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Morales-Hurtado v. Reinoso

Superior Court of New Jersey, Appellate Division

December 6, 2018

JUAN MORALES-HURTADO, Plaintiff-Appellant,
v.
ABEL V. REINOSO and NEW SERVICE, INC., Defendants-Respondents.

          Submitted December 13, 2017

          On appeal from Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-1450-13.

          Jae Lee Law, PC, attorneys for appellant (Martin S. Cedzidlo, on the brief).

          Gallo Vitucci & Klar LLP, attorneys for respondents (Eric J. Plantier and Kenneth S. Merber, on the brief).

          Before Judges Alvarez, Nugent and Geiger.

          OPINION

          NUGENT, J.A.D.

         This is a vehicular negligence action. Plaintiff, Juan Morales-Hurtado, appeals from an order of judgment entered on a jury's verdict. The jury found defendant, Abel V. Reinoso, eighty percent negligent and plaintiff twenty percent negligent for causing the rear-end collision.[1] The jury awarded plaintiff $50, 000 for pain and suffering, impairment, disability, and loss of enjoyment of life. The jury also awarded plaintiff $71, 615.73 for past medical expenses.

         Plaintiff contends that defense counsel's prejudicial conduct, the court's denial of a motion for a directed verdict on liability, and the court's decision to bar a life care expert's testimony deprived him of a fair trial. We agree the cumulative effect of many errors tainted the verdict. We thus reverse and remand for a new trial.

         I.

         A.

         Plaintiff filed a complaint in February 2013, in which he sought compensation for injuries he claimed to have sustained in an August 24, 2011 automobile accident. Defendant filed an answer and asserted affirmative defenses, including plaintiff's comparative negligence. The parties completed discovery, argued numerous in limine motions, and tried the case during non-consecutive days in December 2015 and January 2016. On January 7, 2016, the jury returned its verdict. The following day, after molding the verdict, the trial court entered an order of judgment. This appeal followed.

         B.

         Defendant did not dispute at trial that he was partially responsible for causing the accident. The parties disputed whether plaintiff was liable and, if so, to what extent. According to the trial testimony and documentary evidence, the sun was still shining and the intersection of Lemoine Avenue and Bridge Plaza South in Fort Lee was dry on the evening the accident occurred. The right front corner of the jitney - or minibus - defendant was driving struck the left, driver's side rear corner of the 2003 Honda Civic plaintiff was driving.

         Plaintiff testified that Lemoine Avenue has two lanes in each direction. He was driving on Lemoine Avenue toward its intersection with Bridge Plaza South, where he intended to make a right turn on his way to the job where he and his passengers worked. According to plaintiff, he passed the bus a short distance before the intersection. He activated his right turn signal and began to turn through the green traffic light onto Bridge Plaza South but had to stop for pedestrians crossing Bridge Plaza South. Glancing into his rear view mirror, plaintiff saw the bus "was still stopped and a passenger was getting on it." The bus was approximately "three to four cars distance." Plaintiff looked back toward the pedestrians. Seconds later, he felt the impact as the bus struck the rear of his car.

         Defense counsel began his cross-examination by asking plaintiff his birthdate. He then questioned him about his native country, his citizenship, and his ability to speak English, interjecting a declaratory statement as he did so:

[Defense Counsel]: Sir, you were born in Columbia?
[Answer]: Correct.
[Defense Counsel]: And you came to the United States in approximately 2002. Is that correct?
[Answer]: Correct.
[Defense Counsel]: Are you a United States citizen?
[Answer]: Correct.
[Defense Counsel]: Have you been living in the United States continuously since 2002 when you came here?
[Answer]: Correct.
[Defense Counsel]: Ok. I am not questioning your right as a citizen or as a witness to use an interpreter but I would just like to ask you briefly about your ability to understand English. Okay sir? You do understand English, right, sir?
[Answer]: A little.
[Defense Counsel]: Okay. And after you came to the United States what - what - I'm sorry, withdrawn. What age were you when you came to the United States?
[Answer]: [Nineteen] years old.
[Defense Counsel]: And you took classes in English when you - after coming to the United States?
[Answer]: Correct.
[Defense Counsel]: And throughout the trial you've been communicating with your attorney in English, including yesterday while I was doing my opening statement, correct?
[Answer]: Correct.
[Defense Counsel]: I just - I'm trying to understand do you understand the statements that are being said in this courtroom before they are translated for you?
[Answer]: A little.
[Defense Counsel]: Let's talk about the accident. . . .

         In addition to posing other questions about the accident, defense counsel brought out that the airbags in plaintiff's car did not deploy upon impact.

         Defendant's trial version of the accident differed from his interrogatory answers, the police report, and from plaintiff's version of the accident. He testified plaintiff's Honda was the first car stopped for a red light in the outside lane of Lemoine Avenue at its intersection with Bridge Plaza South. Defendant stopped his twenty-five passenger bus behind plaintiff's Honda. According to defendant, when the light changed to green, plaintiff's Honda turned right, but then suddenly stopped. Defendant "didn't have time to stop." Defendant added that while stopped for the red light behind the Honda, the Honda did not have a turn signal on. Defendant "tried to turn left a little" when the Honda stopped suddenly, but could not do so because the Civic had "stopped immediately." Defendant saw the Honda's brake lights come on and applied his brakes but was unable to avoid the collision. He exited the bus and briefly spoke to plaintiff, who said he had stopped suddenly because there were people crossing the street.

         Although defendant testified at trial he had intended to go straight through the intersection, the police report included a diagram showing defendant turning the bus to the right. In addition, in response to an interrogatory asking defendant to describe how the accident occurred, defendant responded: "I was in the process of making a turn and there was a vehicle ahead. The vehicle ahead stopped suddenly without warning and there was contact between our two vehicles." Defendant explained that he misunderstood the question the officer at the scene asked him and perhaps he was misunderstood as well when he answered interrogatories.

         During cross-examination, plaintiff's counsel brought out the inconsistencies. When he attempted to cross-examine defendant about his deposition testimony, defense counsel objected. The following exchange occurred.

[Plaintiff's Counsel]: Okay. You were asked by an attorney from my office to say, tell me how the accident happens, tell me what happened. And at no point did you ever say, I was planning on going straight, did you?
[Defense Counsel]: Your Honor, I'm objecting because the question is misleading. If he was never asked the question, he didn't give the answer because he was asked the question. It's misleading to tell the jury that he said something or he didn't.
[Plaintiff's Counsel]: Judge, the answers to interrogatories say, tell us your version of the accident. He gave one version. At a deposition we said, tell us your version of the accident. And he doesn't contradict his answers to interrogatories.
[Defense Counsel]: Read him something that's inconsistent with what he's testified to. Confront him with the question where he's asked that question.
[The Court]: . . . overruled.

         During his examination of defendant and plaintiff, defense counsel asked questions that were irrelevant to the liability and damage issues. The court ruled that defense counsel could not inquire about whether the other passengers in plaintiff's car were injured in the accident. Nonetheless, defense counsel brought out on cross-examination of plaintiff that two of his passengers were sixty years old. He proffered doing so to show that the passengers were at the accident scene and "to the extent [one] communicated what happened to the cop." Yet, the last question he asked defendant on direct examination was "Did any of the occupants, other than [plaintiff], sue you?" The court immediately struck the question and instructed the jury it was irrelevant to any liability issue.

         C.

         The parties disputed whether the bulging and herniated discs in plaintiff's cervical, thoracic, and lumbar spine were caused by or predated the August 2011 accident. They also disputed the extent of his injuries. Experts expressed differing opinions about October 2011 medical resonance imaging studies (MRIs) of plaintiff's cervical and lumbar spine, a February 2012 MRI of his thoracic spine, and a May 2012 post-discogram lumbar MRI.

         Plaintiff testified he experienced pain in his back and legs following the accident. He was taken to a hospital emergency room where he was treated and released. He then came under the care of a chiropractor, who treated him conservatively with electrostimulation modalities and acupuncture. When plaintiff did not improve with the conservative treatment, his chiropractor referred him to Dr. Gregory J. Lawler, a board certified anesthesiologist and pain management physician.

         Plaintiff's primary complaint to Dr. Lawler was low back pain, with some pain in his legs and some left and right leg weakness. Dr. Lawler testified the October 2011 and February 2012 MRI studies showed disc herniations in plaintiff's cervical spine at C5-C6, thoracic spine at T7-T8 and T8-T9, and lumbar spine at L4-L5 and L5-S1. The doctor also noted some "slight slippage of the vertebral bodies at L5-S1," called spondylosis.

         The doctor analogized vertebral discs to a jelly doughnut, "where . . . fibers . . . encircle the cushioning in the middle." The discs "provide cushioning in an area [so] . . . the bones don't crush into each other and [wear] down." Dr. Lawler explained that the middle portion of the disc - which people often refer to as the "jelly" - has "chemical mediators." When a disc herniates, "those mediators leak out from the disc [and] cause inflammation." The mediator, or chemical substance, can cause a patient to develop a chemical neuritis with corresponding pain.

         Dr. Lawler treated plaintiff by having him undergo several epidural injections - the injection of steroids to decrease inflammation - and by prescribing muscle relaxants. The doctor also had plaintiff continue with chiropractic care. When plaintiff's pain did not resolve, the doctor had him undergo a discogram - the insertion of needles into the vertebral discs to locate pain and to introduce contrast material for an MRI study. The discogram and post-discogram lumbar MRI confirmed plaintiff's disc herniation at L4-L5.

         The doctor referred plaintiff to a "board certified orthopedic and fellowship trained spine physician," Dr. Louis Quartararo, for a consultation. When plaintiff's condition had not resolved by August 2012, a year after the accident, Dr. Lawler referred him to a neurosurgeon, Dr. Mark Arginteanu, who eventually operated on plaintiff's low back.

         Dr. Lawler testified plaintiff had a herniated disc in his cervical spine at C5-C6, a bulging and a herniated disc in his thoracic spine, the latter at T8-T9, and two herniated discs in his lumbar spine at L4-L5 and L5-S1. He also testified the herniations were caused by the accident and constituted permanent injuries. The doctor's prognosis for plaintiff was poor, especially considering plaintiff was only twenty-eight years old and had "hardware" in his lower back as a consequence of surgery.

         When Dr. Lawler came to court, he brought his file with him. The file contained a copy of a draft narrative report he had sent to plaintiff's counsel. The report included the notation, "draft for attorney review." Based on that notation, defense counsel cross-examined the doctor about whether it was his custom and practice while treating patients to ...


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