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Zavala v. Novak

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


January 5, 2010

RENE ZAVALA, PLAINTIFF-APPELLANT, AND DEBORAH LASSO, HIS WIFE, PLAINTIFF,
v.
PATRICIA M. NOVAK, DEFENDANT-RESPONDENT, AND JOHN R. NOVAK, DEFENDANT.

On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-6342-06.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued November 12, 2009

Before Judges Stern, Sabatino and Newman.

This case arises out of a collision between a bicyclist and a sport utility vehicle ("SUV"). The bicyclist was injured and filed suit against the SUV driver. A jury found the bicyclist sixty-nine percent at fault in causing the accident and the driver only thirty-one percent at fault, thereby resulting in a "no-cause" judgment in favor of the defendant-driver.

The bicyclist now appeals, raising various allegations of trial error. We affirm.

I.

At about 5:10 p.m. on March 7, 2006, plaintiff*fn1 Rene Zavala was pedaling his Mongoose XR200 bicycle eastbound on Dutch Neck Road in East Windsor. Plaintiff intended to cross the intersection at U.S. Route 130 and continue east on Dutch Neck Road. The intersection is controlled by a traffic signal.

There are three lanes on Dutch Neck Road as it approaches the intersection in the opposite direction, from the east: a left-hand turn lane for vehicles turning onto Route 130 south; a middle lane for vehicles continuing straight; and a third lane for vehicles making right-hand turns onto Route 130 north.

It is undisputed that, upon changing from a red light, the traffic signal facing east on Dutch Neck Road temporarily displays an illuminated green arrow for vehicles turning left onto Route 130 south. When that green left-turn arrow times out, the signal changes first to an amber-colored arrow and then to a solid green light. It is also undisputed that drivers on Dutch Neck Road lawfully may turn left onto Route 130, even after the green arrow is replaced by the amber and then the solid green signals, provided that such left-turning drivers make appropriate observations. The same directional signals apply with respect to the traffic signal facing west.

As plaintiff was approaching the intersection on his bicycle on Dutch Neck Road from the west, defendant Patricia M. Novak*fn2 was approaching in her vehicle on Dutch Neck Road from the east. She was driving the SUV, a 2004 Nissan Pathfinder.

Defendant intended to make a left-hand turn onto Route 130 south.

Although the parties agree that the SUV collided with the bicycle within the intersection, they offered differing accounts about the mechanics of the accident. Their disparate narratives became the crux of the liability dispute at the ensuing trial.

According to plaintiff, who testified at depositions and at trial through a Spanish interpreter, his bicycle came to a full stop as he approached the intersection and he initially encountered a red light. He recalled being on the right side of Dutch Neck Road, and that he had been riding his bicycle on the pavement and not on the sidewalk. Plaintiff also recalled that he had rested one of his feet on the sidewalk and the other foot on his bicycle as he waited for the light to change.

Plaintiff contended that he waited for a few seconds after the light changed to a full green before starting through the intersection. As he pedaled forward, he heard a vehicle, which turned out to be defendant's SUV, accelerate. Plaintiff claimed that he tried to go around the SUV, but he was unsuccessful and the SUV struck his bicycle. The impact temporarily knocked plaintiff out. When he regained consciousness, plaintiff was on the ground, approximately forty-five feet from the point of the collision, feeling intense pain in his left ankle. His bicycle also was damaged.

The record suggests that, in approaching the intersection, plaintiff was under a misimpression about the propriety of vehicles continuing to turn left onto Route 130 south after the green left-turn arrow times out. At his deposition, plaintiff stated his belief that cars on Dutch Neck Road turning left onto Route 130 "cannot cross" once the green arrow "was already turned off." Plaintiff indicated that, in proceeding into the intersection, he had assumed that "no car was going to veer [into his path] because the arrow was already off so no car can cross." These deposition answers reflecting plaintiff's misunderstanding were read to the jury during plaintiff's cross-examination at trial. Plaintiff acknowledged that he has not held a driver's license and had not studied the traffic laws. On appeal, however, plaintiff does not dispute the legality of cars turning left onto Route 130 with a solid green light, provided that they make proper observations that the intersection is clear to do so.*fn3

Defendant, meanwhile, stated that she had stopped for a red light in the left-hand turn lane on Dutch Neck Road, facing west. She recalled being the fifth or sixth vehicle in line to turn left onto Route 130 south. She also recalled that after the arrow turned green, several vehicles ahead of her made the left-hand turn. However, the car immediately in front of her remained in the turning lane, as the signal changed from a green arrow to an amber arrow, and then finally to a solid green. After a brief pause to check oncoming traffic, the car directly in front of defendant turned left.

According to defendant, once the car ahead of her had made its left turn, she observed that no other vehicles were coming from the opposite direction and that the light was still a solid green. She then drove into the intersection and began turning left onto Route 130 south. At that point, she reportedly heard a loud "thumping" sound. She immediately pulled over to the side of the road, in front of a fast-food restaurant.

Another motorist, Daniel Mileaf, was near the intersection when the accident occurred. Mileaf became a key witness at trial. According to Mileaf, he was driving his own SUV, a Kia Sportage, on Dutch Neck Road, traveling in the same easterly direction as plaintiff. Mileaf was on his way home from work; and planned on turning right onto Route 130 south. He first saw plaintiff about 100 to 200 yards from the intersection. At that point, according to Mileaf, plaintiff was riding his bicycle on the sidewalk. Mileaf was then traveling at about thirty-five miles per hour. He observed that plaintiff, although he was not going as rapidly as Mileaf's SUV, was pedaling "very, very hard" and "very fast." Plaintiff appeared to be standing up and "the bike was going back and forth while he was leaning into it very hard." Mileaf estimated that plaintiff's speed was approximately twenty miles per hour.

Mileaf recalled initially passing plaintiff's bicycle. Mileaf then began to slow down, because the light at the Route 130 intersection was then red. As Mileaf slowed down, plaintiff's bicycle passed him, at a point about thirty feet from the intersection. Mileaf was unsure of the bicycle's speed at that point, but he believed that it was "still a good clip" of at least ten or fifteen miles per hour. The light then changed to green, but Mileaf came to a stop because there were other vehicles stopped in front of him.

Mileaf testified that he then looked away for a "matter of seconds" from the area of plaintiff's bicycle to the left, so as to be sure that no one was going to be coming towards Mileaf from that direction. Mileaf then "cut [his] wheel to look where [he] was going," and saw a bicycle "right on the ground directly in front of [him]." Mileaf stopped his vehicle and went over to provide assistance. Mileaf assumed that the bicyclist lying on the ground was the same bicyclist he had seen pedaling on the sidewalk, as he recalled "no other bikes there." Mileaf acknowledged that he did not witness the actual collision.

Detective Christopher Jackson of the East Windsor Police Department was dispatched to the scene of the accident. Detective Jackson was a member of the police department's traffic safety unit, having served in that unit since 1998. He had received extensive training and experience in accident investigation, and had completed numerous 80-hour and 40-hour formal courses on various topics in that field.

Upon arriving at the scene, Detective Jackson examined the physical evidence, including plaintiff's bicycle and defendant's SUV, and took photographs. He interviewed defendant but not plaintiff, whose injuries were too severe to make a statement at the scene. Plaintiff's statement was taken later, over the telephone, by an officer who spoke Spanish.

Detective Jackson noted that the SUV had damage to its bumper and its hood, which was "crumpled up." He also noted that the left pedal on the bicycle had become detached, and that there was a mark on the front of the SUV consistent with the SUV coming into contact with the bike pedal. These physical markings indicated to Detective Jackson that the front of the SUV had struck plaintiff's bicycle.

Detective Jackson also interviewed Mileaf at the accident scene. According to the police report, Mileaf told the detective that he had seen the bicycle involved in the accident "pass by at a rather fast speed while traveling on the sidewalk toward Route 130."

In his written report, Detective Jackson concluded, for the purposes of his own investigation, that both plaintiff and defendant were at fault in causing the collision. Detective Jackson criticized plaintiff for initially riding on the sidewalk and then entering the crosswalk as he approached Route 130. The detective wrote that defendant "could not have anticipated the bicycle emerging from that location." However, Detective Jackson also criticized defendant for failing to observe and yield to the bicycle attempting to cross the highway in the opposite direction, prior to making her left turn onto Route 130 south. Consequently, the detective did not issue a traffic summons to either party.

Plaintiff subsequently filed a personal injury action against defendant in the Law Division, alleging that defendant had been negligent in driving her SUV and colliding with his bicycle. Plaintiff sought compensatory damages for his pain and suffering, although he did not seek at trial past or prospective lost wages. Defendant denied liability, and contended that plaintiff's own comparative fault was the sole or predominant cause of the accident.

The case was tried before a jury over several days in October 2008. Plaintiff testified and recounted his version of the accident. Over the objection of defendant and following an admissibility hearing under N.J.R.E. 104, plaintiff also presented expert testimony from Detective Jackson. The detective's testimony corresponded to the observations about the accident that he had made in his police report. However, Detective Jackson was not asked at trial for his ultimate conclusions about who caused the accident. On cross-examination, Detective Jackson acknowledged that he had not made findings concerning either the respective speeds of the bicycle and the SUV prior to impact, or the distances that they had traveled.

Plaintiff also briefly called Donald Santora, a detective with the Mercer County Prosecutor's Office. Detective Santora had measured various objects at the collision scene and created a corresponding diagram. On cross-examination, Detective Santora agreed that the likely point of impact was about ten to twelve feet south of the crosswalk. However, he could not determine whether plaintiff's bicycle had been in the crosswalk originally and had swerved out of it in an effort to avoid defendant's oncoming SUV.

The defense presented factual testimony from defendant and Mileaf. The defense also called, over plaintiff's objection, William J. Martin, as an expert witness in accident reconstruction.*fn4 Martin opined that the accident was solely caused by plaintiff in apparently riding his bicycle on the sidewalk and then not slowing down as he veered into the intersection. Martin contended that plaintiff was not likely to have been visible to defendant, particularly given the time of day and the associated shadows created by the low sun in the southwest sky.

Based on Mileaf's eyewitness account that the bicycle was going about fifteen to twenty miles per hour and other variables, Martin calculated that it would have taken the bicycle 0.9 to 1.4 seconds from the point that it entered the street until it reached the point of impact. By comparison, Martin calculated that it would have taken defendant's SUV approximately 4.6 to 5.7 seconds from the time that it started its left turn to its arrival at the same point. Martin further determined that, at the time the bicycle came into the intersection, the SUV was only about thirty to forty-five feet from the point of impact and thus would have been visible to plaintiff.

Martin further opined that it is most likely that the bicycle collided with the front of defendant's SUV at an angle, and that it was not directly in front of the SUV at the time of collision. He deduced from the physical evidence that plaintiff's center of gravity on the bicycle was lower than the hood of the SUV. According to Martin, had the bicycle collided with the SUV while being ridden upright, the impact would have likely caused plaintiff to be catapulted onto the SUV's hood, and he would have landed at a different spot. These factors suggested to Martin that plaintiff had to be "going fast enough to lean hard to the right" on his bicycle at the time of impact. Martin further noted that the contact marks found on the SUV after the collision were consistent with his theories of causation.

Counsel also read into the record various deposition excerpts. The parties also admitted into evidence numerous photographs taken of the accident scene.

In addition to these proofs concerning liability, the parties also presented medical testimony and other evidence concerning plaintiff's injuries from the accident. By leave of this court, the parties have not supplied us with the portions of the transcript concerning damages, because the issues on appeal solely relate to liability matters.

By a vote of seven-to-one, the jury returned a verdict finding that both plaintiff and defendant were negligent, allocating 69% comparative fault to plaintiff and 31% fault to defendant. Pursuant to the "ultimate outcome" precepts of our comparative fault laws, see N.J.S.A. 2A:15-5.1, the trial court entered judgment in favor of defendant because the jury found her negligence was exceeded by that of plaintiff.

Plaintiff now raises several alleged trial errors on appeal. Specifically, he argues that: (1) the trial court improperly allowed Martin to testify as an expert, and his opinions were unreliable and contained inadmissible net opinions; (2) the judge should have issued a special instruction to the jury emphasizing the presumed accuracy of Martin's deposition transcript; (3) the judge improperly permitted defense counsel to ask defendant on cross-examination about false testimony that plaintiff previously gave at his deposition about how he had obtained his Social Security number; (4) the verdict was an improper "quotient" verdict; and (5) plaintiff was deprived of a fair trial because of the alleged partiality of the trial judge. Having carefully considered each of these arguments, we conclude that none of them have sufficient merit to warrant a new trial.

II.

Plaintiff challenges the trial court's determination, which was reached after a N.J.R.E. 104 hearing conducted outside of the jury's presence, that Martin is qualified as an expert in accident reconstruction. Plaintiff also complains that Martin's methodology was insufficiently reliable and scientific under N.J.R.E. 702 to allow him to present opinions in this case. Lastly, plaintiff argues that several portions of Martin's testimony contained inadmissible net opinion. These contentions are all unpersuasive.

Under N.J.R.E. 702 and the case law developed under that evidence rule, expert testimony is admissible in the courts of our State if it conveys "scientific, technical, or other specialized knowledge" and "will assist the trier of fact to understand the evidence or determine a fact in issue[.]" N.J.R.E. 702. Generally, our Supreme Court has applied a three-part test in reviewing such issues of expert admissibility:

(1) the intended testimony must concern a subject matter that is beyond the ken of the average juror; (2) the field testified to must be at a state of the art that such an expert's testimony could be sufficiently reliable; and (3) the witness must have sufficient expertise to offer the intended testimony.

[State v. Kelly, 97 N.J. 178, 208 (1984); see also Agha v. Feiner, 198 N.J. 50, 62 (2009) (applying this same three-part admissibility test in a civil context; Hisenaj v. Kuehnuer, 194 N.J. 6, 15-16 (2008) (same).]

The trial judge had a reasonable basis in this case to conclude that all three aspects of this admissibility standard were met. We reach that conclusion mindful that our scope of review of expert admissibility rulings by trial courts is limited, and that we should not disturb the trial court's decision unless the ruling demonstrably comprises an abuse of discretion. Hisenaj, supra, 194 N.J. at 16; see also Carey v. Lovett, 132 N.J. 44, 64 (1993).

More specifically, we are satisfied from our own review of the record that the accident reconstruction testimony presented by Martin comprised "a subject matter that is beyond the ken of the average juror." Kelly, supra, 97 N.J. at 208. Accident reconstruction testimony, as a general matter, has been recognized as a subject that can be distinctly advantageous to jurors, in sifting through the sometimes-complex variables involved in understanding the mechanics of a motor vehicle collision and the probable cause or causes of the impact. See, e.g., State v. A.O., 198 N.J. 69, 88 (2009) (citing accident reconstruction as an example of a common subject of expert testimony); Hisenaj, 194 N.J. at 13-25 & n.6 (approving the admission of defendant's expert on the biomechanics of an accident, and also noting that the defense had also produced "an accident re-constructionist who testified to the impact of the collision"); State v. Pigueiras, 344 N.J. Super. 297, 302 (App. Div. 2001), certif. denied, 171 N.J. 337 (2002) (sustaining the admission of expert testimony from an accident reconstructionist who opined as to the probable reduction of a skidding vehicle's speed).

The fact that expert testimony on accident reconstruction was not required to be adduced in this particular case does not mean that Martin's expert testimony was unhelpful to the jurors in their fact-finding role. The parties hotly disputed how the collision occurred, and whether or not plaintiff's bicycle, given its position and rate of speed, would have been readily observed by defendant, the SUV driver, as she made her turn across the intersection. Indeed, Martin was called, in part, to counteract some of the opinions offered in plaintiff's case-in-chief by Detective Jackson, even though Detective Jackson did not address the ultimate issues of causation at trial.

Additionally, we concur with the trial judge that Martin possessed adequate qualifications to testify as an accident reconstructionist, thereby satisfying another prong of the Supreme Court's admissibility standard. See Kelly, supra, 97 N.J. at 208. The record indicates that Martin served as an officer in the Philadelphia Police Department for twenty-two years, spending the last twelve of those years in the Accident Investigation Division. During that time, Martin attended relevant courses at the Northwestern University Center for Public Safety, as well as the Institute of Police Technology and Management ("IPTM") at the University of North Florida. He was the primary investigator of more than 2,400 vehicular accidents as a police officer. He has received accreditation from the Accreditation Commission for Traffic Accident Reconstruction ("ACTAR"). Of particular significance here, Martin completed a pedestrian and bicycle accident investigation course at IPTM. He has testified as an expert witness more than seventy times in the courts of New Jersey, the federal courts, and the courts of several other states. Given that extensive background, we have no trouble in affirming the trial judge's acceptance of Martin as a qualified expert.

The remaining requirement of admissibility--whether the expert's methodology is "sufficiently reliable"--is also reasonably supported by the record in this case. Kelly, supra, 97 N.J. at 208. As reflected in his expert report and in his testimony, Martin traveled to the accident scene, took pertinent measurements, and obtained photographs. There is no suggestion in the record that the intersection changed in the interim. He also studied the written reports and the various accounts of the collision provided by plaintiff, defendant and Mileaf.

Based on these various sources of information, Martin performed several calculations of time and distance, which are a recognized and accepted aspect of accident reconstruction. See, e.g., Piguerios, supra, 344 N.J. Super. at 302 (sustaining the admission of testimony from an accident reconstruction expert who applied friction coefficients to calculate that defendant's vehicle had reduced its speed prior to collision). From these calculations and other analysis, Martin presented several inferences concerning the bicyclist's probable speed and location in entering the intersection, the comparable speed and location of defendant's SUV, the likely point of impact, and the probable angle of the bicycle as it came into contact with the SUV. Martin properly offered these opinions and inferences, not as absolute truth, but, as his written report stated, within "a reasonable degree of scientific certainty and accident reconstruction experience[.]"

Plaintiff insists that Martin's expert methodology was unreliable and unworthy of the jury's consideration. He argues that Martin placed undue reliance on Mileaf's observations, noting that Mileaf's testimony was inconsistent in certain respects and that Mileaf did not see the actual moment of impact. Plaintiff also contends that Martin was likely mistaken in his belief that all of the damage to the SUV was below the bicycle's thirty-inch-high center of gravity, given a post-accident photograph showing that the hood of the SUV had damage marks forty inches high. Plaintiff also attacks various other aspects of Martin's analysis, including his application of a so-called "pedestrian-throw" factor; his analysis of the effect of the late-afternoon light and shadows; his evaluation of the physical damage to the bicycle's handlebars; and other discrete factors within his testimony.

All of these counterpoints are the fair subject of impeachment and cross-examination, but do not render Martin's testimony inadmissible. See Hisenaj, supra, 194 N.J. at 24; see also Lanzet v. Greenberg, 126 N.J. 168, 186 (1991). In sum, even if some aspects of Martin's expert analysis have weaknesses, we are satisfied that the trial judge did not abuse his discretion in allowing the jury to consider the expert's opinions, as part of the wide range of proofs and counter-proofs in this case.

Plaintiff also contends that several portions of Martin's testimony are inadmissible "net opinion." We recognize that an expert witness's opinions that are not reasonably supported by the factual record and an explanatory analysis from the expert may be excluded as net opinion. See Creanga v. Jardal, 185 N.J. 345, 360 (2005). In general, an expert should provide the "whys and wherefores" supporting his or her analysis. Beadling v. William Bowman Assocs., 355 N.J. Super. 70, 87 (App. Div. 2002).

We concur with the trial judge's assessment that, in the main, Martin's expert views were demonstrably "formulated based upon a foundation of facts and testimony which were made available to [him] before trial as well as his personal observations of the site of the accident[.]" The jury had the prerogative to accept or reject those opinions, in full or in part. Even if some of Martin's opinions were stated in more conclusory terms than others adduced from him during his examination, we detect no harmful error in the jury being exposed to the full panoply of his evaluation. Any net opinions that he offered were, at worst, incidental to the overall presentation, and were capitalized upon by plaintiff's own advocacy in cross-examination and summation.

We therefore affirm the trial court's determinations regarding Martin's expert testimony in all respects.

III.

Plaintiff next seeks a new trial because of the trial court's denial of his request to deliver a special instruction to the jurors about the legally-presumed accuracy of a deposition transcript under Rule 4:16-4(d). This argument requires little discussion.

This issue arises as follows. The transcript of Martin's deposition reflects that Martin stated, at the end of responding to a question about the physical damage to defendant's SUV that, "[a]ll of the damage on the SUV is under two feet high." Martin explained that this observation was significant because the center of gravity of plaintiff's bicycle, as he estimated it, was thirty inches. This deposition testimony signified that the SUV was only damaged below the bicycle's center of gravity, i.e., below thirty inches. According to Martin, if the damage to the SUV was below the plaintiff's center of gravity, then it was likely that plaintiff entered the intersection, saw the SUV, and made an evasive maneuver. Damage at or above plaintiff's center of gravity could potentially indicate that plaintiff was riding upright at impact and took no evasive maneuvers.

However, during his cross-examination at trial, Martin asserted that the deposition transcript contained a typographical error, and that he had actually said at the deposition that all of the damage to the SUV was under "three," not "two," feet high. Martin asserted such an alleged error in transcription after being shown a photograph by plaintiff's counsel depicting damage to the SUV above the two-foot mark. Martin conceded that he had not attempted to correct the deposition transcript before trial after it had been furnished to him by the stenographer.

These developments prompted plaintiff's attorney to request the court to provide the jury with a special instruction about the presumed accuracy on a transcript prepared by a certified shorthand reporter. The requested instruction would, in essence, embody the terms of Rule 4:16-4(d). That Rule provides, among other things, that "[e]rrors and irregularities in the matter in which the [deposition] testimony is transcribed . . . are waived unless a motion to suppress the deposition or some part thereof is made with reasonable promptness after such defect is, or with due diligence might have been, ascertained." Id. Since no such timely request had been made here in advance of trial regarding the accuracy of Martin's transcript, plaintiff wanted the jury specifically told that the transcript, and not the witness's personal recollection of what he said, controlled.

The trial judge declined plaintiff's request for the special instruction. The judge noted that, in his preliminary charge to the jury before the trial began, he advised them that testimony in depositions and sworn interrogatory responses should be given the same import as testimony from the witness stand at trial. See Model Civil Jury Charge 1.12E. The judge further recalled that the jurors had been paying attention when that explanation was provided.

To counteract Martin's belated claim of a transcription error, plaintiff called, as a rebuttal witness, the certified shorthand reporter who had transcribed Martin's deposition. The reporter explained to the jury that she had checked her shorthand notes from the deposition. She verified that she had correctly transcribed Martin's testimony at that session, stating that all of the damage to defendant's vehicle was "under two feet high." She also verified that she had signed a certification at the end of the transcript, attesting to its accuracy.

Under these circumstances as they developed, we discern no necessity for the trial judge to have issued a special instruction to the jury about the accuracy of the deposition transcript. Martin's claim of a transcription error was effectively rebutted by the testimony of the shorthand reporter, who had no stake in the outcome of this litigation. Plaintiff's counsel used this discrepancy to his advantage in attacking Martin's credibility in his summation. Although special instruction from the court referencing the Court Rule might have punctuated the discrepancy even further, we do not think the trial judge was obligated to give one. His handling of this extemporaneous issue was well within the bounds of permissible discretion and fairness.

IV.

The next issue raised by plaintiff concerns defense counsel's impeachment of plaintiff on recross-examination, by confronting him with an apparently false answer that plaintiff initially gave in his deposition testimony about the bona fides of his Social Security number. The entire exchange presented to the jury was as follows:

[DEFENDANT'S ATTORNEY:] Sir, have you lied under oath in this case?

A: No.

Q: Sir, do you recall at your deposition I asked you about your Social Security Number?

A: I misrepresented the question of what he asked me.

Q: Sir, very simple, under oath at your deposition, you gave me a false Social Security Number after you were sworn to tell the truth, correct?

A: I swore to tell the truth and I didn't lie in any way. I misinterpreted the question. I don't have a Social Security.

Q: You gave me a Social Security Number and you said that's your Social Security Number, but it wasn't, right?

A: I don't have a Social Security Number.

Defense counsel asked no further questions of plaintiff, and plaintiff's counsel eschewed any further redirect examination.

The pertinent deposition testimony alluded to in this exchange at trial, which was not read aloud to the jurors, consisted of the following:

[DEFENDANT'S ATTORNEY:] You are here on a visa?

A: No.

Q: Are you a citizen with a green card?

A: No.

Q: How did you enter the United States?

A: Illegal.

Q: When did you enter the United States most recently?

A: Four years ago.

Q: How did you enter the United States?

A: Illegal.

Q: How is the question, sir? Bus? Plane? Automobile? Foot?

A: Airplane.

Q: When did you first enter the United States of America?

A: November. I don't recall the date.

Q: What year?

A: 2002.

Q: Since you first entered the United States, you have –

A: No, I don't recall.

Q: How many times have you departed from the United States and returned?

A: None.

Q: Have you ever been convicted of a crime?

A: No.

Q: Where are you now employed?

A: Home Depot store.

Q: In what town?

A: Hightstown.

Q: Hightstown, New Jersey?

A: Yes.

Q: When you applied for work there, did you hand in a Social Security card or give a Social Security number?

A: A Social Security number.

Q: What number?

A: [Deleted.]

[DEFENDANT'S ATTORNEY:] Is that your Social Security number?

A: Yes.

Q: If you're not a resident or a citizen of the United States, how did you get a [S]ocial [S]security number?

[PLAINTIFF'S ATTORNEY:] Objection as to form.

A. I don't understand.

Q: How did you get a Social Security number if you're not a resident or citizen of the United States of America?

A: What are you asking about? The Social?

Q: Yes, I am asking how you got a Social Security number.

A: Is it necessary to say where it came from?

Q: Sir, I ask the questions, if you don't mind.

A: Illegally.

Q: How did you get it sir?

A: Bought it.

Q: You bought it on a street corner?

A: No.

Q: From where did you buy it sir?

A: It was sold to me.

[(Emphasis added).]

In Serrano v. Underground Utils. Corp., 407 N.J. Super. 253 (App. Div. 2009), a case decided after the deposition of plaintiff and the instant trial took place, we held that a presumption should be applied against the routine discovery of a plaintiff's immigration status in civil litigation, unless there are substantive issues in the case, such as a wage loss claim, that hinge upon a plaintiff's lawful status and ability to work in this country. Id. at 281 n.8. Following the holdings of many courts in other jurisdictions, we disfavored in Serrano such routine status-based inquiries in discovery, because of the practical "chilling effect" on foreign-born litigants attempting to vindicate their legal interests in our courts. Id. at 272. We noted, as other courts have found, that such status-related inquiries can have an unwholesome chilling effect, even upon lawful, properly-documented immigrant workers. Ibid. We also recognized in Serrano the potential for undue prejudice if evidence of such illegal residency status were admitted at trial solely for purposes of impeaching an immigrant plaintiff's credibility. Id. at 275.

Relying upon these recently-announced precepts in Serrano, plaintiff argues that he is entitled to a new trial because the trial court here allegedly permitted defense counsel to delve into his immigration status. We disagree.

The present scenario is factually distinguishable from the precise concerns expressed in Serrano, which arose on interlocutory appeal from a discovery context, not a trial situation. Defense counsel in this case asked at trial only about plaintiff's earlier false testimony at his deposition concerning his Social Security number. Defense counsel did not ask plaintiff at trial about the legality of his immigration status. The questioning, which the judge permitted in his allowable discretion on recross-examination under N.J.R.E. 611, was brief and circumscribed.

This admissibility issue was anticipated and addressed through an in limine motion filed by plaintiff before trial. The trial judge weighed the competing claims of relevance under N.J.R.E. 401 and prejudice under N.J.R.E. 403, and determined that inquiry about plaintiff's false deposition testimony would be admissible at trial for the sole purpose of impeaching plaintiff's truthfulness as a witness. The judge strictly instructed defense counsel not to delve into plaintiff's immigration status, which the judge agreed with plaintiff's counsel was "a collateral issue which is not pertinent to the case." The judge made clear that he did not want the jury to hear defense counsel ask about "immigration" or about plaintiff's "legal status." Instead, the judge limited the inquiry to pointing out that plaintiff had lied under oath at his deposition, at least initially before he corrected himself, concerning his Social Security number.

Defense counsel adhered to the court's admonition in his questioning of plaintiff before the jury. In fact, defense counsel made no mention during his summation of the recross-examination or about plaintiff's false deposition testimony or Social Security number.

Plaintiff maintains that the recross-examination must have inflamed the jury against him. Although he acknowledges that defense counsel did not explicitly address his immigration or legal status in the United States, he argues that the questioning must have intimated to the jurors that plaintiff was*fn5 living here illegally. Plaintiff further argues that, although defense counsel did not talk about the Social Security testimony specifically in his closing argument, he accomplished that objective indirectly, by arguing to the jury that the case was about "credibility" and that plaintiff was not a credible witness.

On balance, we are satisfied that plaintiff is not entitled to a new trial arising out of this issue, given the idiosyncratic manner in which the issues arose in this case. We need not comment upon whether, after Serrano, defense counsel would have been allowed to question plaintiff at deposition about his immigration status or Social Security number. The record before us does not specify when, for example, it became apparent before trial that plaintiff was eschewing any wage loss claim.

Given the existence of the false deposition testimony, the key point instead is whether the trial judge committed reversible error in allowing the jury to know about that prior false statement. The statement was admissible under hearsay principles as a statement by a party opponent. See N.J.R.E. 803(b)(1). The statement also was not established through extrinsic proof, but instead was acknowledged by plaintiff himself during his own cross-examination. See N.J.R.E. 607 and 608. Although we recognize the risk that some jurors might be biased against plaintiff because of his lack of a valid Social Security number, we also recognize why the trial judge thought that the fact that plaintiff had lied in his deposition in this very case had sufficient probative value to justify that risk.

To some degree, plaintiff's status in this country was self-injected into this case. In his opening statement to the jury, plaintiff's counsel underscored that his client had come "to the United States from Ecuador to make a better life for himself and for his family." He further reminded the jurors that people come to this country from "different backgrounds and different nationalities" and that "we probably know individuals as family members that have migrated here to the United States and some that do not have a good capture of the English language." Plaintiff's counsel*fn6 repeated these themes in his summation, improperly referring to some of the jurors by their last names and highlighting their own diverse backgrounds. Counsel repeated that plaintiff had "come to this country to make a better life for himself and his family." Plaintiff and his counsel spotlighted his foreign-born status rather than treating it as irrelevant.

All in all, we discern no "palpabl[e] abuse[ of] discretion" or any "manifest denial of justice" resulting from the trial judge's evidentiary ruling on this issue that would require us to mandate a new trial. See Green v. N.J. Mfrs. Ins. Co., 160 N.J. 480, 492 (1999).

V.

Plaintiff's contention that the jurors reached an improper "quotient verdict" stems from the fact that when the jurors were polled individually about their votes, the jury foreman stated: "Your Honor, I think, Your Honor, we have a question as to the way we tabulated but I don't know the forum to ask the question." The foreman continued, "[m]ay I explain how we each individually had our own vote and it came to a seven-one vote and then we used those numbers to take a average which we voted on the average." The trial judge responded that "when you agree to the average, which was either 31 percent [or] 69 percent, I need to know who voted yes and who voted no." The foreman then indicated that he understood the court's explanation. The final polling confirmed that seven of the eight jurors had indeed voted in agreement that plaintiff was 69 percent responsible for the accident. Plaintiff's counsel did not request the court to have the jury further polled to explain how they arrived at their verdict, or to conduct any other investigation into the matter.

On appeal, plaintiff contends for the first time that the verdict amounted to an improper "quotient verdict," in violation of the principles of Shankman v. State, 184 N.J. 187 (2005). As the Supreme Court noted in Shankman, a quotient verdict is commonly defined as a situation in which "there [is] a preliminary agreement or understanding among the jurors that each will select a figure as representing his opinion of value or damage and that the sum of said amounts divided by the number of jurors will be accepted by each as his or her verdict, and is in fact so accepted." Id. at 198 (quoting Marks v. State Road Dept., 69 So. 2d 771, 773 (Fla. 1954)). Such an advance commitment by jurors to accept an averaged verdict as their individual verdict is improper, because it "has the capacity to foreclose all subsequent discussion, deliberation or dissent among jurors, that is inconsistent with the essential jury function." Id. at 200.

The present record is bereft of any indication that the jurors in this case had mutually agreed in advance to adopt a final verdict that simply averaged the eight positions of the individual jurors. Absent such evidence, plaintiff's arguments about how the jurors conducted their deliberations are purely speculative. There is nothing wrong, per se, about the remarks of the foreman to the trial judge, which simply indicated that the jurors had "voted on the average." Such averaging only would have been improper under Shankman if the jurors had committed to an averaged result in advance.

Plaintiff bypassed the opportunity to investigate the issue and develop the record further before the jurors were dismissed. There is no reason at this point to revisit the question.

VI.

We have considered the remainder of plaintiff's arguments, including his unpersuasive contention that the trial judge was not impartial and deprived him of a fair trial. We detect no such partiality or unfairness. Indeed, as one counter-example, the trial court's admission of expert testimony from Detective Jackson, despite plaintiff's failure to designate him in discovery as an expert witness, bespeaks a lack of bias against plaintiff. This contention of bias, as well as plaintiff's other arguments, lack sufficient merit to warrant discussion in this opinion. R. 2:11-3(e)(1)(E).

The judgment for defendant is affirmed.


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