On appeal from Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-4877-06.
The opinion of the court was delivered by: Fasciale, J.S.C. (temporarily assigned).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Payne, Waugh, and Fasciale.
Defendants Joseph J. Martino and Melissa Boos*fn1 appeal from a $1,000,000 jury verdict following a verbal threshold, damages- only trial. The primary question on appeal is whether clearly inappropriate statements about the defense made by plaintiff's counsel in his opening statement and summation warrant a new trial. Those statements included derisive comments about defendants, their counsel, and their expert witnesses, as well as counsel's request that the jury "send a message" through its verdict. Because we conclude that counsel's conduct infected the jury's verdict, we reverse and remand for a new trial.
On August 2, 2004, plaintiff Barbara Szczecina*fn2 and defendant Joseph J. Martino were the drivers of two cars involved in a three-car accident. She and her passenger son, David Johnson, filed separate lawsuits seeking damages for personal injuries sustained in the accident. At the non-binding arbitration involving plaintiff's claim, Martino was found one hundred percent responsible for the accident, and plaintiff was awarded $65,000. Martino filed a request for a trial de novo.
After both remaining defendants stipulated to liability, the two cases were tried simultaneously on the issue of damages, including the verbal threshold. During deliberations, Johnson settled.
Plaintiff was fifty-six years old at the time of the accident. She alleged injuries to her left hand and neck, as well as injuries to her back for which she received numerous epidural injections. Defendants argued that her hand and neck complaints had resolved before trial, and that plaintiff's back pain was neither permanent nor related to the accident.
The primary contested issue at trial was whether there was a causal relationship between plaintiff's alleged back pain and the accident. In support of their position that it was not, defendants pointed to the fact that there was no documented complaint by plaintiff about back pain until many months after the accident. Plaintiff complained of back pain at a visit with her chiropractor on March 16, 2005, and first mentioned back pain to her orthopedist on September 2, 2005. Defendants also pointed to the facts that, on the night of the accident, no x- rays of plaintiff's back were taken in the hospital, and the hospital records do not mention back problems.
Defendants pointed to the testimony of plaintiff's pain management specialist, Dr. Lipsky, that there were arthritic changes in her back. Plaintiff first saw Dr. Lipsky on March 16, 2005, but he did not treat her between May 2005 and November 2006. In November 2006, plaintiff received three epidural injections. In January 2007, plaintiff experienced a different type of back pain. Dr. Lipsky testified that the later- occurring low back pain was "related more to the facet joints and the inflammatory changes around the epidural space and less to inflammation of the nerve root" and that plaintiff had "less referred pain to the leg."
Plaintiff contended that at the hospital she complained about back pain, and that someone "wrote something down," but she did not know "what they wrote down." Plaintiff testified that at her first visit with her orthopedist she told him about her back pain, but she speculated that he never wrote it down because she thought "he was more concerned with [her] hand and he was in the process of moving his offices."
On December 11, 2008, the jury returned a verdict of $1,000,000 in favor of plaintiff, unanimously finding that the accident proximately caused her injury.*fn3 On February 6, 2009, the trial judge denied defendants' motion for a new trial or, alternatively, for a remittitur. Defendants argued, among other things, that the verdict was against the weight of the evidence and was improperly affected by the comments made by plaintiff's counsel during opening and closing arguments. In denying the motion, the judge found that "[w]hile counsel may have made a few comments that should not be encouraged, there is no indication that these few comments prejudiced defendants to such an extent that they are entitled to a new trial."
On appeal, defendants contend that plaintiff's counsel overstepped the bounds of appropriate trial advocacy which, they contend, led to an unjust result. They also argue that plaintiff failed to prove a permanent injury as required by N.J.S.A. 39:6A-8a, that the damage award was excessive, that a remittitur was warranted, and that the trial judge erred by not amending the judgment to remove Boos as a liable defendant because she had no involvement in causing the accident and there was no agency. Finally, defendants contend that the trial court erred by not granting the motion for a new trial.
We begin our analysis by focusing on the statements made by plaintiff's counsel. In addition to being excessively argumentative, his opening statement attacked the integrity of defendants, defense counsel and the defense witnesses. Even more inappropriately, plaintiff's counsel asked the jury to "send a message" that "we're not going to accept that the paid agreers, the spin doctors[,] are trying to get [defendants] off the hook." His summation, which can appropriately contain argument to the jury, was inappropriate in this case because it continued additional inflammatory attacks on the defense.
"The fundamental purpose of opening statements is '"to do no more than inform the jury in a general way of the nature of the action and the basic factual hypothesis projected, so that they may be better prepared to understand the evidence."'"
Amaru v. Stratton, 209 N.J. Super. 1, 15 (App. Div. 1985) (quoting Passaic Valley Sewerage Comm'rs v. Geo. M. Brewster & Son, Inc., 32 N.J. 595, 605 (1960) (quoting Farkas v. Middlesex County Bd. of Chosen Freeholders, 49 N.J. Super. 363, 367-68 (App. Div. 1958))). Counsel "must be summary and succinct" and "[n]othing must be said which the lawyer knows cannot in fact be proved or is legally inadmissible." Passaic Valley, supra, 32 N.J. at 605 (citing Paxton v. Misiuk, 54 N.J. Super. 15, 20 (App. Div. 1959), aff'd, 34 N.J. 453 (1961); Shafer v. H.B. Thomas Co., 53 N.J. Super. 19, 26 (App. Div. 1958)).
In addition, it is improper for an attorney to make derisive statements about parties, their counsel, or their witnesses. In Rodd v. Raritan Radiologic Associates, P.A., 373 N.J. Super. 154, 171-72 (App. Div. 2004), we said:
Although attorneys are given broad latitude in summation, they may not use disparaging language to discredit the opposing party, or witness, Henker v. Preybylowski, 216 N.J. Super. 513, 518-19 (App. Div. 1987); Geler v. Akawie, 358 N.J. Super. 437, 470-71 (App. Div.), certif. denied, 177 N.J. 223 (2003), or accuse a party's attorney of wanting the jury to evaluate the evidence unfairly, of trying to deceive the jury, or of deliberately distorting the evidence.
Rodd was a medical malpractice case in which the plaintiff's counsel argued in summation "that [the] defendant missed the evidence of cancer because he cared more about 'making money' and living 'the good life' . . . ." Rodd, supra, 373 N.J. Super. at 171. The plaintiff's counsel continued by "disparaging defendant's expert, who, he maintained, argued 'a little bit more like a lawyer than a doctor' and was 'a professional witness' who 'adjust[ed] his testimony for every case.'" Ibid. "These comments remained uncorrected by the trial judge." Ibid.
The Rodd court found these comments were "unduly harsh and amounted to an attack on defendant's character and his witness's integrity." Ibid. "They occupy no rightful place in proper commentary on the evidence and the credibility of testimony.
They are not to be repeated on retrial." ...