ALEXIS B. MONGIELLO VS. GABRIELLE L. GALLAGHER (L-0618-14, SUSSEX COUNTY AND STATEWIDE) ( 2019 )

NOT FOR PUBLICATION WITHOUT THE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-5574-16T4
ALEXIS B. MONGIELLO,
Plaintiff-Respondent,
v.
GABRIELLE L. GALLAGHER,
Defendant-Appellant.
_____________________________
Argued February 11, 2019 – Decided February 26, 2019
Before Judges Haas, Sumners and Mitterhoff.
On appeal from Superior Court of New Jersey, Law
Division, Sussex County, Docket No. L-0618-14.
Stephen A. Rudolph argued the cause for appellant
(Rudolph & Kayal, attorneys; Stephen A. Rudolph, on
the briefs).
Thomas H. Prol argued the cause for respondent
(Laddey, Clark & Ryan, LLP, attorneys; Andrew A.
Fraser, of counsel; William B. Thayer, on the brief).
PER CURIAM
In this personal injury case, defendant Gabrielle Gallagher appeals from a
$1,800,000 verdict the jury entered in favor of plaintiff Alexis Gallagher
following a three-day damages-only trial.1 Defendant also challenges the trial
judge's subsequent denial of her motion for a new trial and remittitur. We
affirm.
On November 9, 2012, plaintiff2 was a passenger in a car driven by her
boyfriend's mother. They were on their way to pick up plaintiff's boyfriend,
who was a Marine on leave for the weekend. While the car was stopped at a
traffic light, it was rear-ended by defendant's vehicle. Plaintiff testified that she
immediately felt pain in her neck and back.
An ambulance took plaintiff to a hospital, where she was given some pain
medication and discharged. Plaintiff testified that her pain continued over the
weekend, so she went back to the emergency room, and then followed up with a
neurosurgeon, Dr. Chun. The doctor put her neck in an "Aspen Collar" to
immobilize it for a couple of days. However, plaintiff did not feel any better
1
Prior to trial, the judge granted plaintiff's motion for partial summary judgment
on the issue of liability. After the jury's verdict, the judge entered an amended
order of judgment in the amount of $2,041,326.50 in favor of plaintiff, which
included fees, costs, and pre-judgment interest.
2
Plaintiff was nineteen years old at the time of the accident.
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after this treatment. She then began a physical therapy (PT) regimen in an
attempt to strengthen her neck muscles. However, this did not help ease her
pain.
Plaintiff followed up with Dr. Basch, an orthopedic surgeon, who
recommended more PT. He also discussed spinal injections and the possible
need for surgery. Plaintiff obtained a second opinion from James Dwyer, M.D.,
who was qualified at trial as an expert in orthopedics and spine surgery. Dr.
Dwyer also recommended a spinal injection in an attempt to address plaintiff's
pain. After reviewing the risks of this treatment, plaintiff agreed to undergo an
epidural spinal injection procedure, which made her nauseous and, ultimately,
did little to alleviate her condition. As a result, plaintiff continued to participate
in PT and take pain medication, especially at night in order to be able to sleep.
Plaintiff had been active in sports while in high school, where she ran
track and played lacrosse. After high school, she continued to participate in a
number of outdoor activities, like hiking and jet skiing. Plaintiff stated that her
real passion was cooking and, after attending a community college, she enrolled
in the Culinary Institute of America (CIA) in Hyde Park, New York, with the
dream of becoming a chef. However, plaintiff testified that her neck pain did
not allow her to look down for long periods of time, which prevented her from
A-5574-16T4
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using a cutting board or performing the other tasks necessary to pursue this goal.
Plaintiff testified that her ability to perform everyday activities, such as drying
her hair or taking a shower, was also negatively impacted by her constant pain.
Plaintiff's mother, Lynn, 3 testified on plaintiff's behalf, and her testimony
largely mirrored that of her daughter. Lynn, who was a registered nurse, stated
that plaintiff was an active young adult prior to the accident. Since her injury,
however, plaintiff complained of pain every day, was unable to pursue her goal
of becoming a chef with her own restaurant, and seemed depressed most of the
time. Lynn stated that plaintiff continued to receive medical treatment, but the
doctors had advised them that "eventually she'll need . . . surgery."
Plaintiff presented the de bene esse deposition testimony of Richard
Snellings, M.D., who was qualified as an expert in diagnostic radiology. Dr.
Snellings testified that based of his review of two MRIs and a number of X-rays
taken of plaintiff's spine, plaintiff suffered from an abnormal straightening of
her cervical lordosis, which made it very difficult for her to bend her back or
neck. The doctor also found that plaintiff had a spinal disc herniation at the C6 -
7 level, which was causing compression on "the ventral aspect of the thecal sac
3
Because plaintiff and her mother share the same surname, we refer to plaintiff's
mother as Lynn to avoid confusion. In doing so, we intend no disrespect.
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where the nerves are located." Dr. Snellings found that this injury had been
caused by the car accident, and was a serious condition because
it's a permanent injury. It's a damage to the disc. Once
you . . . tear the[] the lining of the disc, it's basically a
death sentence for the disc when the material starts to
leak out because that material will never go back into
the disc. So . . . it's a permanent injury that's never
going to go back to its normal preinjury state.
Plaintiff also introduced Dr. Dwyer's de bene esse deposition at trial. Dr.
Dwyer had been treating plaintiff since August 2015. He opined that plaintiff
suffered a herniated disc protruding at the C6-7 level, with significant muscle
spasm, in the accident. Dr. Dwyer also observed that plaintiff's spine was
abnormally straight as the result of this condition, which contributed to her neck
and back pain. Dr. Dwyer testified that the spinal injection he administered to
plaintiff did not help her condition "to any great degree" and, as a result, anterior
cervical discectomy fusion surgery was being considered as "the likely next step
for her."4 However, Dr. Dwyer stated that while surgery, if successful, might
relieve plaintiff's pain, she would never have a normal spine and would continue
4
Plaintiff's attorney played an edited four-minute video of an anterior cervical
discectomy fusion surgery for the jury. The actual surgery takes approximately
ninety minutes to two hours.
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to have pain. Thus, he opined that plaintiff's condition was permanent and that
her prognosis was only "fair to guarded."
Defendant presented the testimony of his orthopedic surgery expert, David
Rubinfeld, M.D., by introducing his de bene esse deposition. Contrary to the
opinions expressed by plaintiff's experts, Dr. Rubinfeld stated that plaintiff
suffered from a cervical and lumbar spine sprain, with possible radiculopathy.
He found that there was a posterior prominence of the C6-7 disc, but it was not
in contact with any of the neural structures. As a result, Dr. Rubinfeld opined
that plaintiff's prognosis was good.
Defendant also presented the de bene esse deposition testimony of Roger
Berg, M.D., F.A.C.R., who was qualified as an expert in radiology. Based upon
his review of plaintiff's film studies, Dr. Berg concluded that plaintiff's "spinal
cord was normal and everything else was perfectly intact." He opined that
plaintiff "sustained no discernable injuries to her cervical spine or discs or the
nerve roots as a result of the November 2012 accident."
After the jury returned its verdict in plaintiff's favor, defendant filed a
motion for a new trial, raising many of the same arguments she now presents on
appeal. The judge denied the motion, as well as defendant's motion for a
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remittitur, and set forth his reasons in a series of detailed oral rulings. This
appeal followed.
On appeal, defendant raises the following arguments:
I. A NEW TRIAL IS WARRANTED BECAUSE
OF PLAINTIFF'S COUNSEL'S
INFLAMMATORY AND IMPROPER
COMMENTS, MADE WITHIN EARSHOT OF
THE JURY, THAT "THIS DEFENDANT HAS
NOTHING TO DO WITH [THE] VERDICT
AND THERE'S AN INSURANCE CARRIER
INVOLVED IN THIS CASE."
II. A NEW TRIAL IS WARRANTED BECAUSE
OF PLAINTIFF'S COUNSEL'S
INFLAMMATORY AND IMPROPER
COMMENTS DURING SUMMATION THAT
PLAINTIFF'S ALLEGED INJURY (A SINGLE
UNOPERATED HERNIATION) WAS A
"DEATH SENTENCE" FOR HER.
III. A NEW TRIAL IS WARRANTED BECAUSE
THE TRIAL COURT ABUSED ITS
DISCRETION WHEN IT PERMITTED
PLAINTIFF'S MOTHER LYNN MONGIELLO
TO TESTIFY AT TRIAL WHEN PLAINTIFF
NEVER NAMED HER MOTHER AS A
POTENTIAL TRIAL WITNESS, OR WHAT
THE SUBSTANCE OF HER TESTIMONY
WOULD BE.
IV. AFTER THE TRIAL COURT IMPROPERLY
PERMITTED PLAINTIFF'S MOTHER TO
TESTIFY, LYNN MONGIELLO THEN
PROCEEDED TO GIVE A SUBSTANTIAL
AMOUNT OF INADMISSIBLE HEARSAY
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AND "MEDICAL OPINION" TESTIMONY
ABOUT CONCUSSIONS, DEPRESSION,
PERSONALITY DISORDERS AND PAIN
LEVELS, WHICH PLAINTIFF'S COUNSEL
CLAIMED WERE JUST "MOM OPINIONS."
V. A NEW TRIAL IS WARRANTED BECAUSE
PLAINTIFF, PLAINTIFF'S MOTHER AND
PLAINTIFF'S COUNSEL TOLD THE JURY
THAT PLAINTIFF IS INCAPABLE OF
WORKING AS A CHEF WITHOUT ANY
MEDICAL OR VOCATIONAL EXPERT
TESTIMONY.
VI. A NEW TRIAL IS WARRANTED BECAUSE,
IN A DAMAGES-ONLY TRIAL, IT WAS
IMPROPER AND HIGHLY PREJUDICIAL
FOR PLAINTIFF'S COUNSEL TO STATE IN
HIS OPENING, AND FOR PLAINTIFF AND
HER MOTHER TO TESTIFY, THAT
PLAINTIFF WAS ON HER WAY TO SEE HER
UNITED STATES MARINE CORPS
BOYFRIEND WHO WAS HOME ON LEAVE
FROM CAMP LEJEUNE IN NORTH
CAROLINA WHEN THE ACCIDENT
OCCURRED.
VII. A NEW TRIAL IS WARRANTED BECAUSE
THE TRIAL COURT ABUSED ITS
DISCRETION WHEN IT PERMITTED DR.
DWYER TO OPINE ABOUT FUTURE NECK
SURGERY WHEN HIS REPORT ONLY
STATES THAT THE SPECULATIVE FUTURE
SURGERY IS A "POSSIBILITY," WHICH
THEN ESCALATED TO A POINT WHERE
PLAINTIFF'S COUNSEL IMPERMISSIBLY
STATED IN CLOSING THAT PLAINTIFF
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"WILL ABSOLUTELY REQUIRE THE
SURGERY."
VIII. AFTER IMPROPERLY ALLOWING DR.
DWYER TO TESTIFY ABOUT THE
"POSSIBILITY" OF A SPECULATIVE
FUTURE SURGERY, THE TRIAL COURT
ABUSED ITS DISCRETION WHEN IT
PERMITTED DR. DWYER TO SHOW A GORY
AND PREJUDICIAL VIDEO OF A CERVICAL
FUSION SURGERY, WHICH PLAINTIFF'S
COUNSEL ADMITTED DURING
SUMMATION "WAS NOT EASY TO
WATCH."
IX. A NEW TRIAL IS WARRANTED BECAUSE
PLAINTIFF'S EXPERT, DR. DWYER,
PROVIDED INADMISSIBLE BOOTSTRAP
HEARSAY TESTIMONY THAT HIS
READING OF THE MRIS WAS CONSISTENT
WITH THE NON-TESTIFYING
RADIOLOGIST WHO WROTE THE MRI
REPORT.
X. A NEW TRIAL IS WARRANTED BECAUSE
THE TRIAL COURT ABUSED ITS
DISCRETION WHEN IT PERMITTED
PLAINTIFF TO ADMIT PHOTOGRAPHS OF
PLAINTIFF COOKING WITH HER
GRANDMOTHER AND PLAYING
LACROSSE THAT WERE NOT PRODUCED
DURING DISCOVERY.
XI. A NEW TRIAL IS WARRANTED BECAUSE
THE CUMULATIVE EFFECT OF THESE
ERRORS RESULTED IN AN UNFAIR TRIAL
TO DEFENDANT.
A-5574-16T4
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XII. A NEW TRIAL IS WARRANTED BECAUSE
PLAINTIFF'S VERDICT OF $1,800,000 WAS
AGAINST THE WEIGHT OF THE EVIDENCE
AND SHOCKS THE CONSCIENCE.
As noted in the point headings for her arguments, defendant's overarching
claim is that the judge erred by denying her motion for a new trial or, in the
alternative, for remittitur. In addressing these contentions, we recognize the
fundamental principle that jury trials are a bedrock part of our system of civil
justice and that the factfinding functions of a jury deserve a high degree of
respect and judicial deference. See, e.g., Caldwell v. Haynes, 136 N.J. 422, 432
(1994). In terms of its assessment of the relative strength of the proofs, a jury
verdict is "impregnable unless so distorted and wrong, in the objective and
articulated view of a judge, as to manifest with utmost certainty a plain
miscarriage of justice." Doe v. Arts, 360 N.J. Super. 492, 502-03 (App. Div.
2003) (quoting Carrino v. Novotny, 78 N.J. 355, 360 (1979)).
Rule 4:49-1(a) provides that a trial judge shall grant a new trial if, "having
given due regard to the opportunity of the jury to pass upon the credibility of the
witnesses, it clearly and convincingly appears that there was a miscarriage of
justice under the law." Jury verdicts are thus "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
A-5574-16T4
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and weighing the evidence, that the continued viability of the judgment would
constitute a manifest denial of justice.'" Risko v. Thompson Muller Auto. Grp.,
Inc., 206 N.J. 506, 521 (2011) (quoting Baxter v. Fairmont Food Co., 74 N.J.
588, 597-98 (1977)).
"The preeminent role that the jury plays in our civil justice system [also]
calls for judicial restraint in exercising the power to reduce a jury's damages
award." Cuevas v. Wentworth Grp., 226 N.J. 480, 485 (2016). Thus, "[a] court
should not grant a remittitur except in the unusual case in which the jury's award
is so patently excessive, so pervaded by a sense of wrongness, that it shocks the
judicial conscience." Ibid.
In reviewing a trial judge's decision on a motion for a new trial, we view
the evidence in the light most favorable to the party opposing the new trial
motion. Caldwell, 136 N.J. at 432. Moreover, we give substantial deference to
the trial judge, who observed the same witnesses as the jurors, and who
developed a "feel of the case." See, e.g., Carrino, 78 N.J. at 361; Baxter, 74 N.J.
at 600; Dolson v. Anastasia, 55 N.J. 2, 6 (1969).
With regard to defendant's contentions concerning the judge's evidentiary
rulings, our standard of review is also well settled. "When a trial court admits
or excludes evidence, its determination is 'entitled to deference absent a showing
A-5574-16T4
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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)
(quoting State v. Brown, 170 N.J. 138, 147 (2001)). "Thus, we will reverse an
evidentiary ruling only if it 'was so wide [of] the mark that a manifest denial of
justice resulted.'" Ibid. (quoting Green v. N.J. Mfrs. Ins. Co., 160 N.J. 480, 492
(1999)).
A determination on the admissibility of expert evidence is likewise
committed to the sound discretion of the trial court. Townsend v. Pierre, 221
N.J. 36, 52 (2015) (citing State v. Berry, 140 N.J. 280, 293 (1995)). A trial
court's grant or denial of a motion to preclude expert testimony is entitled to
deference on appellate review. Ibid. As instructed by the Supreme Court, "we
apply [a] deferential approach to a trial court's decision to admit expert
testimony, reviewing it against an abuse of discretion standard." Id. at 53
(alteration in original) (quoting Pomerantz Paper Corp. v. New Cmty. Corp., 207
N.J. 344, 371-72 (2011)).
With regard to defendant's arguments concerning statements made by
plaintiff's trial counsel in his closing statement to the jury, it is well settled that
a summation "must be limited to the facts in evidence and inferences reasonably
to be drawn therefrom." State v. Bey, 129 N.J. 557, 620 (1992). While counsel
A-5574-16T4
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is to be given broad latitude in summation, he or she may not misstate the
evidence or distort the factual picture. Geler v. Akawie, 358 N.J. Super. 437,
467 (App. Div. 2003). Counsel is, however, permitted to argue from the
evidence any conclusion which the factfinder is free to reach. Colucci v.
Oppenheim, 326 N.J. Super. 166, 177 (App. Div. 1999). He or she "may draw
conclusions even if the inferences . . . are improbable, perhaps illogical,
erroneous, or even absurd, unless they are couched in language transcending the
bounds of legitimate argument, or there are no grounds for them in the
evidence." Ibid.
A reviewing court evaluates challenged remarks not in isolation but in the
context of summation as a whole. State v. Atwater, 400 N.J. Super. 319, 335
(App. Div. 2008) (citing State v. Carter, 91 N.J. 86, 105 (1982)). Also, the
challenged remarks are to be "viewed in the context of the entire record." Bey,
129 N.J. at 622. Furthermore, comments in summation do not warrant a new
trial unless they "are so prejudicial that 'it clearly and convincingly appears that
there was a miscarriage of justice under the law.'" Bender v. Adelson, 187 N.J.
411, 431 (2006) (quoting R. 4:49-1(a)).
Having considered defendant's contentions in light of these principles, we
conclude that her arguments are without sufficient merit to warrant extensive
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discussion in a written opinion. R. 2:11-3(e)(1)(E). We therefore affirm
substantially for the reasons stated by the trial judge in connection with the
rulings involved in this appeal. We add the following comments.
Contrary to defendant's argument in Point I, the judge properly handled
her contention that the jury heard plaintiff's attorney state that "[t]his defendant
has nothing to do with the verdict and there's an insurance carrier involved in
this case," during a sidebar conference the judge conducted concerning
plaintiff's objection to defendant's opening statement. As soon as defendant's
attorney alleged that the jury heard the brief remark, the judge excused the jury.
During the argument that followed, plaintiff's attorney requested that the judge
ask the jurors if any of them heard the sidebar conversation. Defendant did not
object. In response to the judge's question, none of the jurors raised their hand
indicating they heard the comment. The judge also gave a strong curative
instruction, directing the jury that
to the extent that anybody did [hear any of the
comments made during the sidebar] . . . [y]ou should
disregard anything that you heard. It's not evidence in
this case. It's not part of your deliberations. It's just
discussions between the attorneys and the [c]ourt on
some legal issues that we've been able to hash out while
you were in the jury room.
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Under these circumstances, the judge properly denied defendant's motion
for a new trial. Even if a juror heard the reference to insurance, the judge
specifically instructed the jurors to disregard anything they may have heard. The
jury is presumed to have followed that instruction. State v. Feaster, 156 N.J. 1,
65 (1998); State v. Manley, 54 N.J. 259, 270 (1969); see also State v. T.J.M.,
220 N.J. 220, 237 (2015) (appellate courts "act on the belief and expectation that
jurors will follow the instructions given them by the court").
In addition, while "[i]nappropriate efforts of counsel to make the jury
aware of irrelevant and prejudicial facts surrounding insurance coverage have
long been criticized by our courts[,]" a single, fleeting reference to "insurance
coverage" or "an insurance carrier," as allegedly occurred here, is not reversible
error. Krohn v. N.J. Full Ins. Underwriters Ass'n, 316 N.J. Super. 477, 481-82
(App. Div. 1998). "So long as the insurance is not featured or made the basis at
the trial for an appeal to increase or decrease the damages, the information would
seem to be without prejudice." Runnacles v. Doddrell, 59 N.J. Super. 363, 368
(1960) (quoting Odegard v. Connolly, 1 N.W.2d 137, 139 (Minn. 1941)). That
was certainly the case here and, therefore, we reject defendant's argument on
this point.
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In Point II, defendant argues for the first time that plaintiff's attorney
improperly stated in his summation that plaintiff's injury was a "death sentence,"
and that this comment was inflammatory and prejudicial. We disagree.
Counsel is permitted to argue from the evidence any conclusion which the
factfinder is free to reach. Colucci, 326 N.J. Super. at 177. As previously noted,
comments made during summation do not warrant a new trial unless they "are
so prejudicial that 'it clearly and convincingly appears that there was a
miscarriage of justice under the law.'" Bender, 187 N.J. at 431 (quoting R. 4:49-
1(a)). Where, as here, a party fails to object to an opposing party's remarks
during argument to the jury, the remarks will generally not be deemed
prejudicial. State v. Timmendequas, 161 N.J. 515, 576 (1999).
Contrary to defendant's contention, plaintiff's attorney's comment directly
referenced Dr. Snelling's trial testimony, where the expert opined that plaintiff
had suffered a serious injury. The doctor stated, "It's a damage to the disc. Once
you . . . tear the . . . lining of the disc, it's basically a death sentence for the disc
when the material starts to leak out because that material will never go back into
the disc." Under these circumstances, the attorney's statement that the "death
sentence for [plaintiff's] spinal disc" was also "a death sentence for the way she
A-5574-16T4
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was living her life" was a fair comment on the evidence presented to the jury at
trial.
We also reject defendant's argument in Point III that plaintiff's mother
should not have been permitted to testify. While plaintiff did not specifically
identify Lynn as a witness by name, she did state in her discovery responses that
her "family members and friends" were potential witnesses, and she provided
Lynn's name and contact information during her deposition. Moreover, there
was no prejudice to defendant because Lynn's testimony was virtually identical
to that provided by plaintiff. Under these circumstances, defendant was not
unfairly surprised or prejudiced when Lynn took the stand to support her
daughter. Therefore, the judge did not err in allowing her testimony. Glowacki
v. Underwood Mem'l Hosp., 270 N.J. Super. 1, 13 (App. Div. 1994).
Defendant's argument in Point IV that Lynn's testimony was inadmissible
hearsay, and also constituted improper expert medical testimony, also lacks
merit. As already noted, Lynn's testimony about plaintiff's complaints, and the
negative impact the accident had on all aspects of her life, essentially mirrored
her daughter's account, and was based upon her own direct observations of
plaintiff. Thus, Lynn's testimony was appropriate under Rule 701, which states
that a non-expert witness may nevertheless give testimony in the form of
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opinions where the testimony is "rationally based on the perception of the
witness and . . . will assist in understanding the witness' testimony or in
determining a fact in issue."
Turning to Point V, defendant argues that plaintiff, Lynn, and plaintiff's
attorney should have been barred from discussing plaintiff's dream of becoming
a chef because plaintiff did not present any medical or vocational expert
testimony to support plaintiff's assertion that she could no longer do so.
However, we agree with the trial judge, who found that because plaintiff was
not "making an economic claim" for lost wages or other economic loss, an expert
was not necessary. This was so because plaintiff's and Lynn's testimony, and
plaintiff's attorney's comments concerning it, were only presented to support
plaintiff's claim for loss of enjoyment of life. Thus, the judge did not err in
allowing plaintiff and Lynn to testify about plaintiff's love of cooking and her
belief that she could no longer pursue that career path.
Defendant complains for the first time on appeal in Point VI that plaintiff
should not have been permitted to testify that she on her way to pick up her
boyfriend, who was in the Marines, at the time of the accident. Defendant argues
that this testimony "was clearly designed to elicit inadmissible sympathy for
[p]laintiff." However, there was nothing improper in this brief testimony, which
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was relevant to the issue of how the accident occurred. In addition, the judge
instructed the jury at the end of the trial that "sympathy must play no role in
your thinking and in the decision you make in the jury room." Therefore, we
reject defendant's contention on this point.
We also discern no merit in defendant's argument in Point VII that the
judge erred in permitting Dr. Dwyer to opine about plaintiff's need for future
surgery because "his report only state[d] that the speculative future surgery was
a 'possibility[.]'" The judge correctly found Dr. Dwyer's testimony "was a
natural extension from the opinion, even though outside the four corners of the
expert report."
In Point VIII, defendant unpersuasively argues that the judge erred in
allowing plaintiff's attorney to play a "gory and prejudicial" video 5 of a cervical
fusion surgery to the jury. However, the judge reviewed the video, and found
"it's far from gory[.]" Thus, we have no basis for disturbing the judge's
evidentiary ruling on this point.
During his testimony, Dr. Dwyer stated, "I believe my report also
represented what was the actual report of the radiologist that I read." In Point
IX, defendant argues for the first time on appeal that this testimony was
5
Plaintiff has not provided us with a copy of this video.
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impermissible hearsay "as it apprised the jury of the opinions of complex
medical diagnosis of the non-testifying radiologist." However, we detect no
plain error in the admission of this brief testimony. R. 2:10-2. Although the
doctor made this comment, plaintiff's attorney did not solicit it, and did not
subsequently comment on it. Under these circumstances, we are unable to
conclude that the expert's statement was "clearly capable of producing an unjust
result." Ibid.
In Point X, defendant argues that the judge erred by allowing plaintiff to
introduce a photograph of plaintiff playing lacrosse and another photograph of
her cooking with her grandmother because neither photograph was produced
during discovery. We agree with the judge that there was no prejudice to
defendant by permitting the use of the two photographs because they were
consistent with the information plaintiff provided during discovery concerning
her participation in lacrosse in high school and her love of cooking. Thus, there
was no intent to mislead or conceal information from defendant, and no surprise
or prejudice to the defense. Clearly, this was not the type of serious discovery
violation that would warrant preclusion of the photographs. Manorcare Health
Servs., Inc. v. Osmose Wood Preserving, Inc., 336 N.J. Super. 218, 235 (App.
Div. 2001).
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In Point XI, defendant argues that the "cumulative effect" of the alleged
errors raised by her on appeal "resulted in an unfair trial." Having rejected
defendant's contention that any reversible error occurred during his trial, we also
reject his cumulative error argument.
Finally, we discern no basis for disturbing the trial judge's denial of
defendant's motion for a new trial or remittitur. Viewing the evidence in the
light most favorable to plaintiff, it is clear that the jury verdict of $1,800,000
does not shock the judicial conscience. Plaintiff presented ample evidence that
she sustained a serious permanent injury. She was nineteen when the accident
occurred, and had a life expectancy at that time of 60.4 years. Plaintiff testified
that as a result of her injury, she was in constant pain. This pain has persisted
despite medication, PT, pain management, and a spinal epidural injection. She
will likely need spinal surgery in the future. These conditions altered plaintiff's
prior lifestyle and her enjoyment of life. She was not as active and social as she
was prior to the accident, and she felt she had to abandon her lifelong dream of
becoming a chef.
Accordingly, we are unable to conclude that the jury verdict resulted in a
miscarriage of justice as required by Rule 4:49-1(a). Therefore, we reject
defendant's contention on this point.
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Affirmed.
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