January 22, 2013
DINAH RUIZ, PLAINTIFF-APPELLANT,
MENAHEM A.V. BUTAVIA, DEFENDANT-RESPONDENT.
On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-10094-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued November 27, 2012 -
Before Judges Reisner and Harris.
In this automobile accident case, plaintiff Dinah Ruiz appeals from a December 22, 2011 order in favor of defendant Menahem A.V. Butavia, denying plaintiff's motion for a new trial or for judgment notwithstanding the verdict. For the reasons that follow, we affirm.
The accident occurred at around midnight on November 30, 2005, as plaintiff was driving her boyfriend's 2003 Nissan Pathfinder sport utility vehicle northbound on the Garden State Parkway in a rainstorm. Defendant's 1983 BMW sedan was behind plaintiff's vehicle, traveling in the same direction. As plaintiff drove up the incline of the Driscoll Bridge, she lost control of her vehicle, and the Pathfinder spun clockwise and crashed into the right-hand guardrail. The central issue in the trial was whether plaintiff lost control of the Pathfinder due to weather and road conditions, or whether defendant's car hit the rear of plaintiff's vehicle and caused the accident.
Plaintiff testified that it was pouring rain, the roadway was deserted, and she was traveling at or below the speed limit in the middle lane. However, as she drove up the incline of the bridge, she saw headlights in her rearview mirror, and perceived that there was a vehicle "coming up fast" in the right lane. According to plaintiff, defendant's car began passing her car on the right side. She stated: "As I'm driving -- up next to me I feel a shove on the back of my car. . . . It started hydroplaning." At that point, she lost control of the Pathfinder, which spun around and hit the guardrail.
After the accident, plaintiff got out of her car and walked over to defendant's car, which was parked ahead of hers on the side of the highway. Defendant let plaintiff sit in his car and helped her to call her boyfriend. When the police arrived, she told them, in response to their questions, that she had not been drinking. However, she did not tell them that defendant hit her car or otherwise caused the accident.
Plaintiff testified that she was in tremendous pain after the accident. She underwent extensive medical treatment for her injuries, which included brain injury and the loss of one eye. She testified that it was not until three weeks after the accident that she started to "recall the accident itself" and "that's when I realized that guy hit me."
On the issue of liability, plaintiff presented testimony from an accident reconstruction expert, Peter Cokelet, who was a former police officer. According to Cokelet, the 2003 Pathfinder was a "four wheel drive slash all wheel drive" vehicle. He explained that in an all wheel drive vehicle, power "is going to the wheels all the time" and an on-board computer would adjust the power between the various wheels if it detected "slippage." According to Cokelet, after he analyzed all of the facts pertinent to the accident, he concluded that plaintiff's vehicle would not have spun out of control without "an outside force" striking it. He explained that, on a wet road, it would require relatively little force to cause the vehicle to go into a spin.
On cross-examination, Cokelet admitted that he had never examined plaintiff's Pathfinder, but instead relied on viewing photographs of the vehicle. However, he had consulted with a mechanic concerning "the operation of the vehicle being all wheel drive." He did not examine any literature about the 2003 Pathfinder to determine whether it was a two-wheel drive vehicle with a switch-activated four wheel drive feature. Cokelet also admitted that he saw no physical evidence of contact between the Pathfinder and defendant's car. He observed damage to the left rear of the Pathfinder, but he assumed that was caused when the vehicle struck the guardrail as it was spinning.*fn1
Trooper Gerard Holtz testified that when he arrived at the accident scene at about 12:15 a.m., it was raining heavily and the road was wet. Plaintiff told him that she did not remember what happened. The Trooper determined at the scene that it was a one-car accident, because he saw no evidence that a second vehicle was involved.
Defendant testified that on the night of the accident, it was very rainy and windy, and the roadway was wet. When he first observed plaintiff's car, it was traveling about ten car lengths ahead of him in the middle lane. He explained that just before the bridge, the highway split, with one branch going "to [Route 440]" and the other going over the bridge. Before the bridge, plaintiff changed lanes to the right. As they went up the incline of the bridge, he saw her vehicle start spinning, hit the guardrail several times as it spun, and come to rest with the front end against the guardrail. He denied that his vehicle passed the Pathfinder on the right and denied that his car hit the Pathfinder.
Defendant testified that after the accident, he pulled over in front of the Pathfinder, called 9-1-1 and went looking for the other driver. He testified that he found her leaning on the guardrail and invited her to sit in his car and get out of the rain. He could see that her eye was injured. Plaintiff said nothing to defendant about his car allegedly hitting hers. She kept repeating that she was afraid she would lose her eye.
Defendant testified that after the accident, plaintiff's boyfriend called him and thanked him for his help.
On cross-examination, defendant was questioned about inconsistencies in his description of which lane his car was in, relative to plaintiff's car, just before the accident happened. Defendant insisted that he did not tell Trooper Holtz that his car was traveling in the lane to the right of plaintiff's lane of travel.
Defendant presented testimony from John Desch, an accident reconstruction expert, who was also a licensed professional engineer. Based on his review of the discovery documents, photographs of the Pathfinder, and an "actual inspection of the rear bumper of the Pathfinder," Desch concluded that there was no contact between defendant's car and the Pathfinder. He opined that plaintiff lost control of the Pathfinder due to "other factors." He explained in some detail that the BMW, which was smaller and lighter than the Pathfinder, could not have caused a spin-out unless it hit the Pathfinder with enough force to cause visible damage to both vehicles. But there was no evidence of such contact on either vehicle.
On direct examination, Desch testified that the SE model Pathfinder was "a four wheel drive vehicle" which "can actually operate in two wheel drive. It requires the . . . operator to select the four wheel drive mode in order to go into four wheel drive" by flipping a switch. There was no objection to that testimony. Desch also explained how accelerating up an incline in a torrential rain storm could cause loss of traction and spinning. He testified that this sometimes happened with "rear wheel drive vehicles." He also testified that on a very wet roadway it was possible to lose control of a car even when driving below the posted speed limit.
On cross-examination, defense counsel confronted Desch with a software program Desch had supplied along with his expert report, describing the features of the Pathfinder. He then asked Desch "where did you find on this document that it has a two wheel drive or a four wheel?" Desch responded, "Well, I know that it does because --." Defense counsel interrupted Desch by asking, "How?" Desch responded, "Well, if you go to the internet, you'll find that there's information about that vehicle that differentiates between the SE and the LE." Counsel then asked Desch if he had testified earlier that there was "a switch." Desch replied "Yes," and counsel asked where he got that information. Desch explained that he got the information from the internet "the other day." Plaintiff's counsel asked if this information was in his report, and Desch said it was not. At this point, plaintiff's counsel objected to the testimony; defense counsel argued that it was proper rebuttal to plaintiff's testimony that the vehicle was "four wheel drive."
In answer to the judge's questions, both counsel admitted that, even though traction was an issue in the case, they had never explored the issue of four wheel drive versus all wheel drive at depositions. However, because defense counsel had not served a supplemental expert report on the issue, the judge concluded the information should not be before the jury. The judge asked plaintiff's counsel what remedy he sought, and counsel asked the judge to instruct the jury to disregard the testimony. Accordingly, the judge instructed the jury:
Any testimony by Mr. Desch about how the drive train of the 2003 Nissan works, whether it [is] two wheel drive, four wheel drive, or all wheel drive, I'm instructing you that any testimony by . . . this witness as to that issue, you are to disregard it and don't consider it.
On this appeal, plaintiff argues that her attorney was "sandbagged" when the defense expert testified that the Pathfinder had four-wheel drive rather than all-wheel drive - information that was not in his expert report. Plaintiff's counsel asked that the testimony be stricken and requested a curative instruction. In response, Judge Joseph L. Rea gave a detailed instruction.
Plaintiff now contends that the judge should have sua sponte declared a mistrial, although her counsel did not request that relief and instead asked for a curative instruction. We find that argument unpersuasive. First, we find that plaintiff, having asked for a curative instruction and having been given one, is barred by the doctrine of invited error from now contending that the judge should have declared a mistrial. See N.J. Div. of Youth & Family Servs. v. M.C. III, 201 N.J. 328, 340 (2010). Plaintiff asserts that her trial counsel intentionally refrained from asking for a mistrial because the trial was almost over and a mistrial, if granted, would have entailed the expense of a re-trial. That is no excuse. Before the testimonial portion of the trial started, Judge Rea admonished both counsel that "[i]f this case ends up in a mistrial you can be assured that the offending party is going to be paying the costs of the non-offending party. . . . And perhaps other sanctions." Consequently, it should have been clear to plaintiff's counsel that if the defense precipitated a mistrial, the court would likely impose plaintiff's litigation costs on the defense side. And, since the defense was being funded by an insurance company, payment would not have been an issue.
Second, the record does not support a conclusion that defense counsel intentionally "sandbagged" the plaintiff. Plaintiff's counsel did not object when Desch first testified that the Pathfinder was a four-wheel drive vehicle. Instead, apparently as a matter of strategy, he waited for cross-examination and showed Desch an attachment to his expert report that described the Pathfinder. Counsel then asked an open-ended question about "how" Desch knew what kind of drive train the Pathfinder had, and he got an explanatory answer that was unfavorable to his client.
The answer contained information beyond the four corners of the expert's report, and the judge instructed the jury to disregard it. We presume that jurors will follow a judge's curative instructions. See State v. Wakefield, 190 N.J. 397, 490-91 (2007), cert. denied, 552 U.S. 1146, 128 S. Ct. 1074, 169 L. Ed. 2d 817 (2008). We find no abuse of the trial judge's discretion in giving a curative instruction, as plaintiff's counsel requested, instead of spontaneously declaring a mistrial. We agree with Judge Rea's analysis of this issue in his oral opinion of December 22, 2011, denying plaintiff's motion for a new trial. We find no basis to disturb the verdict.
Defendant's remaining arguments require no discussion beyond the following comments. See R. 2:11-3(e)(1)(E). Plaintiff contends that defense counsel unfairly implied that plaintiff might have been inclined to cast blame on others. We conclude that the questioning on that point was a fair response to testimony from plaintiff's expert concerning plaintiff's psychological damages.
Plaintiff presented testimony from Dr. Lynette McKeon, a psychologist, that as a result of brain injury suffered in the accident, plaintiff needed "psychological and psychiatric intervention to deal with severe anger." On cross-examination, defense counsel asked Dr. McKeon whether a person "who has anger management issues" could "create scenarios to point blame at others" even if those scenarios might be inaccurate. Dr. McKeon agreed that could happen.
In answer to counsel's further questions, Dr. McKeon testified that trying to shift blame to others could be a "possible symptom of anxiety or depression" although it was not a symptom that she had "seen as being reported by [plaintiff]." There was no objection to that testimony. On re-direct, Dr. McKeon clarified that she had never expressed an opinion that plaintiff "felt guilty about blaming someone else for an accident." She also testified that plaintiff had not reported any feelings of guilt. Defense counsel attempted a similar line of questioning with plaintiff's psychiatrist, but the psychiatrist testified that it would be normal to be angry at the person who caused the accident, not that plaintiff would unfairly blame someone who did not cause the accident.
Taken in context, we find nothing unfair or improper in defense counsel's line of questioning. Plaintiff put her psychological problems in issue, and the possible effect of those problems on her perception of past events - including the accident - was relevant to her credibility. Plaintiff testified that she did not realize that defendant caused the accident until three weeks after it occurred. Whether that realization was a product of her accurate recollection of facts, or her need to blame someone else for her injuries, was an appropriate subject for cross-examination of her psychological expert. However, we also conclude that, taken in context, this line of questioning was not significant and did not have a clear capacity to produce a miscarriage of justice. See R. 2:10-2.
As the trial judge accurately noted during the argument of the new trial motion, plaintiff had a very difficult case. The accident occurred during a torrential downpour. Her own expert could not identify any marks on the vehicles that would indicate defendant's car hit the Pathfinder. Plaintiff spoke to the investigating police officer right after the accident and did not tell him that defendant's car hit her vehicle. Apparently, she did not tell anyone that information until three weeks after the accident when she allegedly first realized that the accident was defendant's fault. Defendant testified, without contradiction, that plaintiff's live-in boyfriend called him after the accident and thanked him for being so helpful. It is not surprising that the jury found defendant's version of events more credible than plaintiff's version.
Judge Rea conducted the proceedings with scrupulous fairness toward both parties and with strict adherence to the Rules of Evidence. Taken in context, plaintiff's claim of cumulative error cites "minutiae" rather than matters of substance. See Pellicer v. St. Barnabas Hospital, 200 N.J. 22, 55-56 (2009). The verdict was not a miscarriage of justice and was not against the weight of the evidence. See Dolson v. Anastasia, 55 N.J. 2, 6 (1969); Building Materials Corp. of America v. Allstate Ins. Co., 424 N.J. Super. 448, 486 (App. Div.), certif. denied, 212 N.J. 198 (2012).