Opinion
DOCKET NO. A-1821-13T4
08-10-2015
ALBERT W. ADAMS, 3RD, Plaintiff-Appellant, v. CHARLES R. WILDERMANN, PROGRESSIVE FREEDOM INSURANCE COMPANY, DRIVE NEW JERSEY INSURANCE COMPANY, and PROGRESSIVE INSURANCE COMPANY, Defendants-Respondents.
Neal M. Unger argued the cause for appellant (Neal M. Unger, P.C., attorneys; Mr. Unger and Justin LaPiana, on the brief). James L.A. Pantages argued the cause for respondent Charles R. Wildermann (Stein, McGuire, Pantages & Gigl, LLP, attorneys; Mr. Pantages and Gregory T. Keller, of counsel and on the brief). Matthew K. Mitchell argued the cause for respondent Drive New Jersey Insurance Company (Cipriani & Werner, P.C., attorneys; Mr. Mitchell and Marc R. Jones, on the brief). Cooper Maren Nitsberg & Voss, attorneys for respondent Progressive Freedom Insurance Company, join in the brief of respondent Wildermann.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Fisher, Nugent and Manahan. On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Docket No. L-5420-10. Neal M. Unger argued the cause for appellant (Neal M. Unger, P.C., attorneys; Mr. Unger and Justin LaPiana, on the brief). James L.A. Pantages argued the cause for respondent Charles R. Wildermann (Stein, McGuire, Pantages & Gigl, LLP, attorneys; Mr. Pantages and Gregory T. Keller, of counsel and on the brief). Matthew K. Mitchell argued the cause for respondent Drive New Jersey Insurance Company (Cipriani & Werner, P.C., attorneys; Mr. Mitchell and Marc R. Jones, on the brief). Cooper Maren Nitsberg & Voss, attorneys for respondent Progressive Freedom Insurance Company, join in the brief of respondent Wildermann. PER CURIAM
This personal injury and underinsured motorist action stems from a collision between a motorcycle driven by plaintiff Albert W. Adams, 3rd, and a Chevrolet Blazer driven by defendant Charles Wildermann. Plaintiff appeals from orders: dismissing on summary judgment his complaint against Drive New Jersey Insurance Company; entering judgment on the jury's verdict of no cause for action; and, denying his motion for a new trial. We reverse the judgment of no cause of action and remand for a new trial, having concluded that the trial court erred by permitting defense counsel to elicit unduly prejudicial hearsay evidence during counsel's examination of the parties' accident reconstruction experts. Because defendant has not provided the trial court's decision on the insurance coverage issue, we dismiss that part of the appeal.
Four months after the August 2010 accident, plaintiff filed an amended complaint seeking damages from defendant Wildermann and underinsured motorist (UIM) benefits under two policies: a motorcycle insurance policy underwritten by Progressive Freedom Insurance Company, which insured plaintiff's motorcycle; and a commercial auto policy underwritten by Drive New Jersey Insurance Company, which insured a 1995 Ford Econoline E350 registered to Certified Transportation Repair, Inc., a company owned by plaintiff's father. Plaintiff worked for the company.
In the complaint, plaintiff also named as a defendant Progressive Insurance Company. The policies that insured the motorcycle and Econoline E350 bear the logo "Progressive."
Drive New Jersey Insurance Company successfully moved for summary judgment, and the court entered an order dismissing the complaint as to Drive New Jersey. The case was tried to a jury in October 2013. The jury returned a verdict of no cause for action. The court issued an order entering judgment on the verdict and thereafter issued an order denying plaintiff's motion for a new trial. Plaintiff appeals from the three orders.
The accident happened on a dry, clear, sunny afternoon on Main Street at its intersection with Maple Avenue in the Belford section of Middletown. Main Street is a two-way, northbound-southbound road, the lanes divided by a double yellow line. The speed limit is thirty-five miles per hour.
To establish his liability claim at trial, plaintiff testified and presented the testimony of an accident reconstruction expert. To refute plaintiff's proofs, Wildermann testified and presented the testimony of both an accident reconstruction expert and the investigating police officer. The parties' primary liability dispute was whether the accident occurred when Wildermann, driving the Blazer, pulled out without signaling from a stopped position on the side of the road, striking plaintiff's motorcycle; or whether plaintiff illegally attempted to pass Wildermann's Blazer on the left-hand side as Wildermann was stopped in traffic waiting to make a left-hand turn, his directional signal activated.
Plaintiff testified that he was going home after work and was driving his motorcycle southbound on Main Street at approximately thirty-two or thirty-three miles per hour. As he approached Main Street's intersection with Maple Avenue, Wildermann's Blazer was on the right side of the road. The Blazer's stop lights and turn signals were not on. The Blazer appeared to be parked on the side of the road. As plaintiff proceeded along Main Street and began to pass the Blazer, the Blazer turned into his motorcycle. Plaintiff tried to "lean the bike down to the left" to avoid the accident, but was "way too late." Plaintiff landed in the northbound lane, sustaining severe injuries.
Plaintiff also testified that the Blazer's front left bumper, near the wheel well, struck the motorcycle in the area of the right peg — where a rider places a foot — just in front the rear tire. According to plaintiff, the collision between the vehicles occurred entirely within the southbound lane. Plaintiff never crossed the yellow line into the northbound lane until after the Blazer struck his motorcycle. During cross-examination, plaintiff stated that at the moment of impact the Blazer had started to make a left turn.
In contrast to plaintiff's testimony, Wildermann testified that, while returning home from the hardware store, he was driving southbound on Main Street and stopped at its intersection with Maple Avenue to turn left. His turn signal was on. Although a car on Maple Avenue had a stop sign, the car was positioned in such a manner that Wildermann could not turn onto Maple without striking the curb, so he let the car proceed through the intersection before beginning his turn. As he started to turn, his Blazer was struck by the motorcycle. Wildermann believed the motorcycle struck the Blazer's front tire.
According to Wildermann, while he was waiting to turn, the left side of his Blazer was "basically right up against" the double yellow line. The Blazer's wheels barely crossed the center line when the motorcycle ran into the Blazer. The motorcycle was traveling over the double yellow line, in the northbound lane, when the impact occurred.
Corporal Joseph Glynn, who responded to the accident, found the Blazer stopped on Main Street, its front tires turned to the left. The Blazer was positioned so that the left front tire and left fender, "possibly up to the driver's door[,]" were across or to the left of the center line. Stated differently, the Blazer was in an "eleven o'clock position over the yellow line[.]" The officer testified on cross-examination that his diagram was "basically," or "could be[,]" consistent with plaintiff's account of the accident.
To corroborate their respective versions of how the accident occurred, the parties each called an accident reconstruction expert. Plaintiff's expert, Wayne F. Nolte, opined that the impact between the vehicles took place in the southbound lane of traffic, and "the Blazer . . . contacted the motorcycle, . . . came into the motorcycle . . . [a]nd it's not a matter of the Blazer turned left and then the motorcycle went into the Blazer." Nolte further opined that defendant Wildermann caused the accident by, among other things, initiating a left-hand turn without signaling.
Defendant Wildermann's expert, William J. Martin, opined that the vehicles collided when the right side of the motorcycle's front wheel area struck the outer edge of the Blazer's "left front wheel[.]" The Blazer's left front wheel would have been turned out to the left because Wildermann was making a left turn, and the right side of the front of the motorcycle "would have been the initial contact point." The point of contact occurred "around the center lines of the roadway." Martin concluded that the accident was caused when plaintiff drove his motorcycle on or across the center line to pass the Blazer and then struck the Blazer as it began its left-hand turn.
During the cross-examination of plaintiff's expert, Nolte, defense counsel attempted to have Nolte read the police report's description of the accident, including the hearsay statements of the parties and witness. After establishing that Nolte reviewed the police accident report, counsel asked him to read the page containing the hearsay statements. Plaintiff's counsel objected.
Plaintiff had filed a motion in limine to bar any "mention, admission in evidence of a reference to any statements made in the police report concerning the account of an independent witness . . . who the officer says agrees with Mr. Wildermann's account." During argument on the in limine motion, defense counsel explained that he did not "want the report, [he] want[ed] the testimony of the police officer as to what . . . was told to him at the scene of the accident." The court granted the motion, stating: "I think the argument is that the police officer shouldn't be permitted to testify as to the hearsay statements of [the witness]. And I will grant that application."
Notwithstanding the pre-trial ruling, the court permitted defense counsel to proceed. The court explained: "[Plaintiff's] expert relied upon . . . the police report in forming his opinions. I think that it is probably fair game as to whether to rely upon it." Defense counsel then continued his cross-examination:
Q: Let's go back to where we were. On page 4 of your report you say, "The police accident report contains the following description of the accident." Which is something you relied upon, correct?
A: Yes.
Q: Please read it to us.
A: Sure. It says, "Crash investigation reveals that two vehicles" - -
Q: Go slowly.
A: Okay.
Q: I'm not that quick.
A: Okay. "Crash investigation reveals a two vehicle collision occurring at intersection of Main Street and Maple Avenue, Belford section. Both vehicles were southbound on Main Street. Vehicle one was attempting left turn - -
Q: And vehicle one was the?
A: The Blazer.
Q: The Blazer.
A: Right. "Making a left turn onto Maple Avenue. Vehicle two", the motorcycle, "was proceeding south on Main Street.
"Operator one was interviewed at scene, and stated that he was southbound on Main Street. He stopped at intersection of Main and Maple in an attempt to make a left turn onto Maple. He further stated that he was engaged in a stand-off with a vehicle exiting Maple attempting to turn left onto Main Street south.
"He stated that he had started and stopped several times prior to actually attempting to make the turn. The operator of the vehicle exiting Maple Avenue was interviewed, and relayed to same account. Operator one was insistent that he had left directional on.
Due to the severity of injuries to operator three, he could not be interviewed at the scene. After being released from the hospital and once off any mind-altering medication, operator two was interviewed. Interview took place on 9/20/10.
"Operator two stated that he was proceeding south on Main Street. He observed vehicle one, and described it to be close to the curb. He did not observe any brake lights or directional signal.
"He attempted to pass vehicle at which time vehicle one turned left into him. He stated he did not cross center line in his pass attempt until vehicle one started turning left. At which time he was moved
left to, or he moved left to attempt to avoid impact.
"He further stated that he had been operating motorcycle in left tire track of southbound Main Street, and did not have to move as he started passing vehicle one. Operator two suffered compound fracture to his leg as a result of the collision."
We pause to note two facts of significance. First, when the court ruled, Nolte had not testified that he relied upon the hearsay statements in the police report. Rather, he testified in response to cross-examination questions that he had reviewed the police report. Second, though Nolte subsequently testified that he relied upon the description of the accident in the police report, he was not asked, nor did he state, that he relied upon the hearsay statements of Wildermann and the witness. In fact, it should have been apparent from Nolte's direct examination that these hearsay statements did not form the basis of his opinion. His opinion contradicted the hearsay statements.
Returning to the trial testimony, defense counsel also elicited hearsay contained in the police report during his direct examination of Wildermann's accident reconstruction expert. The expert testified, "[a]ccording to Mr. Wildermann and according to the police report, there was a vehicle that was exiting Maple Street westbound . . . and there was some sort of interaction and Mr. Wildermann allowed that vehicle to make the left turn, and then this accident occurred." The expert also testified that "[t]he operator of the vehicle that was coming out of Maple Street did come back and speak with Officer Glynn and Officer Glynn reports that the vehicle did make its left turn and was in the process of going south on Main Street when this accident occurred."
Plaintiff argues on appeal that the statements in the police report were inadmissible hearsay; that the rules of evidence concerning expert testimony do not permit the introduction of such hearsay as substantive evidence; and, in any event, the trial court misapplied its discretion by not barring the hearsay statements under N.J.R.E. 403.
Wildermann counters that it is proper for a cross-examiner to inquire into the factual basis of an expert's opinion. He asserts the court did not abuse its discretion by permitting such cross-examination.
We begin our analysis by reviewing some basic principles concerning expert testimony. Expert opinions are authorized by N.J.R.E. 702, which
imposes three core requirements for the admission of expert testimony:
"(1) the intended testimony must concern a subject matter that is beyond the ken of the average
juror; (2) the field testified to must be at a state of the art such that an expert's testimony could be sufficiently reliable; and (3) the witness must have sufficient expertise to offer the intended testimony."
[Townsend v. Pierre, 221 N.J. 36, 53 (2015) (quoting Creanga v. Jardal, 185 N.J. 345, 355 (2005)).]
Expert testimony is circumscribed by N.J.R.E. 703, which states:
The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to the expert at or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence.Although N.J.R.E. 703 is predicated on the permissive term "may," the Supreme Court has stated that the rule "mandates that expert opinion be grounded in 'facts or data derived from (1) the expert's personal observations, or (2) evidence admitted at the trial, or (3) data relied upon by the expert which is not necessarily admissible in evidence but which is the type of data normally relied upon by experts.'" Townsend, supra, 221 N.J. at 53 (quoting Polzo v. Cnty. of Essex, 196 N.J. 569, 583 (2008)).
When explaining the basis of their opinions, "testifying expert[s are] generally permitted to detail for the trier of fact all of the materials . . . on which [they] relied in deriving [their] opinion[s], so long as [the materials] are of a type reasonably relied upon by experts in [their] field." Agha v. Feiner, 198 N.J. 50, 62 (2009). N.J.R.E. 703 does not, however, "allow expert testimony to serve as 'a vehicle for the wholesale [introduction] of otherwise inadmissible evidence.'" Id. at 63 (quoting State v. Vandeweaghe, 351 N.J. Super. 467, 480-81 (App. Div. 2002), aff'd in part, 177 N.J. 229 (2003)). In State v. Vandeweaghe, we cautioned:
[I]n its gatekeeping function, the trial court must be extremely vigilant in controlling the proceedings to assure that defendant's conviction is not caused by inadmissible hearsay that was never proven substantively. Thus, we suggest that both counsel and the court must be extremely sensitive in this area. The proponent should not elicit hearsay evidence that he or she is not prepared to prove substantively. After all, if the facts are not proven substantively, the weight of the expert's opinion should be diminished. Therefore, the judge should consider excluding the evidence under N.J.R.E. 403 because, in the absence of substantive proof, its probative value is substantially diminished by the risk of undue prejudice given the constitutional implications. Once the jury has heard the hearsay, it is very difficult to unring the bell with a cautionary instruction that the weight of the expert's opinion is dependent upon the facts upon which it is based.
[Supra, 351 N.J. Super. at 482.]
Obviously, the Sixth Amendment is not an issue in civil actions. Nevertheless, the admission of hearsay statements, wholesale or otherwise, under N.J.R.E. 703 can be unduly prejudicial and clearly capable of producing an unjust result. N.J.R.E. 403; R. 2:10-2. This case illustrates the point.
The statements in the police report were hearsay. See State v. Lungsford, 167 N.J. Super. 296, 310 (App. Div. 1979). Quantitatively, absent the statements in the police report, the evidence was balanced. Plaintiff and Wildermann, the only two trial witnesses to actually observe the accident, gave contradictory accounts as to how it happened. Each party presented the testimony of an expert and each expert gave an opinion supporting the proponent of his testimony. The investigating police officer's testimony was favorable to Wildermann in that the officer observed the post-accident position of Wildermann's Blazer partially in the northbound lane, but favorable to plaintiff in that it was consistent with plaintiff's account that the accident occurred in the southbound lane.
The court permitted Wildermann to interject into this quantitatively balanced testimony the hearsay statement of an independent witness purporting to corroborate Wildermann's account of the accident. The witness' hearsay statement was thus clearly capable of affecting the jury's credibility determinations as well as the outcome of the trial. Significantly, the statement given by the witness, as recorded in the police report, contained no detail whatsoever about how the accident occurred. Rather, it conveyed this: "The operator of the vehicle exiting Maple Ave. was interviewed and relayed to same account." This statement immediately followed Wildermann's account of the accident, thus purporting to substantiate Wildermann's version. But there is a substantial question as to whether the witness saw the impact. And there is no evidence that the witness, after pulling from the stop sign, observed the movement of the Blazer before impact.
Moreover, there is little doubt that defense counsel wanted to have the hearsay admitted not to attack the credibility of plaintiff's expert, but rather as substantive evidence corroborating his client's version of the accident. During the pre-trial argument on plaintiff's in limine motion to exclude the hearsay, defense counsel said that he did not want to introduce the police report, but rather wanted to introduce "the testimony of the police officer as to . . . what was told to him at the scene of the accident." Defense counsel did not cross-examine plaintiff's expert about the details in the police report, with the exception of the absence of skid marks, but instead had the expert read the hearsay statements to the jury. And in summation, after some brief introductory remarks, defense counsel stated: "The police report was read into the record by Mr. Nolte, it indicates that my client was insistent that he had his left directional on. I am not going to read the whole police report back to you again because Mr. Nolte read it to you. The operator of the vehicle exiting Maple [Ave.] was interviewed and relayed the same account . . . ."
A witness' prior consistent statement is admissible if "offered to rebut an express or implied charge against the witness of recent fabrication or improper influence or motive[.]" N.J.R.E. 803(a)(2). Wildermann's statement in the police report was not proffered for the purpose. --------
"[W]e have held, as a general if not immutable proposition, that '[i]t is improper to cross-examine a witness about inadmissible hearsay documents upon which the expert has not relied in forming his opinion.'" James v. Ruiz, 440 N.J. Super. 45, 76 (App. Div. 2015) (quoting Corcoran v. Sears Roebuck & Co., 312 N.J. Super. 117, 130 (App. Div. 1998)). Wildermann argues that the hearsay in the police report was admissible because plaintiff's expert relied on it. The record refutes that assertion.
Plaintiff's expert, Nolte, testified that the accident happened as plaintiff explained, not as defendant recounted and the witness corroborated. Although plaintiff's expert clearly relied on parts of the police report, he clearly did not rely upon every hearsay statement in the police report. And if the court had any question about whether such was the case, it should have conducted a brief hearing under N.J.R.E. 104 to make that determination.
We also note that the purpose for permitting an expert to detail the data underlying an opinion was not served by the court's ruling. The purpose is to apprise the jury of the basis of the opinion so that the jury can determine what weight, if any, to give it. See Agha, supra, 198 N.J. at 63. Here, both experts relied to some extent on the police report. The police officer testified at trial. Thus, the purpose of the rule would have been served simply by permitting each expert to testify that, among other data, he considered the police report as well as the officer's testimony. That approach would have informed the jury of the underlying data upon which the experts relied while simultaneously assuring that the jury did not consider the witness' hearsay statement as substantive evidence.
Wildermann argues, alternatively, that the hearsay in the police report can hardly be considered "substantially prejudicial" in view of two instructions given by the court in its charge to the jury: first, that the jury could consider hearsay statements relied upon by the experts for the limited purpose of evaluating the credibility of the experts' opinions and conclusions; second, the attorneys' closing statements were not to be considered as evidence. Those instructions were too little too late.
By the time the court gave those instructions, the jury had heard wholesale hearsay in the police report and defense counsel had emphasized in his closing comments that the hearsay corroborated his client's version of the accident. As we have previously explained, albeit with respect to hearsay medical testimony,
[w]e have serious doubts that most jurors in this particular context will be able to understand and follow an instruction that advises them to consider the absent radiologist's findings "only for impeachment, but not for their substance." The perils of such misuse are increased in closing arguments, as we envision that even counsel attempting to make legitimate reference to the absent radiologist's findings as grounds for impeachment will be hard-pressed to do so without suggesting, at least by implication, that the jury should use the radiologist's findings for their truth as an expert tie-breaker.
[James, supra, 440 N.J. Super. at 76-77.]
We have similar concerns here. In his closing comments, defense counsel suggested implicitly, if not explicitly, that the jury should consider the independent witness' statement for its truth and therefore as corroborative of Wildermann's testimony.
We review a trial court's evidential rulings for abuse of discretion. Estate of Hanges v. Metro. Prop. & Cas. Ins., 202 N.J. 369, 382 (2010). Here, where: the trial court admitted under N.J.S.A. 703 hearsay statements upon which plaintiff's expert did not base his opinion; the evidence presented by the parties was otherwise quantitatively balanced; the hearsay purported to be that of an independent witness who corroborated the testimony of one of the parties; the witness' hearsay statement was conclusory in nature; the hearsay clearly had the capacity to influence the outcome of the trial; and, the court admitted the evidence after concluding, without first conducting a hearing, that the expert relied on the hearsay statements in forming his opinion; the court's decision rested on an impermissible basis, was not premised upon consideration of all relevant factors, and thus constituted an abuse of discretion. Moraes v. Wesler, 439 N.J. Super. 375, 378 (App. Div. 2015). Accordingly, we reverse the judgment of no cause for action and remand for a new trial.
Plaintiff next contends that the court erred in dismissing on summary judgment the UIM claim against Drive New Jersey Insurance Company. Plaintiff has not included in the appellate record the trial court's written decision or a transcript of its oral decision. Appellants are required to include in their appendices those parts of the trial record that are essential to appellate review. R. 2:6-1(a)(1). Here, plaintiff has failed to do so. Accordingly, we dismiss that part of the appeal.
Reversed and remanded. We do not retain jurisdiction. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION