Opinion
DOCKET NO. A-1748-10T1
06-22-2012
LYNN OPPEDISANO and JOSEPH OPPEDISANO, her husband, Plaintiffs-Respondents, v. JEFFREY S. UTZ, Defendant-Appellant, and LIBERTY MUTUAL INSURANCE COMPANY, Defendant.
William P. Krauss argued the cause for appellant (Connell Foley, LLP, attorneys; Mr. Krauss and Thomas F. Quinn, of counsel and on the brief). Donald P. Jacobs argued the cause for respondents (Budd Larner, P.C., attorneys; Mr. Jacobs, on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Messano and Kennedy.
On appeal from Superior Court of New Jersey,
Law Division, Middlesex County, Docket No. L-2317-07.
William P. Krauss argued the cause for appellant (Connell Foley, LLP, attorneys; Mr. Krauss and Thomas F. Quinn, of counsel and on the brief).
Donald P. Jacobs argued the cause for respondents (Budd Larner, P.C., attorneys; Mr. Jacobs, on the brief). PER CURIAM
Defendant Jeffrey S. Utz appeals from a $3 million judgment entered against him following a jury verdict finding that plaintiff Lynn Oppedisano sustained a permanent injury proximately caused by a motor vehicle accident on October 6, 2006. Defendant had stipulated to liability and the jury was only asked to determine whether the accident gave rise to a permanent injury and, if so, the amount of money that would "reasonably and fairly" compensate the plaintiff for her injuries. Defendant claims that the trial judge erred in excluding evidence that plaintiff was in a subsequent accident on November 7, 2007. Defendant also claims that the trial judge abused his discretion by barring records of plaintiff's prior treatment by Dr. Joseph Romanella between 1998 and 2004 and then barring testimony from the defendant's "causation expert," Dr. Robert S. Fijan. Defendant also asserts that the comments of plaintiff's counsel during summation had the "capacity to mislead the jury" and that the cumulative impact of the errors warrants a new trial.
I.
We discern the following facts from the trial record. On October 6, 2006, the forty-three year old plaintiff was driving to a doctor's appointment when she stopped behind a line of cars. She was stopped for several seconds when her vehicle was struck from behind by a vehicle driven by defendant. Plaintiff estimated that defendant was traveling between thirty and thirty-five miles per hour at the time of impact while defendant estimated that he was traveling between five and ten miles per hour at that time. Plaintiff's vehicle did not move as a consequence of the collision, however, and sustained only scratches to the rear bumper. Plaintiff advised the police officer at the scene that she was not injured but merely "sh[a]ken up."
Plaintiff began to experience pain that evening and sought treatment from her regular chiropractor approximately ten days after the accident. Plaintiff was seen by her chiropractor two to four times each week through December 2006. When the pain did not subside, she consulted with Dr. Horowitz who administered trigger point injections in her neck. She also underwent chiropractic manipulation while under anesthesia and was given epidural injections by another physician. Plaintiff contended that the pain continued to grow and to spread to other areas of her body, despite these treatments.
By April 2007, plaintiff experienced burning and stabbing pain in her neck, shoulders, arms, hands, legs and in the bottoms of her feet. She then consulted with Dr. El-Kadi, M.D., a rheumatologist, who initially prescribed Percocet and Celebrex. When these medications failed to provide any relief, the doctor began administering Remicade intravenously. Plaintiff underwent Remicade administration three or four times and each occasion required two and a half to three hours to complete the administration of the prescribed dosage. The Remicade provided no relief to plaintiff and Dr. El-Kadi thereupon gave plaintiff a series of Humira injections. These injections did not provide any relief, however, and Dr. El-Kadi reinstituted the Remicade medication. Nonetheless, these efforts provided no relief for plaintiff's progressive pain and spreading difficulties.
In August 2007, plaintiff consulted with Dr. Vasko Gulevski, M.D., a neurologist, for "full body pain" and progressive swelling and numbness. Plaintiff complained that the pain was "unbearable" and kept getting "worse and worse." Dr. Gulevski examined plaintiff and found that she suffered abnormal sensation and pain reactions. He felt that she may be suffering from a "small fiber neuropathy" and sent her for a series of tests. By November 2, 2007, Dr. Gulevski noted that plaintiff's pain and physical difficulty had progressed and was not getting better with time. In a report issued on November 2, 2007, Dr. Gulevski thought plaintiff might be "expressing some signs of [complex regional pain syndrome] CRPS" and referred her to Dr. Robert Schwartzman, M.D., a neurologist in Philadelphia, for evaluation.
CRPS and reflex sympathetic dystrophy (RSD) describe the same malady, generally characterized by hypersensitivity to stimuli and a level of pain disproportionate to any inciting event. It is caused by traumatic nerve injury and is progressive and incurable, according to Dr. Gulevski.
Plaintiff was also examined by Dr. Brawer, M.D., neurologist, on May 12, 2008. Unlike Dr. Gulevski, however, Dr. Brawer found that there was little in plaintiff's history to "seriously entertain" a diagnosis of CRPS or RSD. Dr. Brawer did find, however, that plaintiff was suffering from rheumatoid arthritis caused by the accident of October 6, 2006. Dr. Brawer stated that plaintiff developed a generalized "systemic inflammatory arthropathy" and his diagnosis was "traumatically initiated rheumatoid arthritis." He added that the condition is "chronic, permanent and progressive . . . [and] has the inherent capability of rendering [plaintiff] incapacitated."
Dr. Gulevski examined plaintiff again on November 3, 2008 and stated in a report that plaintiff did not have the small fiber neuropathy he initially suspected but "was exhibiting more signs and symptoms of complex regional pain syndrome. This was evidenced by allodynia, edema, diminished movements (dystonia)." He noted that the prognosis for this illness "if untreated is poor" and that most patients "continue to have worsened pain." He explained in the report at that time that no one has ever been cured of CRPS and that it is generally caused by traumatic nerve injury. He added, "it appears that [plaintiff] was injured in an accident on October 6, 2006 and [there] appears to be a causal relationship between injuries sustained and the CRPS."
In June 2009, plaintiff consulted with Dr. Schwartzman in Philadelphia. Dr. Schwartzman opined that plaintiff had severe CRPS and indicated that she would do well with "Ketamine protocols." Dr. Schwartzman administered a series of Ketamine treatments to the plaintiff in Philadelphia between October and December 2009. The Ketamine treatments consisted of four to five hours of intravenous Ketamine infusion, five days per week for two weeks. Thereafter, plaintiff received a Ketamine booster solution in November and December. The Ketamine infusions were very taxing and required additional injections of other medications to counteract nausea, vomiting and hallucinations.
Dr. Brawer testified at trial that RSD is another name for CRPS and that the condition essentially involves hypersensitivity to stimuli and a low threshold for pain. Dr. Gulevski testified that RSD arises as a consequence of changes in the activation threshold of the nervous system. He indicated, "so in somebody who normally would feel a touch when you touch them, [in those with RSD] . . . the pain fibers are activated and the patients feel pain." He also indicated that the processing of pain in the brain changes and that, in time, RSD manifests in changes in brain structures, as well.
Defendant's expert, Norman Kohn, M.D. diagnosed plaintiff as suffering from fibromyalgia and ankylosing spondylitis. He explained that firbromyalgia is a condition characterized by extreme fatigue, generalized widespread pain, over-reactivity to touch and sleep disturbances. He stated that ankylosing spondylitis is an inflammatory condition of the spine. Dr. Kohn asserted that both conditions develop over time and that neither is caused by trauma. He opined that plaintiff's conditions were unrelated to the October 6, 2006 accident. He also opined that plaintiff showed no signs of RSD and he ruled it out as a diagnosis.
Plaintiff testified that her life had changed as a consequence of her injuries and that she is in constant pain and discomfort. She stated that a light touch to her body ignites severe pain, and that she has become debilitated and is in bed each day by 6:30 p.m.
II.
Plaintiff's complaint was filed on March 22, 2007. The trial commenced on August 16, 2010 and the verdict was returned on August 23, 2010. Discovery prior to trial was laborious and nine orders were entered over time pertaining to discovery.
Defendant claims to have initially learned that plaintiff was suffering from RSD or CRPS during the course of plaintiff's deposition on March 28, 2008. At that time, defendant did not have an expert report from plaintiff pertaining to RSD or CRPS. Consequently, defendant moved to extend the time for discovery and an order was entered granting that relief. Defendant concedes receiving the various reports of Dr. Gulevski, but noted that Dr. Gulevski's initial report dated November 2, 2007 did not explicitly diagnose RSD or CRPS in plaintiff. Rather, Dr. Gulevski found that plaintiff "may be expressing some signs" of the syndrome. The first report defendant received that contained a diagnosis of CRPS and expressing a "causal relationship" between the accident and the condition, was a report of Dr. Gulevski dated November 3, 2008.
Various motions were filed to extend the time for discovery thereafter and each motion was granted. We will not detail all the motions that have been filed because they are not relevant to our analysis. However, we shall focus on the last two motions for discovery that were made.
On October 13, 2009, defendant filed a motion to extend discovery, contending that the defense needed additional time to complete some discovery. Defense counsel certified that one day prior to filing the motion, she forwarded "an authorization" to plaintiff's counsel to obtain records pertaining to Dr. Schwartzman's Ketamine treatment of plaintiff and served a subpoena upon Allstate Insurance Co. for records regarding a "subsequent motor vehicle accident." At that time, the discovery end date was November 2, 2009.
On November 6, 2009, the motion judge entered an order extending discovery until January 2, 2010, and provided that defendant's expert reports must be served by January 2, 2010. Trial was adjourned to January 19, 2010. Both parties thereafter filed additional discovery motions.
On December 18, 2009, the motion judge entered an order extending discovery to February 26, 2010, but "only to complete the items listed herein." The order indicated that testimony respecting plaintiff's claims of RSD and Ketamine treatments would be allowed at trial and the defendant had until February 26, 2010, to undertake a medical examination of the plaintiff pertaining to RSD and serve additional expert reports respecting that condition. The order also allowed defendant to re-depose plaintiff on or before February 26, 2010. Trial was rescheduled to March 15, 2010.
It should be noted that plaintiff had been examined by Dr. Norman Kohn, M.D., defendant's expert, in August 2008 and that Dr. Kohn had issued a report thereafter. Defendant, therefore, was seeking additional information from plaintiff pertaining to her RSD.
Thereafter, on January 19 2010, defendant served upon plaintiff updated medical reports from Dr. Kohn and Dr. Lomazo and a November 20, 2009 report from Dr. Robert Fijan, a biomechanical engineer. Dr. Fijan's report did not deal with RSD but rather dealt with the biomechanical effects of the accident itself.
Further, on January 19, 2010, defendant provided plaintiff with records from Allstate Insurance Company respecting plaintiff's subsequent motor vehicle accident of November 7, 2007. Plaintiff asserted no injury claims against the other driver in that accident, but plaintiff did obtain some chiropractic treatment as a consequence thereof.
Significantly, on January 25, 2010, defendant's insurance carrier, Liberty Mutual, faxed a letter to Central Jersey Neurology Associates, P.A. (Central Jersey Neurology) seeking medical records pertaining to plaintiff. The letter, which was not copied to plaintiff's counsel, enclosed an "executed HIPPA compliance authorization" allowing Liberty Mutual to request disclosure of protected health information about plaintiff. The letter sought "all records prior to 10/6/06."
Dr. Gulevski was affiliated with Central Neurology Assocs., P.A.
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Enclosed with the faxed letter was another letter dated July 14, 2008, from defense counsel directed to Central Jersey Neurology seeking records pursuant to an authorization that had been executed by the plaintiff. That authorization, which was also enclosed with the faxed letter, was dated July 11, 2008, and was directed to Central Jersey Neurology. The release pertained exclusively to an EMG test and authorized release of the "entire EMG report including actual testing printout and raw data for EMG testing done on 10/29/07, Chart No. 5577.0." There was no authorization, however, that allowed the defendant to obtain records from Central Jersey Neurology respecting treatment of plaintiff prior to October 6, 2006. In this sense, therefore, Liberty Mutual's letter of January 25, 2010, was misleading. Defendant does not reveal whether Central Jersey Neurology provided any records in 2008.
In any event, by letter dated February 12, 2010, defense counsel forwarded to plaintiff's counsel records received from Central Jersey Neurology pursuant to its January 25, 2010 letter and the 2008 "release." The records included a letter from Dr. Susan Lage, D.O., dated September 13, 2004 reporting on the neurological evaluation of the plaintiff for "headaches." That letter had been sent to Dr. Joseph Romanella, D.O. in Manalapan.
Subsequently, on April 23, 2010, defense counsel sent a "subpoena" by facsimile to Dr. Romanella asking for all records regarding treatment rendered to the plaintiff. This discovery effort was undertaken outside the discovery end date. The "subpoena" provided that "this subpoena is for records only. No appearance is necessary if the records are received prior to the return date." Dr. Romanella provided records and on May 19, 2010, defense counsel provided copies of those records to plaintiff's attorney.
Defendant's counsel also enclosed in its cover letter of May 19, 2010, a "certification of due diligence" that the records obtained from Dr. Romanella were not "readily available or discoverable by the exercise of due diligence prior to the discovery end date." On June 2, 2010, plaintiff's counsel filed a motion to strike the Romanella records on the ground that they were provided after the discovery end date.
The motion was heard on July 23, 2010. At the hearing, plaintiff's counsel stated that the records apparently were obtained pursuant to an authorization that had been provided in 2008 and thus defendant was unjustified in asserting the records could not have been obtained earlier. Further, counsel questioned the relevance of the material since Dr. Romanella had never opined that plaintiff was suffering from RSD, but merely treated her for a thyroid problem. Asked by the judge to explain why Dr. Romanella's records had not been obtained earlier, defense counsel conceded that "basically I've known about Dr. Romanella all along." She explained that she did not intend to send the records to any experts and was not looking to amend any expert reports. However, she wanted to present the records so that the "jury [has] the opportunity to be aware that she has had continuing problems all along in her life . . . ." She conceded that the records were subpoenaed because "basically now it is time for trial." She added, "I'm not getting the records for the purpose of passing them on to my experts. We're way beyond that."
After listening to these arguments, the motion judge barred the use of the records. The motion judge noted that "it's hard for me to believe that the defense could not have obtained records from Dr. Romanella" earlier, given that the records had been provided pursuant to a release executed by the plaintiff in 2008. The judge did note that the defense counsel would not be precluded from "examining the plaintiff about her visits to Dr. Romanella, any diagnosis or prognosis that Dr. Romanella communicated to her and/or what she was treated for. The part of the body that was involved, the nature of the treatment and so forth."
Earlier, plaintiff's counsel had also moved to strike the report of Dr. Fijan on the ground that the report did not address plaintiff's RSD. The court granted the application to strike the report of Dr. Fijan and noted that Dr. Fijan's report was "devoid of all conclusions regarding RSD." The order extending the time for discovery only provided defendant with an extension of time to submit medical reports pertaining to plaintiff's claims for RSD. The judge added, "I am satisfied that the circumstances under which the report was obtained and the delay of submitting it to counsel would create substantial prejudice at this point if I were to permit its introduction at trial."
Finally, during the trial, plaintiff's counsel moved to strike any reference to plaintiff's subsequent accident of November 7, 2007. Defendant claimed that reference to the November 7, 2007 accident was justified to "impeach the credibility" of the plaintiff and her physicians. Further, defense counsel explained "this is all a credibility issue as to plaintiff and her experts. Wouldn't the experts have liked to have known about a second traumatic injury?"
Defense counsel conceded that she had not submitted the records from the subsequent accident to any of her experts and that there was no medical report from either plaintiff or defendant that addressed any alleged injuries sustained in the second accident and their relation, if any, to plaintiff's rheumatoid arthritis and RSD. The court granted the motion to strike reference to the subsequent accident and explained, "I don't have expert testimony from either side that links the subject accident to the injury complained of, and without that, I fail to see the relevance and I believe the prejudicial value would far outweigh the probative value, so we're not going to deal with a second accident."
III.
Defendant claims on appeal that the trial judge erroneously excluded evidence of plaintiff's November 2, 2007 car accident because the burden was on plaintiff to prove that the accident did not contribute to her injuries. Also, defendant claims he was entitled to present evidence on the second accident because it was relevant to the issue of whether that accident or the October 2006 accident caused plaintiff's injuries. In addition, defendant claims that plaintiff's failure to provide information about the second accident was relevant to her credibility. We find these claims to be unpersuasive under the circumstances of this case.
Our analysis of this issue is informed by consideration of cases dealing with evidence of prior injuries. Whenever a party attempts to "present evidence of a prior injury or condition related to an issue of medical causation [the party] must show that the evidence has some 'logical relationship to the issue in the case.'" Allendorf v. Kaiserman Enterprises, 266 N.J. Super. 662, 672-73 (App. Div. 1993)(quoting Paxton v. Misiuk, 34 N.J. 453, 460 (1961)). The test for admissibility of another accident is "one of possibility rather than probability [,] meaning that if each prior accident could have caused the injury, the testimony as to that accident is relevant and admissible provided, of course, there is competent proof from which it could be found that the injuries thus are attributable to the earlier event." Paxton, supra, 34 N.J. at 461. The "competent proof" required is the testimony of an expert. "[T]he logical relationship [between a prior injury or condition and the injury complained of] generally must be established by appropriate expert medical opinion." Allendorf, supra, 266 N.J. Super. at 672-73.
No claim was made by plaintiff that the subsequent accident had anything to do with her injuries. Moreover, defendant had no medical proof or evidence to suggest that the subsequent accident caused or exacerbated the injuries plaintiff claimed to have sustained in the accident of October 6, 2006. Defendant was obligated to adduce some competent evidence that the subsequent accident caused the injuries or otherwise generated plaintiff's existing complaints of pain. Allendorf, supra, at 672-73. Absent such expert testimony, consideration of evidence regarding a subsequent accident would constitute an open invitation to the jury to engage in speculation.
The lack of expert testimony linking the subsequent accident and plaintiff's condition was the basis of plaintiff's argument to exclude evidence about the 2007 accident. Plaintiff argued,
there has to be some logical relationship between another injury or accident and the injury or accident which is the subject of the lawsuit. There must be a logical relationship . . . . [A]nd it must be connected by some medical testimony, it can't just be somebody getting up and speculating, maybe a second accident caused problems. There has to be some doctor who has connected it.
Defendant's counsel conceded that nothing about the November 7, 2007 accident was submitted to any defense expert for an opinion as to whether it caused or exacerbated plaintiff's injuries. The trial judge relied upon this lack of expert testimony in excluding evidence pertaining to the 2007 accident:
I'm going back to . . . the relevance aspect of this. And I don't have expert testimony from either side that links the subsequent accident to the injury complained of and, without that, I fail to see the relevance and I believe the prejudicial value would far outweigh the probative value, so we're not going to deal with a second accident.
Additionally, defendant claims that even if evidence of the November 7, 2007 accident was not admissible as substantive evidence on the issue of causation, defendant should have been permitted to impeach plaintiff with a failure to disclose the 2007 accident. Defense counsel argued, "I should be able to impeach the credibility of the plaintiff for not bringing up the second accident to any of the doctors that will be testifying today . . . ."
N.J.R.E. 403 empowers a trial court to exclude evidence if the court finds the "probative value is substantially outweighed by the risk of (a) undue prejudice, confusion of issues or misleading the jury . . . ." Green v. N.J. Mfrs. Ins. Co., 160 N.J. 480, 494 (1999). A trial court is granted "broad discretion" in its rulings under N.J.R.E. 403. Green, supra, at 492 (citing State v. Carter, 91 N.J. 86, 106 (1982)). "Determinations pursuant to N.J.R.E. 403 should not he overturned on appeal 'unless it could be shown that the trial court palpably abused its discretion, that is, that its finding was so wide of the mark that a manifest denial of justice resulted.'" Ibid.
In this case, the trial judge held the evidence of the 2007 accident, absent expert testimony linking it to plaintiff's injuries, required exclusion because the prejudicial impact of such evidence would substantially outweigh its probative value. We agree.
Here, evidence of the 2007 accident was likely to mislead the jury, or cause jurors to speculate that the 2007 accident contributed to, or even caused, plaintiff's injuries. In the absence of expert testimony linking the 2007 accident to plaintiff's injuries, such speculation would be an impermissible use of the evidence. Consequently, given the substantial risk that the jury would be confused or misled, we do not find that the trial judge abused his discretion in excluding the evidence.
Next, defendant contends that the motion judge erred in barring "medical records pertaining to plaintiff's repeated complaints of fatigue and joint pain and plaintiff's diagnosis of arthritis, all occurring before the accident at issue." Defendant argues that the motion judge excluded Dr. Romanella's records based on a finding that there were no exceptional circumstances justifying the late discovery of the records.
In examining this claim, we observe that defendant served Dr. Romanella's records upon the plaintiff on May 19, 2010 -almost sixty days after the discovery end date. Defendant had discovered the records after his insurance carrier, on January 25, 2010, sent a medical authorization to Central Jersey Neurology - the professional association with which Dr. Gulevski, plaintiff's expert, was associated. However, the medical authorization was signed by the plaintiff in July 2008.
Plaintiff claimed the records had been discoverable years earlier and that defendant, in fact, secured the records indirectly pursuant to a medical release signed in 2008. At oral argument, defendant's counsel conceded that "basically, I've known about Dr. Romanella all along. I'm not going to use these records or send them to any of my experts because my experts have reviewed everything that we already had." Counsel noted that she simply subpoenaed the records because "it time for trial." She indicated that she was specifically not seeking to have the records reviewed by any of her experts and, "I'm not getting records for the purpose of passing them onto my experts. We're way beyond that." She indicated that she wanted the records in her possession so that she could "cross-examine plaintiff . . . at trial."
The motion judge thereafter granted the motion of defendant to bar the use of Dr. Romanella's records at the time of trial, but specifically noted,
I will not prohibit the defendant from examining the plaintiff about her visits to Dr. Romanella, any diagnosis or prognosis that Dr. Romanella communicated to her and or what she was treated for. The part of the body that was involved, the nature of the treatment and so forth.Thus, defendant was specifically permitted to cross-examine plaintiff as to any earlier health problems for which she was treated by Dr. Romanella.
Rule 4:17-7 governs amendments to interrogatory answers and provides that the amendments must be provided
not later than [twenty] days prior to the end of the discovery period . . . . Amendments may be allowed thereafter only if the party seeking to amend certifies therein that the information requiring the amendment was not reasonably available or discoverable by the exercise of due diligence prior to the discovery end date.Here, defense counsel conceded that she knew about Dr. Romanella "all along." No "exceptional circumstances" existed to justify this late provision of information and, under the circumstances, we cannot conclude that defense counsel showed "due diligence" in seeking information that was not otherwise discoverable prior to the discovery end date.
In Zadigan v. Cole, 369 N.J. Super. 123 (Law Div. 2004), the trial judge barred an expert from testifying where the expert report was served outside the discovery end date and there were no exceptional circumstances. He noted "trial date certainty has been made a mockery of, as the parties seek to take advantage of subjective rules which allow the very game-playing which Best Practices was adopted to eliminate." Ibid.
Here, the discovery end date was extended no less than seven times, six of them at the request of defense counsel. Additionally, although defense counsel claims that the May 19, 2010 amendment could not have been served any sooner because the records were not obtained until April or May 2010, there is no explanation as to why the records were not requested until after the discovery end date passed. A "failure to properly prepare a matter in a timely matter is not an exceptional circumstance in and of itself." O'Donnell v. Ahmad, 363 N.J. Super. 44, 52 (Law Div. 2003).
Further, a trial judge's decision to permit or prohibit late amendments, or to deny further discovery extensions, is analyzed under an abuse of discretion standard. Bender v. Adelson, 187 N.J. 411, 428 (2006). "We generally defer to a trial court's disposition of discovery matters unless the court has abused its discretion or its determination was based upon mistake in understanding the applicable law." Rivers v. LSC Partnership, 378 N.J. Super. 68, 80 (App. Div.), certif. denied, 185 N.J. 296 (2005). We find no exceptional circumstances present and we do not find that the judge abused his discretion in excluding Dr. Romanella's records.
Also, we note that at the time of trial, defendant was permitted to examine plaintiff with respect to her prior complaints and treatment with Dr. Romanella. At no point during the trial, did defense counsel seek re-consideration of the court's earlier order based upon plaintiff's responses to questions at the time of trial or other evidence adduced at trial. Further, defendant claims that the evidence "was pivotal" to undercutting the claims of plaintiff with respect to her injuries. However, defense counsel on the return date of the motion indicated that the records of Dr. Romanella were not being submitted to any experts and consequently the records, at best, could have been used to impeach credibility on a collateral issue. This does not make the evidence pivotal in our view.
Defendant also claims that the motion judge erred in excluding testimony from Dr. Fijan at trial because his report was served prior to the expiration of the discovery. However, the record is quite clear that the December 18, 2009 scheduling order extended the discovery solely for the limited purpose of permitting defendant to obtain a medical report on plaintiff's RSD and to re-depose plaintiff about her RSD. It is undisputed that Dr. Fijan's report does not make any reference to RSD whatsoever. Nonetheless, defendant claims that under Tucci v. Tropicana Casino and Resort, Inc., 264 N.J. Super. 48 (App. Div. 2003) the motion judge abused his discretion in excluding the report. However, in Tucci the late service of the report, according to plaintiff, was unavoidable because the defense had failed to provide discovery without which the expert could not have issued an opinion. There is no evidence here whatsoever that anything that plaintiff failed to provide to the defendant was pivotal to the issue of Dr. Fijan's report. The extenuating circumstances present in Tucci are not present here. There is no explanation as to why Dr. Fijan's report was not served immediately after it was received nor is there any explanation as to why the report was not obtained earlier. We find no abuse of discretion.
Defendant also claims that plaintiff's counsel made several remarks in summation that were improper and warrant a reversal of the judgment in plaintiff's favor. We find this claim without sufficient merit to warrant discussion in a written opinion. Rule 2:11-3(e)(1)(E). We add only the following comments.
Attorneys have broad latitude in making closing statements. A "trial court has broad discretion on the conduct of the trial, including the scope of counsel's summation. The abuse of discretion standard applies to the trial court's rulings during counsel's summation." Litton Industries, Inc. v. IMO Industries, Inc., 200 N.J. 372, 392-93 (2009).
Defense counsel complained about plaintiff's reference to defendant being a "trained speaker" and that appearances should not be the basis upon which jurors make decisions. Plaintiff's counsel also noted there are "people in prison who didn't look good when they got up on the stand." In addition, plaintiff noted that these were "tough times" and that there is "one group of people who are not having such a tough time and that's defense attorneys." The trial judge required defense counsel to clarify this statement and plaintiff's counsel then stated "it's an easy time for defense attorneys because people don't like lawyers. People don't like lawsuits. So it's easy for them." We do not find these comments warrant reversal of the jury's verdict.
Additionally, defendant objected to plaintiff's counsel's statements during summation that defendant put plaintiff under a microscope. Defendant claims that this creates a false impression that she had no relevant prior medical history. We disagree. There was, in fact, no medical testimony linking her prior condition and the injuries she claimed to have sustained in the accident.
Lastly, defendant's argument appealing from the order denying defendant's motion for a new trial, or in the alternative, a remittitur, is also without merit. 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. That inquiry requires employing a standard of review substantially similar to that used at the trial level, except that the appellate court must afford "due deference" to the trial court's "'feel of the case,'" with regard to the assessment of intangibles, such as witness credibility. Feldman v. Lederle Labs., 97 N.J. 429, 463 (1984).
Because juries have broad latitude to determine damages, "the standard for granting a new trial . . . is necessarily high." Johnson v. Scaccetti, 192 N.J. 256, 281 (2007). "A trial court should not order a new trial or remit a jury's damages award unless it is so clearly disproportionate to the injury and its sequela that it may be said to shock the judicial conscience." Ibid. A court "must be 'clearly and convincingly' persuaded that it would be manifestly unjust to sustain the award." Ibid. at 281 (citing R. 4:49-1(a)).
In determining whether the denial of remittitur was proper, this court is similarly bound by the same strictures as a trial court. Jastram ex rel. Jastram v. Kruse, 197 N.J. 216, 228-231; 235 (2008); Baxter v. Fairmont Food Co., 74 N.J. 588, 598 (1977); McRae v. St. Michael's Med. Ctr., 349 N.J. Super. 583, 597 (App. Div. 2002). Unless a jury's award of damages is so disproportionate to the injury and resulting disability, the trial judge should not disturb the award. Jastram, supra, 197 N.J. Super. at 230; Baxter, supra, 74 N.J. at 595. Thus, to qualify for remittitur "the jury's award must shock the judicial conscience." McRae, supra, 349 N.J. Super. at 597 (citing Baxter, supra, 74 N.J. at 596).
In this case, the trial judge's discretionary decisions are clearly supported by the record, and do not amount to an abuse of discretion. The jury verdict in this case did not constitute a miscarriage of justice nor did the jury's award of damages "shock the judicial conscience." Here, "the evidence in support of the jury verdict is not insufficient[,]" and the trial judge's decision to deny the motion for a new trial, or in the alternative, a remittitur, will not be disturbed. Amaru v. Stratton, 209 N.J. Super. 1, 7 (App. Div. 1985).
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office?
CLERK OF THE APPELLATE DIVISION