Opinion
DOCKET NO. A-0014-10T4
10-03-2011
MELISSA RIVERA, Plaintiff-Appellant, v. BONNIE F. DOSTALIK, Defendant, and STEVEN A. DOSTALIK, Defendant-Respondent.
Frank Cofone, Jr., argued the cause for appellant (Law Offices of Rabb Hamill, P.A., attorneys; Mr. Cofone, on the brief). John P. Cascio argued the cause for respondent (Law Offices of Edward Hoagland, Jr., attorneys; Mr. Cascio, on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges A.A. Rodríguez and Ashrafi.
On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-2932-08.
Frank Cofone, Jr., argued the cause for appellant (Law Offices of Rabb Hamill, P.A., attorneys; Mr. Cofone, on the brief).
John P. Cascio argued the cause for respondent (Law Offices of Edward Hoagland, Jr., attorneys; Mr. Cascio, on the brief). PER CURIAM
Plaintiff Melissa Rivera appeals as inadequate the jury's verdict awarding her $40,000 for pain, suffering, and other non- economic damages resulting from injuries she suffered in a motor vehicle accident. She alleges misconduct at trial by the attorney for defendants and inadequate measures taken by the trial judge to cure the prejudice to her case. Our review of the record has revealed no reversible error. We affirm the judgment of the trial court.
Plaintiff's car was struck in the rear in January 2008, by a car driven by defendant Steven Dostalik. Plaintiff reported no injuries at the scene of the accident and did not go to a hospital on that day. Her immediate complaints were of pain in her hip and foot. The morning after the accident, she went to the emergency room at the hospital where she was employed. In addition to a physical examination, x-rays were taken revealing a straightening of her cervical spine because of spasm, but no other abnormality. She was prescribed Percocet for her pain, and the emergency room doctor recommended that she arrange for an MRI and chiropractic treatment.
During the next several months, plaintiff underwent treatment for neck and back pain with Dr. Walters, a chiropractor. An MRI performed in March 2008 revealed two herniated discs in her cervical spine and a third one in her lumbar spine. An EMG performed in April 2008 revealed nerve damage.
In the summer of 2008, plaintiff was treated by Dr. Pathakar, a pain management specialist. Over several months, she received a total of six epidural injections in her lower back and neck. After the injections, she had no further treatment for her lower back, and approximately nine months passed before she visited a doctor again for her neck injuries.
In June 2009, plaintiff began treatment with Dr. Liu for pain management related to her neck. By means of a discogram, Dr. Liu located the source of the pain in her cervical spine and recommended an endoscopic discectomy, a minimally invasive surgical procedure to repair a herniated disc in her neck. In early October 2009, plaintiff went on disability leave from her job to undergo the surgical procedure, and she missed two months of work. Previous to the surgery, she had missed only the one day of work when she went to the emergency room immediately after the accident.
The endoscopic surgery was successful. The most notable effect, according to plaintiff, was that she no longer suffered from headaches, as she had before the surgery. Dr. Liu also determined that plaintiff had no complications from the surgery and could return to all prior activities with no restrictions. He recommended no further treatment for her neck. Plaintiff resumed her prior employment at the hospital in December 2009.
At the time of trial in June 2010, however, external marks were still visible on plaintiff's neck indicating the spot where the surgical procedure was performed, and she also complained of continuing residual effects of the injuries she suffered in the accident. In her testimony, plaintiff complained of inability to engage in the activities she was accustomed to before the accident, including cleaning her apartment and participating in recreational activities with her family, such as visits to an amusement park, skating, and dancing. She testified she had some ability to engage in these activities but would restrain herself from full participation because of the persisting pain. She also said she could not lift anything heavy, such as her three-year old child or a full laundry basket.
On cross-examination, she was challenged with statements she had made to her treating and examining doctors that her condition had improved significantly and that she "felt great." As evidence of plaintiff's rehabilitation with the treatment she had received, the defense questioned her about returning to her job full-time while also taking care of her child at home, joining a gym shortly after recovery from her surgery, and participating in other social and recreational activities such as dancing. In addition, plaintiff admitted she had received no further treatment for her lower back after the epidural injections in the summer of 2008, and defense counsel challenged her with a statement she had allegedly made to an examining doctor shortly before her 2009 surgery indicating she had no problems with her lower back.
For purposes of the trial, the parties prepared the videotaped testimony of Dr. Liu. Included in Dr. Liu's report and testimony were references to two prior motor vehicle accidents in which plaintiff was involved, one in 1998 and the second in 2003. One had resulted in a prior lawsuit brought by plaintiff, and the second involved a visit to an emergency room without any further treatment. Before the trial began, plaintiff's attorney moved to bar any reference to the prior accidents on the ground that no expert witness had concluded the prior accidents were a cause of plaintiff's recent pain or other complaints. The trial judge heard argument and granted plaintiff's motion. The parties were required to redact parts of Dr. Liu's taped testimony to comply with the ruling.
At the trial, the defense conceded negligence and liability and presented no witnesses. In addition to Dr. Liu's taped testimony, the jury heard testimony only from plaintiff and her fiancé. Originally, plaintiff also expected to call Dr. Walters, the treating chiropractor. As the trial progressed, however, the court made a number of preliminary rulings indicating that defense counsel would be permitted to cross-examine Dr. Walters about plaintiff's apparent failure to inform him that she had been involved in prior accidents. Also, plaintiff's attorney had difficulty scheduling Dr. Walters for the trial, and so, he decided to proceed without Dr. Walters' testimony. No medical witnesses testified other than Dr. Liu.
After closing arguments and the court's final instructions, the jury deliberated and returned a damages verdict of $40,000 for plaintiff's pain, suffering, disability, impairment, and loss of enjoyment of life. The trial judge subsequently denied plaintiff's motion for a new damages trial. This appeal followed.
Quoting a number of excerpts from defense counsel's summation, plaintiff argues that she was prejudiced by improper argument that led the jury to consider whether a money damages verdict would hurt defendant financially for the rest of his life, revealed the existence of prior accidents to the jury despite the court's pretrial ruling barring such references, improperly suggested that the jury should draw an adverse inference from the failure of plaintiff to call as witnesses Drs. Walters and Pathakar, falsely suggested that Dr. Liu was paid to testify, and otherwise was improper prejudicial argument or exceeded the scope of admissible evidence before the jury.
We grant "broad latitude" to counsel to make closing arguments to the jury. Diakamopoulos v. Monmouth Med. Ctr., 312 N.J. Super. 20, 32 (App. Div. 1998). But "[s]ummation commentary . . . must be based in truth," and counsel are not free to misstate the facts or the law. Bender v. Adelson, 187 N.J. 411, 431 (2006); see Biruk v. Wilson, 50 N.J. 253, 260-61 (1967) (disapproving counsel's tactics of making false factual suggestions to jury in closing argument). A timely objection will permit the trial judge to correct any prejudicial comment by counsel and to cure potential error. See Bender, supra, 187 N.J. at 433; City of Linden v. Benedict Motel Corp., 370 N.J. Super. 372, 398 (App. Div.), certif. denied, 180 N.J. 356 (2004); Weed v. Casie Enter., 279 N.J. Super. 517, 528 (App. Div. 1995).
In the beginning of his closing argument, defense counsel remarked that the jury would "be asked to enter a money judgment against Steve Dostalik, something that may affect him for the rest of his life." Before completing the sentence, plaintiff's attorney objected, and the trial judge simultaneously interrupted the summation. The judge misspoke and said "overruled" in response to plaintiff's objection, but she immediately struck defense counsel's remark, described it before the jury as an "improper comment," and instructed the jury to "disregard that statement." In the post-trial motion, the trial judge described her tone and demeanor at the time as somewhat angry in making those immediate comments directly to defense counsel and the jury.
Although defendant Steven Dostalik did not testify, he was present for the entire trial, and the jury could see that he was a young man of college age.
Plaintiff argues that the judge's response was insufficient to cure the prejudice. He contends defense counsel's remark falsely suggested to the jury that defendant did not have insurance coverage to pay a damages award. Citing Tomeo v. Northern Valley Swim Club, 201 N.J. Super. 416 (App. Div. 1985), plaintiff argues the judge should have instructed the jury that defendant had insurance coverage.
Much of plaintiff's argument on appeal also relies on an unpublished decision of this court. Under Rule 1:36-3, an unpublished decision is not precedential authority and we do not cite it.
In Tomeo, the defense attorney had embarked upon egregious misconduct in falsely and repeatedly suggesting to the jury that the family who owned the defendant swim club would suffer financial disaster, including personally losing their homes, if the jury were to award money damages to the injured plaintiff. Id. at 418-19. In fact, the defendant swim club had sufficient liability insurance to cover any reasonable verdict. Id. at 420. Rather than correcting defense counsel's misstatements directly, the trial court responded with a standard instruction within its final jury charge that the jury was not to base its verdict on sympathy or passion. Inserted in that general instruction was a single comment that the owners of the swim club would not lose their homes. Ibid. In that context, a panel of this court held that the court's instruction was insufficient to cure the prejudice caused by defense counsel's misconduct, and added in dictum: "When defense counsel creates a false impression of no insurance, . . . the trial judge must be satisfied that the jury is unequivocally advised, by counsel or by the court, that the defendant is insured but that they are to disregard that fact because it is not relevant to the issues they are to determine." Id. at 421.
Such an instruction may be appropriate to cure egregious misconduct, but it is not the remedy of first resort for any vague remark that could theoretically be interpreted as a reference to whether or not defendant is insured. As a general matter, our courts strive to keep comments about liability insurance out of damages trials. See Bardis v. First Trenton Ins. Co., 199 N.J. 265, 275 (2009); see also N.J.R.E. 411 ("Evidence that a person was or was not insured against liability is not admissible on the issue of that person's negligence or other wrongful conduct."). "'It has long been recognized that evidence showing that the defendant is insured creates a substantial likelihood of misuse.'" Kotler v. Nat'l R.R. Passenger Corp., 402 N.J. Super. 372, 378 (App. Div. 2008) (quoting Eichel v. N.Y. Cent. R.R. Co., 375 U.S. 253, 255, 84 S. Ct. 316, 317, 11 L. Ed. 2d 307, 309 (1963)).
Here, defense counsel made a single, general reference to the effect of a money judgment on defendant. The court immediately took action to correct any potential misuse of the reference. It forcefully instructed the jury to disregard the comment. We have no reason to conclude that the jury nevertheless speculated about absence of insurance or the potential for personal financial responsibility of defendant for any award that the jury made.
Tomeo's concern with telling the jury the truth, 201 N.J. Super. at 421, might logically call for a completely accurate instruction from the judge revealing the amount of liability insurance available to the defendant. Otherwise, the jury could misuse insurance information to make an award substantially higher than the available coverage and, in fact, cause personal financial ruin to the defendant while believing that all of the award will be paid by insurance. Information about insurance coverage should be avoided because it is a collateral matter that can distort the jury's focus and skew the damages award. See Wenz v. Allstate Ins. Co., 316 N.J. Super. 570, 574-75 (App. Div. 1998).
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Next, plaintiff contends that defense counsel made a loud reference to "prior accidents" during a sidebar conference, which plaintiff and her fiancé heard as they sat near the jury box. Plaintiff argues that defense counsel then improperly reminded the jury about prior accidents in the course of his closing argument. Our review of the sidebar record and defense counsel's summation does not support plaintiff's contention.
First, there is nothing in the record to indicate that jurors actually heard such a reference or, if they did, that they made use of it in their deliberations. The court had instructed the jurors before testimony began that they were "to judge the facts in this case based only on the evidence that's presented to you," and that the evidence consisted of "the testimony of witnesses, exhibits that may be marked into evidence, and any material that might be read to you." In addition, the court instructed the jurors "to give no consideration to any evidence that I rule to be inadmissible, and . . . not to speculate or guess about what that evidence might have been or what it might have meant." The court also gave the standard instruction that "the attorneys are not witnesses" and "what they say is not evidence in the case." Thus, the jury was instructed to focus on the evidence admitted by the court and not on a phrase or comment that jurors might have heard spoken by an attorney at sidebar.
Second, defense counsel's summation remarks that plaintiff now highlights were tied directly to witness testimony that was admitted at trial, in particular, the testimony of Dr. Liu referring ambiguously to plaintiff's "recent" or "most recent" accident. There was no further reference to prior accidents. Defense counsel's arguments were made in the context of potential pre-existing degeneration of the disc tissue as an alternative cause of plaintiff's pain and other complaints. That subject was covered in cross-examination of Dr. Liu, and counsel was permitted to comment about it in summation.
We have found no indication of purposeful violation of the court's ruling barring reference to prior accidents in defense counsel's closing argument.
Next, plaintiff argues that defense counsel improperly argued that Drs. Walters and Pathakar were not called by plaintiff and that the jury should wonder why. The trial court heard argument on this issue immediately after the defense summation and ruled that the comments did not improperly go beyond the evidence and permissible argument and that plaintiff's attorney could adequately respond to them in his closing argument. After a recess, plaintiff's attorney did address the comments and effectively explained to the jury why the testimony of Drs. Walters and Pathakar would not have been productive at the trial. We find neither prejudice requiring reversal of the verdict nor an abuse of discretion by the trial judge in her ruling on this issue.
Plaintiff argues that defense counsel falsely told the jury that Dr. Liu's credibility should be questioned because he was a paid expert witness. In response to counsel's immediate objection, the trial judge cured the potential prejudice by informing the jury that there had been no testimony that Dr. Liu received or did not receive payment for testifying. The court effectively neutralized the issue by its ruling on plaintiff's objection.
As to plaintiff's several contentions that defense counsel's arguments ranged beyond the evidence in the case, such as a reference to plaintiff going dancing in "bars," there were no immediate objections to some of the comments, and as to all such comments, plaintiff's attorney effectively responded in his closing argument by reminding the jury of the evidence as it had developed and by painting defense counsel's summation as exaggerated and unfair.
We have considered plaintiff's several additional arguments highlighting allegedly prejudicial remarks in defense counsel's summation. Although we make no determination here that all of defense counsel's remarks were proper, we find plaintiff's additional arguments not of sufficient merit to warrant further discussion in a written opinion in the context of plain error analysis under Rule 2:10-2. R. 2:11-3(e)(1)(E).
The Supreme Court has repeatedly held that our system of civil justice depends on the jury's evaluation of particular facts in an individual case and its subjective, unscientific assessment of a fair amount of compensation for non-economic damages. See, e.g., Jastram v. Kruse, 197 N.J. 216, 229 (2008) ("the evaluation of damages is a matter uniquely reposed in the jury's good judgment"); Johnson v. Scaccetti, 192 N.J. 256, 281 (2007) (to set aside a jury's damages award, "[t]he verdict must be 'wide of the mark' and pervaded by a sense of 'wrongness'") (quoting State v. Johnson, 42 N.J. 146, 162 (1964)); Baxter v. Fairmont Food Co., 74 N.J. 588, 597 (1977) ("The judgment of the initial factfinder . . . is entitled to very considerable respect.").
The Court recently returned to the subject in He v. Miller, __ N.J. __ (2011), in the context of a trial court's authority to grant a remittitur of a jury's verdict. It said: "The trial court should not disturb the jury's award unless it is 'so disproportionate to the injury and resulting disability as to shock the conscience and [convince the court] that to sustain the award would be manifestly unjust.'" Id. at __ (slip op. at 34-35) (quoting Baxter, supra, 74 N.J. at 604). Not only must the trial court defer to the jury's findings and conclusions, an appellate court must defer to the trial court's "firsthand 'feel of the case' as it bears on an analysis of whether the jury's verdict was motivated by improper influences." He, supra, __ N.J. at __ (slip op. at 36) (quoting Pellicer v. St. Barnabas Hosp., 200 N.J. 22, 58 (2009)).
Here, we see no abuse of discretion in denial of plaintiff's motion for a new trial. The jury was made fully aware of the disputed facts pertinent to the degree of disability suffered by plaintiff, the level of her recovery, and the nature of her pain and other complaints. The award of $40,000 for intangible, non-economic damages is not so far out of an acceptable range that it suggests prejudice or improper influence.
Finally, our review of the trial record as a whole indicates even-handed rulings and commendable control of the proceedings by the trial judge. In fact, plaintiff prevailed on several evidentiary rulings that could have, in the judge's discretionary authority, been decided otherwise and detracted from plaintiff's case. Having received a fair trial, plaintiff has no viable ground to disturb the jury's verdict in her favor.
Affirmed.