On appeal from the Superior Court of New Jersey, Law Division, Bergen County, L-3175-05.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
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 ...