MAXINE A. REID VS. JOHN J. MCKEON (L-1845-14, MIDDLESEX COUNTY AND STATEWIDE) ( 2018 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court."
Although it is posted on the internet, this opinion is binding only on the
parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-3493-15T1
MAXINE A. REID,
Plaintiff-Respondent,
v.
JOHN J. McKEON and
JOYCE A. McKEON,
Defendants-Appellants.
_______________________________
Argued November 14, 2017- Decided August 21, 2018
Before Judges Leone and Mawla.
On appeal from Superior Court of New Jersey,
Law Division, Middlesex County, Docket No. L-
1845-14.
Damian A. Scialabba argued the cause for
appellants (Sponder & Sellitti, attorneys;
Matthew R. Panas, Douglas J. Nosko, and Lori
A. Kaniper, on the briefs).
Paul R. Garelick argued the cause for
respondent (Lombardi and Lombardi, PA,
attorneys; Paul R. Garelick, on the brief).
PER CURIAM
In this auto accident litigation, a jury awarded plaintiff
Maxine A. Reid $250,000. Defendants John J. and Joyce A. McKeon
appeal from an April 15, 2016 order denying their motions for a
new trial and remittitur. We affirm.
I.
At approximately 8:15 a.m. on May 10, 2012, plaintiff was
driving her vehicle in Edison when it was struck from behind by a
vehicle driven by John McKeon and owned by Joyce McKeon. Plaintiff
sued defendants. Prior to trial, defendants stipulated to
liability.
At trial, plaintiff testified as follows. Immediately
following the accident, she experienced numbness in her lower body
and was unable to lift her legs. She was taken by ambulance to
the emergency room, and spent most of the day there. When she
left, she felt numbness in her legs, neck, and back. That
afternoon, she made an appointment to see an orthopedic doctor at
the Edison Metuchen Orthopedic Group (EMOG). The soonest available
appointment was four days later with Dr. Teresa Vega.
Plaintiff testified that on May 14, 2012, she told Dr. Vega
that "I had pain in my neck and my lower back was numb and my
legs." The pain in her neck was throbbing with numbness that
became "stabbing sharp pains." Dr. Vega recommended physical
therapy. On July 25, 2012, plaintiff saw Dr. Vega for a follow-
up appointment.
2 A-3493-15T1
Plaintiff testified that she had constant leg and neck pain
every day in 2013, and that the pain in her neck increased and
became unbearable at times. On May 31, 2013, plaintiff saw Dr.
Robert Lombardi at EMOG, who was treating her for a pre-existing
shoulder condition. On June 28, 2013, plaintiff began to see Dr.
Joseph Lombardi at EMOG, who treated her for pain in her neck and
shoulder. She completed twelve weeks of physical therapy in 2014.
In addition to her testimony, plaintiff presented the video
of the trial deposition of Dr. Joseph Lombardi, who opined the
accident caused cervical disc herniation at C4-C5 and C5-C6, and
a bilateral C6 radiculopathy, and aggravated a pre-existing lumbar
disc herniation at L5-S1 and lumbar radiculopathy. Defendants
presented the testimony of expert Dr. David Rubinfeld, who opined
the accident caused only cervical and lumbosacral sprains.
The jury found by a preponderance of the objective credible
medical evidence that plaintiff sustained a permanent injury as a
proximate result of the accident. It awarded her $250,000, which
was memorialized in the trial court's January 4, 2016 order of
judgment. Defendants filed motions for a new trial, to alter or
amend the judgment, and for remittitur. The trial judge denied
the motions on April 15, 2016. Defendants appeal.
3 A-3493-15T1
II.
Most of plaintiff's claims challenge the admission or
exclusion of evidence. "'[T]he decision to admit or exclude
evidence is one firmly entrusted to the trial court's discretion.'"
State v. Prall, 231 N.J. 567, 580 (2018) (quoting Estate of Hanges
v. Metro. Prop. & Cas. Ins. Co., 202 N.J. 369, 383-84 (2010)).
"In light of the broad discretion afforded to trial judges, an
appellate court evaluates a trial court's evidentiary
determinations with substantial deference," and affords them
"'[c]onsiderable latitude.'" State v. Cole, 229 N.J. 430, 449
(2017) (citation omitted). The court's determination will be
affirmed "'absent a showing of an abuse of discretion, i.e., [that]
there has been a clear error of judgment.'" Griffin v. City of
E. Orange, 225 N.J. 400, 413 (2016) (alteration in original)
(citations omitted). Thus, an appellate court "will reverse an
evidentiary ruling only if it 'was so wide off the mark that a
manifest denial of justice resulted.'" Ibid. (citation omitted).
We must hew to that standard of review.
A.
Cross-examining Dr. Joseph Lombardi during the trial
deposition, defense counsel asked him about Dr. Vega's records of
her lumbar and cervical examinations of plaintiff. Citing James
v. Ruiz, 440 N.J. Super. 45 (App. Div. 2015), plaintiff's counsel
4 A-3493-15T1
objected to the elicitation from Dr. Lombardi of any opinions of
Dr. Vega. Later, the trial court, citing James, sustained
plaintiff's objection.
In James, we held that an attorney may not "question[] an
expert witness at a civil trial, either on direct or cross-
examination, about whether that testifying expert's findings are
consistent [or inconsistent] with those of a non-testifying expert
who issued a report in the course of an injured plaintiff's medical
treatment" if "the manifest purpose of those questions is to have
the jury consider for their truth the absent expert's hearsay
opinions about complex and disputed matters." 440 N.J. Super. at
51.
Defense counsel's cross-examination of Dr. Joseph Lombardi
about Dr. Vega's findings had the manifest purpose of showing they
were inconsistent with Dr. Lombardi's later findings and to have
the jury consider Dr. Vega's findings for their truth. The issue
is whether Dr. Vega's findings were "complex and disputed." Ibid.
There was no evidence Dr. Vega's findings were disputed. Dr.
Joseph Lombardi acknowledged that Dr. Vega was his colleague at
EMOG, that her records were in his file, and that she reached
these findings. He did not question their accuracy.
Whether Dr. Vega's findings were complex is a more involved
inquiry. That inquiry derives from the business records exception
5 A-3493-15T1
under N.J.R.E. 803(c)(6) and N.J.R.E. 808. As Dr. Vega's "findings
are contained in a written report, it is useful to the analysis
to consider whether the report itself would meet [that] hearsay
exception, even though neither party attempted to move the report
into evidence." James, 440 N.J. Super. at 61. Moreover, defense
counsel's brief cited those rules to the trial court.
N.J.R.E. 803 provides that "statements are not excluded by
the hearsay rule" if they are:
Records of regularly conducted activity. --
A statement contained in a writing or other
record of acts, events, conditions, and,
subject to Rule 808, opinions or diagnoses,
made at or near the time of observation by a
person with actual knowledge or from
information supplied by such a person, if the
writing or other record was made in the
regular course of business and it was the
regular practice of that business to make it,
unless the sources of information or the
method, purpose or circumstances of
preparation indicate that it is not
trustworthy.
[N.J.R.E. 803(c)(6) (emphasis added).]
Although it is undisputed Dr. Vega's report met the other
requirements spelled out in N.J.R.E. 803(c)(6), the admission of
her "opinions or diagnoses" is "subject to Rule 808." Ibid.
N.J.R.E. 808 provides:
Expert opinion which is included in an
admissible hearsay statement shall be excluded
if the declarant has not been produced as a
witness unless the trial judge finds that the
6 A-3493-15T1
circumstances involved in rendering the
opinion, including the motive, duty, and
interest of the declarant, whether litigation
was contemplated by the declarant, the
complexity of the subject matter, and the
likelihood of accuracy of the opinion, tend
to establish its trustworthiness.
[N.J.R.E. 808 (emphasis added).]
N.J.R.E. 808 "codifies the principles set out in" State v.
Matulewicz, 101 N.J. 27 (1985). State v. Miller, 170 N.J. 417,
428 n.1 (2002); see James, 440 N.J. Super. at 63. In Matulewicz,
our Supreme Court cited with approval our cases recognizing that
"'"expert opinion contained in a business record may be excluded
if it relates to diagnoses of complex medical conditions. . . ."
Conversely, routine observations, findings and complaints included
in such a record were termed clearly admissible.'" 101 N.J. at32 n.1 (citations omitted).
"The formulation of Rule 808 is intended to include in general
terms all of the specific criteria discussed in Matulewicz,"
including "the complexity or routine nature of the procedures used
in making the analysis, the degree of objectivity and subjectivity
involved, the existence of motive for untrustworthiness, and the
responsibility of the declarant to be accurate and reliable."
Biunno, Weissbard & Zegas, Current N.J. Rules of Evidence, 1991
Supreme Court Committee Comment on N.J.R.E. 808 (2018) (emphasis
added) (quoting Matulewicz, 101 N.J. at 30).
7 A-3493-15T1
In following "[t]he Matulewicz holding," the drafters of
N.J.R.E. 808 acknowledged that "opinions derived from a
'relatively well-established' test, such as a 'blood-grouping
test, an alcoholism test, or the taking of an x-ray,' and other
'relatively simple' diagnostic tests contained in hospital records
would be admitted in evidence." Ibid. (citing State v. Martorelli,
136 N.J. Super. 449 (App. Div. 1975) (admitting a blood alcohol
result in a hospital record)). "[T]he admissibility of ordinary
diagnostic findings customarily based on objective data and not
usually presenting more than average difficulty of interpretation
is usually conceded." Ibid. (quoting McCormick on Evidence § 313
at 732 (Cleary 2d ed. 1972)). "[T]he distinction" between such
"'ordinary diagnostic findings'" and "the diagnosis of complex
medical conditions" "has continued under the present rule and is
now a settled part of our jurisprudence." Biunno, Weissbard &
Zegas, Current N.J. Rules of Evidence, cmt. 3 on N.J.R.E. 808
(2018).
The following evidence in medical business records has been
found to be complex: interpretation of an MRI test, Agha v. Feiner,
198 N.J. 50, 65 n.9 (2009); interpretation of a CT scan, James,
440 N.J. Super. at 72; psychiatric diagnoses, In re Civil
Commitment of A.E.F., 377 N.J. Super. 473, 492 (App. Div. 2005);
psychological evaluations, N.J. Div. of Child Prot. & Permanency
8 A-3493-15T1
v. N.T., 445 N.J. Super. 478, 501 (App. Div. 2016); mental state
evaluations, In re Commitment of G.G.N., 372 N.J. Super. 42, 56
(App. Div. 2004); a diagnosis of alcoholism, Clowes v. Terminix
Int'l, Inc., 109 N.J. 575, 597 (1988); a diagnosis and opinions
about infection, McLean v. Liberty Health Sys., 430 N.J. Super.
156, 173 (App. Div. 2013); diagnoses that fractures were
"pathologic" or "non-traumatic," Nowacki v. Cmty. Med. Ctr., 279
N.J. Super. 276, 284 (App. Div. 1995); and a Social Security
disability determination, Villanueva v. Zimmer, 431 N.J. Super.
301, 313-14 n.3 (App. Div. 2013).
On the other hand, courts have found admissible, because they
are not complex, breathalyzer test results, State v. Garthe, 145
N.J. 1, 13 (1996), and blood-alcohol analyses, State v. Michaels,
219 N.J. 1, 36-37 (2014). Moreover, courts have stated that
N.J.R.E. 808 does not exclude "a straightforward observation of
treating physician," Agha, 198 N.J. at 66, or doctors' "factual
observations." N.J. Div. of Child Prot. & Permanency v. N.B., 452
N.J. Super. 513, 526 (App. Div. 2017). Thus, we have ruled
admissible findings that the patient "has tics and was moving too
much at time of procedure," Konop v. Rosen, 425 N.J. Super. 391,
404-05 (App. Div. 2012), and that "'there was no spasm present.'"
Blanks v. Murphy, 268 N.J. Super. 152, 163-64 (App. Div. 1993).
9 A-3493-15T1
The trial court excluded Dr. Joseph Lombardi's deposition
testimony that on May 14, 2012, Dr. Vega wrote that: plaintiff
"was neurologically intact"; "examination of the cervical spine
was negative for tenderness"; "negative spasm or trigger points";
"deep tendon reflexes in lower extremities were normal"; and "it
was a completely normal examination as far as the objective
examination part." The trial court also excluded Dr. Lombardi's
deposition testimony that on July 25, 2012, Dr. Vega wrote that:
plaintiff's "cervical strength is noted as five out of five";
"cervical reflex is normal"; "an examination of the lumber spine
shows strength five out of five"; "deep tendon reflexes were
normal"; and "straight leg raise was negative."
Dr. Vega's observation that there were no spasms was "a
straightforward observation of a treating physician." Blanks, 268
N.J. Super. at 164. With the possible exception of "neurologically
intact," Dr. Vega's other notations involved her "factual
observations" after reflex testing, strength testing, tenderness
testing, and leg raises. N.B., 452 N.J. Super. at 526. Those
would appear to be "'relatively simple' diagnostic tests," Biunno,
Weissbard & Zegas, Current N.J. Rules of Evidence, 1991 Supreme
Court Committee Comment on N.J.R.E. 808 (2018) (citation omitted),
which result in "a straightforward, simple diagnosis based upon
objective criteria or one upon which reasonable professionals
10 A-3493-15T1
could not differ," N.J. Div. of Youth & Family Servs. v. M.G., 427
N.J. Super. 154, 174 (App. Div. 2012). Such routine "diagnostic
findings premised upon objective data requiring an average level
of difficulty of interpretation are admissible." Matulewicz, 101
N.J. at 30. "To require those who perform tests which are
relatively simple to appear in court and testify would work a
hardship on an already overburdened medical system." Martorelli,
136 N.J. Super. at 454.
In excluding Dr. Vega's notations, the trial court stated
that they represented "Dr. Vega's opinion about that based on her
examination," and that "getting in findings and opinions of other
doctors through the testimony of another doctor" was "now
completely precluded by James." When defense counsel promptly
submitted a brief seeking reconsideration, citing N.J.R.E.
803(c)(6), N.J.R.E. 808, and the cases permitting the admission
of routine findings, the trial court reconsidered but declined to
change its ruling:
I don't think it's routine matters. When
they're talking about using the kinds of
information that [is] routine as opposed to
opinions and conclusions, they're not talking
about test results. Those are subject to
interpretation based on the medical knowledge,
training, [and] skill of the examiner.
Unfortunately, the trial court read James too broadly. James
did not hold that a doctor could never testify about the opinions
11 A-3493-15T1
or findings of another doctor. Nor did we hold that a doctor
could not testify about another doctor's test results from a simple
physical exam. Rather, in James, we repeatedly made clear that
our holding was limited to testimony about "complex and disputed
matters," "complex and disputed opinions," and "complex and
disputed findings." Id. at 51, 66; see id. at 56-57, 62-64, 67-
69, 72-73 and n.16. We reaffirmed that "case law in our State has
traditionally admitted 'routine' findings of experts contained in
medical records that satisfy the business record exception, but
has excluded 'diagnoses of complex medical conditions' within
those records." Id. at 63 (citing Matulewicz, 101 N.J. at 32
n.1).
Accordingly, most or all of Dr. Vega's findings were
admissible hearsay if properly presented. Defense counsel tried
to present them by showing that Dr. Joseph Lombardi reviewed Dr.
Vega's records before treating plaintiff on June 28, 2013, and in
preparing his September 14, 2014 narrative report. However, Dr.
Lombardi's narrative report made no reference to review of prior
records or x-rays, and he testified "[i]f I didn't put it in [my
report], I probably did not" see any records. Regarding June 28,
he took "a history from the patient," and "reviewed the history
of what she told me about her prior records."
Defense counsel asked Dr. Joseph Lombardi about June 28:
12 A-3493-15T1
Q. Okay. At that point, did you have an
opportunity to read those records when she
first started treating with [EMOG]?
A. I would have had those records, yes.
However, the trial court found "[t]hat doesn't mean he read them,"
just that "they're in the file." The court stressed "he didn't
say he used them in any way or relied upon them in any way." We
cannot say the court erred in finding Dr. Lombardi did not review
Dr. Vega's records before treating her, or rely on them in
preparing his report.
Because Dr. Lombardi did not base his opinion on Dr. Vega's
notations, N.J.R.E. 703 did not apply. "[H]earsay statements
relied upon by an expert may be used for the limited purpose of
apprising the jury of the basis of the testifying expert's
opinion," but the "expert may not 'alert[ ] the jury to evidence
it would not otherwise be allowed to hear.'" Hayes v. Delamotte,
231 N.J. 373, 392-93 (2018) (citation omitted).
In any event, defendants ultimately were able to have Dr.
Vega's most favorable notations admitted into evidence another
way. The trial court allowed defense counsel to elicit from Dr.
Rubinfeld, the defense expert, that he reviewed Dr. Vega's records
from May 14, 2012. Dr. Rubinfeld described the routine
examinations performed by Dr. Vega. He testified that Dr. Vega's
"lumbar examination was totally normal," and her cervical
13 A-3493-15T1
examination "was negative for focal tenderness," spasms, and
trigger points, and showed "[a] very normal . . . neck." To avoid
being "accused of overlooking anything," Dr. Rubinfeld added that
plaintiff "did have pain in the left paraspinal musculature."
Thus, the trial court admitted evidence that Dr. Vega's examination
of plaintiff's neck and back showed they were normal four days
after the accident, with one complaint of pain.
Defense counsel did not attempt to ask Dr. Rubinfeld similar
questions about Dr. Vega's July 25 notations, which were less
favorable for defendants. Dr. Vega's cervical spine examination
showed "[p]ositive tenderness on left paraspinal musculature," and
"[d]iscomfort with all motion." Dr. Vega's lumbar spine
examination showed "[m]ild tenderness to palpitation in midline
and [perilumbar] region," "[p]ain in the lumbosacral area," and
"[r]ange of motion with difficulty." That evidence of pain and
other negative symptoms would likely have been brought to the
jury's attention had defense counsel attempted to elicit Dr. Vega's
positive notations about plaintiff's normal cervical and lumber
strength and reflexes, and her negative straight leg raise.
Defense counsel did not try to elicit those notations by
questioning Dr. Rubinfeld or offering Dr. Vega's July 25 report
as a business record.
14 A-3493-15T1
Even assuming defense counsel could elicit through Dr. Joseph
Lombardi the notations in Dr. Vega's records which he testified
he never reviewed, any error was harmless. Defendants were able
to place in evidence the most favorable and telling notations that
four days after the accident Dr. Vega's lumbar examination had
totally normal results and her cervical examination showed a very
normal neck with a complaint of pain. Dr. Vega's examination four
months later included more evidence of pain that would have
outweighed the positive strength and reflex findings. Thus, any
error was not "clearly capable of producing an unjust result." R.
2:10-2.
B.
Defendants next assert the trial court erred under James in
allowing plaintiff's counsel to cross-examine defendants' expert
about the emergency room records from the day of accident. The
cross-examination arose from the direct-examination, when defense
counsel showed Dr. Rubinfeld the records and asked: "And in the
emergency room, did Ms. Reid have any complaints of neck pain?"
Dr. Rubinfeld responded: "No. Not that I see, no."
On cross-examination, plaintiff's counsel referenced the
testimony on direct, showed Dr. Rubinfeld the records, and pointed
15 A-3493-15T1
to "Diagnosis 2."1 After defense counsel objected, the trial court
ruled plaintiff's counsel could ask if "anything in there . . .
indicates that she complained about pain" in the neck. Plaintiff's
counsel then asked Dr. Rubinfeld: "Does looking at that record
refresh your recollection that my client complained of neck pain?"
He answered, "if you look at the diagnosis, sure." Plaintiff's
counsel directed the doctor to the word "neck," and asked if
"there's a plus in there?" and if the plus meant "that was found;
right?"2 Dr. Rubinfeld answered both questions affirmatively.
Plaintiff's counsel asked if that refreshed the doctor's
recollection "about paravertebral tenderness complaints by my
client?" Dr. Rubinfeld replied that "I would say she had
tenderness." Plaintiff's counsel directed the doctor to "the
Emergency Medical Decision Making" section where it said "cervical
spine."3 Defense counsel objected, and the court asked: "Can you
tell from those records that she complained about neck pain or
not?" Dr. Rubinfeld answered: "Yeah, I think so."
1
The Diagnosis section included a diagnosis "Neck Strain."
2
The Physical Examination section included: "Neck: (+) Mild
paravertebral tenderness."
3
The Emergency Medical Decision Making section included: "Cervical
spine injury."
16 A-3493-15T1
Nothing in James prohibited plaintiff's counsel from asking
if the emergency room records indicated plaintiff complained of
neck pain. Rather, James stated that where the purpose of cross-
examination "was to show that the defense expert's review of the
patient's records was skewed or incomplete, such a line of inquiry
arguably would amount to simply impeachment of the defense expert's
credibility, an attack that does not hinge upon the actual truth
of the absent declarant's statements." 440 N.J. Super. at 75.
Although plaintiff's counsel had Dr. Rubinfeld look at
portions of the records containing diagnoses, the diagnoses were
not revealed to the jury, and plaintiff's counsel told Dr.
Rubinfeld "I don't want to talk to you about the opinions they
made." By contrast, the cross-examination in James "was plainly
designed to get before the jury the substance of [the
radiologist's] findings," and "improperly sought to elicit the
contents of [his] opinions for their truth." Id. at 77-78; see
id. at 56-57, 75.
The questions about the "plus" and about "paravertebral
tenderness" simply related findings made after a physical
examination. Defendants agree plaintiff's attorney could ask Dr.
Rubinfeld about those routine findings. Thus, unlike in James,
plaintiff's counsel did not elicit "the non-testifying expert's
complex and disputed opinions." Id. at 51.
17 A-3493-15T1
Defendants mainly complain they were not allowed to ask Dr.
Joseph Lombardi about similar routine findings from Dr. Vega's
physical examinations. However, Dr. Lombardi had not reviewed Dr.
Vega's records. By contrast, Dr. Rubinfeld had reviewed the
emergency room records and Dr. Vega's May 14, 2012 records, and
the trial court allowed the routine findings from those records
to be elicited through Dr. Rubinfeld by plaintiff and defendants
respectively. As any error in not allowing defendants to elicit
Dr. Vega's findings through Dr. Lombardi was harmless, defendants'
complaint lacks substance.
C.
Defendants also argue the trial court erred by not allowing
Dr. Rubinfeld to testify about a report by a different EMOG doctor,
Dr. Robert Lombardi. On cross-examination, plaintiff testified
she went to see Dr. Robert Lombardi and complained about an
unrelated shoulder condition on May 31, 2013. She said she also
had neck and back pain but did not mention it because "I didn't
go there for that on that day" and "I wasn't seeing Dr. Robert for
that."
Later, defense counsel asked Dr. Rubinfeld if plaintiff had
"any neck or back pain that's reflected in that report" by Dr.
Robert Lombardi on May 31, 2013. Plaintiff objected. The trial
court stated if Dr. Robert Lombardi were testifying and defense
18 A-3493-15T1
counsel asked "did [plaintiff] complain about something and he
said no, that would be ok." Because he was not a witness, the
court said it did not "have any way to know whether or not Dr.
Robert Lombardi would have said he didn't write down stuff that
was unrelated to my thing or [he] did or it was incomplete."
We note Dr. Robert Lombardi's May 31, 2013 report discussed
plaintiff's "Chief Complaint," "History of Present Illness," and
"Shoulder Examination," all addressing solely her shoulders. The
only broader portion of the report stated:
General Exam:
Constitutional: Patient is adequately groomed
with no evidence of malnutrition.
Skin: There are no rashes, ulcerations or
lesions in the regions examined.
Mental Status: The patient is oriented to
time, place and person. The patient's mood
and affect are appropriate.
Thus, the report did not indicate that Dr. Lombardi asked plaintiff
if she had pain in areas other than her shoulders.
Defendants cite plaintiff's testimony that during 2013 she
had severe pain from the accident, and that in 2015 Dr. Robert
Lombardi treated her for pain in her shoulders resulting from her
neck pain. However, defendants failed to show plaintiff told Dr.
Lombardi she did not have pain in her back or neck on May 31,
2013. Absent a "statement," N.J.R.E. 803(b)(1) and N.J.R.E.
803(c)(4) are inapplicable. See N.J.R.E. 801(a).
19 A-3493-15T1
To the extent defendants were seeking to establish that Dr.
Robert Lombardi did not ask plaintiff, and plaintiff did not
volunteer, whether she had pain in her neck and back, defendants
offered no evidence "to establish that it would be natural for the
witness to have made the omitted statement" to a doctor then
treating her for a different, pre-existing condition. Manata v.
Pereira, 436 N.J. Super. 330, 345 (App. Div. 2014). Defendants
did not cite N.J.R.E. 803(c)(7) or attempt to meet its
prerequisites.
In any event, in denying defendants' motion for a new trial,
the trial court found "the fact that Dr. [Robert] Lombardi's report
'was silent' on whether Reid was or was not experiencing pain in
her back or neck, and the reason for the 'silence' is, at best,
completely speculative and lacking probative value, and is, in any
event, precluded by Rule 403." As the trial court noted, "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.
"A trial judge retains the authority under . . . N.J.R.E. 403
. . . to guard against unfair use of" silence. Manata, 436 N.J.
Super. at 344-45. "'[D]eterminations pursuant to N.J.R.E. 403
should not be overturned on appeal "unless it can be shown that
the trial court palpably abused its discretion, that is, that its
20 A-3493-15T1
finding was so wide off the mark that a manifest denial of justice
resulted."'" Brenman v. Demello, 191 N.J. 18, 31 (2007) (citation
omitted). It was not a palpable abuse of discretion for the trial
court to exclude defendants' attempt to elicit and rely on
plaintiff's alleged silence, which the court could find was
confusing, misleading, and prejudicial.
D.
Defendants' final evidentiary challenge concerns plaintiff's
mentions of insurance to explain her delays in following her EMOG
doctors' recommendations. On direct examination, plaintiff
testified without objection:
it took me quite a while to get into physical
therapy because I was constantly calling
[Allstate] and they were telling me they're
not responsib[le]. . . . I only went three
weeks because that was the only time
[Allstate] approved of payment for that. I
had to wait until I had the insurance to get
into other physical therapy.
On cross-examination, defense counsel asked why plaintiff
made no mention of her neck and back pain when she went back to
EMOG on May 31, 2013, "after a ten-month period." After responding
she "wasn't seeing Dr. Robert for that," she added: "And the 10-
month period was due to insurance not being able to pay for that."
Defense counsel moved to strike, saying "[i]t's not responsive."
The court said "I'm not sure that's not responsive, but just ask
21 A-3493-15T1
your next question." Defense counsel asked questions eliciting
that Dr. Joseph Lombardi later recommended physical therapy, and
then asked:
Q. And he wanted you to follow up with him
in four weeks?
A. Yes.
Q. Right? And then you don't go for 12 weeks?
A. No.
Q. Correct?
A. Because I needed to have someone pay for
it and nobody – [Allstate] wasn't paying for
it. I have to wait for my insurance to approve
it.
Defense counsel objected, but the trial court stated "you
opened the door." In fact, plaintiff's interjections about
insurance were unresponsive to defense counsel's questions about
why she had not complained about neck and back pain on May 31,
2013, and whether she did not go back to EMOG for twelve weeks.
Nonetheless, the court ruled "she's entitled to tell the reason
she didn't go was because she couldn't pay."
Defendants cite N.J.R.E. 411, which states that "[e]vidence
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." Ibid. (emphasis added). However, N.J.R.E. 411
addresses the risk "that if jurors know that an insurance company
22 A-3493-15T1
will be paying a judgment, [then the jurors] might be reckless in
awarding damages to a plaintiff." Bardis v. First Trenton Ins.
Co., 199 N.J. 265, 275 (2009) (quoting Biunno, Current N.J. Rules
of Evidence, cmt. on N.J.R.E. 411 (2008)).
That risk was not posed here. It is undisputed that Allstate
was plaintiff's automobile insurer, not defendants' insurer. The
revelation that plaintiff had insurance was not offered or used
to show that defendants were negligent or engaged in culpable
conduct, "'or made the basis at the trial for an appeal to increase
or decrease the damages.'" Krohn v. N.J. Full Ins. Underwriters
Ass'n, 316 N.J. Super. 477, 482 (App. Div. 1998) (citation
omitted). Defendants have not shown they were prejudiced.
Moreover, "[t]he exclusionary aspect of N.J.R.E. 411 is
limited." Biunno, Weissbard & Zegas, Current N.J. Rules of
Evidence, cmt. on N.J.R.E. 411 (2018). N.J.R.E. 411 provides
that, "[s]ubject to Rule 403, this rule does not require the
exclusion of evidence of insurance against liability when offered
for another purpose[.]" Plaintiff's reference to her own insurer's
alleged failure to promptly pay her medical bills served another
purpose, namely to explain her delay in seeking further treatment.
Defense counsel did not object under N.J.R.E. 403, nor did she
object to similar comments on direct. In any event, "[t]he mere
mention of [insurance] coverage has been held not to be prejudicial
23 A-3493-15T1
error." Krohn, 316 N.J. Super. at 482. Moreover, defendants
never requested a limiting instruction.
Defendants contend plaintiff's testimony was untrue because
Allstate paid her medical bills promptly, and told her so in
Explanation of Benefits forms (EOBs). However, that does not
impugn the trial court's ruling on the objections. Defendants
could have introduced proof to rebut plaintiff's claim. Indeed,
after the objections were denied, defense counsel asked plaintiff
"isn't it true that . . . [a]ll your medical bills were paid and
there was no issue . . . with any payment?" Plaintiff admitted
"[m]y medical bills were paid by . . . my primary insurance."
Defense counsel suggested the EOBs would show the bills were paid
in a timely fashion, and the court stated it would "certainly
allow" defense counsel to introduce those records. Defense counsel
stated she would look for the records, but she never tried to
question plaintiff with the records or offer them into evidence.
Having failed to do so at trial, defendants cannot do so on appeal.
III.
Defendants make two challenges to plaintiff's closing
argument for plaintiff. "'[C]ounsel is allowed broad latitude in
summation.' That latitude is not without its limits, and
'counsel's comments must be confined to the facts shown or
reasonably suggested by the evidence introduced during the course
24 A-3493-15T1
of the trial.' Further, counsel 'should not misstate the evidence
nor distort the factual picture.'" Hayes, 231 N.J. at 387
(citations omitted). "Within those limits, however, '[c]ounsel
may argue from the evidence any conclusion which a jury is free
to reach.' 'Indeed, counsel may draw conclusions even if the
inferences that the jury is asked to make are improbable.'" Id.
at 388 (citations omitted).
Defendants contend plaintiff's counsel mentioned insurance
in his closing argument. After noting plaintiff got an MRI
examination within four months of the accident, plaintiff's
counsel argued:
Now, you know, I think the reasonable person
knows how long it takes to get into a doctor,
see a doctor, get examined, get approvals, go
to and get MRIs done. That just doesn't happen
in a day. There's a process that people go
through in their medical treatment.
Defendants did not object to this argument, which made no explicit
reference to insurance, and no conceivable reference to their
insurance. Defendants cannot show plain error. R. 2:10-2.
Defendants also argue plaintiff's counsel misused the time-
unit rule. "In civil cases any party may suggest to the trier of
fact, with respect to any element of damages, that unliquidated
damages be calculated on a time-unit basis without reference to a
specific sum." R. 1:7-1(b). "Under the rule, 'counsel may suggest
25 A-3493-15T1
to the trier of fact that it calculate damages on the basis of
specific time periods, for example, the amount of pain that a
plaintiff will suffer each day for the rest of his life.'" Brodsky
v. Grinnell Haulers, Inc., 181 N.J. 102, 123 n.4 (2004) (quoting
Friedman v. C & S Car Serv., 108 N.J. 72, 74 (1987)).
"Nevertheless, while reference to time units is permissible,
mention of specific dollar amounts remains prohibited." Ibid.(citing Weiss v. Goldfarb, 154 N.J. 468, 481 (1998) ("reference
to a specific sum may not be made")).
Plaintiff's counsel in closing argued:
[Y]ou get to pain and suffering. And how do
you calculate that? Now, I'll tell you,
before I show you this calculation under Rule
1:7-1 for time unit, that, you know, there is
no perfect science. It's left to your sound
discretion. . . . So there's a calculation
that you can do that's under the rules and
it's in argument, and I – you know, I follow
the rules, I don't . . . make them up. I
follow them. . . . It's a time unit analysis
under Rule 1:7-1. Now, what you do is, you
correlate an amount of money to an aspect of
an injury and multiply it by a unit of time.
You don't talk dollars. The Judge will tell
you, units. Okay? Units are the argument
that we make. So you will have units.
After the closing, defense counsel's only objection was "I
heard you say money equals units." Plaintiff's counsel said he
had not done so, and defense counsel said "Okay."
26 A-3493-15T1
Nonetheless, on appeal, defendants complain about various
words and phrases in counsel's argument, as well as his subsequent
calculation of how many units of time plaintiff had lived and
would live since the accident. We agree "I follow the rules" was
gratuitous. However, that was not prejudicial, and defendants'
other complaints are meritless.
Moreover, plaintiff's counsel never mentioned a specific
dollar amount. Further, the trial court properly instructed that
plaintiff's time-unit argument was "argument only and it does not
constitute evidence," and that the jury was "not bound to follow"
it or "any particular method in establishing damages." See R.
1:7-1(b). Defendants have not shown plain error.
IV.
Defendants argue the $250,000 awarded by the jury was
excessive. "When a court is persuaded that a new trial must be
granted based solely on the excessiveness of the jury's damages
award, it has the power to enter a remittitur reducing the award
to the highest amount that could be sustained by the evidence."
Cuevas v. Wentworth Grp., 226 N.J. 480, 499 (2016).
Courts "must exercise the power of remittitur with great
restraint." Ibid. "A jury's verdict, including an award of
damages, is cloaked with a 'presumption of correctness,'" which
"is not overcome unless a defendant can establish, 'clearly and
27 A-3493-15T1
convincingly,' that the award is 'a miscarriage of justice.'" Id.
at 501 (citation omitted). "[E]ven a seemingly high award should
not be disturbed; only if the award is one no rational jury could
have returned, one so grossly excessive, so wide of the mark and
pervaded by a sense of wrongness that it shocks the judicial
conscience, should a court grant a remittitur." Id. at 500.
The trial "court must view 'the evidence in the light most
favorable to the plaintiff,'" and "give 'due regard to the
opportunity of the jury to pass upon the credibility of the
witnesses.'" Id. at 501 (citations omitted). "The standard for
reviewing a damages award that is claimed to be excessive is the
same for trial and appellate courts, with one exception — an
appellate court must pay some deference to a trial judge's 'feel
of the case.'" Ibid. (citations omitted).
In denying defendants' motion for a new trial or remittitur,
the trial court found:
the jury could reasonably have concluded that
Reid sustained two herniated discs, which
required physical therapy; that the injuries
and their consequences, both past, present and
future, are so severe that an anterior
cervical fusion[,] that would require plates
and screws, was recommended; and finally, that
Reid has been living with extreme pain for
years, and will continue to do so for the rest
of her life. Under that version of the facts,
the verdict was neither disproportionately
excessive nor does it shock the conscience [.]
28 A-3493-15T1
Defendants have not shown any basis for rejecting this
determination by the trial judge who saw and heard the evidence
and the jury.
Finally, defendants argue cumulative errors warrant a new
trial. "An appellate court may reverse a trial court's judgment
if 'the cumulative effect of small errors [is] so great as to work
prejudice[.]'" Torres v. Pabon, 225 N.J. 167, 190 (2016) (quoting
Pellicer v. St. Barnabas Hosp., 200 N.J. 22, 53 (2009)). However,
any error regarding the exclusion of Dr. Vega's double-edged July
25, 2012 notations, and plaintiff's mentioning of her own
insurance, were not prejudicial individually or cumulatively and
did not "deprive defendants of a fair trial." Pellicer, 200 N.J.
at 57.
Defendants' remaining arguments lack sufficient merit to
warrant discussion. R. 2:11-3(e)(1)(E). We "decline to consider
arguments raised for the first time in [defendants'] reply brief."
Bacon v. N.J. State Dep't of Educ., 443 N.J. Super. 24, 38 (App.
Div. 2015).
Affirmed.
29 A-3493-15T1