August 14, 2013
EVODIO VELIZ-SANCHEZ, Plaintiff-Respondent,
ALEJANDRO BONOLA-SILVA and A1 TAXI EXPRESS, INC., Defendants-Appellants.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued August 6, 2013
On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-2865-10.
David A. Avedissian argued the cause for appellants.
Eugene S. Wishnic argued the cause for respondent (Eugene S. Wishnic, P.C., attorney; Mr. Wishnic and Mark J. Cintron, on the brief).
Before Judges Lihotz and Guadagno.
Defendants Alejandro Bonola-Silva and A1 Taxi Express, Inc. (A1 Taxi) appeal from the entry of judgment following a jury trial in favor of plaintiff Evodio Veliz-Sanchez. The total jury award of $101, 700, included $100, 000 in compensatory damages and $1, 700 in pre-judgment interest. We affirm.
On January 10, 2009, a vehicle driven by defendant Bonola-Silva struck a vehicle being driven by plaintiff. Plaintiff filed a personal injury complaint against Bonola-Silva and A1 Taxi, the owner the vehicle Bonola-Silva was operating. At trial, the attorney representing both defendants, stipulated to liability and acknowledged Bonola-Silva's responsibility for causing the accident. The trial continued solely on the issue of damages.
After three days of trial and the close of all evidence, defendants' attorney claimed, for the first time, that the stipulation of liability was limited to Bonola-Silva and did not extend to A1 Taxi. The trial court denied A1 Taxi's motion for a directed verdict and the jury returned a verdict in plaintiff's favor, against both defendants.
On appeal, appellants raise two issues. First, Bonolo-Silva claims his stipulation was limited to his individual liability and he did not concede liability as to A1 Taxi. Second, appellants claim the trial court erred in not permitting a defense expert, Dr. Robert Bercik, to testify regarding plaintiff's "symptom magnification, " or to present any conclusion suggesting plaintiff was not credible. We reject both arguments and affirm.
Our courts favor stipulated facts because they serve "to avoid the expense, trouble, and delay of coming forward with proofs when certain otherwise-contestable facts are admitted." Negrotti v. Negrotti, 98 N.J. 428, 432 (1985). Stipulations of fact are binding as long as they are "definite and certain" and assented to by the parties. N.J. Div. of Youth & Family Servs. v. J.Y., 352 N.J.Super. 245, 265 (App. Div. 2002) (citing Kurak v. A.P. Green Refractories Co., 298 N.J.Super. 304, 325 (App. Div.), certif. denied, 152 N.J. 10 (1997)). However, stipulations must be construed "with reference to their subject matter and in light of the surrounding circumstances." Kurak, supra, 298 N.J.Super. at 325.
To determine whether defense counsel's stipulation of liability should be applied to both Bonola-Silva and A1 Taxi, we must consider the stipulation in the context of counsel's statements to the court and to the jury. See Triffin v. Mellon PSFS, 372 N.J.Super. 221, 223 (App. Div. 2004) overruled on other grounds, Triffin v. TD Banknorth, N.A., 190 N.J. 326 (2007).
Prior to trial, the attorney representing both defendants stipulated to liability. During his opening statement to the jury, defense counsel first confirmed he was appearing on behalf of both defendants. ("I represent Mr. Bonola[-Silva] and A1 Taxi Express in this case . . . ."). Then, counsel confirmed that the jury would only be asked to decide the issue of liability:
[W]hat will you be deciding in this case? And very simply in this case, the issue is . . . what injuries did Mr. Veliz sustain and how significant are they? And that's the only issue. And [plaintiff's counsel] stated those issues correctly. We agree that Mr. Bonola[-Silva] is at fault for the accident. We accept responsibility for the damage [that] was caused, but where we disagree is in how severe the damage was that was caused by this accident that happened in June of 2010. So that's the issue in the case.
The trial proceeded in accordance with counsel's stipulation and only proofs as to damages were presented. After the close of all evidence, and after the trial court had called upon defendants' counsel to present his summation, he asked to approach the bench and raised the issue of A1 Taxi's liability for the first time, claiming he stipulated liability as to the driver, but not as to A1 Taxi. When the trial court noted that counsel had never raised this issue before, he responded that he had to wait until the case was over before he could raise the issue. Defendants provide no support for their claim made before the trial court, that the issue could not be raised until the end of trial.
Plaintiff was entitled to rely on the stipulation of liability by the attorney who was representing both defendants. Counsel's amplification of that stipulation in his opening statement to the jury served to confirm that both defendants were only litigating the extent of plaintiff's injuries.
The standard of review, when determining whether a directed verdict was proper at the trial level, is the same as that governing the trial court on a motion for directed verdict.
[I]f, accepting as true all the evidence which supports the position of the party defending against the motion and according him the benefit of all inferences which can reasonably and legitimately be deduced therefrom reasonable minds could differ, the motion must be denied.
[Potente v. Cnty. of Hudson, 187 N.J. 103, 111 (2006) (citations omitted).]
Applying this standard, the record reflects the stipulation of liability was not limited to Bonola-Silva but applied to both defendants. Following the stipulation there was no statement suggesting A1 Taxi was not covered. In that light, the trial judge reviewed the record and correctly denied A1 Taxi's motion for a directed verdict, which we need not disturb.
Defendants called Dr. Robert J. Bercik as an expert in orthopedic medicine to challenge plaintiff's evidence of injury resulting from the accident. Dr. Bercik examined plaintiff and reviewed his medical records, including his MRIs. In his report, Dr. Bercik concluded that plaintiff's complaints were consistent with "symptom magnification." Plaintiff made an in limine motion to bar Dr. Bercik from testifying as to his opinion of symptom magnification. The court granted plaintiff's motion and provided the following reasons:
Credibility is within the sole province of the jury. Whether or not symptom magnification is a medical terminology commonly in usage, regardless of specialty, it is not the concern herein. It is the concern of the potential prejudicial effect on the jury because it does go to something which is within their determination. And so, therefore, Dr. Bercik shall not testify with regard to symptom magnification or any other synonyms that would equate the same thing, whether it be malingering, faking, et cetera. However, as I indicated, he can testify as to his objective findings, as well as the subjective complaints and the opinions that he has reached within a medical -- a reasonable degree of medical --certainty or within his field.
We accord substantial deference to a trial court's evidentiary rulings. Benevenga v. Digregorio, 325 N.J.Super. 27, 32 (App. Div. 1999), certif. denied, 163 N.J. 79 (2000). We will reverse such a ruling only where "it constitutes an abuse of discretion." State v. Feaster, 156 N.J. 1, 82 (1998), cert. denied, sub nom, Kenney v. N.J., 532 U.S. 932, 121 S.Ct. 1380, 149 L.Ed.2d 306 (2001).
The credibility of a witness is solely the province of the jury, and one witness may not comment on the veracity of another. State v. Vandeweaghe, 351 N.J.Super. 467, 481-82 (App. Div. 2002), aff'd, 177 N.J. 229 (2003). Dr. Bercik's conclusion that plaintiff's complaints were consistent with "symptom magnification" was little more than an attack on plaintiff's credibility intended to affect the jury's assessment of his testimony.
Dr. Bercik was permitted, over plaintiff's objection, to testify that he conducted motor and sensory examinations of plaintiff's upper and lower extremities, as well as various other tests, and concluded that he was suffering from "cogwheel weakness, " which was not consistent with an anatomical problem. Dr. Bercik presented his findings that plaintiff had suffered cervical and lumbar sprains, that "his prognosis was good, " and "he had sustained no permanent injury of his cervical spine or his lumbar spine as a result of these sprains."
We are satisfied that the trial court did not abuse its discretion in barring Dr. Bercik from presenting opinion testimony, which despite its label, was in effect, a comment on plaintiff's credibility.