NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued September 10, 2013
On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-10382-08.
David S. Rochman argued the cause for appellant.
Daniel S. Jahnsen argued the cause for respondents (Bolan Jahnsen Dacey, attorneys; Mr. Jahnsen, on the brief).
Before Judges Fisher, Espinosa and Koblitz.
In this personal injury action, plaintiff, then employed by the United States Postal Service at its now closed transfer facility in Carteret, alleged she was struck by a "post-con" as a result of the negligence of defendant Beam Brothers Trucking's driver, defendant Thomas Hostetter. Defendants' position throughout this case and at trial was that the incident never occurred. At the conclusion of an eight-day trial, the jury agreed with defendants. In her appeal, plaintiff contends that defense counsel's opening and closing statements were improper and that the trial judge erred in admitting a surveillance tape and certain medical and employment records. We find no error and affirm.
Plaintiff's allegations as to the manner in which plaintiff was injured are not particularly germane to this appeal. It suffices to mention that, on December 15, 2006, plaintiff was working for the postal service as an expediter. An expediter meets incoming trucks and ensures the accuracy and integrity of the sealed incoming and outgoing mail containers. Plaintiff testified that while in the process of signing out a driver, she was struck by a post-con containing mail pushed by Hostetter; she claimed that impact caused her to be violently shoved three to five feet forward. Hostetter testified no such incident ever occurred, and defendants asserted no knowledge of plaintiff's belief that Hostetter had caused her to be injured until served with the complaint in this action.
In appealing the jury's defense verdict, plaintiff contends that defense counsel's arguments to the jury – in both his opening statement and summation – were improper. We turn first to defense counsel's opening statement.
The fundamental purpose of an opening statement is "to do no more than inform the jury in a general way of the nature of the action and the basic factual hypothesis projected, so that they may be better prepared to understand the evidence." Farkas v. Board of Chosen Freeholders, 49 N.J.Super. 363, 367-68 (App. Div. 1958); see also Passaic Valley Sew. Comm'rs v. Geo. M. Brewster & Son, Inc., 32 N.J. 595, 605 (1960); Szczecina v. PV Holding Corp., 414 N.J.Super. 173, 178 (App. Div. 2010). An opening statement should be "summary and succinct" and "[n]othing must be said which the lawyer knows cannot in fact be proved or is legally inadmissible." Passaic Valley, supra, 32 N.J. at 605. Counsel, of course, must not "make derisive statements about parties, their counsel, or their witnesses." Szczecina, supra, 414 N.J.Super. at 178. Defense counsel's opening statement did not offend any of these principles.
In pursuing this aspect of the appeal, plaintiff alludes to defense counsel's reference to a defense radiology expert, Dr. Douglas Noble. During pretrial discussions regarding a number of evidence issues, the judge directed defense counsel not to make reference to Dr. Noble because it had not been determined whether he would be permitted to testify. Indeed, defense counsel invited that ruling by advising the judge that he was leaning toward not calling the expert to testify. Defense counsel did, however, refer in his opening to Dr. Noble having been retained to interpret MRIs regarding plaintiff's condition. To be sure, this discussion in the opening was contrary to the trial judge's direction – and plaintiff objected for that reason – but plaintiff's counsel opened the door. That is, despite counsel's earlier consternation that defense counsel might refer to Dr. Noble in his opening statement, and despite successfully convincing the judge that no mention should be made, plaintiff's counsel made the following argument in his opening:
Now, defense counsel again is not without expert, and they're not without expert in this realm, they have put us on notice that we may hear from Dr. Noble. I will suggest to you now and if we do hear from Dr. Noble that Dr. Noble has not reviewed the litany of the films, you're going to hear that Dr. Noble never met Ms. ...