SCOTT RICKABAUGH VS. ALAURA P. JONES (L-0950-14, BURLINGTON 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NOT FOR PUBLICATION WITHOUT THE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-5429-16T1
SCOTT RICKABAUGH,
Plaintiff-Appellant,
v.
ALAURA P. JONES and
DOROTHY JONES,
Defendants-Respondents.
______________________________
Argued September 26, 2018 – Decided January 11, 2019
Before Judges Nugent and Mawla.
On appeal from Superior Court of New Jersey, Law
Division, Burlington County, Docket No. L-0950-14.
Mark J. Molz argued the cause for appellant.
Francis X. Ryan argued the cause for respondents
(Green, Lundgren & Ryan, PC, attorneys; Francis X.
Ryan, on the brief).
PER CURIAM
This is an automobile negligence action. A jury unanimously determined
that Plaintiff, Scott Rickabaugh, who was subject to the limitation on lawsuit
threshold, N.J.S.A. 39:6A-8(a), had not "sustained a [permanent] injury
proximately caused by the . . . motor vehicle accident." Plaintiff appeals from
an order that denied the motion for a new trial. He contends the trial court erred
by permitting a medical expert to read inadmissible hearsay statements from his
report under the guise of refreshing his recollection. He also contends the trial
court compounded the error by making a prejudicial remark when his attorney
argued the point while making his objection at trial. Last, plaintiff contends he
proved he sustained a permanent injury. Finding no abuse of discretion by the
trial court and no merit in plaintiff's challenge to the verdict, we affirm.
This action arose when an automobile that defendant Dorothy Jones
owned and defendant Alaura P. Jones was driving "rear-ended" an automobile
plaintiff was driving. During trial, the parties presented conflicting expert
medical testimony as to whether plaintiff had sustained a permanent injury in
the accident. The court dismissed the complaint against Dorothy Jones at the
close of all the evidence. Following the jury's verdict of no cause for action,
plaintiff moved for a new trial. The trial court denied the motion. Plaintiff
appealed.
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Plaintiff's primary contention on appeal concerns his objection to part of
the trial testimony of the defense medical expert, Roy B. Friedenthal, an
orthopedic surgeon. Dr. Friedenthal opined plaintiff suffered no permanent
injury as a result of the vehicular accident.
Dr. Friedenthal prepared an initial report after examining plaintiff. He
prepared several subsequent reports as the result of receiving and reviewing
additional records and information thereafter. Early in his trial testimony, Dr.
Friedenthal said he would need to refer to his initial report to refresh his
recollection while testifying. Plaintiff's counsel objected:
Q. [Defense Counsel]: And, Doctor, with this
exam being more than a year ago, [plaintiff's counsel]
brought up on voir dire that you've wrote reports for my
office?
A. I did.
Q. And would you need to use those reports
and reference those reports to refresh your recollection
when you're giving testimony here?
A. I will. I have the copies in front of me, I have the
record I reviewed, and I will refer to this nine-page
report to refresh my recollection.
[Plaintiff's Counsel]: Judge, I’m going to object.
Judge, he needs to testify from personal knowledge.
That’s a requirement of Rule 602.
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[Court]: Okay. The witnesses are allowed to refresh
their recollection based on information. So if you want
personal knowledge of all the records for this
individual, I have not seen a plaintiff's doctor - -
[Plaintiff's Counsel]: Judge, I'm going to object to
the colloquy.
[Court]: - - nor the defendant's doctor - -
[Plaintiff's Counsel]: I object to the colloquy.
[Court]: - - not refer to records. And I am speaking
...
[Plaintiff's Counsel]: I understand, Judge, in front of
the jury.
[Court]: So I am going to allow him to refresh his
recollection and testify as to this evaluation.
[Plaintiff's Counsel]: May I respond?
[Court]: Yes.
[Plaintiff's Counsel]: Judge, Rule 803(c)(5) requires
him to admit that he has no personal knowledge before
he can refresh his recollection with the report.
[Court]: I have not seen any - - he has the personal
knowledge that's recorded.
[Plaintiff's Counsel]: Judge, counsel just said in
front the jury that he can't remember and he's going to
refer to his report. That was the issue that - - that has
already risen.
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[Defense Counsel]: And, Your Honor, I would
suggest that it's already been ruled upon.
[Plaintiff's Counsel]: It actually was not ruled upon,
Judge. I've prepared a motion, but I haven't filed it yet.
[Court]: I don't have that motion.
[Plaintiff's Counsel]: Correct.
[Court]: I will allow the doctor to testify. It's
reasonable.
[Plaintiff's Counsel]: He's going to read from his
report, Judge?
[Court]: I don't - - he hasn't read from his report.
He's referring to it. I think even your police officer had
to refer to his report.
[Plaintiff's Counsel]: Not my police officer, Judge,
it's somebody that we subpoenaed.
[Court]: Okay.
[Plaintiff's Counsel]: Yes, Your Honor.
[Court]: But even the police officer was allowed to
refer to this report to refresh his recollection and testify,
so I'm going to allow this doctor to do the same.
[Plaintiff's Counsel]: Thank you, Judge. I'll object
if I feel the need.
[Court]: All right.
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Defense counsel continued with the direct examination of Dr.
Friedenthal. The following occurred:
Q [Defense Counsel]: And, Doctor, at the
time of your evaluation of March 10, 2016, like you told
us, did you take a history from this plaintiff.
A. I did.
Q. And what was that history?
A. He told me that he sustained injuries in a motor
vehicle accident of April 20, 2012. He told me that the
vehicle he was driving - -
[Plaintiff's Counsel]: Objection to reading from the
report, Judge. He had his eyes down, he was clearly
reading from his report. Judge, it's against the rules.
[Court]: It is not against the rules.
[Plaintiff's Counsel]: [N.J.R.E.] 602 requires
personal knowledge for a witness to be qualified to
testify. It’s a very basic part of our jurisprudence.
[Court]: Okay. A very basic part of our
jurisprudence is expert witnesses may testify and rely
on the information supplied by the witness and other -
- other reports.
[Plaintiff's Counsel]: I agree.
[Court]: So that's what this individual is doing.
Please - - I will allow him to refer to his report.
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[Plaintiff's Counsel]: That's not what's happening,
Judge. He's reading from his report. It's clear as day.
It violates Rule - -
[Court]: It does not violate the rule. It does not
violate the rule, counsel. Your objection is noted - -
[Plaintiff's Counsel]: Rule 602, Judge - -
[Court]: - - and I'll allow this witness to continue to
testify.
[Plaintiff's Counsel]: Thank you, Judge.
Later, when Dr. Friedenthal began to explain how he examined and
evaluated plaintiff's complaints of back pain, the following exchange occurred:
[Plaintiff's Counsel]: Judge, I'm going to object to
the reading. The doctor has clearly got his head down
and he's just reading his report into the record. It’s not
permissible under our rules to do that.
[Court]: This is expert testimony, [counsel].
[Plaintiff's Counsel]: It is expert testimony.
[Court]: I know. The - -
[Plaintiff's Counsel]: It has to be based upon
personal knowledge, according to the rules, [N.J.R.E.]
602. And I'm saying there’s no personal knowledge
here.
[Court]: no, expert testimony is based on
information supplied by others, including your client.
So he's - -
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[Plaintiff's Counsel]: But that - - that's - -
[Court]: - - providing the information and the
evaluation based on his observation of your client. The
--
[Plaintiff's Counsel]: But he still has to testify from
personal knowledge, he can't just read a report.
Otherwise, there wouldn't be any reason to have a trial,
we would just submit reports. And clearly he has no
personal knowledge.
[Court]: He has personal knowledge.
[Plaintiff's Counsel]: He doesn’t - -
[Court]: He examined him - -
[Plaintiff's Counsel]: - - because he has to read it.
[Court]: He's - -
[Plaintiff's Counsel]: He can’t remember.
[Court]: Okay. Counsel, he is referring to his
report. Your client supplied him with the information.
He is providing the observations that he made. You can
cross-examine him if there is anything other in his
report, or I'm sure you have other ways of cross-
examining him. He may refer to his report. I've already
ruled, and your objection is noted.
In his first and second points on appeal, plaintiff cites N.J.R.E. 612 — a
rule he did not cite to the trial court — and argues the rule "precludes a party
who refreshes the memory of a witness to introduce the material used to refresh
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memory as substantive evidence on any issue." He also asserts the comments
the trial court made when overruling his objection were prejudicial to his case.
We begin with several fundamental principles concerning the conduct of
trials. Trial courts are required to "exercise reasonable control over the mode
and order of interrogating witnesses and presenting evidence." N.J.R.E. 611(a).
They are to do so "to (1) make the interrogation and presentation effective for
the ascertainment of the truth, (2) avoid needless consumption of time, and (3)
protect witnesses from harassment or undue embarrassment." Ibid. For these
reasons, among others, trial courts are "vested with broad discretion in
evidentiary matters as well as matters affecting the conduct and proceedings in
a trial." Barber v. Shop-Rite of Englewood & Assocs., Inc., 393 N.J. Super.
292, 298 (App. Div. 2007) (citing State v E.B., 348 N.J. Super. 336, 344 (App.
Div. 2002)).
Trial attorneys must make timely and correct objections to preserve issues
for appellate review. "For the purpose of reserving questions for review or
appeal . . ., a party, at the time the ruling . . . is made . . ., shall make known to
the court specifically . . . the party's objection . . . and the grounds therefor." R.
1:7-2. An objection should be "clearly raised on the record at the time the trial
court [can] explor[e] the issue with trial counsel." State v. T.J.M., 220 N.J. 220,
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231 (2015). Tepid, unspecific complaints are inadequate. See ibid. Once the
court has ruled on an objection, "counsel must abide by [the court's] ruling,
saving his objections for appeal." Greenberg v. Stanley, 51 N.J. Super. 90, 102
(App. Div. 1958), aff'd in part, rev'd in part, 30 N.J. 485 (1959).
When a party objects on an incorrect ground or fails to specify the basis
for an objection, we may review the issue for plain error. See State v. Nunez,
436 N.J. Super. 70, 76 (App. Div. 2014); Green v. Gen. Motors Corp., 310 N.J.
Super. 507, 531-32 (App. Div. 1998). Appellate courts need not, however,
consider issues raised for the first time on appeal. "It is a well-settled principle
that our appellate courts will decline to consider questions or issues not properly
presented to the trial court when an opportunity for such a presentation is
available 'unless the questions so raised on appeal go to the jurisdiction of the
trial court or concern matters of great public interest.'" Nieder v. Royal Indem.
Ins. Co., 62 N.J. 229, 234 (1973) (quoting Reynolds Offset Co., Inc. v. Summer,
58 N.J. Super. 542, 548 (App. Div. 1959)).
Considering the trial record in light of these legal principles, we conclude
the trial court did not abuse its broad discretion when it overruled plaintiff's
incorrect objections to Dr. Friedenthal's testimony.
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Plaintiff first objected to Dr. Friedenthal's testimony on the ground he
lacked personal knowledge, a prerequisite to a witness testifying at a trial. But
the rule concerning personal knowledge, N.J.R.E. 602, begins with an exception
for expert testimony: "Except as otherwise provided by Rule 703 (bases of
opinion testimony by experts), a witness may not testify to a matter unless
evidence is introduced sufficient to support a finding that the witness has
personal knowledge of the matter. . . ." Dr. Friedenthal had been qualified as an
expert, so N.J.R.E. 602's exception to the requirement of personal knowledge
applied to the bases of his opinions. In addition, it was self-evident the doctor
had personal knowledge of the examination he performed.
Plaintiff also objected to the doctor referring to his report because
"[N.J.R.E.] 803(c)(5) requires him to admit that he has no personal knowledge
before he can refresh his recollection with the report." This statement appears
to confuse several concepts, including those of past recollection recorded and
present recollection refreshed. N.J.R.E. 803(c)(5), entitled "Recorded
Recollection," sets forth the evidentiary elements a proponent must establish
before reading all or part of the content of the recorded statement into evidence.
The elements include insufficient present recollection of a matter of which the
witness had knowledge. Ibid. The rule does not, as plaintiff argued at trial,
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require the witness to "admit that he has no personal knowledge before he can
refresh his recollection."
In contrast, a witness may review a document to refresh his memory about
a past event, but doing so does not make the document or its content admissible
in evidence. See State v. Rajnai, 132 N.J. Super. 530, 540-41 (App. Div. 1975).
N.J.R.E. 612 — the rule plaintiff raises for the first time on appeal — governs
the use an adverse party may make of a writing if a witness "uses [the] writing
to refresh the witness' memory for the purpose of testifying."
The trial court properly sustained the erroneous objections plaintiff lodged
to Dr. Friedenthal's testimony. We glean that plaintiff was actually attempting
to prevent Dr. Friedenthal from reading the hearsay content of his report to the
jury in the guise of refreshing his recollection. During its exchange with
counsel, the trial court noted the doctor was not reading from his report, he was
merely referring to it. The court exercised reasonable control over the mode of
interrogating the witness. We discern no abuse of discretion in the manner in
which it did so. N.J.R.E. 611(a).
Plaintiff's remaining arguments are without sufficient merit to warrant
discussion in a written opinion. R. 2:11-3(e)(1)(E). We add only that his
suggestion he was prejudiced by a comment the court made during an exchange
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with his attorney over an objection is based on speculation and unsupported by
the record. Besides, the attorney bears some responsibility for the extended
exchange. Once a court has ruled on an objection, "counsel must abide by [the
court's] ruling, saving his objections for appeal." Greenberg, 51 N.J. Super. at
102. In this case, counsel did not adhere to this principle, but instead continued
to press his erroneous objections. In any event, consideration of the entire trial
record, including the court's instructions to the jury, leads to the conclusion the
jury returned its verdict based on its assessment of the evidence, uninfluenced
by the attorney's objections or the court's rulings on the objections.
Affirmed.
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