December 16, 2010
ANTHONY ROMANO AND MADELINE ROMANO, HIS WIFE, PLAINTIFFS-RESPONDENTS/ CROSS-APPELLANTS,
MICHAEL STUBBS, DEFENDANT-APPELLANT/ CROSS-RESPONDENT.
On appeal from Superior Court of New Jersey, Law Division, Passaic County, Docket No. L-4805-06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued September 13, 2010 - Decided Before Judges Grall and C.L. Miniman.
This is an appeal from a final judgment entered on a jury verdict in a personal injury action. The jurors determined that defendant Michael Stubbs' negligence was the proximate cause of injury to Anthony Romano's elbow but not of the injury to his cervical spine. The jurors awarded Romano $273,000 for pain, suffering, and disability and his wife, Madeline Romano, $20,000 for loss of his services.
In his appeal, Stubbs reiterates arguments he raised on motions for a mistrial and for a new trial or remittitur - specifically that the form of the verdict sheet and plaintiffs' use of a prejudicial Power-Point presentation during summation led to an excessive award of damages for pain, suffering, disability and impairment attributable to Romano's elbow injury. On plaintiffs' cross-appeal, they contend the court erred by refusing to charge the jury on aggravation of a pre-existing disability related to Romano's cervical spine.
We conclude that plaintiffs' summation requires a new trial on damages but reject plaintiffs' request for a new trial on a claim of pre-existing disability. In addition, we hold that a judge should not use a verdict sheet that requires isolation of damages for pain and suffering from damages for disability and impairment, a deviation from the sample verdict sheet, Model Jury Charge (Civil) 8.10B, absent a reason justified with reference to the evidence in the case and articulated on the record.
The incident that gave rise to the lawsuit occurred in the Bergen County Courthouse on February 23, 2006. Romano was working as a sheriff's officer and Stubbs was in a courtroom for a hearing to adjudicate the domestic violence complaint filed by his wife and determine whether the temporary restraining order should be made permanent.
Earlier that day, municipal police officers responded to a call from Mrs. Stubbs. She said Stubbs broke into their house in violation of the temporary restraining order. According to Stubbs, he had made arrangements with his son to pick up clothes to wear to court, but his son was not home and his wife had agreed to leave the clothes outside. Although the clothes were not outside, Stubbs' wife would not let him in. Angered, Stubbs broke the glass in the front door and entered. After hearing Mrs. Stubbs' account, the officers obtained a warrant for Stubbs' arrest.
While Stubbs waited for court to convene, an officer approached him and told him about the warrant. Stubbs did not know about the warrant and did not cooperate. Consequently, Romano and other officers lent their assistance. A scuffle ensued, and Romano and Stubbs both fell to the floor. According to Romano, Stubbs landed on him and pushed Romano's elbow and shoulder down.
Stubbs was charged with and pled guilty to disorderly conduct, N.J.S.A. 2C:33-2, as a result of the scuffle. At the personal injury trial, the judge explained that disorderly conduct means "improper behavior" and elaborated, "A person is guilty of a petty disorderly persons offense if with purpose . . . to cause public inconvenience, annoyance or alarm or recklessly creating a risk thereof he, one, engages in fighting or threatening or in violent or tumultuous behavior or, two, creates a hazard of physically dangerous condition by any act which serves no legitimate purpose of the actor."
Romano claimed that he sustained injuries to his elbow and cervical spine as a consequence of his participation in the arrest. Following the incident, Romano had two operations and two courses of physical therapy. The treatment improved but did not eliminate the intermittent numbness, tingling and pain in his right hand or the pain in his neck and right shoulder that radiated into his right arm. Stubbs conceded that Romano's elbow was injured in the struggle, but he contended that the condition of Romano's cervical spine was degenerative and disputed the severity of the impact of Romano's conditions.
Romano did not present evidence of medical expenses or lost wages at trial. The jurors were asked to consider damages for Romano's pain, suffering, disability and impairment and his wife's loss of his services. Plaintiffs' evidence relevant to damages concerned Romano's surgeries and recovery periods and contrasted his physical condition and activities prior and subsequent to his encounter with Stubbs.
Before the incident, Romano regularly went to the gym to workout with his friends; took walks and went wave running, boating and fishing with his wife; and wrestled and played ball with his six-year old son. He never declined to participate in any activity because of physical limitations. He also did the work needed to renovate and maintain the home and yard of the property he and his wife bought in 2000.
During the years preceding the accident, Romano had been treated by Dr. Ramundo, a chiropractor. He saw Dr. Ramundo twenty-two times in 1999, twenty-five times in 2000, once in 2001 and 2002, twice in 2003, thirteen times in 2004, twelve times in 2005 and twice in January 2006. The treatment was for spasm and misalignments of the cervical, thoracic and lumbar spine. Although Dr. Ramundo took steps to restore and maintain alignment of Romano's spine, he had never ordered x-rays or MRIs or referred Romano to an orthopedist, neurologist or specialist in pain management.
When Romano arrived at home on the night of his struggle with Stubbs, his arm was shaking and he was in pain. When he woke up the next morning, he went to Hackensack Hospital with a complaint of "clicking" in his right elbow and pain shooting into the fingers of his right hand. Romano was subsequently referred to Dr. Mark Berman of Hackensack Medical Center, an orthopedic surgeon. Dr. Berman referred Romano to a neurologist for MRI and EMG tests, which confirmed injury to the ulnar nerve running on the inside of Romano's right elbow. Dr. Berman scheduled Romano for surgery in the first week of May to transpose that nerve.
Despite his condition, Romano had returned to work within two days of his encounter with Stubbs. Although he stayed on the job until the elbow surgery, on April 17, 2006, Romano went to Dr. Berman with a complaint of pain in his right shoulder radiating down his right arm. To diagnose the cause of that pain, Dr. Berman ordered an MRI and EMG. The MRI showed arthritic changes in Romano's cervical spine and foraminal encroachment, an area of the spine in which a nerve gets pinched. In Dr. Berman's opinion, Romano's degenerative changes were normal for a person of Romano's age, thirty-nine, and not the cause of his pain, which was the result of damage to a nerve caused by trauma and consistent with someone having fallen on Romano's right arm. While the nerve damage was detectable on an EMG, it was less severe than the damage to Romano's ulnar nerve.
In the opinion of Stubbs' expert, Dr. Irwin Cohen, Romano's spinal condition had nothing to do with the encounter with Stubbs. It was the product of the degenerative changes visible on imaging tests, not of traumatic injury.
The elbow surgery was done on schedule the first week of May, which was about two months after the incident with Stubbs. After that operation, Romano wore a soft-foam cast and sling for about two weeks and later underwent a course of post-operative physical therapy. But for the subsequent operation on Romano's cervical spine, Dr. Berman believed that he would have been able to return to work within three months of his elbow surgery.
The spinal surgery, a fusion requiring placement of a bone from a cadaver and a metal plate with screws, was performed in October 2006. That operation was followed by a recovery period that did not end until the spring of 2007, when Romano was again cleared to return to work without restrictions.
Although Romano returned to work, he had continuing symptoms. The expert and treating physicians agreed that the damage to Romano's ulnar nerve is permanent, cannot be further corrected and causes "intermittent numbness and pain" and tingling that is expected to continue. According to Romano, the surgery on his cervical spine reduced the symptoms of pain radiating from the shoulder and weakness in his right arm but only by about forty percent.
The weather affects how Romano feels, and he has difficulty sleeping, throwing a ball to his son, riding a bicycle, driving on long trips, and working. Although it was difficult for him, Romano was able to re-qualify to carry a service weapon, as he must to keep his job. His shooting, however, is not as accurate as it was prior to his struggle with Stubbs.
Romano's wife has seen a dramatic change in him. He had been "happy go lucky" and now is "crabby" and not in a good mood when he is in pain. He cannot do the things he had done with her and their son before, is unable to do the work he had done around the house and often resorts to sleeping on the couch because his discomfort keeps him awake.
Stubbs has several objections to plaintiffs' summation. First, plaintiffs were permitted to use a Power-Point presentation they had not shown to the judge or defense counsel in advance. Second, portions of the oral summation were unfairly prejudicial and improperly reinforced by phrases displayed in the presentation stressing the impermissible content of the oral summation. As we understand the argument, he urges us to consider an inherent "difference between the spoken word and the written word" and require prior screening to detect unfairly prejudicial statements.
Some background is needed as context for our discussion of Stubbs' arguments. Plaintiffs' counsel prepared the Power-Point presentation without notice to the court or his adversary. It appears that his plan to use the presentation was disclosed during the recess that followed defense counsel's closing argument. When the proceeding resumed, the judge made a record of what transpired during the recess. He explained that plaintiffs' counsel intended to "project onto the wall portions of his closing argument" and that defense counsel objected. Observing that he saw little difference between an attorney writing on an easel while delivering a closing statement, which was customary and permissible, and preparing a Power-Point presentation beforehand, the judge noted his inclination to allow plaintiffs' attorney to proceed.
The judge dismissed defense counsel's concern that the written words would include information counsel had "not mentioned." The judge "assum[ed] that what [plaintiffs' counsel] says is correct, that there's nothing up there that he wouldn't have said."
We understand the judge's ruling to require substantive congruence between the oral and written presentations and bar inclusion of improper argument.
Although the simultaneous oral and written presentations of plaintiffs' attorney were generally consistent, at several points the attorney's written assertions were more prejudicial than the words he spoke. In that regard, the attorney did not follow the judge's limitation on use of the Power-Point presentation. More important to our conclusion that a new trial is required is the improper content of the attorney's simultaneous presentations. The summation, viewed in its totality, was so impermissibly prejudicial as to have a clear capacity to produce a manifestly unjust result.
We stress that our assessment of the prejudice is not based on any assumption about the relative impact of spoken and written arguments. In our view, the relative impact is a matter of speculation that is too dependent upon the talent of the speaker and writer and the proclivities and skills of those hearing and reading the messages to permit formulation of a legal rule distinguishing the two. Nonetheless, where, as in this case, a Power-Point presentation is given by an attorney who has not shown it to the judge or his or her adversary, the adversary's failure to object to a specific entry should not give rise to an inference that the argument was proper. Cf. City of Linden v. Benedict Motel Corp., 370 N.J. Super. 372, 398 (App. Div.), certif. denied, 180 N.J. 356 (2004). In the circumstance of a Power-Point presentation that is changed from screen to screen while the attorney is arguing orally, counsel's failure to cry foul is as easily explained by the difficulty of his need to simultaneously listen, read and formulate objections as it is by his conclusion that the improprieties caused no harm. In short, the inference is not reasonable in this context because it is not the more likely explanation.
We turn to assess the prejudicial content of the oral and written material presented by plaintiffs' attorney under well-settled legal rules. Without doubt, counsel has broad latitude to passionately advocate their clients' cases in summation, but there are some clear boundaries. Geler v. Akawie, 358 N.J. Super. 437, 463-64 (App. Div.), certif. denied, 177 N.J. 223 (2003).
In general, arguments based on the evidence are permissible, and arguments that "shift the jury's focus from a fair evaluation of the evidence to pursue instead a course designed to inflame the jury, [by] appealing repeatedly to inappropriate and irrelevant considerations" are not. Pellicer v. St. Barnabas Hosp., 200 N.J. 22, 55-56 (2009). Thus, it is improper to equate a defendant's decision to go to trial with bad faith, id. at 51, and in a civil case involving only compensatory damages it is "clearly inappropriate" to urge the jury to "send a message" focused on punishing the defendant for what he did wrong. Jackowitz v. Lang, 408 N.J. Super. 495, 508 (App. Div. 2009); see also Tarr v. Bob Ciasulli's Mack Auto Mall, Inc., 390 N.J. Super. 557, 569 n.3 (App. Div. 2007), (noting the general disapproval of exhortations to send a message), aff'd, 194 N.J. 212 (2008).
Consistent with the foregoing rules, our courts distinguish "[r]easoned analysis of the evidence and the credibility of testimony," which is proper, and disparagement through attacks on a party's "character or morals," which is a highly improper and prejudicial misdirection of the jurors' attention when those character traits are not in issue. Szczecina v. PV Holding Corp., 414 N.J. Super. 173, 179 (App. Div. 2010); Paxton v. Misiuk, 54 N.J. Super. 15, 22 (App. Div. 1959), aff'd, 34 N.J. 453 (1961). Similarly, the precedents permit attacks on credibility based on bias and interest of experts disclosed by the evidence but prohibit comments that invite "the jurors [to] see themselves as destroyers of evil forces, personified by defendant and his attorney." Henker v. Preybylowski, 216 N.J. Super. 513, 518-19 (App. Div. 1987). It is improper to suggest that police officers have no motive to lie. State v. R.B., 183 N.J. 308, 331-32 (2005). Moreover, an attorney may not "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 v. Raritan Radiologic Assocs., P.A., 373 N.J. Super. 154, 171, (App. Div. 2004).
Finally, we note that repetition is relevant to the prejudicial impact of improper argument. When an attorney directed to avoid a prejudicial line of argument persists, we have held that repetition is important to an evaluation of the prejudice from the argument and required a new trial. See, e.g., Haid v. Loderstedt, 45 N.J. Super. 547, 554 (App. Div. 1957).
The content of the dual presentations discloses multiple and repeated resorts to improper and distracting argument.
Plaintiffs' counsel said:
Why are we here? The person who broke the rules (indiscernible). The person who broke the rules (indiscernible). That's really why we're here because Mr. Stubbs has refused to accept the civil responsibility for the damages we allege that he caused. And ultimately, you are going to decide what those damages are and whether he should be responsible for those damages. That's why you're here.
The Power-Point slide read:
WHAT ARE WE HERE FOR?
The person who broke the rules won't balance the scales The person who broke the rules refuses to accept responsibility Plaintiffs' counsel then moved on to discuss negligence. Defense counsel objected to a Power-Point slide defining negligence, and counsel agreed to move on to discuss what he had to show to prove negligence by preponderance of the evidence. Explaining that he had to produce evidence "tipping the scale just slightly in [his] favor," he argued:
[T]he position of my client and all of the witnesses here is that the conduct was negligent; that the defendant did not act reasonably let alone in a courthouse where he refuses to accept arrest, where he doesn't comply with (indiscernible). Besides the fact that he was in a courthouse, his conduct was inappropriate (indiscernible). Just because my client is a police officer and part of his job is to arrest people, that's not a green light to (indiscernible). That's not a green light to comply. And if someone does resist, if someone doesn't comply and they cause injury to that officer, they have to stand before a
[c]court and accept civil responsibility just like he did when he accepted criminal responsibility.
Defense counsel objected to the reference to Stubbs' acceptance of "criminal responsibility," and the judge directed the jurors to "be guided by [his] definition of disorderly conduct, which is what . . . the defendant pleaded guilty to." In the judge's direction to the jury, he had, as noted above, stressed that Stubbs pled guilty to a petty disorderly persons offense.
Plaintiffs' counsel continued: "And most respectfully, all the evidence in this case suggests the defendant (indiscernible)."
The Power-Point slide displayed read:
PROPOUNDERANCE [SIC] OF EVIDENCE (Scales of Justice)
Not required to prove intent Prove conduct was negligent Defendant not act reasonably . . .
Courthouse or otherwise No green light to resist or injury because plaintiff is police officer Officer's duty to protect and serve Those who do harm must be held accountable Send message to community . . . society of laws Defendant felt disrespected All evidence suggest [sic] defendant has no respect for rule of law Counsel went on to display photographs of the area in which the incident occurred. He said, "And in this particular environment [the officers] acted reasonably and I hope you will find that they acted reasonably under the circumstances." When plaintiffs' attorney referred to defense counsel's opening, defense counsel asked to be heard on an objection at sidebar. The judge denied the request and overruled the objection without further discussion.
At that point, a quote from defense counsel's opening apparently was displayed on the screen, "Defendant Made A Mistake." The Power-Point slide attributed the remark to defense counsel and included the attorney's name and the date of the statement. Plaintiffs' attorney orally argued, "Just because they're telling you that they made a mistake - you're here because they still haven't acknowledged (indiscernible)."
Displaying a second quote attributed to defense counsel's opening, "Not An Excuse," plaintiffs' counsel asked and answered a rhetorical question concerning Stubbs and his attorney's decision to go to trial, "But are they admitting negligence? They are not. As you heard, defendant pled guilty to a disorderly conduct. There's the definition."
Displaying the statutory definition of disorderly conduct, plaintiffs' attorney argued that Stubbs admitted to each one of the alternative bases for liability set forth in N.J.S.A. 2C:33-2a, a proposition that was not supported by evidence in this trial record, which did not include a transcript of Stubbs' plea or Stubbs' testimony about the factual basis he gave for that plea.
The attorney concluded this line of argument by asserting, "So when they say he has an excuse, he's admitted in court that there was no legitimate purpose for his conduct." He instructed the jurors, "the defense can't have it both ways," and he argued:
Again, he's broken the rules but he refuses to accept responsibility. Why is that . . . ? Why are we here? Well, we know that he was in court because according to the police report he broke - he violated a TRO. And that portion of the police report was read into evidence. And the portion that was (indiscernible) was that he denied running up to the bedroom. He denied getting into the bedroom where his wife had allegedly (indiscernible) and he denied having any words with her. But yet, that police report that was testified to in this court states otherwise.
Stubbs' wife did not testify at trial. Apart from the broken glass in the front door, there was no competent evidence that Stubbs broke the bedroom door.
The Power-Point slide displayed at that point reiterated the attorney's prior reference to criminal responsibility. It read:
The person who broke the rules won't balance the scales
The person who broke the rules refused to accept responsibility
REFUSES TO ACCEPT CIVIL RESPONSIBILITY EVEN THOUGH HAS ACCEPTED CRIMINAL RESPONSIBILITY
The oral argument shifted to the defense presented:
Blame the victim. Attack his credibility. Rule number one, divert attention from the defendant, let's blame Mr. Romano. Let's blame Mr. Romano for not telling it straight (indiscernible). Let's blame the attorneys for sweeping things under the rug. That's a tactic that I'm sure [defense counsel] learned . . . when he was a younger attorney.
Blaming the victim, blaming the attorney. . . . It's a red herring. Its to divert attention from what really happened in this case.
The Power-Point presentation read:
Blame the victim
Attack his credibility
"Sweep Under The Rug"
"Not Telling It Straight"
4/21/09 The balance of plaintiffs' summation focused on the evidence related to Romano's injuries and impairments. The only break in that line of argument was to discuss the testimony of the officers who testified about the incidents. The two Power-Point slides relevant to the officers' testimony both concluded with a line stating, "No reason to lie."
A subsequent slide addressed defendant:
Michael Stubbs Everyone is lying, I am telling the truth Angry, violent and physical on morning of incident Not in good mood No respect for law . . . TRO Felt disrespected . . . just reacted Where is the wife? Why not called by defense Safety officer?
The oral presentation accompanying that list paralleled those points, but did not include "Safety officer?" That was one of Stubbs' two job titles.
The first items on the screen while counsel discussed damages read, "Damages are to compensate Anthony Romano fully." The second item read, "The goal is to right a wrong."
Considered as a whole, this summation crossed the boundary between permissible advocacy and prejudicial appeal and distraction. It included an improper suggestion that Stubbs' decision to go to trial reflected his bad character and refusal to accept responsibility. Those traits had no relevance to negligence or reasonable compensation for Romano's injuries. Plaintiffs' attorney portrayed Stubbs as a rule breaker with no regard for the rule of law who was acting in concert with defense counsel to blame the victim and have his client escape responsibility for a mistake. Plaintiffs' attorney urged the jurors to send a message to a person who would not balance the scales of justice. He relied on matters not established by competent evidence to portray Stubbs as violent and used Stubbs' plea of guilty to suggest that he had admitted to being a criminal and admitted to recklessly causing a risk of injury.
While defense counsel did not object to each improper argument, the totality of the circumstances does not permit us to infer that defense counsel viewed these transgressions as harmless. In that regard, we note that defense counsel requested a mistrial based on the summation before the verdict was returned and moved for a new trial after the verdict was entered.
We conclude that the argument, oral and written combined, was clearly capable of producing an unjust result on the question of damages. The jurors were repeatedly asked to focus on matters that had no relevance to the questions they were obligated to decide and to right a wrong and send a message. A new trial is required because the appearance of injustice is clear and convincing. Pellicer, supra, 200 N.J. at 51-52; Caldwell v. Haynes, 136 N.J. 422, 432 (1994); see R. 2:10-1. The cumulative impact of the multiple transgressions in plaintiffs' closing argument leaves us with no confidence in the fairness of the damages awarded. We cannot say the same about the jurors verdict on liability. The evidence of Stubbs' negligence that led to the scuffle was overwhelming and Stubbs conceded that the elbow injury was caused in that scuffle.
We reject plaintiffs' claim that the judge erred by denying their request for a jury instruction on aggravation of Romano's pre-existing spinal condition. It warrants only brief comment in a written opinion. R. 2:11-3(e)(1)(E).
Plaintiffs rely on Edwards v. Walsh, 397 N.J. Super. 567, 572 (App. Div. 2007), where we held that it was not error to instruct the jury on aggravation of a pre-existing condition where defense counsel raised the issue of aggravation on cross-examination of plaintiff's experts. Thus, in Edwards there was evidence to support the instruction.
In this case there was no medical evidence to support the requested charge. None of the doctors testified that the scuffle with Stubbs aggravated Romano's asymptomatic degenerative condition. Plaintiffs contended that he suffered from a new injury caused by the accident, and defendant asserted that the only cause was his pre-existing degenerative spinal condition.
Finally, we address Stubbs' objection to the verdict sheet. As noted above, no claim for medical expenses or lost wages was presented to the jury. They were asked to consider and isolate damages in four categories - past and future pain and suffering and damages for past and future disability and impairment. The trial judge overruled defense counsel's objection to the separation of damages for pain and suffering from damages for disability and impairment. The judge correctly observed that the model charge provides one explanation for disability and impairment and another explanation for pain and suffering. See Model Jury Charge (Civil) 8.11E. On that basis, the judge denied the request.
On appeal, defendant argues that the segregation of damages for non-economic losses is inherently likely to produce redundant awards. Plaintiffs argue that isolation focuses the jurors' attention on these distinct aspects of an award for non-economic damages and permits a more accurate assessment.
We have considered the cases from other jurisdictions cited by defense counsel on appeal, and find them insufficiently informative to warrant a specific rule precluding what was done here. Under New Jersey law, the form of the verdict sheet is left to the court's discretion. See Benson v. Brown, 276 N.J. Super. 553, 565-66 (App. Div. 1994). An exercise of judicial discretion generally requires application of legal principles to the facts of a particular case. See In re commitment of M.M., 384 N.J. Super. 313, 332 (App. Div. 2006). However, absent a reason based on the evidence in this case, we see no reason for an individual judge to deviate from the model verdict sheet provided in section 8.10 of the Model Civil Jury Charge, which includes one entry for pain, suffering, disability, impairment and loss of enjoyment of life. In this case the judge did not articulate a reason based on the evidence, and our review of the record convinces us that the evidence does not justify the deviation.
Reversed in part and remanded for a new trial on damages.
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