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Kim v. Gordon


May 1, 2008


On appeal from the Superior Court of New Jersey, Law Division, Bergen County, L-3175-05.

Per curiam.


Submitted April 1, 2008

Before Judges Winkelstein and LeWinn.

In this personal injury case, due to scheduling problems, the trial judge required defendant to present his medical witnesses' testimony to the jury before plaintiff's doctors testified and before plaintiff completed his testimony. The jury returned a verdict of $55,000 for plaintiff. Defendant claims that requiring him to proceed with his case first denied him a fair trial. We agree and consequently vacate the verdict and remand for a new trial.

Plaintiff, Jung Ho Kim, filed suit against defendants, Ezekiel Gordon, Catherine McCormick, and Myung J. Kim, seeking damages for injuries he sustained in a November 10, 2003, four-vehicle automobile accident on Route 46 in South Hackensack. The vehicles were traveling in the same direction, and plaintiff was operating the third vehicle in line. Gordon and McCormick were operating their vehicles in front of plaintiff. Defendant Myung Kim, who is unrelated to plaintiff, was driving the car behind him, and struck plaintiff's car in the rear.

Plaintiff was subject to the limitation on lawsuit threshold pursuant to the 1998 Automobile Insurance Cost Reduction Act, N.J.S.A. 39:6A-8a, commonly referred to as the verbal threshold. The parties stipulated to dismiss plaintiff's claims against Gordon and McCormick, and plaintiff tried his case against Kim.

Trial on the issues of causation and damages was scheduled for Monday, February 14, 2007. Because of a snow storm the previous day, plaintiff's counsel was unavailable, and the case was carried to the next day. Plaintiff's counsel was also unavailable that day due to an allergic reaction. Defense counsel had been prepared to proceed with the trial, and he had scheduled his witnesses.

The case was rescheduled for Monday, April 23, 2007. At the trial call, an associate of plaintiff's counsel told the court that plaintiff's counsel had an appointment with clients in New York, and asked that the case be carried for one day. The court granted the request.

Because the associate had also represented to the court that plaintiff's case would be concluded by the end of the first trial day, defense counsel arranged for both of his experts, Dr. Lawrence Kraut and Dr. Eric Fremed, to testify on Wednesday, April 25. Yet, on Tuesday, April 24, plaintiff's medical witnesses were not available to testify. When the parties appeared in court, plaintiff's counsel represented that his expert, Dr. Chee Gap Kim, who is unrelated to either plaintiff or defendant, would not be available until Thursday, April 26. Counsel also explained that he intended to take the de bene esse deposition of plaintiff's other medical witness, Dr. Ragukonis, whose first name is not in the record, on Friday, April 27, and play the videotape for the jury on Tuesday, May 1.

In response, defense counsel objected to the case going forward because plaintiff's schedule would require defense counsel to call his doctors out of turn, before plaintiff presented his medical testimony. Without discussion, the court overruled the objection, stating: "So noted. Your objection or your request for an adjournment is denied."

The court agreed to plaintiff's counsel's schedule. On Tuesday, the parties selected a jury of eight, and the court gave the jury a preliminary instruction, which included the following: "First, the plaintiff presents its evidence. Then the defense will present its evidence." That statement was inaccurate.

Later that day, after the jury had been selected, plaintiff's counsel informed the court that Dr. Chee Gap Kim would be unable to testify on Thursday. It was counsel's understanding that Dr. Kim "left on an emergency," although that was not verified. Counsel suggested that Dr. Kim could testify the following Tuesday.

The parties then opened, and prior to the close of the April 24 trial day, plaintiff began his testimony, but he did not complete it on that date.

The following day, Wednesday, April 25, 2007, before testimony was taken, plaintiff's counsel, for the first time, told the court that he had a prepaid vacation scheduled for Wednesday, May 2, and would therefore not be available after May 1; however, his associate would be available if all that remained in the case was to take the verdict.

Defense counsel moved for a mistrial. He objected again to having to take his witnesses out of order. He made the following argument:

I believe that although I made that Motion before the trial began that it has now been magnified by the fact that we were unable to complete any testimony even of the Plaintiff yesterday. We have not even finished the direct examination of the Plaintiff, although the Court was willing to and we did work until 5:00 yesterday afternoon.

[I]t is now 11:00 on Wednesday morning, 11:10. Dr. Kraut is in the courtroom and he is prepared to testify. And I want to once again note my objection to taking any of my witnesses out of turn, particularly my medical doctors. Although I am prepared and have him here, I will be doing so unwillingly if the Court forces me to go forward at this time. Essentially, at this point, I am now making a Motion for a Mistrial as well.

. . . I've spoken to Dr. Kraut, who is present. I have also been in contact with Dr. Fremed's office. And Dr. Fremed has indicated to me that he . . . has a medical convention that he will be at through Tuesday but that he would rearrange his schedule to come in to testify on Wednesday morning, which would then allow me to at least have Dr. Fremed --

THE COURT: I thought he was . . . going to testify today?

[DEFENSE COUNSEL]: I do have him available to testify today. What I'm saying is I'm objecting to taking my medical --


[DEFENSE COUNSEL]: -- witnesses out . . . of turn. I have now arranged to have him available to testify after the Plaintiff's doctors testify which would be next Wednesday. Dr. Kraut has, this morning, also indicated to me that, even though he is here today, he will come back Tuesday afternoon after the Plaintiff's case has been completed so that I would have both of my medical doctors now available to testify in the correct order, which would be subsequent to the Plaintiff's case being completed with Dr. Kraut having arranged to appear Tuesday afternoon and Dr. Fremed agreeing to appear on Wednesday morning.

THE COURT: The Plaintiff's attorney is not available Wednesday. He just told me.

[PLAINTIFF'S COUNSEL]: . . . I will note for the record that it's the first vacation I've had since February of 2005.

THE COURT: All right.

[DEFENSE COUNSEL]: Your Honor, just for the record, I think everyone thought that this case would be over in two days, certainly not more than three days. And we're now moving into . . . later next week.

I certainly have no objection to him going on vacation. But the only way out of that without causing extreme detriment to me would be to . . . grant a mistrial at this time.

THE COURT: Okay. Counsel, I understand your position. And if everything was in a perfect world, I agree with you that your witness should . . . go after the Plaintiff's witnesses. And I think you . . . had it planned that way and, unfortunately, the Plaintiff's witnesses did not cooperate with the Plaintiff's attorney and they're all out of turn.

I'm going to deny your Motion for a Mistrial. We'll have Dr. Kraut testify today and if you wish to call Dr. [Fremed] . . . this afternoon and we'll go from there.

[DEFENSE COUNSEL]: So, is . . . the Court then denying my application to have Dr. Fremed appear on Tuesday afternoon as well?


After continued discussion of the schedule and defense counsel's motion for a mistrial, the court again denied defense counsel's motion, and gave the jury the following instruction:

THE COURT: [A]ny trial such as this, the burden of proof is always on the Plaintiff. They have to prove by a preponderance of the evidence their case.

What would normally happen is that the Plaintiff would testify, Plaintiff's doctors would testify, and then defense doctors would testify. We've kind of adjusted that a little differently today just because of unavailability of certain witnesses. So, the defense doctor will testify today, this morning, maybe another one this afternoon.

But please keep in mind . . . that it's reversed of what normally would happen. So, once the . . . Defendant's doctors are finished, you will not hear from them again.

You will hear from the Plaintiff's doctors.

So, it's an unusual reversal, but it happens.

The defense then presented its witnesses, Dr. Kraut and Dr. Fremed. Both completed their testimony on that day, Wednesday, April 25, 2007. The next day, plaintiff completed his testimony.

The parties returned to court on Tuesday, May 1, 2007, when plaintiff presented his expert, Dr. Chee Gap Kim. Before Dr. Kim began his testimony, defense counsel objected to Dr. Kim testifying as to any causal relationship between the accident and plaintiff's injuries, and to the permanency of plaintiff's injuries, because Dr. Kim's December 3, 2003 report, which had been provided to defense counsel, did not refer to either issue. Although Dr. Kim submitted a subsequent report, dated August 17, 2005, in which he did refer to causation and permanency, defense counsel had never received that report. The court nevertheless permitted Dr. Kim to testify as to those issues, ruling as follows:

I'm going to allow the plaintiff to proceed with Dr. Kim with the report of 8/17/05 even though it appears it was never sent to you in total violation of all the court rules as far as your preparation, but, [plaintiff's counsel] thinks it probably could have been sent to you [by] someone or you should have asked for it. So I'll let Dr. Kim proceed. I'll get a copy of the report for you.

Following Dr. Kim's testimony, the de bene esse deposition of Dr. Ragukonis was played for the jury.*fn1 The parties closed, the court charged the jury, and the jury returned its verdict.

Trial judges are entitled to exercise reasonable control over the mode and order of presentation and interrogation of witnesses. N.J.R.E. 611(a). They have wide discretion in exercising that control over their courtrooms. N.J. Div. of Youth & Family Servs. v. J.Y., 352 N.J. Super. 245, 264 (App. Div. 2002). Adjournments because of illness and other emergencies may certainly be considered by a trial court in determining the order of witnesses. State v. Rodriquez, 264 N.J. Super. 261, 275 (App. Div. 1993), aff'd o.b., 135 N.J. 3 (1994). The court's discretion as to the order and presentation of witnesses is not, however, unbounded. In another context, the Court of Errors and Appeals has observed that "through the centuries a certain order for the producing of proofs had been adopted as the best means of reaching a fair and expeditious conclusion of disputes. That order should be the procedure except where, in the discretion of the trial judge, there is adequate reason for variation . . . ." Armour v. Armour, 138 N.J. Eq. 145, 161 (E. & A. 1946).

Here, the court did not have "adequate reason" for substantially reversing the order of proofs. We have been unable to find any case to support the trial court's decision to require a defendant to present all of his medical witnesses before the plaintiff presented any of his medical witnesses. Indeed, defendant was required to present his doctors' testimony even though plaintiff's own testimony had not yet concluded. And too, the defense doctors were required to testify without having been provided with plaintiff's expert's report on causation and permanency.

The order of presentation of the witnesses in this case essentially eviscerated the provision of N.J.R.E. 703 that permits an expert to support his or her opinion with facts or data made known to the expert "at or before the hearing." At the time the defense doctors testified, plaintiff had not completed his testimony and the defense doctors had not received Dr. Kim's August 17, 2005 report. Nor had plaintiff's doctors testified. Thus, in forming their opinions as to causation and permanency, the defense doctors were deprived of their ability under N.J.R.E. 703 to rely on portions of plaintiff's testimony, as well as the testimony of plaintiff's experts. These circumstances undermined defendant's right to a fair trial.

Early in the case, before any doctors testified, defense counsel offered the court a reasonable alternative to having the defense witnesses testify first: he agreed to reschedule his witnesses for the following Wednesday, so they could testify after plaintiff and his doctors completed their testimony. Apparently relying on plaintiff's counsel's scheduled vacation and the potential loss of jurors,*fn2 the court denied defense counsel's request. That was a mistaken exercise of discretion.

The New Jersey Supreme Court has described an abuse of discretion as "a decision . . . 'made without a rational explanation, inexplicably departed from established policies, or rested on an impermissible basis.' In other words, a functional approach to abuse of discretion examines whether there are good reasons for an appellate court to defer to the particular decision at issue.'" Flagg v. Essex County Prosecutor, 171 N.J. 561, 571 (2002) (quoting Achacoso-Sanchez v. Immigration & Naturalization Serv., 779 F.2d 1260, 1265 (7th Cir. 1985)). The court here did not rest its decision on sufficient reasons to warrant our deference.

We recognize that taking witnesses out of order is commonplace in many trials. Particularly with experts, scheduling problems frequently occur. We are also mindful that trial attorneys are entitled to take their scheduled vacations. Nevertheless, under the circumstances here, where defendant made his mistrial motion before any experts testified and before plaintiff had completed his testimony, if the court wanted to accommodate plaintiff's counsel's vacation schedule, the appropriate resolution would have been to declare a mistrial, not to force the defense to present its case first.

In an amended order denying defendant's motion for a new trial, the trial court prepared a statement of reasons. In that statement, the court acknowledged that changing the order of witnesses was "unorthodox," but concluded that "the jury's verdict does not reflect confusion of any sort. Indeed, the jury was instructed repeatedly as to who was testifying on which party's behalf, and that the order had been changed due to scheduling conflicts." It is speculative as to whether the jury's verdict reflected confusion. It should not be the burden of a defendant to show that the jury was confused in a case such as this, where the defendant has been deprived of the right to have the plaintiff present his witnesses first. Under these facts, we do not place that burden on defendant, but rather we conclude that the order of presentation of witnesses was clearly capable of producing an unjust result. See R. 2:10-2.

Reversed and remanded for trial.

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