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Wilkey v. Mayer

Superior Court of New Jersey, Appellate Division

October 15, 2013

TAMMY WILKEY, Plaintiff-Respondent,
v.
ELAINE M. MAYER, Defendant-Appellant.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued December 12, 2012.

On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-5342-09.

Floyd F. Lombardi argued the cause for appellant (DeSevo Lombardi, P.A., attorneys; Mr. Lombardi, on the brief).

Charles S. Lorber argued the cause for respondent (Mandelbaum, Salsburg, Lazris & Discenza, P.C., attorneys; Mr. Lorber, of counsel; Lance N. Olitt and Mara P. Codey, on the brief).

Before Judges Sapp-Peterson and Nugent.

PER CURIAM.

This personal injury action stems from an automobile-pedestrian accident. Defendant, Elaine M. Mayer, appeals from a judgment entered on a jury verdict of $600, 000 in favor of plaintiff, Tammy Wilkey, the pedestrian struck by the car defendant was driving. Defendant contends plaintiff's accident reconstruction expert's improper opinion testimony on proximate cause and the court's mishandling of the jury's request for a copy of the proximate cause instruction resulted in the jury's finding that plaintiff's negligence was not a proximate cause of the accident. Defendant also contends that plaintiff's expert was permitted to give a net opinion, and that the cumulative effect of misconduct by plaintiff's counsel tainted the jury's verdict. We agree that plaintiff's expert's opinion that plaintiff's failure to exercise due care was not the proximate cause of the accident -- an opinion the expert repeated several times during cross-examination -- was improper and requires a new trial on liability. Plaintiff has not challenged the jury's damage award, however. Accordingly, we affirm in part and reverse in part.

I.

The accident occurred on Market Street in Saddlebrook on Friday morning, September 24, 2007. Defendant was driving a 2006 Toyota Camry west on Market Street. Plaintiff, a pedestrian, was crossing Market Street. Defendant's Toyota struck plaintiff, who was severely injured.

Plaintiff, age thirty-eight at the time of the accident, had no memory of it. She recalled little about the day of the accident other than waking, saying goodbye to her cat, and waking up in the emergency room. At trial, she developed her liability claim by reading to the jury excerpts from defendant's deposition and by presenting the testimony of John A. Desch, a professional engineer and accident reconstruction expert.

According to defendant's deposition testimony, the accident happened on a clear day. Traffic on Market Street was light to medium. Although there were no obstructions to her line of sight, defendant, age fifty-three, did not see plaintiff until "[a] split second before impact." Plaintiff came from defendant's left. In the instant she first saw plaintiff, defendant put her foot toward the brake and pulled to her right. The impact occurred at the same time. Defendant did not apply the brakes before her car struck plaintiff.

Defendant admitted during her deposition that she had been diagnosed with a cataract in her right eye. She explained that she had peripheral vision in the eye but could see nothing straight ahead. She also admitted that she had a congenital cataract in her left eye, but claimed she had good vision in the left eye.

When Desch testified, he identified the sources of the information he reviewed before forming his opinion about how the accident happened. The sources included: discovery exchanged by the parties, including defendant's interrogatory answers, to which was attached a transcribed statement taken from an eyewitness, Linda DeYoung; defendant's deposition testimony, in which she testified about her speed and other matters; photographs of plaintiff's clothing, the damage to defendant's Toyota, and the accident scene; Desch's inspection of the scene, measurements he took at the scene, and his calculation of the coefficient of friction of the roadway surface; the police report identifying the accident location on Market Street 500 feet west of its intersection with Legregni Street; a "Change Report" identifying the accident location on Market Street 150 feet west of its intersection with Legregni Street; and engineering data, including typical driver "perception reaction" time and pedestrian walking rates of speed. Desch derived pedestrian walking speeds from data correlating walking rates to a pedestrian's gender and age. According to the data, a thirty-eight-year-old female who is in the eighty-fifth percentile walks at or below 5.8 feet per second.

Following Desch's disclosure of the data and facts upon which he based his opinion, the court excused the jury and conducted a hearing pursuant to N.J.R.E. 104 to determine whether, as defendant contended, Desch's opinion was a net opinion. After Desch explained on direct examination the conclusions he had derived from the material and data he had evaluated, defendant objected to Desch's conclusions as net opinions; not because they were without factual support, but because "[Desch] disregarded evidence that he had available to him in making this report." Defendant argued that Desch had disregarded certain sections of the police report that identified where on Market ...


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