Green v. New Jersey Manufacturers Insurance , 160 N.J. 480 ( 1999 )

POLLOCK, J.,

dissenting.

I agree with the majority that defense counsel erred in injecting plaintiffs racism at trial. Given the totality of the trial, however, the error was “not clearly capable of producing an unjust result.” R. 2:10-2. Accordingly, I would affirm the judgment of the Appellate Division.

The record reveals that the trial, which lasted eleven days, focused on the credibility of plaintiff and his experts. At trial, plaintiff claimed that he was suffering from extensive physical and psychological injuries as a result of two automobile accidents in 1991 and 1994. Indeed, plaintiffs counsel asserted in his opening statement that, before the 1991 accident, plaintiff was a “100 percent functioning unit.” Throughout the trial, defense counsel attacked that assertion. For example, defense counsel elicited on cross-examination that in numerous accidents plaintiff had suffered serious physical injuries before 1991. The prior accidents included a 1982 automobile accident, a 1982 work-related accident, slip-and-fall accidents in 1983 and 1991, and other accidents resulting in bone fractures.

Defense counsel also challenged plaintiffs testimony on direct examination that he had not suffered any stressful, personal events in his life. On cross-examination, plaintiff conceded that he had been divorced twice. Other evidence demonstrated that the cause of plaintiffs post-traumatic-stress-disorder was not the 1994 accident, but his military service during the Vietnam War.

Defense counsel undertook vigorous cross-examination of plaintiffs experts. For example, Dr. Sheldon Birnhak, plaintiffs primary treating physician, testified on direct examination that plaintiff had a history of only minor back pain. A review of Dr. Birnhak’s records, however, revealed that plaintiff had missed three weeks of work in 1982, after injuring his back at work. Furthermore, plaintiff had been hospitalized for a month for a severe back injury suffered in the 1982 automobile accident. In 1984, plaintiff had complained to Dr. Bimhak of numbness in both arms, and thus was referred to an orthopedist, an osteopath and a neurologist. Similar inconsistencies permeated the testimony of plaintiffs other experts. The point of the foregoing recitation is to demonstrate that quite apart from their regrettable reference to plaintiffs racism, defense counsel provided the jury with ample evidence to find plaintiff incredible.

Although I agree with the majority that defense counsel erred by introducing plaintiffs racist comment, I would find the error harmless. The majority could effectively condemn defense counsel’s conduct without subjecting the parties and the public to the expense of an additional trial.

Chief Justice PORITZ joins in this dissent.

For reversal and remandment — Justices HANDLER, O’HERN, GARIBALDI, STEIN and COLEMAN — 5.

For affirmance — Chief Justice PORITZ and Justice POLLOCK — 2.