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Donna Conklin v. Jorge Pinillos


July 28, 2011


On appeal from Superior Court of New Jersey, Law Division, Morris County, Docket No. L-1468-08.

Per curiam.


Submitted May 10, 2011 - Decided

Before Judges Payne and Wefing.

Defendant, Jorge Pinillos, appeals a verdict of $50,000 in undifferentiated compensatory and punitive damages entered against him and in favor of plaintiff, Donna Conklin, following a bench trial on charges of sexual assault, battery, intentional infliction of emotional distress, and negligent infliction of emotional distress.

The record reveals that, on May 24, 2007, plaintiff, Donna Conklin, an administrative assistant employed by Advanced Digital Data, was told to take documents to the company's shipping room for overnight delivery. Once there, she claims that she was grabbed by defendant, the shipping room supervisor, who, three times, kissed or attempted to kiss her on the cheek, and also grabbed her buttocks. After plaintiff broke free, she reported defendant's conduct to her employer, and defendant was fired the next day. Additionally, plaintiff filed a criminal complaint against defendant, resulting in a charge of fourth-degree sexual contact that was resolved through pre-trial intervention (PTI). Plaintiff also filed the civil action against defendant that is the subject of this appeal.

Plaintiff testified at the trial. Testimony was also given on her behalf by her husband and by psychologist Jacob Steinberg, Ph.D. Dr. Steinberg testified on the basis of his evaluation of plaintiff's condition one year prior to trial and then on the evening before trial that as the result of defendant's conduct, plaintiff was suffering from an adjustment reaction with mixed emotional features including some anxiety as well as some depression. Additionally, when plaintiff took the stand, she claimed to have developed extremely high blood pressure requiring prescription medication for its control as the result of the event, stating as proof of causation that the condition arose after the sexual contact had taken place. However, no medical expert confirmed that a causal connection existed between the medical condition and defendant's conduct.

Defendant, who appeared pro se, testified on his own behalf through an interpreter. He admitted to having tried to kiss plaintiff, but stated that he had done so after plaintiff flirted with him. Defendant additionally testified that plaintiff's reaction to his conduct arose from her desire to obtain an after-hour cleaning job for herself and her husband that had recently been awarded to defendant and his wife. On cross-examination, defendant was asked multiple questions about his alleged plea of guilty to the "criminal charge of assault." Defendant's responses were vague and contradictory. The following exchange took place:

Q Were you given a criminal charge of assault?

A Yes, that was a negotiated plea with attorneys, but I never - I never gave a statement [to the police].

Q I know you didn't give a statement. Did you admit to the underlying facts in this courthouse that you impermissibly touch[ed] Mrs. Conklin?

A That was negotiated by my attorney and in fact I didn't agree. (Witness & interpreter talking at same time) - a shoulder touch and the cheek. Q Did you through your attorney plead guilty to assault?

A He suggested that to me.

Q Did you then tell the Judge in court what you - made you guilty of that event?

A No.

Q No?

A He just told me to say the least possible.

Q You feel -

A Probably I did, I don't know. I don't recall.

Q Either you did or you didn't. A I don't recall. I don't recall. . . . .

Q [I]f you didn't commit the event charged, would have [pled] guilty?

A Mr. Bell, I have never been in a situation such as this. I never had any problems at all. In fact I don't even have traffic tickets. I have to trust - I had to trust in my attorney in the same way that they're trusting you.

Q Did you -

A I did - I did what he told me to do.

At the conclusion of the evidence, the judge summarized the facts of the matter, including plaintiff's complaints of high blood pressure and her use of prescription medication to control it following the event at issue. The judge determined that plaintiff had been credible in her testimony, whereas defendant had not. The judge stated:

Mr. Pinillos' testimony was not credible primarily because of the evasive nature of his testimony. When asked about the criminal charges brought against him, about his guilty plea [to] criminal charges stemming from this incident, about his guilty plea, he was evasive. He testified that he simply told the judge what his lawyer told him [to] say. That he first said that he didn't - tell why he was guilty, then he said he probably did and then he said he didn't recall. This, the evasive nature of this testimony, the court found to be not credible, not to - the credibility of the Defendant and so for that reason [the court] does not credit his version of what transpired here, which is that the Plaintiff allegedly was flirting with him. . . . .

So in light of the evasive nature of his testimony, which dramatically impacted his credibility, the court credits the testimony of the Plaintiff. She was straightforward. The court does not accept that this is a made up story, particularly in light of the guilty plea, the acknowledgment to the employer and the acknowledgment here in court at least to an extent of the nature of the incident.

The judge thereupon awarded a judgment to plaintiff on the first and third counts of her complaint, alleging sexual assault and intentional infliction of emotional distress. With respect to damages, the judge stated:

And in terms of the damages, in light of the permanent nature of the symptomatology from which the Plaintiff suffers and the intentional and coercive nature of the acts of the Defendant, as the court has found them, the court enters judgment in favor of the Plaintiff, both on the compensatory and punitive aspects of this claim in the amount of $50,000.

This appeal followed.

On appeal, defendant claims that the court committed plain error in considering evidence of high blood pressure in establishing plaintiff's damages without expert testimony that there was a causal relationship between plaintiff's condition and defendant's conduct. We agree, rejecting plaintiff's claim that her lay testimony was sufficient to establish causation.

We have held in a case involving a three-year history of medical complaints and treatment following an automobile accident, as to which there was no expert testimony:

A plaintiff must prove by a preponderance of the evidence that his injuries were causally related to the accident in question. E.g., Botta v. Brunner, 26 N.J. 82, 90 (1958); Dalton v. Gesser, 72 N.J. Super. 100, 111 (App. Div. 1962). With regard to meeting this burden it has been said: "* * * where a claimed disability is the natural result of the injuries sustained, the jury may, without expert opinion, find that the injuries caused such disability. However, when an injury is such as to require skilled men to determine its cause and extent, the question is one of science, and must be established by skilled professional persons." 25A C.J.S. Damages § 162(5), p. 91.

We believe that here, where much of the claim of pain and suffering for three years after the accident is subjective and not obviously related to an identifiable injury, expert testimony was required to prove causation. [Kelly v. Borwegen, 95 N.J. Super. 240, 243-44 (App. Div. 1967).]

See also Tormenia v. First Investors Realty Co., Inc. 251 F.3d 128, 132 (3d Cir. 2000) (discussing New Jersey law); Kennelly-Murray v. Megill, 381 N.J. Super. 303, 311 (App. Div. 2005) (nexus between automobile accident and cancerous condition required expert testimony because the causal link could not be based upon common knowledge); J.W. v. L.R., 325 N.J. Super. 543, 548 (App. Div. 1999) ("If plaintiff seeks to prove causation of a current medical or psychological condition, of course, competent expert testimony would be required."); Allendorf v. Kaiserman Enters., 266 N.J. Super. 662, 672 (App. Div. 1993); N.J.R.E. 702.

Here, plaintiff's training as an EMT was sufficient to permit her to take her own blood pressure. However, as a high school graduate, she lacked the skill, training and experience to properly determine whether her elevated blood pressure was the result of defendant's conduct, particularly since plaintiff admitted to having a pre-existing heart condition. Similarly, there is no evidence that the judge was qualified to draw a conclusion as to causation. It being impossible to ascertain how much of the judge's verdict reflects the testimony that was not supported by medical evidence, we reverse for a new trial.

Defendant also claims that the court erred in considering defendant's "guilty plea" in the criminal action instituted by plaintiff. We agree. N.J.S.A. 2C:43-12 and -13, governing PTI, do not require a guilty plea as a condition for entry into the program. Indeed, N.J.S.A. 2C:43-12e provides:

At any time prior to trial but after the filing of a criminal complaint, or the filing of an accusation or the return of an indictment, with the consent of the prosecutor and upon written recommendation of the program director, the assignment judge or a judge designated by him may postpone all further proceedings against an applicant and refer said applicant to a program of supervisory treatment approved by the Supreme Court.

Further, N.J.S.A. 2C:43-13b provides that during the period of supervisory treatment "the charge or charges on which the participant is undergoing supervisory treatment shall be held in an inactive status," and N.J.S.A. 2C:43-13d provides: "Upon completion of supervisory treatment, and with the consent of the prosecutor, the complaint, indictment or accusation against the participant may be dismissed with prejudice." Thus there was no factual foundation for counsel's questions with respect to defendant's guilty plea - a fact that is clear from the statutory language that we have quoted.

We have held:

The control of examination, both direct and cross, resides in [the trial judge], to the end that the proofs may be kept within reasonable bounds. His discretion in this respect is a broad one, and we will not interfere with its exercise absent a clear abuse of that discretion. [Cestero v. Ferrara, 110 N.J. Super. 264, 273 (App. Div. 1970), aff'd, 57 N.J. 497 (1971).]

Our review of the record in this case satisfies us that the trial judge misused his discretion and committed plain error when he permitted cross-examination with respect to defendant's claimed "guilty plea" and when he relied on that plea and defendant's uncertain testimony regarding its entry in both finding defendant's testimony not credible and utilizing the purported plea as a basis for a finding of liability.*fn1

Defendant claims additionally that he was improperly deprived of his right to a jury trial, and any waiver on his part was unknowing and not voluntary. In this case, both parties initially demanded a trial by jury. Rule 4:35-1(d), governing withdrawal of such a demand, provides:

When trial by jury has been demanded as provided by this rule the trial of all issues so demanded shall be by jury, unless all parties or their attorneys, by written and filed stipulation or oral stipulation made in open court and entered on the record, consent to trial by the court without a jury . . . .

On the day that this matter was called to trial, defendant requested the assistance of a Spanish interpreter. Because he had not made the request in advance, a discussion took place on the record as to whether an interpreter was needed. At that time, plaintiff's counsel stated:

If I may, Your Honor, I think the interest of justice require[s] it. I believe that there may be some issues concerning [Pinillos's] understanding and probably it would be in everyone's best interest if in fact there were an interpreter assigned. That's how I perceive it in my dealings with Mr. Pinillos.

The trial judge concurred, stating: "I'm having enough difficulty understanding Mr. Pinillos myself that I think an interpreter would be recommended here."

Almost immediately thereafter, the judge expressed his understanding that the parties had waived trial by jury, and both plaintiff's counsel and defendant stated: "That's correct Your Honor." In the circumstances presented, in which the right to a jury trial was not explained to defendant on the record, and it is unclear that he understood the consequences of any waiver to which he agreed, we have serious doubt as to whether that alleged waiver was knowing and voluntary. However, we need not reach the issue, because defendant is entitled to reassert his jury trial demand upon retrial under principles that we recently stated in the context of a mistrial in State v. Campbell, 414 N.J. Super. 292, 297-302 (App. Div. 2010).

As a final matter, we note that the judge's damages award was improper, in that he failed to set forth, separately, the amount of compensatory and punitive damages. Additionally, in awarding punitive damages, the judge failed to follow the procedures set forth in the Punitive Damages Act, N.J.S.A. 2A:15-5.9 to -5.17. In that regard, there is no evidence that he complied with N.J.S.A. 2A:15-5.12a by determining whether the right to a punitive damage award had been established by clear and convincing evidence; there is no evidence that he considered the factors warranting such an award as required by N.J.S.A. 2A:15-5.12b; and he failed to set the amount of those damages after consideration of the factors set forth in N.J.S.A. 2A:15-5.12c. Further, because the judge failed to set the amount of punitive damages, he was unable to comply with N.J.S.A. 2A:15-5.14a, which requires that before entering judgment for an award of punitive damages, "the trial judge shall ascertain that the award is reasonable in its amount and justified in the circumstances of the case, in light of the purpose to punish the defendant and to deter that defendant from repeating such conduct."

As a consequence of the foregoing trial errors, the judgment in plaintiff's favor is reversed and the matter is remanded for a new trial.

Reversed and remanded.

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