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Cuccurullo v. Galinsky


May 26, 2010


On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Docket Nos. L-6232-06 and L-6069-08.

Per curiam.


Argued October 27, 2009

Before Judges Carchman, Parrillo and Ashrafi.

In this automobile personal injury action, a jury awarded plaintiff Carmela A. Cuccurullo compensatory damages in the amount of $625,000. The jury concluded that defendant Esmira Galinsky was 100% negligent and further found no negligence on the part of a phantom driver who was allegedly also involved in the accident. The phantom driver was represented by an attorney provided by Amica Mutual Insurance Company (Amica), plaintiff's uninsured motorist (UM) carrier. Defendant Galinsky appeals from the jury verdict alleging various trial errors (A-0233- 08T3). In a related appeal (A-1345-08T3), which we now consolidate for the purpose of this opinion, Amica asserts that the trial judge erred in ordering it to provide underinsured motorist coverage (UIM) for plaintiff's benefit. The impact of that order was that since Galinsky's coverage was limited to $100,000, Amica was obligated to pay $200,000 of its UM/UIM $300,000 coverage to plaintiff. We affirm both the jury verdict in the Galinsky appeal as well as the order obligating Amica to provide UIM coverage.

These are the relevant facts adduced at trial. On November 20, 2004, plaintiff was operating her vehicle in the right-hand lane traveling eastbound on New Bridge Road in West Milford, a four lane road, with two lanes in each direction. Galinsky was driving westbound in the left-hand lane.

According to Galinsky, a phantom vehicle suddenly appeared in front of her. She did not know where the vehicle came from and stated: "I didn't see any cars. That's why I assumed that [the phantom vehicle] came from Lynwood Street . . . ." Her daughter, Diana, a passenger in the vehicle saw, the vehicle come from the side but could neither identify the street that it came from nor whether the street was controlled by a stop sign. Galinsky applied her brakes. As a result, she lost control of her vehicle, started to spin, and crossed the double yellow line as well as two lanes of traffic, stopping on the opposite side of the road with her vehicle pointed in the opposite direction.

Plaintiff recalled that defendant's vehicle crossed in front of her vehicle into her lane, causing her to "slam" on her brakes and collide with defendant's vehicle. Her next recollection was that of a police officer asking her if she was okay.

Plaintiff was transported to the hospital where she complained of pain in her knee, face and finger; she was released later that day. That night, however, she began to experience pain in her neck and back.

Plaintiff sought treatment with Kenneth Ermann, D.C., who ordered an MRI of her cervical and lumbar spines. The MRIs revealed two disc herniations in plaintiff's cervical spine, which put pressure on her spinal cord, and one disc protrusion in her lumbar spine, which also put pressure on her spinal cord.

Plaintiff also consulted with a neurologist, Dr. Rosenbaum,*fn1 who performed an EMG which confirmed Dr. Ermann's MRI findings. According to Dr. Ermann, the objective findings supported plaintiff's subjective complaints of pain and discomfort - the doctor characterizing this as a "textbook case." Dr. Ermann also noted that plaintiff had "no significant prior . . . injuries to her neck and back," and that her injuries were caused by the accident and were permanent. Utilizing the "Guides to Evaluation of Permanent Impairment," (published by the American Medical Association), Dr. Ermann concluded that plaintiff had a 17% whole person impairment, meaning she is "most likely to have consequences throughout her life with activities that would not have caused consequences had she not suffered these injuries."

Defendant produced Michael Meese, M.D., an orthopedist who saw plaintiff following the accident. Dr. Meese reviewed the MRI of plaintiff's cervical spine noting the disc herniations at C4-C5 and C5-C6, which put pressure on the spinal cord, causing an indentation. He also reviewed the MRI of plaintiff's lumbar spine, which revealed a disc protrusion at L5-S1, which impinged on the nerve roots. He, too, opined that the injuries to plaintiff's cervical discs were caused by the accident and are permanent in nature.

Dr. Meese also examined plaintiff's knee and ordered an MRI, which "revealed a tear in the posterior horn of the meniscus, a grade one sprain of the medial lateral ligament, edema in the subcutaneous tissues . . . ." He concluded that surgery was required for her knee, which he performed on April 12, 2005. During the surgery, Dr. Meese noted the tear in the medial meniscus which was revealed in the MRI, as well as a tear on the lateral meniscus. The corrective surgery involved shaving down the cartilage, which "diminished [its] size and compromised [] its function." Dr. Meese concluded that, in his opinion, the injuries to plaintiff's knee were caused by the accident. He offered that, "[a]lthough she's had a satisfactory outcome, she has had a permanent injury to her knee. . . .

[L]ong-term result, we do know that does predispose a patient to, especially a young, active individual, to developing posttraumatic arthritis . . . So she's at increased risk for that." Dr. Meese has not seen plaintiff since July 13, 2005.

Defendant produced its expert witness, Charles Carozza, M.D. In the course of his testimony, Dr. Carozza indicated that he was retained by the Center for Orthopedics (CFO) to perform an evaluation of plaintiff. CFO medical services is an organization of physicians and medical experts who conduct physical examinations and file reviews for claims management and resolution, providing services in New Jersey and New York. U.S. Medicare Consultants, L.L.C. (U.S.M.C.) is a national affiliate of CFO and provides independent medical examinations and medical record review services.

Plaintiff's counsel cross-examined Dr. Carozza regarding his relationship with CFO and presented, by way of overhead projection*fn2, a document he had Dr. Carozza read from, prepared by U.S.M.C. Over counsel's objection, the judge permitted inquiry for the purpose of affecting the witness' credibility. The proffer included available marketing information including a program entitled "Advantages for Physicians," which advertised training seminars on "How to be a More Effective Medical Witness," "How to Write More Persuasive, Defensible IME Reports," and "Advanced Testifying Skills for Experts." When asked about the documents, Dr. Carozza indicated that he had never seen them and could not identify them.

Plaintiff's counsel further questioned the witness including inquiries about the extent of his involvement with U.S.M.C.'s training program. Dr. Carozza admitted to receiving a sample report together with guidelines for writing reports and a suggested report outline. He admitted that, if his findings during an exam were, in his opinion, within "normal limits", he used a "canned form" and that part of the report he allegedly authored following his examination of plaintiff was "canned."

Dr. Carozza also noted that his practice as an orthopedist has diminished, and he received more work from CFO/U.S.M.C. to the extent where, for the previous two years, he has earned approximately $140,000 per year working for CFO.

Following the close of evidence, the judge conducted a charge conference with counsel. The judge declined Galinsky's request to charge the stop sign statute, N.J.S.A. 39:4-144, because "there was no specific testimony that there was, in fact, the stop sign governing the direction of travel of this unknown or phantom vehicle."

The judge did include a charge as to careless driving, N.J.S.A. 39:4-97, as to both defendant and the phantom driver, but no additional statutory requests were presented including the right turn statute, N.J.S.A. 39:4-123(a).

Concerning damages, the judge instructed the jury:

Damages may not be based on conjecture or speculation, or passion or sympathy.

This measure of damages is what a reasonable person would consider to be adequate and just under all the circumstances to compensate the plaintiff . . . .

The law does not provide you with any table, schedule or formula by which a person's pain and suffering, disability, impairment, loss of enjoyment of life may be measured in terms of money. The amount is left to your sound discretion. You are to use your discretion to attempt to make the plaintiff whole, so far as money can do so based upon reason and sound judgment without any passion, prejudice, bias or sympathy. . . . Sympathy is an emotion which is normal for human beings. No one can be critical of you for feeling some degree of sympathy in this case. However, that sympathy must play no part in your thinking and any discussion that you reach in the jury room . . . .

Your duty is to decide this case impartially and a decision based upon sympathy, passion, bias or prejudice would violate that duty. During his summation, plaintiff asserted a "time-unit" argument and said:

Let me give you an example . . . All of us have been to a dentist, we've all probably had teeth drilled. You can go to a dentist and you can get a cavity filled and, you know, you've really got a choice, you can take novocaine, or you cannot take novocaine and you can endure some pain, if you just give some thought to what you think a reasonable person would pay to avoid that hour, you may be able to give yourself some sense over 143,000 hours of what may be a fair and an honest verdict on behalf of Carmella.

The judge, by way of the charge in response to this argument, charged the jury:

By way of illustration, counsel may ask you to think about pain and suffering when measured by a finite period such as hours, days or years. . . . Remember, ladies and gentlemen, that the suggestion that you view damages on a time unit basis is argument only and is not evidence.

As we noted, the jury returned a verdict of $625,000 in favor of plaintiff, finding defendant 100% negligent and finding no negligence as to the phantom driver. After denial of defendant's various post-trial motions, this appeal followed.

On appeal, defendant asserts that the judge erred by failing to charge a stop sign violation, by failing to charge careless driving as to plaintiff, by failing to charge a right-turn violation, by permitting use of the U.S.M.C. documents during cross-examination, and by denying defendant's post-trial motions for a remittitur. In addition, defendant challenges plaintiff's counsel's comments during summation.

Defendant first challenges the failure of the judge to charge N.J.S.A. 39:4-144, a stop sign violation, which imposes a duty on a driver to stop at an intersection controlled by a stop sign and not proceed until "yielding the right of way to all traffic on the intersecting street which is so close as to constitute an immediate hazard." Ibid.

Motor vehicle statutes "establish standards of conduct for motorists on [New Jersey] highways, and, under usual circumstances, the violation of motor vehicle statutes is evidence of negligence." Ewing v. Burke, 316 N.J. Super. 287, 293 (App. Div. 1998) (citing Paiva v. Pfeiffer, 229 N.J. Super. 276, 280 (App. Div. 1988)). Where there is evidence "tending to establish that a vehicle was operated in violation of a motor vehicle statute," then a judge should charge the statutory duty to the jury, "in order to assist the jury in arriving at the appropriate result." Id. at 294; see Fattohi v. Cardner, 318, 336 N.J. Super. 331 (App. Div. 1999) (holding that the trial judge committed plain error in failing to charge N.J.S.A. 39:4-123(b), which required defendant to turn her car into the left lane of the highway, and that the failure to charge the statute had the clear capacity of producing an unjust result).

Here, at the charge conference, defendant requested that the court submit a jury charge with respect to the phantom vehicle based on the stop sign statute. In opposing inclusion of the charge, counsel for Amica, representing the phantom driver, argued:

None of the witnesses testified definitively about a stop sign at this intersection. . . . But I believe that to the extent there was testimony elicited from one or two [of] the witnesses, potentially his witnesses, they had a general belief that there were stop signs on side streets.

Number two, I respectfully disagree with [defendant's counsel's] contentions with respect to his client's testimony. I don't think his client saw anything until that car was in front of her in her lane of travel. With respect to Diana Galinsky, we undoubtedly are going to have a very different perception that we're going to be addressing with the jury as to what Diana Galinsky actually testified she saw when she came to testify. I don't think there is any evidential basis for requesting that charge.

The trial judge agreed with Amica, opining that based upon the evidence submitted, the charge was not appropriate and, instead, charged the jury with respect to both defendant and the phantom vehicle's obligations in accord with N.J.S.A. 39:4-97.

The trial judge, in declining the charge, specifically stated:

The general understanding that there were stop signs on those side streets doesn't mean that there was a stop sign on the street governing the direction of travel where the unknown or phantom vehicle was emerging from, [and] I decline to give that charge.

In denying defendant's subsequent motion for reconsideration, the trial judge again set forth the basis of its decision, as follows:

More substantively, regarding the issue of the court's failure to charge N.J.S.A. 39:4-144, the stop sign statute, that argument likewise lacks merit. The court previously set forth its ruling at trial and on the motion for a new trial. Having now had the opportunity to peruse the transcripts of the trial testimony of both defendant, [Esmira] Galinsky and her passenger daughter, Diana Galinsky, it buttresses the court's reasoning for not charging N.J.S.A. 39:4-144.

Defendant, Esmira Galinsky testified that this phantom vehicle suddenly appeared in front of her and that she (defendant, Esmira Galinsky) did not see any cars and that's why she (defendant, Esmira Galinsky) assumed that it (the phantom vehicle) came from Lynnwood Street because she (defendant, Esmira Galinsky) did not see any car approaching her. []

Defendant's daughter, who was 16 at the time of the accident, did testify that 'there was a street on the right-hand side and the car came out and cut my mom off.' This witness could not state which street the car had come from nor that such street had a stop sign.[] Her testimony was simply that the phantom vehicle appeared not to stop. Not, as Mr. Dorsi suggests, that Diana Galinsky saw the phantom vehicle drive through a street which had a stop sign governing its direction of travel. Thus, the court's refusal to charge N.J.S.A. 39:4-144 was appropriate.

We agree with the judge's analysis of the evidence. Both defendant's and her daughter's observations regarding a stop sign were based on assumptions rather than fact. Defendant did not see where the car came from, and her daughter could neither identify the street from which the car traveled nor whether there was a stop sign involved. As defendant noted: "I didn't see any cars. That's why I assumed that [the phantom vehicle] came from Lynwood Street . . . ." There was no factual basis on which to base the stop sign violation. The trial judge did not err in denying the request.

We reach the same result regarding the turn statute, N.J.S.A. 39:4-123(a). This statute requires a driver making a right turn to make such turn "as close as practicable to the right-hand turn or edge of the roadway."

We first note that the charge was not requested; so we must consider this issue as plain error. In such circumstances, we will reverse only if there is evidence of "error clearly capable of producing an unjust result." R. 2:10-2. A possibility of an unjust result will not suffice. State v. Macon, 57 N.J. 325, 336 (1971). The possibility must be "sufficient to raise a reasonable doubt as to whether the error led the jury to a result it otherwise might not have reached." Ibid.

Here, failure to include instruction under N.J.S.A. 39:4-123(a) was not plain error. The lack of factual basis for the stop sign charge also informs our decision here. There was no proof as to where the car came from, whether the vehicle was turning or intending to turn or as defendant stated: "I didn't see any cars. That's why I assumed that [the phantom vehicle] came from Lynwood Street." In sum, there is no factual basis to implicate the turn statute.

Likewise, the judge's refusal to charge the careless driving statute, N.J.S.A. 39:4-97, as to plaintiff was not error. Defendant argues that each driver, both defendant and plaintiff, "should have been burdened with the identical [careless driving] charge - either both subject to the careless driving charge or neither." Defendant supports this contention by pointing out that both drivers testified that a vehicle suddenly came into their lanes of travel - with respect to defendant, it was an unknown vehicle, and with respect to plaintiff, it was defendant's vehicle.

N.J.S.A. 39:4-97 provides:

A person who drives a vehicle carelessly, or without due caution and circumspection, in a manner so as to endanger, or be likely to endanger, a person or property, shall be guilty of careless driving.

Where there is evidence "tending to establish that a vehicle was operated in violation of a motor vehicle statute, the statutory duty should be charged to the jury in order to assist the jury in arriving at the appropriate result." Ewing, supra, 316 N.J. Super. at 294.

Here, there is no such evidence that plaintiff drove carelessly. As plaintiff's counsel argued:

I think there's some confusion between the duty of an automobile driver to make observations which you're charging. And counsel can argue that Carmella [plaintiff] didn't make proper observations, but she certainly, by none of the evidence, did she do anything that was careless in any manner, way, shape or form. She was driving in her lane and all of a sudden she was confronted with a car that spun out in front of her. There's nothing that she did that could reasonably be said to come under the careless driving statute. And I think it would be improper to charge that with respect to her.

The judge agreed with counsel and said:

I agree with [plaintiff's counsel] and I'm going to incorporate all of his arguments as to why I should not charge the 39:4-97 against plaintiff as part of the comparative negligence. This accident happened in a split second. Plaintiff didn't see the vehicles involved, and in particular Ms. Galinsky's vehicle. . . . I don't think plaintiff in this case did anything that would constitute careless driving. And as a result, most respectfully, ma'am, I decline to give that violation of the traffic act as to plaintiff.

This was correct. The parties were driving in opposite directions when defendant's vehicle suddenly appeared before plaintiff after crossing two lanes of traffic. There was no evidence supporting the charge that plaintiff was driving carelessly.

We next focus on defendant's application for a new trial or in the alternative for a remittitur. Pellicer v. St. Barnabas Hosp., 200 N.J. 22 (2009). In denying the application, Judge Russello commented:

Defendant Galinsky has a motion for a new trial or remittitur. The defendant Galinsky's motion for a new trial is denied, because this Court has given due regard to the jury to pass upon, and assess, and evaluate the credibility of the witnesses. And it does not clearly and convincingly appear that there has been a miscarriage of justice.

The quantum of damages awarded by the jury is not so disproportionate to the plaintiff's injuries and her resulting disabilities, as to shock my conscience. Nor is the award so grossly excessive as to demonstrate any prejudice or any partiality, or any passion by the jury.

The plaintiff sustained some serious injuries. She had a protruded disc herniation at C-4, C-5 with extrinsic pressure on the anterior spinal cord. She had a protruded disc herniation at C-4, C-6. She had annular bulging of the posterior annular fibers at L-5, S-1. She had a tear of the posterior horn of the lateral meniscus, for which plaintiff had undergone surgery. She had a grade one sprain. She had other soft tissue injuries, which I'm not even going to mention. She was treated primarily by two physicians. Dr. Erman[n], a chiropractor, and Dr. M[e]e[s]e, a[n] orthopedic surgeon, who had special training in knee trauma.

My notes reflect that Dr. M[e]e[s]e had testified that the damage to the plaintiff's cartilage is permanent. Her injury to the knee was permanent. The cartilage that was removed can never be restored, returned or regenerated. Dr. M[e]e[s]e further testified that as a result of this increased risk - strike that. He further testified that as a result of the increased risk, she's going to have post-traumatic arthritis. She's likely to suffer further symptoms in her knee, and require further treatment.

Regarding her spine, Dr. M[e]e[s]e testified that the injuries to the spine, including the herniated discs in the cervical spine, and the bulging discs in the lumbar spine are permanent.

Dr. Erman[n] also testified that the injuries to the plaintiff's cervical and lumbar spine were permanent and would cause her pain, impairment, and disability for the rest of her life.

Plaintiff also produced the radiologist, Dr. Brownstein. He had indicated that MRI films revealed a protruded disc herniation at C-4/C-5, C-5/C-6 levels, with extrinsic pressure on the anterior spinal cord.

Dr. Charles Carozza, the defendant's medical expert in orthopedics had appeared on behalf of defendant. And although he had disagreed with both doctors, the jury in this case had ample opportunity to evaluate the testimony of all of the doctors, and obviously, disbelieved Dr. Carozza. Believed the plaintiff's doctors.

The award of $625,000 is reasonable considering the nature and the extent of this young women's injuries. And does not warrant [] either a new trial or remittitur, especially considering the severity of their impact on her daily life. None at any presently, as she testified, but also in the future.

The jury also heard from the plaintiff, defendant, Esmira Galinsky, and Mrs. Galinsky's daughter, on how this accident had occurred. And the jury, obviously, disbelieved the defendant Galinsky and her daughter, as to how this accident had occurred. And assessed liability of 100 percent against the defendant, Esmira Galinsky.

The defendant's motion for a new trial is denied, as is the defendant's application for a remittitur.

Calculating damages for pain and suffering is an "inherently subjective" process. Johnson v. Scaccetti, 192 N.J. 256, 280 (2007), and "the law can provide no better yardstick for [a jury's] guidance than [the jurors'] own impartial judgment and experience." Ibid. The "measure of damages is what a reasonable person would consider to be adequate and just under the circumstances." Model Jury Charges (Civil), Damages-Personal Injuries: Disability, Impairment, Loss of the Enjoyment of Life, Pain and Suffering § 6.11F (Dec. 1996). Juries are given "wide latitude" when determining a verdict for non-economic damages. Ibid; see Baxter v. Fairmont Food Co., 74 N.J. 588, 598 (1977).

In reviewing a jury verdict, a trial judge is "empowered to overthrow the jury's verdict and grant a new trial[,]" where a damages award appears, "clearly and convincingly" so excessive to constitute a miscarriage of justice. Johnson, supra, 192 N.J. at 280; R. 4:49-1(a). "Alternatively, in such circumstances, courts also are authorized to reduce or remit the damages." Johnson, supra, 192 N.J. at 280; see Fertile v. St. Michael's Med. Ctr., 169 N.J. 481, 492 (2001) (observing that a remittitur avoids the "unnecessary expense and delay" of a new trial); see also Baxter, supra, 74 N.J. at 595.

Because the jury is given such "wide latitude" in determining pain and suffering damages, "the standard for granting a new trial or remittitur is necessarily high." Johnson, supra, 192 N.J. at 281. A new trial should not be ordered "unless it is so clearly disproportionate to the injury" that it shocks the judicial conscience. Ibid. "The verdict must be 'wide of the mark' and pervaded by a sense of 'wrongness'" such that the trial court is "'clearly and convincingly' persuaded that it would be manifestly unjust to sustain the award." Ibid; see R. 4:49-1(a); Baxter, supra, 74 N.J. at 604. The fact that an award is generous will not provide sufficient grounds to remit the verdict where the award has reasonable support in the record. Jastram v. Kruse, 197 N.J. 216, 230 (2008) (citing Taweel v. Starn's Shoprite Supermarket, 58 N.J. 227, 236 (1971), overruled on other grounds by Fertile, supra, 169 N.J. 481).

"On appeal, the standard of review for determining the excessiveness of a damages award is the same standard applicable to the trial court[.]" Johnson, supra, 192 N.J. at 282; McRae v. St. Michael's Med. Ctr., 349 N.J. Super. 583, 597 (App. Div. 2002) (noting that in determining whether the grant or denial of remittitur was proper, the court is bound by the same strictures as a trial court); see Baxter, supra, 74 N.J. at 596. The court must rely on the "totality of the evidence," viewed in a light most favorable to plaintiff. Johnson, supra, 192 N.J. at 181; Taweel, supra, 58 N.J. at 236. However, because, on appeal, review is confined to "the cold record," we must consider and defer to the trial judge's "feel of the case" in ruling on the motion. Johnson, supra, 192 N.J. at 282. The "feel of the case factor," is the "only element distinguishing the standard governing appellate review from that controlling trial court reaction to a jury verdict." Ibid.

Here, the jury returned a verdict for plaintiff, finding defendant 100% negligent, and awarded damages in the amount of $625,000. We are satisfied that the judge considered the proofs before the jury and properly denied the motion and the remittitur. We recognize that the verdict was substantial, but the injuries sustained by plaintiff were not insignificant. Without question, they will have a substantial impact on her life.

There is ample "evidence from which a rational jury could have reached the verdict[.]" See Jafstram, supra, 197 N.J. at 235. Furthermore, although it may be considered generous, the jury's verdict is not so excessive to constitute a miscarriage of justice, in comparison with previous jury verdicts in accident cases. See, e.g., McRae, supra, 349 N.J. Super. at 601 (noting that a jury award of $1,175,000 against doctor who acted negligently in treating plaintiff's broken leg "may be considered generous, [but] it is not so disproportionate to the injury or resulting disability to constitute a miscarriage of justice"); Hinojo v. N.J. Mfrs. Ins. Co., 353 N.J. Super. 261, 267 (App. Div.) (upholding a judgment of $400,000 plus medical expenses of $4586.78, lost wages of $4650 and pre-judgment interest of $81,911.38, awarded to plaintiff who sustained a crushed finger against defendant designer of a safety guard on a metal punch press), certif. denied, 175 N.J. 76 (2002); Fertile, supra, 169 N.J. at 481 (sustaining a $5,000,000 damages award for infant against doctor who deviated from acceptable standard of care in failing to perform cesarean section in delivering infant causing partial paralysis to infant's arm).

The "totality of the evidence," viewed in a light most favorable to plaintiff, supports a finding that the damages award rendered in the instant case are not so "wide of the mark" nor pervaded by a sense of "wrongness" such that the award need be reduced or reconsidered. Johnson, supra, 192 N.J. at 181.

Defendant next argues that plaintiff's counsel improperly "published" inadmissible documents to the jury during cross-examination of Dr. Carozza and during summation.

"[A]ny fact which bears against the credibility of a witness is relevant to the issue being tried," and a party has a right to have that fact laid before the jury in order to aid them in determining what credit should be given to the person testifying. State v. Pontery, 19 N.J. 457, 472 (1955); see State v. Martini, 131 N.J. 176, 255 (1993), overruled in part on other grounds by State v. Fortin, 178 N.J. 540, 646 (2004); State v. Silva, 131 N.J. 438, 444 (1993); Delgaudio v. Rodriguera, 280 N.J. Super. 135, 141 (App. Div. 1995) (observing that extrinsic impeachment evidence may include "defect of character" and "proof by others that material facts are otherwise than as testified to by the witness under attack."). The trial judge is vested with "broad discretion" to determine the proper limits of examination of a witness' credibility. Delgaudio, supra, 280 N.J. Super. at 142; State v. Engel, 249 N.J. Super. 336, 375 (App. Div.), certif. denied, 130 N.J. 393 (1991). The judge should measure the extent of allowable cross-examination involving collateral matters "in light of the effect of such examination upon substantial justice." Mazza v. Winters, 95 N.J. Super. 71, 79 (App. Div. 1967) (advising that whether testifying doctor had changed his name from Rubin Tubowitz to Robert Tuby, and whether in another case, tried three years before, he testified falsely that he had always been known as Robert Tuby, was totally irrelevant to the issues of the present case). We will not interfere with the trial judge's control in determining the proper limits of examination of a witness' credibility unless clear error and prejudice is shown. Lawlor v. Kolarsick, 92 N.J. Super. 309, 311 (App. Div.), certif. denied, 48 N.J. 356 (1966).

Medical witnesses may also be cross-examined as to their "testimonial and experiential weakness" through "the usual methods of cross-examination." Janus v. Hackensack Hosp., 131 N.J. Super. 535, 541 (App. Div. 1974), certif. denied, 71 N.J. 515 (1976); Angel v. Rand Express Lines, Inc., 66 N.J. Super. 77, 86 (App. Div. 1961). In Janus, supra, the trial judge prohibited defense counsel from cross-examining a medical witness as to his credibility.

We reversed and remanded, concluding that,

[c]redibility of the competing medical witnesses was a paramount factor to be first determined by the jury in resolving the controversy. Under these circumstances, and in the light of the previously discussed legal principles, we conclude that the action of the trial judge in preventing the full cross-examination of Dr. Tuby, and impliedly of Dr. Tesler, constituted a mistaken exercise of his discretion which amounted to 'clear error and prejudice' to defendants. It was clearly capable of producing an unjust result, R. 2:10-2, and accordingly mandates a reversal and the granting of a new trial.

[131 N.J. Super. at 541].

The evidence with which a witness may be impeached is "not . . . limited to evidence adduced at trial." Delgaudio, supra, 280 N.J. Super. at 142; Martini, supra, 131 N.J. at 255. However, impeachment evidence is subject to the same evidentiary strictures as most evidence, that being that under N.J.R.E. 901, prior to its admission into evidence, the evidence must be authenticated or identified that the "matter is what the proponent claims."

Here, defendant takes issue with use of the CFO documents during cross-examination, arguing that the documents were not properly authenticated or identified under N.J.R.E. 901 before presentation to the witness. In evaluating defendant's motion for reconsideration, the trial judge rejected this argument. He said:

Regarding P-19 and P-20 being improperly shown to the jury, Mr. Dorsi [defense counsel] is mistaken in his allegation that they were shown to the jury without prior authentication. . . . In any event, on cross examination of Dr. Carozza, Mr. Caminiti sought to use P-19 by placing it on an overhead projector. There was an objection by both defense counsel and the court sustained their objection until defendant's medical witness was given an opportunity to identify each of the documents (P-19 and P-2). Dr. Carozza testified that at the time he first became affiliated with CFO, he was given a copy of a CFO sample report together with guidelines for writing reports and a suggested report format. Dr. Carozza did identify the documents and conceded that CFO was the national affiliate of U.S. Medical Consultants. Thereafter, U.S. Medical Consultants' document was marked P-20 and was exhibited, in part, to the jury, without objection, contemporaneously with the cross-examination of Dr. Carozza. The same part of P-20 was displayed to the jury during summation without objection.

Since neither defense counsel voiced objection to this alleged impropriety, which did not have the capacity to prejudice the jury so as to cause a miscarriage of justice, any objection made post judgment is deemed waived.

We find no error in Judge Russello's ruling. Plaintiff's counsel questioned Dr. Carozza as to the latter's experience and background in testifying in prior cases. Dr. Carozza's C.V. was printed on CFO Medical Services, P.A., letterhead, stating, "The Physician below is available for Independent Medical Evaluations. . . ." Counsel was entitled to and appropriately questioned Dr. Carozza regarding his relationship with CFO. He asked the doctor to read from a document provided by U.S.M.C., CFO's national affiliate. While defense counsel objected that "this [was] obviously a fact finding issue as to CFO marketing[,]" the trial judge ruled that he would allow some latitude for plaintiff's counsel to impeach the witness' credibility.

Dr. Carozza identified the document and corroborated the relationship of U.S.M.C. and CFO. These documents included one entitled "Advantages for Physicians", which advertised training seminars on "How to be a More Effective Medical Witness"; "How to Write More Persuasive, Defensible IME Report [sic.]"; and "Advanced Testifying Skills for Experts." In response to counsel's questions, Dr. Carozza admitted to receiving a sample report, together with guidelines for writing reports and a suggested report outline from CFO/U.S.M.C. He also admitted that, if his findings during an exam were, in his opinion, within "normal limits," he used a "canned form." He testified that part of the report he allegedly authored following his examination of plaintiff was "canned."

The cross-examination was proper and was germane to his testimony as an expert witness. CFO/U.S.M.C. was in the business of teaching medical witnesses how to be more persuasive during testimony; Dr. Carozza's affiliation with this group "[bore] against [his] credibility" and was "relevant to the issue being tried" deserving of further questioning. Delgaudio, supra, 280 N.J. Super. at 142.

We conclude that the trial judge did not abuse his discretion in ruling that the documents were properly authenticated, see N.J.R.E. 901, and were properly utilized by counsel.

Finally, defendant argues that plaintiff's counsel's comments during summation were improper and warrant reversal. We disagree.

"Counsel is to be given 'broad latitude' in summation." Diakamopoulos v. Monmouth Med. Ctr., 312 N.J. Super. 20, 32 (App. Div. 1998). However, such latitude is not without limits. Comment must be "restrained within the facts shown or reasonably suggested by the evidence adduced." Ibid. (citing Condella v. Cumberland Farms, Inc., 298 N.J. Super. 531, 534 (1996); Matthews v. Nelson, 57 N.J. Super. 515, 521 (App. Div. 1959), certif. denied, 31 N.J. 296 (1960)). Furthermore, counsel "may not misstate the evidence nor distort the factual picture", ibid., such as by using "disparaging language to discredit the opposing party, or witness," Rodd v. Raritan Radiologic Assoc., P.A., 373 N.J. Super. 154, 171 (App. Div. 2004) (citing Geler v. Akawie, 358 N.J. Super. 437, 470-71 (App. Div.), certif. denied, 177 N.J. 223 (2003); Henker v. Preybylowski, 216 N.J. Super. 513, 518-19 (App. Div. 1987)); "accus[ing] a party's attorney of wanting the jury to evaluate the evidence unfairly"; "trying to deceive the jury"; or "deliberately distorting the evidence." Ibid.

Counsel may urge the jury to "draw conclusions even if the inferences that the jury is asked to make are improbable, perhaps illogical, erroneous or even absurd, unless they are couched in language transcending the bounds of legitimate argument, or there are no grounds for them in the evidence." Spedick v. Murphy, 266 N.J. Super. 573, 590-91 (App. Div.), certif. denied, 134 N.J. 567 (1993); see Wimberly v. Paterson, 75 N.J. Super. 584, 604 (App. Div.), certif. denied, 38 N.J. 340 (1962), overruled in part on other grounds by Johnson v. Dobrosky, 187 N.J. 594 (2006); Botta v. Brunner, 42 N.J. Super. 95, 108 (App. Div. 1956), modified, 26 N.J. 82 (1958). We will not disturb the trial judge's discretion over summation argument unless "it is of such a nature as to have been clearly capable of producing an unjust result." R. 2:10-2.

Here, defendant urges that the "cumulative effect" of the comments made by plaintiff's counsel during summation "clearly had the capacity to inflame the jury." These include: (1) the analogy of plaintiff's pain and suffering to the experiences of the jury in a dentist's chair; (2) the suggestion that the loss of enjoyment of life is to be equated with the jurors' and "everyone's" democratic freedoms; (3) "improperly impugn[ing] the integrity of both defense counsel and their witnesses especially Dr. Carozza"; and (4) the suggestion that defendant was guilty of "reckless driving" "when there was no such allegation during the trial nor was that charge requested or given by the court."

In denying defendant's motion for re-consideration, Judge Russello observed:

The remarks made during summation by plaintiff's counsel were proper and based upon the evidence that was adduced during the course of the trial and any reasonable inferences therefrom were fair comment. [Plaintiff's counsel] had an obligation to address the credibility of the witnesses since this was a critical issue for the jury's ultimate determination. All counsel were accorded broad latitude in summation.

In addition and in the alternative, [defense counsel] never objected during closing arguments to anything that [plaintiff's counsel] stated in his summation, or at least those selective portions of the transcript that [defense counsel] has now furnished, do not reflect that. Defense counsel's failure to object ordinarily indicates that the statements made in summation were not and are not prejudicial and are deemed waived.

We first note that where a lawyer hears an adversary's statements and concludes that the statements are improper, an objection should be advanced. Fertile, supra, 169 N.J. at 481. Failure to object may be considered as opposing counsel's belief that the statements were not unduly prejudicial. Linden v. Benedict Motel Corps., 370 N.J. Super. 372, 398 (App. Div.), certif. denied, 180 N.J. 356 (2004). Where no objection is advanced, only those statements which are "clearly capable of producing an unjust result" rise to the level of reversible error. Fertile, supra, 169 N.J. at 481.

Plaintiff's counsel's statements were not of that character here. We have previously discussed the propriety of Dr. Carozza's relationship with and advice tendered by CFO/U.S.M.C.

Counsel presented a reasoned analysis of the testimony, suggesting that the witness' history with a marketing group damaged the credibility of the witness:

[W]hy Dr. Carozza? Why the doctor who is affiliated with that CFO United States group of some sort who puts out there that they want people who hire them, that they give seminars on how to be a more effective medical witness. Now I don't know whether or not you think that Dr. Carozza was effective. I know that he didn't attend any of these seminars. And I'll leave that for you to judge. . . .

The statements were "reasonably suggested by the evidence adduced," Diakamopoulos, supra, 312 N.J. Super. at 31, and proper. Credibility was a critical factor in the outcome of this trial. We cannot say on this record that these comments rise to the level of plain error or led to an unjust result.

We reach the same result regarding the comments related to the "dentist chair." We have carefully reviewed the record and find that counsel's comments did not violate the admonitions expressed by the Court in Cox v. Valley Fair Corp., 83 N.J. 381, 384-85 (1980). We note that Rule 1:7-1(b), adopted after Cox, permits commentary regarding "time-unit" rule. In sum, we find no error.

We affirm the judgment in A-0233-08T3. A-1345-08T3

This companion appeal involves plaintiff and Amica Mutual Insurance Company (Amica), plaintiff's insurance carrier and the issuance of an order compelling Amica to pay underinsured benefits to plaintiff. We affirm that order.

These are the facts relevant to this appeal. In August 2006, within two years of her accident involving defendant Galinsky, plaintiff filed a lawsuit against Galinsky, on August 21, 2006, two days prior to the filing of the complaint in the plaintiff's personal injury action, plaintiff's attorney sent a letter to Amica notifying it of the suit and advising that "[i]t is possible that the defendant(s) may be uninsured or that the insurance may be inadequate to satisfy this claim." (Emphasis added.) The letter further stated, "If so, it is my intention to file an uninsured/underinsured claim pursuant to that endorsement of your insurance policy." Amica provided both uninsured (UM) and underinsured (UIM) coverage for the benefit of plaintiff.

On December 18, 2006, plaintiff's attorney sent another notice to Amica advising it of its right to intervene in the litigation, and on April 27, 2007, Amica intervened in the lawsuit between plaintiff and Galinsky in its role of UM insurer representing the interests of the alleged phantom driver.

Following a week-long trial in March 2008, in which Amica actively participated, the jury returned a verdict in the amount of $625,000 against Galinsky, the identified tortfeasor and found no liability as to the alleged phantom driver.

As Galinsky had limited coverage, notice was forwarded on April 1, 2008, to Amica of plaintiff's intention to seek UIM benefits as against her personal automobile insurance policy.

By letter of May 12, 2008, Amica denied UIM coverage, asserting in essence, that because Galinsky did not settle within policy limits, plaintiff was not underinsured and further claiming that the underlying action was commenced without Amica's consent. It further argued that it was not fully advised of a UIM claim.

On June 4, 2008, plaintiff's counsel forwarded to Galinksy's counsel a proposed Assignment of Rights against Galinsky's insurance carrier, Rutgers Casualty Insurance Company.

In response, plaintiff filed an Order to Show Cause to compel payment of UIM benefits, seeking to compel Amica to tender $200,000 in UIM benefits - the difference between the $300,000 in UM/UIM benefits pursuant to her personal auto policy with Amica and the $100,000 limit of the tortfeasor Galinsky's auto liability policy available from Rutgers. Judge Russello granted the relief, ordered the payment of $200,000 from Amica to plaintiff and said:

At the time of the accident, plaintiff was insured by defendant, Amica Mutual Insurance Company with a UM/UIM endorsement of $300,000. Defendant, Esmira Galinsky was insured with Rutgers Casualty with liability limits in the amount of $100,000/300,000. On March 25, 2008 the jury returned a verdict finding the defendant, Esmira Galinsky 100% at fault and awarding $625,000 in personal injury damages to plaintiff. Defendant, Amica is contractually obligated to pay underinsured motorists benefits pursuant to plaintiff's policy in the amount of $200,000.

As the plaintiff's automobile insurance carrier on the date of the accident, the defendant, Amica, wore two litigation hats, one as UM and the other as UIM.

On August 21, 2006, plaintiff's counsel sent a letter to the defendant, Amica Mutual Insurance, in accordance with Rutgers Casualty Insurance Company v. Vassas, 139 N.J. 163 (1995) advising them that the defendants may be uninsured or that the insurance may be inadequate to satisfy the claim and if that be the case, it was plaintiff's intention to file an uninsured/underinsured claim. A Notice of Suit and Right to Intervene were also sent by plaintiff to defendant, Amica. Defendant, Amica's interests were adequately represented because it actively participated through its counsel, Denise M. Luckenbach, Esq., both throughout the discovery process and at and in the trial of this matter. Indeed, defendant, Amica retained the services of defense medical examiner, Dr. Charles Carozza who submitted at least four defense medical examination reports in connection with this litigation.

Defendant, Amica intervened in the underlying litigation and is bound by the judgment. They were given adequate notice of the suit and its interests were adequately represented.

Plaintiff's claim is not barred by the entire controversy doctrine. Plaintiff in this case brings suit against the defendant, Amica, to enforce the payment of UIM benefits pursuant to the UM/UIM endorsement of her policy. This is merely enforcing the defendant, Amica's, contractual obligation to plaintiff which plaintiff paid premiums for and to which the defendant, Amica, had adequate notice and whose interests were well represented.

By way of note, the April 4, 2008 Order for Judgment that this court signed, dismissed the uninsured motorist claim against the defendant, Amica Mutual Insurance Company with prejudice, (emphasis mine) based upon the jury finding that the defendant, Galinsky, was 100% liable and the phantom vehicle either non-existent or 0% responsible for the happening of this accident. I did not dismiss the UIM claim against the defendant, Amica, nor did that Order for Judgment address it.

Counsel for the defendant, Amica, alludes to an Assignment of Rights purportedly signed by plaintiff, Carmela Cuccurullo and the defendant, Esmira Galinsky, permitting plaintiff to take legal action against Rutgers Casualty Insurance Company. Defendant's counsel contends that this is a destruction of any potential subrogation rights and bars a UIM claim pursuant to the collateral source rule.

This argument by Amica's counsel may be academic and moot since this court did not see any signed 'Assignment' that was attached.

Amica now appeals.

On appeal, it argues that it failed to have proper notice of the UIM claim, that relief is barred by the entire controversy doctrine, that the tender of an assignment to pursue a bad faith claim against Rutgers "does not render Galinsky underinsured" and the "potential" for a bad faith claim against Rutgers bars a UIM claim against Amica.

We address these issues seriatim.

We start with certain basic principles that inform the outcome of this appeal. First, an action by an insured to compel UIM benefits after resolution of the claim against the tortfeasor should be brought promptly and adjudicated summarily for the purpose of resolving the parties' respective rights and liabilities. Rutgers Casualty Ins. Co., supra, 139 N.J. at 175; Hallion v. Liberty Mut. Ins. Co., 337 N.J. Super. 360, 368 (App. Div. 2001).

Where there is notice to an UM/UIM carrier of an underlying tort claim and an adversarial proceeding that determines damages, the UM/UIM carrier will be bound by the damages award. Vaccaro v. P.A. Nat. Mut. Cas. Ins. Co., 349 N.J. Super. 133, 143 (App. Div.), certif. denied, 174 N.J. 40 (2002). As the Court observed in Zirger v. Gen. Accident Ins. Co., 144 N.J. 327, 333-34 (1996),

Although the relationship of the insurer and insured is contractual, the source of the obligation to offer underinsured motorist coverage is statutory. . . . For an insured who exercises the [underinsured motorist] option, the practical effect of the coverage offered [] is to require an insurer, to the extent of coverage, to pay its insured the damages that the insured is entitled to recover from the underinsured tortfeasor, less the amount of the tortfeasor's coverage. Accordingly, the mandatory availability of [underinsured motorist] coverage for all insureds reflects a strong public-policy interest in providing through automobile insurance adequate compensation to [] motorists for injuries sustained in accidents with underinsured motorists. [(Citations omitted).]

Furthermore, legislation involving automobile insurance should be construed to allow for the broadest protection of auto accident victims consistent with the language of the pertinent statute. Ciecka v. Transamerica Ins. Group, 81 N.J. 421, 428 (1979) (quoting Motor Club of Am. Ins. Co. v. Phillips, 66 N.J. 277, 293 (1974)).

Defendant argues that the trial judge erred in compelling Amica to tender payment of $200,000 in UIM benefits to plaintiff, because plaintiff failed to place Amica on notice of her intention to pursue an UIM claim until after the jury rendered a verdict in excess of the tortfeasor's automobile policy. This is factually inaccurate.

[W]hen an insured under an automobile insurance policy providing UIM benefits is involved in an accident and undertakes legal action against the tortfeasor, the insured must notify the UIM insurer of that action.

If, during the pendency of the claim, the tortfeasor's insurance coverage proves insufficient to satisfy the insured's damages, then the insured should again notify the UIM insurer of that fact. [Rutgers Casualty Ins. Co., supra, 139 N.J. at 174].

The first required notice is upon initiation of the action. See Rivers v. Allstate Ins. Co., 312 N.J. Super. 379, 383 (App. Div. 1998); Zirger, supra, 144 N.J. at 340 (observing that "plaintiffs are obligated to provide notice to their UM/UIM carrier of the institution of suit against the tortfeasor"). A second notice is required where the tortfeasor's insurance coverage proves insufficient to satisfy the insured's damages. Rivers, supra, 312 N.J. Super. at 383. The UIM/UM provider has the right to intervene where intervention will not "unduly delay or prejudice the adjudication of the rights of the original parties," Zirger, supra, 144 N.J. at 341 (citing Looman Realty Corp. v. Broad St. Nat'l Bank of Trenton, 74 N.J. Super. 71, 78 (App. Div.), certif. denied, 37 N.J. 520 (1962)), and where "intervention will eliminate the need for subsequent litigation." Ibid. (citing Div. of Youth & Fam. Servs. v. Torres, 185 N.J. Super. 234, 245 (Juv. & Dom. Rel. Ct. 1980), aff'd o.b., 185 N.J. Super. 182 (App. Div. 1982)). Without question, Amica was notified at the time of the filing of the action of the uninsured claim and of the potential for an underinsured claim. It was notified of its right to intervene and did so.*fn3 It actively participated in the litigation, appearing at trial and representing its interests in the guise of an alleged phantom driver.

In sum, Amica received timely notice of the UM/UIM claim, notice of the lawsuit, notice of its right to intervene and notice of inadequate coverage after the verdict. To suggest that it was not given adequate notice of all of its potential liability under its insurance contract is fanciful, at best.

We have carefully reviewed the record and considered Amica's remaining arguments regarding the application of the entire controversy doctrine as well as the import of the tender of an assignment of rights*fn4 and we conclude that both arguments are without merit. R. 2:11-3(e)(1)(E).

Finally, during the pendency of this appeal, plaintiff and Galinsky reached a settlement; however, because of the pending appeal, the settlement required Amica's consent to settle.

Plaintiff moved before us to compel Amica to consent; we denied the motion without prejudice and granted the parties leave to file the motion in the Law Division. In our February 5, 2010 order, we noted that the "motion raises issues that are not presently before the court, and we decline to entertain such issues on these appeals." We did order the Law Division to advise us of the result of the motion. By order of March 19, 2010, Judge Russello, in the Law Division, granted plaintiff's motion pursuant to Longworth v. Van Houten, 223 N.J. Super. 174 (App. Div. 1988). Amica appealed that order and moved before us to calendar its newest appeal with these appeals. In addition, Amica moved for an order to preserve any bad faith claims against Rutgers.

We have now decided the underlying appeals and conclude that Amica's motion to consider its appeal with these appeals is moot. We need not determine the rights of Amica now that it is obligated to provide UIM coverage nor do we opine on the issue of its subrogation rights. To the extent that it considers such issues extant, we leave that to any further proceedings it chooses to pursue to resolve those issues.

The judgments in A-1345-08T3 and A-0233-08T3 are affirmed.

ASHRAFI, J.A.D., concurring and concurring in the result. I join in the court's opinion in A-1345-08T3, and I concur in the result in A-0233-08T3.


With respect to defendant Galinsky's contention that the trial judge erred in rejecting her proposed jury instruction for a stop sign violation under N.J.S.A. 39:4-144, I decline to join in the majority's reliance on Ewing v. Burke, 316 N.J. Super. 287 (App. Div. 1998), which I view as wrongly decided. In Ewing, we held that a trial judge in a personal injury trial arising from a motor vehicle accident committed plain error in failing to instruct the jury about an applicable motor vehicle statute that neither party had requested be charged or otherwise raised during the trial. Id. at 292, 294. Not only had neither party requested the charge, neither party had raised the alleged error on appeal. Id. at 292-95.

I believe our decision in Ewing was incorrect in three respects: failing to apply Rule 1:7-2 regarding waiver of objections to the jury charge not made at trial; failing to apply appropriately Rule 2:10-2 regarding the plain error standard of review; and, most important, reaching a decision on appeal on an issue not raised, briefed, or adequately argued by the parties. The personal injury verdict in a routine motor vehicle accident case was not the kind of matter involving public policy or other matters of public interest that warranted our intervention to correct a "manifestly unjust result." See In re Appeal of Howard D. Johnson Co., 36 N.J. 443, 446 (1962).

The holding of Ewing, however, is inapplicable to the argument defendant raises on this appeal. Here, defendant made a request that the trial court charge the jury on the stop sign statute. The plain error standard of review is not involved. I would hold the trial court did not abuse its discretion in determining the evidence of a stop sign violation by an alleged phantom driver was too vague and tenuous and in declining to give the requested instruction for that reason. See Mayles v. Wentlejewski, 337 N.J. Super. 466, 471 (App. Div. 2001); Hochman v. Karpenski, 325 N.J. Super. 460, 465-66 (App. Div. 1999). Even if such an instruction would have been appropriate, failure to give the charge was harmless. The jury could understand the contentions of the parties and the negligence issues it was asked to decide without an instruction that the traffic laws of this State include a statute establishing a motor vehicle violation for running a stop sign. The jury could understand that going through a stop sign without stopping and looking for crossing traffic would be evidence of negligence by the alleged phantom driver. See id. at 465.

With respect to the requested charge on the stop sign statute, there was no error "clearly capable of producing an unjust result." Rule 2:10-2.


The more problematic issue raised on appeal concerns improper summation remarks by plaintiff's attorney. I disagree with my colleagues' conclusion finding no error. Ante at ___ (slip op. at 31-32). I view plaintiff's summation as ranging substantially beyond acceptable argument, and if defense counsel had made timely objections, the trial court would have been obliged to sustain those objections. Defense counsel, however, chose not to object at trial, and we should not set aside the jury's verdict unless the summation contained plain error, "clearly capable of producing an unjust result." R. 2:10-2. Although the several distortions and improprieties in plaintiff's summation come close to that threshold, I do not find plain error.

Plaintiff's counsel began his summation by reminding jurors of the oath they had taken to try the case truly and fairly. Soon after that beginning, he improperly put each juror in plaintiff's place. He said:

And I remind you [of] that [] oath now, for reasons much more important perhaps than what we're dealing with here today on March 25th, and that is that we're all future litigants.

We live today in good health and revel of contentment, but tomorrow anyone in society can be injured by the careless driving of someone else.

This comment was objectionable because it asked jurors to put themselves in plaintiff's shoes and decide the case from plaintiff's point of view. Cf. Botta v. Brunner, 26 N.J. 82, 94 (1958) (prohibiting "golden rule" argument to juror's regarding measuring damages); accord Geler v. Akawie, 358 N.J. Super. 437, 464 (App. Div.), certif. denied, 177 N.J. 223 (2003); Henker v. Preybylowski, 216 N.J. Super. 513, 520 (App. Div. 1987).

Next, after focusing for some time on the evidence and the issues, counsel again reminded jurors that they may one day be plaintiffs, embellishing his comments with lofty concepts from the Declaration of Independence: and when you talk about a loss of enjoyment of life, when you talk about those things that make things meaningful and important, in Carmella's case, in your case and in everyone's case, what you really talk about is a loss of life, a loss of liberty and the loss of a pursuit of happiness. And my friends I will tell you that life does not mean living. Life means living and breathing the way the good Lord put us [on] this earth to live and breathe without suffering as the result of the careless or reckless driving of one or more of these defendants. And liberty doesn't mean freedom from jail. Liberty means the freedom to do all of the things that you enjoyed doing before you were injured. [(Emphasis added.)]

Shortly after reminding jurors of their own potential loss of liberty and the pursuit of happiness through injuries in a car accident, counsel made the most serious error in his summation. He displayed the Court Rule book to the jury and said:

Speaking of books, this is a court rule book. In its thousands of pages and hundreds of court rules, it guides lawyers in the courtroom, it guides trial judges in the courtroom and it guides you folks as the trier of fact in the courtroom. And out of all the hundreds of rules in this book's thousands of pages, there's only one rule, one, that gives us any guidance when determining what fair and reasonable compensation is when someone's injured. And that's something called the time unit rule.

The time unit rule permits you as jurors to look into the future based upon statistics which say how long a person of Carmella's age would likely have lived at the time the collision occurred. The judge will tell you when he charges you that Carmella had 39.2 years to live statistically. Now, she could obviously die sooner than that or she could live longer than that. But statistically she had 39.2 years to live. That calculates out to 14,308 days, or 143,000 hours. And in your judgment, and His Honor will explain to you that this is purely in your judgment, and it's my suggestion to you as an argument on behalf of Carmella, but in your judgment if you choose to follow the one rule in this book that talks about fair compensation, you can follow the time unit rule.

[(Emphasis added.)]

Counsel misstated the law by telling the jury that the Court Rules contain the one rule, out of hundreds, that "talks about fair compensation." While Rule 1:7-1(b) permits counsel to make a time-unit argument, it says nothing about fair compensation. It was never intended to give substantive guidance to the jury on assessing damages. The Rule states in relevant part:

In civil cases any party may suggest to the trier of fact, with respect to any element of damages, that unliquidated damages be calculated on a time-unit basis without reference to a specific sum. In the event such comments are made to a jury, the judge shall instruct the jury that they are argument only and do not constitute evidence.

The Rule was promulgated in response to the strict prohibition announced in Botta, supra, 26 N.J. at 100, against trial counsel suggesting the dollar amount of damages the jury should award. See Brodsky v. Grinnell Haulers, Inc., 181 N.J. 102, 123 n.4 (2004). It was not intended to, and does not, approve as a substantive matter use of a time-unit formula to measure fair compensation to a plaintiff.

The Court Rules address procedural matters that are seldom of any concern to jurors. Plaintiff's attorney inaccurately told the jurors that the rule book "guides [the jury] as the trier of the fact in the courtroom." The Court Rules do not provide guidance directly to the jury. They certainly do not guide the jury regarding how it should calculate damages in a personal injury case. On the subject of measuring non-economic damages, such as pain and suffering, all juries in personal injury cases are instructed that:

The law does not provide you with any table, schedule or formula by which a person's pain and suffering disability, impairment, loss of enjoyment of life may be measured in terms of money. . . . [T]he law can provide no better yardstick for your guidance than your own impartial judgment and experience. [Model Jury Charge (Civil), 8.11E, "Disability, Impairment and Loss of the Enjoyment of Life, Pain and Suffering" (1996).]

Counsel's improper comments contradicted this instruction from the court and could have confused the jury. They misled the jury about the meaning and effect of Rule 1:7-1(b), an error accentuated by counsel displaying the Court Rules book as purported authority for his distortion of the law.

We grant "broad latitude" to counsel to make closing arguments to the jury. Diakamopoulos v. Monmouth Med. Ctr., 312 N.J. Super. 20, 32 (App. Div. 1998). But "[s]ummation commentary . . . must be based in truth," and counsel are not free to misstate the facts or the law. See Bender v. Adelson, 187 N.J. 411, 431 (2006); see also Biruk v. Wilson, 50 N.J. 253, 260-61 (1967) (disapproving counsel's tactics of making false factual suggestions to jury in closing argument).

Neither defense counsel nor the judge corrected the erroneous statement of law in counsel's argument. Nor did the court's final instructions to the jury correct counsel's misstatement. With respect to the time-unit argument, the final instructions stated:

Ladies and gentlemen, let me tell you about the time unit rule. Our court rules permit plaintiff's attorney, if he chooses to, to suggest to you in closing argument that damages, such as damages for disability, impairment, loss of the enjoyment of life, pain and suffering, may be calculated on a time unit basis without reference to a specific sum.

By way of illustration, counsel may ask you to think about pain and suffering when measured by a finite period such as hours, days or years. Counsel then may argue that according to statistical tables that I'll give you shortly, that the plaintiff may live so many hours, days or years. Remember, ladies and gentlemen, that the suggestion that you view damages on a time unit basis is argument only and is not evidence.

Immediately following this instruction, the court instructed the jury that plaintiff's life expectancy was 39.2 years, just as plaintiff's attorney had done in his summation. By tracking plaintiff's summation remarks, giving an illustration in conformity with those remarks, and not commenting upon the potential misconception engendered by plaintiff's summation that the Court Rules favored a time-unit measure of compensation, the trial court reinforced rather than corrected counsel's distorting, erroneous argument about the law applicable to measuring non-economic damages.

After misleading the jury about the contents of the Court Rules, plaintiff's attorney compounded the error by making a related argument regarding pain and suffering damages, again without objection, that has been expressly disapproved by the Supreme Court. Counsel said:

And let me give you this example if I could.

All of us have been to a dentist, we've all probably had teeth drilled. You can go to a dentist and you can get a cavity filled and, you know, you've really got a choice, you can take Novocain, or you cannot take Novocain and you can endure some pain. If you just give some thought to what you think a reasonable person would pay to avoid that hour, you may be able to give yourself some sense over 143,000 hours of what may be a fair and an honest verdict on behalf of Carmella.

In Cox v. Valley Fair Corp., 83 N.J. 381 (1980), the Supreme Court disapproved a summation argument very similar to the analogy plaintiff's attorney drew. The Court said that the summation was improper for two reasons: (1) it was "a subtle appeal to the 'golden rule,' i.e., that the members of the jury consider what one day of pain and suffering or, conversely, its avoidance, would be worth to them[,]" and (2) it "suggests a per diem formula for calculating plaintiff's damages for pain and suffering." Id. at 385. The second of these reasons has been abrogated by Rule 1:7-1(b), permitting a time-unit argument. The first, however, remains the law. Counsel is not permitted to ask the jury to equate plaintiff's pain and suffering with the amount that jurors think is reasonable to pay to avoid pain during dental treatment. To equate the two, jurors must necessarily rely on evidence outside the record, namely, their own willingness to pay for anesthesia while in a dentist's chair having their teeth drilled.

Besides the fact that the argument is unfairly inflammatory, it lacks logic and invites speculation. The injuries suffered by plaintiff in this case, knee, neck, and lower back injuries with permanent but not disastrous consequences, cannot be fairly equated to the pain of drilling a tooth without Novocain. Who could endure 39.2 years, or 143,000 hours, with the level of pain associated with drilling a tooth without anesthesia? The jury was not being asked in this case to determine fair compensation for that level of pain and suffering.

Also, no evidence was presented about the cost of Novocain for an hour of treatment by a dentist. Plaintiff's summation asked the jury to consider that cost, but the jury's consideration would be outside the record and speculative. The jury would also have to speculate about the likelihood that they, or anyone else, would be willing and have the financial ability to pay 143,000 times that unknown cost to avoid the pain. There is no correlation between multiplying the cost of Novocain times the hours of a plaintiff's life expectancy and fair compensation for pain and suffering and related non-economic damages arising from plaintiff's injuries in this case.

Under Rule 1:7-1(b), plaintiff's attorney makes the last closing argument. It is virtually impossible for defense counsel to anticipate and respond appropriately to such an argument during the defendant's earlier summation, if counsel were so inclined. The argument fosters speculation and misconceptions and has no place in a fair trial.

Nevertheless, defense counsel's failure to object to any of the improper comments during plaintiff's summation may be interpreted as an indication that the errors were not so egregious in the context of the entire trial that they affected the jury's verdict. See Tartaglia v. UBS PaineWebber, Inc., 197 N.J. 81, 128 (2008); Fertile v. St. Michael's Med. Ctr., 169 N.J. 481, 495 (2001). Moreover, the excesses of plaintiff's summation could have been corrected at trial by a timely objection and curative instruction. See Bender, supra, 187 N.J. at 433; City of Linden v. Benedict Motel Corp., 370 N.J. Super. 372, 398 (App. Div.), certif. denied, 180 N.J. 356 (2004); Weed v. Casie Enter., 279 N.J. Super. 517, 528 (App. Div. 1995). If trial counsel choose to forego objection during summation - because of courtesy, custom, indifference, or perhaps an unstated quid pro quo - they will usually have to abide the results.*fn5

Because the summation errors did not rise to the level of plain error, I concur in the result reached by the majority affirming the jury's verdict.

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