AMY M. CAMPANELLI VS. KUSUM S. PATEL(L-3671-12, MIDDLESEX COUNTY AND STATEWIDE) ( 2017 )

NOT FOR PUBLICATION WITHOUT THE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-1117-15T4
AMY M. CAMPANELLI,
Plaintiff-Respondent,
v.
KUSUM S. PATEL,
Defendant-Appellant,
and
SATISH PATEL,
Defendant.
__________________________________
Submitted January 31, 2017 – Decided October 23, 2017
Before Judges Messano and Suter.
On appeal from Superior Court of New Jersey,
Law Division, Middlesex County, Docket No.
L-3671-12.
Camassa Law Firm, attorneys for appellant
(John A. Camassa, of counsel; Christopher M.
Brady, on the briefs).
Law Office of S.P. DiFazio, attorneys for
respondent (Salvatore P. DiFazio, on the
brief).
The opinion of the court was delivered by
SUTER, J.A.D.
Defendant Kusum Patel appeals the $336,000 judgment entered
against her in favor of plaintiff Amy Campanelli, following a jury
trial, and the order denying defendant's motion for a new trial
and directed verdict. We affirm. The comments of plaintiff's
counsel made during summation, although improper, were addressed
by the court's curative instruction and did not result in a
miscarriage of justice requiring a new trial.
The underlying personal injury action arose from a motor
vehicle accident in 2010, when defendant's vehicle collided with
plaintiff's at an intersection. The case was tried to a jury in
2015. Plaintiff contended that she had sustained permanent
injuries to her neck and back as a result of the accident. Dr.
Natalio Damien, a radiologist, testified that plaintiff's cervical
and lumbar MRIs showed bulging discs in her neck at C5/6 and in
her lower back at L4/5, both pressing on the thecal sac. Dr.
Patrick M. Collalto, an orthopedic doctor, testified for plaintiff
that the bulging discs constituted a permanent injury and that
they were caused by the accident. Plaintiff's electromyogram
(EMG) showed cervical radiculopathy at the C5/6 level. Plaintiff's
counsel failed to elicit that Dr. Collalto's opinions were given
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within a reasonable degree of medical probability, although the
doctor did use that standard when testifying during his earlier
deposition.
At the close of plaintiff's case, defendant moved for a
directed verdict based on Dr. Collalto's failure to testify about
the standard of reasonable medical probability. The trial judge
denied the motion. In light of that ruling, defendant's counsel
agreed the doctor could submit a supplemental certification
addressing the standard.
The defendant called Dr. Robert J. Bercik, a board certified
orthopedic surgeon, as her defense expert. He testified that
plaintiff suffered sprains from the accident that were not
permanent. He testified that the MRIs showed disc desiccation,
not bulges, attributable to a degenerative process. On direct
examination, defense counsel elicited that twenty percent of Dr.
Bercik's time was spent preparing examination reports and
virtually all of these were for the defense.
Plaintiff's counsel was twice warned on cross-examination to
allow Dr. Bercik to finish the answers to his questions. A number
of questions by plaintiff's counsel were about Dr. Bercik's
interpretation of the MRIs and the time he spent preparing reports.
During summation, defendant's counsel forewarned the jury
that plaintiff's counsel was going to tell them that "[a]ll [Dr.
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Bercik] does is testify for the defense and all he does is find
no injuries . . . ." He told the jury, "[y]ou decide the way he
testified whether he's up here lying to you in order to keep that
work . . . ."
Plaintiff's counsel then made several comments about Dr.
Bercik in his summation which form the subject of this appeal.
One comment implicated Dr. Bercik's credibility.
If you spend 20 percent of your work week
servicing one client and that client[,] the
defense industry in his case, and your client
in your case is who [] you rely on for 20
percent of your income, do you think you're
going to give reports that support the
plaintiff or are you going to bend over
backwards to say what you have to say to
support the defense?
Plaintiff's counsel told the jury that Dr. Bercik "is not a
credible witness although he is smooth as silk." "He just sits
there and butter wouldn't melt in his mouth and every question you
have for him he has an answer." Counsel said Dr. Bercik was a
"pro," a "professional testifier," and a "smoothie." Counsel
stated that defendant's expert was "a defense doctor," was "too
smart" and "too smooth" during testimony, and played a "shell
game" and a "show game." Counsel urged the jury not to "let that
practice fool you," and not to "fall into the trap." Counsel
referred to Dr. Bercik's client as the "defense industry." Counsel
stated that Dr. Bercik's testimony "was there for the sole purpose
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of protecting his industry in the defense area and protecting the
defendants in order to do that."
The trial judge interrupted plaintiff's counsel, calling both
counsel to sidebar, whereupon defense counsel then objected to the
remarks. Defense counsel asked for "an immediate curative
instruction" suggesting "that those comments were improper and
should not be considered by [the jury] at all." The court then,
and without objection from either counsel, instructed the jury:
Members of the jury, we have certain rules in
terms of fair comment by the attorneys during
the course of their summation and they're
certainly entitled to comment on the
[evidence] that's presented before you and
suggest ways in which you could judge the
credibility of witnesses. But the comments
of [plaintiff's counsel] have gone far beyond
what is acceptable in terms of the comments
related to Dr. Bercik and so disregard any
comments in -- with respect to that testimony
that was perhaps somehow contrived by Dr.
Bercik to protect the defense industry, those
comments were inappropriate and I'm going to
ask you to disregard them.
After deliberations, the jury returned a verdict in favor of
plaintiff on liability and damages.
A few weeks after trial, defendant moved for a new trial or
a verdict directed in her favor. On October 9, 2015, the court
denied defendant's motions. Although the court found that
counsel's statements "clearly went above and beyond . . . the
bounds of acceptable advocacy," it was not "persuaded that [the
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jury's verdict] is against the weight of the credible evidence,
such that the only explanation of the jury's verdict could lie
with the comments of counsel during summation." In rejecting the
motion for a directed verdict, the trial court found that "the
rules certainly don't prohibit the [c]ourt's exercise of its
judicial discretion to conduct the proceedings in the interest of
justice," particularly where the standard of "a reasonable degree
of medical probability" had been applied by the expert during his
deposition.
On appeal, defendant contends because of plaintiff's
counsel's aggressive cross-examination of Dr. Bercik and
inappropriate comments made in summation, that the court erred in
denying her motion for a new trial. Also, she contends the court
erred in denying her motion for a directed verdict because
plaintiff's expert did not state his opinions with a reasonable
degree of medical probability.1 We do not find merit in these
issues.
We review the denial of defendant's motion for a new trial
under the same standard used by the trial court, which is, "whether
there was a miscarriage of justice under the law." Risko v.
Thompson Muller Auto. Grp., Inc., 206 N.J. 506, 522 (2011) (citing
1
Defendant conceded liability on appeal.
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Bender v. Adelson, 187 N.J. 411, 435 (2006)). We do so giving
"'due deference' to the trial court's 'feel of the case.'" Ibid.(quoting Jastram v. Kruse, 197 N.J. 216, 230 (2008). "A jury
verdict is entitled to considerable deference and 'should not be
overthrown except upon the basis of a carefully reasoned and
factually supported (and articulated) determination, after
canvassing the record and weighing the evidence, that the continued
viability of the judgment would constitute a manifest denial of
justice.'" Id. at 521 (quoting Baxter v. Fairmont Food Co., 74
N.J. 588, 597-98 (1977)). We must, however, make our own
independent determination of whether a miscarriage of justice
occurred. Carrino v. Novotny, 78 N.J. 355, 360 (1979).
Cross-examination has been termed "the greatest legal engine
ever invented for the discovery of truth." See State v. Benitez,
360 N.J. Super. 101, 125 (App. Div. 2003) (Parker, J., dissenting);
Biunno, Weissbard & Zegas, Current N.J. Rules of Evidence, comment
2 on N.J.R.E. 611 (2017). Plaintiff's counsel extensively cross-
examined the doctor using the MRI films in an attempt to discredit
his opinion that plaintiff did not have bulging discs. There were
two instances where, without objection from defense counsel, the
judge instructed counsel to allow the witness to finish answering
the question. In the context of the entire trial, where
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credibility was in issue, we are satisfied that the cross-
examination did not cause defendant to be denied a fair trial.
Counsel is generally "allowed broad latitude in summation
[and] counsel may draw conclusions even if the inferences that the
jury is asked to make are improbable, perhaps illogical, erroneous
or even absurd." Bender, supra, 187 N.J. at 431 (2006) (alteration
in original) (quoting Colucci v. Oppenheim, 326 N.J. Super. 166,
177 (App. Div. 1999), certif. denied, 163 N.J. 395 (2000)).
However, counsel "may not use disparaging language tending to
discredit the opposing party, or witness, or accuse a party's
attorney of wanting the jury to evaluate the evidence unfairly,
of trying to deceive the jury, or of deliberately distorting the
evidence." Rodd v. Raritan Radiologic Assocs., 373 N.J. Super.
154, 171 (App. Div. 2004) (citations omitted). The "cumulative
effect" of such comments can result in a miscarriage of justice.
Geler v. Akawie, 358 N.J. Super. 437, 468 (App. Div.), certif.
denied, 177 N.J. 223 (2003). However,"[f]leeting comments, even
if improper, may not warrant a new trial, particularly when the
verdict is fair." Jackowitz v. Lang, 408 N.J. Super. 495, 505
(App. Div. 2009).
Here, the comments in summation were not numerous but implied
that Dr. Bersick's opinions were intended to favor the defense,
were disparaging and implied that he misled the jury. Counsel
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stated that Dr. Bercik's testimony was to protect the "defense
industry" and "his industry in the defense area." Those comments
could imply that insurance coverage was available contrary to
N.J.R.E. 411 (stating "[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.").
"[I]n some cases prompt curative instructions by the trial
judge have been found sufficient to ameliorate the effect of
isolated lapses on the part of an attorney in closing argument."
Geler, supra, 358 N.J. Super. at 470. "[W]hen weighing the
effectiveness of curative instructions, a reviewing court should
give equal deference to the determination of the trial court. The
adequacy of a curative instruction necessarily focuses on the
capacity of the offending evidence to lead to a verdict that could
not otherwise be justly reached." State v. Winter, 96 N.J. 640,
647 (1984). The test is whether the error was "clearly capable
of producing an unjust result." State v. Daniels, 182 N.J. 80,
95 (2004) (quoting R. 2:10-2).
The curative instruction here was clear and to the point; the
jury was to disregard the comments. The judge expressly told the
jury the comments were improper. There was no objection from
defense counsel about its content. We are satisfied the trial
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court did not err in determining that the curative instruction was
sufficient to address counsel's improper comments.
This case is not like Szczecina, where an attorney made
inappropriate comments in the opening and closing that warranted
a new trial. There counsel repeatedly referred to a defense
witness as a "spin doctor" and others as "paid agreers"; defense
counsel was labeled multiple times as a "spokesman"; counsel asked
the jury to "send a message," used the term "game plan" repeatedly,
and accused defense counsel of intentionally muddying the waters
and the medical defense team as a "tag team" and "hired guns."
Szczecina v. PV Holding Corp., 414 N.J. Super. 173, 180 (App. Div.
2010). Defense counsel did not object, nor did the trial court
intervene. Id. at 184-85. That was not the case here. Nor is
it similar to Geler, where the disparaging comments in the closing
were numerous, counsel impermissibly invoked the "golden rule,"
and "misstated material elements of the evidence." Geler, supra,358 N.J. Super. at 464, 466. Those types of errors are not alleged
in the present case.
Here, the comments were limited to the summation, were not
numerous or pervasive and the trial court stopped the summation
in order to immediately give a curative instruction. The court
also gave the standard instruction to the jury on the credibility
of witnesses and about experts.
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We are satisfied that the comments in summation did not
lead to a verdict that could not "otherwise be justly reached."
There was expert testimony for both sides; both parties testified.
The award of damages was reflective of the testimony about the
nature and extent of the permanent injuries. On this record, the
comments, addressed by the curative instruction, did not rise to
the level of manifest injustice.
Defendant moved for a directed verdict at the close of
plaintiff's case and again in her motion for a new trial, arguing
"there's no medical testimony of permanent injury," because Dr.
Collalto failed to state during his trial testimony that his
opinions were rendered within a reasonable degree of medical
probability.
Defendant is critical of the court's decision to allow
plaintiff to supplement Dr. Collalto's testimony by submitting a
certification that the doctor's opinions were given within a
reasonable degree of medical probability. However, the decision
about whether to allow supplemental testimony was based on the
court's soundly exercised discretion. See Bondi v. Pole, 246 N.J.
Super. 236, 239 (App. Div. 1991) (where an expert witness was
recalled to supply testimony that his opinion was within a
reasonable degree of medical probability); Appeal of Dale, 134
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N.J. Eq. 502, 504 (E. & A. 1944) (permitting recalling of witness
to supplement examination).
In reviewing the denial of defendant's motion for a directed
verdict, we apply the same standard as the trial court. Frugis
v. Bracigliano, 177 N.J. 250, 269 (2003). We are to accept "as
true all the evidence which supports the position of the party
defending against the motion and accord [ ] him the benefit of all
inferences which can reasonably and legitimately be deduced
therefrom . . . ." Verdicchio v. Ricca, 179 N.J. 1, 30 (2004).
The review function is "quite a mechanical one" where the court
determines whether evidence exists "viewed most favorably to the
party opposing the motion." Dolson v. Anastasia, 55 N.J. 2, 5-6
(1969).
In this case, plaintiff, who was thirty-four at the time,
provided proof through her own testimony and the expert testimony
of a radiologist and orthopedist that she was injured in the
accident, that the injuries were permanent and testified about the
effect of those injuries on her life. The court did not err in
denying the motions for directed verdict because there was evidence
to support the jury's verdict.
Affirmed.
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