JUSTO LOPEZ, JR. VS. MICHAEL A. TETI (L-953-12, CUMBERLAND 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NOT FOR PUBLICATION WITHOUT THE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-4914-14T1
JUSTO LOPEZ, JR. and
EVELYN LOPEZ, h/w,
Plaintiffs-Appellants,
v.
MICHAEL A. TETI,
Defendant-Respondent,
and
VINCENT TETI,
Defendant.
_____________________________________
Argued April 26, 2017 – Decided June 5, 2017
Before Judges Alvarez, Accurso and Manahan.
On appeal from Superior Court of New Jersey,
Law Division, Cumberland County, Docket No.
L-953-12.
Edward J. Tucker argued the cause for
appellants (Rosner & Tucker, PC, attorneys;
Tariq H. Chaudhri, on the brief).
Anthony Young argued the cause for
respondent (Parker, Young & Antinoff, LLC,
attorneys; Mr. Young, on the brief).
PER CURIAM
In this verbal threshold case, plaintiff Justo Lopez, Jr.
and his wife Evelyn Lopez appeal from a defense verdict and the
denial of their motion for a new trial following a trial on
damages. They contend evidentiary errors relating to disclosure
of prior legal applications and actions by both plaintiffs, as
well as defense counsel's improper remarks in summation,
resulted in a miscarriage of justice. Because our review of the
record convinces us the errors complained of, either singly or
in combination, did not deprive plaintiffs of a fair trial, we
affirm.
Plaintiffs were rear-ended by a car driven by defendant
Michael A. Teti in November 2010. Liability was stipulated and
the case went to trial on damages only. Both plaintiffs claimed
a permanent injury stemming from the accident, and that it
aggravated pre-existing degenerative changes in their necks,
shoulders and backs.
The medical experts for both sides agreed that both
plaintiffs had degenerative conditions and that both credibly
reported suffering pain after the accident. Plaintiffs' experts
were of the opinion the pain resulted from the permanent
injuries they suffered in the accident and the aggravation of
their previously asymptomatic degenerative conditions.
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Defendant's expert was of the view that neither plaintiff
suffered a permanent injury in the accident and that there was
no indication in their diagnostic studies of any post-traumatic
cause of their pain. As to Mr. Lopez, defendant's expert
conceded the epidural injections and radio frequency procedures
he had to manage his pain following the accident were
appropriate treatments for someone suffering significant pain,
and that none of the treatment Mr. Lopez had was unreasonable.
The expert also conceded there was no indication in Mr. Lopez's
medical records that he was suffering any pain prior to this
accident. Similarly, the expert conceded there was no
indication that Mrs. Lopez was having pain or problems in her
neck or shoulder prior to this accident.
There was nothing in the record to suggest that either
plaintiff had suffered any prior injury to the parts of their
bodies they claim were injured in this accident. Instead, the
significance of their prior injuries, especially as to Mr.
Lopez, was in the effect plaintiffs had previously claimed those
injuries had on their lives and activities. Defendant used what
plaintiffs had said about the effect of Mr. Lopez's prior
accidents on their lives to argue their accounts of how this
accident affected them were not credible.
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Both sides were aware of the potential that plaintiffs'
prior claims could become relevant in this action. Plaintiffs
made an in limine motion to bar defendant from referring to Mr.
Lopez's Post Traumatic Stress Disorder (PTSD), Lyme's disease or
prior knee injury because the defense was without any medical
testimony linking those conditions to their current complaints.
See Allendorf v. Kaiserman Enters., 266 N.J. Super. 662, 672-73
(1993). Judge Geiger ruled that he would address any such
objection on an ad hoc basis because he would "need to know the
context before [he could] render a [r]uling." He warned,
however, that "if the claim is that as a result of this
accident" plaintiffs are not able to do things they would have
been doing but for the accident, they could "be opening up a
door as to whether these conditions that [they] already suffered
from limit [their] abilities in that regard as opposed to this
accident."
At trial, one of plaintiffs' experts acknowledged on cross-
examination that she was aware Mr. Lopez received disability
benefits and was not employed. Mr. Lopez subsequently confirmed
he suffered from PTSD and was "on disability." He told the jury
he was a "house-husband" responsible for the cooking, cleaning
and yard work, which he performs "with pain," except when his
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pain was so severe that it prevented him from completing his
chores. He testified his cousin helped him occasionally with
the yard, but when his cousin was not available, he did the work
and "live[d] with the pain."
Defendant also testified he had "always been athletic" and
played softball, handball, basketball and lifted weights before
the accident. After the accident he claimed he could not do
those things. He also claimed he and his wife "used to go out
dancing all the time" and to "dinners, shows [and] plays."
After his "whole life changed" on the day of the accident,
plaintiff claimed they no longer went out dancing or to parties
with their friends because he was "in pain a lot."
On cross-examination, defense counsel showed defendant his
application for Social Security disability benefits completed
several years before the accident. Counsel had defendant read
from that document the activities he claimed he no longer
participated in because of his PTSD, including, "play[ing] ball,
fish[ing], camp[ing], go[ing] to the mall and just hang[ing] out
with the wife." Defendant also claimed in that document that
before his traumatic event, he "always had a job[,] . . . was a
people person[,] . . . [and his wife and he] were always invited
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to people's homes." He wrote "[n]ow it's different" as he no
longer enjoyed "being around people."
Defense counsel also questioned Mr. Lopez about a prior
knee injury, and whether it had impaired his ability to "do
outside chores." After Mr. Lopez denied it, defense counsel
confronted him with his answers to interrogatories in a slip and
fall action related to that injury, in which he claimed he paid
for lawn care he could no longer perform himself. The court
overruled plaintiffs' counsel's objections to the use of Mr.
Lopez's application to Social Security or his interrogatory
answers on cross-examination.
Mrs. Lopez testified to her injuries and the effect they
had on her ability to "run a quarter million dollar department"
at a local hospital. She claimed that before the accident "it
was nothing for [her] to work from 7:00 in the morning until
7:00, 8:00, 9:00, 10:00, 11:00 o'clock. [Go] home, go back in
3:00, 4:00, 5:00 o'clock in the morning and do another eight,
ten hour day." Following the accident, her physical limitations
had led her to conclude she could no longer do the job.
On cross-examination, Mrs. Lopez admitted she worked forty
to sixty hour weeks without restriction after the accident and
never took any time off on account of her injuries. Defense
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counsel similarly confronted her with her certified answers to
interrogatories in the prior action. After the court overruled
plaintiffs' objection to use of the document, defense counsel
succeeded in having Mrs. Lopez acknowledge she had previously
sought compensation for the same loss of household chores and
personal relationship with her husband she sought in this
action.
Defense counsel also sought to inquire as to whether Mrs.
Lopez had complained to her family physician of pain in her
neck, shoulder or back after the accident, using the doctor's
records. The court sustained plaintiffs' objection to the use
of the records in that manner. Defense counsel cured the
objection by asking Mrs. Lopez whether she recalled complaining
to her doctor about such pain. When she said she could not
recall, defense counsel had her review the records to see if
they might refresh her recollection. She did so. Counsel then
asked the question again. Mrs. Lopez answered, "I don't see
anything listed." Defense counsel then wrote on an easel "PCP,
17 pages post-MVA, nothing listed. No complaint." Plaintiffs
objected and the court responded the note was "not in evidence"
and directed counsel to "[m]ove on."
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In his closing argument to the jury, defense counsel's main
theme was plaintiffs' lack of credibility. In making his
argument, he referred to the statements Mr. Lopez made in his
application for Social Security disability benefits and to the
answers Mrs. Lopez gave to interrogatories submitted in the
action to recover for Mr. Lopez's knee injury. He also focused
on the reports of pain in plaintiffs' medical records. The
court overruled plaintiffs' objection to defense counsel's
rhetorical questions, "Why this pain? Well, pain is a
subjective response and why this pain? Is it real pain or is it
litigation pain? Because, see, is there an incentive for pain?"
Following the no cause verdict, plaintiffs moved for a new
trial claiming defense counsel's repeated reference on cross-
examination to Mr. Lopez's "unrelated diagnosis" of PTSD and his
receipt of Social Security disability benefits and to Mrs.
Lopez's prior loss of consortium claim violated the court's
prior order; that defense counsel "published the contents of
inadmissible medical records" to the jury in violation of the
court's ruling "issued only moments earlier;" and impermissibly
accused plaintiffs in summation of suffering from "'litigation
pain,' despite the testimony of the defense medical expert in
which it was already established that both [p]laintiffs were
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found to be credible and that the dispute was as to causation
and permanency of the alleged injuries only."
After hearing argument, Judge Geiger denied the motion. In
a brief but comprehensive opinion from the bench, the judge
summarized the testimony and addressed plaintiffs' claims. He
explained that "the credibility of the plaintiffs" was "one of
the central issues raised by the defense." The judge recounted
that after Mr. Lopez told the jury about his "inability to
socialize and . . . loss of enjoyment of life, and [inability]
to recreate and do social activities" as before the accident,
during cross-examination it's brought to
light, that as part of his own filings, in
the form of his Application for Social
Security Disability, based on . . . claimed
Post-Traumatic Stress Disorder, that he
suffered from the very types of loss of
enjoyment of life that he was testifying
resulted from this motor vehicle accident.
The judge found plaintiffs had "to expect that if the defense
learns of that Social Security Disability Application, that it's
going to be a primary focus during a trial."
Judge Geiger further found devastating that the jury
"learn[ed] this for the first time on cross-examination, because
it wasn't broached, it wasn't discussed, it wasn't raised during
direct examination." The judge opined that it was "[p]otent
cross-examination, goes to the very heart of his credibility,
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with regard to damages. I can't think of a more direct,
effective attack than that. It just completely undermines a
large portion of his claim for non-economic damages." The judge
found that testimony "[c]ouple[d] . . . with the testimony
during cross of plaintiff wife, Evelyn Lopez, who also claimed
to have suffered permanent injuries [in] the accident" but still
managed to run a large department at the hospital, working forty
to sixty hours a week, "undermined the [direct] testimony as to
damages and disability resulting from this accident."
Regarding defense counsel's comment in summation regarding
"litigation pain," the judge found it not "inappropriate in a
case with these facts." The judge elaborated:
You know, this is not a case where
somebody gets involved in an auto accident
and they have no prior history, and the
issue is, well, is it degenerative versus
traumatic[.] Here's a claim where the very
types of most of the damages that he's
claiming, or a significant portion of the
damages, were the basis for his Social
Security Disability.
It's fair game for defense counsel
under those circumstances to refer to it as
being litigation pain. And, any reference
to the Social Security Application process
was really part and parcel of his . . .
cross-examination. These were documents . .
. that this plaintiff had signed
certif[ying] that these items were true when
he was applying for Social Security
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Disability. So, again, I don't think that's
inappropriate.
Noting that the "test for a new trial is very strict," and that
jury verdicts should be set aside "only in cases of clear
injustice," Judge Geiger concluded by finding "I don't think
we're close to that in this case."
Plaintiffs appeal, reprising the same arguments made in
their post-trial motion to Judge Geiger.
Our Supreme Court has instructed "that a motion for a new
trial should be granted only after '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.'" Risko v. Thompson
Muller Auto. Grp., Inc., 206 N.J. 506, 521 (2011) (quoting
R. 4:49-1(a)). In reviewing the grant or denial of such a
motion, an appellate court applies essentially the same
standard, but affords "due deference" to the trial court's "feel
of the case," regarding its assessment of such intangibles as
witness credibility. Jastram v. Kruse, 197 N.J. 216, 230
(2008).
Applying that standard here, and having read the trial
record, we are entirely satisfied that the jury's verdict should
stand. We find no error, much less reversible error, in the
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trial court's rulings regarding defendant's use, on cross-
examination, of plaintiffs' prior sworn answers to
interrogatories and application to the Social Security
Administration. We acknowledge the caution that should be
employed in making use of such documents to avoid "eliciting and
stressing" prior legal claims irrelevant to the issue at hand.
See Krug v. Wanner, 28 N.J. 174, 185 (1958). But here, as Judge
Geiger noted, the prior claims, and what they said about
plaintiffs' credibility, were the precise issue at hand. No
Rule, principle of law, or court order barred defendant from
attempting to establish that the changes plaintiffs claimed
occurred in their lives following this accident were ones they
had previously said were the result of other accidents.
As for the reference to litigation pain, we distinguish
this case from our recent opinion prohibiting expert opinion
testimony on "malingering" or "symptom magnification" in
personal injury cases. See Rodriguez v. Wal-Mart Stores, Inc.,
No. A-4137-14 (App. Div. Apr. 27, 2017) (slip op. at 2). Here,
there was no testimony by defendant's expert that plaintiffs
were malingering or magnifying their symptoms. Indeed, Judge
Geiger, anticipating our ruling in Rodriguez, disallowed
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defendant from soliciting any such testimony from his expert on
plaintiffs' application in limine.
Accordingly, we are satisfied that Judge Geiger was
appropriately sensitive to the prejudice such comments might
engender and defer to his assessment that defense counsel did
not transgress the bounds of fair advocacy in his closing.
Plaintiffs' claim that defense counsel "published the contents
of inadmissible medical records" to the jury by his cryptic note
scribbled on a pad on the easel in the courtroom is without
sufficient merit to warrant discussion here. See R. 2:11-
3(e)(1)(E).
The few small and inconsequential errors which occurred
during the course of this trial do not amount to cumulative
error justifying overturning the jury's verdict. See Pellicer
v. St. Barnabas Hosp., 200 N.J. 22, 51 (2009).
Affirmed.
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