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Susan A. Becker v. Dawn M. Babcock


September 14, 2012


On appeal from Superior Court of New Jersey, Law Division, Essex County, Docket No. L-4942-08.

Per curiam.


Argued May 15, 2012 Before Judges Payne, Reisner and Hayden.

Plaintiff, Susan Becker, appeals October 6, 2011 orders entering judgment in favor of defendant, Dawn M. Babcock, and denying a new trial or additur, following the return of a jury verdict awarding zero damages in plaintiff's auto negligence case. In it, plaintiff alleged permanent injuries to her neck, back and left shoulder as the result of the stipulated negligence of Babcock, who ran a stop sign and broadsided plaintiff's BMW sports car with her SUV Jeep, causing damage to the area of the rear wheel well on the driver's side. The per quod claim of plaintiff, Richard Becker, and plaintiff's claim against the Jeep's owner, defendant, Arvilla M. Decker, were dismissed at trial.

On appeal, plaintiff argues that the trial judge erred in permitting the introduction of evidence, on cross-examination of plaintiff, regarding prior motor vehicle accidents in which plaintiff had claimed permanent injuries, occurring in 1991 and 1999. She argues that the award of zero damages constituted a miscarriage of justice, and she additionally argues that the statement by defense counsel in his summation that plaintiff was obligated to prove permanent injury was a misstatement of the law, improper and prejudicial. We reverse.


Prior to trial, plaintiff's counsel brought a motion in limine to bar any reference to motor vehicle accidents occurring on December 2, 1991 and May 26, 1999 for which plaintiff filed suit claiming that she sustained permanent injuries and received money in settlement. The motion was argued in chambers, and the judge's decision was not placed on the record. For that reason, we do not know the arguments made by counsel or the basis for the judge's decision. However, it is clear that the judge denied the motion, and for that reason, the subject of the prior accidents was addressed by plaintiff's and defense counsel in their opening statements, during the direct and cross-examination of plaintiff and in closing arguments, and by the judge in the jury charge.

Facts disclosed in the direct and cross-examination of plaintiff established that, in the 1991 accident, plaintiff had injured her right shoulder, low back, right leg, right side of her neck, and her upper back. Her car was totaled, and she missed two months of work. Diagnostic procedures, consisting of EMGs, MRIs*fn1 and somatosensory evoked potential tests were performed, and treatment, consisting of physical therapy and injections to the right shoulder took place. Following the accident, plaintiff filed suit, claiming injuries to her right shoulder, lumbar spine and upper back were permanent. The suit was settled for an undisclosed amount of money. Despite the claim of permanency, plaintiff testified that her symptoms had resolved by 1993.

In 1999, plaintiff's vehicle was rear-ended in a three-car chain collision. Thereafter, she underwent cervical and lumbar MRIs and a myelogram and was treated for two years with physical therapy and non-steroidal anti-inflammatory drugs for right leg, low back, neck, and right shoulder pain. Although plaintiff admitted that none of the diagnostic tests conducted in 1999 was positive, again, plaintiff, a practicing nurse with a master's degree in nursing, claimed in litigation that her injuries were permanent, and that they made it impossible for her to bowl or play golf, and they made sexual activity "excruciating." Yet, according to plaintiff, all symptoms from the 1999 accident had resolved in 2000 or 2001, leaving her symptom-free until the August 12, 2006 accident that was the subject of the present trial.

Neither the 1991 nor the 1999 accident was disclosed to Marc Allan Cohen, M.D., the doctor who treated plaintiff in 2006 for injuries that plaintiff alleged consisted of low back, neck and left shoulder pain. Dr. Cohen's office records indicated that, upon plaintiff's first visit to the doctor on August 18, 2006, she denied prior injuries to the neck or back. When asked about her non-disclosure on direct examination, plaintiff stated that she did not recall whether Dr. Cohen had asked for her medical history. On cross-examination, the following exchange occurred:

Q And Dr. Cohen, and I'm sure you can appreciate this, it's important for [a] medical provider to have a full history, including prior accidents, prior injuries in order to make a proper diagnosis and prognosis. Isn't that correct?

A No.

Q You don't believe that's true?

A It's individual what the doctor would want. I can't say what a doctor would want.

Additionally, it was disclosed that plaintiff had failed to reveal to Dr. Cohen a diagnosis of rheumatoid arthritis in 2005.

Plaintiff testified, with regard to the injuries sustained in 2006, that she had been seen by Dr. Cohen for low back pain from August 2006 to February 2007, and that she had received nineteen physical therapy treatments for what the doctor had described to her as a "bulge." She conceded that the physical therapy had helped her condition.

Plaintiff returned to treatment on May 11, 2007, complaining about severe pain in the neck and left shoulder after gardening. Dr. Cohen diagnosed a herniated disc at C4-5. She was again treated conservatively with physical therapy, which apparently was not commenced until July 17, 2008 and concluded on October 7, 2008, when plaintiff declared herself much better. She declined to return to Dr. Cohen, citing scheduling complaints.

Defense examining doctor, Edward Decter, M.D., conceded that plaintiff had sustained a non-permanent "sprain" in the low back as the result of the August 2006 accident. He found plaintiff's later-manifesting neck and shoulder complaints to have been unrelated to the accident. He found no permanent injuries.

Neither Dr. Cohen nor Dr. Decter was permitted to address plaintiff's 1991 or 1999 accidents. Following plaintiff's testimony, plaintiff had called Dr. Cohen as a witness. After giving testimony regarding plaintiff's first office visit on August 18 and the doctor's findings at that time, plaintiff's attorney posed a hypothetical question that described plaintiff's 1991 and 1999 accidents and stated that all diagnostic tests were negative. He then asked: "And would that be consistent, those facts, with a patient coming to [y]our office and when you ask them did they have any prior history of neck and back problems, and a patient saying no?" Defense counsel objected to the question, noting that Dr. Cohen had never rendered an opinion regarding the effect of the two prior accidents, since they were unknown to him. Additionally, counsel noted that the hypothetical could not be supported by evidence of record. The following colloquy then occurred:

THE COURT: Okay, I've got [to] be consistent here, I've been worrying about this since the beginning of the case. Decter says - I know I'm talking about Decter first, which is odd. Decter says there's no permanent injury.

[PLAINTIFF'S COUNSEL]: Right. THE COURT: Therefore, he doesn't address the earlier accidents.

[PLAINTIFF'S COUNSEL]: Correct. Judge, I was going to make a motion for a mistrial, because even the doctor opines about it, Decter doesn't say there's any causation or relationship between the -

THE COURT: I - I understand. Maybe the most consistent thing I can do is just to not have either doctor talk about the earlier accidents.

[PLAINTIFF'S COUNSEL]: That's what I was going to ask for[, a] curative charge.

THE COURT: And I'll let you say in closing. No, not going to do a curative charge, why don't you say in closing neither doctor gave any opinion on this. I'm inclined to do that. I mean I know I'm trying to - apples and oranges.

Following further discussion of a similar nature, the judge addressed the jury, stating, somewhat erroneously:

Okay. I'm sustaining the objection. Basically, ladies and gentlemen of the jury, there were two previous accidents, neither doctor was of the opinion that these two previous accidents caused whatever is wrong with the plaintiff, so I'm just not going to waste your valuable time on the two previous accidents.

Dr. Cohen then continued with his expert testimony regarding plaintiff's 2006 injuries, followed by testimony from Dr. Decter.

In summation, following the conclusion of testimony, defense counsel stated at the beginning of his argument:

In his opening my adversary said that plaintiff doesn't have to prove that the injury that she suffered was permanent, and I disagree. The judge [will] charge each . . . and every element of the claim that plaintiff is making must be proved, nothing is assumed, each and every element must be proved. . . . There's been no evidence in

[t]his case to establish that the plaintiff suffered any type of permanent injury in this accident on August 12th, 2006.

Additionally defense counsel addressed plaintiff's prior injuries, arguing that because plaintiff did not inform Dr. Cohen of their existence, the doctor's opinions were not based on all of the facts.

Plaintiff's counsel countered these arguments by characterizing plaintiff's prior injuries as soft-tissue, and arguing that "permanency" was just lawyer's talk, and that plaintiff's claims of permanency were, as stated, just "claims." Additionally, counsel emphasized, with respect to the 2006 injuries, that plaintiff did not have to prove permanency.

In his instructions to the jury, the judge charged that "[a] plaintiff who is awarded [a] verdict is entitled to a fair and reasonable compensation for any permanent or temporary injury resulting in disability to or impairment of her faculties, her health, her ability to participate in activities proximately caused by the accident."

With respect to plaintiff's prior accidents, the judge initially charged:

Now, I told you what is in the evidence, what you have to look at, the witnesses, the exhibits, the photographs. What you should not consider are the two prior accidents. I allowed some testimony on the two prior accidents or claims, and defendants had the right to bring these to your attention, and no one did anything wrong. However, there's no assertion in this case that any injury, any pain she might have[,] resulted from those two prior accidents, all right. They are - they're substantively [ir]relevant to this case.*fn2

Defense counsel objected to this charge, and following a side-bar conference, the judge further instructed the jury:

I just want to make absolutely clear, I thought [I] did. I - I meant no criticism whatsoever of either counsel when I said that the - although there's no assertion [that] the prior accidents caused or contributed to her current condition, defendant had an absolute right to bring up those prior claims, there's not wrong [sic] in that. I think I said that to you, but I want to be clear that they're not - that there's no assertion that the prior claims caused whatever the condition is.

As stated previously, the jury awarded plaintiff no damages. A subsequent motion for a new trial or additur was denied. In reaching his decision on the new trial motion, the judge stated that he "was not happy with the jury verdict" but that it did not shock his conscience. He observed that plaintiff may have been "a little bit unlucky," in that her prior attorneys "may have overstated things a bit" and that "did make her look a little less honest th[a]n she probably was." Following the issuance of orders denying a new trial and entering judgment, plaintiff filed the present appeal.


On appeal, plaintiff argues that the trial judge erred in permitting the introduction of evidence regarding the 1991 and 1996 accidents. We agree.

N.J.R.E. 402 provides: "Except as otherwise provided in these rules or by law, all relevant evidence is admissible." "'Relevant evidence' means 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. In determining whether evidence is relevant, "the trial court should focus on 'the logical connection between the proffered evidence and a fact in issue[,]' or 'the tendency of evidence to establish the proposition that it is offered to prove.'" Wymbs v. Twp. of Wayne, 163 N.J. 523, 534 (2000) (quoting Green v. N.J. Mfrs. Ins. Co., 160 N.J. 480, 492 (1999) (citations omitted)).

In a personal injury context,

[a] party seeking to present evidence of a prior injury or condition relating to an issue of medical causation must show that the evidence has some "logical relationship to the issue in the case." Paxton v. Misiuk, 34 N.J. 453, 460 (1961). Moreover, this logical relationship generally must be established by appropriate expert medical opinion. See Ratner v. General Motors Corp., 241 N.J. Super. 197, 203-06 (App. Div. 1990). The general test of admissibility of such evidence is "one of possibility rather than probability." Paxton v. Misiuk, supra, 34 N.J. at 461.

[Allendorf v. Kaiserman Enters., 266 N.J.

Super. 662, 673 (App. Div. 1993).]

In the present case, a logical relationship between the injuries sustained by plaintiff in her 1991 and 1999 accidents and those sustained in 2006 was not established by expert medical opinion. Rather, Dr. Decter, the only expert with knowledge of the prior injuries, did not find them to be causally related to the lumbar sprain that he found had occurred in 2006. Absent some evidence of the possibility of such a causal relationship, it would have been error to have cross-examined Dr. Cohen on that subject. Thus, the trial judge was correct in ruling that evidence of the prior injuries could not be utilized in the direct or cross-examination of the experts testifying in this matter to establish aggravation of a pre-existing condition or a lack of foundation for the opinion of plaintiff's expert.

Nonetheless, without adequately explaining to the jury the limited grounds on which the judge found the evidence at issue to be relevant, see Lavin v. Fauci, 170 N.J. Super. 403, 408 (App. Div. 1979) (requiring limiting instruction when evidence admissible for only one of two purposes), the judge permitted the introduction, through cross-examination of plaintiff, of extensive testimony regarding the earlier injuries, presumptively as impeaching plaintiff's credibility in claiming that her present injuries were permanent in nature. We conclude that such use was improper on several grounds.

First, testimony regarding the prior accidents was elicited to establish that plaintiff had been untruthful on more than one occasion and to suggest that, as a result, her present claims were untruthful, as well. However, our review of the extensive testimony that was elicited from plaintiff on the subject of her prior injuries satisfies us that its minimal probative value in the context in which it was introduced was substantially outweighed by the risk of undue prejudice, of confusion of issues, and of misleading the jury. N.J.R.E. 403; Green, supra, 160 N.J. at 495-502 (finding minimally probative evidence that plaintiff had left the Army for racially biased reasons was improperly used to attack his credibility). Although permanency was claimed in connection with the injuries sustained in both of the earlier accidents, the evidence suggests, as plaintiff's counsel argued, that the claim of permanency was, in fact, no more than aspirational language implicitly adopted by plaintiff because the injuries were thus described in the complaints filed on plaintiff's behalf. Thus, the fact that plaintiff "claimed" permanency on two prior occasions had little probative value on the issue of whether the injuries were in fact permanent and whether plaintiff had been untruthful in adopting that characterization at the time the complaints were filed.

Moreover, although plaintiff received compensation in both cases, no evidence was presented that would support the conclusion that her recovery was based on an acceptance of the claim of permanency by any party, or that her injuries were actually characterized by plaintiff, plaintiff's treating physician or her attorneys as permanent when seeking resolution of her claims. Alternatively, because we do not know when the settlements took place, it is possible that plaintiff's physical complaints had not resolved, and that she and her physician genuinely regarded them to be permanent in nature.

Further, because there was no proof that the injuries occurring in 2006 were the same as those sustained earlier, the fact that the permanency of plaintiff's prior injuries may have been mischaracterized in the complaints filed on her behalf was of little relevance to the issue of what quantum of damages to award that the jury was required to resolve in connection with the 2006 accident. As a consequence, we conclude that the evidence was improperly admitted and, in light of the jury's verdict, that its admission likely prejudiced plaintiff.

Having found reversible error to have occurred in this regard, we need not address plaintiff's remaining arguments.

However, we observe that the argument in closing made by defense counsel that plaintiff was required to prove that the injuries suffered in the 2006 accident were permanent had the capacity to mislead the jury. While intended to support the argument that if permanent injuries were claimed, they must be proven, that argument was not clearly expressed, and thus counsel's statement appeared to misstate the law applicable to a no-threshold case. Although, thereafter, the judge instructed the jury that it was to award compensation for any permanent or temporary injury sustained by her, the instruction did not directly address defense counsel's apparent misstatement, and thus may not have cured any misimpression occurring as the result of defense counsel's comments. We trust that, upon retrial, such a circumstance will not again arise.

Reversed and remanded for a new trial.

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