Opinion
DOCKET NO. A-5402-13T1
10-28-2015
MARY PTASZYNSKI and ROBERT PTASZYNSKI, her husband, Plaintiffs-Appellants, v. NEW JERSEY MANUFACTURERS INSURANCE COMPANY, Defendant-Respondent.
Brett R. Greiner argued the cause for appellants (Levinson Axelrod, P.A., attorneys; Mr. Greiner, on the brief). Ronald S. Yuro argued the cause for respondent (Camassa & Yuro, P.C., attorneys; Mr. Yuro, of counsel and on the brief; Christopher M. Brady, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Hoffman, Leone and Whipple. On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-3186-12. Brett R. Greiner argued the cause for appellants (Levinson Axelrod, P.A., attorneys; Mr. Greiner, on the brief). Ronald S. Yuro argued the cause for respondent (Camassa & Yuro, P.C., attorneys; Mr. Yuro, of counsel and on the brief; Christopher M. Brady, on the brief). PER CURIAM
Plaintiffs Mary Ptaszynski and her husband Robert Ptaszynski appeal from a June 2, 2014 order memorializing a no-cause jury verdict in favor of their automobile insurance carrier, defendant New Jersey Manufacturers Insurance Company. They also appeal from a July 14, 2014 order denying their motion for a new trial.
For ease of reference, we refer to Mary Ptaszynski, individually, as "plaintiff," and Mary Ptaszynski and Robert Ptaszynski, collectively, as "plaintiffs."
Due in part to several last-minute evidentiary issues, the trial became preoccupied with evidence absent from the record. Arguments attempting to draw adverse inferences from those absences resulted in allegations of misdirection. Plaintiffs instigated and participated equally in the confusion, and generally failed to raise timely objections. Following our review of the trial record, we find no clear miscarriage of justice in either the individual errors before us, or in their cumulative effect. R. 2:10-1. Therefore, we affirm.
I.
We derive the following facts from the trial record. This case arises out of a low-speed accident between plaintiff and an underinsured motorist (UIM). On April 4, 2008, both drivers were leaving a parking lot near a local baseball field when the rear bumpers of their vehicles collided. Plaintiff testified she was pulling forward when the UIM's vehicle backed into hers, while the UIM testified both vehicles were backing up when they collided. According to plaintiffs, the accident resulted in repairs to the rear bumper, rear hatch, and rear passenger-side door of plaintiff's vehicle. However, the only photographs admitted at trial revealed no significant visible damage.
The UIM had only $25,000 in liability insurance. After that coverage was tendered and accepted, plaintiffs filed this claim against defendant under the UIM endorsement in their policy.
Plaintiff experienced pain following the accident and was transported to the emergency room via ambulance. She kept regular appointments with her treating physician through the trial date. Plaintiff stated that she continued to feel constant neck pain up through the time of trial, and never had neck pain before the accident. She also testified to ongoing numbness and weakness in her right arm.
According to plaintiff's treating physician, her MRI and EMG test showed disc herniation, which the physician opined was a permanent condition caused by the accident. Defendant's medical expert testified the MRI instead showed degenerative disc bulges, and opined that plaintiff's neck pain was the result of a pre-existing condition.
II.
Despite over six years passing from the date of the accident, several evidentiary issues remained unsettled at the time of trial. As a result, the trial court, in pertinent part: (1) suppressed plaintiff's testimony regarding renewed and ongoing physical therapy; (2) suppressed a repair estimate prepared by defendant's property adjuster as inadmissible hearsay; and (3) admitted defendant's surveillance of plaintiff. The parties exploited these rulings, shifting the focus of the trial away from the evidence and onto the gaps in the record.
Plaintiffs raise two other evidentiary issues apparently decided before trial: (1) the UIM's authentication of photographs of plaintiff's vehicle taken by defendant's property adjuster; and (2) suppression of the responding police officer's opinion as to the cause of the accident. However, plaintiffs failed to submit any order, transcript, R. 2:5-3(a), or adequate statement of proceedings in lieu of transcript. R. 2:5-3(f). This deficiency precludes review of those decisions, and we decline to address those issues here. See Cipala v. Lincoln Tech. Inst., 179 N.J. 45, 55 (2004).
Nevertheless, based on the record before us, we discern that both arguments lack merit. The UIM testified the photos fairly and accurately depicted plaintiff's vehicle, and the record does not support plaintiffs' allegation the authentication came as an unfair surprise. See N.J.R.E. 901; Spedick v. Murphy, 266 N.J. Super. 573, 590 (App. Div. 1993). The police officer derived his opinion from hearsay statements, and it constituted inadmissible lay opinion. See N.J.R.E. 701; State v. McLean, 205 N.J. 438, 459 (2011).
Plaintiffs' opening statement referenced the repair estimate that was subsequently suppressed as hearsay. Defendant's opening statement responded:
[I]f you don't hear . . . evidence [that was referenced in plaintiff's opening], ask yourself why was it given to you, why would [plaintiffs' counsel] make certain comments knowing that that evidence wasn't going to be presented. . . . At the close of this case ask yourself, is [plaintiff's counsel] trying to inject some [prejudice] into this trial by mentioning certain items that he knows [are] not going to be testified to during the course of the trial.Plaintiffs did not object to defendant's opening statement or move for a mistrial. Although defense counsel cast doubt on the damage to plaintiffs' vehicle in closing arguments, the extent of the repairs was undisputed.
During deliberations, the jury requested to see "the insurance report." In response, the court stated to the jury, "[I]s there an insurance report[,] or report or pictures [from the] body shop? No. There's nothing more to provide to you. . . . [N]one of that [is] in evidence."
In their opening statement, plaintiffs described defendant's video surveillance of plaintiff. Defendant moved to suppress the surveillance, and the trial court denied defendant's motion. Neither party introduced the surveillance video into the record, but plaintiff testified briefly as to the video's contents:
Q: What types of things did you see on the video that you were engaged in?
A: They videotaped me taking my children to church, school. They videotaped me arriving home from school with the children. They videotaped me, I believe, at the A & P in the parking lot.
Q: Do you know what period of time that the video surveillance that you saw covered?
A: Yes. It was four weeks, I believe, in September of 2010.
Q: You say four weeks. Was it a straight four weeks or different times over the course of four weeks?
A: I think it was different times over the course of the four weeks.
Q: Now, as I told the jury in opening, I said we don't have anything to hide. Do you have any problem with the defendant following you around if they want to follow you around?
A: No.The court sustained defendant's objection to the final question, and struck plaintiff's answer.
Then, during closing argument, defense counsel stated:
[T]here's some sort of misdirection by [plaintiffs' counsel]. He doesn't really believe in his case, so he's going to try to misdirect you and play on your sympathies and your biases against the big, bad defendants in that the plaintiff is entitled to recover.
. . . [D]uring the course of [plaintiff's] testimony, you heard about certain surveillance that was undertaken and she was surveilled, and there was a period, I believe, over about a month that somebody may have been taking video of her, and that she had an opportunity to review that video afterwards. . . . The reason you [surveil a claimant] is because sometimes claims are consiste[nt], sometimes they're not. Sometimes the people say, . . . I have neck and back injuries[,] . . . and lo and behold, they [go] water-skiing, hang-gliding, and everything else . . . .
So the fact that perhaps plaintiff underwent surveillance while she's out in public, you know, don't hold that against the defendant. Don't let your sympathies and biases say, . . . that's not right; people should have the right to privacy. . . .
. . . [W]e don't know what the video showed. Apparently, it showed her doing her daily activities as she said and that's the end of it.
So, again, I think you're going to hear a little misdirection by plaintiff[s] there
that, you know, somehow what [defendant] did was improper. That's not the case.
In turn, plaintiffs' closing argument spent significant time addressing misdirection. Plaintiffs' counsel argued:
[Defense counsel] said, I don't know what [the surveillance tapes] showed. Does that make sense? They're the ones that gave it to us after she submitted to that second deposition. Are you telling me that they got their surveillance and didn't bother to watch it? Okay. Does that make sense? . . . I submit to you that if they had any videotape of her doing something she claims she can't you'd be watching that videotape.
Plaintiffs' opening statement also referenced Dr. Fremed, a medical expert retained by defendant who completed a medical examination of plaintiff. In summation, defense counsel argued plaintiffs could have called Dr. Fremed as a witness if his testimony would have been favorable to plaintiffs, and any inference from the decision not to call him "cuts both ways." Defense counsel reiterated, "[A]gain, I think that [is] sort of an indication of . . . misdirection that you're going to hear . . . to try to divert your attention from the facts . . . ."
In his closing argument, plaintiffs' counsel responded:
I don't know what Dr. Fremed says. I never got the report. . . . I'm not allowed to elicit any opinions from him unless he is willing to do so. Now, I don't know what the opinions were, having never seen them before, and I don't know if he'd be willing to give them to me. But I imagine if the defendant hired him he's not going to be a
cooperative witness for me. But you have to ask yourselves, why not hear from that doctor?
Defendant objected at the conclusion of plaintiffs' closing, arguing that plaintiffs incorrectly characterized defendant as having failed to produce Dr. Fremed's report. As a result of the objection, the trial court instructed the jury, "It was mentioned by [plaintiffs' counsel] that they never got a report from Dr. [Fremed]. . . . I'm going to instruct you to disregard it."
Most notably, in closing arguments, defense counsel misrepresented the course of plaintiff's treatment, relying on the suppression of her ongoing physical therapy. Defense counsel asked the jury, "[W]hat did you hear about any treatment? The only treatment [plaintiff] received was [ten] or [twelve] physical therapy sessions immediately following the accident." However, as with all of defendants' arguments, plaintiffs did not object to the mischaracterization, either at the time it was made, or at the conclusion of defendant's summation.
On May 21, 2014, the jury returned a verdict apportioning liability forty-nine percent to plaintiff and fifty-one percent to the UIM. However, the jury found plaintiff had not sustained "a permanent injury," N.J.S.A. 39:6A-8(a), and therefore did not reach the issue of damages. The trial court entered judgment of no cause on June 2, 2014.
Plaintiffs moved for a new trial, arguing, in pertinent part: (1) defense counsel's arguments regarding the failure to call Dr. Fremed or introduce the surveillance video improperly disparaged plaintiffs' counsel; (2) defense counsel's closing argument, relying upon the improper suppression of testimony regarding plaintiff's ongoing treatment, misrepresented the truth and mischaracterized the record; and (3) the jury's verdict was against the weight of the evidence, as there was no evidence of plaintiff's negligence.
The trial court denied plaintiffs' motion for a new trial, finding the UIM's testimony was credible and adequately supported the jury's verdict. The court relied on its prior evidentiary rulings and found defense counsel's opening statement and closing argument were "within the bounds of accepted expressions. [Defendant's] opening statement that [plaintiffs] would not be able to show some of the evidence promised . . . [was] appropriate [as it] did not question the [plaintiffs'] integrity, but it helped to lay out defendant's case."
This appeal followed, raising the same issues addressed in plaintiffs' motion for a new trial.
III.
We first turn to the evidentiary issues. We review evidentiary rulings under the deferential abuse of discretion standard. State v. Nantambu, 221 N.J. 390, 402 (2015). We uphold factual determinations if they are supported by sufficient credible evidence. Id. at 402-03. We do not defer to legal conclusions, and apply the law de novo. Ibid.
A.
As to plaintiff's ongoing physical therapy, at the time defendant raised the objection, the record supported the trial court's finding that plaintiffs failed to adequately notify defendant of the treatment. Rules 4:17-7 and 4:18-1(b)(3) impose a continuing obligation on parties to amend interrogatories and produce any additional responsive documents they obtain. The uniform interrogatories require personal-injury plaintiffs to:
[S]tate the name and present address of each health care provider, the dates and places where treatments were received and the date of last treatment. . . . If still being treated, [state] the name and address of each doctor or health care provider rendering treatment, where and how often treatment is received and the nature of the treatment.
[Interrogatory Forms, Pressler & Verniero, Current N.J. Court Rules, Appendix II-A to R. 4:12-1(b) at www.gannlaw.com (2016).]
At the initial hearing, there was no evidence plaintiffs had provided any notice of the renewed and ongoing treatment. Accordingly, the trial court was within its discretion to suppress testimony regarding that treatment. See Wymbs v. Twp. of Wayne, 163 N.J. 523, 543 (2000) ("When faced with a surprise witness, possible sanctions . . . include . . . exclud[ing] the testimony if such an outcome is just and reasonable." (citations omitted)).
At a subsequent hearing, plaintiffs revealed a November 4, 2013 letter to defendant stating that plaintiff's treating physician renewed his recommendation of ongoing physical therapy, and indicating plaintiff would begin attending physical therapy two times per week. The letter further indicated that "copies of any records or reports" will be provided "upon receipt of same." However, plaintiffs never amended their interrogatories after treatment or supplied any records or reports. Therefore, we discern no abuse of discretion in the trial court's decision to stand by the initial suppression of plaintiff's ongoing physical therapy.
B.
As to the suppression of the repair estimate, an appraisal service hired by defendant prepared the document shortly after the accident. The estimate listed the anticipated repairs to plaintiff's vehicle, and defendant relied on it to adjust plaintiffs' property damage claim. The appraiser gave plaintiffs a copy of the estimate at the time of the inspection, but plaintiffs' counsel never received the document until defendant produced it approximately one week before trial. Although the estimate was suppressed, both plaintiff and her husband effectively read the list of repairs into the record from memory and without objection.
Hearsay is generally inadmissible. N.J.R.E. 802. However, a statement "whose content the [opposing] party has adopted by word or conduct" is not excluded by the hearsay rule. N.J.R.E. 803(b)(2). "[T]he party to be charged must be aware of and understand the content of the statement allegedly adopted[,] . . . [and] it must be clear that the party to be charged with the adoptive admission 'unambiguously assented' to the statement." McDevitt v. Bill Good Builders, Inc., 175 N.J. 519, 529-30 (2003) (citations omitted). These criteria should be evaluated in an N.J.R.E. 104(a) hearing. Id. at 531.
Here, the lack of an N.J.R.E. 104(a) hearing renders the record incomplete. Defendant's reliance on the estimate to adjust plaintiffs' property damage claim could have qualified the estimate as an adoptive admission. Accordingly, the trial court should have held an N.J.R.E. 104(a) hearing to allow plaintiffs to establish the estimate was an adoptive admission. However, while we conclude the trial court erred in suppressing the repair estimate without holding an N.J.R.E. 104(1) hearing, we discern no harmful error. Plaintiffs were able to introduce the same evidence from memory, and defendant did not dispute the extent of the repairs, which were relatively minor.
C.
Defendant declined to cross-appeal the admission of its surveillance of plaintiff. Nevertheless, that evidentiary ruling provides important context to the propriety of the opening statements and closing arguments, an issue which is presently before us. Accordingly, we address the admission of the surveillance under the plain error rule. See R. 2:10-2 ("[T]he appellate court may, in the interests of justice, notice plain error not brought to the attention of the trial or appellate court.").
Only relevant evidence is admissible. N.J.R.E. 402. Moreover, even "relevant evidence may be excluded if its probative value is substantially outweighed by the risk of [] undue prejudice, confusion of issues, or misleading the jury . . . ." N.J.R.E. 403. The burden rests upon the opposing party to demonstrate the risk of undue prejudice outweighs probative value. Rosenblit v. Zimmerman, 166 N.J. 391, 410 (2001). The trial court is given broad discretion in weighing probative value against undue prejudice, and should only be overturned for a palpable abuse of discretion, "that is, [a] finding . . . so wide off the mark that a manifest denial of justice resulted." Green v. N.J. Mfrs. Ins. Co., 160 N.J. 480, 492 (1999).
Here, the contents of the surveillance were irrelevant, as demonstrated by the fact neither party sought to introduce the actual video. According to plaintiff's testimony, the video merely depicted plaintiff going about her normal daily routine, which plaintiff could better describe from first-hand knowledge. Moreover, defendant's trial strategy sought to question the cause of plaintiff's back pain rather than attempting to portray her behavior as inconsistent with the alleged pain.
Meanwhile, discussion of defendant's surveillance of plaintiff presented a clear risk of undue prejudice to defendant. Clearly, plaintiffs sought to portray defendant as improperly invading plaintiff's privacy. Given the lack of any true relevance, combined with the risk of undue prejudice, we conclude the trial court plainly erred in plaintiffs' favor by admitting defendant's surveillance of plaintiff.
IV.
In addition to the errors in evidentiary rulings, plaintiffs argue defense counsel's opening statement and closing argument contained false statements of fact and improperly derided plaintiffs, plaintiffs' counsel, and plaintiff's treating physician.
As a general matter, "counsel is allowed broad latitude in summation [and] counsel may draw conclusions even if the inferences that the jury is asked to make are improbable, perhaps illogical, erroneous or even absurd." Summation commentary, however, must be based in truth, and counsel may not "misstate the evidence nor distort the factual picture."
[Bender v. Adelson, 187 N.J. 411, 431 (2006) (citations omitted).]
In summation, attorneys cannot ask the jury to draw an adverse inference from the failure to present evidence or call a witness when, unknown to the jury, that evidence was suppressed on procedural grounds. Id. at 433. Moreover, attorneys cannot attempt to remedy errors in the admission or suppression of evidence by inappropriately misrepresenting or confusing the record. Bardis v. First Trenton Ins. Co., 199 N.J. 265, 281-82 (2009).
"[I]t is [also] improper for an attorney to make derisive statements about parties, their counsel, or their witnesses." Szczecina v. PV Holding Corp., 414 N.J. Super. 173, 178 (App. Div. 2010). While attorneys are given broad latitude, they may not attack a litigant or witnesses' character or morals if those qualities are not in issue. Id. at 178-79. Repeated or extensive argument that opposing counsel is attempting to improperly bias or deceive the jury, even if individually acceptable, can together create an unjust trial. Id. at 178-80.
In reviewing opening statements and closing arguments, we presume opposing counsel will object to improper argument, and the failure to object "'speak[s] 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)).
Here, after the various evidentiary rulings, both parties became preoccupied by facts that were not admitted into evidence. As discussed, plaintiffs began their opening statement by referencing the surveillance tape, repair estimate, and testimony of Dr. Fremed. None of that evidence made it into the record, and both parties attempted to draw adverse inferences from the void.
Ultimately, the trial degenerated into reciprocal accusations of misdirection; however, plaintiffs' counsel initiated and participated equally in the allegations of misdirection. See Lovenguth v. D'Angelo, 258 N.J. Super. 6, 13 (App. Div. 1992) (concluding although "[w]eighing of countervailing improprieties" is disfavored, the effect of an improper response can be tempered if it rights the balance of justice). Plaintiffs also failed to object to any of defendant's arguments in a timely manner. See Tartaglia, supra, 197 N.J. at 128. Given the overall tone of the trial, as well as plaintiff's failure to timely object, we conclude the trial court's inaction with regard to defendant's arguments was not plain error.
Defendant's mischaracterization of plaintiff's treatment, alone, deserves specific discussion. While defendant misrepresented the truth by relying on the procedural suppression of the ongoing physical therapy, plaintiffs failed to raise a timely objection, and we therefore presume the mischaracterization was not harmful. Tartaglia, supra, 197 N.J. at 128. Moreover, defendant's case focused on providing an alternative explanation for the injury, rather than disputing plaintiff's claims of back pain and numbness. Plaintiff's second course of physical therapy, beginning over five years after the accident, is more consistent with defendant's theory of degenerative disc bulges than plaintiffs' theory of disc herniation caused by the accident. Accordingly, we discern no clear prejudice to plaintiffs by defendant's mischaracterization of the treatment.
V.
Finally, we turn to plaintiffs' arguments that the verdict was against the weight of the evidence and that cumulative error resulted in a miscarriage of justice requiring a new trial. In addressing motions for a new trial, the trial court "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." R. 4:49-1(a). Similarly, a trial court's ruling on a motion seeking a new trial based on the weight of the evidence "shall not be reversed unless it clearly appears that there was a miscarriage of justice under the law." R. 2:10-1.
We look to the same standard as the trial court when reviewing the denial of a motion for new trial. R. 2:10-1; Pellicer ex rel. Pellicer v. St. Barnabas Hosp., 200 N.J. 22, 52 (2009). To the extent plaintiffs' argument rests upon discretionary decisions rather than the weight of the evidence, we "defer to the trial court's exercise of discretion unless its mistaken exercise prejudiced the substantial rights of a party." Pressler & Verniero, supra, comment 4 on R. 2:10-2.
Analysis of cumulative error rests on: (1) whether the errors pervaded the trial, (2) whether discretionary decisions "shift[ed] the jury's focus from a fair evaluation of the evidence to pursue instead of a course designed to inflame the jury, appealing repeatedly to inappropriate and irrelevant considerations that had no place in the courtroom[,]" and (3) whether the impropriety was even-handed. Pellicer, supra, 200 N.J. at 55-56. Evaluating cumulative error entails more than enumerating a large number of inconsequential mistakes or repeating a single objection. Id. at 55.
As previously discussed, we discern the following errors in the trial record: (1) suppression of the repair estimate without holding an N.J.R.E. 104(a) hearing; (2) defendant's mischaracterization of plaintiff's treatment; and (3) the general shift away from the evidence and onto the gaps in the record. Against the harm of these errors we balance: (1) the repair estimate's limited value on an undisputed topic; (2) plaintiffs' initiating the allegations of misdirection; (3) the trial court's plain error in plaintiffs' favor by admitting defendant's surveillance of plaintiff; and (4) plaintiffs failure to raise timely objections to any of defendant's allegedly improper arguments. Given plaintiffs' contribution to the errors, as well as our deference to the trial court on discretionary rulings, we discern no clear miscarriage of justice arising out of the cumulative errors. See Lovenguth, supra, 258 N.J. Super. at 13.
We further note the record adequately supports the jury's verdict. See R. 2:10-1. The UIM testified both she and plaintiff were driving in reverse at the time of the collision. The trial court and the jury found the UIM credible, and we defer to those findings. Conrad v. Robbi, 341 N.J. Super. 424, 443 (App. Div. 2001), certif. denied, 170 N.J. 210 (2001). Accordingly, the record supports the jury's finding of contributory negligence.
Moreover, the finding of no permanent injury renders the issue of contributory negligence moot. --------
As we discern no clear miscarriage of justice under the law, we affirm the jury verdict and the denial of plaintiffs' motion for a new trial.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION