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Rivera v. Cabrera

May 21, 2009

TELMA RIVERA, PLAINTIFF-APPELLANT,
v.
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.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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:

POINT I

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.

POINT II

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 ...


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