May 21, 2009
TELMA RIVERA, PLAINTIFF-APPELLANT,
FANNY CABRERA, DEFENDANT-RESPONDENT, AND MAXIMO GONZALEZ, DEFENDANT.
On appeal from Superior Court of New Jersey, Law Division, Mercer County, Docket No. L-1128-04.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted April 29, 2009
Before Judges Lyons and Espinosa.
Plaintiff Telma Rivera appeals from a jury verdict of no cause for action in her personal injury action. Two errors are alleged. First, she contends that the trial court erred in excluding the testimony of four witnesses who were identified in answers to interrogatories only as "Plaintiff's friends, family members and co-workers." Second, she alleges that the trial court erred in denying her request to charge the jury on the aggravation of a pre-existing injury. We affirm.
Plaintiff had the misfortune of being involved in three automobile accidents within seven weeks. She was the driver in a one-car accident that occurred on April 25, 2002, but reported no injuries as a result of that accident. This lawsuit arose from the second accident, which occurred on May 2, 2002, when her automobile was struck from the rear by an automobile driven by defendant, Fanny Cabrera.*fn1 The third accident occurred on June 5, 2002.
Defendant stipulated liability at trial. Because plaintiff's personal injury claim was subject to the limitation-on-lawsuit option, or "verbal threshold," of the Automobile Insurance Cost Reduction Act (AICRA), N.J.S.A. 39:6A-1.1 to -35, the issues for the jury to decide were whether plaintiff suffered a permanent injury within the meaning of AICRA and, if so, the amount of damages. The following issues are raised on appeal:
THE TRIAL COURT'S DECISION TO EXCLUDE PLAINTIFF'S WITNESSES, NORMA MENENDEZ, MIRIAM RIVERA, RODRIGO VARELLA AND PRATINA [SIC] SHAH, FROM BEING ABLE TO TESTIFY AT TRIAL WAS PREJUDICE TO THE PLAINTIFF; AND IS A REVERSIBLE ERROR.
THE TRIAL COURT'S DECISION TO EXCLUDE THE AGGRAVATION CHARGE CAUSED THE JURY CHARGE TO BE INAPPROPRIATE AND INCORRECT, LEAVING THE JURY CHARGE CLEARLY CAPABLE OF PRODUCING AN UNJUST RESULT; THIS FAILURE TO CHARGE REGARDING AGGRAVATION IS REVERSIBLE ERROR.
In answers to interrogatories, plaintiff named several persons with relevant factual knowledge but also stated that the list of persons with such knowledge included "Plaintiff's friends, family members and co-workers," without any further description of their identity or the facts known to them. On the day of trial, plaintiff's counsel identified four persons as witnesses who fell within those categories: Miriam Rivera, Norma Menendez, Rodrigo Varella and Pratima Shah. Defense counsel objected to their testimony because their names had not been provided previously in discovery. Plaintiff's counsel argued that the witnesses should be permitted to testify since they had been generally described and defense counsel had not made a motion for more specific answers to interrogatories.
In deciding this issue, the trial court relied upon Rule 4:17-7, which provides in pertinent part:
[I]f a party who has furnished answers to interrogatories thereafter obtains information that renders such answers incomplete or inaccurate, amended answers shall be served not later than 20 days prior to the end of the discovery period, as fixed by the track assignment or subsequent order. Amendments may be allowed thereafter only if the party seeking to amend certifies therein that the information requiring the amendment was not reasonably available or discoverable by the exercise of due diligence prior to the discovery end date. In the absence of said certification, the late amendment shall be disregarded by the court and adverse parties.
As the trial court noted, plaintiff's counsel did not provide a certification of due diligence to support the late amendment of answers to interrogatories. Further, the court observed that the anticipated testimony from the proposed witnesses appeared to be cumulative to information that plaintiff would provide. The court's decision to exclude the testimony of the witnesses identified for the first time on the day of trial was entirely consistent with Rule 4:17-7 and did not constitute error.
We also reject plaintiff's argument that a charge on the aggravation of a pre-existing condition should have been given in this case. Prior to trial, the court asked plaintiff's counsel whether he would be arguing "aggravation" or "non-aggravation." Plaintiff's counsel stated, "We have chosen non-aggravation, your Honor." Consistent with that theory, plaintiff presented the expert testimony of Dr. Gary Goldstein, who opined that plaintiff suffered an injury to her back that was caused by the May 2002 accident and that entailed "some permanent loss of functionality." Defendant did not present any expert testimony in opposition. During a colloquy with counsel, the court confirmed the absence of any expert testimony that plaintiff had aggravated a prior condition:
THE COURT: Well . . . Dr. Goldstein's testimony is that this condition, and it has to be a permanent condition to get past the threshold, this condition was caused by the May 2002 accident.
No testimony at all, none, has been given which indicates there's been an aggravation of a pre-existing condition in this case.
MR. HEIZLER: That's correct.
MR. BOKMA: That's correct.
THE COURT: I don't see that you get the charge then under that circumstance. So, I am not going to give the aggravation charge, all right?
Plaintiff's counsel did not object to the charge as given.
There must be some support in the evidence for a charge to be given. Dynasty, Inc. v. Princeton Ins. Co., 165 N.J. 1, 13-14 (2000). Further, when a party has requested a charge that has been rejected by the court, the plain error standard will apply in the absence of an objection to the final charge. Id. at 17-18. To prevail under this standard, plaintiff must show "legal impropriety in the charge prejudicially affecting [her] substantial rights . . . and sufficiently grievous to justify notice by the reviewing court and to convince the court that of itself the error possessed a clear capacity to bring about an unjust result." Id. at 18 (quoting State v. Hock, 54 N.J. 526, 538 (1969), cert. denied, 399 U.S. 930, 90 S.Ct. 2254, 26 L.Ed. 2d 797 (1970)).
Therefore, to prevail on this issue, plaintiff must first show that the failure to give the aggravation of a pre-existing injury charge constituted a "legal impropriety." Moreover, for this charge to be appropriate, there must be a predicate condition or injury that existed before the accident that is the subject of the lawsuit. In her answers to interrogatories, plaintiff stated that she had "no prior injuries." The only medical expert testimony presented to the jury attributed her injury to the accident in question and not to the aggravation of any prior accident or condition. Without such a predicate condition, there was neither a legal impropriety nor any error in refusing to give this instruction.