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Ternier v. Smith


March 23, 2010


On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-8678-06.

Per curiam.


Argued January 26, 2010

Before Judges Carchman, Parrillo and Ashrafi.

Defendant Gary Smith appeals from a judgment, after jury verdict, awarding plaintiff Serge Ternier $572,595.58 in compensatory damages and interest, and from the denial of his motion for a new trial. We affirm.

This litigation arose out of an automobile accident on December 10, 2005, at the Woodbridge Mall, wherein plaintiff was injured when the car he was driving was "t-boned" by a car driven by defendant, who, in turn, alleged a phantom driver "waved" him into oncoming traffic. Since there was no claim that plaintiff himself was at fault, the issues at trial concerned the allocation of liability, if any, between defendant and "John Doe," and if negligence were found, the amount of damages to be awarded plaintiff.

At around 5:30 p.m. on December 10th, plaintiff was heading home, traveling in the far right lane of a four-lane outer-ring roadway, consisting of dual sets of two lanes in opposite directions, outside the mall. There are multiple exits from the roadway to the inner mall parking lots, and plaintiff was traveling northbound in the lane closest to the parking lot.

Although there were no cars directly in front of plaintiff, traffic was building in the adjacent left lane, where there were "quite a few" stationary vehicles. Defendant, traveling in the opposite direction, was stopped at the intersection with his signal activated, waiting for about a "minute [or] less" to make a left-hand turn across two lanes of oncoming traffic, including plaintiff's.

According to defendant, at one point, the lead car in the nearest oncoming lane stopped, and the driver waved, motioning defendant to make the turn. After being motioned forward, defendant turned going "no more [than] five miles an hour," but without stopping or slowing down further as he entered into oncoming traffic and struck plaintiff's vehicle. Defendant was unable to identify the driver who waved him on or the car the phantom driver was operating; nor was he able to see the oncoming vehicles traveling in plaintiff's right northbound lane due to traffic build-up behind the phantom driver's car.

The force of the collision dragged plaintiff's vehicle to the curb, causing him to move violently within his automobile's cabin, and to hit his head on the headrest. Although he did not immediately seek medical treatment, plaintiff visited the hospital the next day as he experienced headaches, along with both neck and back pain overnight. Two days later, he visited his physician who recommended physical therapy, which plaintiff underwent for several months.

Plaintiff, who was forty-four years old at the time, was referred to a neurologist, Dr. Michael Gruber. His examination of plaintiff on January 23, 2006, revealed limited range of motion in all planes of plaintiff's head and neck, and "spasm of the muscles in the back of [plaintiff's] neck[,]" suggesting "irritation of the nerve roots that innervate those muscles[]" and "a disc herniation in his neck" along with "post traumatic syndrome[.]"

At a second visit on April 24, 2006, Dr. Gruber reviewed plaintiff's MRI films, which revealed disc herniations at C4-C5 and C5-C6. He found no evidence in the diagnostic testing of degenerative spondylosis, calcific changes, or any other indicator that the neck herniations pre-existed the automobile accident, although he admitted there was no method for determining their age.

As late as January 7, 2008, plaintiff continued to suffer from "limitation of movement at the head of the neck in all planes and spasm of the paravertebral cervical muscles." Dr. Gruber's final diagnosis was that plaintiff "has a herniated disc at C5/C6 on the left side. He has a herniated disc at C4/C5 in the midline and he had a bilateral C5, C6, C7 radiculopathy." In Dr. Gruber's opinion, since plaintiff was completely asymptomatic before the accident, the neck herniations were caused by the automobile collision and were permanent in nature. As to the latter, Dr. Gruber explained that nerves usually heal within six months, and if a patient continues to suffer from radiating pain beyond that period, as plaintiff does here, it is very unlikely that his condition will improve. Plaintiff was then referred to a neurosurgeon, Dr. Feinman, whom plaintiff visited on February 19, 2008.

Defendant's expert, Dr. Robert Bercik, an orthopedic surgeon, examined plaintiff on October 18, 2007, and found no evidence of nerve irritation, spasm, or limitation of motion in his neck. He found "no evidence of a permanent impairment of the cervical spine" since "[o]bjectively there was really no finding that was consistent with an anatomic injury."

In reviewing the MRI film, Dr. Bercik found "some degeneration in the different levels[,]" namely levels "[o]ne, two, three, four, five[,]" with some disc desiccation.*fn1 He found slight disc bulging at C3-C4, "a little bit more of a bulge with a central dis[c] herniation" at C4-C5, and a "left sided dis[c] herniation" at C5-C6. Dr. Bercik also found signs of spondylosis, or "arthritis of the spine," opining that the bulges and herniations were unrelated to the motor vehicle accident, as "[t]he most common cause of dis[c] bulging and dis[c] herniation is degeneration. It's not trauma. . . . When you see it at several levels it's more likely to be degeneration than trauma."*fn2 Dr. Bercik further explained: these changes take . . . at least one year and maybe two years to develop. . . .

[T]his [MRI] was done within . . . six months of the motor vehicle accident. The changes on these MRI's, in all likelihood, took more than a year to develop, took one to two years to develop, and I think they were there before the accident and I don't think they were caused by the accident.

In other words, in his opinion, the MRI revealed chronic, not acute, changes that were probably present for one to two years before the automobile accident. When asked how he was able to approximate the age of disc herniations, Dr. Bercik explained: you can't give an exact date but you can have an idea. If you see degeneration in the dis[c]s you know that there have been changes going on between one and two years.

And . . . some of the most common changes of degeneration are the desiccation, which was present at multiple levels, dis[c] bulging and dis[c] herniations.

Dr. Bercik did admit, however, that a degenerative disc can be herniated with trauma. He also agreed that a person with spondylosis, who later is involved in an accident, may suffer an aggravation of the spondylosis as a result of the trauma when the injured person experiences pain after the accident. Dr. Bercik also acknowledged that plaintiff suffered from a disc that was "innervated," that it had "pain fibers," and that he had no history of neck pain prior to the accident.

According to plaintiff, as of trial, his physical therapy and medication regime had proven effective, as he experienced "a lot of progress." His headaches are gone and his back issues have steadily improved. However, plaintiff still experiences neck pain and continues to suffer from pain radiating down to his extremities. Plaintiff's neck pain has compromised his ability to engage in recreational activities, and has become a constant source of interruption from his work as an analyst at the Federal Reserve Bank of New York.

Plaintiff sued defendant in negligence and an amended complaint impleaded his automobile insurance carrier, GEICO Insurance Company (GEICO), since plaintiff would be entitled to Uninsured Motorist (UM) benefits under the GEICO policy should the phantom driver be found negligent. Discrediting defendant's proofs, the jury found him 100% liable and awarded plaintiff $500,000 in compensatory damages which, together with prejudgment interest, amounted to a judgment of $572,595.58.

Defendant moved for a new trial, arguing the trial judge erred in instructing the jury on defendant's insurance coverage, on aggravation of a pre-existing disability, and on "John Doe," the waving motorist. The court denied the motion. This appeal follows.

Defendant raises the following issues for our consideration:









We will address these issues in the order raised.


At issue is whether the court's charge on liability insurance tainted the verdict as to constitute reversible error. We hold that it was error to so charge but, under the circumstances, the error was harmless.

By way of background, at the outset of defendant's testimony, and in response to his attorney's introductory questioning, defendant said he lived with his wife and two young daughters. When further asked what he did for a living, defendant replied "I'm unemployed right now."*fn3 Following defendant's testimony, plaintiff's counsel argued that defendant's reference to his unemployment might engender jury sympathy and foster the false impression that defendant could not afford to pay a judgment in favor of plaintiff or to purchase liability insurance for that matter. When defendant's counsel suggested defendant be called back to testify as to his job prospects and the length of his unemployment, plaintiff's counsel instead requested that the court instruct the jury that defendant was covered by liability insurance. The judge reserved decision, but immediately gave a curative instruction admonishing the jury that sympathy was to play no part in their deliberations. The judge stated that sympathy "has no part in this particular case, and you have to decide the case on the facts regardless of sympathy you may have for either party . . . ." The judge told the jury that "you are to not have the fact that [Smith] is in the situation he is in today, as he said all right, to have any part in your . . . deliberations or your determination of the facts in this case."

Plaintiff's counsel found this charge inadequate, arguing that although the instruction dealt with sympathy, it did not address "financial responsibility." When the court noted that defendant's wife had a six-figure salary, plaintiff's counsel suggested that the jury be instructed on that fact so as to cure the impression that defendant would be financially ruined by a verdict against him. Defense counsel refused.

The matter was next addressed at the close of evidence when plaintiff's counsel again requested a charge on liability insurance consistent with Tomeo v. Northern Valley Swim Club, 201 N.J. Super. 416 (App. Div. 1985). The judge eventually agreed and over defendant's objection, instructed the jury, just prior to summations, that defendant had liability insurance, but to disregard that fact because it was irrelevant. Specifically, the judge instructed:

Yesterday I cautioned you about any sympathy you may have felt for Mr. Smith who is unemployed. . . . [M]y reason to caution you was so that you not speculate as to how he would be able to pay any award you may find in this case.

I charge you that you're not to be concerned with factors such as payment of damages and any discussion or concern about this would be improper and a violation of your duties as a juror.

In sum, Mr. Smith has automobile with liability insurance, but you are to disregard that fact because it is not relevant to the issues you are to decide in this case. You have to decide certain issues. When I charge you I'll explain those issues to you, that's what you decide . . . that's what your job is to do is to decide those issues. Anything else would be a violation of your duty, okay? [(Emphasis added).]

On appeal, defendant argues that the court's charge on insurance was unduly prejudicial, unnecessary to neutralize the reference to unemployment in light of its earlier curative instruction, and resulted in an excessive verdict.

"'It has long been recognized that evidence showing that the defendant is insured creates a substantial likelihood of misuse.'" Kotler v. Nat'l R.R. Passenger Corp., 402 N.J. Super. 372, 378 (App. Div. 2008) (quoting Eichel v. N.Y. Cent. R.R. Co., 375 U.S. 253, 255, 84 S.Ct. 316, 317, 11 L.Ed. 2d 307, 309 (1963)). The concern is that "references to insurance coverage might distract jurors from a fair evaluation of the evidence[,]" and may "motivate an award of damages based on a jury's perception of an insurer as having 'deep pockets.'" Bardis v. First Trenton Ins. Co., 199 N.J. 265, 275 (2009).

"Similar concerns are voiced in our Rules of Evidence." Ibid. Under N.J.R.E. 411, "[e]vidence that a person was or was not insured against liability is not admissible on the issue of that person's negligence or other wrongful conduct." "The Rule recognizes the obvious fact that a person's having procured liability insurance has virtually no relevance to the question of whether he was negligent or guilty of wrongdoing on a particular occasion." Biunno, Current N.J. Rules of Evidence, comment on N.J.R.E. 411 (2009); see Krohn v. N.J. Full Ins. Underwriters Ass'n, 316 N.J. Super. 477, 481-82 (App. Div. 1998) ("As a general rule, the probative value of information regarding whether a person is insured or not is substantially outweighed by the potential for undue prejudice."), certif. denied, 158 N.J. 74 (1999). Therefore,

[t]he theory that supports that Rule is not a concern that jurors will equate insurance with an insured individual's lack of due care, but instead "that if jurors know that an insurance company will be paying a judgment, they [the jurors] might be reckless in awarding damages to a plaintiff." [Bardis, supra, 199 N.J. at 275 (quoting Biunno, supra, comment on N.J.R.E. 411).]

To be sure, not every reference to insurance is improper. Rule 411 itself recognizes that, at times, mentioning insurance may not be inappropriate, as "[s]ubject to Rule 403, this rule does not require the exclusion of evidence of insurance against liability when offered for another purpose, such as proof of agency, ownership, control, bias, or prejudice of a witness." Thus, we have previously noted that the federal courts have recognized that admitting collateral source benefits evidence to impeach a plaintiff's claims of financial distress in an effort to garner jury sympathy does not violate the United States Supreme Court's prohibition against such testimony in Eichel. A plaintiff making such a claim will be deemed to have "opened the door" to permit questions related to collateral source benefits.

[Kotler, supra, 402 N.J. Super. at 380 (emphasis added).]

Correspondingly, when defense counsel creates the false impression of no insurance, trial judges have been instructed that the proper course to follow is to have the jury "unequivocally advised," by either defense counsel or the court, "that the defendant is insured[,] but that they are to disregard that fact because it is not relevant to the issues" of liability and damages they are to determine. Tomeo, supra, 201 N.J. Super. at 421. See also Diakamopoulos v. Monmouth Med. Ctr., 312 N.J. Super. 20, 29 (App. Div. 1998).

In Tomeo, supra, the plaintiff was emerging from defendant's commercial swimming pool when she fell and suffered injuries. 201 N.J. Super. at 418. In his summation, defendant's counsel focused on how defendant's swim club was a "family owned and run organization[,]" and warned the jury that "when someone comes up to anyone and says, 'I've been injured and I want you [sic] money. I want your possessions. I want to take your house,' they must back up the allegations to establish that." Id. at 419. Counsel concluded by imploring that "[p]eople cannot take your possessions, your job, or other things without complying with the law. In a civil case, plaintiff, to recover, must prove something to take the defendant's money[.]" Ibid. We described defense counsel's "reprehensible tactic" thusly:

In order to win a verdict based upon sympathy, defendant's attorney displayed three generations of the family who own defendant and operate its business, and falsely implied to the jury that they would face financial ruin should there be a verdict for plaintiff. The fact is that defendant is fully insured for any reasonable verdict that the jury could have returned. [Id. at 420.]

Finding the trial judge's sympathy-based instruction in Tomeo insufficiently curative, id. at 421, we held that

[w]hen the jury learns of a fact known to be false which is irrelevant to the issues being tried but has the clear capacity to turn them for or against a party, the jury must be told the truth promptly and cautioned that the fact is not to be considered in their deliberations. [Ibid.]

In issuing an instruction identical to the one we directed in Tomeo, the trial judge here failed to appreciate the significant differences in that case, which, in our view, render it inapposite to the instant matter. First and foremost, the disclosure of defendant's unemployment here was entirely inadvertent in contrast to the intentional misleading of the jury in Tomeo. Second, the reference to unemployment was singular, fleeting and far less prejudicial than counsel's extensive summation commentary in Tomeo that was consciously designed as a blatant appeal to juror sympathy. Third, here there was no misstatement of fact, and counsel never uttered the word "insurance," compared to Tomeo, where counsel falsely implied to the jury that the defendant was uninsured and would face financial ruin should there be a verdict that the jury could have returned. Fourth, unlike Tomeo, there was no "relatedness" between defendant's employment and insurance status.

Moreover, the trial judge's attempted cure in Tomeo, supra, not only was woefully inadequate, but actually tended "to confirm the false implication that the house [would] be lost if the jury return[ed] a verdict for plaintiff and merely admonishe[d] the jurors not to let that bother them." 201 N.J. Super. at 421. Here, it may reasonably be argued that the trial judge's immediate curative instruction effectively neutralized the offensive reference as to render it harmless.

Even if more were indicated, the judge, in our view, went beyond what was necessary and erred in inserting the notion of insurance into the case. Defense counsel never created the false impression that defendant had no insurance. Rather, the concept of insurance was introduced for the first time by the trial judge and delivered just before jury deliberations.

Although ostensibly calculated to offset the reference to unemployment, we fail to discern any rational nexus between defendant's liability insurance coverage and his employment status. Moreover, the fact that the instruction also advises that defendant's insurance should play no role in the jury's evaluation of plaintiff's claim does not render it any less improper. As the Court in Bardis, supra, noted in refusing to adopt a rule that an insurer-defendant be identified by its own name rather than the tortfeasor's in an Underinsured Motorist (UIM) coverage trial:

That rule would increase the risk of jury confusion because the jury would first be told that the defendant is an insurer, but would then be advised that this is irrelevant and should play no role in their evaluation of the claim. That rule, by injecting an entirely irrelevant fact into the trial, creates a risk that far outweighs the remote possibility that the jury might be confused if they are not so advised. [199 N.J. at 277.]

We believe a remedy short of a Tomeo instruction, with its concomitant risk of prejudice to defendant, could have been fashioned here that would have more appropriately protected the integrity of the fact-finding process. For instance, defendant could have been questioned further regarding the temporary nature of his unemployment and the fact that his wife was employed. Barring that, an instruction clearly and forcefully prohibiting the jury from speculating as to defendant's financial ability to pay any award they may make would have sufficed. Such precautionary measures would have avoided the need for an instruction on insurance, "which [has] no relevance to the issues before the jury [and which] should be excluded because of [its] potential for undue prejudice." Krohn, supra, 316 N.J. Super. at 482.

Having said that, we also conclude that such error was harmless under the circumstances. "The mere mention of [insurance] coverage has been held not to be prejudicial error." Ibid. Not every inappropriate, impermissible reference to insurance coverage in a liability action is necessarily grounds for a mistrial. Pickett v. Bevacqua, 273 N.J. Super. 1, 4 (App. Div. 1994). Rather, "[r]esolution of the claim of mistrial depends on the circumstances surrounding the insurance reference and 'the impression of the attendant disadvantage visited upon the' [defendant]." Ibid.

We have previously noted that the risk of prejudice deriving "from references to insurance has been diminished with the advent of compulsory automobile liability insurance." Krohn, supra, 316 N.J. Super. at 482. Indeed, the ubiquitous nature of insurance has been recognized by our courts:

In these days the juror who is neither automobile owner or operator is a rarity.

All who obtain registration of their vehicles know that they must . . . carry liability insurance . . . . And it seems likely that if they do think of it, jurors assume in every automobile case that some financial responsibility exists over and above defendant's ability to satisfy a judgment. [Runnacles v. Doddrell, 59 N.J. Super. 363, 367-68 (App. Div. 1960).]

Thus, "'[s]o long as the insurance is not featured or made the basis at the trial for an appeal to increase or decrease the damages, the information would seem to be without prejudice.'" Krohn, supra, 316 N.J. Super. at 482 (quoting Runnacles, supra, 59 N.J. Super. at 368).

Here, defendant suffered no prejudice from the instruction.

The concept of insurance was already present in the case. Defendant's counsel in opening mentioned that plaintiff had selected the "verbal threshold" option, and John Doe's counsel stated that she was appearing on behalf of GEICO Insurance Company at Dr. Gruber's videotaped deposition, which was played for the jury. Moreover, the judge's comment on insurance was not designed to prejudice defendant in the eyes of the jury but, to the contrary, neutralize whatever prejudice plaintiff suffered from the mistaken impression, however remote, that defendant could not afford liability coverage. Lastly, after referring to defendant's insurance, the judge clearly and explicitly informed the jury to disregard the reference, therefore removing any potential for prejudice inherent in the objectionable remark, see DeMary v. Rieker, 302 N.J. Super. 208, 218-19 (App. Div. 1997), since we presume the jury abides by the court's instructions. See State v. Winder, 200 N.J. 231, 256 (2009) (citing State v. Manley, 54 N.J. 259, 271 (1969)). Under the circumstances, we conclude the court's Tomeo charge did not constitute reversible error.


Defendant also contends the court erred in charging the jury on aggravation of a pre-existing condition since plaintiff's expert proofs did not establish the probability of same. We disagree. Although plaintiff did not raise the issue in his direct case, and in fact denied a pre-existing condition, defendant raised it in cross-examining plaintiff's expert and in questioning his own. Thus, whether plaintiff's disc herniations/bulges were caused by the automobile accident or resulted from degenerative disc disease made worse by the trauma of the motor vehicle accident was an issue for the jury to resolve, after proper instructions.

In Edwards v. Walsh, 397 N.J. Super. 567 (App. Div. 2007), we found such a charge warranted on facts similar to those here. There, the plaintiff claimed to have sustained a neck injury in an automobile accident, but the experts disagreed "as to whether the herniation was caused by the accident or resulted from degenerative disc disease." Id. at 571. The plaintiff presented two medical experts: Drs. Nachwalter and Tiger. The former testified that the plaintiff suffered "cervical whiplash and cervical spondylosis" and "cervical disc herniation at C5-6" caused by the accident. Id. at 569-70. Plaintiff's other expert, Dr. Tiger, diagnosed plaintiff with a "disc herniation at C5-6 and right-sided radiculopathy[,]" caused by the accident, but "disagreed with Dr. Nachwalter's finding there was degenerative disc disease in plaintiff's cervical spine and testified that, even if there was, it had nothing to do with the C5-6 herniation." Id. at 570. Defendant's expert, Dr. DeLuca, found that the disc herniation was "not a result of the accident but was degenerative in nature." Id. at 571. Significantly, none of the experts testified that to a reasonable degree of medical probability, there was an aggravation of a pre-existing degenerative condition. Under those facts, we found no merit in defendant's argument that the trial court erred in charging the jury on aggravation of a pre-existing injury because plaintiff provided no evidence to support aggravation of a pre-existing injury.

Although plaintiff did not raise the issue in her direct case -- indeed, plaintiff denied any pre-existing injury -- defendant raised it in cross-examining Dr. Nachwalter and in Dr. DeLuca's testimony. When defendant objected to charging the jury on pre-existing condition during the charge conference, the trial court correctly noted that defendant was "the one who put it in play here." [Id. at 572.]

The same reasoning applies here with equal force. Admittedly, plaintiff did not claim a quiescent pre-existing condition. Rather, he testified that he never had neck pain before the accident, and his expert, Dr. Gruber, found no evidence of calcification, ridging or osteophytes, which are usual signs of a degenerative condition, in plaintiff's neck. On cross-examination, however, Dr. Gruber opined that if plaintiff's herniated discs pre-existed the accident but were asymptomatic and became, post-accident, the source of permanent pain and disability, the accident would be the reason or the cause for that condition.

More importantly, defendant's own expert, who testified that plaintiff's herniations were the result of pre-existing spondylosis, further opined of the possibility that a degenerative disc can be herniated with trauma. Specifically, Dr. Bercik testified that plaintiff's discs at C4-C5 and C5-C6 were desiccated and the herniations, which he diagnosed at those two levels were degenerative in nature, and in existence for one to two years before the date of the MRI films. Bercik then admitted it was possible that the automobile accident could have caused the degenerative discs at C4-C5 and C5-C6 to herniate. In fact, he rendered past opinions that a person with spondylosis, who was involved in an accident, had suffered an aggravation of the spondylosis due to the trauma of the accident and the resultant pain:

Q: Okay. And would you agree that in the course of your practice you have - you have rendered opinions before that a person who had a spondylosis was - and is involved in an accident and injured their neck, that that pain syndrome that resulted there from was as a result of the trauma, meaning an aggravation of the spondylosis?

A: I have opined that in the past, yes.

Q: And would you agree you've also in those - in some of those situations opined that the person who now had an aggravation of the underlying spondylosis as a result of the accident required surgical intervention?

A: I have.

Q: And would you agree that [plaintiff], as far as you know in this case, had no complaints of neck pain before the accident?

A: That's correct.

As in Edwards, defendant himself introduced the issue of aggravation and cannot now be heard to complain because the jury was instructed in accordance with the evidence presented, without objection, at trial. Here, there was a genuine dispute as to whether the disc herniations were caused by the automobile accident or originated in a pre-existing degenerative condition, and if the latter, whether the accident worsened plaintiff's condition. Indeed, even if the jury believed that plaintiff's herniated discs pre-dated the accident, the evidence was uncontroverted that they were asymptomatic pre-accident. Thus, the expert medical evidence of aggravation - regardless of its source - was clearly sufficient to submit the matter to the jury. Consequently, it was incumbent on the trial judge to give accurate instructions on the pertinent law. This, he did.

We find no support for defendant's position that such a charge must, in addition, be supported by expert testimony within a reasonable degree of medical probability that the accident aggravated plaintiff's pre-existing condition. On the contrary, if there is evidence of a pre-existing or degenerative condition put into play by an adverse party, the test of admissibility is possibility, not probability. See Paxton v. Misiuk, 34 N.J. 453, 461 (1961). In Allendorf v. Kaiserman Enters., we noted:

A party seeking to present evidence of a prior injury or condition relating to an issue of medical causation must show that the evidence has some "logical relationship to the issue in the case." Moreover, this logical relationship generally must be established by appropriate expert medical opinion. The general test of admissibility of such evidence is "one of possibility rather than probability." [266 N.J. Super. 662, 672-73 (App. Div. 1993) (citations omitted).]

Thus, having been properly admitted without any objection, evidence of a pre-existing condition and the impact of the accident thereon properly supported the court's charge on aggravation.


We have considered defendant's remaining arguments and deem them of insufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).


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