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Cohen v. Cuomo

August 21, 2009

STEVEN COHEN, PLAINTIFF-APPELLANT,
v.
GINAMARIE F. CUOMO AND ANDREA A. CUOMO, DEFENDANTS-RESPONDENTS.



On appeal from Superior Court of New Jersey, Law Division, Mercer County, Docket No. L-0270-04.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued April 22, 2009

Before Judges Parrillo, Lihotz and Messano.

In this auto negligence matter, plaintiff Steven Cohen appeals from a judgment following a jury verdict, which attributed eighty percent liability to defendant Ginamarie F. Cuomo,*fn1 but awarded no damages after concluding plaintiff did not suffer permanent injuries as required by N.J.S.A. 39:6A-8. On appeal, in addition to arguing the verdict was against the weight of the evidence, plaintiff challenges various trial rulings. We have considered the arguments raised in light of the record and applicable legal standards and we affirm.

The basic facts surrounding the accident follow. On June 12, 2002, at approximately 9:00 p.m., plaintiff's vehicle, while traveling northbound on Yardville Hamilton Square Road nearing the Klockner Road intersection, was struck by defendant's vehicle, which was traveling on the same road in the opposite direction, when she turned left in front of plaintiff's oncoming car. Immediately after the accident, plaintiff told his wife "he never saw" defendant's car prior to impact as "she came out of nowhere."

As a result of the accident, plaintiff remembered hitting his head on the center console and being helped out of his vehicle and laid down on a nearby curb. Plaintiff was dizzy and "a little dazed as to what actually happened," his head was hurting, and he felt a lump on his head as he wiped blood from his eyes. He also hit his right knee. Plaintiff had a cut above his left eye, a large hematoma around his left eye and forehead, and tenderness on his right shin.

Plaintiff did not remember speaking with anyone at the scene. In contrast, defendant testified plaintiff spoke to her and told her he was not wearing his seatbelt. She further testified that after the accident, plaintiff sat on a nearby curb and smoked a cigarette.

Officer James Scott of the Hamilton Township Police Department reported to the scene of the accident. In his report, Officer Scott noted plaintiff suffered moderate injuries, was conscious and comprehended and responded to questions. He further recorded the only safety equipment used was an airbag, suggesting plaintiff denied using a seatbelt. Officer Scott radioed for an ambulance, which took plaintiff to Robert Wood Johnson University Hospital (RWJ).

Defendant was issued a summons at the scene. She later pled guilty to a downgraded charge during a municipal court hearing.

At trial, plaintiff presented expert testimony in support of his position that he suffered various injuries as a result of the accident, including but not limited to a closed head injury, bulging and herniated discs, memory loss, vision impairment, a torn left medial meniscus, and post-traumatic psychiatric disorder. He also asserted he was prevented from returning to his prior employment as a truck driver. Experts presented by the defense disputed plaintiff's conditions were caused by or related to the accident.

On appeal, plaintiff raises these points for our consideration:

POINT I: DEFENDANT WAS IMPROPERLY PERMITTED TO UNDERMINE THE COURT'S PRIOR RULING THAT THERE WOULD BE NO SEATBELT DEFENSE TO THE EXTREME PREJUDICE OF PLAINTIFF.

POINT II: PLAINTIFF WAS DENIED A FAIR JURY SELECTION PROCESS IN ACCORDANCE WITH JURY SELECTION STANDARDS MANDATED BY THE SUPREME COURT OF NEW JERSEY.

POINT III: THE FINDINGS OF FACT OF THE JURY ARE IRRATIONAL AND AGAINST THE WEIGHT OF THE EVIDENCE.

POINT IV: THE TREATMENT OF PLAINTIFF'S EXPERT ECONOMIST WAS SO DEMEANING AND DISDAINFUL AS TO COMPLETELY UNDERMINE THE CREDIBILITY OF PLAINTIFF'S PRESENTATION, WHILE PLAINTIFF'S ECONOMIST WAS IMPROPERLY BARRED FROM TESTIFYING TO HIS ANALYSIS CONTAINED IN HIS REPORTS.

POINT V: PLAINTIFF WAS PREJUDICED BY THE ALLOWANCE OF HEARSAY TESTIMONY BY DEFENDANT'S NEUROLOGY EXPERT.

POINT VI: PLAINTIFF IS ENTITLED TO A MISTRIAL WITH COSTS.

We will address each of these issues and include, as necessary, additional relevant facts presented at trial.

Plaintiff first argues the trial court erred when it permitted defense evidence in contravention of an in limine order. Plaintiff filed a motion to bar the trial testimony of defendant's proffered seatbelt experts, asserting they were net opinions. An order entered on August 4, 2006 granted plaintiff's request.*fn2 Thereafter, plaintiff moved in limine for exclusion of references in the hospital and medical records suggesting he was an "unrestrained driver."*fn3 Plaintiff asserted defendant would use the references to suggest plaintiff's failure to wear a seatbelt caused his injuries.

The trial judge denied plaintiff's motion, concluding the contradictory statements made by plaintiff regarding his seatbelt usage were admissible inconsistent statements by a party and relevant to test plaintiff's credibility. The court also emphasized the accuracy of plaintiff's recollection of the events surrounding the accident in June 2002 was crucial.

However, the court granted plaintiff's request to instruct the jury that his seatbelt usage was not to be considered "as a fact bearing upon comparative negligence." See N.J.R.E. 105 (requiring court, upon request, to instruct jury as to proper scope when evidence is admissible for one purpose but not another). The court stated: "I think the . . . instructions will safeguard any danger that the jury will . . . make a finding that seatbelt use is an issue in this case with regard to comparative negligence. And I'll specifically . . . charge that [the] seatbelt issue, other than for credibility purposes, is not an issue in this case."

On cross-examination, plaintiff was asked to explain why he initially stated to police, emergency personnel, his family doctor, and an orthopedist that he either was not wearing a seatbelt or was unsure whether he was restrained, then, more than two years after the accident, changed that statement. He told two treating specialists he was wearing a seatbelt and testified in depositions that he always wears a seatbelt because it automatically engages when you are seated in the car.

On appeal, plaintiff argues allowing evidence, which implied his non-use, even for a limited purpose, caused the jury to engage in improper "speculation and conjecture" and conclude "he was lying to them when he testified that he was wearing a seatbelt and shoulder harness." Citing Waterson v. Gen. Motors Corp., 111 N.J. 238 (1988), plaintiff maintains "evidence of non-use must be excluded in a case where the court has determined that a seatbelt defense is excluded."

In Waterson, supra, the Court determined whether evidence of a plaintiff's failure to use a seatbelt was admissible on the issue of liability. 111 N.J. at 242. The Court adopted this principle: if a jury finds that a plaintiff's failure to wear a seat belt constitutes negligence that contributed to plaintiff's injuries and damages, that negligence shall be considered in determining plaintiff's award. . . . [A] plaintiff's recovery for injuries that could have been avoided by seat-belt use may be reduced by an amount reflecting plaintiff's comparative fault in not wearing a seat belt. . . . The jury may take into account plaintiff's negligent failure to use a seat belt only to reduce plaintiff's recovery for these seat-belt damages. [Id. at 241.]

Here, the trial court stated the non-use evidence was not produced to show plaintiff bore a measure of fault for his injuries, but rather the references were directed to whether plaintiff's version of the accident, as told immediately after the accident, changed over time. Defendant makes no claim that the evidence somehow touched on the character of plaintiff's injuries, as everyone conceded it was irrelevant to negligence.

We fail to understand the purpose of placing the non-use evidence before the jury. Once the trial court properly excluded the seatbelt defense, in light of defendant's failure to demonstrate through expert testimony that plaintiff's non-use increased the severity or extent of his injuries, the statements were irrelevant. Since the non-use evidence had been excluded regarding the critical issue of plaintiff's negligence, "then both the specific and general effects of any contradiction on such a collateral matter have very little value." Gonzalez v. Silver, 407 N.J. Super. 576, 594-95 (App. Div. 2009) (citing Mueller & Kirkpatrick, Evidence, § 6.62 at 677 (1995)). Regarding liability, although defendant did not concede this issue, plaintiff's version of the accident matched defendant's. Therefore, plaintiff's report that he was unrestrained when the collision occurred, but thereafter asserted he wore a seatbelt, did not relate to a disputed fact or bear on the jury's role to assess fault and evaluate the nature, including permanency, of plaintiff's injuries.

Moreover, the evidence should have been excluded pursuant to N.J.R.E. 403, which grants a trial court the discretion to exclude otherwise admissible evidence if its probative value is outweighed by its prejudicial effect.

This balancing test applies whether or not the evidence is being admitted as direct evidence in the party's case-in-chief, or as indirect evidence for impeachment purposes.

See Biunno, Current N.J. Rules of Evidence, comment 1 on N.J.R.E. 607 (2007) ("The use of extrinsic evidence to enhance or impair the credibility of a witness may generally be done by the party who called the witness as well as by an adverse party, although . . . . [t]he trial court still has discretion under N.J.R.E. 403 to exclude extrinsic evidence if the court finds that the probative value of the evidence is substantially outweighed by any of the counterfactors mentioned in that rule."). [Gonzalez, supra, 407 N.J. Super. at 594-95.]

We reject the trial court's determination that the evidence was admissible on the issue of "whether or not [plaintiff's] recollection was accurate," relying on N.J.R.E. 607 (evidence of plaintiff's conflicting statements allowed to impeach credibility about his version of the facts). "Indeed, under present circumstances, impeach[ment] evidence cannot be used to support an inference that a witness has a 'tendency' to be untruthful." Id. at 594 (citing Reinhart v. E.I. DuPont de Nemours, 147 N.J. 156, 166 (1996)). The inferences allowed to be drawn did not bear on the substantive issues in this case to justify admission as prior inconsistent statements under N.J.R.E. 607, 613(b) or 803(a)(1). Ibid.

We will only reverse when a trial court's misapplication of discretion in evidentiary rulings results in a manifest denial of justice. State v. E.B., 348 N.J. Super. 336, 344 (App. Div.), certif. denied, 174 N.J. 192 (2002). In this matter, although we agree the trial court erred in allowing the evidence that plaintiff did not wear a seatbelt, we nevertheless determine the error was harmless, considering the repeated specific instructions given to the jury along with the evidence presented at trial as a whole.

The trial court instructed the jury about the limited use of the seatbelt references. Following the parties' opening statements, the court immediately issued the following limiting instruction:

[T]he use of the seatbelt, whether or not [plaintiff] was wearing a seatbelt, will not play any role in this case with regard to comparative negligence or any responsibility that [he] had to avoid any consequences from the accident by operating a seatbelt.

There's only one issue it's relevant to and that issue is to the credibility of [plaintiff] and that's what you'll assess. Whether or not his statements regarding the seatbelt use reflect at all upon his ...


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