GERARDINA GOMEZ VS. ALLISON M. FRITSCHE (L-3014-16, MIDDLESEX COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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-3977-17T3
GERARDINA GOMEZ and
JUAN GOMEZ, her husband,
Plaintiffs-Respondents,
v.
ALLISON M. FRITSCHE and
JACLYNN FRISCHE,
Defendants-Appellants.
____________________________
Submitted February 27, 2019 – Decided September 12, 2019
Before Judges Nugent and Mawla.
On appeal from the Superior Court of New Jersey, Law
Division, Middlesex County, Docket No. L-3014-16.
Law Offices of Viscomi & Lyons, attorneys for
appellants (Brittany Sadé Hale, on the brief).
Shamy & Shamy, LLC, attorneys for respondents (T.K.
Shamy, on the brief).
PER CURIAM
This is an automobile negligence action. A jury found defendant, Allison
M. Fritsche, 100% negligent for causing an intersectional collision and awarded
plaintiff, Gerardina Gomez, $115,000. 1 Defendant appeals the denial of her
motion for a new trial. She argues the cumulative prejudice from several
errors—the trial court barring evidence plaintiff had previously sustained
permanent injuries, the investigating police officer opining on fault, the trial
court prohibiting defense counsel from objecting during plaintiff 's summation,
and plaintiff's improper closing remarks to the jury—deprived her of a fair trial.
We agree. We vacate the order entered on the verdict, and remand for a new
trial.
I.
The accident occurred on December 8, 2014, at approximately 4:42 p.m.,
in Franklin Township. Plaintiff was driving a Toyota Highlander on Easton
Avenue toward New Brunswick. Defendant, who was driving a Kia Sportage,
turned right from Castleton Avenue onto Easton Avenue toward New
1
The trial court dismissed the complaint against Jaclynn Fritsche on summary
judgment. The jury found Juan Gomez had not proven his claim for loss of
services, society, and consortium from his wife, Gerardina Gomez. For these
reasons, we refer to Gerardina Gomez as plaintiff and to Allison M. Fritsche as
defendant.
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Brunswick. The vehicles collided. Neither weather nor lighting conditions
contributed to the accident. The parties disputed liability.
Easton Avenue had two traveling lanes in each direction. Plaintiff
testified at trial that after leaving work in Somerset, she drove on Easton Avenue
toward her New Brunswick residence for approximately twenty minutes before
the accident, all the time staying in the right-hand, curb lane. She explained:
"Yes, I was going on the right lane, straight. And this lady, I didn't see, I didn't
see her because it was very fast and she hit me." Plaintiff added: "So then I right
away took control of the car and that's why I swerved immediately to the right
because I was trying to avoid hitting the cars on the left side. And that's why I
got up on the curb."
In contrast, defendant testified that after turning right from Castleton
Avenue onto the curb lane of Easton Avenue, the Toyota driven by plaintiff
veered quickly from the left lane, closest to the centerline, into the right lane,
catching defendant's front bumper, which was ripped off during the accident.
She explained to the jury:
So while I was at the stop at Castleton going onto
Easton Avenue, there were a few cars that were going
by so I had let them go. And then from that stop, I had
made with my signal on, had made a right onto Easton
Avenue, with a clearance in the right lane, the left lane
still had a few cars in it, but the right lane was clear for
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me to pull through. I made a right from the stop onto
Easton Avenue and as I was accelerating forward onto
Easton, I had a car come across me, and impacted the
front left of my car and ended up in front of me, up near
the curb.
Plaintiff called the investigating police officer as a witness. Over
defendant's objection, the officer testified not only about what plaintiff and
defendant said at the scene, as written in his report, but also about the
conclusions he reached. He quoted plaintiff as saying "that as she traveled south
on Easton Avenue, [the vehicle driven by defendant] suddenly came out of
Castleton Ave. and crashed into her car. [Plaintiff] indicated [defendant]
appeared to just come out into the roadway without stopping." The officer
quoted defendant as saying "that she thought it was clear to enter the roadway
and didn't see [plaintiff's vehicle]."
The court permitted plaintiff to elicit this opinion from the officer:
Q. Now, as a result of your accident investigation
and the preparation of your report, did you reach a
conclusion relative to your investigation?
A. Yes.
Q. Okay. Can you tell us what that conclusion is?
A. I'll read my conclusion. The investigation
revealed that [defendant] failed to yield to [plaintiff's
vehicle] and was inattentive by not ensuring that the
roadway was clear prior to entering.
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On cross-examination, when confronted with the statement attributed to
her in the police report, defendant acknowledged she did not see plaintiff 's
vehicle before impact but reiterated plaintiff's vehicle came from her left.
The parties also disputed the nature and extent of plaintiff's injuries.
Plaintiff had filed a motion in limine to preclude defendant from mentioning in
her opening statement or during her cross-examination of plaintiff anything
about two previous accidents plaintiff had been involved in, one that occurred
in 1994, and the other in 2000. Plaintiff had injured her neck and back in the
1994 accident. A doctor had written in a report that plaintiff had suf fered
permanent injuries to her neck and back and would have ongoing pain and
difficulty with both.
The court granted plaintiff's motion. The court determined that any
probative impeachment value of the evidence—plaintiff had previously
sustained permanent injuries to the same body parts for which she was presently
seeking compensation for permanent injuries—was substantially outweighed by
the risk of undue prejudice, "its remoteness in time, its confusion of the issues,
and it would mislead the jury." In response to defense counsel's specific
question, the court ruled that even if plaintiff testified she never had any
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problems with her neck, back, or shoulder, defendant could not impeach her with
evidence of the allegedly permanent injuries she previously sustained.
Plaintiff and her treating physician testified about plaintiff's injuries and
her course of treatment. Plaintiff testified that in the days, months, and years
leading up to the accident, she had no pain in her neck, shoulder, or back.
Plaintiff was taken by ambulance from the accident scene to a hospital
emergency room where a CT scan of her head was unremarkable. She was
treated and released. Four days later, she came under the care of Dr. David
Weiss, who is board certified in orthopedics and in performing independent
medical examinations.
Dr. Weiss had x-rays taken of plaintiff's cervical spine, lumbar spine, and
left shoulder. They were normal. The doctor treated plaintiff for ongoing
problems involving her neck or cervical spine, her low back or lumbar spine,
and her left shoulder. The doctor diagnosed plaintiff with post-traumatic
headaches, cervical and lumbar sprain and strain patterns, and impingement
syndrome of the left rotator cuff.
Plaintiff's treatment initially consisted of medication and physical
therapy. Plaintiff had physical therapy through August of the following year,
2015, but during the interim, when her symptoms did not resolve, Dr. Weiss had
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her undergo additional diagnostic testing. December 2014 magnetic resonance
imaging (MRI) studies of plaintiff's left shoulder were negative. May 2015
MRIs of plaintiff's cervical and lumbar spine were the subject of disputed expert
testimony. Dr. Weiss testified the cervical MRIs showed herniated discs at C5-
6 and C7-T1, and the lumbar MRI showed a herniated disc at L5-S1.
In view of the MRI findings, and because plaintiff's symptoms did not
resolve, Dr. Weiss referred her to a pain management specialist. The specialist
gave her an injection—an epidural block—in her lower cervical spine. During
Dr. Weiss's testimony, he identified a spinal needle similar to the one used for
the injection.
Plaintiff testified she got some relief —for a few weeks—from her neck
pain from the epidural injection, but the pain eventually returned to its pre-
injection level. When she last saw Dr. Weiss in February 2016, she was still
experiencing pain in her neck, left shoulder, and her back. She continued to
experience these symptoms through the time of her trial. Due to her ongoing
problems, she had stopped lifting heavy objects at work. In addition, she
curtailed her household and social activities. She could no longer mop or carry
groceries. She could no longer move furniture and could no longer cook as long
as she had cooked before the accident. Plaintiff had enjoyed dancing, but with
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her pain, if she danced once or twice at family outings, she had to sit down and
could dance no longer.
Plaintiff also had difficulty sleeping. She said she had nightmares about
the accident. She also said that when she slept, her left arm would go numb, her
left shoulder would hurt, and her neck and the lower part of her back would also
hurt. Sometimes she would get headaches. Her intimacy with her husband was
not the same.
Dr. Weiss testified that his final diagnosis was strain and sprain patterns
to plaintiff's neck and lower back; herniated discs in the neck at C5-6 and C7-
T1, and a herniated disc at L5-S1; radiculitis—the complaint of radiating pain
going down one's arm or leg—in both the cervical and lumbar spine; and a labral
tear to the left shoulder, as well as subacromial bursitis to the left shoulder. In
the doctor's opinion, these injuries were permanent. Although Dr. Weiss
believed plaintiff would continue to experience episodes of neck pain, lower
back pain, and left shoulder pain, and would have some restrictions of activities
of daily living and working, he did not believe she was a surgical candidate.
Defendant's expert, Dr. Kevin Egan, an orthopedic surgeon, had opinions
quite different from those held by Dr. Weiss. Dr. Egan examined plaintiff and
reviewed plaintiff's medical records, including the MRI studies. He did not see
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evidence of herniated discs on the cervical MRI studies. He did see evidence of
bulging discs. He saw no evidence of a cervical sprain or strain when he
examined plaintiff on March 7, 2017. According to Dr. Egan, the lumbar MRI
studies showed "some minimal, age-related degenerative processes at multiple
levels, particularly at L4/5." These changes were not caused by trauma.
Dr. Egan told the jury that the treatment plaintiff received was "a normal
treatment program for a temporary soft tissue injury." The injuries were
temporary, meaning they were treated for a while, and they resolved. He
explained that at the conclusion of plaintiff's treatment, she became
asymptomatic and needed no additional treatment. She had excellent mobility
in her neck and back when he examined her, with no evidence of pain or
discomfort "on any of the examination components[.]" He saw no
musculoskeletal dysfunction. In short, there was no evidence during his
examination or in any of the medical records he reviewed to support a claim of
permanent injury.
During plaintiff's closing argument, her attorney made several statements
defense counsel thought were objectionable. The first time she objected,
however, the court instructed her not to object during her adversary's closing
A-3977-17T3
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argument. The record reveals the following, beginning with the comments that
prompted the objection.
[Plaintiff's Counsel]: Now, we talk about harm, we talk
about responsibility for the harm. I'm just going to
mention briefly, I, the defendant came here, she
testified about her story and then she left. She's not here
to see this through, ladies and gentlemen, not like the
plaintiff, Gerardina Gomez.
[Defense Counsel]: Objection, Your Honor.
[Plaintiff's Counsel]: She's not.
[Defense Counsel]: Sidebar, please.
[Plaintiff's Counsel]: With me?
Counsel proceeded to sidebar, where the following exchange occurred:
[Defense Counsel]: Your Honor, I'm going to object
during plaintiff counsel's closing however to assume
that she is not here for any reason, you know, or to have
them assume that she's, hasn't, she won't be because she
doesn't want to –
THE COURT: First of all let me, let me lay the
ground rules down. I should have mentioned this
earlier, there's no objections in closing argument. Now
that you've done it, I suggest it's, it's closing argument.
He's entitled to argue and if he wants to put that
inference out there and draw an inference it's fair game.
I don't know why she's here, she's not here, but, you
know, I don't understand the objection and it's
overruled.
A-3977-17T3
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Defense counsel heeded the court's admonition. In doing so, she did not
immediately object when plaintiff's counsel suggested through a rhetorical
question that the jurors place themselves in plaintiff's situation:
And one of the things that Dr. Weiss did for her was to
send her for her neck pain to a pain management doctor.
And Dr. Weiss testified for you about that procedure.
Do you think, [l]adies and gentlemen, people go
to doctors to have needles like this put in their spine if
they're not experiencing pain? Would you submit to
having a needle of this nature put in your spine if you
weren't having neck pain? I submit to you, ladies and
gentlemen, you wouldn't do that. You do that because
you're having pain, you want relief, that's the whole
point. You don't do this just because you want to have
somebody stick a needle in your back when you could
potentially have a problem as a result of the procedure.
Dr. Egan said, oh, this is an office procedure. I think
the plaintiff and Dr. Weiss testified, it's a surgical
procedure, this is serious stuff.
Following the verdict, defendant filed a motion for a new trial, which the
trial court denied. This appeal followed.
II.
A.
On appeal, defendant argues the trial court committed the following
errors: prohibited her from impeaching plaintiff on her prior accidents and
treatment; permitted the investigating officer to give an opinion on fault;
A-3977-17T3
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prohibited her from objecting to plaintiff's closing argument; and permitted
plaintiff to make improper remarks during her closing argument. Defendant
contends that separately or cumulatively, the errors require reversal. She
contends for these reasons, the trial court erroneously denied her motion f or a
new trial.
Plaintiff responds that the court properly exercised its discretion when it
precluded plaintiff from examining either of the medical experts about her
previous accidents and injuries. She emphasizes that the investigating police
officer never used the word "fault" when he explained to the jury the conclusions
he drew from his investigation. Rather, he did little more than summarize the
statement made to him by defendant. Plaintiff insists her closing statement to
the jury does not warrant a new trial on either liability or damages.
III.
We begin by reviewing two of the trial court's rulings: the first prohibiting
defendant from presenting evidence of plaintiff's prior permanent injuries, the
second permitting plaintiff to present the opinion testimony of the police officer.
As a general matter, trial courts have considerable discretion in determining
whether proffered evidence is relevant, and if so, whether it should be excluded
under N.J.R.E. 403 because its probative value is substantially outweighed by
A-3977-17T3
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other considerations such as the risk of undue prejudice, confusion of issues, or
misleading the jury. Wymbs v. Twp. of Wayne, 163 N.J. 523, 537 (2000). We
thus review such decisions for abuse of discretion. Estate of Hanges v. Metro.
Prop. & Cas. Ins. Co., 202 N.J. 369, 383-84 (2010). Abuse of discretion occurs
when a trial court's ruling results in "manifest error or injustice," Hisenaj v.
Kuehner, 194 N.J. 6, 20 (2008) (quoting State v. Torres, 183 N.J. 554, 572
(2005)), or when "there has been a clear error of judgment," State v. Brown, 170
N.J. 138, 147 (2001) (quoting State v. Marrero, 148 N.J. 469, 484 (1997)).
A.
We first consider under our standard of review the trial court's in limine
ruling that precluded defendant from using the contents of an old medical report
to impeach plaintiff. Defendant represented to the court that during discovery
she received a doctor's narrative report in which the doctor opined plaintiff had
"sustained a permanent injury and would have ongoing pain and difficulty with
both her neck and back" as a result of a previous accident. Defendant noted
plaintiff had testified at her deposition she was involved in only one previous
accident and the only injuries she sustained were to her right arm. Defendant
insisted she had the right not only to impeach plaintiff with extrinsic evidence,
but also to examine Dr. Weiss about plaintiff's previous accident because "Dr.
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Weiss note[d] [plaintiff] was involved in a prior motor vehicle accident in April,
1999."
The introduction of such evidence presents many issues. As a threshold
matter, the report concerning injuries plaintiff sustained in a prior accident was
hearsay. Hearsay is inadmissible except as provided in our Rules of Evidence.
N.J.R.E. 802.
There is no blanket cross-examination exception to N.J.R.E. 802. To the
contrary, "[h]earsay . . . not admissible in chief, may not be elicited by cross-
examination." State v. De Paola, 5 N.J. 1, 13 (1950). For that reason, it would
have been improper for defendant to place before the jury—through cross-
examination of plaintiff—an extrinsic, decades-old expert's opinion. Experts'
reports are statements, "but, unlike answers to interrogatories, are not statements
of a party and therefore cannot be treated as an admission simply because a party
furnished them in discovery." Corcoran v. Sears Roebuck & Co., 312 N.J.
Super. 117, 126 (App. Div. 1998) (citing Skibinski v. Smith, 206 N.J. Super.
349, 353 (App. Div.1985)). Additionally, it is improper to cross-examine a
plaintiff, who is not a medical expert, about the opinion of a medical expert. We
note that we have not been asked to review the use for impeachment purposes
A-3977-17T3
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of statements in the old report attributable to plaintiff. That was not an issue
argued to, or addressed by, the trial court. 2
Defendant also argued that Dr. Weiss "note[d] that [plaintiff] was
involved in a prior motor vehicle accident in April, 1999." Defendant asserted
that "because that's in his report we have every right to ask him about that." The
evident deficiency in such a conclusory assertion is its invocation of no authority
other than a self-proclaimed right.
There is a difference between experts reviewing material on one hand, and
relying on material to form opinions on the other. Excluding examination at
trial under N.J.R.E. 403 would more likely occur in the former instance. That
is so because N.J.R.E. 703 provides that the facts or data upon which an expert
bases an opinion "need not be admissible in evidence" if such facts are "of a
2
Nor have we been asked to address whether the trial court erred in ruling
defendant could not impeach plaintiff with evidence of the prior accident even
if plaintiff testified she had never previously been injured. Such a ruling would
appear to impede a search for the truth. We fail to discern, for example, why if,
hypothetically, plaintiff denied prior accidents or injuries, defendant could not
question her about events such as the time and location of the previous accident
and whether she received certain treatment, without placing the content of a
medical report before the jury. In any event, the record before us is not entirely
clear on this point. If the trial court intended to bar defendant from commenting
on these issues in her opening statement, so that—upon defendant's application
out of the jury's presence—the court could rule on the specific issue in the
context in which it unfolded at trial, then there was nothing inappropriat e about
the court's ruling.
A-3977-17T3
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type reasonably relied upon by experts in the particular field in forming opinions
or inferences upon the subject[.]" If an expert has relied upon such facts or data,
the expert may be cross-examined about them. N.J.R.E. 703 may not, however,
be used as "a vehicle for the wholesale [introduction] of otherwise inadmissible
evidence." State v. Vandeweaghe, 351 N.J. Super. 467, 481 (App. Div. 2002)
(alteration in original) (quoting State v. Farthing, 331 N.J. Super. 58, 79 (App.
Div. 2000)). That would occur if an expert were permitted to be examined or
cross-examined about every document the expert reviewed, even if the expert
did not rely upon facts or data in the document to form an opinion. This presents
an issue that falls within a trial court's discretion.
Here, exposing the old report's contents to the jury presented other
potential problems, particularly because we do not know the circumstances
under which the doctor wrote it. If plaintiff requested the report to prove she
sustained permanent injuries for which she sought compensation in a lawsuit,
the report was relevant. After all, how many times should a plaintiff be
permitted to recover damages for the same permanent injuries to the same body
parts? Yet, if there had been a lawsuit, and if plaintiff had been examined by a
defense doctor who concluded she had not sustained permanent injuries, could
plaintiff have utilized the defense doctor's report to show there was a difference
A-3977-17T3
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of opinion about whether she sustained a permanent injury, and thus bolstered
her testimony in the current case?
Defendant did not intend to call as a witness the doctor who wrote the
decades-old report. She did not explain the circumstances under which the old
report had been written. She apparently intended to impeach plaintiff by
demonstrating the medical opinion contained in the old report was inconsistent
with plaintiff's deposition testimony, and by questioning plaintiff's treating
physician about the old report, even though the treating physician did not rely
upon the facts and data in the old report to form his opinion in the present case.
Considering all the foregoing circumstances, the trial court acted well
within its broad discretion when it prohibited defendant from utilizing the old
report at trial.
B.
We reach a different conclusion concerning the police officer's opinion.
It should not have been admitted, and the trial court misapplied both the law and
its discretion in doing so.
In general, "a police report is admissible as a record of a regularly
conducted activity, commonly known as a business record, N.J.R.E. 803(c)(6),
and as a public record, N.J.R.E. 803(c)(8)." Manata v. Pereira, 436 N.J. Super.
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330, 345 (App. Div. 2014). If properly authenticated, police reports may be
admissible to show, for example, a person spoke to an officer, ibid., or that a
report of a crime was made and the time of the report, State v. Lungsford, 167
N.J. Super. 296, 310 (App. Div. 1979).
If a proponent seeks to admit the report—or the officer's testimony to its
content—to prove the truth of a person's statement contained in the report, the
person's statement is embedded hearsay and requires a separate hearsay
exception. N.J.R.E. 805; Manata, 436 N.J. Super. at 345; Konop v. Rosen, 425
N.J. Super. 391, 402 (App. Div. 2012). Thus, a party involved in an automobile
accident cannot elicit at trial through the testimony of the investigating police
officer the statement he or she gave to the officer at the time of the accident,
absent a separate hearsay exception. Neno v. Clinton, 167 N.J. 573, 585 (2001);
Rice v. Miller, 455 N.J. Super. 90, 107 (App. Div. 2018) (noting "[i]n Neno, 167
N.J. at 585, the Supreme Court clearly prohibited the use of testimony by a
police officer as such a conduit of hearsay by other declarants").
Our appellate courts have also proscribed the admission of police
testimony—lay or expert—on the issue of who was at fault in an automobile
accident. As a threshold matter, to present a police officer as an expert, the
officer must qualify as such under N.J.R.E. 702. Equally important, the
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proponent of a police officer's expert testimony must provide proper notice of
the intent to present the officer as an expert:
The pretrial rules of our civil courts have specific
requirements for parties to designate expert witnesses
during the course of discovery. See generally R. 4:17–
4(e) (requiring litigants to furnish opposing parties with
the names and reports of experts and treating physicians
who are involved in the matter); R. 4:17–7 (imposing
an obligation for parties to amend their interrogatory
answers "not later than [twenty] days prior to the end
of the discovery period"). The obvious purpose of these
disclosure requirements for anticipated experts is to
promote fair advocacy and to discourage
gamesmanship or unfair surprise at trial.
[Rice, 455 N.J. Super. at 105.]
A police officer may be permitted to express a lay opinion. Lay opinion
testimony is admissible "if it (a) is rationally based on the perception of the
witness and (b) will assist in understanding the witness' testimony or in
determining a fact in issue." N.J.R.E. 701. "The central purpose of N.J.R.E.
701 is to ensure that lay opinion is based on a sufficient foundation, and not
inadmissible hearsay." Rice, 455 N.J. Super. at 104 (citing Biunno, Weissbard
& Zegas, Current N.J. Rules of Evidence, cmt. 1 on N.J.R.E. 701 (2018)). Thus,
"lay opinion testimony is limited to what was directly perceived by the witness
and may not rest on otherwise inadmissible hearsay." State v. McLean, 205 N.J.
438, 460 (2011). For that reason, we have held that a law enforcement officer
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went "clearly beyond the scope of lay opinion admissible under N.J.R.E. 701"
when he expressed an opinion concerning fault for an auto-pedestrian accident
though he "had no personal observation or recollection of the accident."
Gonzales v. Hugelmeyer, 441 N.J. Super. 451, 460 (App. Div. 2015).
It is thus settled that "a police officer cannot provide an opinion at trial
when that opinion is based primarily on the statements of eyewitnesses." Ibid.
(quoting Neno, 167 N.J. at 585). Any other conclusion . . . would allow an
officer to subvert the hearsay prohibition[.] Id. at 460-61 (quoting Neno, 167
N.J. at 585); accord, Rice, 455 N.J. Super. at 106.
That is what happened here. Plaintiff argues that the officer never used
the word "fault." We reject this argument. Although couched in terms of his
"conclusions," the questions and answers leading up to the officer's opinion, the
question that elicited the opinion, and the officer's response, all made clear that
the officer was expressing his opinion that defendant was at fault for causing the
accident.
Plaintiff's attorney compounded the error when he not only emphasized
the point in summation, but also suggested to the jury that defendant did not
want the jurors to hear the officer's testimony:
But it goes, it goes further. Police Officer Bird
testified, counsel has a problem with Of[ficer] Bird.
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You know, the plaintiff subpoenaed Of[ficer] Bird to
come here, to tell you about his accident investigation.
The defendant didn't want him here, the defense didn't
want him to come and, and tell you, ladies and
gentlemen, about how the accident happened according
to his investigation. He came, this guy has no interest
in this case. He's an officer, a sworn police officer
doing his job, he doesn't . . . have any bias one way or
another. He conducted an investigation and sure, he's
done hundreds of reports, of course he doesn't
remember this accident, ladies and gentlemen. If he
did, he'd be a pretty special police officer but he doesn't
remember and rightfully so. He reviewed his police
report as he sat here before you and told you the results
of his police investigation. And not only told you that
but told you what he was told by the drivers of the
vehicle on that particular day.
And you're going to have this report in evidence
and you can see it along with his diagram of what he
believes happened. He has in here clearly, I do not have
my glasses but I – [defendant] stated that she thought it
was clear to enter the roadway and didn't see vehicle
one.
Defense counsel "ha[d] a problem" with the officer's testimony because
the officer expressed an improper lay opinion; not because, as plaintiff's counsel
suggested, she did not want the jury to hear competent testimony concerning the
material issues in the case. The police report with the officer's opinion as to
fault, his diagram of the accident based on hearsay, and all the report's other
embedded hearsay was admitted in evidence for the jury's consideration.
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Defendant should indeed have objected to this evidence, which was improperly
admitted for the jury's consideration.
Plaintiff argues the photographic evidence was compelling as to fault. If
she is suggesting that in view of other evidence the officer's improper testimony
and the improper admission in evidence of the police report were harmless, we
disagree. The parties were the only eyewitnesses to the accident. As plaintiff's
counsel suggested in summation, the officer was a neutral witness with no stake
in the case. For that reason, and for the other reasons plaintiff 's counsel
emphasized the officer's testimony in summation, we cannot conclude the
improper admission of the officer's testimony and report were not clearly
capable of producing an unjust result. This is especially so in this case, where
the jury's assessment of even ten percent comparative negligence against
plaintiff would have reduced damages by more than $10,000.
IV.
We turn now to defendant's argument concerning plaintiff's summation.
A.
Defendant first contends the court erred by prohibiting her from objecting
during plaintiff's closing remarks to the jury. There is precedent for the
proposition that challenging an adversarial attorney's improper closing remarks
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following the closing, rather than during it, timely alerts the court to the
improprieties and provides the court with an opportunity to cure them. State v.
Farrell, 61 N.J. 99, 106 (1972); State v. Bauman, 298 N.J. Super. 176, 207 (App.
Div. 1997).
Nonetheless, a party may be precluded from claiming prejudice absent a
timely objection to improper remarks made during a closing argument. Farrell,
61 N.J. at 106. "Absence of contemporaneous objection may lead to a fair
inference that 'in the context of the trial the error was actually of no moment.'"
State v. McGuire, 419 N.J. Super. 88, 149-50 (App. Div. 2011) (quoting State
v. Nelson, 173 N.J. 417, 471 (2002)). In McGuire, in response to defendant's
claim that the judge discouraged objections during closing arguments, we noted,
"[t]o preserve a proper record, a trial judge should not admonish counsel against
making appropriate objections." Id. at 150 n.7. Moreover, the promptness of a
curative instruction is one gauge of its effectiveness. See State v. Wakefield,
190 N.J. 397, 440 (2007). A prohibition against contemporaneous objections
could result in an attorney making an unchecked string of improper and
prejudicial remarks during a closing argument.
Although most precedent on the issue appears in the context of criminal
cases, the precedential underpinnings apply to civil cases as well. We
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understand the concern that some attorneys might be tempted to abuse the
process by making meritless or even frivolous objections to disrupt the flow of
an adversary's closing remarks. We have confidence that our trial courts can
swiftly deal with any such abuses. We thus reiterate that a trial judge should
not admonish counsel against making appropriate contemporaneous objections.
B.
We next address defendant's objections to specific remarks plaintiff's
counsel made during closing argument. They include the statement that
defendant did not return after testifying because unlike plaintiff, defendant did
not want to see the case through, and defense counsel's suggestion about why
the jurors would or would not have an epidural injection. As previously noted,
plaintiff's counsel also disparaged defense counsel by suggesting she had a
problem with, and did not want the jury to hear, the police officer's conclusion
about the accident.
A common theme runs through our cases concerning closing arguments.
It is the same theme that underlies the Rules of Court and the Rules of Evidence:
cases are to be decided "upon real merits of the causes and not upon the skill
and maneuvering of counsel." Abtrax Pharm., Inc. v. Elkins–Sinn, Inc., 139 N.J.
499, 512 (1995) (quoting Oliverio v. Porter Hayden, Co., 241 N.J. Super. 381,
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387 (App. Div. 1990)). Thus, "counsel is allowed broad latitude in
summation[.]" Bender v. Adelson, 187 N.J. 411, 431 (2006). Yet, though
"arguments are expected to be passionate," they may not include unfair and
prejudicial appeals to emotion. Jackowitz v. Lang, 408 N.J. Super. 495, 504-05
(App. Div. 2009).
Arguments must be based in truth, and "[c]ounsel may not 'misstate the
evidence nor distort the factual picture.'" Condella v. Cumberland Farms, Inc.,
298 N.J. Super. 531, 534 (Law Div. 1996) (quoting Matthews v. Nelson, 57 N.J.
Super. 515, 521 (App. Div. 1959)). "Although attorneys are given broad latitude
in summation, they may not use disparaging language 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., P.A., 373 N.J. Super. 154, 171
(App. Div. 2004) (citations omitted).
It is also improper to invoke the "golden rule," that is, to ask the jury to
assess what they would want as compensation as if they had suffered the injuries
or to decide the value of the case based upon what the pain and suffering would
be worth to them. Botta v. Brunner, 26 N.J. 82, 94 (1958).
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Here, plaintiff's counsel disparaged defense counsel by suggesting she did
not want the jury to hear evidence—evidence that should not have been
admitted. Plaintiff's counsel also disparaged defendant by suggesting she did
not want to see the case through. Although plaintiff's counsel did not invoke the
"golden rule" by asking the jurors to award what they would want as
compensation, he improperly suggested that they should decide plaintiff's
credibility by considering, among other things, what their motivation would be
for undergoing certain medical treatment in similar circumstances. All of these
comments were improper. Arguably, they could have been cured following a
contemporaneous objection. Not only had the trial court prohibited that course
of action, but the court took no corrective action at all, and overlooked its error
when defendant filed her post-verdict motion.
V.
"[W]e have recognized that the cumulative effect of small errors may be
so great as to work prejudice, and we have not hesitated to afford the party
suffering that prejudice relief where it has been warranted." Pellicer ex rel.
Pellicer v. St. Barnabas Hosp., 200 N.J. 22, 53 (2009) (citations omitted). Here,
with the possible exception of the police officer's improper opinion testimony,
none of the improprieties alone would warrant a new trial. Cumulatively, they
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do. The trial court misapplied its discretion by denying defendant's motion for
a new trial. Accordingly, we vacate the order of judgment and remand for a new
trial.
Vacated and remanded. We do not retain jurisdiction.
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