Opinion
DOCKET NO. A-0692-14T2
04-07-2016
GIULIA SABATINO and RAIMONDO SABATINO, Plaintiffs-Respondents, v. MARIA SANTOS-PUMA, Defendant-Appellant, and PETER J. PUMA, Defendant.
John J. Russo argued the cause for appellant (DiFrancesco, Bateman, Coley, Yospin, Kunzman, Davis, Lehrer & Flaum, P.C., attorneys; Mr. Russo, on the briefs). Edward P. Capozzi argued the cause for respondents (Seigel Capozzi Law Firm, LLC and Stuart M. Kurtzer, P.A., attorneys; Mr. Capozzi and Mr. Kurtzer, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Simonelli, Carroll and Sumners. On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. L-6414-12. John J. Russo argued the cause for appellant (DiFrancesco, Bateman, Coley, Yospin, Kunzman, Davis, Lehrer & Flaum, P.C., attorneys; Mr. Russo, on the briefs). Edward P. Capozzi argued the cause for respondents (Seigel Capozzi Law Firm, LLC and Stuart M. Kurtzer, P.A., attorneys; Mr. Capozzi and Mr. Kurtzer, on the brief). PER CURIAM
In this personal injury matter, defendant Maria Santos-Puma appeals from the August 8, 2014 final judgment entered in favor of plaintiff Giulia Sabatino, and from the September 12, 2014 order, which denied her motion for a new trial. On appeal, defendant challenges two evidentiary rulings: the barring of records of plaintiff's pre-accident chiropractic treatment, and the admission of evidence of plaintiff's lost wages. Defendant also argues that plaintiff's counsel's closing statements constituted plain error requiring reversal. For the following reasons, we affirm.
I.
Plaintiff's claims against defendant stemmed from an automobile accident on March 23, 2011. Plaintiff, then sixty-one years old, worked as an accountant at Hoffman-LaRoche for twenty-two years with an unblemished attendance history. She was driving to work when she was struck on the driver's side by a vehicle driven by defendant, who failed to yield at a stop sign. Immediately after the collision, plaintiff complained of severe neck pain, and was transported to the hospital. She alleged that as a result of the accident, she suffered from headaches and permanent injuries to her neck, right wrist, right hand and right shoulder, and was forced to retire prematurely on August 1, 2012. Defendant conceded liability, and the matter proceeded to a jury trial on the issues of permanency of plaintiff's injuries and damages.
The record reveals that two months prior to the accident, on January 3, 2011, plaintiff went to a chiropractor, Nicholas Stabile, D.C., complaining of pain in her left shoulder. Dr. Stabile's January 3, 2011 case history note was contradictory: it first stated that plaintiff reported having left shoulder problems for seven years, and then stated she denied having a history of or currently having any shoulder pain. The case history note also stated that plaintiff reported a history and present complaints of upper back and neck pain. Dr. Stabile indicated in eight subsequent pre-accident office visit notes that he treated plaintiff primarily for her left shoulder pain with related treatment to her neck.
Dr. Stabile also treated plaintiff post-accident. In her answers to interrogatories, plaintiff identified him as one of her expert witnesses; however, prior to jury selection, her attorney stated that Dr. Stabile would not testify and plaintiff would testify she never complained to him of neck pain. Counsel moved to bar introduction of the January 3, 2011 case history note on hearsay grounds.
In opposition, defendant argued the case history note was admissible under the hearsay exception of N.J.R.E. 803(c)(4) as a statement made for the purpose of medical treatment. Citing no evidentiary rule, defendant also sought admission of all of Dr. Stabile's pre-accident office visit notes to show that plaintiff complained of and was treated for neck pain prior to the accident.
The trial judge reviewed the January 3, 2011 case history note, saw it was not signed, and found it was "self-contradictory" that plaintiff would report a history of shoulder pain and then deny it a few sentences later. The judge barred the document, finding it was contradictory, unreliable, and equivocal. The judge added, "I don't think it's probative. Because it's not trustworthy. And it, I think, may be more [confusing]. And I don't know how any expert can come in, frankly, and say and choose which version of this report he believes."
The judge repeatedly stated that in order for the case history note to be admitted into evidence, Dr. Stabile must testify about its contents. The judge emphasized that defendant was aware of Dr. Stabile and could have issued him a subpoena prior to the trial. The judge also noted that allowing defendant's expert to testify about the case history note would not add anything of value because of the two inherently contradictory statements. The judge barred admission and use of the document to establish that plaintiff complained of neck pain prior to the accident, unless Dr. Stabile testified. Nevertheless, the judge permitted defense counsel to ask plaintiff if she ever told Dr. Stabile on January 3, 2011 that she had prior neck pain.
The record does not reveal that defendant requested an adjournment of the trial in order to serve a subpoena on Dr. Stabile in compliance with the time requirements of Rule 1:9-1.
On direct examination, plaintiff testified that prior to the accident: she never complained of or treated with any doctor for neck pain; Dr. Stabile only treated her for left shoulder pain; and she never complained to him of neck pain. On re-direct examination, she reviewed the January 3, 2011 case history note and denied complaining to Dr. Stabile of anything other than left shoulder pain. On re-cross examination, she again reviewed the case history note and denied telling Dr. Stabile that she had prior neck pain. In addition, on cross-examination, plaintiff's orthopedic expert testified that plaintiff treated with Dr. Stabile both pre- and post-accident; and on cross-examination, plaintiff's pain management expert testified that plaintiff had pre-accident treatment with Dr. Stabile directed mainly to her left shoulder with some complaints of upper back and neck pain that did not affect her ability to function and work on a daily basis. Thus, the jury heard evidence of plaintiff's pre-accident treatment with Dr. Stabile.
The jury found that plaintiff proved she sustained a permanent injury proximately caused by the accident, and that she retired as a result of the accident. The jury awarded her $89,760 for past lost wages and $100,000 for pain and suffering.
Defendant filed a motion for a new trial, only arguing that Dr. Stabile's notes were admissible pursuant to N.J.R.E. 803(c)(4). The judge denied the motion, finding that prior to the accident,
Defendant also raised other arguments that are not pertinent to this appeal.
there is no evidence of plaintiff's neck interfering with her work; only the post-accident chiropractic notes provide that severe edema of the neck was found right after the accident. In light of this testimony, the [c]ourt reviewed the pre-accident chiropractic notes dated January 3rd through February 21st, 2011, which the defense sought to use on cross-examination, and/or to refresh the witness' recollection in connection with the testimony of defense expert[.]
Under [N. J.R.E.] 802, the [c]ourt found these notes to be untrustworthy and unreliable, and several factors led the [c]ourt to find the notes were cast in considerable evidentiary doubt. Notably, the defense did not call [Dr. Stabile] as a witness during the trial; therefore, there was no testimony as to how or when or who prepared the computer-generated notes, or what they meant; simply[] put a proper a foundation for the admission was not laid under N.J.R.E. 803(c)(4) or (6).
II.
Defendant argues in Points I and II that the January 3, 2011 case history note was admissible under N.J.R.E. 803(c)(4), and the judge deprived her of a fair trial by barring the document. We disagree.
We decline to address defendant's additional contentions that all of Dr. Stabile's pre-accident notes were admissible under N.J.R.E. 703, 803(a), (b) and (c)(3). Defendant did not raise these issues before the trial judge and they do not concern the court's jurisdiction or a matter of public interest. Alloway v. Gen. Marine Indus., L.P., 149 N.J. 620, 643 (1997). We also will not consider documents included in defendant's appendix (defense counsel's January 15, 2014 certification and excerpts from the 2010 CPT manual) that were not presented to the trial judge, and will not consider any arguments based thereon in defendant's merits brief. See N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 278 (2007). --------
We review a trial court's evidentiary rulings for abuse of discretion. Parker v. Poole, 440 N.J. Super. 7, 16 (App. Div.), certif. denied, 223 N.J. 163 (2015) (quoting Hisenaj v. Kuehner, 194 N.J. 6, 12 (2008)). "[An] abuse of discretion only arises on demonstration of 'manifest error or injustice[,]'" Hisenaj, supra, 194 N.J. at 20 (quoting State v. Torres, 183 N.J. 554, 572 (2005)), and occurs when the trial judge's "decision is made without a rational explanation, inexplicably departed from established policies, or rested on an impermissible basis." Jacoby v. Jacoby, 427 N.J. Super. 109, 116 (App. Div. 2012) (quoting Flagg v. Essex Cty. Prosecutor, 171 N.J. 561, 571 (2002)). On appeal, we defer to a trial court's evidentiary ruling and will not reverse unless it was "so wide of the mark that a manifest denial of justice resulted[.]" Brenman v. Demello, 191 N.J. 18, 31 (2007).
We will not reverse a trial court's decision to deny a motion for a new trial "unless it clearly appears that there was a miscarriage of justice under the law." R. 2:10-1. We "must afford 'due deference' to the trial court's 'feel of the case,' with regard to the assessment of intangibles, such as witness credibility." Jastram v. Kruse, 197 N.J. 216, 230 (2008) (quoting Feldman v. Lederle Labs., 97 N.J. 429, 463 (1984)). Applying all of the above standards, we discern no reason to disturb the judge's rulings.
N.J.R.E. 803(c)(4) permits admission of
Statements made in good faith for purposes of medical diagnosis or treatment which describe medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof to the extent
that the statements are reasonably pertinent to diagnosis or treatment.The justification for admission under N.J.R.E. 803(c)(4) is that "such statements possess inherent reliability because the patient believes that the effectiveness of the treatment he receives may depend largely upon the accuracy of the information he provides the physician." R.S. v. Knighton, 125 N.J. 79, 87 (1991) (citation omitted).
Absent Dr. Stabile's testimony that plaintiff made the statements contained in the January 3, 2011 case history note, there was no competent evidence that she was the source of the statements. To the contrary, plaintiff testified she did not make the statements. Accordingly, the document lacked the inherent reliability and accuracy necessary for admission into evidence. As the proponent of the document, defendant had the burden of establishing the prerequisites of admissibility by a preponderance of the evidence. See State v. James, 346 N.J. Super. 441, 457 (App. Div.), certif. denied, 174 N.J. 193 (2002). Defendant failed to do so. Accordingly, the judge properly barred admission of the document.
III.
Defendant contends in Point III that the judge erred in permitting the jury to consider plaintiff's lost wage claim. Defendant argues there was no expert evidence on plaintiff's need to retire as a result of the accident.
Plaintiff's medical expert testified that she suffered cervical injuries that were caused by the accident, were permanent in nature, progressed to require cervical fusion surgery, and would never heal to function normally. Plaintiff testified that she attempted to continue working but the pain was "unbearable" and she was unable to concentrate on the duties of her job, which involved accounting for millions of dollars. Plaintiff also testified that had she not been injured, she would have worked until age sixty-five and retired in the summer of 2015 instead of 2012. Plaintiff also presented evidence of lost income as part of her damages, the difference between what she would have earned.
Plaintiff bore the burden of proof regarding damages. Caldwell v. Haynes, 136 N.J. 422, 436 (1994). Because this was a tort action where plaintiff claimed a permanent injury, she was required to produce objective, credible medical evidence as to the permanency of the injury. See N.J.S.A. 39:6A-8(a). Once she satisfied this burden, the consideration for the jury was how to quantify an appropriate damage award. Factors to be considered were plaintiff's income before the injuries and the effect of the injuries on her ability to do any tasks required on the job. See Model Jury Charge (Civil), 8.11C, "Loss of Earnings-Past Lost Earnings" (2010). An expert was not needed to testify to the plaintiff's subjective experiences, including pain and suffering. J.W. v. L.R., 325 N.J. Super. 543, 547 (1999). Rather, all that was required in assessing damages is that they be shown with "such certainty as the nature of the case may permit," to allow the jury "some evidentiary and logical basis for calculating or, at least, rationally estimating a compensatory award." Caldwell, supra, 136 N.J. at 436.
Plaintiff's medical expert testified to the severity and permanency of her injuries within a degree of reasonable medical certainty. Having presented evidence of a permanent injury resulting from the accident, the jury was free to accept and credit her testimony as to the effect of her injuries on her ability to continue performing the functions of her job in assessing her lost wage claim. The fact that plaintiff produced no expert testimony on this point is of no moment. Plaintiff's ability to prove permanency of her injuries was all that was required for the jury to assess her lost wage claim.
IV.
Defendant contends in Point IV that plaintiff's counsel's summation comments constituted plain error. This contention lacks merit.
Counsel is afforded broad latitude in summation and "may draw conclusions even if the inferences that the jury is asked to make are improbable, perhaps illogical, erroneous or even absurd[.]" Colucci v. Oppenheim, 326 N.J. Super. 166, 177 (App. Div. 1999), certif. denied, 163 N.J. 395 (2000). Counsel's comments, however, "must be confined to the facts shown or reasonably suggested by the evidence introduced during the course of the trial." Ibid.
Courts presume that counsel will object to summation comments which unfairly characterize the evidence, and consider the failure to do so "as 'speaking volumes about the accuracy of what was said.'" Tartaglia v. UBS PaineWebber, Inc., 197 N.J. 81, 128 (2008) (quoting Fertile v. St. Michael's Med. Ctr., 169 N.J. 481, 495 (2001)). When counsel fails to object, courts apply the plain error standard of review. Ibid.; R. 2:10-2. "[T]he question of whether plain error occurred depends on whether the error was clearly capable of producing an unjust result. Relief under the plain error rule, Rule 2:10-2, at least in civil cases, is discretionary and should be sparingly employed." Baker v. Nat'l State Bank, 161 N.J. 220, 226 (1999) (citation omitted).
First, it is clear that counsel's comments were not improper. The particular comments which defendant challenges were as follows:
[PLAINTIFF'S COUNSEL]: Now I just want to talk about [defendant's expert] briefly and then we'll forget about him for the rest of my life. [Defendant's expert], the guy who makes $307,000 a year who's been doing this for years, so think about how much money this person's made. Does 245 exams a year.
. . . .
He's trying to mislead you. And he has 307,000 reasons to do it.
Defendant relies on Szczecina v. PV Holding Corp., 414 N.J. Super. 173, 185 (App. Div. 2010), for the proposition that "[d]erisive [s]tatements and invective directed at opposing witnesses places a verdict at risk even in the absence of any objection." Defendant further argues that it is improper to allege that an expert's opinion is based not on the record, but on the size of a fee. See State v. Marquez, 277 N.J. Super. 162, 172 (App. Div. 1994), certif. denied, 141 N.J. 99 (1995).
Defendant's reliance on Marquez and Szczecina is misplaced. First, Marquez is factually distinguishable. There, the prosecutor suggested to the jury, without any support in the record, that the witnesses had a financial incentive in testifying. Marquez, supra, 277 N.J. Super. at 172. Here, during cross-examination of defendant's expert, plaintiff elicited specifics about his involvement in legal matters and the amount of compensation he received. Accordingly, plaintiff's counsel's comment simply restated what was already in the record.
As well, counsel's comments are distinguishable from those admonished in Szczecina. In Szczecina, the plaintiff's counsel's comments were much more lengthy and frequent, and counsel asked the jury to "send a message" through its verdict. See Sczcecina, supra, 414 N.J. Super. at 181-84. The characterization of defendant's expert cannot reasonably be said to be disparaging or invective. Counsel used no inappropriate or overly argumentative language, and his comments were constrained to the expert's possible bias in testifying. Further, counsel's comments were based on facts elicited during cross-examination.
In Rodd v. Raritan Radiologic Associates, P.A., 373 N.J. Super. 154, 171 (App. Div. 2004), the plaintiff's counsel suggested that the defendant missed evidence of cancer because he was more concerned about making money. Counsel also stated that the opposing party's witness was a professional witness who adjusted his testimony in every case. This court found that although attorneys are given broad latitude, they "may not use disparaging language to discredit the opposing party [] or witness[.]" Ibid. (citations omitted). Accordingly, counsel's comments were not "unduly harsh and [did not] amount [] to an attack on . . . [the] witness's integrity." Rodd, supra, 373 N.J. Super. at 171.
We have also held that the amount of an expert's compensation is probative of bias. See e.g., Gensollen v. Pareja, 416 N.J. Super. 585, 591 (App. Div. 2010). Particularly, counsel may argue to a jury that an expert is a "hired gun" or "professional witness" if those suggestions are supported by evidence. Id. at 590; see also Espinal v. Arias, 391 N.J. Super. 49, 61 (App. Div.) (finding that "an expert's multiple appearances in court are fair game for cross-examination"), certif. denied, 192 N.J. 482 (2007).
Notably, in cases where counsel's comments were inappropriate, our Supreme Court has suggested that the trial judge utilize a curative instruction to avoid the comments infecting the jury's decision. See Bender v. Adelson, 187 N.J. 411 (2006). Here, even though counsel's comments were fair, the judge instructed the jury as follows:
The lawyers are here as advocates for their clients. In their opening statements and in their summations they have given you their views of the evidence, their arguments in
favor of their clients' position. That's their job. While you may consider their comments, nothing that the attorneys say is evidence and their comments are not binding upon you.
Lastly, defendant challenges counsel's statements that plaintiff "never went to a doctor for her neck or her back in her whole life" and "plaintiff did not have any accidents, injuries or treatment prior to the accident." Defendant appears to argue that based on Dr. Stabile's records, these statements are false. However, for the reasons expressed supra, the judge properly barred admission of those documents, and there was no evidence plaintiff had any pre-accident treatment to her neck or back.
In sum, plaintiff's counsel's remarks may not have been the most appropriate. However, considering the circumstances, including their brevity and factual basis, counsel was allowed to argue that defendant's expert was biased and the expert's interpretation of the facts was incorrect. It cannot be said that counsel's summation, viewed in its totality, was so egregious as to be capable of producing an unjust result.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION