April 7, 2009
PATRICIA REIDER AND DOUGLAS REIDER, PLAINTIFFS-APPELLANTS,
ALLSTATE NEW JERSEY INSURANCE COMPANY, DEFENDANT-RESPONDENT.
On appeal from the Superior Court of New Jersey, Law Division, Camden County, Docket No. L-5772-05.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued March 11, 2009
Before Judges Cuff, Baxter and King.
Plaintiffs, Patricia Reider and Douglas Reider, appeal from a jury verdict of no cause for action in a damages-only automobile negligence trial. Because the tortfeasor was uninsured, plaintiffs instituted suit against their automobile insurance carrier, defendant Allstate New Jersey Insurance Company (Allstate). On appeal, plaintiffs raise eight claims of error, seven of which involve the trial judge's decision to admit or bar evidence, and the eighth concerns the denial of plaintiff Douglas Reider's motion for a directed verdict. We affirm.
On October 10, 1999, plaintiffs, who are mother and son, were seated in Patricia's vehicle at an intersection waiting for the traffic light to turn green when a car came up behind them, crashed at a high rate of speed into the right rear portion of plaintiffs' vehicle, took off and crashed into a telephone pole. Patricia testified that she and her son were "too scared and nervous to go to the hospital" at the time, but two days later she and Douglas were evaluated by their family physician. Both complained of pain in their low back. Patricia produced evidence that she sustained lumbar sprain and strain, and a bulging disc at L5-S1. Although an orthopedic surgeon recommended surgery, Patricia was "afraid" and chose not to undergo the recommended surgery. According to Douglas's physician, he sustained a herniated lumbar disc.
On the day before jury selection commenced, Allstate moved in limine to bar plaintiffs from identifying defendant as Allstate Insurance Company, and to instead require them to refer to the actual tortfeasor, Matthew Thomas, as the defendant. In that same motion, Allstate also sought to bar plaintiffs from testifying that Thomas was operating a stolen vehicle and was being chased by police at the time of the collision. In support of its in limine motion, Allstate argued that because liability was stipulated, and Thomas's flight from police had no bearing on whether plaintiffs' injuries were permanent,*fn1 plaintiffs should be precluded from testifying that Thomas fled the scene or was driving a stolen vehicle.
In opposition, plaintiffs argued that if the motion were to be granted, their credibility while testifying would be adversely affected. Plaintiffs asserted that an order prohibiting them from discussing the hit-and-run nature of the accident would require them "not to tell the entire truth to the jury" and would cause them to "seem more nervous on the stand" in an effort to avoid running afoul of the in limine order. Relying on Taddei v. State Farm Indemnity Co., 401 N.J. Super. 449, 464 (App. Div. 2008); Bardis v. First Trenton Insurance Co., 397 N.J. Super. 138, 152 (App. Div. 2007), certif. granted, 194 N.J. 444 (2008); and Wenz v. Allstate Insurance Co., 316 N.J. Super. 570, 573-74 (App. Div. 1998), Judge Blue rejected plaintiffs' arguments. The judge reasoned that plaintiffs' credibility would not be affected because they would be permitted to explain how fast the other vehicle was traveling at the time of the accident; the force of the impact; the number of police who responded to the scene; and that plaintiffs never spoke with Thomas, the tortfeasor. The judge emphasized that her in limine order was limited to the fact of the police chase and that Thomas fled the scene after the collision with plaintiffs' vehicle.
We review a judge's decision to admit or bar evidence for an abuse of discretion. Lancos v. Silverman, 400 N.J. Super. 258, 275 (App. Div.), certif. denied, 196 N.J. 466 (2008). "A trial judge has broad discretion in making relevance and admissibility determinations under N.J.R.E. 401, 402, and 403, which we will not disturb, absent a manifest denial of justice." Ibid.
Here, we are satisfied that Judge Blue's decision to bar plaintiffs from describing the police chase or referring to Thomas's status as a hit-and-run driver was well within her discretion. Her reliance on Taddei, supra, Bardis, supra, and Wenz, supra, was correct. Moreover, any testimony by plaintiffs that Thomas stole the car and was fleeing from police would have been inadmissible hearsay in any event, because plaintiffs' knowledge on those subjects was derived solely from what police told them. As such, the testimony would have been inadmissible regardless of our decisions in Taddei, Bardis and Wenz, all of which held that the action should be maintained in the name of the uninsured tortfeasor, rather than the insurance carrier. The claims plaintiffs advance in Points I and II therefore lack merit. We thus affirm the judge's decision to designate Thomas, rather than Allstate, as defendant during the trial, and to bar reference to the hit-and-run nature of the accident.
In Point IV, plaintiffs argue that even if the trial judge's rulings on those issues had been correct, Allstate "opened the door" to admission of the previously-barred hit-andrun testimony when, during its opening statement, it argued that plaintiffs sought an attorney prior to receiving medical attention.*fn2 Plaintiffs argued before the trial judge that
Allstate's reference to plaintiffs consulting a lawyer before seeking medical treatment "opened the door" to the true reason they sought legal advice before medical care--because they were victims of a hit-and-run crash. Although Judge Blue concluded that Allstate had not opened the door, she nonetheless permitted plaintiffs to testify that they consulted a lawyer because of police involvement at the scene. We find no abuse of discretion in her determination that the in limine order should not be disturbed. Her ruling was a balanced and fair resolution of this issue, and we have been presented with no meritorious basis upon which to disturb it.
In Point III, plaintiffs argue that the judge erred when she permitted Allstate to introduce photographs of the damage to plaintiffs' vehicle without requiring Allstate to also introduce photographs of the vehicle Thomas was driving. Plaintiffs argue that "[t]o allow the photographs to be introduced without proper explanation about the happening of the accident was prejudicial and confused the jury." This argument lacks sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).
In Point V, Patricia argues that the judge committed reversible error when she barred Patricia from testifying that she became addicted to pain medication prescribed to her as a result of the accident. Significantly, Patricia was permitted to, and did, testify about the pain medication that her physician prescribed, and why she needed pain medication. The only issue she was not permitted to mention was her alleged addiction. Because plaintiff did not proffer any expert testimony to support her claim of addiction, Judge Blue correctly excluded it. See Kelly v. Berlin, 300 N.J. Super. 256, 267 (App. Div. 1997) (holding that if a subject is not within the common knowledge of a jury, expert opinion is required).
In Point VI, Douglas argues that the judge erred when she denied his motion for a directed verdict. He contends that the herniated disc he suffered as a result of the accident qualifies as a permanent injury, thus entitling him to a directed verdict. In particular, he sought an instruction that if the jury found he sustained a herniated disc as a result of the accident, he had thereby demonstrated a permanent injury as a matter of law. In support of that argument, he relied on Pardo v. Dominguez, 382 N.J. Super. 489, 490-92 (App. Div. 2006), where we held that a herniated disc, demonstrated through an MRI, is sufficient to satisfy the verbal threshold.
A motion for a directed verdict, filed pursuant to Rule 4:40-1, must be denied whenever a jury could, even if it accepted all of the evidence that supports the position of the moving party, nonetheless render verdict in favor of the party opposing the motion. Edwards v. Walsh, 397 N.J. Super. 567, 571 (App. Div. 2007). Such motion should be denied when questions of credibility must be resolved by a jury. Alves v. Rosenberg, 400 N.J. Super. 553, 566 (App. Div. 2008).
Here, Judge Blue reasoned that the jury was faced with the task of deciding which expert was the more credible: Douglas's expert, Dr. Gleimer, who testified that Douglas's disc herniation was permanent and would adversely affect him indefinitely, or defendant's expert, Dr. Gerson, who opined that the herniation could as easily have been caused by a snowball thrown at Douglas's lower back years earlier as by the accident. Gerson also opined that many people who sustain a herniated disc are nonetheless able to function normally, and suffer no adverse sequelae as a result of the herniation. Under those circumstances, Judge Blue was correct when she found that the evidence was in such conflict that plaintiff's motion for a directed verdict should be denied. See Ibid.
Moreover, as we recently observed in Ames v. Gopal, 404 N.J. Super. 82, 85 (App. Div. 2008):
Our conclusion in Pardo that the existence of a herniated disc, demonstrated through an MRI, is sufficient to satisfy the verbal threshold for purposes of a motion for summary judgment is not the equivalent of a holding that the existence of a herniated disc caused by an accident entitles one to an award of damages at trial.
Stated differently, while a herniated disc may be sufficient to resist summary judgment, it does not entitle the plaintiff to a directed verdict as a matter of law. Ibid. Thus, we affirm Judge Blue's denial of Douglas's motion for a directed verdict, and reject the argument he raises in Point VI.
In Point VII, Douglas argues that the judge erred when she permitted Gerson to testify about his MRI results, even though Gerson never saw the actual studies and relied solely on the report of the radiologist who interpreted those studies. His reliance on Brun v. Cardoso, 390 N.J. Super. 409 (App. Div. 2006) is misplaced. There, we held that it was error to introduce the substance of the MRI report, authored by a non-testifying radiologist, through a testifying chiropractor who was himself not qualified to read and interpret MRI studies. Id. at 415, 421. Here, unlike in Brun, Gerson was qualified to read and analyze MRI studies. Moreover, an expert such as Gerson is permitted to rely on hearsay, such as a radiologist's report, if such document is "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. We therefore reject the claim Douglas advances in Point VII.
Last, in Point VIII, plaintiffs argue that the trial court committed reversible error when it barred evidence of an instructional memorandum issued by Marquis Medical Administrators (MMA) to its participating physicians. MMA is a vendor used by insurance carriers to set up appointments for independent medical examinations. In particular, plaintiffs point to a 2005 memo issued by MMA to Gerson's partner, Dr. Friedenthal, in which MMA stated, "do not comment on causal relationship. Where applicable, comment on possible alternative causes of injury and indicate if the relationship cannot be established owing to these possible alternative causes."
Plaintiffs argue that the jury had a right to consider the content of the MMA instructional memo when it evaluated Gerson's credibility. Allstate in turn maintains that the 2005 memo was not part of Gerson's file concerning his evaluation of plaintiffs; the memo related not to plaintiffs but to a different patient; and the memo had been sent to Gerson's partner, and not to Gerson himself.
In sustaining defendant's objection to evidence of the MMA memo, the judge reasoned that plaintiffs were unable to demonstrate that the memo in question reflected "the custom and habits" of "the way [MMA] operates," or that MMA sent such letters as a matter of its "custom" or "business habits." The judge also observed that the memo in question was entirely unrelated to Gerson's examination of Patricia and Douglas. Under the circumstances presented, we agree with Judge Blue's reasoning and with her conclusion that the MMA memo had no relevance to the issues before the jury, and that consequently the prejudice to defendant from admitting the memo would vastly outweigh its non-existent probative value. See N.J.R.E. 403. We thus reject the claim plaintiffs advance in Point VIII.