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Hisenaj v. Kuehner


December 18, 2009


On appeal from the Superior Court of New Jersey, Law Division, Morris County, L-657-00.

Per curiam.


Argued November 30, 2009

Before Judges Lisa, Alvarez and Coburn.

This is a personal-injury action for injuries sustained in an automobile accident that occurred on March 2, 1998. Since liability was conceded, the trial was limited to damages. The jury awarded plaintiff $50,000. Plaintiff unsuccessfully moved for a new trial or additur and then appealed. We reversed and remanded for a new trial on the ground that the testimony of one of defendant's experts was improperly admitted into evidence. Hisenaj v. Kuehner, 387 N.J. Super. 262 (App. Div. 2006). The Supreme Court granted defendant's petition for certification and reversed our judgment, holding that admission of the expert's testimony fell within the trial judge's discretion. Hisenaj v. Kuehner, 194 N.J. 6, 25 (2008). In addition, the Court remanded the case to us for "consideration of plaintiff's unresolved appellate issues." Ibid. We then granted plaintiff's motion to file a supplemental brief, noting that our grant of that relief "in no way alters the scope of the issues on appeal, which are limited to those remanded by the Supreme Court." We also permitted defendant to file a brief in response to plaintiff's supplemental brief.

In plaintiff's supplemental brief, she argues under Point I that the judge erred in denying her motion for a new trial because the jury's determination that plaintiff had not suffered a permanent injury pursuant to N.J.S.A. 39:6A-8(a) "was the result of improperly allowed testimony and defense counsel's improper summation references to a subsequent accident." Under Point II, plaintiff argues that the $50,000 award must be reversed because "it was the result of an improper jury instruction [Not raised Below] and was against the weight of the evidence." Plaintiff did not make the jury instruction argument in her original appellate brief. Although plaintiff had previously argued to us that she was entitled to an additur to be set by us or by the trial court on remand, it appears that she is no longer pursuing that relief, insisting instead on a new trial on damages.


Plaintiff was involved in two automobile accidents. The first occurred on March 2, 1998, and the second occurred on January 5, 2002. In the interests of economy, we incorporate by reference our original statement of facts, which included a detailed description of the lay and expert testimony regarding plaintiff's course of treatment and the opinions of the physicians who testified for each party. Hisenaj, supra, 387 N.J. Super. at 264-70. Nevertheless, we will briefly summarize the medical testimony set forth in that decision.

The thrust of the lay and expert testimony submitted for plaintiff was that all of her injuries were due to the first accident. The most significant injuries claimed were three herniated discs in plaintiff's lumbar and cervical spine. Dr. Charles Kalko, a neurosurgeon, performed two major operations on the discs. He also opined that these injuries were caused by the first accident, and that plaintiff was left with permanent disability.

The testimony of the physicians offered by defendant, an orthopedic surgeon and a neuroradiologist, was that plaintiff was suffering from degenerative changes in her spine that were unrelated to the March 1998 accident. And the orthopedic surgeon opined that there was no objective medical finding justifying the surgeries. As we noted in our previous opinion, "the opinions of the experts were plainly at odds as to whether the accident caused any serious cervical or lumbar injuries to plaintiff, necessitating surgery and resulting in permanency." Id. at 269.

Since plaintiff's main argument concerns the treatment of the second accident at trial, which she says prejudiced her case, we should reiterate what occurred in this regard on the first day of trial. Before openings, plaintiff's counsel asked the trial judge to exclude all evidence regarding the second accident. The motion was based on the ground that pretrial discovery had revealed that no expert believed that the second accident was a cause of plaintiff's injuries. The judge reserved on the issue, cautioning counsel to omit reference to the second accident in their opening remarks to the jury. Originally, plaintiff argued to us that the judge's failure to rule on the issue before openings was reversible error. We rejected the argument. Id. at 278. Since the Supreme Court's remand is limited to the issues we left undecided in our first opinion, we cannot revisit this issue, which we resolved. However, we did note that "[p]laintiff's counsel made a strategic decision to preemptively elicit in his questioning of a medical witness that plaintiff was involved in the later accident rather than risk a negative jury reaction for appearing to conceal information if the ultimate ruling was adverse." Ibid.

Plaintiff's counsel suggests now that his introduction of the second accident was necessitated by the following comments made by defense counsel in his opening:

[I] will also prove to you that subsequent to this March 2, 1998 accident plaintiff had additional injuries, and that they will also show up on MRIs that were taken in January of 2002, four years later new findings . . . . Those MRIs are significant. When the experts testify you'll understand why, and they'll tell you why. . . . .

Those MRIs take place on January 8th, 2002. Again, that is a significant date. . . . .

We then fast forward to January, 2002 . . . . there is a new herniated disk that was not there back in 1998 after the accident . . . And he'll explain to you that . . . if you don't have a herniated disk back in 1998, you're not all of a sudden going to get one three years later from the same accident.

Plaintiff's brief then summarizes defense counsel's handling of the second accident during the testimonial portion of the trial as follows:

During his direct examination of Dr. Haidri, as counseled by the Trial Judge, Plaintiff's counsel questioned whether he had asked Ms. Hisenaj about subsequent accidents. Dr. Haidri testified that Ms. Hisenaj told him that she had been in a minor automobile accident on January 5, 2002, but had not sustained any injuries therefrom.

On cross examination, defense counsel asked Dr. Haidri "[d]id I hear you correctly that plaintiff told you she was involved in an automobile accident, January 5th, 2002? Is that your testimony?" He then proceeded to inquire as to differences between the March 1998 and January 8, 2002 lumbar spine MRIs, concluding with the question "[a]nd you know that she was involved in an automobile accident, you said on January 8, 2002."

On direct examination, Ms. Hisenaj was asked whether she was involved in a subsequent accident, what had occurred and whether she sustained any personal injury in that accident. She was also asked whether she was hurt in any manner between the time of the first accident and the subject surgeries.

Cross examination of Ms. Hisenaj occurred after the testimony of another of her physicians, which included cross examination regarding the subsequent accident, and one of her children, which also included testimony as to that accident. Defense counsel asked Ms. Hisenaj thirteen questions about the details of the accident. Defense counsel then referred to the January 5th accident seven more times while questioning Ms. Hisenaj as to her subsequent MRI's and medical consultations. Defense counsel questioned Ms. Hisenaj once more as to whether she had sustained any injuries in the subsequent accident.

Plaintiff's counsel did not question Ms. Hisenaj's surgeon, Dr. Charles Kalko about the subsequent accident. Defense counsel, however, inquired as to whether Plaintiff had told Dr. Kalko told of the subsequent accident. Defense counsel then posed four additional questions related to the subsequent accident.

Defense counsel cross examined Dr. Floriani, one of Ms. Hisenaj's treating physicians, about the subsequent accident, whether her injuries could have resulted from "some other traumatic event", and about the 2002 MRIs.

Ms. Hisenaj's daughter, Lilly, was questioned on direct as to whether she was aware of the subsequent accident, what her mother had told her about it and whether her mother had seen any physicians after that accident.

Dr. Douglas Noble, testifying for the defense as an expert neuroradiologist, stated that he determined that there were new findings on the January 25, 2002 MRIs which did not appear on the 1998 films, and "had to be due to causes between" the two sets of MRIs.

Biomechanical engineer Harold Alexander, PhD., testified on both direct and cross examination that, alluding to the subsequent accident, there is a greater likelihood of injury in a front end accident than in a rear end accident.

Plaintiff then notes that during a portion of defense counsel's summation when he was discussing Dr. Noble's testimony, he said this: as to whether there was a herniation as of March 19, 1998 . . . And you saw it, ladies and gentlemen, it wasn't there. And he also, by the way, showed you the January 8, 2002. Ah-ha, remember when I told you that this was just a bulge, well, now . . . we've got a new herniation. . . . Cervical spine, ah-ha, January 2002, there is the herniation. It wasn't there back in . . . March of '98, but there in 2002. New finding, not related.

Finally, plaintiff notes that her counsel did not refer to the second accident in his summation and that the trial judge's jury instructions "contained no mention of the subsequent accident."

Plaintiff's counsel made no objection whatsoever to defense counsel's questions about the second accident or to his comments to the jury.


Since plaintiff's counsel offered no objection to defense counsel's opening and closing remarks or to his examination of witnesses about the second accident, the plain error rule applies. Thus, we can only reverse if the course followed by defense counsel was "of such a nature as to have been clearly capable of producing an unjust result . . . ." R. 2:10-2; Fitzgerald v. Roberts, Inc., 186 N.J. 286, 318 (2006) (quoting R. 1:7-5). In evaluating plaintiff's claim in this regard, we must also keep in mind that "[t]he absence of an objection suggests that trial counsel perceived no error or prejudice" and that his failure to object "prevented the trial judge from remedying any possible confusion in a timely fashion." Bradford v. Kupper Assocs., 283 N.J. Super. 556, 573-74 (App. Div. 1995), certif. denied, 144 N.J. 586 (1996). Moreover, "relief under the plain error rule, at least in civil cases, is discretionary and 'should be sparingly employed.'" Gaido v. Weiser, 115 N.J. 310, 311 (1989) (quoting Ford v. Reichert, 23 N.J. 429, 435 (1957)).

Application of the cited principles leads inexorably to the conclusion that plaintiff has failed to meet the high standard for reversal on the grounds of plain error in a civil case. Although the remarks by defense counsel in opening and closing to the jury might be understood as referencing the second accident as a cause of plaintiff's injuries, they do not expressly make that assertion. Since no expert testified that the 2002 accident was the cause of plaintiff's injuries, and since the jury was appropriately charged with respect to its obligation to decide the case on the evidence and with respect to evaluation of expert testimony, including its bearing on causation, we perceive no basis for inferring that the second-accident testimony was clearly capable of causing an unjust result.

So far, we have treated this aspect of the case on the assumption that defense counsel's conduct was legal error. But, as we noted in our original decision, plaintiff's counsel opened the door on the question of the significance, or lack thereof, of the second accident during his direct examination of his witnesses. Hisenaj, supra, 387 N.J. Super. at 278. Since he placed the matter in issue, defense counsel was entitled to cross-examine on it. See Glenpointe Assoc. v. Twp. of Teaneck, 241 N.J. Super. 37, 55 (App. Div.), certif. denied, 122 N.J. 391 (1990) and N.J.R.E. 611(b); State v. Pollack, 43 N.J. 34, 39 (1964) ("Cross-examination should be allowed to extend to anything which is relevant to the improbability of the direct evidence."). Therefore, even though defense counsel knew that his expert witnesses would not opine that plaintiff's disc injuries resulted from the second accident, since in their view the medical cause was degeneration due to aging, he was entitled during cross-examination of plaintiff and her experts to see if he could extract from them admissions implicating the second accident as a causative factor.

In any case, whether error or not, the record clearly reveals, by the lack of objection, that even if plaintiff's counsel believed that defendant's strategy was improper, he did not also believe that the strategy was prejudicing plaintiff's case. As already noted, a finding of prejudice here depends on the assumption that the jury disregarded the trial court's instructions respecting causation. Since none of the expert witnesses opined that the second accident caused plaintiff's injuries and since defense counsel did not expressly so argue, we perceive no basis for inferring that the jury disregarded its duty to render justice in accordance with the law as charged.

Finally, we turn to plaintiff's second point, which argues that the $50,000 jury award was against the weight of the evidence and resulted from the judge's failure to charge the jury to disregard the second accident.

Plaintiff concedes that the charge issue was not raised at trial, and asks for application of the plain error rule. However, defendant argues that the issue is not within the scope of this appeal since it is outside the bounds of the Supreme Court's remand order. Plaintiff did not address that aspect of the appeal in either her supplemental brief or in her reply to defendant's supplemental brief. Defendant is clearly correct in this regard. We are obliged to limit ourselves to the issues set forth in the Supreme Court's order. See Miah v. Ahmed, 179 N.J. 511, 528 (2004). In this case, those are the issues previously left undecided by our original decision. Since this is not such an issue, we conclude by addressing briefly plaintiff's claim that the monetary damages awarded were against the weight of the evidence.

On this last issue, having carefully considered the record and briefs, we affirm substantially for the reasons expressed by Judge W. Hunt Dumont in his thorough and well-reasoned oral opinion of November 28, 2003. Nonetheless, we add the following comment.

Plaintiff recognizes that the jury's award must stand unless it is plainly wrong or shocking to the conscience of the court. Mahoney v. Podolnick, 168 N.J. 202, 229-30 (2001). But her argument, which is implicitly based on the assumption that the jury had to accept all the evidence favorable to her, disregards the rule that in reviewing a jury's verdict a judge must view the evidence in the light most favorable to the party opposing the motion for relief. Caldwell v. Haynes, 136 N.J. 422, 432 (1994). Judge Dumont's decision reflects a proper understanding and application of that principle.

In our original opinion, we observed that the "jury apparently found that the accident caused plaintiff's pre-existing disc disease to become symptomatic and painful for a time, but it did not cause any herniations or other permanent injuries." Hisenaj, supra, 387 N.J. Super. at 266. Viewing the record again in the light most favorable to defendant, we adhere to that conclusion. Therefore, we find no basis for saying that Judge Dumont erred in reaching the conclusion that the verdict was not so low as to shock the judicial conscience.



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