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Dibartolomeo v. Herman

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


February 4, 2008

ANNETTE J. DIBARTOLOMEO, PLAINTIFF-APPELLANT/ CROSS-RESPONDENT,
v.
DREXEL M. HERMAN, HEIDI M. HOUSER, WALTER R. SCHWARTZ, ROBERT L. HANEY, AND NICOLE A. YURITCH, DEFENDANTS, AND PALISADES SAFETY AND INSURANCE ASSOCIATION, INTERVENOR/RESPONDENT/CROSS-APPELLANT.

On appeal from the Superior Court of New Jersey, Law Division, Civil Part, Camden County, L-7970-02.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued: October 29, 2007

Before Judges Stern, C.S. Fisher and C.L. Miniman.

Plaintiff Annette J. DiBartolomeo appeals from the entry of a judgment dismissing her personal injury claims following a jury verdict of no cause for action predicated upon her failure to prove that she sustained a permanent injury proximately caused by either of the two motor-vehicle accidents at issue in this litigation. Intervenor cross-appeals from denial of its motion for a directed verdict under the verbal threshold of the Automobile Insurance Cost Reduction Act (AICRA), N.J.S.A. 39:6A-8. We reverse and remand for a new trial.

I.

Plaintiff was involved in two motor-vehicle accidents in 2001. The first occurred on January 10, 2001. On that occasion plaintiff's vehicle was stopped in a line of traffic at a traffic light when defendant Drexel M. Herman started a chain collision by striking the rear of a vehicle being operated by defendant Heidi M. Houser. The force of the collision pushed Houser's vehicle into the rear of a vehicle being operated by defendant Walter R. Schwartz, which in turn struck the rear of plaintiff's vehicle and forced her car into the rear of the vehicle in front of her, which was being operated by defendant Robert L. Haney.

Plaintiff experienced chest tightness immediately after the accident and was taken by ambulance to a hospital where a cardiac catheterization was performed. She was discharged after two or three days. By then her neck and back were bothering her and she was given a soft cervical collar. She sought treatment for her orthopedic injuries in February when she saw her family physician, Dr. Gary Heck, and then saw a chiropractor, Dr. Brian Russell, for treatment. Plaintiff's prior medical history was somewhat complicated and included pre-existing back pain and migraine headaches. Dr. Russell referred plaintiff to Dr. John Yulo, who specialized in physical rehabilitation medicine.

Plaintiff testified that, although she was still under medical care, she had to return to work for financial reasons despite her discomfort, and persuaded Dr. Heck to permit her to return to work. Two or three days after she returned to work, her employment was terminated because her employer was bankrupt. Plaintiff tried through the end of March to find other work because her monthly expenses exceeded her unemployment benefits but she was unsuccessful. She applied for Social Security disability benefits and was determined disabled effective on January 10, 2001.

The second motor vehicle accident occurred on August 9, 2001, after plaintiff left the doctor's office. On that occasion, plaintiff was slowing for a traffic light when she noticed the driver of the vehicle behind her, defendant Nicole A. Yuritch, talking on her cell phone. Yuritch drove into the rear of plaintiff's vehicle. Plaintiff was taken to the hospital by ambulance and was treated and released. The next day she experienced difficulty standing because of dizziness and a friend took her to Dr. Russell, who referred her to Dr. Russell I. Abrams, a neurologist. Dr. Abrams saw her first on August 17, 2001. She also was experiencing pain in her neck, shoulders and back and was treated for these complaints by Dr. Abrams.

Suit was filed on December 5, 2002, with one count claiming injuries from the first accident and the other count claiming injuries from the second accident. Each defendant filed an answer to the complaint, although Herman did not file his answer until October 28, 2003. By that time, Haney, the driver of the vehicle in front of plaintiff on January 10, 2001, and Schwartz, the driver of the vehicle immediately behind plaintiff, had secured summary judgments dismissing all claims against them. On February 6, 2004, plaintiff obtained a summary judgment on liability with respect to Yuritch, the driver of the other vehicle involved in the August 9, 2001, accident.

On July 9, 2004, intervenor Palisades Safety and Insurance Association (Palisades) intervened as a defendant by virtue of plaintiff's claim for underinsured motorist (UIM) benefits. Plaintiff settled her claim against Herman in December, accepting $47,500 from his $50,000 insurance policy. That month plaintiff also settled her claim against Yuritch for $87,500 from her $100,000 policy. Plaintiff's remaining claims were against Houser, the driver of the vehicle struck by Herman, for damages and Palisades for UIM benefits. Plaintiff and Palisades agreed to waive their right to arbitrate the UIM claim.

Plaintiff sought to depose the personal injury protection (PIP) adjuster from Palisades in order to establish that its payment of PIP benefits was an admission that plaintiff's treatment was reasonable, necessary and related to the motor vehicle accidents of 2001. On March 4, 2005, Palisades prevailed on its motion for a protective order precluding plaintiff from deposing its employees or calling them as witnesses at trial. The judge determined that Palisades should not be estopped from contending that the treatment for which they made PIP payments was not reasonable or necessary or related to the accident, although its PIP adjuster determined it to be reasonable, necessary and related. The judge stated, "They have the right to step into the shoes of the underinsured defendant and they argue the position of the underinsured defendant because it's beneficial to them since they have to pay anything over and above what the underinsured defendant had to pay." The judge also denied plaintiff's motion to amend her complaint to state a UIM claim against Palisades because Palisades was stepping into the shoes of the settling defendants and no direct first-party action against it would be consistent with that posture.

Later that year Palisades filed another motion for a protective order, this one to bar plaintiff from calling as her own expert witness Edward Murphy, Psy. D., a Pennsylvania neuropsychological expert retained by Yuritch who opined that plaintiff sustained a mild traumatic brain injury as a result of the August 9, 2001, accident. Palisades also sought to bar plaintiff's experts from referring to the opinions in Dr. Murphy's report. Plaintiff cross-moved seeking an adverse inference charge in the event she was precluded from calling Dr. Murphy as a witness and Palisades failed to call him. Plaintiff also sought to bar Palisades from calling Paul Moberg, Ph.D., another neuropsychologist who examined her at the request of her disability insurance carrier. On August 19, 2005, the judge granted the motion of Palisades and denied plaintiff's cross-motion. The judge reasoned, The . . . only purpose that I can see in calling Dr. Murphy would . . . on the plaintiff's part, to be able to argue, imply or otherwise, some other way, let the jury know that this was . . . a doctor hired by the defense.

Dr. Murphy is not necessary or critical to the plaintiff's case. Plaintiff has their own engaged expert . . . that can be called. Dr. Murphy would be surplus or redundant, at best, and it would be, in my view, unfair to tilt the balance in favor of the plaintiff by allowing that to happen.

The judge barred plaintiff from calling Dr. Murphy and barred plaintiff's expert from testifying that he relied on the opinions of Dr. Murphy. He denied plaintiff's motion for an adverse inference because "Murphy was not Palisades' doctor" and denied the motion to bar Palisades from calling Dr. Moberg because he was not an adverse witness.

The case was called for trial on May 8, 2006. Plaintiff moved in limine to determine how Palisades was going to be identified. Plaintiff sought to have the jury instructed that she had settled with Herman and Yuritch and to have defense counsel appear as the attorney for Palisades so that the jury was "told the truth." Plaintiff argued that once the jury was told that Herman and Yuritch settled, it would not understand who Palisades' counsel was representing. The judge responded, "I understand. It's a problem. And I want to think on it a little more, but . . . for the moment, for the present, we're gonna call Mr. Barr as the attorney for an interested party until we can devise something a little more specific and factual."

Plaintiff also requested that the judge revisit the issue of barring her from calling Dr. Murphy in light of new case law, Fitzgerald v. Roberts, 186 N.J. 286 (2005). The judge agreed to do so if Dr. Murphy agreed to testify. Palisades objected to plaintiff calling Dr. McLaughlin, a psychiatrist who performed an independent medical examination for PIP purposes. Because Dr. McLaughlin had not been identified as a witness for trial, the judge barred plaintiff from calling her to testify.

The matter was tried over the course of three days. Plaintiff never represented during the trial that Dr. Murphy was willing to appear as a witness on plaintiff's behalf and, as a result, the judge did not revisit his order barring plaintiff from calling him. At the conclusion of the evidence, Palisades moved to dismiss plaintiff's economic damage claim relating to the first accident and the judge granted that motion. The jury returned its verdict on May 15, 2006. It concluded that Houser was not negligent and that plaintiff failed to prove that she sustained a permanent injury from either accident. This appeal followed.

II.

Plaintiff contends that the judge erred in five respects:

(1) she should have been permitted to obtain PIP discovery from Palisades and call its PIP adjuster as a witness at trial; (2) the jury should have been given an adverse inference charge with respect to its failure to call Dr. McLaughlin; (3) she should have been permitted to take the de bene esse deposition of Dr. Murphy; (4) the dismissal of her economic damage claim arising from the first accident invaded the jury's fact-finding role with respect to plaintiff's economic damage claim arising from the second accident; and (5) the jury should have been advised that the "interested party" was her UIM carrier, Palisades.

Palisades cross-appeals from an alleged order of May 15, 2006,*fn1 regarding objective evidence of brain injury. It contends on cross-appeal that there was no objective evidence of brain injury and those claims should have been dismissed as a matter of law, making plaintiff's claims of trial error harmless.

Each of these issues involves the application of law to the facts of the case and not the exercise of judicial discretion. Our review of a trial judge's conclusions of law is de novo. Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995) ("A trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference").

III.

Plaintiff urges that the trial judge erred in barring her from deposing Palisades' PIP adjuster and calling the adjuster as a witness at trial. She points out that we held in Habick v. Liberty Mutual Fire Insurance Company, 320 N.J. Super. 244, 258 (App. Div. 1999), certif. denied, 161 N.J. 149 (1999), that a PIP claimant may be collaterally estopped in a tort action from relitigating an issue determined adversely to the litigant in a PIP action against the litigant's insurer. She argues that the discovery she sought may have been the predicate for estopping Palisades from contending that her medical treatment was not necessary, reasonable and caused by the accident.

We recently addressed this issue in Bardis v. First Trenton Ins. Co., ___ N.J. Super. ___ (App. Div. 2007). There, plaintiff settled his claims with the tortfeasors and then filed an action against his UIM carrier. Id. (slip op. at 2). The matter was tried before a jury, which found that Bardis's injuries were not proximately caused by the accident. Ibid. On appeal Bardis contended that he should have been permitted to establish proximate cause by presenting evidence that his insurance carrier paid PIP benefits. Ibid. We held, "Just as defendant's decision to pay PIP benefits would not have been admissible in [a trial against the tortfeasor], see Roig [v. Kelsey], 135 N.J. [500,] 513 [(1994)] it was similarly inadmissible in the UIM trial." Bardis, supra, (slip op. at 19). This was so because payment of PIP benefits "does not have 'a tendency in reason to prove or disprove any fact of consequence to the determination of the action.'" Ibid. (quoting N.J.R.E. 401).

We also concluded that testimony from the PIP adjuster was inadmissible:

[The PIP adjuster] was not competent to testify as to whether plaintiff's injuries were caused by the February 1997 automobile accident. Her decision to pay PIP benefits was based on her interpretation of doctors' reports. Permitting her to testify that PIP benefits were paid because the injuries were proximately caused by the accident . . . would have allowed the jury to hear a medical opinion of a lay witness, formed from reports of experts who were not witnesses at trial. See Kelly v. Borwegen, 95 N.J. Super. 240, 243-44 (App. Div. 1967) (medical causation generally requires expert testimony). [Id. (slip op. at 19-20).]

We acknowledged that under Habick collateral estoppel may preclude a plaintiff from relitigating issues determined by an arbitrator. However, we concluded that collateral estoppel would not bar litigation of the proximate-cause issue based on the PIP adjuster's determinations because that "issue had not actually been litigated in a prior proceeding." Id. (slip op. at 20) (citation omitted). We also concluded that evidence of PIP benefits was inadmissible for policy reasons because "[b]inding an insurer in a subsequent UIM action to its causation determination in deciding whether to pay PIP benefits would inevitably complicate an insurer's decision to pay those benefits[,] . . . frustrating the public policy of expeditious payment of medical expenses." Id. (slip op. at 22). As a result, we reject plaintiff's argument.

IV.

Plaintiff next contends that she was entitled to an adverse inference charge in connection with Palisades' alleged failure to call Dr. McLaughlin as a witness. We conclude that such an inference is inappropriate in a UIM action because Palisades is free to disavow the conclusions of its PIP adjuster and should concomitantly be able to do so with respect to the results of a PIP examination done at the request of the PIP adjuster. Furthermore, there was no legal impediment to plaintiff deposing Dr. McLaughlin and calling her to testify.*fn2 Bardis, supra (slip op. at 20) ("[P]laintiff could have called the doctors who examined him in conjunction with his PIP applications as witnesses."). Because Dr. McLaughlin was equally available to both parties, an adverse inference charge was not appropriate. O'Neil v. Bilotta, 18 N.J. Super. 82, 86 (App. Div.), aff'd, 10 N.J. 308 (1952); see also, State v. Clawans, 38 N.J. 162, 171 (1962); Hickman v. Pace, 82 N.J. Super. 483, 490 (App. Div. 1964); 2 Wigmore on Evidence, §§ 286, 287 (Chadbourn rev. 1979). Furthermore, Dr. McLaughlin was never identified as an expert witness for trial.

Since we are reversing and remanding for a new trial for other reasons, the parties might seek to further pursue obtaining Dr. McLaughlin's testimony about her clinical findings. If Dr. McLaughlin is not willing to render an expert opinion on proximate causation and permanent injury, she may nonetheless testify to her examinations of plaintiff and her clinical findings and can be compelled to provide that information.

V.

A.

We turn next to plaintiff's appeal from the denial of her motion for leave to take the de bene esse deposition of Dr. Murphy. Dr. Murphy performed an independent medical examination of plaintiff on August 18, 2004, for Yuritch. He reviewed plaintiff's pertinent medical records and administered a number of neuropsychological tests, which demonstrated a variety of deficits. In his eleven-page report he described two tests he performed, the WAIS-III Full Scale and the Wechsler Memory Scale. He interpreted the test results and concluded and "[t]he focal nature of these findings is typically seen in individuals with mild traumatic brain injury." He did not note any suggestion of malingering or inconsistencies. Although he found she had seen some improvement since the testing done in 2002 by Dr. Joseph Zielinsky, a neuropsychologist treating plaintiff, he opined that "it is unlikely given the time period that has elapsed since her injury that she will likely show any spontaneous recovery."

On motion of Palisades, which argued that Graham v. Gielchinsky, 126 N.J. 361 (1991), precluded plaintiff from taking a de bene esse deposition of Dr. Murphy, the judge entered a protective order precluding the deposition. Palisades argued that plaintiff could not call "its" expert and, after prevailing on that argument, contended that plaintiff was not entitled to an adverse inference charge when Palisades elected not to call Dr. Murphy to testify at trial because Palisades had not retained him. It prevailed on this argument as well. During trial the judge reconsidered his order barring plaintiff from eliciting testimony from Dr. Murphy pursuant to our Supreme Court's then recent decision in Fitzgerald, supra, 186 N.J. at 286.

Fitzgerald filed an employment discrimination claim against her employer alleging sexual harassment in the workplace and prevailed at trial. Id. at 293. The employer appealed, contending in part that the trial judge erred in precluding it from calling one of plaintiff's expert witnesses. Id. at 294. The expert in question was a psychiatrist originally scheduled to testify on plaintiff's behalf. Id. at 296. Although the expert's initial report was favorable to Fitzgerald, after reviewing additional evidence prior to his deposition, the expert withdrew his initial diagnosis at his deposition and gave an opinion favorable to the employer. Id. at 298. Relying on Graham, the trial judge would not permit the employer to call Fitzgerald's psychiatrist. Id. at 297.

The Fitzgerald Court explained that its decision in Graham related solely to consulting experts whose identity and opinions were protected from discovery by R. 4:10-2(d)(3) and had no applicability to a testifying witness. Id. at 301. The Court stated:

Indeed, no party to litigation has "anything resembling a proprietary right" to any witness' evidence. Cogdell v. Brown, 220 N.J. Super. 330, 334 (Law Div. 1987).

Absent a privilege no party is entitled to restrict an opponent's access to a witness, however partial or important to him, by insisting upon some notion of allegiance. See Int'l Bus. Machs.

Corp. v. Edenstein, 526 F.2d 37, 41-44 (2d Cir. 1975); Gregory v. United States, 369 F.2d 185, 187-88 (D.C. Cir. 1966); Edmund J. Flynn Co. v. LaVay, 431 A.2d 543, 551 (D.C. 1981); 8 Wigmore on Evidence § 2192 (McNaughton rev. ed. 1961). Even an expert whose knowledge has been purchased cannot be silenced by the party who is paying him on that ground alone. Unless impeded by privilege an adversary may inquire, in advance of trial, by any lawful manner to learn what any witness knows if other appropriate conditions the witness alone may impose are satisfied, e.g., compensation for his time and expertise or payment of reasonable expenses involved. . . . [Id. at 335.]

By declaring that an expert witness will be produced at trial and providing the expert's identity and opinion to another party, as required by Rule 4:10-2(d)(1), the original proponent has waived his claim that the information is privileged. Thus, we hold that access to the testifying witness is allowed and the adversary may produce a willing expert at trial. [Id. at 301-02.]

Having had this decision called to his attention during the trial, the judge agreed to reconsider his decision if plaintiff called Dr. Murphy as a witness. Palisades argues that this issue is moot because plaintiff never called Dr. Murphy. We are not persuaded by this argument. Dr. Murphy practices in Pennsylvania and plaintiff obviously could not subpoena him to come to court the next day or even the day after. Even if he had a New Jersey office, there was not a sufficient amount of time to secure an involuntary appearance. Even a voluntary appearance in such a short amount of time by a physician was unlikely to be arranged. The judge should have adjourned the trial to permit plaintiff to take a de bene esse videotaped deposition, which may have been the only way that she could have presented the testimony of Dr. Murphy. This error substantially prejudiced plaintiff because Dr. Murphy could have testified respecting the types of testing he performed, the validity of the tests and the objective nature of the test results. Because his testing was performed two years after Dr. Zielinsky administered and interpreted similar tests, his opinions would have been weightier with respect to the issue of permanency. This error requires a new trial on damages.

B.

Plaintiff also asserts that the judge erred in dismissing her economic damage claim arising from the first accident because she had not established that she was disabled as a result of the first accident. There was objective evidence of a permanent injury resulting from that accident. Well before the second accident plaintiff began to collect disability benefits, although she did initially return to work shortly after the first accident. The fact that she sought employment after her employer filed for bankruptcy and before the second accident does not establish that she would have been able to perform the work. In fact, she was having difficulty performing the work at her last job. Furthermore, plaintiff was declared disabled by the Social Security Administration effective January 10, 2001. That determination was admissible evidence of disability. Golian v. Golian, 344 N.J. Super. 337, 342-33 (2001) (SSA adjudication of disability creates a rebuttable presumption that plaintiff is disabled). Thus, plaintiff's economic claims from both accidents should have been submitted to the jury for its determination.

Both of these errors mandate a new trial on damages.

VI.

With respect to the identification of Palisades, plaintiff asserts that our decisions in Krohn v. New Jersey Full Insurance Underwriters Association, 316 N.J. Super. 477 (App. Div. 1998), certif. denied, 158 N.J. 74 (1999), and Wenz v. Allstate Insurance Company, 316 N.J. Super. 570 (App. Div. 1998), creating the fiction of the UIM carrier as the tortfeasor cannot be applied to these facts.

In Krohn, as here, the plaintiff was involved in two automobile accidents and settled her claims with both drivers for their policy limits. Krohn, supra, 316 N.J. Super. at 479. She then demanded UIM arbitration with both of her carriers, the NJFIUA for the first accident and American Hardware Insurance Company for the second accident. Ibid. Krohn rejected the arbitration award and filed an action in the Law Division. Id. at 480. At trial, the NJFIUA and American asked that the names of the tortfeasors be substituted for their names, but the judge denied this request. Ibid.

The NJFIUA argued on appeal that we should "adopt a blanket rule barring any reference to insurance in a trial on a claim for UIM benefits." Id. at 481. It asserted that the name of the tortfeasor should always be substituted for the insurer. Ibid. However, we declined to "issue such a broad ruling." Ibid. We decided the case on the more narrow issue of whether "counsel's repeated references to the subject of insurance seriously infected the Association's right to a fair trial" and concluded that it did. Ibid.

In reversing on that basis, we held that "the probative value of information regarding whether a person is insured or not is substantially outweighed by the potential for undue prejudice," largely because of "deep pocket" concerns. Id. at 481-82. We acknowledged that:

Perhaps the risk of such prejudice emanating from references to insurance has been diminished with the advent of compulsory automobile liability insurance. In these days, the juror who is neither an automobile owner or operator is a rarity. The average juror may be aware that there is insurance coverage in almost every motor vehicle accident case. The mere mention of such coverage has been held not to be prejudicial error. We have thus said that "'[s]o long as the insurance is not featured or made the basis at the trial for an appeal to increase or decrease the damages, the information would seem to be without prejudice.'" [Id. at 482 (citations omitted).]

Nonetheless, we "adhered to the rule that statements bearing upon insurance which have no relevance to the issues before the jury should be excluded because of their potential for undue prejudice." Ibid.

We found that plaintiff's repeated references to the extra premiums plaintiff paid for UIM coverage and the insurers' refusal to honor their contractual commitments "were irrelevant, inappropriate and had the capacity to deprive [them] of a fair trial." Id. at 483. We recognized that the insurers were direct defendants on a first-party claim tried as a third-party tort action, id. at 483, and noted:

That is true of all uninsured and underinsured motorist coverage cases. The insured's legal entitlement to damages for the uninsured or underinsured driver's negligence "imports into the [uninsured or underinsured motorist's] policy all of the normal rules governing tort liability and damages." "In effect, an uninsured [or underinsured] motorist provision is a contractual substitute for a tort action against an uninsured [or underinsured] motorist." "Thus, the tortious act of a third party [and resulting damages are] predicate[s] for both recovery of uninsured [and underinsured] motorist proceeds." "In both instances, the insured victim's recovery is, to a greater or lesser extent, a substitute for that which would have been derived from a third-party suit but for the inadequacy of the tortfeasor's insurance."

So posited, we are convinced that there is generally no need for either a claimant's attorney or an insurer's attorney to refer to the insurance contract, or the amount of the premium paid, or the good faith or bad faith of the insurer in refusing to pay, or the reasons a party rejected an arbitration award. The principal issues in trials involving uninsured or underinsured motorist coverage are the tortfeasor's responsibility for the accident and the injuries sustained.

Counsel should limit their remarks to these issues. [Id. at 483-84 (quotations and citations omitted).]

Wenz was also a first-party action against the plaintiff's insurance company, this time for uninsured motorist benefits. Wenz, supra, 316 N.J. Super. at 573. There the jury was told that the tortfeasor was uninsured and that Wenz was making a claim against his own insurance company for uninsured motorist benefits. Id. at 576-77. We concluded that these facts should have no bearing on a verdict when the jury is called upon to decide liability and damages. Id. at 577. We reversed and remanded for a new trial because we had no confidence in the $15,000 verdict because it was "exactly the minimum liability coverage mandated for automobile insurance under N.J.S.A. 17:28-1.1 . . ., particularly in view of the severity of his injuries." Id. at 578. In remanding the matter for a new trial, we cautioned the trial judge as follows:

We assume that the jury will not be told of the underlying insurance aspects of the case and suggest that either . . . Allstate be addressed to the jury as "the defendant" without further description or that the tortfeasor's name might be substituted in place of Allstate. At the very least, the jury should not be told that the tortfeasor has no insurance. Moreover, if the jury is informed that the action is a suit against plaintiff's own carrier, a fact we are not sure it need be told, the jury must be instructed that that fact has no relevancy on the issue of damages and that the value of those damages must be measured by the evidence of those damages presented during the trial, unaffected by the fact that plaintiff seeks recovery from his insurer. [Id. at 579-80.]

Five principles emerge from Krohn and Wenz. First, we have not adopted a blanket rule barring any reference to insurance in a trial on a claim for UM or UIM benefits nor have we required that insurers must always be referred to by the name of the tortfeasors. Krohn, supra, 316 N.J. Super. at 481. Second, we "adhered to the rule that statements bearing upon insurance [that] have no relevance to the issues before the jury should be excluded because of their potential for undue prejudice." Id. at 482. Third, when the insurer is a direct defendant "[t]he principal issues . . . are the tortfeasor's responsibility for the accident and the injuries sustained [and c]counsel should limit their remarks to these issues." Id. at 484. Fourth, the jury should either be told that the insurer was "the defendant" without further description or that the tortfeasor's name be substituted. Wenz, supra, 316 N.J. Super. at 579-80. Fifth, if the jury is told "that the action is a suit against plaintiff's own carrier . . ., the jury must be instructed that that fact has no relevancy on the issue of damages and that the value of those damages must be measured by the evidence of those damages presented during the trial." Id. at 580.

We are not persuaded by plaintiff's argument that these principles do not apply where there are multiple defendants. Plaintiff contends that "it was impossible to create the fiction" that we recommended in Krohn and Wenz. This notion is predicated upon a perceived conflict of interest in Palisades' counsel appearing to represent both Herman and Yuritch. If it is believed such a conflict exists, then Palisades should have retained another firm to represent one of the two settling defendants and the identity of Palisades would have been masked when both counsel were introduced to the jury. If there is no such conflict, then Palisades' counsel should have been introduced to the jury as counsel for Herman and Yuritch.

The solution reached by the trial judge, telling the jury that counsel represented "an interested party," is not a fiction that we can permit. It does not establish any apparent adverseness. This error was compounded by the judge informing the jury during jury selection that plaintiff had settled her claims against Herman and Yuritch. That information should not be communicated to a jury in a suit on a UIM policy where the insurer is not identified because it undermines the fiction of counsel representing the tortfeasor.*fn3

We are satisfied that the judge's unusual approach of advising the jury that Herman and Yuritch had settled and that Palisades' counsel represented "an interested party" must not be repeated during the new trial on damages.*fn4

VII.

We are satisfied that Palisades was not entitled to a dismissal of plaintiff's brain injury claims, if for no other reason than the improper constraints placed on her ability to secure testimony from Drs. Murphy and McLaughlin. As a consequence, we find no merit in Palisades' cross-appeal.

Reversed and remanded for further proceedings consistent with this opinion.


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