On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, L-1506-04.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: October 3, 2007
Before Judges Axelrad and Payne.
Plaintiff Jozef Zygmaniak, the rider of a bicycle hit by a car, appeals from a no-cause jury verdict entered against him in his personal injury action against Heather Poland, the operator of the motor vehicle. On appeal, plaintiff contends the trial court erred in denying his in limine motions to bar defendant's expert from testifying: (1) about plaintiff's alcohol consumption for lack of supportive, supplementary evidence that plaintiff was unfit to safely operate his bicycle because of intoxication, and (2) that plaintiff's intoxication resulted in an impairment that was a significant contributing factor to the accident because the testimony constituted an inadmissible net opinion. We discern no misapplication of law nor abuse of discretion in the trial court's ruling on either issue and affirm.
The following evidence was presented at trial. The accident occurred at the intersection of Bordentown and Stevens Avenues, in South Amboy, on March 31, 2002, shortly after 2:00 a.m. Plaintiff, on his way to go fishing, was riding his bicycle on Bordentown Avenue. Defendant was stopped at a stop sign and blinking red signal on Stevens Avenue, waiting for traffic to pass. Plaintiff continued on Bordentown Avenue through the blinking yellow signal at the intersection with Stevens Avenue. After looking both ways, defendant proceeded into the intersection where her vehicle was struck by plaintiff who attempted, but was unable, to swerve out of the car's way. Plaintiff's bicycle struck the front driver's side of defendant's car and plaintiff flipped over the handle bars onto the roadway.
Sergeant David Kales, a South Amboy police officer who was traveling westbound on Bordentown Avenue and had passed defendant's car while it was stopped at the intersection, observed the accident. He stated in his report and in a deposition read at trial that plaintiff, who had been wearing a black leather jacket, was riding a bicycle with no lights or reflectors. Plaintiff was also traveling on the wrong side of the road -- eastbound in the westbound lane of Bordentown Avenue -- and was proceeding downhill at a high rate of speed into the intersection where the accident occurred. The officer reflected in his report that plaintiff had been drinking, based on the way he had been answering questions at the time and the presence of the odor of alcohol. Neither party received a citation for the accident.
After the accident, plaintiff was transported to the Raritan Bay Medical Center emergency room. His blood alcohol level was measured at .198% at 5:18 a.m. During the litigation plaintiff admitted to consuming "almost a six pack" of beer prior to the accident, though there was an apparent discrepancy between his deposition and trial testimony as to whether he drank shortly before he went fishing from 11:30 p.m. to 2:00 a.m., or earlier in the day between 3:00 p.m. and 7:00 p.m.
Defendant offered John Brick, Ph.D., a biological psychologist, as an expert in psychopharmacology to testify to the "behavioral and physiological effects of alcohol intoxication and the measuring and calculation of alcohol in the blood and the bodily fluids." In preparation for his report and testimony, Dr. Brick reviewed the discovery, including the parties' depositions, the police accident report, plaintiff's answers to interrogatories, the medical records, and miscellaneous photographs. He then drew upon his "knowledge, training and experience," and provided a written opinion "to a reasonable degree of scientific probability" as to the "measurement, consumption and biobehavioral effects of alcohol" in plaintiff. Dr. Brick estimated the probable alcohol content of plaintiff's blood at the time of the accident by extrapolating from plaintiff's blood alcohol level reported by the hospital when tested three hours after the accident under a range of evidential and scientific assumptions based on when plaintiff said he was drinking, his age and weight, and rates of alcohol absorption and elimination. Based on plaintiff's deposition testimony that he drank beer from the time he awoke from his nap at 11:30 p.m. until he finished gathering his things and left for his fishing expedition around 2:00 a.m., the expert calculated plaintiff's blood alcohol content (BAC) at the time of the accident to be between .16% and .22%. Dr. Brick also concluded that plaintiff's recollection and testimony regarding how much alcohol he had consumed was not supported by the objective evidence in the case; rather, the evidence supported the conclusion that he had consumed about double the admitted amount, between ten to thirteen standard drinks.
Noting in his report that ["a]lcohol generally acts as a central nervous system depressant," Dr. Brick explained that "[t]he behavioral symptoms associated with alcohol intoxication include, loss of fine and gross motor control and a decrease in sensory perception and cognitive abilities such as memory and good judgment." Alcohol also affects a person's ability to "multi-task." Dr. Brick elaborated that alcohol intoxication may interfere with a bicycle rider's eye-hand-foot coordination of pedaling, steering, balancing and adapting to changes in the road surface, while simultaneously monitoring and reacting to traffic control devices, signs, road markings, road or walkway hazards, other vehicles, and estimating time, distance and speed. Referencing DWI studies, the expert concluded that an intoxicated bicyclist, who requires similar "divided attention" skills as a motorist, would be at a significant risk for an accident.
Dr. Brick then analyzed the behavioral effects of alcohol on plaintiff, noting plaintiff's perception that he was traveling slowly and riding on the sidewalk was not consistent with the observations made by the police officer. The expert also found plaintiff's failure to yield the right-of-way to a motor vehicle when plaintiff was traveling on the wrong side of the road to be indicative of impaired judgment, as was his inability to anticipate and respond to roadway conditions, and that both the impaired judgment and perception were consistent with alcohol intoxication. Dr. Brick was of the opinion that as a result of plaintiff's consumption of ten or more beers, objectively reflected in an elevated blood alcohol level, he became intoxicated and impaired; his ability to safely operate a vehicle was compromised; and the alcohol intoxication was a significant contributing factor to the accident.
Plaintiff made an in limine motion to bar evidence of his alcohol consumption on two grounds. First, he argued Dr. Brick's report failed to provide supportive evidence that demonstrated an impairment resulting from intoxication that contributed to the cause of the accident, i.e., that plaintiff's drinking affected the safe operation of his bicycle and made him unfit to ride his bicycle. Thus, he urged the probative value of the expert's evidence was outweighed by the potential for unfair prejudice, citing Gustavson v. Gaynor, 206 N.J. Super. 540, 544 (App. Div. 1985). Secondly, he argued that absent any specific fact to link plaintiff's intoxication to impairment in operating his bicycle and to support his conclusion that plaintiff's intoxication was a "significant contributing factor to this accident," Dr. Brick's report in this regard was an inadmissible net opinion.
Judge Pullen denied plaintiff's motion and permitted Dr. Brick to testify. Based on the documents he reviewed, Dr. Brick testified to his understanding of the circumstances of the accident, defendant's statements as to the amount of beer he drank and the time frame, the hospital BAC results, and his conclusion that plaintiff drank ten to thirteen beers prior to the accident. The expert explained his extrapolation of the probable alcohol content of plaintiff's blood at the time of the accident, noting the initial calculation in his report of .16% to .22% based on plaintiff's deposition testimony that he had begun drinking at ll:30 p.m. Based on plaintiff's trial testimony that he stopped drinking at 7:00 p.m., before he took his nap, Dr. Brick testified that at the time of the accident plaintiff's BAC would have been at a higher range of between .2% and .27%, and thus he would have been "significantly more intoxicated." Either range was above the legal limit for motor vehicle operators in New Jersey.
Dr. Brick further testified, consistent with his report, to the general effects of alcohol on cognitive, mental and psychomotor skills and functions of a bicycle rider, including perceptions, attention, balance, reaction time, judgment, and decision-making. He concluded that, based on plaintiff's estimated blood alcohol level at the time of the accident, in "all probability" such "divided attention," "impairment of judgment," and "impairment of perception" would apply to plaintiff. After Dr. Brick completed his ...