Submitted December 13, 2017
appeal from Superior Court of New Jersey, Law Division,
Bergen County, Docket No. L-1450-13.
Lee Law, PC, attorneys for appellant (Martin S. Cedzidlo, on
Vitucci & Klar LLP, attorneys for respondents (Eric J.
Plantier and Kenneth S. Merber, on the brief).
Judges Alvarez, Nugent and Geiger.
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. 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.
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.
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.
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
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.
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?
[Defense Counsel]: And you came to the United States in
approximately 2002. Is that correct?
[Defense Counsel]: Are you a United States citizen?
[Defense Counsel]: Have you been living in the United States
continuously since 2002 when you came here?
[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?
[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?
[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. . . .
addition to posing other questions about the accident,
defense counsel brought out that the airbags in
plaintiff's car did not deploy upon impact.
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.
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.
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.
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.
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.
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.
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,"
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.
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
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
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.
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 ...