Opinion
DOCKET NO. A-5966-13T3
09-28-2016
EUNHYUK DO and MIN HEE KIM, Plaintiffs-Appellants, v. HYOUNGSUK KANG and KYUNGWON LEE, Defendants-Respondents.
Kimm Law Firm, attorneys for appellants (Michael S. Kimm and Adam Garcia, on the briefs). David C. Harper, attorney for respondents.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is only binding on the parties in the case and its use in other cases is limited. R.1:36-3. Before Judges Nugent and Haas. On appeal from Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-2922-11. Kimm Law Firm, attorneys for appellants (Michael S. Kimm and Adam Garcia, on the briefs). David C. Harper, attorney for respondents. PER CURIAM
In this verbal threshold case, plaintiffs Eunhyuk Do and Min Hee Kim appeal from an August 22, 2014 Law Division order denying their "supplemental" motion for a new trial concerning a judgment entered in favor of defendants Hyoungsuk Kang and Kyungwon Lee. The trial judge entered that judgment after a unanimous jury concluded plaintiffs each failed to prove that they sustained a permanent injury as a result of a car accident. We affirm.
Plaintiffs filed a complaint for injuries they each allegedly sustained on March 12, 2011, after the car in which they were driving was struck by defendant Kang's vehicle. Both plaintiffs asserted they suffered permanent injuries to their necks and backs in the accident. Kang stipulated to liability for the accident, but denied that either plaintiff sustained a permanent injury as required by N.J.S.A. 39:6A-8(a).
Defendant Lee is Kang's mother and was the owner of the car Kang was driving at the time of the accident.
The trial judge conducted a five-day trial in May 2014. The jury heard testimony from Do and a police officer concerning the accident. Plaintiffs' treating physicians did not testify. However, plaintiffs presented the testimony of a radiologist, Dr. Robert Traflet, who took MRIs of each plaintiff. Dr. Traflet stated that both plaintiffs had bulging or herniated discs in their cervical and lumbar spines. Another radiologist, Dr. Michael Amoroso, testified that plaintiffs had been injured in a prior car accident, but those injuries were not severe. Dr. Robert Dennis, an orthopedist, opined that the accident involved in this case made Kim's and Do's conditions "worse in a number of ways" and that their ailments were now permanent.
Defendants presented the testimony of two experts, Dr. Robert Goldstone and Dr. Roger Berg. Both doctors testified that neither plaintiff suffered permanent injuries as the result of the accident.
On May 12, 2014, the jury unanimously found that plaintiffs had not sustained permanent injuries in the March 12, 2011 accident. Plaintiffs filed a motion for a new trial on June 2, 2014, twenty-one days after the jury rendered its verdict. They argued the evidence did not support the jury's verdict and that the judge made facial expressions during Do's attorney's cross-examination of Dr. Goldstone that improperly conveyed her disapproval of the attorney's questions and strategy to the jury.
On July 18, 2014, the judge rendered a thorough written decision denying plaintiffs' motion. She found that plaintiffs' motion for a new trial was untimely because it was not filed within twenty days of the jury's verdict as required by Rule 4:49-1(b).
Nevertheless, the judge proceeded to consider and deny plaintiffs' application on its merits. The judge found that the evidence in the record, especially the testimony of defendants' experts, fully supported the jury's verdict.
The judge also rejected plaintiffs' contention that she acted improperly in any way during the cross-examination of Dr. Goldstone. The judge noted that when plaintiffs raised this allegation at trial during a sidebar, she made a specific finding that she had not made any disapproving facial expressions or gestures during the trial concerning the actions of any of the parties or their attorneys.
In addition, the judge immediately instructed the jury as follows:
Ladies and Gentlemen of the Jury[,] I remind you that you are the judges of the facts and that you alone are the judges of the facts. If you have observed during the trial any reaction or gestures by the court or counsel throughout this trial you are to disregard them because again you alone are the judges of the facts and you are to base your determination as to the facts based solely on the evidence that you hear from the witnesses in the witness box or from the evidence that is given to you at the conclusion of this case. Again[,] I will remind you, you are to keep an open mind and you shall not have any deliberations until the deliberations process which will begin after the conclusion of the case in terms of the closing statements and I have charged you as to the law and you begin your deliberations. Thank you.Therefore, the judge found that "not only did [she] not engage in any inappropriate conduct that would warrant a new trial, any potential prejudice that may have been contemplated by the jury through the court's alleged 'disapproving' demeanor would have been cured and that the weight of the evidence wholly supports the jury verdict."
On July 30, 2014, seventy-nine days after the jury rendered its verdict, plaintiffs filed a "supplemental" motion for a new trial. In this motion, plaintiffs asserted the judge refused to ask the prospective jurors all of the open-ended questions they requested as part of the voir dire.
On August 22, 2014, the trial judge rendered another comprehensive written opinion denying plaintiffs' motion, and again found that plaintiffs' motion was untimely under Rule 4:49-1(b). With regard to plaintiffs' contention concerning the open-ended questions, the judge pointed out that plaintiffs failed to provide her with a copy of the transcript of the parties' argument and her rulings concerning plaintiffs' suggested questions. However, the judge listened to a recording of that proceeding and confirmed that plaintiffs' attorneys had agreed with all of the open-ended questions proposed by the court, with two exceptions.
Kim's attorney asked the judge to pose the following question to the jurors during the voir dire: "Do you have an opinion whether we have an immigration problem in the United States; and if so what?" The judge denied this request because plaintiffs' immigration status was not an issue in the trial and the parties had already agreed not to raise this issue.
Kim's attorney also requested the judge to ask the jurors: "If a person came from abroad and has been residing in the country for several years but relies on English language interpreters for important matters, which of the following best describes how if reflects upon that person -- reflects somewhat negatively on them[;] neutral[;] reflects positively on them." However, the judge found that the substance of this question was already covered by the following standard voir dire question: "The plaintiffs require a Korean interpreter. Would the use of an interpreter affect your ability to be fair and impartial as a juror in this case?" The judge also permitted the attorneys to ask follow-up and additional questions of the jurors at sidebar during the voir dire.
"In light of the foregoing," the judge "reject[ed] plaintiffs' proposition that this court rejected 'wholesale' plaintiffs' proposed 'open-ended' questions in the within action. The court not only considered and discussed with all counsel the voir dire questions for the jury, but also proceeded with the jury-selection process with consent of all counsel." This appeal followed.
On appeal, plaintiffs contend that a new trial was warranted because: (1) the jury's verdict was against the weight of the evidence; (2) the judge's "prolonged facial expressions, gestures and voice tonality" during Do's attorney's cross-examination of Dr. Goldstone "improperly tilted the balance in favor of the defense"; (3) the judge refused to permit plaintiffs to "explore/present open[-]ended questions to the jury panel during selection"; and (4) the trial judge should have barred defendants' expert witnesses from testifying as to their "personal and non-medical opinions." Having considered these arguments in light of the record and applicable law, we conclude they have no merit.
At the outset, we are constrained to note that our review has been hampered by plaintiffs' failure to provide us with the complete transcripts of the trial. Rule 2:5-3(a) requires the appellant in a proceeding, such as plaintiffs in this case, to request a transcript "of the proceedings before the court . . . from which the appeal is taken." Specifically,
the transcript shall include the entire proceedings . . . , including the reasons given by the trial judge in determining a motion for a new trial, unless a written statement of such reasons was filed by the judge. The transcript shall not, however, include opening and closing statements to the jury or voir dire examinations or legal arguments by counsel unless a question with respect thereto is raised on appeal, in
which case the appellant shall specifically order the same in the request for transcript.
[Rule 2:5-3(b) (emphasis added).]
Here, plaintiffs raise issues relating to the trial judge's facial expressions in front of the jury, her voir dire questions, and her denial of their motion in limine to preclude defendants' medical experts from testifying, all issues that are germane to the appeal. However, plaintiffs have failed to provide a full transcript of the trial judge's jury instructions, her ruling on plaintiffs' proposed voir dire questions, or her decision and reasoning on plaintiffs' motion in limine. Plaintiffs also did not provide us with the entire transcript of Dr. Berg's testimony.
In view of these serious deficiencies, we could affirm the trial judge's denial of plaintiffs' motions for a new trial or, in the alternative, simply dismiss the appeal. Cipala v. Lincoln Tech. Inst., 179 N.J. 45, 55 (2004); Soc'y Hill Condo. Ass'n. v. Soc'y Hill Assocs., 347 N.J. Super. 163, 177-78 (App. Div. 2002). However, the judge's comprehensive written opinions detailing the factual underpinnings of each of her rulings permit us to address the merits of plaintiffs' contentions.
Turning to those contentions, we conclude that the trial judge properly denied plaintiffs' motions for a new trial because they were not filed within the time permitted by the Rules of Court. Rule 4:49-1(b) specifically states that "[a] motion for a new trial shall be served not later than [twenty] days after . . . the return of the verdict of the jury." Plaintiffs' first motion was filed twenty-one days after the jury's verdict; the second was filed seventy-nine days after the verdict.
The twenty-day time limit set forth in Rule 4:49-1(b) is one of the few time restrictions that a court may not relax, even if there are extenuating circumstances. R. 1:3-4(c); Baumann v. Marinaro, 95 N.J. 380, 389 (1984) ("The policies of expedition and finality that underlie these time limitations would be defeated by extending the time to file a motion for new trial under [Rule] 4:49-1."). Therefore, the judge properly denied plaintiffs' untimely motions.
However, even if plaintiffs had filed the motions within the time period mandated by Rule 4:49-1(b), the judge still correctly determined they lacked merit. Pursuant to Rule 4:49-1(a), a trial judge reviewing a motion for a new trial "shall grant the motion if, having given due regard to the opportunity of the jury to pass upon the credibility of the witnesses, it clearly and convincingly appears that there was a miscarriage of justice under the law." This standard applies whether the motion seeks to vacate the verdict as being against the weight of the evidence, or because the trial judge's evidential rulings irreparably tainted the fairness of the proceedings or the reliability of the verdict. Crawn v. Campo, 136 N.J. 494, 510-12 (1994).
Although we apply essentially the same standard on appeal, see Rule 2:10-1, we are bound to defer to the trial court's "feel of the case" derived from the judge's personal observations of the witnesses' testimony during the trial and other intangible factors that cannot be duplicated by or extracted from the examination of the transcribed record. Baker v. Nat'l State Bank, 353 N.J. Super. 145, 169 (App. Div. 2002). Mindful of this standard of review, and considering plaintiff's failure to provide us with the complete trial transcript, we discern no basis to vacate the jury's verdict.
There is ample evidence in the record to support the jury's verdict in favor of defendants. As the judge explained in her July 18, 2014 written decision, defendants presented two medical experts "who testified that neither plaintiff suffered permanent injuries as a result of the subject accident." Plaintiffs also conceded they were both seriously injured in prior accidents. Significantly, the judge noted that plaintiffs' experts did not fully "review all of the earlier medical records and compare the prior injuries to the alleged permanent injuries herein."
In terms of its assessment of the relative strength of the proofs, a jury verdict is "impregnable unless so distorted and wrong, in the objective and articulated view of a judge, as to manifest with utmost certainty a plain miscarriage of justice." Doe v. Arts, 360 N.J. Super. 492, 502-03 (App. Div. 2003) (quoting Carrino v. Novotny, 78 N.J. 355, 360 (1979)). In light of the proofs submitted at trial, we are unable to conclude that the jury's verdict represented such a miscarriage of justice. Therefore, we reject plaintiffs' contention on this point.
Plaintiffs' argument that the judge improperly made facial expressions and gestures during the trial also lacks merit. It is well recognized that a trial judge's "official expressions of displeasure or disapproval may convey to the jury the belief that defense counsel was somehow acting improperly, disrespectfully, or deceptively." State v. Tilghman, 385 N.J. Super. 45, 59 (App. Div. 2006) (citing State v. Guido, 40 N.J. Super. 191, 208 (1963)). Therefore, "[a] judge must conduct a trial in a fair and impartial manner, refraining from remarks that might prejudice a party or might influence the minds of the jury." Id. at 60 (quoting Mercer v. Weyerhaeuser Co., 324 N.J. Super. 290, 297-98 (App. Div. 1999)).
The record does not support plaintiffs' contention that the judge departed from these settled principles. Indeed, when plaintiffs first raised this argument during a sidebar, the judge immediately stated she made no gestures or comments concerning any of the attorneys' actions in the trial and she then made specific findings on the issue. In addition, the judge stated that "[i]n an abundance of caution," she would provide the jury with a curative instruction reminding them to disregard "any reaction or gestures by the court or counsel" during the trial. We "rely upon the jurors' ability and willingness to follow the [trial judge's] instruction without cavil or question." State v. Manley, 54 N.J. 259, 270 (1969). Under these circumstances, plaintiffs were not entitled to a new trial.
Although plaintiffs have failed to provide us with the portion of the trial transcript containing this instruction, the judge quoted it verbatim in her July 18, 2014 written opinion.
Without providing us with the transcript of the parties' arguments concerning the questions to be posed to prospective jurors during the voir dire, plaintiffs next argue the judge erred by not permitting them to ask the specific open-ended questions they requested. However, the judge explained in her August 22, 2014 written opinion that she reviewed all of plaintiffs' proposed questions and the parties agreed, with two exceptions, that plaintiffs' suggested inquiries were already substantially incorporated in the questions the judge ultimately asked the jurors. The judge also permitted the attorneys to ask additional and follow-up questions at sidebar. Under these circumstances, we are satisfied the judge fairly and sufficiently questioned the jurors to permit all parties to intelligently exercise their preemptory challenges during the voir dire.
Because plaintiffs' immigration status was not an issue in this case, the judge properly denied plaintiffs' request to ask the jurors about their views on immigration. The judge also correctly found that plaintiffs' proposed question about the jurors' views on the use of an interpreter was already part and parcel of a standard question she agreed to pose during the voir dire. --------
Finally, the judge properly denied plaintiffs' motions to bar the testimony of defendants' experts. "[W]e rely on the trial [judge's] acceptance of the credibility of the expert's testimony and the court's fact-findings based thereon, noting that the trial court is better positioned to evaluate the witness' credibility, qualifications, and the weight to be accorded [his] testimony." In Re D.M.H., 161 N.J. 365, 382 (1999) (citing Bonnco Petrol, Inc. v. Epstein, 115 N.J. 599, 607 (1989)). Therefore, we exercise limited review of a trial judge's decision to admit or exclude expert testimony. See Townsend v. Pierre, 221 N.J. 36, 52-53 (2015) ("The admission or exclusion of expert testimony is committed to the sound discretion of the trial court."); Hisenaj v. Kuehner, 194 N.J. 6, 12 (2008) (stating that trial court's evidentiary decision to admit expert testimony is reviewed for an abuse of discretion).
Contrary to plaintiffs' contentions on appeal, neither expert's report was entered into evidence and, to the extent we have been provided with transcripts of their testimony, neither expert made personal or disparaging remarks about plaintiffs' medical witnesses. Rather, Dr. Goldstone and Dr. Berg merely stated their opinions on the permanency of plaintiffs' injuries, which was the central issue in this case. Therefore, the admission of this testimony did not result in a miscarriage of justice warranting a new trial.
Under these circumstances, we discern no legal basis to disturb the jury's verdict.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION