On appeal from the Superior Court of New Jersey, Law Division, Morris County, Docket No. L-3661-00.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Axelrad, Fisher and Espinosa.
This matter returns after our reversal of a directed verdict and a no-cause verdict against the non-settling defendant after a subsequent trial. We affirm.
We need not recite the facts at length as they are contained in a published opinion. Kranz v. Tiger, 390 N.J. Super. 135 (App. Div.), certif. denied, l92 N.J. 294 (2007). Suffice it to say that plaintiff filed a negligence action against James and Mary Mongey (the Mongeys) for personal injuries he incurred as a result of a fall he sustained while repairing the cable connection on the roof of property owned by them*fn1 . His attorneys were defendants Harold McGovern and Noel Schablik. On or about December l9, l994, McGovern referred plaintiff to defendant, Dr. Arthur Tiger, to provide expert testimony in the area of orthopedics. On December 23, 1994, Dr. Tiger issued an initial report favorable to plaintiff, and in l999, Dr. Tiger issued a series of favorable follow-up reports. Without Dr. Tiger, plaintiff could not prove that any of his injuries were caused by the accident.
In June l999, following a case management conference, trial was scheduled for September l3, 1999, counsel were informed the case would not be adjourned, and the court suggested that the testimony of all experts be videotaped. McGovern did not take the videotape deposition of Dr. Tiger. Due to court scheduling issues, the jury was not selected until Thursday, September l6, l999. Dr. Tiger was scheduled to testify on Tuesday, September 21 at l:30 p.m. Monday was a religious holiday during which Dr. Tiger would not be working, and he had a planned vacation scheduled for Wednesday. As more fully discussed in our published opinion, the attorneys and doctor testified about various telephone conversations and messages and their respective understanding of whose responsibility it was to contact whom regarding Dr. Tiger's appearance.
The bottom line is that plaintiff agreed to a $500,000 settlement, which he believed was inadequate*fn2 , solely because he understood that Dr. Tiger would not be available to testify.
Id. at l40. Plaintiff then sued the attorneys and doctor. We described plaintiff's claim as follows:
Plaintiff's primary claim of negligence was that his attorneys and the doctor selected by them failed to communicate adequately on the doctor's appearance at trial. He also claimed breach of contract by the doctor. More specifically, he claimed that as a result of the miscommunication, the attorneys wrongfully assumed that the doctor was not available to testify when he in fact was available, and the doctor contributed to that assumption by failing to reasonably and accurately communicate with the attorneys personally or through his office staff. [Id. at 148.]
The judge granted a directed verdict for defendants. We reversed and remanded. Id. at 141.
Plaintiff then settled with the two attorneys. In October 2007, trial proceeded solely against Dr. Tiger. After defense counsel completed his opening, plaintiff's counsel sought a mistrial, objecting to various comments, including a reference to plaintiff receiving money in the first settlement and from the settling attorneys, though there was no designation of either amount, and the statement that Dr. Tiger did not settle because he did nothing wrong. The court denied the motion and charged the jury, in part, that it was not to speculate about the reasons why the two attorneys settled the claim against them.
At the close of trial, the court declined plaintiff's request that the jury be charged on both breach of contract and negligence theories as to Dr. Tiger and sua sponte charged only on negligence. The jury determined the Mongeys were negligent and proximately caused plaintiff's injuries. The jury awarded plaintiff about $1.7 million in damages in the underlying case against the Mongeys. The jury then determined that Dr. Tiger was not negligent. Accordingly, a judgment of no cause for action was entered by the trial court in favor of Dr. Tiger on December l7, 2007. This appeal ensued.
On appeal, plaintiff argues: (1) defense counsel's comments to the jury in his opening resulted in reversible legal error, and (2) the court should invoke its jurisdiction and find liability or remand for a trial on liability because of the trial court's error in refusing to charge the jury on plaintiff's breach of contract claim. Defendant argues, but does not assert as a cross-appeal, that if the matter is remanded for a new trial, the trial court first must rule on the defense motion that was made to strike plaintiff's claim for damages related to the fusion surgery plaintiff underwent and the drop foot impairment he suffered, which the trial court reserved on, and if that motion is granted, a new trial on damages must be held.
Based on our review of the record and applicable law, we are not persuaded the court abused its discretion in declining to grant a mistrial and, instead, giving the instruction on "settling parties." Nor are we persuaded that under the circumstances and proofs of this case, the court's determination not to give both contract and negligence charges as requested by plaintiff was "clearly capable of producing an unjust result."
R. 2:10-2. As we affirm the no-cause judgment, we need not address defendant's challenge, whether or not properly raised.
R. 2:3-4; R. 2:4-2; see, e.g., State v. Elkwisni, 190 N.J. 169, 175 (2007); Campagna v. Am. Cyanamid Co., 337 N.J. Super. 530, 550 (App. Div.), certif. denied, 168 N.J. 294 (2007) (holding that a respondent ...