On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Docket No. L-1090-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued November 4, 2010 - Decided December 7, 2010
Before Judges Sapp-Peterson and Fasciale.
On December 11, 2005, plaintiff's vehicle was rear-ended while stopped for a yield sign entering the Pennington Circle in Hopewell Township, Mercer County. The parties stipulated liability, and the case was tried on damages only. Plaintiff claimed that she sustained permanent injuries to her neck and back. The jury returned a verdict of no cause. Plaintiff's subsequent motion for a new trial was denied, and the present appeal followed. On appeal, plaintiff contends the trial court erred when it permitted voir dire of the prospective jurors concerning plaintiff's cancer and also erred when it instructed the jurors that there was no causal relationship between plaintiff's claimed injuries sustained in the accident and her cancer. We disagree and affirm. Prior to jury selection, the court addressed a proposed question defense counsel proffered for the jury voir dire:
The testimony in this case may refer to the fact that several years after the motor vehicle accident of December 11, 2005, plaintiff, Eileen Shimizu, was diagnosed with cancer. The parties in this case agree and I am instructing you, that plaintiff's involvement in the motor vehicle accident of December 11, 2005 had nothing to do with the onset or progression of her cancer.
1. Would the fact that the evidence could refer to plaintiff's cancer affect your ability to decide this case fairly and in accordance with the law I give you?
2. Have you had any personal experience with cancer, affecting you or a loved one, which could affect your ability to decide this case fairly and without bias, prejudice or sympathy?
Plaintiff's counsel found the second numbered paragraph to be repetitive of the first numbered paragraph. Additionally, plaintiff's counsel indicated:
[W]hile I am not presenting any expert testimony regarding any nexus between the car accident and the onset of my client's condition, we don't feel as though that it's necessary to say that the plaintiff's involvement in this motor vehicle accident . . . had nothing to do with the onset of the progression of her cancer.
Defense counsel had no objection to eliminating the second numbered paragraph if the court was satisfied the first numbered paragraph adequately covered the subject matter. The court then proposed to advise the jury that "after the accident[,] Ms. Shimizu was diagnosed with cancer and ask the jury whether or not that would have any [e]ffect on their ability to be fair in the case[.]"
Plaintiff's counsel had no objection to this question.
Nonetheless, defense counsel expressed the belief that defendant was entitled to have the jury instructed that there was no connection between the two events because there was no evidence to the contrary and cancer is a "highly volatile" and "sensitive" subject matter. In response, plaintiff's counsel acknowledged that plaintiff would not be presenting any "expert testimony to that effect" and expressed that "there's nothing to rebut." The following colloquy occurred between the court and plaintiff's counsel:
THE COURT: What I'm telling the jury is that there is no evidence in this case that the cancer was caused by the accident. It's perfectly correct, isn't it, based ...