Opinion
DOCKET NO. A-5731-13T2
09-01-2016
STEVEN VISAGGIO and BARBARA VISAGGIO, his wife, Plaintiffs-Respondents, v. KURT W. DORTHE, Defendant-Appellant, and MICHELLE DORTHE, Defendant.
Stephen A. Rudolph argued the cause for appellant (Rudolph & Kayal, attorneys; Mr. Rudolph, on the brief). Andrew A. Fraser argued the cause for respondents (Laddey, Clark & Ryan, LLP, attorneys; Mr. Fraser, of counsel; Timothy E. Dinan, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Sabatino, Accurso and O'Connor. On appeal from Superior Court of New Jersey, Law Division, Sussex County, Docket No. L-161-12. Stephen A. Rudolph argued the cause for appellant (Rudolph & Kayal, attorneys; Mr. Rudolph, on the brief). Andrew A. Fraser argued the cause for respondents (Laddey, Clark & Ryan, LLP, attorneys; Mr. Fraser, of counsel; Timothy E. Dinan, on the brief). PER CURIAM
In this verbal threshold action, defendant Kurt W. Dorthe appeals from a $19,300,000 jury verdict awarded to plaintiffs Steven and Barbara Visaggio. Because our review of the record convinces us that erroneous and inconsistent evidentiary rulings and comments by the trial court deprived defendant of a fair trial, we reverse.
The parties stipulated to liability as there was no real dispute over the facts of the accident that occurred on March 20, 2010. Defendant Dorthe, then nineteen years old, was in a pickup truck stopped at a traffic light on Route 23 in Sussex Borough behind plaintiff Steven Visaggio. Visaggio, then fifty-seven years old, was on a Harley Davidson motorcycle. There were three or four cars ahead of them. Dorthe claimed he took his foot off the break when the light turned green and rolled into plaintiff, causing him to lose his balance and fall over. Visaggio claimed the truck pushed him forward ten or twelve feet and the motorcycle fell over onto his left leg. The truck sustained no damage, but there was impact damage to the rear fender of the motorcycle. There was also some damage to the left side of the motorcycle, including scratches to the left side shift and clutch levers from when the bike hit the ground.
The truck was owned by his mother, defendant Michelle Dorthe, who was dismissed from the case prior to trial on an unopposed motion. She is not participating in this appeal.
The issue at trial was the nature and extent of the injuries plaintiff claimed he suffered in the accident. Plaintiff alleged the injury caused him permanent shoulder and spine problems that had a devastating effect on his life. Defendant contended plaintiff suffered no permanent injury in the accident, but only an exacerbation of pre-existing right shoulder problems for which his doctor had already recommended surgery. Given the positions of the parties, evidence of plaintiff's physical condition, both before and after the accident, was obviously critical, as was proof of his physical limitations following the collision.
Plaintiff did not assert any claim for lost wages or medical expenses. The $15,500,000 the jury awarded plaintiff was solely for his pain and suffering. His wife Barbara Visaggio was awarded $3,800,000 on her per quod claim. The total judgment, including prejudgment interest of $797,777.40 and attorneys' fees and costs of $115,616.32, stemming from a $250,000 offer of judgment, was $20,213,393.72. Defendant contends the jury's award is so excessive that it constitutes a miscarriage of justice. He raises the following specific points of error on appeal.
I. A NEW TRIAL IS WARRANTED BECAUSE THE COURT ABUSED ITS DISCRETION WHEN IT BARRED THE ISG SURVEILLANCE VIDEOS THAT DIRECTLY CONTRADICT PLAINTIFF'S TRIAL TESTIMONY.
II. A NEW TRIAL IS WARRANTED BECAUSE THE COURT ABUSED ITS DISCRETION WHEN IT ALLOWED PLAINTIFFS TO TESTIFY THAT THEIR NOW-ADULT ADOPTED SON WAS A DRUG-EXPOSED BABY WITH FETAL ALCOHOL SYNDROME, INOPERABLE CROHN'S DISEASE, DEVELOPMENTAL DISABILITIES, AND NEEDED INFUSIONS EVERY SIX WEEKS TO LIVE.
III. A NEW TRIAL IS WARRANTED BECAUSE THE COURT ABUSED ITS DISCRETION WHEN IT BARRED DEFENSE COUNSEL FROM CROSS-EXAMINING DR. BASCH WITH DR. VITOLO'S RECORDS AFTER THE COURT HAD ALREADY RULED THAT DR. VITOLO'S RECORDS WERE ADMISSIBLE.
IV. A NEW TRIAL IS WARRANTED BECAUSE OF THE TRIAL JUDGE'S PREJUDICIAL COMMENT TO DEFENSE COUNSEL IN FRONT OF THE JURY THAT HE WAS ASKING QUESTIONS "IN BAD FAITH."
V. A NEW TRIAL IS WARRANTED BECAUSE THE COURT ABUSED ITS DISCRETION WHEN IT BARRED DEFENSE COUNSEL FROM CROSS-EXAMINING DR. BASCH WITH THE MRI REPORTS AFTER DR. BASCH TESTIFIED HE RELIED ON THE MRI REPORTS AND AGREED WITH THE FINDINGS OF THE NON-TESTIFYING RADIOLOGIST.
VI. A NEW TRIAL IS WARRANTED BECAUSE OF THE TRIAL JUDGE'S SUA SPONTE QUESTIONING OF DR. DRYER, AND BECAUSE OF [THE JUDGE'S] BIASED OPINION THAT DR. DRYER AND HIS MEDICAL GROUP, EXAM WORKS, RUN A "CRIMINAL ENTERPRISE."
VII. A NEW TRIAL IS WARRANTED BECAUSE THE COURT ABUSED ITS DISCRETION IN BARRING THE PHOTOGRAPH TAKEN BY DEFENDANT HIMSELF OF PLAINTIFF, AND BARRING DEFENDANT FROM TESTIFYING ABOUT HIS PERSONAL OBSERVATIONS OF PLAINTIFF.
VIII. A NEW TRIAL IS WARRANTED BECAUSE OF OTHER COMMENTS AND SUA SPONTE ACTIONS BY THE TRIAL JUDGE THAT PREJUDICED DEFENDANT.
IX. A NEW TRIAL IS WARRANTED BECAUSE OF PLAINTIFF'S COMMENTS ABOUT HIS FINANCIAL WOES, HAVING TO REDUCE HIS HEALTH INSURANCE COVERAGE AND FOREGOING BACK SURGERY BECAUSE OF THE "ASTRONOMICAL" COSTS.
X. A NEW TRIAL IS WARRANTED BECAUSE THE CUMULATIVE EFFECT OF THESE ERRORS RESULTED IN AN UNFAIR TRIAL TO DEFENDANT.
XI. A NEW TRIAL IS WARRANTED BECAUSE BOTH VERDICTS ($15,500,000 AND $3,800,000) WERE AGAINST THE WEIGHT OF THE EVIDENCE AND SHOCK THE CONSCIENCE.
XII. IF THIS COURT REMANDS, THE TRIAL JUDGE SHOULD BE RECUSED BECAUSE OF HIS "CRIMINAL ENTERPRISE" OPINIONS ABOUT EXAM WORKS AND DEFENDANT'S EXPERT DR. DRYER.
We agree the trial court misapplied its discretion in barring the surveillance videos and a photograph of the plaintiff taken by defendant; in allowing plaintiffs to testify extensively about their adoption of a baby with fetal alcohol syndrome, twenty-two years old at the time of trial; in barring defense counsel from cross-examining plaintiff's expert with records the court had previously ruled were admissible in evidence; in admonishing defense counsel before the jury that his questions were in bad faith; in barring defense counsel from reciprocally cross-examining plaintiff's expert about MRI reports the expert improperly testified on direct examination he agreed with; and in posing specific, critical questions to defendant's expert about the dictation and dissemination of his report. Having reviewed the entire record of this trial, we are convinced that the combination of these errors deprived defendant of a fair trial and resulted in a verdict grossly disproportionate to the injuries. A new trial is warranted.
Standard of Review
All of the errors defendant asserts arise out of discretionary rulings of the trial court. "The exercise of discretion implies conscientious judgment taking into account the law and the particular circumstances of the case and is directed by reason and conscience of the judge to a just result." Sokol v. Liebstein, 9 N.J. 93, 99 (1952). In reviewing the discretionary decisions of the trial court we do not "decide whether the trial court took the wisest course, or even the better course, since to do so would merely be to substitute our judgment for that of the lower court. The question is only whether the trial judge pursued a manifestly unjust course." Gillman v. Bally Mfg. Corp., 286 N.J. Super. 523, 528 (App. Div.) (quoting Gittleman v. Central Jersey Bank & Trust Co., 103 N.J. Super. 175, 179 (App. Div. 1967), rev'd on other grounds, 52 N.J. 503 (1968)), certif. denied, 144 N.J. 174 (1996).
It is against that standard that we review defendant's several points of error.
The Surveillance Videos and Photograph of Plaintiff
Plaintiff testified he had been working since he was thirteen years old, and has spent most of his working life as a home improvement contractor. He owns his own business, doing "everything from finished basements to roofing." Plaintiff testified he did "[a] hundred percent" of the physical work before the accident but is now so limited he had to hire two extra men to do the physical labor he used to do. He testified that at the time of trial in May 2014, four years after the accident, the pain in his neck, back and shoulder was still "constant."
When asked by his counsel to describe the pain in his low back, plaintiff said "it's like somebody sticking an ice pick in my back." When asked if he ever got any relief, plaintiff responded, "No. . . . Never." He told the jury his neck pain was "a constant, no matter what." He claimed he had a "[c]onstant headache . . . 24 hours a day," which "never goes away." He testified he suffered from a "stabbing pain" in his right shoulder and could not raise his right arm "above my head, [or] go behind my back. Just the range isn't there like it was before."
When asked whether the arthroscopic surgery on his right shoulder in 2012, two years after the accident, had helped, plaintiff replied, "No. No. Not really." Asked if he was getting better, or whether his condition was "staying the same," plaintiff responded, "No, it's getting worse."
Plaintiff testified extensively and specifically about the work he could no longer perform after the accident, particularly roofing work. He testified unequivocally that after the accident he could no longer work as a roofer. When asked on cross-examination whether that meant he "never [went] back up on the roof at all," plaintiff responded that he would "go up and estimate, I'm not going up to work on a roof. I mean I can't go up and tear off a roof anymore."
In June 2013, two months before the discovery end date, defendant amended his discovery responses by serving plaintiff's counsel with a single photograph of plaintiff working on a roof. In the cover letter, defense counsel stated his client "has advised he has a video of plaintiff working on a roof." Plaintiff's counsel responded to that letter by serving defendant with a notice to produce the video referenced in counsel's letter.
Following that exchange, the defendant's insurance carrier had plaintiff surveilled on three different dates in July. On August 2, 2013, three weeks before the end of discovery and nine months before trial, defendant amended his answers to interrogatories by serving a thirty-eight page report prepared by ISG Value at the behest of defendant's carrier, detailing surveillance conducted in July 2013 of plaintiff working on a roof.
The report included a summary of the surveillance conducted over the course of the three days, and detailed entries of activities observed by date and time, as well as whether video was obtained. The report also included copies of ten photographs, including pictures of plaintiff carrying a large sheet of plywood up and down a ladder, standing on a roof using an electric saw and a nail gun with his right hand, and carrying a two-story extension ladder alone.
Following service of the ISG report, plaintiff's counsel wrote to remind defense counsel he was "overdue in providing [his] responses to [plaintiff's counsel's] July 8, 2013, request for discovery," but made no mention of the ISG report detailing surveillance conducted after July 8. Defendant's counsel never responded to plaintiff's July 8, 2013 request for discovery and plaintiff's counsel never sought production of the ISG video surveillance or sought the deposition of the individual conducting the surveillance. On May 8, 2014, eleven days before trial, defense counsel sent plaintiff's counsel a copy of the ISG video.
On a motion in limine to exclude the video argued on May 19, 2014, just before jury selection, plaintiff's counsel told the court that the video
comes as a complete surprise to us, and our notice to produce went completely ignored for more than 365 days, and we still haven't had a response to it.
We did receive a report that was unsigned by the videographer, so that's how we know when the dates were taken, that it was taken over three days and then apparently edited down. But that's about all we know judge.
Defense counsel responded by explaining that the only request for production from plaintiff was for the video supposedly taken by defendant himself, which was not produced because there was no video but only the single photograph sent to plaintiff's counsel. Defense counsel claimed his reference to video taken by defendant was an error, and that he later learned from his client that there was no video, only the single still shot he had produced. He argued that plaintiff's counsel had possessed the surveillance report for over nine months, including the pictures of plaintiff working on a roof, and had never requested the video or sought to depose the videographer. He claimed plaintiff could not show prejudice "because the description provided in the report matches up with the video."
Plaintiff's counsel countered that he
never had an opportunity to depose the videographer. We had an unsigned report and never received the video. . . . We can't do any more than request, file a notice to produce, which we didn't have to do, and beg and plead for the video, which we never received. That's an unsigned report from someone involving an edited tape, which arguably could contain some of the best evidence proving plaintiff's case.
After asking to see the report, and thus presumably seeing the pictures of plaintiff working on a roof, carrying a large sheet of plywood up and down a ladder, and moving a large extension ladder by himself, the court granted plaintiff's motion to bar the video. Rejecting defendant's claims that possession of the report vitiated any claim of prejudice, the court stated:
No prejudice? The . . . court rules, I suggest, would permit me to strike your answer under these circumstances for failing to comply with the discovery rules. It . . . seems to me a pretty egregious violation.
. . . .
I'm simply going to bar the video for discovery reasons, failure to provide it in discovery, and likewise, I'm going to bar the entire surveillance for failure to comply with discovery, including all photographs, still photographs that were taken.
The defendant can't simply pick and choose what they want to turn over in discovery, and I'm satisfied here that as a result of what has taken place, that the plaintiff has been seriously prejudiced in conducting [his] own investigation and preparing this case for trial. So the end result of this is that short of dismissing the [defendant's] answer in this case, the only available remedy is to bar the surveillance itself.
The trial court never identified the basis for the discovery violation. Outside of defendant's failure to have responded to plaintiff's notice to produce to advise that the video referenced in counsel's June 2013 letter producing the single photograph did not exist, we find none.
The Supreme Court made clear forty years ago in Jenkins v. Rainner, 69 N.J. 50, 60 (1976), that "surveillance motion pictures" are attorney work product and that "any demand for [such] should be accompanied by a consent to be deposed after the movies have been taken and before the films must be presented for the adversary's examination." We recently had occasion to revisit Jenkins, and pronounced its rationale "unassailable," observing that "although it was decided many years ago, its reasoning still serves the beneficial purposes of discovery while honoring the work product doctrine." Mernick v. McCutchen, 442 N.J. Super. 196, 203 (App. Div. 2015). Thus, leaving aside that plaintiff's counsel never sought production of the surveillance video after having been provided with the report, plaintiff plainly had no entitlement to it under established law prior to making himself available for re-deposition on the issue of damages.
Plaintiff's reliance on Dong v. Alape, 361 N.J. Super. 106, 125 (App. Div. 2003), the case he cited to the trial court in support of his motion to bar the video, is obviously misplaced. In Dong, the defense counsel first advised the plaintiff's counsel of the existence of the surveillance tape after the parties had opened at trial and the plaintiff had presented his first witness. Id. at 124-25. Moreover, after initially ruling to bar the video, the trial judge reconsidered and admitted it after the plaintiff had put in his case. Ibid. Finding the plaintiff prejudiced by the surprise, we concluded the error in admitting the videotape put the "plaintiff at a distinct disadvantage" and could not be considered harmless. Id. at 127. Here, of course, plaintiff's counsel had been aware of the video for nine months and in possession of it for eleven days before trial. Any surprise as to its contents was thus clearly one of his own making. Dong has no application here.
Having viewed the surveillance video that defendant included in his appendix, as well as plaintiff's trial testimony, we cannot find the trial court's exclusion of the video harmless. The video, which is slightly over an hour long, depicts a man working diligently with a crew on a second story roof on July 25, 2013, over the course of several hours according to the time stamps. The man repeatedly ascends and descends the ladder to access the roof, doing so on one occasion while holding a large sheet of plywood in his right hand extended behind him with the board balanced against his right shoulder. The man smoothly bends, kneels, crouches, and arises from a sitting position while using a tape measure, hammer, electric saw and a nail gun in his work on the roof. He at one point uses his right hand to violently pull a starter cord several times on the ladder hoist he was using to transport large sheets of plywood and rolls of tarpaper, which he was loading single-handedly, to the roof. Near the end of the video, the man carries the extension ladder some distance before lifting it over his head with his arms fully extended to position it on a rack on the top of his pickup truck.
In his brief on appeal, plaintiff does not concede that he is the man depicted in the video. We, of course, have no idea of whether he is or is not the man working on the roof in the surveillance video, although as the video image is quite clear, determination of that fact should be easily established. We are also mindful of Justice Clifford's observation in Jenkins "that [the] defendants' evidence (in the form of the undercover films) is [not] the exclusive repository of truth and virtue" and that "[i]t is no more unlikely that a defendant may resort to chicanery in fabricating motion pictures of one alleged to be the plaintiff than it is that a plaintiff may indeed be a faker." 69 N.J. at 57. As Justice Clifford noted, "[t]he camera itself may be an instrument of deception, capable of being misused with respect to distances, lighting, camera angles, speed, editing and splicing, and chronology." Ibid.
If defendant establishes that plaintiff is the man in the video, then the video, subject to any objections plaintiff might lodge as to its authenticity and fair depiction of the events memorialized, would certainly be highly relevant to the jury's assessment of plaintiff's damages. Because neither side brought the issue of the video to the court's attention until the morning of trial, an adjournment to allow plaintiff to produce his client for re-deposition and thereafter obtain the surveillance videos and depose the investigator might have been a justifiable application of discretion. Barring defendant's use of such highly relevant evidence to impeach plaintiff's trial testimony after defense counsel had advised plaintiff of the existence of the surveillance video nine months earlier in accordance with the discovery rules, however, was manifestly unjust. See ibid. ("Our Rules for discovery . . . are designed to insure that the outcome of litigation in this State shall depend on its merits in the light of all of the available facts, rather than on the craftiness of the parties or the guile of their counsel.") (quoting Lang v. Morgan's Home Equip. Corp., 6 N.J. 333, 338 (1951)).
We likewise discern no reasonable basis for excluding the photograph defendant took of plaintiff working on a roof separate and apart from the surveillance conducted by his carrier. That photograph was timely produced in discovery. It should have been admitted and defendant allowed to testify as to his observations on the day the photograph was taken.
Testimony Regarding Plaintiffs' Son
Over defendant's repeated objections, both plaintiffs were allowed to testify extensively about their adoption of five children, the first of whom was apparently born with fetal alcohol syndrome, had attendant developmental disabilities and later developed inoperable Crohn's disease, necessitating treatments every six weeks. For example, Barbara Visaggio testified that she and her husband already had three children when she saw a film about foster care. When she decided she wanted to "foster a baby," her husband readily agreed and they were offered one of sixty babies "ready for clearance." When asked whether she wanted a boy or a girl, she testified, "I just told them I wanted a baby that had been laying there the longest with no home to go to."
She further testified that led to their adoption of a son, and subsequently to the adoption of his four siblings. Barbara Visaggio testified that the baby boy they first adopted
was drug exposed and he had fetal alcohol syndrome. He was cleared about five days later and it was a Friday evening and they brought [the baby] to our home, [the agency] did, from Bergen County, and that night I was on the phone because [the baby] needed emergency surgery that night . . . [because] . . . [h]e had very bad hernias.She further testified the baby had special needs
[f]rom laying in the hospital, as you can tell by the amount of babies, he wasn't picked up, held, patted. He came to us with asthma, and for many years he needed [a] nebulizer, so on and so forth, for the asthma to control it, inhalers now.She further testified that their son "has cognitive and neurological conditions. He was always in special classes through school."
He also developed Crohn's when he was 15 and it's inoperable Crohn's. . . .
Steven Visaggio testified, also over objection, that
[o]ur son has Crohn's and that [a]ffects his entire digestive system, and he has it where it's inoperable, so he needs the Remicaid to live, basically. So when he has his exams, he needs to disrobe, and now that he's older, he doesn't want to do it in front of his mom. So I started taking him every time he needed to go.
Now with the ride down there and sitting down there for four hours and the ride back, it's really kind of difficult for me to sit there for four hours, and as it is here, but so his mom takes him now.
Although the treatments, to which Barbara Visaggio became responsible for taking their son after the accident, occurred only every six weeks, they were relevant to damages, both as to Barbara Visaggio's per quod claim and Steven Visaggio's nonpecuniary claim, as an example of the type of customary activities he could no longer allegedly perform following the accident. See Ocasio v. Amtrak, 299 N.J. Super. 139, 158 (App. Div. 1997). The nature of the treatments, however, was not relevant. Although the trial court determined that the circumstances of the boy's condition at the time of his adoption twenty-two years earlier were relevant to plaintiffs' damage claims, it did not explain its reasons for the ruling. In our view, the probative value of that testimony was substantially outweighed by its prejudicial impact, see N.J.R.E. 403, Ostrowski v. Cape Transit Corp., 371 N.J. Super. 499, 517 (App. Div. 2004), aff'd, 182 N.J. 585 (2005), given that their son was already an adult at the time of the accident. As the testimony had the clear capacity to invoke undue sympathy for plaintiffs, it should not have been permitted and should be avoided on any re-trial.
Experts' Use of Treating Records and MRI Reports
As we have already noted, a critical issue in the case was the extent of injury to plaintiff's right shoulder prior to the accident. Plaintiff admitted on direct examination that he had received "cortisone shots," for a "minor issue" with his right shoulder before the accident. He testified the shoulder "was just a little sore once in a while, and it didn't hinder [him] in any way."
The doctor who treated plaintiff's shoulder before and after the accident, Dr. Vitolo, did not testify. All of the doctors who did testify, plaintiff's orthopedic and radiologic experts and defendant's orthopedic expert, relied on Dr. Vitolo's records in forming their opinions regarding the extent of plaintiff's prior injury and the accident's effect on his shoulder.
Those records revealed that plaintiff had an x-ray of his right shoulder in August 2009, seven months before the accident, revealing mild degenerative osteoarthritic changes. On October 15, 2009, plaintiff went to see Dr. Vitolo complaining of sharp pain in his right shoulder, rated as an "8/10" and limited range of motion. Dr. Vitolo diagnosed "sprains and strains rotator cuff capsule" and provided him a cortisone injection. Dr. Vitolo provided plaintiff with a second cortisone injection in the right shoulder on December 16, 2009, after plaintiff reported "he stretched his shoulder the wrong way and the pain is the same compared to his last visit."
An MRI on January 22, 2010 revealed degenerative hypertrophy of the acromioclavicular joint; a partial thickness tear of the supraspinatus tendon; and a partial thickness tear of the infraspinatus tendon consistent with impingement syndrome. Plaintiff again visited Dr. Vitolo on March 4, 2010, a little over two weeks before the accident, complaining that his pain was "worse compared to last visit" and seeking another cortisone injection. Dr. Vitolo diagnosed "bursae and tendon disorders" and "osteoarthrosis" and gave plaintiff his third cortisone injection.
A note in Dr. Vitolo's records from December 28, 2011, over eighteen months after the accident, states:
The patient presents for follow up of right shoulder pain. He was last seen in this office in March of 2010. At that time surgical decompression and distal clavicle resection was discussed. He was going to wait for a slow time in business. He is now ready for surgery.
Relying on Dr. Vitolo's records, and specifically that note, defendant's orthopedic expert, Dr. Dryer, testified that plaintiff's "right shoulder was symptomatic in the months just prior to the accident, and he in fact did see Dr. Vitolo and records show that he had been offered surgery on the right shoulder" before the accident.
Plaintiff's counsel objected, relying on Agha v. Feiner, 198 N.J. 50 (2009). After an extended colloquy outside the presence of the jury, the trial court rejected plaintiff's contention that Agha barred the expert from testifying about the record. The trial court ruled it was
satisfied that's what being proffered in paragraph 1 under "Impression and Discussion" under the September 9th, 2013 letter signed by Dr. Dryer, [the statement quoted above] is admissible as a statement that an expert may rely upon in forming their opinion. But the doctor can't go beyond or outside of the actual language employed by Dr. Vitolo.Accordingly, Dr. Dryer's testimony about plaintiff being offered shoulder surgery prior to the accident was allowed to stand.
The doctor testified he relied on the MRI studies taken before and after the accident and Dr. Vitolo's records in forming his "opinion that [plaintiff] needed surgery with or without this accident. Regardless of the accident, the surgery was coming. And that's because this joint and the hypertrophy of that joint is a degenerative process, not an accident-related process, was not caused or exacerbated by the accident."
The next witness to testify was plaintiff's orthopedic expert. When plaintiff's counsel asked him on direct whether he did "a radiological review of the diagnostic films, the MRI's, X-rays," the doctor responded that he had done so, including "the shoulder MRI dated March 31st, 2010" and that he "agreed with the radiologist."
Defendant's orthopedic expert, Dr. Dryer, had testified out of turn for scheduling reasons.
When defense counsel sought to cross-examine the expert about the radiologist's findings that the doctor "agreed with," plaintiff's counsel objected, arguing that the radiologist would not be testifying, "it's the Agha case we talked about previously, it's right on point." Defense counsel argued at side-bar that the expert "testified to it [on direct]. Why can't I get into it on cross-examination with him?" The trial court dismissed the argument, relying on Agha, and sustained the objection.
Shortly afterwards, defense counsel asked the expert whether he had reviewed Dr. Vitolo's records. When the doctor said he had, defense counsel asked, "what does it say in his [records] regarding shoulder injury?" The trial court sustained plaintiff's objection, saying "I'll sustain the objection, same reason." Defense counsel then got the expert to agree that he had relied on Dr. Vitolo's records in forming his own opinion. Defense counsel next asked, did "you note anything about Dr. Vitolo speaking to him about the possibility of surgery before the car accident?" The trial court sustained plaintiff's counsel's objection, stating
It's the same objection and it is sustained. Furthermore, it's the same objection I previously ruled upon with regard to Dr. Dryer, and the question is asked in bad faith. I am going to strike the question and answer and direct the jury not to consider it for any purpose.When defense counsel responded by apologizing, saying "I didn't mean to do it in bad faith, Judge," the trial court replied, "well, I've ruled, and do not let it happen again."
Just because an attorney inserts into a question certain facts doesn't prove anything about those facts. You'll only consider that evidence which you are permitted to consider in this case.
And let's not have that happen again.
The question of whether Dr. Vitolo had recommended that plaintiff have surgery on his right shoulder prior to the accident was obviously a contested issue. Neither side called the doctor to interpret his December 28, 2011 note or to ask him whether he had or had not recommended surgery before the accident. See Stigliano by Stigliano v. Connaught Lab., 140 N.J. 305, 314 (1995) (permitting treating physician to testify as to his diagnosis and treatment of a plaintiff's disorder and its cause); see also Delvecchio v. Twp. of Bridgewater, 224 N.J. 559, 576-79 (2016) (discussing admissibility of opinions by treating physicians).
If the recommendation is viewed as a historical fact of plaintiff having been offered surgery before the accident, its admission as substantive evidence would appear unobjectionable. See Carmona v. Resorts Int'l Hotel, Inc., 189 N.J. 354, 376 (2007). If viewed, however, as a non-testifying physician's opinion of the need for surgery, the jury could not use the evidence as having established the need for such surgery. Agha, supra, 198 N.J. at 64 ("In short, under N.J.R.E. 703, an expert may give the reasons for his opinion and the sources on which he relies, but that testimony does not establish the substance of the report of a non-testifying physician.").
As defendant's expert testified he relied on Dr. Vitolo's records, we cannot find the trial court abused its discretion in initially allowing defendant's expert to testify to the note. See id. at 62 ("the testifying expert is generally permitted to detail for the trier of fact all of the materials, including films, test results, hospital records, and other experts' reports, on which he relied in deriving his opinion, so long as they are of a type reasonably relied upon by experts in his field"). But see James v. Ruiz, 440 N.J. Super. 45, 62-66 (App. Div. 2015) (comprehensively discussing considerations underlying admission of non-testifying expert's opinions under N.J.R.E. 703 and 808); see also Nowacki v. Cmty. Med. Ctr., 279 N.J. Super. 276, 284 (App. Div.) (concluding hearsay entries in hospital record stated complex diagnosis involving critical issue in dispute as opposed to uncontested diagnosis or insignificant issue and thus should not have been admitted), certif. denied, 141 N.J. 95 (1995). The problem here is not the initial ruling, it is what came afterward.
First, plaintiff's counsel elicited from his own expert that he agreed with the non-testifying radiologist's interpretation of the MRI studies. The case law is clear that should not have occurred. See James, supra, 440 N.J. Super. at 59. Plaintiff's counsel having opened that door, however, should have led the trial court to consider whether plaintiff should have then been allowed to exploit the overreach by shielding his witness from cross-examination on the point. See State v. James, 144 N.J. 538, 558 (1996) (explaining "opening the door" doctrine as essentially an expanded rule of relevancy); Gaido v. Weiser, 227 N.J. Super. 175, 187-89 (App. Div. 1988) (discussing trial court's discretion in controlling cross-examination to the end of securing fair presentation of a medical examiner's conclusion that plaintiff's decedent's death was accident and not suicide), aff'd, 115 N.J. 310 (1989). Instead, the trial court prohibited the cross-examination without apparently considering what the expert witness had testified to on direct.
Although James was decided after this trial, the general legal principles underlying its holding are long-standing. See id. at 51.
Next, when defense counsel attempted to explore whether the expert had seen Dr. Vitolo's note stating he had discussed surgery with plaintiff before the accident, which the court had ruled was admissible during the direct of defendant's expert, Dr. Dryer, the judge sustained plaintiff's counsel's objection. Then after defendant's counsel confirmed with the expert that he had relied on Dr. Vitolo's records in forming his own opinion, the trial court not only prohibited defendant's counsel from confronting plaintiff's expert with the note, he chastised counsel in front of the jury for his "bad faith" in pursuing the line of questioning, apparently forgetting that the court had overruled plaintiff's objection during Dr. Dryer's testimony.
Although the law is well settled that the permissible scope of cross-examination is an issue within the trial court's discretion, Persley v. N.J. Transit Bus Operations, 357 N.J. Super. 1, 9 (App. Div.), certif. denied, 177 N.J. 490 (2003), that discretion is not boundless. We acknowledge the issue presented here was a difficult one given the critical nature of plaintiff's treatment records and the parties' decision to not call the treating doctor to explain them. Given the testimony of plaintiff's experts, and the court's prior ruling on the admissibility of the treatment note regarding the discussion of surgery prior to the accident, however, defendant was likely entitled to try and impeach the plaintiff's expert's credibility by showing his review of the treatment records was skewed or incomplete. We have observed that "such a line of inquiry arguably would amount to . . . an attack that does not hinge upon the actual truth of the absent declarant's statements." James, supra, 440 N.J. Super. at 75.
The parties would be well-advised to avoid the difficulties presented by that decision by simply calling the treating physician at any re-trial.
As with our conclusion as to the surveillance video, there were certainly different avenues the trial court could have reasonably pursued to address the problems presented by the treatment records. Chastising defendant's counsel before the jury and accusing him of bad faith for asking a witness about a note, which the court had already expressly permitted another witness to testify about, was not one of them.
"A trial judge should never unfairly criticize or humiliate . . . counsel." Mercer v. Weyerhaeuser Co., 324 N.J. Super. 290, 298 (App. Div. 1999) (quoting State v. Zwillman, 112 N.J. Super. 6, 20 (App. Div.), certif. denied, 57 N.J. 603 (1971)). The reason for the rule is obvious. Such actions can easily prejudice a jury by conveying the judge's doubt about the validity of a party's case or the integrity of counsel's presentation of it. See D.G. ex rel. J.G. v. N. Plainfield Bd. of Educ., 400 N.J. Super. 1, 26 (App. Div.), certif. denied, 196 N.J. 346 (2008). Having reviewed the record, we cannot find the trial court's comments in this regard harmless. Instead, our reading of the record persuades us that the comments and inconsistent evidentiary rulings "deprived defendant[] of an honest chance in this pitched credibility battle." Mercer, supra, 324 N.J. Super. at 316.
The Trial Court's Questions to the Defense Expert
Lastly, we comment briefly about the trial court's questions to defendant's expert concerning the editing and dissemination of his report. During cross-examination of defendant's expert, plaintiff's counsel asked him about the administrative service that manages the independent medical examination component of his practice, including the process for the creation and distribution of the reports. After counsel had moved on to another topic, the trial court interrupted the examination to ask the expert his own questions about the process:
THE COURT: I'm trying to understand something. When you do these exams, you dictate your report, and the report then gets disseminated by [the administrative service] without you reviewing the report before it goes out or making any corrections or edits to it?
Defendant's Expert: It goes out — there's a person at [the administrative service] who reviews it for errors, for factual errors. So the dates, date errors, record errors, like factual errors. Other than that, it goes out.
N.J.R.E. 614 allows a trial judge to "interrogate any witness" if it is "in accordance with law and subject to the right of a party to make timely objection." "The discretionary power of a judge to participate in the development of proof is of 'high value,'" because a fair trial is his responsibility. State v. Guido, 40 N.J. 191, 207 (1963). Of course, "in presiding over a jury trial, the judge, who holds a powerful symbolic position vis-a-vis jurors, must maintain a mien of impartiality and must refrain from any action that would suggest that he favors one side over the other, or has a view regarding the credibility of a party or a witness." State v. O'Brien, 200 N.J. 520, 523 (2009).
These questions would likely have escaped our notice but for the trial court's comments about them on defendant's motion for new trial.
[Q]uite frankly, it is the most baffling thing I've ever heard an expert do in a courtroom.
And what we're talking about is the doctor doing his examination, somehow generating a report, whether he dictated it or hit some keys on a report that punched out the language in this report, but then some unknown third party finishing the report, reviewing it, and sending it out before he ever sees it again, and him not signing the report.
. . . .
Yes. It has all the hallmarks of what I would consider to be a criminal enterprise, rather than the legitimate practice of medicine, and someone really should put that whole group under the microscope. And I'm surprised that they
haven't done it yet with what they're doing there. It's — you know, I was really shocked to hear that that was taking place.
Reading those comments causes us considerable concern about the timing and tone of the judge's questions of defendant's expert at trial, which the cold record would not adequately capture. Having reviewed the entire record, we are convinced the combination of the errors we have discussed deprived defendant of a fair trial and resulted in a verdict grossly disproportionate to plaintiff's injuries.
Because we conclude that trial errors necessitate a new trial, we do not consider whether remittitur would have been appropriate, nor do we need to consider any comparative analysis of other verdicts relating to the question of excessiveness. See Ming Yu He v. Miller, 207 N.J. 230, 248 (2011). --------
The remaining issues raised on appeal are either mooted by our disposition or lack sufficient merit to be worthy of comment in a written opinion. See R. 2:11-3(e)(1)(E).
Reversed and remanded for a new trial. We do not retain jurisdiction. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION