailable to come to court. Defense counsel objected, arguing that any testimony from Dr. Wolkstein as to why Dr. D'Agostini would not appear was hearsay. The court agreed, but at that time also advised defense counsel that he would not be permitted to comment on the doctor's non-appearance in his summation.
Two days later, after plaintiff had rested and during the defense case, the court conducted a charge conference during which she reversed her earlier ruling:
I have a determination to make as to two different medical associations, St. George Chiropractic and also Dr. D'Agostini. I have to determine whether the adverse inference charge is appropriate as to these two parties.
To begin with I'm going to find it is not appropriate as to the St. George Chiropractic. Among the things I have to determine is whether the testimony of St. George Chiropractic would have been superior to the testimony produced in court. All we have at best is that she treated for two weeks, I don't find that sufficient to call for the adverse inference under [State v. Clawans, 38 N.J. 162 (1962)].
But let me read to you while I decide the second case some of the language from [Wild v. Roman, 91 N.J. Super. 410 (App. Div. 1966)]. It has to appear that the witness was within the party to produce the witness. I have to find that merely -- not that they weren't produced but that it would be natural for the party to produce such a witness. It must appear reasonably probable that the witness could testify to specifically identifiable facts and that its evidence would not be merely cumulative but would be superior to that already utilized as to the fact to be proved. That's not to be used if the witness is clearly available to both sides or -- and this is where I was wrong the other day, [Defense Counsel], I was ruling against you on this point and you were right -- I was -- I ruled the defense in this case didn't -- does not have to ...