ANTHONY A. GONZALES, Plaintiff-Respondent,
ELLEN I. HUGELMEYER, Defendant-Appellant, and FREDERICK ADAMS, Defendant
Argued April 13, 2015
Approved for Publication July 22, 2015.
On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Docket No. L-3854-09.
Stephen A. Rudolph argued the cause for appellant ( Rudolph & Kayal, attorneys; Mr. Rudolph, on the briefs).
Kathleen F. Beers, argued the cause for respondent ( Westmoreland Vesper Quattrone & Beers, attorneys; Ms. Beers, on the brief).
Before Judges SABATINO, GUADAGNO, and LEONE. The opinion of the court was delivered by SABATINO, P.J.A.D.
[441 N.J.Super. 454] OPINION
[441 N.J.Super. 455] SABATINO, P.J.A.D.
This automobile negligence case arises out of a rear-end collision on the Atlantic City Expressway. After a six-day trial, the jury found that defendant Ellen I. Hugelmeyer, the driver of the Mazda sedan that struck plaintiffs' Lexus SUV from behind, was negligent and the sole proximate cause of the accident. The jury awarded $380,000 in damages to plaintiff Anthony A. Gonzales, the driver of the Lexus, and $810,000 in damages to his wife Valerie, who was a passenger in their vehicle. The trial court also awarded plaintiffs counsel fees, costs, and interest pursuant to the Offer of Judgment Rule, R. 4:58-2(a), because the combined damages verdict substantially exceeded the amount plaintiffs had offered to accept in settlement before trial.
Defendant appeals the verdict and final judgment solely with respect to her liability to Mr. Gonzales, as the parties and their insurers have settled all claims respecting Mrs. Gonzales, including her claims for underinsured motorist coverage. Defendant asserts a variety of trial errors regarding both liability and damages, and further argues that the Offer of Judgment Rule is unconstitutional because it allegedly is unfair to defendants.
Because of multiple errors that deprived defendant of a fair trial, we vacate the judgment as to Mr. Gonzales and order a new trial.
The evidence shows that at about 5:00 p.m. on April 22, 2008, Mr. Gonzales was driving his Lexus on the Atlantic City Expressway when he encountered congested traffic due to an accident. [441 N.J.Super. 456] Mr. Gonzales drove from the far-right lane into the far-left lane of the three-lane highway. According to the testimony of an eyewitness, Stephanie Blount, the Lexus moved across the center lane in front of Hugelmeyer's car. After Gonzales needed to stop short, Hugelmeyer's Mazda struck his Lexus from behind, damaging its rear bumper and the Mazda's front bumper.
A State Trooper, Vaughn Crouthamel, responded to the scene. The Trooper interviewed
several persons, including Mr. Gonzales and Hugelmeyer. According to Hugelmeyer, she " didn't have time to react" and avoid the collision because Mr. Gonzales had " just slammed on his brakes" while in traffic. The Trooper nevertheless issued a traffic citation to Hugelmeyer, although the ticket was eventually dismissed because of the Trooper's failure to appear in municipal court. The ticket and its disposition were not divulged to the jury.
At trial, Mr. Gonzales testified that the accident had aggravated a pre-existing degenerative disc disease. His main testifying expert, Dr. John C. Baker, a Board-certified orthopedic surgeon, testified that he had arthritis dating back to 1998, and that the accident had greatly worsened his pre-existing disease, causing permanent spinal damage. Mr. Gonzales also presented testimony from Dr. Ira Greg Warshaw, his family physician from 2001 to 2008. Dr. Warshaw testified on direct examination that Mr. Gonzales had never commented on any back problems when treated by him. However, Dr. Warshaw conceded on cross-examination that he had treated Mr. Gonzales in 2006 for lower-leg pain and radiating cervical spine or neck pain, and in 2004 for cervical radiculopathy. Mr. Gonzales also presented videotaped testimony from a chiropractor, Dr. Michael Gerber, who had examined him at the behest of his insurer in connection with his claims for personal injury protection benefits. Based upon tests Dr. Gerber performed, he opined that the condition of Mr. Gonzales's neck and low back had been " exacerbated or aggravated" by the accident.
The defense presented testimony from Blount and Dr. John Cristini, a Board-certified orthopedic surgeon who had evaluated [441 N.J.Super. 457] Mr. Gonzales. Hugelmeyer did not testify because she was living in a distant state and seven months pregnant. However, portions of her deposition testimony were read aloud to the jury.
As we have already noted, the jury found that Hugelmeyer was negligent but that Mr. Gonzales was not, and awarded substantial monetary damages to both Mr. Gonzales and Mrs. Gonzales. The trial judge denied Hugelmeyer's motion for a new trial or remittitur, and ordered fee-shifting pursuant to Rule 4:58. The judge declined to address defendant's constitutional challenge to the Offer of Judgment Rule.
This appeal ensued, which, as we have noted, is confined to the judgment obtained by Mr. Gonzales. Defendant argues that the trial judge erred in (1) allowing Trooper Crouthamel to present inadmissible lay opinion asserting that she was at fault in causing the accident, and also relied on hearsay statements from an unidentified witness he had interviewed at the accident scene; (2) excluding Dr. Warshaw's treatment office notes that would substantiate the severity of Mr. Gonzales's preexisting condition; (3) allowing the chiropractor, Dr. Gerber, to present expert opinions on permanency without proper qualifications and to discuss the hearsay findings of a non-testifying radiologist; (4) permitting this " verbal threshold" case brought under N.J.S.A. 39:6A-8(a) to go to the jury without appropriate objective evidence of aggravated injury; and (5) awarding fees and other funds to plaintiffs under the Offer of Judgment Rule.
For the reasons that follow, the first two claims of prejudicial error are meritorious. Singularly and cumulatively, they warrant a new trial.