THOMAS CHETNEY VS. NEW JERSEY MANUFACTURERS RE-INSURANCE COMPANY (L-7829-13, 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NOT FOR PUBLICATION WITHOUT THE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-2158-15T4
THOMAS CHETNEY,
Plaintiff-Respondent,
v.
NEW JERSEY MANUFACTURERS
RE-INSURANCE COMPANY,
Defendant-Appellant.
____________________________
Argued November 13, 2017 – Decided July 17, 2018
Before Judges Sabatino, Ostrer and Whipple.
On appeal from Superior Court of New Jersey,
Law Division, Middlesex County, Docket No. L-
7829-13.
Kevin F. Sheehy argued the cause for appellant
(Leyden, Capotorto, Ritacco & Corrigan,
attorneys; Paul J. Capotorto, of counsel;
Kevin F. Sheehy, on the briefs).
Michael J. Deem argued the cause for
respondent (R.C. Shea & Associates, attorneys;
Michael J. Deem, of counsel and on the brief).
PER CURIAM
After a damages-only trial, a jury found that plaintiff Thomas
Chetney suffered a permanent injury as a result of a collision
caused by an uninsured driver, and awarded $1.5 million in
compensatory damages. The court molded the award, to reflect
defendant's $500,000 policy limit, and a workers' compensation
lien. The court thereafter denied a motion for a new trial.
Chetney's uninsured motorist carrier, defendant New Jersey
Manufacturers Re-Insurance Company (NJMRe), appeals, raising
numerous points of evidentiary error. We reject all but one. We
agree with NJMRe that the trial court erred in permitting plaintiff
and his wife to testify that he suffered from erectile dysfunction
after the accident, without plaintiff offering an expert opinion
that the injuries from the accident caused that condition. On
that sole basis, we reverse and remand for a new trial.
Chetney was working as a paramedic on February 5, 1998 when
his ambulance was struck by a vehicle operated by an uninsured
driver. Chetney claimed the accident caused a permanent injury
to his lumbosacral spine. Although Chetney suffered injuries from
three prior motor vehicle accidents, one prior slip and fall, and
four subsequent non-motor vehicle accidents, he alleged that the
1998 accident was the principal cause of his permanent injury. He
said he suffered from chronic pain despite spinal fusion surgery
in 2004, physical therapy, and numerous steroid injections. At
the time of trial in 2015, he controlled his pain – but did not
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eliminate it – with prescription morphine and an implanted device
designed to redirect nerve signals.1
He and his wife testified that the injury from the 1998
accident caused him to limit various recreational and family-
related activities; and negatively affected his quality of life.
Despite his prior accidents, Chetney and his wife portrayed him
as an active, physically fit young man who participated in sports
and hunting; tumbled with his two toddlers; maintained his lawn
and yard; performed tree and snow work for himself and neighbors;
worked long hours; and built furniture as a hobby. Those
activities were eliminated or severely restricted after the
accident.
In particular, Chetney and his wife testified that he suffered
from erectile dysfunction after the 1998 collision. His wife
testified that she was pregnant at the time of Chetney's accident,
but had a miscarriage shortly thereafter. As a result of Chetney's
erectile dysfunction, they were unable to conceive a third child
or engage in intimacy. She also testified that he once threatened
1
In 2000, plaintiff timely filed his complaint, which included a
per quod claim of his wife. After voluntarily dismissing the
complaint, he refiled the complaint, absent the per quod claim,
in 2013, pursuant to an agreement with defendant. We surmise that
in the interim, plaintiff pursued a workers' compensation claim.
3 A-2158-15T4
to kill himself if his unremitting pain did not abate. She told
him to seek help.
As noted, the most salient point on appeal pertains to the
testimony about erectile dysfunction. NJMRe filed a pre-trial
motion to bar any testimony about the condition, contending that
(1) plaintiff did not adequately disclose it in discovery; and (2)
expert testimony was required to establish that plaintiff suffered
from the condition, and that the 1998 collision caused it. In
particular, NJMRe sought to redact portions of plaintiff's
orthopedic expert's de bene esse deposition, in which he explained
how nerve impingement in the lumbosacral spine could affect
plaintiff's urologic function.
The trial court granted the motion as to the expert's
testimony, concluding he lacked the expertise to address urologic
conditions, but denied it as to the testimony of plaintiff and his
wife.2 The court reasoned that expert testimony was not necessary
to establish what Chetney experienced himself. Furthermore,
Chetney was free to testify about how the accident affected his
life. NJMRe renews its arguments before us.
We consider first the alleged discovery violation. We review
the trial court's discovery ruling for an abuse of discretion and
2
Chetney does not cross-appeal from the order restricting his
expert's testimony.
4 A-2158-15T4
shall not disturb the trial court's decision absent a proven
injustice. Bender v. Adelson, 187 N.J. 411, 428 (2006) (reviewing
for an abuse of discretion a "trial court's decision to bar
defendants' requested amendments to their interrogatory answers
[to add experts] and deny a further discovery extension"); Abtrax
Pharms., Inc. v. Elkins-Sinn, Inc., 139 N.J. 499, 517 (1995)
(stating appellate courts shall review the dismissal of a complaint
with prejudice "for discovery misconduct" under an abuse of
discretion standard and shall not interfere "unless an injustice
appears to have been done"). In particular, courts should "seek
to avoid exclusion" of testimony that is "'pivotal'" to the case
of the party offering the evidence. Wymbs v. Twp. of Wayne, 163
N.J. 523, 544 (2000) (citation omitted). Even if there is a
discovery violation, in deciding whether to "suspend the
imposition of sanctions," a court should consider whether there
was a design to mislead, surprise if the evidence is admitted, and
prejudice from admission of the evidence. Ibid.We discern no abuse of discretion here. First, we are not
convinced there was a discovery violation. Although the medical
reports before us did not expressly refer to "erectile
dysfunction," they repeatedly referred to urological or
genitourinary problems that Chetney experienced post-accident.
One report noted that "he has a problem with marital relations."
5 A-2158-15T4
Asked to describe the "nature, extent and duration" of his injuries
in interrogatories, Chetney did not mention "erectile
dysfunction," but referred to his medical records, his underlying
spinal injury, and stated his injuries "affect all facets of [his]
life including, but not limited to . . . domestic activities both
interior and exterior . . . ." There is no indication defendant
sought more specific answers. At plaintiff's deposition, defense
counsel asked him if there was anything he could not do that he
was able to do before the 1998 accident. Plaintiff explained that
he used to be "a lot more intimate with [his] wife." Defense
counsel did not follow up.
In any event, there is no showing that plaintiff had the
design to mislead. Furthermore, given the references to urological
and marital issues, the claim of surprise is unpersuasive. The
relevant prejudice is not the impact of the evidence itself, but
the complaining party's inability to contest it because of alleged
late disclosure. See State v. Heisler, 422 N.J. Super. 399, 415
(App. Div. 2011). Notably, NJMRe fails to establish what measures
it would have undertaken to contest Chetney's and his wife's
factual testimony about their private, intimate relations had
Chetney explicitly disclosed the condition earlier.
We also discern no harmful error in the court's determination
that Chetney and his wife could testify as to his condition. While
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the rule authorizing expert testimony is permissive, see N.J.R.E.
702 (stating that a "witness qualified as an expert . . . may
testify") (emphasis added), an expert's testimony is required when
an average juror lacks the experience and knowledge to form a
conclusion about a matter. Biunno, Weissbard & Zegas, Current
N.J. Rules of Evidence, cmt. 1 to N.J.R.E. 702 at 731 (2018); see,
e.g., Butler v. Acme Markets, Inc., 89 N.J. 270, 273 (1982)
(requiring expert testimony if the issue is "so esoteric that
jurors of common judgment and experience cannot form a valid
judgment . . . .").
We agree that the specific diagnosis of "erectile
dysfunction" is outside the expertise of a lay witness, and should
be presented through a treating physician, see Delvecchio v. Twp.
of Bridgewater, 224 N.J. 559, 577-78 (2016) or an expert, see
Devlin v. Johns-Manville Corp., 202 N.J. Super. 556, 564 (Law Div.
1985).3 However, in general, Chetney and his wife avoided medical
nomenclature and instead described in lay terms what he experienced
and what she observed. See J.W. v. L.R., 325 N.J. Super. 543, 548
3
"Erectile dysfunction" is defined as "inability to achieve or
maintain penile tumescence sufficient for sexual intromission or
for achieving orgasm." Stedman's Medical Dictionary, 596 (28th
ed. 2006); see also Ida G. Dox et al., Attorney's Illustrated
Medical Dictionary, D52 (1997) (stating that erectile dysfunction
"is considered part of the overall multifaceted process of male
sexual function").
7 A-2158-15T4
(App. Div. 1999) (stating that expert testimony is not required
to present subjective symptoms). They both clearly had personal
knowledge of these facts. See N.J.R.E. 601. Plaintiff's counsel
used the medical term "erectile dysfunction" in questioning and
in summation. But, it is likely the jury simply understood the
term to summarize the condition that the witnesses described. In
any event, we discern no harmful error as to this aspect of their
testimony. R. 2:10-2.
However, we part company with the trial court's determination
that expert testimony was not required to establish causation.
"If plaintiff seeks to prove causation of a current medical or
psychological condition, of course, competent expert testimony
would be required." J.W., 325 N.J. Super. at 548; see also
Allendorf v. Kaiserman Enters., 266 N.J. Super. 662, 672 (App.
Div. 1993) (stating that the "logical relationship" underlying a
claim of medical causation "generally must be established by
appropriate expert medical opinion"); Kelly v. Borwegen, 95 N.J.
Super. 240, 243-44 (App. Div. 1967); see also Quail v. Shop-Rite
Supermarkets, Inc., ___ N.J. Super. ___, ___ (App. Div. 2018)
(slip op. at 8, 14) (affirming grant of summary judgment where
trial court ruled that plaintiff would be unable to show proximate
cause of death without expert testimony, for which the certificate
of death was not a substitute).
8 A-2158-15T4
This case is no different. Chetney's symptoms could have had
psychological or physical causes unrelated to his injury.4
Although, as the trial court noted, Chetney did not need an expert
to describe his symptoms, he needed an expert to identify their
medical cause. Chetney and his wife testified he experienced no
difficulty before the 1998 collision, but coincidence is not
causation.
Furthermore, the evidence did not clearly establish when the
condition first appeared. Chetney testified at trial that he
experienced difficulty in marital relations for thirteen to
fifteen years, which would place the onset of symptoms two to four
years after the accident. In his deposition, he said, without
pinpointing a date, that he had less intimacy with his wife after
the accident. His wife testified that difficulties arose within
months of the accident, and progressively worsened, as a result
of which marital relations had ceased for fifteen years.5
4
See Attorney's Illustrated Medical Dictionary, D52 (1997)
(stating that "causes [of erectile dysfunction] may be organic
(from the nervous or vascular systems) or psychological, but they
most commonly appear to derive from the problems in all three
areas acting in concert . . . .").
5
Chetney's orthopedic expert provided relevant information about
the connection between his neurologic injury and his ability to
control his urologic functioning. However, his testimony was
excluded. Plaintiff contends on appeal some of the expert's
opinion was presented to the jury notwithstanding the court's
9 A-2158-15T4
We cannot conclude that this error was harmless. We do not
minimize the substantial other evidence in support of Chetney's
claim. Even from the cold record, we discern that Chetney
presented as a sympathetic witness. He was a former Army
paramedic. At the end of his military service, he continued to
serve the public as a paramedic, often facing hazardous situations.
His expert testified persuasively that the 1998 collision was the
cause of Chetney's spinal injury, which in turn led to a life of
pain, and restricted activities, as Chetney and his wife detailed.
It is apparent from the record that plaintiff's counsel effectively
challenged the defense expert on cross-examination as to his
expertise, the care with which he reviewed Chetney's prior records,
and his conclusion that Chetney suffered no permanent injury as a
result of the 1998 collision.
Yet, the testimony of Chetney's erectile dysfunction was
emotionally powerful evidence. His wife testified movingly about
her miscarriage, her inability to have a desired third child, and
ruling. Plaintiff contends that his counsel proposed redactions
after the court ruling which left some of the expert's opinions
intact, and defense counsel did not object. We note that the
record does not document these redactions, nor does the trial
transcript reflect exactly what was played. But see R. 1:2-2.
Therefore, we presume that the transcript was redacted in accord
with NJMRe's in limine motion, which would have excluded the
discussion plaintiff now claims was presented to the jury. Any
lingering disputes over such redactions shall be addressed on
remand by the trial court before the retrial.
10 A-2158-15T4
the loss of intimacy with her husband. She described him as a
vigorous and physically fit young man before the accident,
notwithstanding periodic injuries and recoveries. Chetney
testified that he felt like less of a man, as a result of his
condition. Plaintiff's counsel highlighted this aspect of
Chetney's injuries in both opening and summation.
In sum, a new trial is warranted at which Chetney would be
obliged to present expert testimony to establish the causal
connection between his spinal injury – which his orthopedic expert
connected to the 1998 accident – and his erectile dysfunction. We
recognize that, lacking the guidance of this court's present
opinion, no such expert was presented in discovery, except for the
limited opinions of plaintiff's orthopedic expert, which the trial
court excluded. In advance of a new trial, the court may, in the
exercise of its discretion, reopen discovery as to any changes in
plaintiff's condition. The court may also revisit the limitations
it imposed on plaintiff's orthopedist and allow plaintiff to amend
prior disclosures to present the required medical expert opinion;
and permit defendant to obtain an independent medical examination,
as well as a responsive opinion.
We briefly discuss NJMRe's remaining points on appeal, none
of which are persuasive. NJMRe contends it was reversible error
to permit testimony and argument regarding Chetney's suicidal
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ideation. The testimony was limited to his wife's reference to a
conversation in which Chetney stated his pain was so intense and
unremitting that he was "going to blow [his] brains out" if he
could not get any relief. The wife did not contend that Chetney
continued to harbor suicidal thoughts, attempted suicide, or
otherwise suffered from a related mental illness. Defense counsel
did not object at the reference to suicidal thoughts in plaintiff's
counsel's opening, or his wife's testimony, nor did NJMRe raise
it in its motion for a new trial. Hence, we review NJMRe's
contention for plain error. R. 2:10-2.
We perceive none. We may conclude that defense counsel's
"failure to object signifies that the error belatedly claimed was
actually of no moment." See State v. Krivacska, 341 N.J. Super.
1, 42-43 (App. Div. 2001). Furthermore, the testimony was relevant
to establishing the extreme and unremitting pain Chetney
experienced. Standing alone, it fell short of persuading the jury
that Chetney suffered from mental illness or was actually on the
brink of taking his own life. At most, NJMRe may have been
entitled to a limiting instruction, but NJMRe did not request one.
NJMRe also contends that the court erred in granting
plaintiff's motion to bar testimony about "gaps in treatment"
shortly after the accident. Plaintiff's counsel contended that
Chetney was receiving medical care through workers' compensation
12 A-2158-15T4
at the time, and exploration of "gaps in treatment" would
necessarily require evidence about how the workers' compensation
system limited Chetney's autonomy in seeking treatment.
As the trial court recognized, in denying NJMRe's new trial
motion on this point, gaps in treatment could be relevant to
Chetney's credibility, and whether he suffered the injury claimed,
and the consequences of it. But, citing N.J.R.E. 403, the court
concluded that the probative value of "gaps in treatment" evidence
was outweighed by the risk that it would trigger "the introduction
of an entire slew of worker's compensation issues when both parties
had stipulated they would be barred from trial." The court
concluded, "This would pose a huge risk of confusion of the issues
and would certainly increase trial time by an extensive margin."
We recognize that Chetney has provided no evidence that
treatment delays were caused by the workers' compensation process.6
However, "[d]eterminations pursuant to N.J.R.E. 403 should not be
overturned on appeal 'unless it can be shown that the trial court
6
NJMRe has provided competent evidence that Chetney sought
treatment with Dr. Patrick Foye the day of collision, February 5,
1998. Chetney attended a follow-up appointment four days later,
but did not attend another appointment until June 1, 1998. Dr.
Foye scheduled Chetney for an EMG within the next week. Chetney
missed the appointment, did not return Dr. Foye's calls, and
attended a re-evaluation on March 3, 2000. Chetney did not
demonstrate that his workers' compensation carrier denied
treatment during that time period, or that he made any effort to
contest such denial. See N.J.A.C. 12:235-3.2.
13 A-2158-15T4
palpably abused its discretion, that is, that its finding was so
wide off the mark that a manifest denial of justice resulted.'"
Green v. N.J. Mfrs. Ins. Co., 160 N.J. 480, 492 (1999) (citing
State v. Carter, 91 N.J. 86, 106 (1982)). NJMRe has not met that
high threshold to disturb the trial court's broad discretion in
applying N.J.R.E. 403.
Finally, there was no miscarriage of justice in plaintiff's
counsel's argument in summation that the defense expert was
unethical. The court sustained the defense objection and delivered
a curative instruction. Notably, the curative instruction was the
one that defense counsel proposed, upon the court's invitation,
without amendment. We presume the jury followed the court's
instruction. See, e.g., State v. Loftin, 146 N.J. 295, 390 (1996)
("That the jury will follow the instructions given is presumed.").
NJMRe's remaining points lack sufficient merit to warrant
extended discussion. See R. 2:11-3(e)(1)(E).
Reversed and remanded. We do not retain jurisdiction.
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