Juan Morales-Hurtado v. Abel v. Reinoso (082293) (Bergen County & Statewide) ( 2020 )


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  •                                         SYLLABUS
    (This syllabus is not part of the Court’s opinion. It has been prepared by the Office of the
    Clerk for the convenience of the reader. It has been neither reviewed nor approved by the
    Court. In the interest of brevity, portions of an opinion may not have been summarized.)
    Juan Morales-Hurtado v. Abel V. Reinoso (A-5-19) (082293)
    (NOTE: The Court did not write a plenary opinion in this case. The Court affirms
    the judgment of the Appellate Division substantially for the reasons expressed in
    Judge Nugent’s opinion, published at 
    457 N.J. Super. 170
    (App. Div. 2018).)
    Argued March 16, 2020 -- Decided April 16, 2020
    PER CURIAM
    The Court considers the Appellate Division’s determination that the cumulative
    effect of many errors deprived plaintiff Juan Morales-Hurtado of a fair trial.
    Plaintiff filed a vehicular negligence claim against defendant Abel V. Reinoso.
    The Appellate Division’s decision chronicles a number of errors that occurred during the
    parties’ trial. See generally 
    457 N.J. Super. 170
    (App. Div. 2018).
    During his opening statement, defense counsel told the jury: “[a]s one might
    expect, not surprising in our litigious society, defendant . . . [is] claiming that he’s
    injured.” The Appellate Division concluded that counsel’s reference to one’s
    expectations in a litigious society was improper. The remark was not a statement of
    evidence, and it arguably was an impermissible appeal to prejudice. See
    id. at 191.
    Defense counsel cross-examined plaintiff about when plaintiff came to the United
    States, his citizenship, whether he had been in the United States continually since his
    arrival, and his need for an interpreter. The Appellate Division determined that those
    questions raised the same concerns expressed in State v. Sanchez-Medina, 
    231 N.J. 452
    ,
    463 (2018), where the Court noted that “evidence of a defendant’s undocumented
    immigration status could appeal to prejudice, inflame certain jurors, and distract them
    from their proper role in the justice system.” The appellate court found that plaintiff’s
    attorney did not open the door to those questions, which were irrelevant. The court noted
    that, even if the questions could be considered relevant, their probative value was
    substantially outweighed by the risk of undue prejudice. 
    See 457 N.J. Super. at 192
    .
    The Appellate Division also found irrelevant defense counsel’s questions about the
    age of the passengers in plaintiff’s car. Further, the appellate court reasoned that defense
    counsel’s question to his own client about whether any of the passengers had sued him
    1
    undermined counsel’s contention that he asked about the passengers’ ages to establish
    their presence. The court also expressed concern that, although the trial court
    immediately struck the question about other suits, the instruction might have been
    inadequate to effectively blunt the risks of significant prejudice. See
    id. at 192-93.
    Defense counsel cross-examined plaintiff about the airbags in plaintiff’s car not
    deploying upon impact. The Appellate Division concluded that such evidence was
    inadmissible absent expert testimony and might have been misleading because there is no
    evidence airbags are engineered to deploy in rear-end accidents. See
    id. at 193.
    The Appellate Division noted plaintiff’s challenges to defense counsel’s cross-
    examination of two of plaintiff’s medical expert witnesses and provided guidance for the
    proceedings upon remand, including that the trial court should bar assertions by defense
    counsel conveying not-so-veiled opinions that one of plaintiff’s witnesses was not
    credible and also bar defense counsel’s cross-examination of another witness about a
    draft report unless defense counsel can contend that an exception to Rule 4:10-2(d)(1)
    applies here. The Appellate Division further concluded that the trial court should bar on
    retrial the cross-examination of one of plaintiff’s witnesses about the concept of
    secondary gain. See
    id. at 194-96.
    The Appellate Division indicated that defense counsel made an impermissible
    speaking objection during plaintiff’s cross-examination of defendant, and provided
    relevant guidance. See
    id. at 196-97.
    The court also provided guidance relevant to
    plaintiff’s arguments that defense counsel elicited hearsay medical evidence during his
    cross-examination of plaintiff’s medical experts and continued his excoriation of
    plaintiff’s doctors and plaintiff’s attorney during his summation. See
    id. at 198-99.
    Noting the disputed issue of causation, the Appellate Division found no error in
    the trial court’s denial of plaintiff’s motion for a directed verdict. See
    id. at 199-200.
    Finally, the Appellate Division reversed the trial court’s decision to exclude the
    opinion of Dianne Simmons-Grab, a certified life care planner.
    Id. at 200-04.
    Plaintiff’s
    counsel sought to present Simmons-Grab as an expert witness at trial regarding the
    medical expenses that plaintiff is expected to incur over his lifetime. Simmons-Grab
    premised her opinion that addressed plaintiff’s future medical needs on notations made in
    medical records and on handwritten responses to questionnaires that she had submitted to
    the offices of three of plaintiff’s treating physicians.
    The trial court found that Simmons-Grab’s opinion was based on unreliable
    sources of information and excluded her testimony. The Appellate Division held that the
    trial court’s decision to bar the expert testimony constituted error.
    Id. at 202-04.
    It stated
    that “[e]ven if some of the underlying information was somehow improperly considered
    by [Simmons-Grab], such was not a basis for the wholesale exclusion of her entire
    2
    opinion.”
    Id. at 203-04.
    The Appellate Division did not rule on the admissibility of
    Simmons-Grab’s opinion, leaving the ultimate determination to the trial court.
    Id. at 204.
    The Appellate Division concluded that the cumulative effect of multiple errors and
    improprieties deprived plaintiff of a fair trial and of a verdict based on the merits of the
    parties’ claims. The court found that plaintiff is entitled to a new trial on all issues.
    The Court granted certification. 
    239 N.J. 407
    (2019).
    HELD: The judgment of the Appellate Division is affirmed substantially for the reasons
    expressed in that court’s opinion. The Court comments briefly on the Appellate
    Division’s reversal of the trial court’s decision to exclude the opinion of Dianne
    Simmons-Grab and offers guidance for the trial court on remand in its role under N.J.R.E.
    702 and N.J.R.E. 703 as the gatekeeper of expert witness testimony.
    1. As the trial court observed, Simmons-Grab relied on medical records and
    questionnaires that she “prepared in detail . . . and submitted to the doctors for their
    markings and then sign off.” Although the questionnaires were “purportedly filled out
    . . . by the medical providers,” the court noted that “[t]he responses . . . by the medical
    providers were not certified,” and there was no indication that each physician had offered
    an opinion to a reasonable degree of medical certainty within his area of expertise.
    Indeed, in deposition testimony presented at trial, one of the treating physicians whose
    opinion had been identified by Simmons-Grab as a basis for her opinion stated that
    although it was “possible” that plaintiff would need additional medical care in the future,
    he could not testify “within a reasonable degree of medical probability” that any such
    care would be needed. (p. 3)
    2. In appropriate circumstances, an expert witness may rely on the opinion of another
    expert in a relevant field. That principle, however, does not obviate the need to
    demonstrate that the treating physician on whom the life care expert relies actually holds
    the opinion attributed to him or her, which can be accomplished by means of a report by
    the treating physician, his or her trial testimony, or other competent evidence. As in other
    settings, any expert’s or treating physician’s opinion on which the life care expert relies
    must be couched in terms of reasonable medical certainty or probability. In the event that
    plaintiff seeks to present the expert testimony of Simmons-Grab on remand -- and
    defendant challenges the reliability of that opinion -- the trial court should conduct a
    hearing pursuant to N.J.R.E. 104(c), and determine the question of admissibility in
    accordance with the standards prescribed by N.J.R.E. 702 and N.J.R.E. 703. (pp. 4-6)
    AFFIRMED.
    CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA, ALBIN, PATTERSON,
    FERNANDEZ-VINA, SOLOMON, and TIMPONE join in this opinion.
    3
    SUPREME COURT OF NEW JERSEY
    A-5 September Term 2019
    082293
    Juan Morales-Hurtado,
    Plaintiff-Respondent,
    v.
    Abel V. Reinoso and New Service, Inc.,
    Defendants-Appellants.
    On certification to the Superior Court,
    Appellate Division, whose opinion is reported at
    
    457 N.J. Super. 170
    (App. Div. 2018).
    Argued                      Decided
    March 16, 2020               April 16, 2020
    H. Lockwood Miller, III, argued the cause for
    appellants (Goldberg Segalla, attorneys; H. Lockwood
    Miller, III, and Leah A. Brndjar, on the briefs).
    Martin S. Cedzidlo argued the cause for respondent
    (Jae Lee Law, attorneys; Martin S. Cedzidlo, on the
    brief).
    Jonathan H. Lomurro argued the cause for amicus
    curiae New Jersey Association for Justice (Lomurro
    Munson Comer Brown & Schottland, attorneys;
    Jonathan H. Lomurro and Abbott S. Brown, of
    counsel, Christina Vassiliou Harvey, of counsel and
    on the brief, and Alan J. Weinberg, on the brief).
    1
    PER CURIAM
    The judgment of the Superior Court, Appellate Division is affirmed
    substantially for the reasons expressed in Judge Nugent’s comprehensive
    opinion, reported at 
    457 N.J. Super. 170
    (App. Div. 2018). We share the
    Appellate Division’s view that “the cumulative effect of multiple errors and
    improprieties deprived plaintiff of a fair trial and of a verdict based on the
    merits of the parties’ claims,” and that he is entitled to a new trial.
    Id. at 204.
    We briefly comment on the Appellate Division’s reversal of the trial
    court’s decision to exclude the opinion of Dianne Simmons-Grab, a certified
    life care planner.
    Id. at 200-04.
    Plaintiff’s counsel sought to present
    Simmons-Grab as an expert witness at trial regarding the medical expenses
    that plaintiff is expected to incur over his lifetime. See
    ibid. Simmons-Grab, who is
    not a physician or other health care provider, was
    clearly unqualified to opine on plaintiff’s prognosis or to identify any
    medication, surgery, therapy, or other care necessary to treat his injuries over
    his lifetime. She premised her opinion that addressed plaintiff’s future
    medical needs on notations made in medical records and on handwritten
    responses to questionnaires that she had submitted to the offices of three of
    plaintiff’s treating physicians. Defendant sought to bar her opinion, and the
    2
    trial court considered the admissibility of that opinion in a hearing pursuant to
    N.J.R.E. 104(c).
    The trial court found that Simmons-Grab’s opinion was based on
    unreliable sources of information and excluded her testimony. As the court
    observed, the life care expert relied on medical records and questionnaires that
    she “prepared in detail . . . and submitted to the doctors for their markings and
    then sign off.” 1 Although the questionnaires were “purportedly filled out . . .
    by the medical providers,” the court noted that “[t]he responses . . . by the
    medical providers were not certified,” and there was no indication that each
    physician had offered an opinion to a reasonable degree of medical certainty
    within his area of expertise. Indeed, in deposition testimony presented at trial,
    one of the treating physicians whose opinion had been identified by Simmons-
    Grab as a basis for her opinion stated that although it was “possible” that
    plaintiff would need additional medical care in the future, he could not testify
    “within a reasonable degree of medical probability” that any such care would
    be needed.
    1
    A questionnaire may be an appropriate device for a life care expert to use in
    the collection of facts or data relevant to his or her opinion. We address only
    the expert’s use of questionnaires in this case to elicit the opinions of treating
    physicians as to plaintiff’s future need for medical care.
    3
    The Appellate Division held that the trial court’s decision to bar the
    expert testimony constituted error.
    Id. at 202-04.
    It stated that “[e]ven if some
    of the underlying information was somehow improperly considered by
    [Simmons-Grab], such was not a basis for the wholesale exclusion of her entire
    opinion.”
    Id. at 203-04.
    The Appellate Division did not rule on the
    admissibility of Simmons-Grab’s opinion; it left to the trial court on remand
    the “discretion to employ any procedure it deems fit to resolve” defendant’s
    objection to that opinion.
    Id. at 204.
    We offer the following comments to guide the trial court on remand in
    its role under N.J.R.E. 702 and N.J.R.E. 703 as “the gatekeeper of expert
    witness testimony.” In re Accutane Litig., 
    234 N.J. 340
    , 391 (2018).
    In appropriate circumstances, an expert witness may rely on the opinion
    of another expert in a relevant field. See N.J.R.E. 703 (providing that an
    expert may rely on “facts or data in the particular case,” which “may be those
    perceived by or made known to the expert at or before the hearing,” and that
    such facts or data need not be admissible in evidence “[i]f of a type reasonably
    relied upon by experts in the particular field in forming opinions or inferences
    upon the subject”); Biunno, Weissbard & Zegas, Current N.J. Rules of
    Evidence, cmt. 8 on N.J.R.E. 703 (noting that “[t]he authorization for one
    4
    expert to rely on the opinion of another” stated in the predecessor rule to
    N.J.R.E. 703 “continues under the present rule”).
    That principle, however, does not obviate the need to demonstrate that
    the treating physician on whom the life care expert relies actually holds the
    opinion attributed to him or her, which can be accomplished by means of a
    report by the treating physician, his or her trial testimony, or other competent
    evidence. See generally R. 4:10-2(d) (addressing reports of treating
    physicians); R. 4:14-9 (addressing discovery and de bene esse depositions of
    treating physicians). As in other settings, any expert’s or treating physician’s
    opinion on which the life care expert relies “must be couched in terms of
    reasonable medical certainty or probability.” Creanga v. Jardal, 
    185 N.J. 345
    ,
    360 (2005) (quoting State v. Freeman, 
    223 N.J. Super. 92
    , 116 (App. Div.
    1988)); see also Costantino v. Ventriglia, 
    324 N.J. Super. 437
    , 449 (App. Div.
    1999) (ruling that the plaintiff’s vocational expert could rely on the trial
    testimony of the plaintiff’s medical expert that “there was a reasonable
    medical probability that [the plaintiff] would not be able to work as a
    construction laborer for the entire course of his normal work life”).
    In the event that plaintiff seeks to present the expert testimony of
    Simmons-Grab on remand -- and defendant challenges the reliability of that
    opinion -- the trial court should conduct a hearing pursuant to N.J.R.E. 104(c),
    5
    and determine the question of admissibility in accordance with the standards
    prescribed by N.J.R.E. 702 and N.J.R.E. 703.
    CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA, ALBIN,
    PATTERSON, FERNANDEZ-VINA, SOLOMON, and TIMPONE join in this
    opinion.
    6
    

Document Info

Docket Number: A-5-19

Filed Date: 4/16/2020

Precedential Status: Precedential

Modified Date: 4/16/2020