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Thomas W. Comes v. New Jersey Transit Rail Operations


May 6, 2011


On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-9529-06.

Per curiam.


Argued April 5, 2011

Before Judges Parrillo, Yannotti, and Roe.

Plaintiff, Thomas W. Comes, appeals the denial of his motions for a new trial on damages only and to amend the judgment by molding the jury verdict on the Locomotive Inspection Act (LIA) claim to reflect a finding of causation. We affirm.

Plaintiff, Thomas W. Comes, brought an action against his employer, defendant, New Jersey Transit Rail Operations, Inc., under the Federal Employer's Liability Act, 45 U.S.C.A. §§ 51-60 (FELA) and the Locomotive Inspection Act, 49 U.S.C.A. §§ 20701-20703 (LIA) alleging that he sustained personal injuries when he was exposed to dangerous exhaust admissions from a malfunctioning locomotive. The matter was tried before a jury over twenty two non-consecutive days from May 5 through June 11, 2009.

Plaintiff began his employment with defendant on April 7, 1999. His first position was as a "ticket collector," from which he quickly advanced to the position of assistant conductor/brakeman. By the date of the incident, on October 12, 2005, plaintiff had been promoted to the position of conductor.

As a conductor, plaintiff was charged with the safe movement of his train and its on time performance. He was responsible for everyone on the train and making any decision to evacuate passengers and crew from a train, in the event of an emergency, such as fire, fumes or smoke.

Robert G. Cole was a conductor employed by defendant. On October 12, 2005, Cole was working as the conductor of a five car passenger train, consisting of diesel locomotive No. 4191 and four passenger cars. The train was traveling in a westerly direction from Hoboken towards its final destination at Suffern station. The locomotive was in the front, so that any exhaust emissions from it moved back towards the car as the train moved forward.

Cole testified that shortly after leaving Hoboken station, as the train went through the Bergen tunnel, he noticed there was "excessive smoke" in all of the cars beyond the usual "little smell" of diesel exhaust. The exhaust fumes were such that "[y]ou could see it. You could smell it. You could taste it."

The situation improved somewhat after Cole turned the ventilation system off and opened the end doors so that the air could come into the cars. He continued to discharge passengers at scheduled stops. The remaining passengers were told that they could move to the rear cars, rather than stay in the front cars where the heaviest concentration of smoke was located.

The train arrived at Waldwick station approximately an hour after leaving Hoboken. While waiting at the Waldwick train yard, Cole and the train's engineer decided to call the control center to explain the exhaust problem and to receive instructions. Cole reported the situation to trainmaster Jose Lopez, who advised him to continue operating the train, doing the regular run by traveling on to Suffern station and then back to Hoboken, picking up and discharging passengers along the way. Cole testified that Lopez told him that a mechanic would investigate and check out the locomotive's exhaust problem when the train returned to Hoboken.

Cole and the engineer did as directed. The locomotive's exhaust fumes were not a problem on the return trip because the engineer moved from the locomotive and operated the train from the back of the rear passenger car. The locomotive was, therefore, behind the four passenger cars and any exhaust was trailing behind the train.

The train arrived at Hoboken Station at around 7:00 p.m. at which time a replacement crew boarded the train and began to prepare for the next round trip between Hoboken and Suffern. The replacement crew consisted of plaintiff, engineer Thomas F. Haas and brakeman Stephen Wassong. Cole told Wassong about the "heavy smoke condition when you're going west" and advised him that the control center was sending a mechanic to check out the locomotive. Wassong replied that no one from the control center had informed the replacement crew about any diesel exhaust problem. Wassong also testified that no mechanic was sent to check out the locomotive before it departed.

At Hoboken station, Cole prepared a report detailing the heavy exhaust problem he had encountered. Specifically, Cole wrote under the "defects" section of the report that there were "[d]iesel exhaust fumes in engine 4191 and all cars westbound." Cole did not turn in this report until he reached his final terminal at Port Morris at the end of his work shift.

The train carrying plaintiff, Haas, Wassong and a number of passengers departed Hoboken station for Suffern Station at 7:45 p.m. The train consisted of the same locomotive and four passenger cars that comprised the train on which Cole was the conductor. Haas was operating the locomotive; plaintiff was collecting tickets in the first two cars behind the locomotive, while Wassong was doing so in the rear two cars. Plaintiff testified that the train was full of commuters.

While the train was passing through the Bergen tunnel, plaintiff and Wassong noticed fumes and smoke in the passenger cars. Plaintiff radioed Haas and explained the situation. Haas confirmed that plaintiff radioed him, complaining that something was wrong with the train and that he and the passengers were becoming sick. Because Haas could not understand exactly what plaintiff was saying over the radio, he told plaintiff that he would speak with him at the next stop, which was Secaucus station.

Plaintiff testified that, before the train arrived at Secaucus station, he radioed and telephoned the control center "to let them know that this is really bad and the fumes are coming through the cars." According to plaintiff, the personnel at the control center, including trainmaster Lopez and the main line dispatcher, told him to keep the train moving.

At Secaucus station, plaintiff exited the train and walked forward on the platform toward the locomotive to speak with Haas. At that time, the locomotive's "engine revved" and he was engulfed in a "big cloud of smoke" that was forcibly expelled from the locomotive. Plaintiff testified that he ran back into the train without speaking to Haas face to face. Wassong, who had observed plaintiff engulfed in smoke, did not observe plaintiff run back to the train and, instead, assumed that he had continued walking to meet with Haas.

In contrast, Haas testified that he and plaintiff met and spoke together on the platform at Secaucus station. Plaintiff told Haas that he was feeling ill because "the train smelled" and he "wasn't sure if he would be able to complete the trip." Haas noticed diesel exhaust fumes at Secaucus station, but did not see fumes "floating" toward plaintiff "because by the time I got off [the locomotive] he was almost up to me."

When he reentered the train, plaintiff contacted the trainmaster and his supervisor, complaining about the exhaust situation. According to plaintiff, he was told to "keep the train moving."

Upon departing from Secaucus station, plaintiff noticed that the door on the passenger car "right behind the engine was actually jammed" open. He was fighting to close the door for quite a while in order to prevent the locomotive's exhaust fumes from affecting the passengers. He eventually closed and locked the door.

After the train left Secaucus station, Wassong noticed that smoke and fumes were present in the passenger cars and the air was foggy. He and plaintiff then shut off the ventilation system in the cars because exhaust fumes were being introduced into the cars from the system. Plaintiff and Wassong also began moving passengers from the two cars behind the locomotive to the rear two cars. The air in the rear cars appeared to improve for awhile, but, according to Wassong, the exhaust started to come into those cars from the bottom of the train.

Plaintiff contacted the control center again, complaining about the exhaust fumes, but was told to continue the trip. According to plaintiff, by the time the train reached Ridgewood station, he was feeling dizzy, lightheaded and weak; his eyes were burning and he had trouble breathing. He contacted the trainmaster and the main line dispatcher and told them that he was shutting the train down. He evacuated most of the passengers at Ridgewood station and was directed to travel on the train to Waldwick station.

Local police and fire units were summoned to Waldwick station, where plaintiff was placed in an ambulance and taken to a hospital. Wassong, too, was later taken to a hospital. Because there was smoke in the passenger cars, fire department personnel tested the air in the cars and detected dangerous levels of carbon monoxide.

Plaintiff was examined and released from the hospital that same day with a diagnosis of "diesel fumes exposure." Wassong also was examined and released from the hospital after a short time. Neither Haas nor any of the passengers on the train reported an injury in conjunction with this incident.

On the day after the incident, October 13, 2005, defendant removed locomotive number 4191 from service and subjected it to inspection and testing. The "results were negative and no excessive smoke condition was noted." The locomotive was returned to service on October 16, 2005. One day later, another train crew was exposed to excessive diesel fumes, as the locomotive had another problem with abnormal smoke conditions.

Further testing of the locomotive revealed defects that had produced the abnormal smoking.

At trial, plaintiff presented evidence that plaintiff was exposed to enough carbon monoxide to cause damage to his brain and that the injury to his individual brain cells would be permanent. Other evidence showed that plaintiff had "significant...inhalation exposure to toxic carbon monoxide...causing permanent brain injury making it unable for him to work."

On September 27, 2007, the United States Railroad Retirement Board issued a decision finding that plaintiff was permanently and totally disabled as a result of his inhalation of diesel exhaust fumes on October 12, 2005. Plaintiff was awarded disability benefits by the Board.

A jury trial commenced on May 5, 2009. On June 11, 2009, the jury returned its verdict. In rejecting the LIA claim, the jury found that defendant's locomotive was defective or malfunctioning. There was no finding as to whether the defect or malfunction caused plaintiff's injuries. In contrast, on the FELA claim, the jury found that defendant had failed to provide plaintiff with a safe work place and that such failure was a cause of plaintiff's injuries. The jury did not award plaintiff any damages for pain and suffering or for future medical expenses under the FELA claim, but did award him $251,340 for past loss wages and $749,075 for future lost wages, for a total award of $1,000,415. Because the jury attributed to plaintiff fifty percent of the total negligence underlying his injuries, the jury's award was reduced to $500,207.50, pursuant to the FELA's comparative negligence provision. 45 U.S.C.A. § 53.

On June 25, 2009, a judgment in accordance with the jury's verdict was entered.

On June 30, 2009, plaintiff filed a motion to amend the judgment by molding the verdict so as to establish causation on the LIA claim. Plaintiff also sought a new trial on damages only.

On August 25, 2009, the trial court entered an order denying the motion in an oral decision containing the court's statements of reasons for the denial. This appeal followed.


Plaintiff contends the trial court erred in denying his motion to amend the judgment when it refused to mold the verdict so as to establish causation on the LIA claim, despite the jury's failure to find such causation. We disagree.

Motions for reconsideration seeking to alter or amend a judgment or order are governed by R. 4:49-2 which sets time limitations for making such motions and which requires specificity concerning the basis for the motion. Motions brought under R. 4:49-2 are within the sound discretion of the trial court, which is to exercise that discretion in the interest of justice. Cummings v. Bahr, 295 N.J. Super. 374, 384 (App. Div. 1996).

Here, the trial court prepared two verdict sheets, a yellow one for the LIA claim and a green one for the FELA claim. The jury was instructed to address the LIA verdict sheet first and, if the jurors rendered a verdict in plaintiff's favor under the LIA, they were to stop deliberations and return their verdict without addressing the FELA verdict sheet.

The parties agreed that all eight jurors would deliberate, and the jury was instructed that at least seven jurors had to agree on a question before it constituted a verdict on that question. Specifically, the court charged that "[w]henever at least seven jurors have agreed to an answer, that question has been decided and you may move on to consider the remaining questions in the case[], if it is appropriate to do so."

The LIA verdict sheet asked three questions: (1) whether the locomotive was defective, (2) whether the defect caused plaintiff's alleged injuries, and (3) what damages would fairly compensate plaintiff for those injuries. On the third day of deliberations, the jury advised the court that it had answered the first question on the LIA verdict sheet in the affirmative, finding unanimously (8 yes, 0 no) that the locomotive was defective. The jury also advised that it had answered the second question, concerning causation, "yes, five, no, three," asking the court "do we go on to the green [FELA verdict] sheet."

The court inquired of the jury's foreman whether the five-three vote on the second question was a tentative or final vote, and the foreman said that it was "leaning towards a final vote." The court then instructed that the jury should continue deliberations on the second question "because I'm hearing it's a five-three vote but not necessarily a final vote."

The court charged that, if the jury answered the second question "yes, and it has to be seven to one or eight-zero," then the jurors should go to the third question on the LIA verdict sheet, which concerned damages. However, "[i]f the vote is not eight to zero or seven to one, then you're going to go the green [FELA verdict] sheet" and address the questions there. The court repeated this instruction two more times.

Plaintiff objected to this instruction and asked the court to instruct the jury not to deliberate on the FELA claim until the second LIA question had been properly answered. The court declined to do so, saying that the jury did not indicate that it was deadlocked on the second LIA question and that it would be best to see the results of the jury.

At this juncture, plaintiff's counsel sought relief through an interlocutory appeal, contesting the trial court's refusal to order the jury to deliberate to completion of the LIA claim. Leave to appeal was denied.

Later that day, the jury made an inquiry of the court concerning the first question of the FELA verdict sheet, thus indicating that they were then addressing the FELA claim. The court answered the inquiry and excused the jury for the day.

The next day, the jurors told the court that they had been unable to reach a verdict. The Court then gave an Allen*fn1 charge in an effort to persuade the jury to reach a verdict. The court also gave the jury a supplemental instruction on proximate causation and instructed that, if necessary, the jurors should start again with the LIA verdict sheet and then go on to address the FELA verdict sheet. The jurors resumed deliberations, but later informed the court they could not reach a unanimous verdict on either matter. The court informed the jurors that they were not required to reach a unanimous verdict and thereafter excused them for the day.

The next day, the court reinstructed the jury that "[w]henever at least 7 jurors have agreed to any answer that question has been decided and you may move on to consider the remaining questions in the case if it is appropriate to do so." The court directed the jury to resume deliberations, telling them to "[p]lease start with the yellow [LIA] sheet all over again. It's 7/0 [sic] is a verdict. It does not have to be unanimous."

The jury returned its verdict later that day. On the LIA claim, the jury found under question one that the locomotive was defective (8 yes, 0 no), but failed to find proximate causation under question two (6 yes, 2 no). On the FELA claim, the jury found under question one that the defendant failed to provide plaintiff with a reasonably safe workplace (7 yes, 1 no), and also found under question two that this failure was a proximate cause of plaintiff's injuries (7 yes, 1 no). The jury awarded plaintiff substantial damages on the FELA claim, but reduced that amount by half after finding plaintiff to be fifty percent contributorily negligent in causing his injuries.

The FELA claim allows a jury to consider a plaintiff's contributory negligence when finding damages; the LIA does not. 45 U.S.C.A. § 53. Seeking to avoid the reduction in the damages award because of his contributory negligence, plaintiff moved to amend the judgment by molding the verdict to establish proximate cause under the LIA claim based on the jury's finding of causation on the FELA claim. The court denied the motion.

On appeal, plaintiff argues that the jury's finding of proximate causation on the FELA claim requires a similar finding on the LIA claim. He contends the jury would have made this finding had it not been for the court's faulty instructions directing the jury to move on to address the FELA claim when the jury had failed to reach a verdict in the six to two vote on the second question of the LIA claim. N.J.S.A. 2A:80-2 provides that, to constitute a valid verdict in a civil cause of action, at least five of six jurors must agree on the answer to a question. See Mahoney v. Podolnick, 168 N.J. 202, 216 (2001)(recognizing that, "when the jury was reduced to seven jurors, a valid verdict for the petitioner required six votes"). Thus, an eight person jury would require at least seven jurors to agree on an answer to a question. Plaintiff maintains the Court erred when it instructed the jury to move on to address the FELA claim when the jury had not reached a valid verdict on the second question on the LIA claim.

As he did below, plaintiff attempts to remedy this shortcoming on appeal by having the court mold the jury's verdict on the LIA's second question to establish causation. We disagree with plaintiff's argument that the jury's finding of proximate causation on the FELA claim requires a similar finding on the LIA claim, or that the jury would have made that finding had it not been for the court's faulty instructions.

Under the LIA claim, the proximate causation question is whether the defective or malfunctioning locomotive caused plaintiff's injuries. Under the FELA claim, the question is whether defendant's failure to provide plaintiff with a reasonably safe workplace caused his injuries. Because the focus under FELA is on the workplace rather than on the locomotive, the jury could have reasoned that defendant's failure to have fixed the faulty door on the passenger car or to have provided plaintiff with a better means of communicating with Haas were the direct causes of his injuries.

The verdicts can be reconciled, as the jury could have found plaintiff was exposed to excessive exhaust, over and above that to which the passengers were exposed. It would be reasonable to find defendant failed to provide plaintiff with a reasonably safe workplace, in that the door jammed, causing plaintiff to fight to close it for sometime, thus directly exposing him to the locomotive's exhaust. Also, defendant's radio communication system did not allow plaintiff to clearly convey his message, forcing plaintiff to meet with the engineer on the Secaucus platform, where he was exposed to a cloud of exhaust. Thus, the jury's failure to agree on causation on the LIA claim is reasonably explained and it would, therefore, have been improper for the court to determine the issue of proximate causation on the LIA claim.

It is well established that "[a] verdict may be molded in consonance with the plainly manifested intention of the jury, and judgment entered accordingly." Turon v. J & L Constr. Co., 8 N.J. 543, 552 (1952).

The Supreme Court has held that deference to a jury's findings is reflected also in the general rule that a trial court may not mold a jury verdict according to its perception of the jury's view. A verdict may be molded in consonance with the plainly manifested intention of the jury, but such a determination is best performed in the presence of the jurors and with their consent. Moreover, molding a verdict is most appropriate when it pertains to form rather than substance. Once the jury is discharged, both trial and appellate courts are generally bound to respect its decision, lest they act as an additional and decisive juror. [Kassick v. Milwaukee Elec. Tool Corp., 120 N.J. 130, 135-36 (1990) (citations and internal quotation marks omitted).]

Plaintiff's request that the court mold the verdict so that the jury's failure to find causation on the LIA claim is changed to a finding of causation runs afoul of Turon and Kassick in three respects.

First, the record does not support that the jury would have found causation on the LIA claim. The jury initially failed to find causation by a five-yes/three-no vote. After the court gave the Allen charge, the jury returned its verdict, again failing to find causation, this time by a six-yes/two-no vote. Given multiple opportunities, the jury was not able to produce the seven "yes" votes necessary to find causation under the LIA. Thus, it was not the "plainly manifested intention of the jury" to find that defendant's defective or malfunctioning locomotive caused plaintiff's injuries. Turon, supra, 8 N.J. at 552.

Second, the molding of the verdict that plaintiff requests is not appropriate because it pertains more to substance rather than to form. Kassick, supra, 120 N.J. at 135. Plaintiff is essentially asking the court to determine that there was proximate causation, even though the jury was unable to make such a finding. The finding of an element of a cause of action is a matter of substance, not form. The substantive nature of plaintiff's request is obvious when one understands that, if the verdict is so molded, the result is a valid verdict on causation, even though the jurors could not themselves arrive at such a valid verdict.

Last, any molding of the verdict by the trial court could not have been "performed in the presence of the jurors and with their consent." Ibid. Plaintiff did not move to mold the verdict until more than two weeks after the jury returned its verdict and was discharged.

Here, the trial court did not abuse its discretion by refusing to mold the verdict. Cummings, supra, 295 N.J. Super. at 384. The interest of justice did not dictate that the court establish the element of causation on the LIA claim, when there was no clear indication that the jury would have found such causation.


A trial court has "broad discretion in making relevance and admissibility determinations under N.J.R.E. 401, 402, and 403" and those determinations will not be disturbed on appeal "absent a manifest denial of justice." Lancos v. Silverman, 400 N.J. Super. 258, 275 (App. Div. 2008).

Plaintiff sets out four separate contentions where he believes the trial court erred in admitting irrelevant and prejudicial evidence of his prior use of illegal drugs.


On December 6, 2002, plaintiff sought treatment from a psychiatrist, Dr. Paul Hriso, for anxiety and panic attacks. On a diagnostic evaluation form, Hriso recorded that plaintiff, who was then twenty-nine years old, gave a history of taking illegal drugs, "last using them about a year before." Hriso recorded that plaintiff did a lot of drugs over a number of years.

During discovery, plaintiff signed releases, allowing defendant to obtain his medical records, including those of Hriso. At no point prior to trial did plaintiff attempt to obtain a protective order redacting the information concerning his prior drug use that was contained in Hriso's records.

Plaintiff sought treatment for the cognitive disorder that he alleged was caused by the incident involving the locomotive on October 12, 2005. He either did not inform the medical personnel he consulted that he had earlier used the illegal drugs mentioned in Hriso's records, or he expressly denied such use. Additionally, plaintiff was examined for litigation purposes by defendant's medical expert, Dr. Harvey Hammer.

On November 19, 2008, Hammer issued a report, stating that plaintiff had "denied the abuse of any substances, 'either legal or illegal'." Hammer had read Hriso's records and noted that plaintiff's denial was contradicted by Hriso's report of his use of illegal drugs. He concluded that plaintiff "was inconsistent or evasive during his evaluation with me."

After the jury was sworn on May 5, 2009, plaintiff moved to bar evidence of his past use of illegal drugs. The court granted the motion in part, reasoning that, because defendant's experts had not linked the prior drug use to plaintiff's alleged injuries in their reports, the evidence could not be admitted to show such a relationship at trial. The court left open the possibility that the evidence could be admitted to show plaintiff's lack of credibility because that issue was "within the four corners of Dr. Hammer's report."

Plaintiff's neurological expert, Dr. Elie P. Elovic. Elovic's report stated that plaintiff's past medical history was not significant, and it did not mention plaintiff's visits with Hriso. He was not cross-examined concerning plaintiff's prior drug use.

On May 7, 2009, plaintiff took the stand, and defendant moved for permission to question him and defense-expert Hammer concerning his prior use of illegal drugs. The judge allowed defendant to ask Hammer questions bearing on plaintiff's credibility with regard to drug use, because the issue of plaintiff's credibility went to the heart of the defense.

The judge rejected plaintiff's argument that evidence of his prior drug use was unduly prejudicial to him, noting that plaintiff had never been convicted of any crimes or labeled as a drug addict and that he had not moved previously for a protective order for Hriso's records based on such purported prejudice. Hammmer had relied on Hriso's records in forming his opinion and writing his report, and it was defendant that would suffer prejudice if denied the use of those records at trial.

The judge also rejected plaintiff's argument that evidence about prior drug use was not relevant, reasoning that it was relevant to complete plaintiff's medical history and to show plaintiff's credibility with various examining physicians who had relied upon that history. Additionally, the judge dismissed any argument that Hriso's records were privileged, noting that plaintiff had signed appropriate releases during discovery, thus waiving the privilege, and had not sought a protective order prior to trial.

Later, on direct examination, plaintiff testified that he used "recreational drugs" when he was twenty or twenty-one years of age, but did not do so now. He stated that, at that time, he was young, immature, and "just experimenting." He now regretted such drug use. He had been subjected to random drug tests by defendant since his employment in April 1999, and had never failed one.

On cross-examination, plaintiff testified that he told Hriso that, when he was younger, he had experimented with recreational drugs, including Ecstasy, LSD, Special K, and cocaine. Plaintiff denied the notation in Hriso's records that he had used those drugs for a lot of years. Plaintiff also admitted that he did not tell Elovic about his use of those drugs.

On June 1, 2009, Hammer testified that, upon reviewing Hriso's records, he realized that plaintiff had not told him the truth about his drug use. Plaintiff's prior drug history amounted to a "significant history of substance abuse" that would have affected his brain chemistry and ability to function. Plaintiff's failure to tell medical personnel about that drug use negatively affected the ability of those personnel to diagnose and treat him properly.

Plaintiff asserts that, after he testified on direct examination that he had engaged in past recreational drug use, there was no basis for admitting other evidence on that topic because there was no testimony to contradict or a statement to impeach. N.J.R.E. 613(b); N.J.R.E. 803(b)(1).

Plaintiff's argument ignores the contradiction between Hriso's recordation of his past drug use and his explicit denial of such use to Hammer and others. It is that contradiction that raised the credibility issue providing the basis for admitting the disputed evidence.

Additionally, plaintiff testified on direct examination that he only used unnamed recreational drugs when he was about age twenty-one. Yet he was twenty-nine years old when he consulted Hriso, and Hriso recorded that plaintiff used specific drugs for a lot of years, ending such use only about a year earlier. Plainly, plaintiff's direct-examination testimony contradicted Hriso's records providing another basis for admitting the disputed evidence. N.J.R.E. 613(b);N.J.R.E. 803(a)(1).

These contradictions demonstrate that no manifest denial of justice occurred when, despite plaintiff's direct-examination testimony, the judge allowed defendant to cross-examine him and to present evidence through Hammer concerning his past drug use. Lancos, supra, 400 N.J. Super. at 275.

Plaintiff's second contention is that it was unfair and inaccurate for the judge to conclude that he had opened the door when he had no alternative but to address the issue of his past drug use on direct examination, given the judge's ruling that defendant could present such evidence on his cross-examination and through Hammer.

"The doctrine of opening the door allows a party to elicit otherwise inadmissible evidence when the opposing party has made unfair prejudicial use of related evidence." State v. James, 144 N.J. 538, 554 (1996). Here, plaintiff did not seek to make any use of the drug-use evidence, much less unfair or prejudicial use. Instead, he sought to exclude such evidence. Thus, the judge misapplied the doctrine of opening the door under the circumstances of this case.

Here, this was only one of the reasons underlying the trial court's decision to admit the evidence. A judgment may be affirmed on appeal even though a trial court gave an incorrect reason for the judgment. Isko v. Planning Bd. of Twp. of Livingston, 51 N.J. 162, 175 (1968). Thus, while the judge's reliance on the doctrine of opening the door was mistaken, that error was not clearly capable of producing an unjust result, given the judge's other reasons for admitting the disputed evidence. R. 2:10-2.

Plaintiff's third contention is that the judge erred in admitting evidence of his "alleged" past drug use because it was both irrelevant and grossly prejudicial. Plaintiff maintains it was irrelevant because the "alleged drug use had no causal relationship to the anoxic brain injury" suffered by plaintiff. He argues it was prejudicial because "[t]here is little doubt that this jury, mostly comprised of individuals a generation older that Plaintiff, found his [irrelevant] [sic] drug use to be offensive and distracting, as evidenced by their verdict".

Relevant evidence is "evidence having a tendency in reason to prove or disprove any fact of consequence to the determination of the action." N.J.R.E. 401. "Except as otherwise provided in these rules or by law, all relevant evidence is admissible." N.J.R.E. 402.

In partially granting the motion to bar evidence of plaintiff's past use of illegal drugs, the court reasoned that defendant's experts had not linked the prior drug use to plaintiff's alleged injuries in their reports. This demonstrates the court recognized that drug-use evidence would not be admitted to show such causation and supports plaintiff's contention that the drug-use evidence was irrelevant for that purpose.

The trial court's rationale went further, when both at trial and on the new-trial motion the court determined that the drug-use evidence was relevant to the issue of plaintiff's credibility. The court did not err by permitting New Jersey Transit to present evidence of plaintiff's prior drug use, which he did not report to the examining doctors. If plaintiff was previously untruthful about his past drug use in giving a medical history to his treating physicians, then the jury could conclude that he may have been untruthful in other statements he made concerning his health.

"[R]elevant evidence may be excluded if its probative value is substantially outweighed by the risk of . . . undue prejudice[.]" N.J.R.E. 403(a). "'The burden is clearly on the party urging the exclusion of evidence to convince the court that the N.J.R.E. 403 considerations should control.'" Rosenblit v. Zimmerman, 166 N.J. 391, 410 (2001) (quoting Biunno, Current N.J. Rules of Evidence, comment 1 on N.J.R.E. 403 (1999-2000)). A trial court's broad discretion in making relevancy determinations will not be disturbed absent a manifest denial of justice. Lancos, supra, 400 N.J. Super. at 275.

In denying plaintiff's new-trial motion, the judge considered and rejected his argument concerning the purported effect of the drug-use evidence, stating that "[p]laintiff argues that the jury which was composed of individuals a generation older than the plaintiff found the drug use to be offensive and distracting. It is unclear to the court how the plaintiff is so certain of this contention and this theory is entirely speculative."

On appeal, plaintiff offers nothing more than he did at trial to show that the jury was prejudiced against him because of the drug-use evidence. Thus, it remains unclear and based on pure speculation whether the jurors were actually prejudiced.

Plaintiff has not met his burden of demonstrating the jury was offended by the disputed evidence. The court did not err in refusing to exclude the evidence as being grossly prejudicial. Rosenblit, supra, 166 N.J. at 410. Moreover, because plaintiff failed to show that the drug-use evidence was irrelevant or grossly prejudicial, the judge's refusal to exclude that evidence did not amount to a manifest denial of justice. Lancos, supra, 400 N.J. Super. at 275.

Plaintiff's last contention is that the evidence of his past drug use contained in Hriso's records was inadmissible because it was subject to the psychologist-patient privilege.

N.J.R.E. 505 states that N.J.S.A. 45:14B-28 provides: The confidential relations and communications between and among a licensed practicing psychologist and individuals, couples, families or groups in the course of the practice of psychology are placed on the same basis as those provided between attorney and client, and nothing in this act shall be construed to require any such privileged communication to be disclosed by any such person.

The privilege serves to enable the confidential relationship between psychologist and patient by protecting the patient's privacy interest in the communication necessary in such a relationship. Kinsella v. Kinsella, 150 N.J. 276, 329-30 (1997).

The privilege is not absolute. "[W]hen the patient himself discloses mental or emotional problems by instituting an action in which they are in issue, common notions of fairness clearly compel at least limited disclosure of otherwise confidential communications." Arena v. Saphier, 201 N.J. Super. 79, 89 (App. Div. 1985). Thus, where the patient's mental condition is an element of the patient's legal claim, disclosure is necessary. Rosegay v. Canter, 187 N.J. Super. 652, 656-57 (Law Div. 1982).

Plaintiff's complaint alleged "physical injuries to his brain," and his proofs showed that he suffered from executive dysfunction, disturbances in the formation of new memory, difficulties in concentration/attention, and difficulty in abstract thinking and problem solving as a result of those injuries. Because his mental condition was at issue and an element of his legal claim, plaintiff's psychiatric records, including Hriso's notes, were subject to disclosure so that defendant could defend itself in this litigation.

N.J.R.E. 530 states that N.J.S.A. 2A:84A-29 provides: A person waives his right or privilege to refuse to disclose or to prevent another from disclosing a specified matter if he or any other person while the holder thereof has . . . (b) without coercion and with knowledge of his right or privilege, made disclosure of any part of the privileged matter or consented to such a disclosure made by anyone.

Plaintiff expressly waived the psychologist-patient privilege and made such disclosure when he executed appropriate releases and gave Hriso's records to defendant during discovery. In denying plaintiff's new-trial motion, the judge noted that plaintiff had executed the releases voluntarily, without objection, and with no limitations placed on the use of the information contained within. The court was satisfied that plaintiff "freely consented to his psychiatric records being released to defense counsel."

There was no manifest denial of justice visited upon plaintiff when the judge admitted the drug-use evidence set out in Hriso's records as plaintiff waived the psychologist-patient privilege.

The court did not err in admitting the prior drug use evidence as the testimony concerning plaintiff's past drug use was relevant to an evaluation of his credibility, was not unduly prejudicial and was not privileged.


Plaintiff contends the trial court erred in allowing defendant's toxicology expert, Dr. Laura Green, to testify concerning matters beyond her expertise and outside of the scope of her report. We disagree.

A trial court has discretion both to determine whether a witness is competent to testify as an expert on a subject, Carey v. Lovett, 132 N.J. 44, 64 (1993), and to preclude an expert's testimony on a subject not covered in the expert's written report. Congiusti v. Ingersoll-Rand Co., Inc., 306 N.J. Super. 126, 131 (App. Div. 1997).

At trial, on May 19, 2009, plaintiff presented testimony from his toxicology expert, Dr. Gary Miller. Miller had previously submitted his expert report, in which he concluded that plaintiff "was exposed to toxic fumes on the train that far exceeded OSHA standards" and had "suffered a hypoxic brain injury" as a result of that exposure. While Miller's report offered a general description of how plaintiff was injured, it did not quantify the level of dangerous emissions to which plaintiff had been exposed.

Nevertheless, Miller was asked on direct examination what was the level of intensity of exposure to carbon monoxide plaintiff encountered from the defective locomotive. Defendant objected that Miller's report did not recite a specific numerical value for such exposure. The court sustained the objection, but indicated that Miller could still testify about levels of exposure to dangerous emission if he linked such testimony to what OSHA is because he had cited OSHA exposure limitations in his report.

Thereafter, Miller testified that an acceptable level of carbon monoxide exposure in the workplace under the OSHA standard was fifty parts per million parts of air. Miller then stated that plaintiff had "symptoms that are consistent with a person being exposed to 400 and 500 parts . . . per million." Defendant objected, but the court overruled that objection. Miller continued, stating that plaintiff's symptoms were "consistent with somebody exposed to 400 to 500 parts per million in the course of say ten, fifteen, twenty minutes." No such specificity was contained in his report.

On May 29, 2009, Dr. Laura Green testified at trial as defendant's expert in toxicology. Green had also issued a report prior to trial, in which she had concluded that plaintiff was not poisoned by carbon monoxide and that plaintiff's "exposure to train exhaust on October 12, 2005 did not cause permanent physical damage, even while it may have caused some respiratory tract irritation and other limited, reversible symptoms from which he quickly recovered." Like Miller's report, Green's report did not attempt to quantify the level of diesel exhaust emissions to which plaintiff had been exposed.

Green was asked on direct examination what information she required in order to determine the level of plaintiff's possible exposure to emissions. When Green attempted to testify concerning the emissions output of locomotives like the defective locomotive that allegedly injured plaintiff, plaintiff objected that Green's report contained nothing about specific "emission standards." Defendant countered that Green's report did contain references to such standards, and also noted that the court had allowed Miller to offer similar quantitative testimony, so long as that testimony rested on information and references contained within his report. The court overruled plaintiff's objection, reasoning that Green's report adequately anticipated her quantitative testimony and that defendant was entitled to the same latitude in presenting expert testimony as had been allowed plaintiff.

Green testified that test data showed that a locomotive performing normally produces exhaust that contains carbon monoxide at a level of 200 parts per million. However, one of the cylinders on the defective locomotive was not working well because one of the piston rings was cracked. Given that circumstance, Green stated that "what a scientist does is look for data on whether pushing a little bit of lube oil into a diesel combustion chamber is going to affect carbon monoxide levels."

Green testified that she found such data in a Master's thesis written by a student named Schofield at the Massachusetts Institute of Technology in 1995. When asked if other toxicologists would reasonably rely on data like that contained in the thesis, Green replied that "[w]ell, it's the best data you can find." She then described Schofield's testing technique and his conclusion that lubrication oil leaking into a diesel engine's combustion chamber had no effect whatsoever on the carbon monoxide levels.

Green was later asked whether she could estimate the level of carbon monoxide to which plaintiff had been exposed. Green replied that she could and did so, using Schofield's analysis, along with a formula based on what level of diesel exhaust is detectable by persons with the poorest sense of smell and data derived from a 2009 study by the National Institute of Occupational Safety and Health of carbon monoxide levels in the Lincoln and Holland Tunnels. She gave a conservative, worst case estimate that the carbon monoxide level in the train cars was no more than twenty parts per million, which was "not going to be a CO poison issue" for anyone.

At that juncture, plaintiff objected that Green's testimony was based on quantified emissions standards and on a thesis, neither of which were mentioned in her report. The court overruled the objection, noting that emissions data were mentioned in Green's report and that plaintiff should have deposed Green prior to trial if he had any questions concerning what part the emissions data played in Green's opinion.

Green went on, using a scientific study referred to in her report to link the amount of plaintiff's carbon monoxide exposure (twenty parts per million) over a period of a little more than an hour to the amount of carbon monoxide that would be taken up into his blood stream. Green concluded that the level of carbon monoxide that would have been in plaintiff's blood was incapable of causing him harm.

On cross-examination, Green was asked about the master's thesis upon which she had relied. She testified that Schofield, who was a mechanical engineer, wrote the paper in 1995 and that such papers are reviewed extensively or "you can't get your degree." She had no idea whether the paper had been published.

After Green's testimony ended, plaintiff moved to strike Green's testimony, arguing both that she had testified to numbers about emissions that were based on a thesis paper, none of which were in her report, and that she had testified beyond her expertise concerning the defective locomotive emissions.

The court denied the motion, noting that Green's report included information about the locomotive's emissions, including the partially burned lubrication oil in the exhaust, and that plaintiff had passed on his opportunity to depose Green prior to trial on that issue. The court also noted that plaintiff's objection to Green's testimony had only been made at trial, not before, and that it was unaccompanied by any written brief.

Plaintiff raised the same arguments concerning the thesis paper and testimony beyond Green's expertise as part of his motion for a new trial. The court again rejected the arguments reasoning that while Green relied on the Master's thesis to arrive at the maximum level of plaintiff's carbon monoxide exposure, she did not form the basis of her opinion upon the college thesis. Rather, the thesis was only a small part of Green's overall analysis. Also, the court noted that Green did not testify as to the mechanics of the locomotive, as plaintiff contended, but instead, she testified as to the toxicity of the emissions which was her area of expertise.

On appeal, plaintiff first contends that Green testified beyond the scope of her report when she offered quantitative estimates of plaintiff's exposure to carbon monoxide based, in part, upon Schofield's Master's thesis.

Rule 4:17-4(e) requires that an expert's report include the expert's opinion, as well as the facts and data relied upon in forming that opinion. At trial, an expert's testimony may be confined to the opinions given in the report, but the "'logical predicates for and the conclusions from statements made in the report are not foreclosed.'" Congiusti, supra, 306 N.J. Super. at 131 (quoting McCalla v. Harnischfeger Corp., 215 N.J. Super. 160, 171 (App. Div.), certif. denied, 108 N.J. 219 (1987)).

While a trial court has discretion to preclude expert testimony on a subject not covered in the expert's report, Conguisti, supra, 306 N.J. Super. at 131, the subject of the level of diesel emissions to which plaintiff was exposed was discussed in Green's report, and the Foley Emissions Data and report concerning the defective locomotive and its smoky emissions were explicitly cited.

While Schofield's thesis paper was not cited in Green's report, it may readily be characterized as a "logical predicate" to her opinion about the level of carbon monoxide emissions in the locomotive's exhaust because it directly dealt with and accounted for the effect of leaking lubrication oil on carbon monoxide emissions. Ibid. Green was not foreclosed from relying upon such a logical predicate when giving her opinion.

Moreover, N.J.R.E. 703 allows an expert to base an opinion on facts or data made known to the expert at or before trial. In light of Miller's quantification of the level of plaintiff's exposure to carbon monoxide during his trial testimony, Green fairly relied upon the data in the thesis paper at trial to present similar quantification testimony in response to Miller.

At trial, plaintiff objected that Green's opinion was unreliable because "it was based on numbers on a college thesis not referred to or cited in her report." Since plaintiff did object to Green's testimony concerning her quantitative estimate of emission levels and because Green utilized the thesis' data to arrive at that estimate, it may be reasonably inferred that plaintiff's objections include the reliability of the data in the thesis.

In Suanez v. Egeland, 353 N.J. Super. 191, 195-96 (App. Div. 2002) (citations and internal quotations omitted), the court stated that

[i]n New Jersey, scientific evidence is admissible in a civil case if it derives from a reliable methodology supported by some expert consensus. There are three ways a party offering the results of scientific evidence can demonstrate its reliability:

(1) the testimony of knowledgeable experts;

(2) authoritative scientific literature; and

(3) persuasive judicial decisions. A party offering novel scientific evidence bears the burden of demonstrating its reliability.

In reviewing a trial court's decision concerning the admission of scientific evidence, an appellate court should carefully review the relevant authorities in determining the correctness of the decision to admit or exclude the disputed testimony. In short, the appellate court need not be as deferential to the trial court's ruling on the admissibility of expert scientific evidence as it should be with the admissibility of other forms of evidence. [State v. Torres, 183 N.J. 554, 567 (2005).]

Given Green's testimony that the data in the thesis paper was "the best data you can find," largely because it was the only data she could find on the relationship between lubrication oil leaked into a combustion chamber and resulting carbon monoxide levels, the thesis' data are plainly "novel scientific evidence." Suanez, supra, 353 N.J. Super. at 196.

While Green was a knowledgeable expert, she did not delve deeply into the scientific methodology underlying the thesis's data to show their reliability before the Court allowed its admission.

We find this to be harmless error in light of the fact, as recognized by plaintiff, that Green's testimony concerning diesel's exhaust emissions and, necessarily the data in the thesis, "went directly to the defect he alleged was a proximate cause of his injury." Plaintiff has not appealed from the jury's causation and liability finding, but only from the jury's finding that he has suffered no damages. Thus, any error in admitting the data in the thesis by way of Green's opinion does not affect this appeal. Accordingly, we disregard such error because it is not clearly capable of producing an unjust result.

R. 2:10-2.

Plaintiff's remaining contention is that Green testified

beyond her expertise as a toxicologist because she was allowed to testify about the mechanics of the locomotive and about the amount and content of the diesel smoke and fumes emitted. We disagree.

The record supports the trial court's recognition that Green did not testify concerning the mechanics of the locomotive. Rather, she testified concerning the exhaust emissions that emanated from the locomotive and the possible debilitative effect of those emissions on persons like plaintiff. Such testimony comports with a Green's expertise as a toxicologist.

It was also proper for the court to allow Green's testimony about the amount and content of diesel fumes emitted, in light of Miller's very similar quantitative testimony concerning the locomotive's emissions. The trial court did not abuse its discretion in permitting Green to testify in line with her expertise. Carey, supra, 132 N.J. at 64.


Last, we disagree with plaintiff's argument the trial court erred in permitting defendant's claims administrator, Francis J. McArdle, to testify concerning events he did not witness and to offer opinions that he was not qualified to give.

The admission of lay testimony into evidence rests in the sound discretion of the trial court, and a trial court's decision concerning such admission will not be disturbed absent an abuse of that discretion. Navarro v. George Koch & Sons, Inc., 211 N.J. Super. 558, 583 (App. Div.) certif. denied, 107 N.J. 48 (1986).

McArdle investigated claims and evaluated records concerning plaintiff's injury from his resulting lawsuit as part of his job description as director of defendant's claims administration department. He was designated by defendant to prepare and certify defendant's answers to interrogatories concerning that claim and to otherwise assist counsel in defending against the claim. Also, defendant had designated him to testify on its behalf at trial. He did not offer testimony as an expert.

Plaintiff contends McArdle was not qualified to give a medical opinion when he was asked whether plaintiff "was 'medically qualified' to return to work, to which he responded in the affirmative."

McArdle was testifying on direct examination concerning two reports prepared by defendant's safety department. He testified that one report recited that personnel at the hospital that treated plaintiff following the incident stated that plaintiff "was provided oxygen and that he was medically qualified following examination."

Asked what the term "medically qualified" meant, as used in the report, McArdle stated that plaintiff and Wassong were taken to a hospital, examined, given oxygen, not admitted to the hospital, deemed qualified to return to work, and instructed to go to defendant's medical department for follow-up treatment. Pressed again as to the meaning of "medically qualified," McArdle stated that it "means that they were - - my interpretation of this, on the basis of those I've seen, and what I know about this file, was that he was medically qualified from the hospital to resume [his work with defendant], but he should have a check up by [defendant's] medical services."

McArdle was not offering his opinion about plaintiff's medical condition when he used the term "medically qualified," but was instead offering his interpretation of what was meant by an entry in a safety department report. In turn, that report addressed hospital records that stated that plaintiff was capable of working without restriction or accommodation. These interpretations of the safety department report and hospital records demonstrate the disputed remark and did not amount to a medical opinion by McArdle. We find the record demonstrates the court did not abuse its discretion in allowing McArdle to testify as he did concerning his "medically qualified" and "did not meet the standard" remarks. Navarro, supra, 211 N.J. Super. at 583.

Plaintiff next asserts that McArdle's testimony on direct examination that plaintiff did not meet the standard for disability amounted to an improper opinion that plaintiff was not actually disabled.

Early at trial, the court granted plaintiff's application to tell the jury that the United States Railroad Retirement Board ("Board"), had determined that he was disabled over defendant's objection. The court also permitted defendant to offer rebuttal evidence on that issue. In arguing against that application, defendant had noted it was not represented before the Board, that the Board had rejected plaintiff's disability claim twice before, the Board only granted the claim on the third occasion because plaintiff introduced live testimony from two experts, that plaintiff did not meet the criteria for awarding a disability pension, but that the Board awarded a disability pension anyway because plaintiff's condition, viewed as a whole, rendered him unable to work.

Plaintiff testified that the Board had determined that he was permanently and totally disabled as of October 12, 2005. He was awarded a disability pension as a result of that determination.

On direct examination, McArdle discussed the Board's decision, noting that plaintiff's first two disability claims had been rejected because he did not satisfy the standards for disability. In making that remark, McArdle was responding to a question asking him what his understanding was, of the outcome of the Board's decision at the third hearing. His response did not represent his opinion concerning whether plaintiff was disabled. Instead, it represented his understanding of the Board's decision.

Plaintiff last asserts that McArdle, who was not present on the train when plaintiff was injured, was permitted to offer improper testimony that contradicted plaintiff's testimony that he was engulfed in a cloud of smoke at Secaucus station that knocked him back into the train. Plaintiff had offered such testimony earlier, stating that the cloud of smoke caused him to run back into the train without speaking to Haas about the exhaust emissions that were entering the passenger cars. Plaintiff also asserts that McArdle was permitted to offer improper testimony that the smoke was not dangerous or unsafe.

McArdle was testifying in response to questions asked him by the jury, one of which asked him to clarify his prior testimony that there was nothing wrong with the locomotive, yet plaintiff should have shut down the train in Secaucus. McArdle stated that his review of the record showed that plaintiff and Wassong smelled exhaust fumes in the passenger cars and that they reported this condition to Haas, who then briefly inspected the locomotive but did not detect any problem. According to McArdle, Haas indicated that he noticed the sweet-smelling odor of antifreeze around the locomotive and saw a whitish steam-like smoke, rather than the black smoke normally associated with diesel exhaust.

After recounting plaintiff's version of events, McArdle testified that plaintiff would have been knocked back some 95 feet by the blast into the door that he came out of on that passenger coach. That didn't happen. Engineer Haas says it didn't happen. . . . Engineer Haas said they had a conversation on the platform that the two of them walked down. Mr. Comes claimed . . . he didn't talk to Mr. Haas.

[ (emphasis added).]

McArdle continued, testifying that, given the chronology of events presented to him, "I don't believe that at the time that the - - this initial identification of fumes and/or smoke condition that existed was dangerous and/or unsafe." He stated that the condition may have later become unsafe because the train crew did not shut down the train when they should have.

Plaintiff moved to exclude McArdle's testimony "That didn't happen" and his stated belief that the exhaust fumes were not initially dangerous as improper opinions concerning events that he did not observe. Both at trial and on the new trial motion, the trial court rejected plaintiff's position based on N.J.R.E. 701.

N.J.R.E. 701 states that "[i]f a witness is not testifying as an expert, the witness' testimony in the form of opinions or inferences may be admitted if it (a) is rationally based on the perception of the witness and (b) will assist in understanding the witness' testimony or in determining a fact in issue." Here, neither remark was based on McArdle's actual knowledge. We find both remarks amount to impermissible opinion testimony by a lay witness, the admission of which was error under N.J.R.E. 701(a).

We deem this error to be harmless as McArdle's disputed remarks relate to the jury's finding concerning causation and liability and do not involve the finding on pain and suffering damages. Plaintiff has not appealed from the jury's finding on causation and liability, thus any error that contributed to that finding is unrelated to the matter on appeal. As the admission of such remarks is not clearly capable of producing an unjust result, we disregard the error as harmless. R. 2:10-2.


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