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Castillo v. Rosenbaum


October 27, 2010


On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Docket No. L-1549-07.

Per curiam.


Submitted October 14, 2010

Before Judges R. B. Coleman and J. N. Harris.

Plaintiff Glenda Castillo was a passenger in an automobile that was involved in a two-vehicle accident on July 12, 2005. After a jury trial in which she was represented by counsel, the unanimous verdict determined that plaintiff had failed to prove by a preponderance of the evidence that she had suffered an injury proximately caused by the accident. We affirm.

On appeal, the now pro se plaintiff's overarching theme is, in essence, that the verdict was against the weight of the evidence and a new trial is warranted. This contention was waived, however, when she failed to file a motion for a new trial. R. 2:10-1. Additionally, plaintiff suggests that she was severely prejudiced and is entitled to a do-over because of:

(1) defense counsel's alleged hostile behavior during the course of plaintiff's pre-trial deposition; (2) plaintiff's alleged confusion about settlement offers; (3) the trial court's denial of defense motions for a mistrial; (4) alleged jury misconduct by a sleeping juror and the panel not taking the case seriously; and (5) the trial court's putative error of permitting a photograph to be admitted into evidence and refusing to admit an independent medical examination. We have examined all of plaintiff's contentions, and conclude that they are all without merit, and do not warrant discussion beyond the following comments. R. 2:11-3(e)(1)(E).


While attempting to merge her motor vehicle from one lane into another on Route 88 in Lakewood, defendant Nechama Rosenbaum's*fn1 vehicle came into contact with the automobile being operated by plaintiff's brother, defendant David Jimenez. As a result of the accident, plaintiff alleged that she suffered injuries to her neck, back, hand, and arm. In order to recover damages for her supposed causally-related injuries, plaintiff commenced this personal injury action.

The case went to trial in January 2010. During the first two days, four witnesses testified in the presence of the jury, and two liability experts -- Dr. Charles Rizzo for plaintiff, and Dr. Robert Bachman for defendants -- testified by means of videograph. After plaintiff rested, defendants conceded liability for the happening of the incident, but reserved the right to contest whether the accident proximately caused plaintiff's claimed injuries.

With the attorneys' summations completed at the end of the second trial day, Judge Craig L. Wellerson began his instructions to the jury early the next morning, which was a Friday. After deliberating for approximately one hour, the jury returned its verdict well before midday, finding that plaintiff had not suffered an injury proximately caused by the accident of July 12, 2005. No post trial motions were filed, and this appeal followed.



To the extent plaintiff advocates that the verdict was against the weight of the evidence, we reject such contention as untenable under our jurisprudence. We perceive no interest of justice warranting a relaxation of Rule 2:10-1 in this case. "In both civil and criminal actions, the issue of whether a jury verdict was against the weight of the evidence shall not be cognizable on appeal unless a motion for a new trial on that ground was made in the trial court." R. 2:10-1; Ogborne v. Mercer Cemetery Corp., 197 N.J. 448, 462 (2009); Genre-Hammer Assocs. v. Sebago, 385 N.J. Super. 291, 295 (App. Div.), certif. denied, 188 N.J. 219 (2006). The rule should be strictly enforced, particularly in civil cases such as this, where there are no constitutional rights at stake. See Fiore v. Riverview Med. Ctr., 311 N.J. Super. 361, 363 n.1 (App. Div. 1998).


Plaintiff claims that during her deposition, where she was represented by counsel, she was forced to answer questions with only a yes or no response, and was unable to explain her answers. This presented itself during the trial when plaintiff was being cross-examined concerning whether she "saw the car with which [she] collided prior to the accident." Plaintiff responded, "[y]es, I saw it." Defense counsel then attempted to impeach her trial testimony by demonstrating that during her deposition, plaintiff answered as follows:

Q: Do you know where the other car came from?

A: No.

Q: Did you ever see the car before the impact?

A: No.

When confronted with this discordance at trial, plaintiff complained that she was limited by the deposing attorney and was unable to give a full explanation. Unsolicited, she further accused defense counsel of rude behavior at the deposition, stating, "you remember, you made fun of my last name because you were sarcastic toward me the whole time."

What followed was a discussion among counsel and the trial court, outside the presence of the jury, concerning plaintiff's unprovoked accusations of impropriety against defense counsel. The court asked plaintiff's attorney if there were any suggestions in the deposition transcript that defense counsel had made fun of plaintiff's name or anything about her. Plaintiff's attorney responded with a resounding, "the answer is no, nor am I at all impugning [defense counsel] at all. I mean, I don't know where that came from at all." Moreover, plaintiff's attorney stipulated that the transcript of the deposition did not contain such a limiting instruction by defense counsel to plaintiff. Our independent review of the deposition transcript confirms the accuracy of this concession.

Notwithstanding defendants' subsequent motions for a mistrial, which the trial court denied, plaintiff was admonished to "not say anything that would cast a character of any of the attorneys or the participants in this trial in a negative light." Additionally, when the jury returned to the courtroom its members were cautioned by the court to disregard the last exchange between plaintiff and defense counsel because "[t]hose statements are not evidentiary."

On appeal, plaintiff continues her attack upon defense counsel and further contends that the defendants' motions for a mistrial should have been granted. Plaintiff also asserts that the trial court erred in admitting into evidence photographs of the vehicle in which she was riding at the time of the accident. She further maintains that an "independent medical evaluation by the insurance company AIG" was refused admission into evidence, but the record contains no mention of this alleged report, much less the trial court's determination not to admit it into evidence.*fn2

"Appellate courts rightly decline to consider questions or issues not presented to the trial court when an opportunity to do so was available unless the questions so raised on appeal go to the jurisdiction of the trial court or concern matters of great public interest." Solondz v. Kornmehl, 317 N.J. Super. 16, 22 (App. Div. 1998); see also Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973). Here, the issues of unsubstantiated deposition misconduct and the concomitant mistrial motions implicate neither jurisdictional concerns nor the public interest, and could have been presented in the Law Division.

As for the evidentiary ruling regarding the admission of photographs, it is apparent that plaintiff's attorney agreed that they had evidentiary significance and did not object to their presentation to the jury. We are further convinced that plaintiff's arguments are unavailing under the invited error doctrine, which precludes a disappointed litigant from challenging on appeal a procedure it had urged the trial court to adopt. See N.J. Div. of Youth and Family Servs. v. M.C. III, 201 N.J. 328, 340 (2010); CFG Health Sys., LLC v. Cnty. of Hudson, 413 N.J. Super. 306, 321 (App. Div.) (citing State v. Jenkins, 178 N.J. 347, 358 (2004)).


Plaintiff contends that she was confused by the trial court's discussion with her concerning the possible settlement of the case. The record indicates that the trial court indeed spoke on the record with plaintiff directly, but only told her that if she rejected a settlement offer, "once the trial starts the defendants may withdraw their offer." Plaintiff rejected the defendants' pretrial settlement offer and the trial commenced. However, contrary to the warning given by the trial court, defendants made another settlement offer in the midst of the first day of trial, which was also rejected by plaintiff.

Strikingly, plaintiff's attorney noted on the record, "[s]he doesn't want the offer, against my advice."

Contrary to plaintiff's claims, we cannot detect any error or omission committed by the trial court regarding settlement of her claim. She was represented by counsel and was given adequate time to assess the risks and benefits of allowing the jury to resolve the dispute. There is simply no basis for this court to intervene where we are unable to find reversible error.

R. 2:10-2.


Plaintiff makes unsubstantiated allegations concerning juror misconduct, none of which were brought to the attention of the trial judge. We are unable to review her claims in a principled fashion because there is no competent evidence to support what she says was "disturbing" jury behavior. This includes a juror who was supposedly asleep or inattentive during the trial and an overall critique of the jury "not tak[ing] this case seriously." Plaintiff also contends that due to scheduling issues involving a juror who could not continue to deliberate after the weekend recess, "we were restricted on a time frame."

Plaintiff's arguments suffer from two fatal defects: first, she did not alert the trial court to any of her concerns, and second, the record is barren of evidence to support these post- trial assertions. We note that there does not appear to have been a rush to judgment on the Friday that the case was given to the jury for its deliberation. The jury reported its verdict after slightly more than one hour of deliberation, long before the court day ended and the weekend began. This is not evidence of haste or misconduct.

Also, as we have already noted, plaintiff's theory has been raised for the first time on appeal and we will not further consider this contention. U.S. Bank Nat'l Ass'n v. Williams, 415 N.J. Super. 358, 365 (App. Div. 2010); Nieder v. Royal Indem. Ins. Co., supra, 62 N.J. at 234.


In summary, we conclude that the record lacks support for the contention that plaintiff was deprived of a fair opportunity to present her claims to a properly constituted and accurately instructed jury. Not only do we not find reversible error, but we have every reason to trust in the jury's verdict. See Kozma v. Starbucks Coffee Co., 412 N.J. Super. 319, 321 (App. Div. 2010).


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