January 11, 2008
CHARLES HINTON, PLAINTIFF-RESPONDENT,
WILLIAM VALASQUEZ-MOLINA, NEW JERSEY MANUFACTURERS INSURANCE COMPANY, DEFENDANTS-APPELLANTS.
On appeal from the Superior Court of New Jersey, Law Division, Union County, L-5640-02.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued October 11, 2007
Before Judges Wefing, R. B. Coleman and Lyons.
Defendant New Jersey Manufacturers Insurance Company (NJM) appealsfrom a judgment in favor of plaintiff Charles Hinton for injuries plaintiff alleged he suffered as a result of a car accident in Newark on January 21, 2001. The matter was tried on damages only, liability having been conceded. Factually, a motor vehicle driven by defendant William Valasquez-Molina, who was not insured at the time, collided into the rear of the vehicle driven by plaintiff. Consequently, NJM, plaintiff's uninsured motorist insurance carrier, was joined as a defendant to the litigation, and the matter was tried in Union County on May 9, 10 and 11, 2006. On May 11, 2006, the jury returned a verdict in favor of plaintiff in the amount of $150,000. Because the policy limit of plaintiff's uninsured motorist coverage with NJM is $100,000, the award was fixed at that amount.
NJM filed a motion for a new trial, which was denied. It now appeals from that denial. We affirm.
After the accident, plaintiff was transported to the University of Medicine and Dentistry emergency room in Newark where he complained of neck pain. X-rays did not reveal any fractures, so plaintiff was treated and released the same day. From January 4, 2001 through July 3, 2001, plaintiff received chiropractic treatments from Dr. Thomas Hary, who ordered MRIs of the cervical and lumbar spine. The MRI of the cervical spine revealed a "posterocentral disc herniation, C5-C6 with cord compression." The radiologist's impression of the MRI of the lumboscral spine was "disc dessication, L4-L5 and L-5.S1." MRI testing and EMG/NCV studies were conducted on the plaintiff; these were "suggestive of left-sided C5-C6 radiculopathy." In January 2003, plaintiff saw a neurologist, Dr. Charles Kalko, now deceased. According to plaintiff, Dr. Kalko recommended surgery for his neck and told him that he could become paralyzed if he did not have it.
On September 11, 2003, at the request of his attorney, plaintiff consulted with Dr. Douglas Bradley, an orthopedic surgeon at the Back Institute of Union. Dr. Bradley suggested a second cervical MRI, which was done on October 27, 2003. It showed a large central left-sided herniated disc at the C5-C6 level. As plaintiff wished to consider something other than surgery, he was referred to Dr. Yu, a pain management specialist. On March 18, 2004 and June 23, 2004, plaintiff received epidural injections in order to better cope with the pain. Plaintiff's last visit with Dr. Bradley was May 13, 2004, two years before the trial.
In this appeal, defendant makes the following arguments:
POINT I: THE TRIAL COURT ERRED IN FAILING TO DECLARE A MISTRIAL WHEN EVIDENCE OF ALCOHOL INTOXICATION WAS INTRODUCED IN THE DAMAGES ONLY TRIAL.
POINT II: THE TRIAL COURT ERRED IN PERMITTING THE PLAINTIFF'S ATTORNEY OVER OBJECTION OF DEFENSE COUNSEL TO INTRODUCE THE HEARSAY OPINIONS OF DR. CHARLES KALKO.
We have considered defendant's arguments in light of the pertinent facts and applicable law. We conclude the trial court properly denied the request for a mistrial; and while we agree with defendant that the hearsay opinion of Dr. Kalko should have been excluded, we are convinced the introduction of that hearsay opinion does not warrant a reversal.
We begin with a statement of the controlling standards. A trial court shall grant a motion for a new trial, only "if, having given due regard to the opportunity of the jury to pass upon the credibility of the witnesses, it clearly and convincingly appears that there was a miscarriage of justice under the law." R. 4:49-1(a). Where, as here, the trial related solely to damages, the moving party must demonstrate that the quantum awarded was plainly in error or shocking to the judicial conscience. Mahoney v. Podolnick, 168 N.J. 202, 229 (2001). A jury verdict for damages should not be disturbed unless it is so disproportionate to the injuries and residual disabilities that it shocks the conscience and is clearly against the weight of the evidence. Caldwell v. Haynes, 136 N.J. 422, 432 (1994). "[A] trial court must consider the evidence in the light most favorable to the prevailing party in the verdict." Ibid. "'The standard of appellate review of a trial court's decision on a motion for a new trial is substantially the same as that controlling the trial court except that due deference should be made to its feel of the case, including credibility.'" Ibid. (internal quotations omitted) (quoting Feldman v. Ledarle Labs., 97 N.J. 429, 463 (1984)); see also Dolson v. Anastasia, 55 N.J. 2, 6 (1969).
Defendant contends that he is entitled to a new trial because plaintiff testified regarding his impression that Valasquez-Molina was drunk at the time of the accident. More specifically, plaintiff testified that, upon observing defendant after the accident, "I approached the driver of the other car, saw that he was extremely drunk, and motioned him to pull over. Even as he was pulling over, his car tapped mine again, just to say how drunk he really was." At that point, defense counsel requested a sidebar conference at which he objected that plaintiff twice mentioned Valasquez's drunkenness. He requested that the court instruct the jury to disregard plaintiff's statement, and the court indicated it would.
Immediately after the sidebar conference, the court gave the following curative instruction to the jury:
Ladies and gentlemen, I'm going to instruct you to disregard the two statements Mr. Hinton made concerning alcohol and the defendant being "extremely drunk."
This is not a case about liability, meaning whose fault it was. The defense has admitted that the accident was caused by the defendant. The case here is really about damages, about injuries allegedly being related to the accident.
So for that reason I'm asking you to disregard any comments with respect to alcohol.
At that point, defense counsel did not express any dissatisfaction with the admonition given by the court, and the direct examination of plaintiff turned to the arrival of the police and the ambulance.
It was not until the next day that counsel moved for a mistrial. That motion was properly denied.
It has, of course, often been said that the denial of a mistrial will not be found erroneous on appeal unless there is a clear showing of mistaken use of discretion by the trial court. Carter v. Public [Serv.] Coordinated [Trans.], 47 N.J. Super. 379, 389 (App. Div. 1957); Budden v. Goldstein, 43 N.J. Super. 340, 344 (App. Div. 1957); Schuttler v. Reinhardt, 17 N.J. Super. 480, 484-86 (App. Div. 1952). What is really meant is that such matters depend very largely on the "feel" of the case which the trial [court] has at the time and [its] first-hand judgment in denying such a motion will not be reversed by a reviewing tribunal on a cold record, even if the appellate court might have acted otherwise if sitting at the trial, unless it so clearly appears from the printed page alone that the happening on which the motion was based was so striking that because of it one of the parties could not thereafter have a fair trial. Wright v. Bernstein, supra, 23 N.J. 284, 296 (1957); Schuttler , supra,  17 N.J. Super. at pages 484-86); Patterson v. Surpless, 107 N.J.L. 305 (E. & A.  1930).
Even in most situations of such an exceptional occurrence, as pointed out in the cited cases, the harmful effect can be sufficiently eradicated by immediate and strong admonitory instructions to the jury, which it is the obligation of the judge to give on his own initiative, so as to make a mistrial unnecessary. [Greenberg v. Stanley, 30 N.J. 485, 503 (1959).]
We find that the promptly-given instruction to the jury to disregard plaintiff's comments about alcohol was a sound exercise of judicial discretion. It should have cured any prejudice that might have been caused by plaintiff's gratuitously expressed opinion. The curative instruction obviated any need for a declaration of a mistrial, especially where the request for a mistrial was not contemporaneously made.
Defendant mistakenly asserts that Gustavson v. Gaynor controls this issue. 206 N.J. Super. 540 (1985). Gustavson also involved an automobile accident and a claim of drunk driving. Id. at 542-43. There, however, both liability and damages were at issue. Furthermore, there was extensive testimony before the Gustavson jury about defendant having consumed a few bottles of beer and about his having been admitted, though only seventeen years of age, to a nightclub hours before the accident. Id. at 543. While the panel that considered that appeal acknowledged that evidence of intoxication is relevant to the issue of negligent driving, it ruled that in the absence of proof that the driver's ability had been thereby affected "the evidence of prior drinking was so potentially prejudicial that it clearly outweighed any possible probative value of a continuity of the narrative of Gaynor's conduct during the hours prior to the accident, and accordingly should have been excluded." Id. at 546.
In this case, defendant did not suffer undue prejudice because the effect of alcohol on his ability to drive was not in dispute. Defendant had already conceded liability, and the fleeting mention of inebriation would have had little, if any, capacity to create undue prejudice. To eradicate any prejudice it might have caused, the court issued a timely and instructive directive for the jury to disregard the statements. A jury is presumed to faithfully follow such instructions. State v. Manley, 54 N.J. 259, 270-71 (1969). Thus, we defer to the trial court's "feel of the case." Dolson, supra, 55 N.J. at 2, 6. Moreover, based upon our independent assessment of the record, we are convinced that the curative instruction, rather than the extraordinary remedy of a mistrial, was a sufficient remedy.
Defendant next argues that the cross-examination of the defendant's medical expert by plaintiff's counsel resulted in the improper admission of hearsay testimony. We agree, but we do not agree that a new trial is warranted.
The facts and data upon which an expert bases an opinion or inference need not be admissible in evidence if the facts or data are of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject. N.J.R.E. 703. Therefore, "on cross-examination, an expert may be required to disclose the underlying facts or data upon which he relied." State v. Spencer, 319 N.J. Super. 284, 299 (App. Div. 1999). Such disclosures however, "'are admissible, not for [the purpose of] establishing the truth of [otherwise inadmissible] contents, but to apprise the jury of the basis of the opinion reached.'" State v. Torres, 183 N.J. 554, 576 (2005) (quoting State v. Humanik, 199 N.J. Super. 283, 305 (App. Div.) certif. denied, 101 N.J. 266, habeas corpus conditionally granted, 871 F.2d 432 (3d Cir.), cert. denied, 493 U.S. 812, 110 S.Ct. 57, 107 L.Ed. 2d 25 (1989)). As was explained more fully in Spencer, supra:
Expert testimony is authorized where scientific or specialized knowledge will assist the trier of fact to determine a fact in issue. The very premise which makes expert testimony admissible, namely its esoteric, abstruse, and special nature, subjects it to legitimately expansive cross-examination in order to enable the jury to assess its soundness. Accordingly, on cross-examination, an expert may be required to disclose the underlying facts or data upon which he relied. This disclosure requirement also extends to inadmissible evidence such as hearsay, upon which experts are permitted to rely provided the evidence is "of a type reasonably relied upon by experts in a particular field in forming opinions upon the subject" at issue.
N.J.R.E. 703. However, hearsay evidence not relied upon by an expert may not be employed on cross-examination. Moreover, although the cross-examiner may inquire as to whether the expert relied upon certain hearsay evidence, upon receipt of a negative response, the details of that particular evidence may not be used as the basis for further cross-examination. [319 N.J. Super. at 299 (internal citations omitted).]
We emphasize that ordinarily unrelied upon hearsay evidence may not be elicited on cross-examination. Ibid. See also State v. Vandeweaghe, 351 N.J. Super. 467, 481 (App. Div. 2002) (noting that "if the expert did not rely upon the hearsay in formulating the opinion, the cross-examiner may not delve into the hearsay, even though it may be contained in the expert's report"); State v. Farthing, 331 N.J. Super. 58, 79 (App. Div. 2000) (reiterating that "expert testimony is not a vehicle for the 'wholesale [introduction] of otherwise inadmissible evidence.'") (quoting State v. Raso, 321 N.J. Super. 5, 16 (App. Div.) certif. denied, 161 N.J. 332 (1999)).
On cross-examination of defendant's expert, Dr. Michael Bercik, plaintiff's counsel began a question by stating that "Dr. Kalko recommended surgery." That question was promptly interrupted by a defense objection. Defense counsel noted that plaintiff had never provided a report from Dr. Kalko, and that the doctor was unavailable to testify because he had died before trial. The court overruled the objection, reasoning that the defense expert, Dr. Bercik, had testified that, in rendering his opinions and coming up with the testimony he was giving, he reviewed and relied upon Dr. Bradley's report. That report included a recital of what Dr. Kalko had recommended. The court, therefore, concluded this was permissible cross-examination. We disagree.
Dr. Bercik certainly testified he had reviewed Dr. Bradley's report and, as a result, he was aware of Dr. Kalko's recommendation, as reported by plaintiff to Dr. Bradley. Dr. Bercik also testified that he did not rely on that recommendation in formulating his opinion. He said, "I don't know if any of this occurred. All I know -- this is a history given to Dr. Bradley by the patient, so I don't know how accurate this history is. This is a patient telling Dr. Bradley his recollection of what went on with Dr. Kalko. I'm not sure how accurate that is." Dr. Bercik further explained his disregard of Dr. Kalko's purported recommendation by noting Kalko's reputation and propensity to operate in what Dr. Bercik considered questionable circumstances. Dr. Bercik suggested that "he [Kalko] would operate at times on people who did not have herniated discs. He would operate around degenerated discs . . . . So I can't know exactly what his thought processes were when he recommended surgery, if in fact he did recommend surgery."
Plainly, Dr. Bercik did not rely on the hearsay statement contained in Dr. Bradley's records concerning Dr. Kalko's alleged recommendation of surgery, and that recommendation was not independently admissible. We have consistently rejected the proposition that any material or information reviewed by an expert witness may be placed before the jury under the guise of cross-examination on the basis for the expert's opinion. Farthing, supra, 331 N.J. Super. at 79; State v. Burris, 298 N.J. Super. 505, 512 (App. Div. 1997); see also State v. Pennington, 119 N.J. 547, 577-83 (1990) (finding it improper for a prosecutor to attack the credibility of a defense expert by cross-examining him about the details of inadmissible hearsay). We take this opportunity to reiterate our disapproval of trial tactics such as those utilized by plaintiff's counsel in this case. Such tactics are calculated to place before the jury an opinion for which there is no visible basis for admission. Nonetheless, we are convinced that the aspect of the cross- examination, improper though it may have been, did not have the capacity to cause an unjust result.
We agree with defendant, that plaintiff's attorney attempted to use his cross-examination of Dr. Bercik as a vehicle to introduce Dr. Kalko's conclusions, however, we are satisfied that the attempt was totally ineffective. Dr. Bercik expressed doubt as to whether Dr. Kalko's statement, as it appeared in Dr. Bradley's report, had ever been made. He suggested that if it had been made as reported, it was of dubious validity in light of the late Dr. Kalko's surgical philosophy. Under such circumstances, the admission of Dr. Kalko's statement over defense objection, therefore, constituted harmless error. Such error does not require a new trial.
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