Opinion
DOCKET NO. A-4977-13T2
06-14-2016
OK CHOI and SUNG SU CHOI, Plaintiffs-Appellants, v. McGHW FOODS d/b/a McDONALD'S and McDONALD's CORPORATION, Defendants-Respondents.
Nicholas G. Sekas argued the cause for appellants (Sekas Law Group, LLC, attorneys; Mr. Sekas and Philip M. Taylor, on the briefs). Daniel S. Jahnsen argued the cause for respondents (Bolan Jahnsen Dacey, attorneys; Mr. Jahnsen, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Reisner, Hoffman and Whipple. On appeal from Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-3423-11. Nicholas G. Sekas argued the cause for appellants (Sekas Law Group, LLC, attorneys; Mr. Sekas and Philip M. Taylor, on the briefs). Daniel S. Jahnsen argued the cause for respondents (Bolan Jahnsen Dacey, attorneys; Mr. Jahnsen, on the brief). PER CURIAM
Plaintiff Ok Choi slipped and fell from a defective chair at a McDonald's Restaurant, suffering injuries to her back, shoulder, and knee. Plaintiff and her husband, Sung Su Choi, brought this action against defendants McGHW Foods and McDonald's Corporation, seeking damages for medical bills, pain and suffering, and loss of consortium. After a nine-day trial, a jury found defendants liable for negligence and awarded plaintiffs a total of $8,500, an amount well below defendants' $75,000 offer of judgment. Plaintiffs appeal, contending that the trial judge erred by declining to dismiss a biased juror for cause, making two incorrect evidentiary decisions, and allowing defense counsel to make improper remarks during closing arguments. For the reasons that follow, we affirm.
In this opinion, we refer to Ok Choi and her husband Sung Su Choi collectively as "plaintiffs," and Ok Choi individually as "plaintiff."
I.
We derive the salient facts from the trial record. On July 11, 2010, plaintiff was injured at a McDonald's Restaurant in Fairfield. She was sitting on a chair inside the restaurant when the chair broke, causing her to fall to the ground and sustain injuries. She was sixty-two years old at the time, and was taken by ambulance to the emergency room at Mountainside Hospital. The hospital records show that plaintiff denied any back, neck, or knee pain on the day of the accident, and declined to undergo x-rays. She was discharged the same day with a diagnosis of "contusions" to her right shoulder, right elbow, and right pinky finger.
Plaintiff testified that, following the accident, she began to experience pain in her back, knee, and shoulder. After four months of unsuccessful acupuncture treatment, she sought medical opinions from various orthopedists. Plaintiff was ultimately diagnosed with a torn meniscus and a partially torn rotator cuff. She underwent surgery on her knee and received a steroid injection in her shoulder in April 2011. Additionally, plaintiff underwent a laminectomy in August 2012 and a neck fusion in July 2013.
Plaintiffs filed their complaint on April 9, 2013, and the matter was tried in the Law Division beginning on April 21, 2014. Plaintiffs both testified, with the assistance of a Korean-to-English translator. Additionally, plaintiffs called the following witnesses at trial: Officer Christopher Andrews who, along with his partner, Officer David Kane, responded to the scene of the accident; Dr. James Pugh, an expert in biomechanics; Dr. Christopher Kyriakides, an orthopedist who oversaw plaintiff's treatment; Dr. Thomas Scilaris, the surgeon who performed plaintiff's knee surgery; and Dr. Yong Kim, the surgeon who performed plaintiff's neck fusion. In addition, the jury heard testimony that plaintiff incurred $99,421.94 in medical bills throughout the course of her treatment.
During Officer Andrews' direct examination, plaintiffs' counsel attempted to admit a police report that was authored by Officer Kane on the day of the accident. Officer Kane had since retired, and was not available to testify. The judge sustained a hearsay objection to the police report, on the basis that "[i]t's like a doctor, either the doctor goes in evidence or the report goes in evidence." The judge rejected plaintiffs' argument in favor of the business-records exception to the hearsay rule, stating:
It's too late now. If you brought in someone from the police department and no one offered testimony, then you should admit it as a business [record] that would be no problem. But now what you're doing is you're bringing in someone to testify. You don't have a doctor testifying plus [get] his report in.
. . . .
My ruling is he can testify. But he can't testify and put the report in. You got to do one or the other.
Dr. Pugh's testimony focused on the causal link between defendants' negligence and plaintiff's injuries. In particular, he testified that plaintiff's chair gave out from under her because a main bolt used to hold the chair together was loose, and popped out completely when she was sitting on the chair. Dr. Pugh conveyed his opinion to the jury that defendants were negligent for failing to properly inspect the chair, and that a proper inspection would have revealed that the bolt was loose and required repair.
After plaintiffs rested their case-in-chief, defendants called the following witnesses: Shane Perkins, Director of Medical Records at Mountainside Hospital; Nellie Thomas, owner of McGHW Foods; Leeann Cucciniello, a nurse employed at Mountainside Hospital in July 2010; Eloina Bonola, a McDonald's employee who was working at the time plaintiff was injured; Dr. Roger Berg, an expert in radiology; and Dr. Kevin Egan, an expert in orthopedic surgery, whose video deposition was played for the jury.
Bonola testified that plaintiff was talking to another person as she went to sit in the chair, and ended up sitting on the edge of the chair. Based upon this testimony, defense counsel argued to the jury in his summation, "What most likely happened here is that she sat on the edge of the chair, as opposed to sitting in the middle of the chair and, consequently, when it . . . rotated, she fell forward."
Prior to Dr. Berg's testimony, defense counsel sought to introduce plaintiff's hospital records. Plaintiffs' counsel did not object to the admission of the records into evidence; however, he requested that the records be redacted to omit the doctor's diagnosis of "contusions," pursuant to N.J.R.E. 808. The judge rejected this argument and allowed the hospital records to be admitted, stating: "[Dr. Berg is] testifying as to what [plaintiff's] diagnosis was at the time. The same as a doctor would say I got the radiologist's report and it says a herniated disc. . . . I'm not going to exclude it . . . ."
During summations, defense counsel made several remarks to the jury that are now at issue on appeal. In particular, he told the jury that "[t]he doors to this Courthouse are to the Courthouse, not a casino." Plaintiffs also contend that defense counsel suggested to the jury that they were only pretending to need a translator, and that plaintiffs' counsel improperly insinuated to the jury that the hospital records were untrustworthy.
The jury returned its verdict on May 2, 2014, finding defendants seventy-five-percent at fault, and awarding plaintiffs a total of $8,500 — $5,000 for medical bills, $2,500 for pain and suffering, and $1,000 for loss of consortium. Thereafter, plaintiffs filed a motion for a new trial on the issue of damages or, alternatively, for additur, claiming that throughout the trial, defendants' counsel made inappropriate remarks which instilled the jury with undue prejudice.
The trial judge denied the motion, making the following observations about defense counsel's summation:
One of the issues dwelt upon is the fact that the defense brought up the issue in closing a couple of times . . . in regard to the use of the interpreter throughout the trial.The trial judge also declined to overturn or add to the damages award:
Perhaps if they asked these questions, and never went to the second stage, perhaps there could be something as far as bias or prejudice, but I believe that the defense clearly throughout the process of the cross-examination and/or closing to the jury made this issue and said to the jury this, you have credibility here, there's problems with credibility. Whether or not the jury would believe him, they're entitled to bring out credibility issues, which he did.
Do I think that they were handled in a way which would cause me to believe they were sort of a racial bias or a miscarriage of justice, . . . I can't pinpoint any type of what I would call remarks, other than the issue of credibility, and they're entitled to mention credibility. I mean, the whole system of justice is based on credibility of plaintiff vs. defendant witnesses.
[S]ometimes you have to look at [the jury verdict sheet] to see if there's a pattern, and if there's some complete inconsistency that doesn't make any sense whatsoever. But there isn't one here. They believed that the defendants were negligent, they believe that the plaintiff suffered an injury, but what it boiled down to was they didn't believe her injury was as severe as her claims.
Therefore, based upon my ruling, and based upon what I've just come down to, I cannot just throw out a jury's verdict for miscarriage of justice or additur. I can't rely upon what I think a case should have come down for, or what I think it's worth, [unless] it shocks me tremendously. And I have to find something to hang my hat on if I did say it shocks me, and I just can't do it.
II.
On appeal, plaintiffs argue that the trial judge committed four reversible errors: failing to dismiss a biased juror for cause; barring admission of Officer Kane's police report; permitting admission of the diagnosis found in plaintiff's hospital records; and failing to intervene when defense counsel made improper comments to the jury during summations. We reject plaintiffs' contentions, finding no reversible error.
We first address plaintiffs' argument that the trial judge committed error by failing to dismiss a biased juror for cause. Plaintiffs argue that the trial judge abused his discretion by not dismissing a juror, for cause, who expressed opinions in favor of tort reform during voir dire. These opinions included his belief that the tort system was "out of control," and that he would "limit" a plaintiff's recovery based on his own perceptions of right and wrong.
Because plaintiff did not move for the judge to remove the juror for cause, or raise any objection to him remaining on the panel, we consider whether, in the interests of justice, we should recognize plain error. See R. 2:10-2. We must determine whether the claimed error had the clear capacity to produce an unjust result. R. 2:10-2. Failure to object to the jury selection at trial raises the presumption that trial counsel perceived no prejudice affecting the plaintiff's substantial rights. See State v. Wilbely, 63 N.J. 420, 422 (1973).
Plaintiffs maintain that they did not raise an objection because they had exhausted their preemptory challenges; however, even if they were out of preemptory challenges, plaintiffs were not precluded from seeking the juror's dismissal for cause. --------
Litigants are entitled to "an unbiased jury" and "a fair jury selection process." Pellicer v. St. Barnabas Hosp., 200 N.J. 22, 40 (2009) (citing Catando v. Sheraton Poste Inn, 249 N.J. Super. 253, 259 (App. Div.), certif. denied, 127 N.J. 550 (1991)). Voir dire determinations are traditionally within the broad discretionary powers vested in the trial court and "its exercise of discretion will ordinarily not be disturbed on appeal." State v. Murray, 240 N.J. Super. 378, 392 (App. Div. 1990) (citing R. 1:8-3(a)). Accordingly, we will not reverse a trial court's decision regarding removal of a juror for cause unless the court has abused its discretion. State v. DiFrisco, 137 N.J. 434, 459 (1994), cert. denied, 516 U.S. 1129, 116 S. Ct. 949, 133 L. Ed. 2d 873 (1996).
After reviewing the voir dire colloquy in its entirety, we discern no abuse of discretion, and thus no error, by the trial judge for allowing this individual to sit on the jury. After further questioning from both the trial judge and defense counsel, the juror confirmed that he could be fair, follow the judge's instructions, and deliberate without preconceived notions about personal-injury lawsuits. Given the assurances provided by the juror regarding his ability to be fair and impartial, we conclude that the trial judge was not required to dismiss the juror for cause sua sponte. Discerning no error, we obviously find no plain error, and no basis for reversal on this ground.
Next, we address plaintiffs' challenges to two of the trial judge's evidentiary decisions. We review such decisions for abuse of discretion. State v. Nantambu, 221 N.J. 390, 402 (2015). We give substantial deference to the trial judge's discretion on evidentiary rulings, Benevenga v. Digregorio, 325 N.J. Super. 27, 32 (App. Div. 1999), certif. denied, 163 N.J. 79 (2000), and reverse only where the judge's ruling was "so wide of the mark that a manifest denial of justice resulted." State v. Carter, 91 N.J. 86, 106 (1982). We discern no abuse of discretion here.
Plaintiffs argue that the trial judge improperly barred the police report authored by Officer Kane as hearsay. They assert that the report was an admissible business record pursuant to N.J.R.E. 803(c)(6); however, we need not address the merits of this particular evidentiary decision because plaintiffs received a favorable verdict regarding liability. Even assuming that the police report was improperly excluded from evidence, the report, if admitted, would not have had any effect on the damages award. Further, Officer Kane did not witness the accident, and his report would not have affected the jury's allocation of fault between defendant and plaintiff. Thus, even if the trial court erred by barring the police report, such error was harmless because it was not "clearly capable of producing an unjust result." R. 2:10-2.
Plaintiffs next argue that the trial judge improperly allowed admission of the diagnosis in plaintiff's hospital records, contrary to N.J.R.E. 808, which provides:
Expert opinion which is included in an admissible hearsay statement shall be excluded if the declarant has not been produced as a witness unless the trial judge finds that the circumstances involved in rendering the opinion, including the motive, duty, and interest of the declarant, whether litigation was contemplated by the declarant, the complexity of the subject matter, and the likelihood of accuracy of the opinion, tend to establish its trustworthiness.
[N.J.R.E. 808.]
On one hand, this rule precludes the admission of complex medical reports when the non-moving party does not have the opportunity to cross-examine the author of the report. Nowacki v. Cmty. Med. Ctr. 279 N.J. Super. 276, 282-83 (App. Div.), certif. denied, 141 N.J. 95 (1995). It is "clearly established that medical opinions in hospital records should not be admitted under the business records exception where the opponent will be deprived of an opportunity to cross-examine the declarant on a critical issue such as the basis for the diagnosis or cause of the condition in question." Ibid.
On the other hand, when "[t]he included hearsay to which plaintiff objected was a straightforward observation of a treating physician[,]" it is generally admissible. Blanks v. Murphy, 268 N.J. Super. 152, 164 (App. Div. 1993). "It has long been the law that hearsay statements upon which an expert relies are admissible, not for establishing the truth of their contents, but to apprise the jury of the basis of the opinion reached." State v. Humanik, 199 N.J. Super. 283, 305 (App. Div.), certif. denied, 101 N.J. 266 (1985).
In this case, the diagnosis in plaintiff's hospital records falls more squarely into the latter category; that is, it appears to be a straightforward observation made by a treating physician, rather than a complex medical opinion that would require cross-examination. Plaintiffs only object to one word contained in the records: "contusions." The emergency room doctor did not opine on any potential muscle tears, nor did he offer any further opinions as to the cause of plaintiff's pain. Absent any medical opinions that would require explanation by an expert or cross-examination of the author, we conclude that the trial judge did not abuse his discretion by allowing admission of the hospital records into evidence.
Finally, we address the denial of plaintiffs' motion for a new trial, which was based on purportedly improper remarks made by defense counsel during summations. A trial court shall grant a motion for a new trial 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." R. 4:49-1(a). We apply the same standard of review applied by the trial court, except that we "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)).
As for the specific allegations raised by plaintiffs, "[c]ounsel is to be given 'broad latitude' in summation." Diakamopoulos v. Monmouth Med. Ctr., 312 N.J. Super. 20, 32 (App. Div. 1998). However, such latitude is not without limits. "[C]omment must be restrained within the facts shown or reasonably suggested by the evidence adduced." Ibid. (quoting Condella v. Cumberland Farms, Inc., 298 N.J. Super. 531, 534 (1996)). Counsel may "not misstate the evidence []or distort the factual picture." Ibid.
Counsel may urge the jury to "draw conclusions even if the inferences that the jury is asked to make are improbable, perhaps illogical, erroneous or even absurd, unless they are couched in language transcending the bounds of legitimate argument, or there are no grounds for them in the evidence." Spedick v. Murphy, 266 N.J. Super. 573, 590-91 (App. Div.), certif. denied, 134 N.J. 567 (1993).
The broad latitude that counsel enjoy in summation does not entitle them to "use disparaging language to discredit the opposing party, or witness, or accuse a party's attorney of wanting the jury to evaluate the evidence unfairly, of trying to deceive the jury, or of deliberately distorting the evidence." Rodd v. Raritan Radiologic Assocs., 373 N.J. Super. 154, 171 (App. Div. 2004) (citations omitted). Summation comments that are "unduly harsh" and that amount to "an attack on [an opposing party's] character and his witness's integrity . . . occupy no rightful place in proper commentary on the evidence and the credibility of testimony." Id. at 171-72.
After careful review of the trial record, we discern no miscarriage of justice deriving from defense counsel's summation. Attacks on witness credibility are permissible during summations. Moreover, conclusions are permissible, no matter how improbable, so long as they are at least potentially supported by the evidence in the case. Spedick, supra, 266 N.J. Super. at 590-91; see also Colucci v. Oppenheim, 326 N.J. Super. 166, 177 (App. Div. 1999), certif. denied, 163 N.J. 395 (2000) ("Counsel may argue from the evidence any conclusion which a jury is free to reach." (citing Spedick, supra, 266 N.J. Super. at 590)). Despite plaintiffs' arguments to the contrary, the comments made by defense counsel during summations are not the type of misleading and accusatory language that would warrant a retrial. Defense counsel's remarks fell within the "broad discretion" afforded to attorneys during summations. Diakamopoulos, supra, 312 N.J. Super. at 32. Plaintiffs' remaining arguments lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION