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Brimage v. Sugara


May 7, 2009


On appeal from Superior Court of New Jersey, Law Division, Middlesex County, No. L-8930-04.

Per curiam.


Argued March 31, 2009

Before Judges Wefing and Yannotti.

Defendant appeals from a judgment for $200,000 entered in plaintiff's favor following a jury trial. After reviewing the record in light of the contentions advanced on appeal, we affirm.

While sitting in a line of traffic stopped for a red light, plaintiff's vehicle was struck in the rear by a car driven by defendant. Plaintiff sued for damages, alleging she suffered a permanent injury to her lower back; she also said she was left with numbness and weakness in her left leg. The trial was brief. Plaintiff testified, and she presented the videotaped testimony of her expert, Antonio Ciccone, D.O., her treating doctor. The only witness for the defense was Edward Rachlin, M.D. Defendant could not be located following the accident and did not appear at the trial, which was held on damages only.

Dr. Ciccone diagnosed plaintiff as having suffered a bulging disc in the accident, with left-sided radiculopathy. He treated her for approximately six months with physical therapy and trigger point injections. He had not seen her for several years by the time the trial occurred. Plaintiff testified that at the time of the accident she was a single mother with three children, working a full-time job to support them. She was twenty-eight years old at the time of the accident and thirty-three at the time of trial. She told the jury about the impact her injuries had on her and how they limited her activities. Defendant's witness, Dr. Rachlin, told the jury that in his examination he found no objective evidence of a permanent injury. Clearly, by its verdict, the jury found Dr. Ciccone more persuasive than Dr. Rachlin.

Defendant makes two arguments on appeal: that the trial court should have granted his motion for a new trial because the verdict was against the weight of the evidence and that the trial court should have granted his motion for a new trial because of improper comments in plaintiff's summation.

We disagree with the first contention. The jury heard clearly different opinions expressed by Dr. Ciccone and Dr. Rachlin. It had the opportunity to see and assess plaintiff as she described her daily routine and how the accident affected it. The jury's verdict was undeniably generous, but having carefully reviewed the record before us, we cannot conclude that the trial court's denial of defendant's motion for a new trial was a manifest injustice. R. 2:11-3(e)(1)(C).

Defendant also contends that certain remarks by plaintiff's counsel in his summation were so improper and inflammatory that he is entitled to a new trial. We agree with defendant that the remarks he complains of were, indeed, improper. Defendant's attorney in his summation did no more than was his duty to his client, suggesting to the jury factors it might take into account when it retired to deliberate. It was improper for plaintiff's attorney to accuse defense counsel of having "attacked the victim." Tonsberg v. VIP Coach Lines, Inc., 216 N.J. Super. 522, 530 (App. Div. 1987) (noting that it is not improper for defense counsel to argue that a plaintiff's injuries were not as serious as portrayed). Plaintiff was not entitled to have the jury accept her evidence uncritically merely because she had the misfortune to have been involved in this accident.

It was even more improper for plaintiff's counsel to compare the summation of defense counsel to the actions of a criminal defense attorney defending his client against a sexual assault charge by attacking the victim.

Although attorneys are given broad latitude in summation, they may not use disparaging language to discredit the opposing party, or witness, or accuse a party's attorney of wanting the jury to evaluate the evidence unfairly, of trying to deceive the jury, or of deliberately distorting the evidence. [Rodd v. Raritan Radiologic Assocs., P.A., 373 N.J. Super. 154, 171 (App. Div. 2004) (citations omitted).]

The more difficult question is whether these improper remarks by plaintiff's counsel warrant a new trial. We have concluded that, on balance, they do not.

At the conclusion of plaintiff's summation, before the trial court commenced its charge to the jury, defense counsel went to sidebar and told the trial court he had several objections to make to plaintiff's summation. The court inquired whether any of the objections required a curative instruction, and defense counsel responded that plaintiff's attorney had made two remarks about plaintiff for which there was no evidence in the record. To this the court responded that it would tell the jury to rely upon its own recollection. The trial court indicated that defendant's attorney could place his remaining objections on the record after it charged the jury. For reasons that are not apparent from the record before us, defendant's attorney did not get that opportunity.

Defense counsel clearly made the strategic election not to seek a curative instruction to ameliorate whatever prejudice the remarks of plaintiff's counsel might have engendered. Having foregone that opportunity at trial, we decline to give defendant a new trial now. We note for the future guidance of the trial court and counsel that the better practice is for counsel to have the opportunity to place all objections to summations on the record before the trial court gives its charge to the jury.

The judgment under review is affirmed.


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