August 20, 2013
SHEDRICK BOXTON and JEMINAT BOXTON, his wife, Plaintiffs-Respondents,
MARIA DOMINGUES, Defendant, and PAULO ALEDE, Defendant-Appellant.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued April 17, 2013
On appeal from Superior Court of New Jersey, Law Division, Essex County, Docket No. L-7469-09.
Stephen A. Rudolph argued the cause for appellant (Rudolph & Kayal, attorneys; Mr. Rudolph, on the briefs).
Scott M. Sinins argued the cause for respondents (Javerbaum, Wurgaft, Hicks, Kahn, Wikstrom & Sinins, attorneys; Jennifer J. Fleming, on the brief).
Before Judges Grall, Simonelli and Accurso.
In this verbal threshold case, defendant Paulo Alede appeals from a jury verdict following a trial on damages. Defendant contends that errors in the jury charge as well as the trial judge's exclusion of plaintiff's thirteen-year-old conviction on a weapons offense deprived him of a fair trial. Because the judge did not abuse her discretion in barring evidence of the conviction and the instructions, read as a whole, correctly set forth the law as applied to the issues in the case, we affirm.
Plaintiff was rear-ended by a car driven by defendant in November 2008. Liability was stipulated and the case went to trial on damages only. In the course of picking a jury, a person ultimately seated as Juror #6 asked a question at sidebar about damages. The judge responded by advising her that "You will be instructed if you are selected as a juror." The judge added that "you and the other jurors would have to come up with a number that you think it would cost to live his daily life as he would have before the injury." Neither lawyer objected to this incorrect statement of the law and neither moved to strike the juror.
Plaintiff presented the testimony of his treating chiropractor, Dr. Iuzzolino, and a physiatrist, Dr. Parvez, who examined him for purposes of the litigation. Dr. Iuzzolino testified that he had treated plaintiff for permanent injuries to his neck and back following a car accident in 2006 in which plaintiff had suffered a disc herniation at C5-6. The doctor described the six months of treatment he provided plaintiff following the 2008 accident at issue in the trial and, following an objection and rephrasing of the question, the results of diagnostic tests he recommended, including an MRI and EMG. Consistent with his report provided to defendant in discovery, Dr. Iuzzolino testified that plaintiff had suffered a permanent injury in the 2008 accident which exacerbated the injuries received in the 2006 accident.
Dr. Parvez testified, via videotape, to the series of epidural injections plaintiff underwent to his neck and low back following the 2008 accident and the results of his MRI and EMG studies. Dr. Parvez testified that she was provided the reports of those studies as well as the studies themselves, all of which she reviewed. Although defendant objected to the doctor testifying to the conclusions of the non-testifying doctors who had performed those studies, the trial judge ruled that Dr. Parvez was appropriately making use of their findings as a basis for explaining her own opinions to the jury. Dr. Parvez agreed with the radiologist who performed the MRI following the 2008 accident, Dr. Chess, that plaintiff had a disc herniation at L4-L5, a disc bulge at L5-S1, and a herniation at C5-C6 impinging on the thecal sac. She likewise agreed that the EMG/nerve conduction studies showed evidence of radiculopathy at L4-L5 and C5-C6. In her report, Dr. Parvez noted that plaintiff appeared to have a pre-existing condition relating to his cervical spine. She also testified that plaintiff had suffered a permanent injury in the 2008 accident.
Defendant presented the expert testimony of Dr. Blank, an orthopedist. Dr. Blank acknowledged abnormalities in plaintiff's spine but opined that these were caused by degenerative disc disease and not traumatic disc injury. The doctor also noted that plaintiff had suffered neck and back injuries in the prior accident in 2006. Dr. Blank acknowledged a "small disc herniation or protrusion at C5-6" visible on the study from 2006 which he found had become smaller on the study following the 2008 accident. When asked on cross-examination whether he agreed with the radiologist's findings from 2006, Dr. Blank answered, without objection, that he "pretty much agreed" with the findings from 2006, namely that plaintiff had a herniation at C5-6, but noted that while he thought the herniation was caused by degeneration, the 2006 report was silent as to the presence or absence of degeneration. Dr. Blank testified, again without objection, that he disagreed with Dr. Chess's findings with regard to the MRI performed following the 2008 accident.
At the charge conference, plaintiff asked that the judge give the standard charge on aggravation. Model Jury Charge (Civil), 8.11(F). "Aggravation of the Preexisting Disability" (1997). Defendant objected on the basis that plaintiff had not pleaded aggravation nor provided a Polk analysis. The trial judge determined that the parties' doctors having all testified to the herniation at C5-6, which predated the 2008 accident, the aggravation charge was appropriate. The judge also stated that she would give Model Jury Charge (Civil), 8.20, "Medical Expenses (Auto)" (1996).
When the instructions were read, the judge omitted, apparently inadvertently, the Medical Expenses charge. Further, in reading the Life Expectancy charge, Model Jury Charge (Civil), 8.11(G.), "Life Expectancy" (1996), the judge charged the jury that "[i]f you make an award for future pain and suffering, disability, impairment, loss of enjoyment of life, medical expenses, and loss of future earnings, you may consider the plaintiff's life expectancy, " even though neither future earnings nor medical expenses were in the case. Neither lawyer, however, posed any objection to the charge when given the opportunity before the jury retired for deliberations.
The jury determined that plaintiff sustained a permanent injury in the accident and returned a verdict in his favor of $225, 000. The jury did not award his wife any damages on her per quod claim. The court denied defendant's motion for judgment notwithstanding the verdict. This appeal followed.
Defendant raises the following issues:
A NEW TRIAL IS WARRANTED BECAUSE THE COURT FAILED TO CHARGE THE JURY THAT MEDICAL EXPENSES WERE NOT A PART OF THIS CASE UNDER MODEL JURY CHARGE 8.20.
A NEW TRIAL IS WARRANTED BECAUSE THE COURT ERRONEOUSLY INSTRUCTED THE JURY IT COULD AWARD DAMAGES FOR MEDICAL EXPENSES AND LOSS OF FUTURE EARNINGS, WHEN THERE WAS NO EVIDENCE OR CLAIMS FOR THESE DAMAGES.
A NEW TRIAL IS WARRANTED BECAUSE THE COURT, DESPITE THREE REQUESTS BY DEFENSE COUNSEL, FAILED TO CHARGE THE JURY ON MODEL JURY CHARGE 1:13(E) ABOUT THE LIMITED USE OF THE HEARSAY OPINIONS OF NON-TESTIFYING EXPERTS CONTAINED IN THE MRI AND EMG REPORTS.
A NEW TRIAL IS WARRANTED BECAUSE THE COURT GAVE A JUROR AN ERRONEOUS INSTRUCTION ON HOW TO AWARD MONEY DAMAGES.
A NEW TRIAL IS WARRANTED BECAUSE THE COURT ERRONEOUSLY GAVE AN AGGRAVATION CHARGE WHEN PLAINTIFF, WHO HAD PERMANENT NECK AND LOW BACK INJURIES FROM A PRIOR ACCIDENT IN 2006, MADE NO SUCH CLAIM AND SUBMITTED NO COMPARATIVE ANALYSIS EXPERT REPORT.
A NEW TRIAL IS WARRANTED BECAUSE THE COURT ERRONEOUSLY BARRED PLAINTIFF'S CRIMINAL CONVICTION.
A NEW TRIAL IS WARRANTED BECAUSE THE CUMULATIVE EFFECT OF THESE ERRONEOUS RULINGS RESULTED IN AN UNFAIR TRIAL AND REVERSIBLE ERROR.
It is, of course, axiomatic that an appropriate and proper jury charge is essential to a fair trial. Reynolds v. Gonzalez, 172 N.J. 266, 288 (2002). But when reviewing a trial judge's instructions to the jury, the charge must be read as a whole. Sons of Thunder, Inc. v. Borden, Inc., 148 N.J. 396, 418 (1997). An appellate court will uphold a charge that adequately conveys the law and does not confuse or mislead the jury, "even though part, standing alone, might be incorrect." Latta v. Caulfield, 79 N.J. 128, 135 (1979) (citing Jurman v. Samuel Braen, Inc., 47 N.J. 586, 592 (1966)). "Courts uphold even erroneous jury instructions when those instructions are incapable of producing an unjust result or prejudicing substantial rights." Sons of Thunder, supra, 148 N.J. at 418 (quoting Fisch v. Bellshot, 135 N.J. 374, 392 (1994)).
Reviewing this charge as a whole, we find no basis for reversal. First, we note that trial counsel for defendant did not object to the charge as given. Accordingly, we review only for plain error, that is, error clearly capable of producing an unjust result. R. 2:10-2. The rationale underlying the plain error rule is that a court should not countenance an unjust result because of the oversight of the advocate. Jurman, supra, 47 N.J. at 591. Conversely, a reviewing court ought not be taken in by appellate counsel's efforts to exaggerate "[o]versights and inadvertencies of the court deemed to be harmless and unimportant" by trial counsel. Ibid.
Defendant's complaints about the failure to give the Medical Expenses charge and the court's inclusion of future medical expenses and future earnings in the Life Expectancy charge clearly fall within this latter category. The charge the court gave on damages, which closely tracked the model charge, was, on the whole, an accurate statement of the law applicable to this case. Defendant cannot argue to the contrary. No testimony was presented on either medical expenses or future earnings. The judge advised the jury that "[i]n this case[, ] Mr. Boxton is seeking the damages of pain, suffering, disability, impairment, and loss of enjoyment of life." Defendant's contention that the jury's verdict should be reversed for such slight errors is clearly without merit.
We likewise reject defendant's argument as to Juror #6. Experienced trial counsel for defendant did not make any objection to the trial judge's admittedly incorrect statement of the law during the sidebar colloquy with this potential juror. Counsel did not seek to strike the juror or challenge her for cause. Trial counsel likewise did not raise this issue in his JNOV motion.
The judge advised the juror at sidebar that she and the other jurors would be instructed on damages at the end of the case. At the end of the case, the judge delivered an extensive charge on damages that closely tracked the model charge and clearly and accurately set forth the applicable law. There is no reason to think that the juror failed to follow the instructions given. We cannot find that the trial judge committed plain error by allowing Juror #6 as part of the jury selected to hear this case.
Defendant argues that the judge's failure to give Model Charge (Civil), 1.13(E). "Optional Charge Concerning Experts Relying on Hearsay Statements" (2009), regarding the limited use of the hearsay opinions of non-testifying experts "as required by Agha v. Feiner, 198 N.J. 50 (2009), " requires reversal of the verdict. We disagree. The Court in Agha held that "where an expert references the report of a non-testifying expert to explain the basis of his or her own opinion, it is incumbent upon the trial judge, upon request, to instruct the jury regarding its limited use." Id. at 63. Here, although trial counsel requested that the judge give a limiting instruction regarding the use of the reports of plaintiff's MRI and EMG/nerve conduction studies during the course of the testimony, and plaintiff's counsel and the court agreed to it being included, defense counsel failed to raise the issue at the charge conference. Nor did counsel object when Model Jury Charge 1.13(E) was not among those delivered by the judge. Under the circumstances, the trial judge would have been justified in concluding that defense counsel had determined to abandon the request.
Further, unlike in Agha, both Dr. Parvez and Dr. Blank were qualified to interpret the underlying MRI studies and both testified to their own interpretations of them. Dr. Parvez was also qualified to read the EMG/nerve conduction studies on which she opined. Thus, there was objective medical evidence through a qualified witness of a permanent injury, the lack of which required the new trial in Agha. Id. at 67. While plaintiff's counsel should not have made reference to Dr. Blank's agreement or disagreement with the non-testifying radiologists in her closing, we cannot find that overstep requires reversal, particularly in light of defense counsel's failure to object when the questions were put to his expert.
The trial judge's decision to charge aggravation was also not error in light of the testimony adduced at trial. Although plaintiff's prior disc herniation was acknowledged by both plaintiff's and defendant's experts, plaintiff claimed that he was asymptomatic prior to the 2008 accident. A plaintiff not alleging aggravation of a pre-existing condition is not obligated to produce a comparative analysis as part of his prima facie case in order to vault the verbal threshold. Davidson v. Slater, 189 N.J. 166, 188 (2007). A plaintiff who fails to do so, however, runs the risk, not only of summary judgment, but also of being held to the theory of the case as pleaded. Ibid.
Here, both sides elicited testimony at trial regarding plaintiff's prior disc herniation. While Dr. Parvez testified that she could not compare the condition of plaintiff's back before and after the accident as she had not been provided the 2006 MRI study, Dr. Iuzzolino testified that the 2008 accident exacerbated plaintiff's prior injury. Defendant's expert Dr. Blank compared the size of the herniation at C5-6 before and after the 2008 accident and testified that the herniation had become smaller because of degenerative changes occurring in plaintiff's back. Accordingly, given the testimony, the trial judge was correct to charge aggravation as both parties included it in the facts and theories presented at trial. See Edwards v. Walsh, 397 N.J.Super. 567, 571-72 (App. Div. 2007) (noting that a defendant who raised a pre-existing condition on cross-examination and through his own testifying expert could not object to a jury charge on aggravation).
We likewise find no error in the judge's exclusion of defendant's thirteen-year-old weapons conviction. A trial judge's discretionary evidentiary rulings are accorded substantial deference on appeal. Benevenga v. Digregorio, 325 N.J.Super. 27, 32 (App. Div. 1999), certif. denied, 163 N.J. 79 (2000). A reviewing court will find abuse of discretion only when a party can show manifest error or injustice. Hisenaj v. Kuehner, 194 N.J. 6, 20 (2008). Here, the trial judge determined that what little probative value plaintiff's thirteen-year-old weapons conviction might have with regard to whether he was permanently injured in the accident was far outweighed by the prejudice that would result from its being admitted. The judge's analysis was in accord with N.J.R.E. 609 and Vartenissian v. Food Haulers, Inc., 193 N.J.Super. 603, 611 (App. Div. 1984). Accordingly, we find no error in the judge barring the conviction.
The few small and inconsequential errors which occurred during the course of this trial do not amount to cumulative error justifying overturning the jury's verdict. Pellicer v. St. Barnabas Hosp., 200 N.J. 22, 51 (2009).