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Cuccurullo v. Galinsky

May 26, 2010

CARMELA A. CUCCURULLO, PLAINTIFF-RESPONDENT,
v.
ESMIRA GALINSKY, DEFENDANT-APPELLANT, AND AMICA MUTUAL INSURANCE COMPANY, DEFENDANT-RESPONDENT.
CARMELA A. CUCCURULLO, PLAINTIFF-RESPONDENT,
v.
AMICA MUTUAL INSURANCE COMPANY, DEFENDANT-APPELLANT, AND ELMIRA GALINSKY, INTERVENOR.



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

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

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 ...


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