DAVID SOPRANO v. VITO GULLI, et al.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0544-04T20544-04T2

DAVID SOPRANO,

Plaintiff-Respondent,

and

FREMONT INSURANCE

COMPANY,

Plaintiff,

v.

VITO GULLI, ANTONIO LUCIA,

LUCIA CONSTRUCTION,

Defendants-Appellants.

_______________________________________

 

Argued September 19, 2005 - Decided

Before Judges Alley, C. S. Fisher and Yannotti.

On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Docket No. HUD-L-5139-02.

Edward L. Thornton argued the cause for appellant, Vito Gulli (Methfessel & Werbel, attorneys; Mr. Thornton, of counsel and on the brief).

Richard W. Wedinger argued the cause for respondent, David Soprano (Barry, McTiernan & Moore, attorneys (Mr. Wedinger and Diana LaPadula, on the brief).

PER CURIAM

Defendants Vito Gulli, Antonio Lucia and Lucia Construction appeal from a final judgment entered on July 28, 2004 in favor of plaintiff David Soprano, and an order entered September 14, 2004 denying defendants' motion for a new trial. We are convinced that two trial errors - the judge's failure to limit the testimony of plaintiff's expert to matters within the area of his expertise, and the impeachment of Gulli by questions pertaining to a prior criminal matter - so seriously compromised the jury's role as fact finder that the judgment represents a miscarriage of justice under the law. R. 4:49-1. For the reasons that follow, we reverse and remand for a new trial.

I.

This matter arises from an incident that occurred on September 20, 2000. On that date, plaintiff was employed as a mechanic by J & J Auto. A dump truck owned by Lucia Construction and driven by Gulli had broken down on Avenue E in Bayonne and a call was made to J & J requesting road service. Plaintiff and his brother responded to the call. Plaintiff testified that, when he arrived, Gulli told him that the truck had broken down. Plaintiff said that the hood of the truck was up and the carburetor cover was off. Plaintiff testified that Gulli did not tell him that he tried to start the engine, nor did Gulli tell him that he had poured gasoline into the carburetor.

Plaintiff climbed up onto the fender and knelt on the edge of the truck. He told Gulli to crank the engine. Plaintiff held the throttle body open and he did not see any gas flowing inside the carburetor, which indicated that the fuel pump or the gas filter was clogged. Plaintiff told Gulli to crank the engine again but the engine would not crank.

Plaintiff testified that he looked down and he saw on the frame of the truck a bottle of gasoline that was partially wrapped in a rag and about a quarter full. Plaintiff picked up the bottle of gasoline, unscrewed it, held the throttle body open and poured "about a mouthful" of gasoline into the carburetor. Plaintiff said he was holding down the throttle body with his right hand and was holding the bottle of gasoline on his left side. Plaintiff testified that the next thing he remembered was waking up in the hospital.

Gulli's deposition testimony was read into the record. Gulli stated that the dump truck had broken down in the past but he never tried to fix it because he is not a qualified mechanic. Gulli asserted that he never poured gasoline into any carburetor at any time, either with his own car or any of Lucia's trucks. Gulli also said that, before the incident, he had never seen anyone pour gasoline into a carburetor.

Gulli asserted that on the day in question, he returned from the dump, stopped for lunch and was proceeding "back to the job." Gulli was driving about five minutes when he began to have problems with the truck. It was hesitating and then stalled. Gulli said that there were no Snapple bottles in the vehicle. After trying to re-start the engine, Gulli called Antonio Lucia and spoke with his wife. He told her that "the truck was dead." Gulli went back to the truck and waited there for assistance. He did not lift the hood. He did not try to re-start the engine.

According to Gulli, when plaintiff arrived on the scene, he was carrying a bag of tools and a Snapple bottle that was full of gasoline. Gulli told plaintiff that the truck had stalled. Plaintiff said that he wanted to try to start the engine. Plaintiff opened the hood, lifted the cover off of the carburetor and took out the filter. Gulli said that plaintiff told him that he was going to pour some of the gasoline into the carburetor. Gulli maintained that he did not want to turn the ignition key because he did not want to put plaintiff at risk. He said he warned plaintiff three times but plaintiff told him that he knew what he was doing. Gulli testified, "So finally I turned the key. I could not convince him. I turned the key."

Gulli said that nothing happened. He believed that plaintiff poured more gasoline into the carburetor. Plaintiff again asked Gulli to turn the key. According to Gulli, flames shot up and plaintiff's beard caught on fire. The engine did not start. Plaintiff was on top of the hood, and he was kneeling on the truck. Gulli said that plaintiff tried to put out the fire with his hand. He asked Gulli to "turn it on again." Gulli turned the key and the engine burst into flames. Gulli could not say whether it was "an explosion or an earthquake." Plaintiff was thrown from the truck. He was in flames from the waist up and ran down the street. Gulli grabbed a towel from the truck, chased plaintiff and put out the flames.

Plaintiff was taken to the emergency room at the Jersey City Medical Center. Dr. Esber Hani Mansour, a physician who later treated plaintiff at St. Barnabas Medical Center, testified that plaintiff had sustained second and third degree burns over 26% of his body. He was in critical condition for about two months. Dr. Mansour further testified that plaintiff had serious complications, which resulted in the removal of a portion of the middle lobe and lower lobe of one lung. In addition, the doctor stripped the entire outer layer of one of plaintiff's lungs.

The jury found that both plaintiff and Gulli were negligent and their negligence was a proximate cause of the accident. The jury determined that plaintiff and defendant each were 50% responsible for the occurrence and plaintiff's injuries. Plaintiff's damages were determined to be $2,669,484.37. Judgment was entered in favor of plaintiff and against defendant in the amount of $1,474,359, which includes pre-judgment interest and certain costs. Defendants' motion for a new trial was denied and this appeal followed.

II.

We first address defendants' contention that the judge erred by failing to limit the testimony of William J. Meyer, who testified as an expert for plaintiff. Meyer has a bachelor's degree in mechanical engineering and a master's degree in engineering science. At trial, Meyer was qualified as an expert in the field of combustion engineering. Meyer testified that "priming" of carburetors is done regularly. He said that this process may result in a "backfire" or a loud noise, accompanied by a small flash. Meyer stated however that what occurred here was not a "backfire" but rather an explosion followed by a continuing burning fire.

Meyer was asked to state, to a reasonable degree of engineering certainty, the cause of plaintiff's injuries. He replied by stating that the incident "most likely" resulted from Gulli having poured a significant amount of fuel into the carburetor prior to plaintiff's arrival. Meyer noted that plaintiff had testified that he had primed carburetors "hundreds of times" without any problem. Meyer said, "Based on that testimony, I would think that he would - he would know better than to - to have poured that much fuel into the carburetor." Meyer said that he also based his opinion on plaintiff's assertion that, when he arrived on the scene, he found the hood of the truck up and the top of the air filter had been removed. In Meyer's view, this was consistent with the conclusion that Gulli had done something with the carburetor before plaintiff arrived.

Plaintiff's attorney inquired whether Meyer's opinion that the accident and plaintiff's injuries were caused by Gulli's improper actions was given to a reasonable degree of engineering certainty. He replied that it was. Plaintiff's counsel also asked whether Meyer had an opinion, to a reasonable degree of engineering certainty, as to whether plaintiff would have climbed on the truck, held open the throttle body and told Gulli to crank the engine, had plaintiff been told that gasoline had been poured into the carburetor before he arrived. Meyer said that his opinion was that plaintiff would not have done that. Meyer's testimony continued:

Q. You state that had Mr. Gulli refrained from attempting to start the truck himself or had he exercised reasonable care by informing Mr. Soprano of his actions prior to his arrival, the accident and the resulting injuries would have been avoided. Do you offer that opinion to a reasonable degree of engineering certainty?

A. Yes. I do.

In our view, Meyer's testimony went well beyond the area of his expertise, and the judge erred in permitting Meyer to offer opinions, to a reasonable degree of engineering certainty, on matters that had nothing to do with combustion engineering. N.J.R.E. 702 provides that if "scientific, technical, or other specialized knowledge" will assist the fact finders in understanding the evidence or determining a fact in issue, "a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise." Ibid.

The role of an expert "is to contribute the insight of his specialty." In re Hyett, 61 N.J. 518, 531 (1972). But the expert "is not an advocate; that is the role of counsel." Ibid.

Nor is [the expert] the ultimate trier of the facts, that is the role of the jury or the judge, as the case may be. The trier of the facts may be misled if the expert goes beyond what he can contribute as an expert.

[Ibid.]

See also Sesselman v. Muhlenberg Hospital, 124 N.J. Super. 285, 290 (App. Div. 1973)(noting that an "expert witness should distinguish between what he knows as an expert and what he may believe as a layman.")

Here, Meyer testified the fire that caused plaintiff's injuries occurred because a significant amount of gasoline had been placed into the carburetor in the effort to prime the engine. Gulli denied pouring any gasoline into the carburetor. Plaintiff said he only poured a "mouthful" of fuel into the engine. To resolve the critical issue of causation, the jury had to assess the credibility of these two witnesses.

Meyer's engineering testimony was the sort of evidence likely to assist the jury in resolving this factual issue. Thus, Meyer could appropriately testify about priming carburetors and the amount of fuel that was likely to cause the fire that engulfed plaintiff. But it was plainly impermissible for Meyer to offer opinions on the ultimate issue of causation when those opinions were grounded upon the conclusion that plaintiff's testimony was more credible than that of Gulli. Meyer's engineering degrees and experience did not give him any particular expertise in weighing the credibility of witnesses. Indeed, the members of the jury were just as capable of determining whether plaintiff or Gulli was telling the truth. Such matters of credibility are surely not "beyond the ken of the average juror." DeHanes v. Rothman, 158 N.J. 90, 100 (1999).

By rendering opinions based on the view that plaintiff's testimony was more credible than Gulli's, Meyer offered testimony that went beyond the scope of his expertise. The error was compounded when these opinions were offered to a reasonable degree of engineering certainty.

In our view, Meyer's testimony was clearly capable of misleading the jury in deciding whether Gulli or plaintiff had put the gasoline into the carburetor. Because Meyer's improper testimony touched upon an issue that was central to the jury's liability determinations, we are convinced that the failure to limit his testimony is reversible error requiring a new trial on all issues.

III.

We next consider defendants' contention that the trial judge erred by allowing Gulli to be questioned on a prior criminal matter. N.J.R.E. 607 provides in pertinent part:

Except as otherwise provided in Rules 405 and 608, for purposes of impairing or supporting the credibility of a witness, any party including the party calling the witness may examine the witness and introduce extrinsic evidence relevant to the issue of credibility . . .

N.J.R.E. 609 states that, at the discretion of the judge, any competent evidence of a witness's conviction of a crime "shall be admitted" for purposes of impeaching the witness's credibility. The rule applies only to convictions of crimes. State v. Jenkins, 299 N.J. Super. 61, 72 (App. Div. 1997). A conviction of a disorderly persons offence may not be used to impeach the credibility of a witness. Id. at 72-73.

In this case, the record does not show that Gulli was convicted of a crime. Gulli testified at his deposition that he was imprisoned for violating a restraining order issued in a domestic violence matter. When defendants moved before trial to bar any questioning about this conviction, plaintiff's counsel represented to the judge that the conviction resulted from a grand jury indictment. Plaintiff's counsel also stated that Gulli served seven months in county prison. The judge denied the motion, ruling that evidence of defendant's criminal conviction was admissible on the issue of credibility and for purposes of impeachment.

When Gulli testified at trial, he was questioned by plaintiff's attorney concerning the conviction. Gulli admitted that he served seven months in county jail for a violation of a restraining order obtained by his former girlfriend. Gulli said, however, that he did not know that his girlfriend had obtained the order. He was asked whether he went to his girlfriend's house with a knife and he said that he did not. The questioning continued:

Q. Did you go to jail for violation of the restraining order?

A. Yes.

Q. Did you go to jail for terroristic threats?

A. Yes.

Q. And were you accused of having a knife?

A. No. It never came up. I never had a trial, as a matter of fact. So none of this came up. There was no trial.

Plaintiff's counsel continued to question Gulli about the knife. Defendants' attorney objected and, at side bar, plaintiff's counsel insisted that because Gulli said that no knife was involved, he could question Gulli about "whether he knew the knife was involved." The judge asked how far plaintiff's counsel was going to go in pursuing this line of inquiry. Plaintiff's attorney responded by saying he wanted to ask Gulli whether "it refreshes his recollection that a knife was involved." Plaintiff's counsel was permitted to proceed.

Gulli's testimony continued:

Q. Sir, does that refresh your recollection that a knife was involved when you went to jail?

A. That's not the reason why I went to jail. I went to jail for a restraining order. No knives, no screwdrivers, no pliers. That's it and, again, you're trying to put words in my mouth. Don't do that. I would appreciate it very much. And, besides, what does this have to do with - with this hearing here? What does it have to do with this hearing.

Q. All right. Well, let me ask you again, sir. Were you charged with anything else besides violating a...restraining order.

A. No.

Q. - that is, using weapons, an assault and battery, an attack, anything like that?

A. I was - I was - I was charged with terroristic threats and -

Q. Okay.

A. - that restraining order thing.

Q. Okay. And what about anything with weapons?

A. No.

Q. You were asked that same question back in your deposition and your answer was: "Well, I guess that's where the terroristic threats come in."

A. Yeah.

Q. "I'm not sure."

A. I guess.

Q. "I don't know the law, but that would be it, I guess."

A. Yes. I - I guess so.

In our view, the questioning was improper because plaintiff's counsel never established, either through Gulli's testimony or by extrinsic evidence, that Gulli had been convicted of a crime. A person may be guilty of a crime of the fourth degree when the individual "purposely or knowingly" violates an order entered under the Prevention of Domestic Violence Act, provided that the "conduct which constitutes the violation could also constitute a crime or a disorderly persons offense." N.J.S.A. 2C:29-9. "In all other cases a person is guilty of a disorderly persons offense if that person knowingly violates an order entered under [the] Act." Ibid. A crime is defined in N.J.S.A. 2C:1-4 as an offense for which a sentence of imprisonment "in excess of 6 months is authorized."

Gulli's testimony does not establish whether he was convicted of a crime or a disorderly persons offense. Gulli stated that he was charged with terroristic threats, but it is not clear whether he was convicted of merely violating a restraining order or convicted as well of engaging in other conduct, such as the making of terroristic threats or the possession of a weapon, that might constitute a crime. Moreover, although Gulli stated that he spent seven months in jail, it is unclear whether he was actually sentenced to a term longer than six months.

When defendant moved to bar any questioning of Gulli about this matter, plaintiff's attorney represented to the court that the conviction resulted from a grand jury indictment and yet no such indictment was ever presented to the trial judge. Plaintiff's attorney did not present the judge with a certified copy of a judgment of conviction. Plaintiff's counsel questioned Gulli extensively about the use of a knife in the alleged incident but there is nothing in the record before us which shows that plaintiff's attorney had a reasonable basis for this line of inquiry.

We therefore are convinced that plaintiff failed to lay the necessary foundation under N.J.R.E. 609 for impeaching Gulli's credibility by use of his prior conviction. In the absence of a showing by plaintiff that Gulli had been convicted of a crime, the judge should have granted the motion in limine and barred plaintiff's counsel from questioning Gulli about the violation of the restraining order.

We do not preclude, upon the laying of a sufficient foundation, the use of a conviction of a crime to impeach Gulli's credibility in any retrial of this case. We trust that the trial judge will conduct a N.J.R.E. 104 hearing, outside the presence of the jury, and require plaintiff to establish that Gulli was actually convicted of a crime before allowing evidence to be admitted pursuant to N.J.R.E. 609. The judge may apply N.J.R.E. 403 and consider whether the probative value of the evidence outweighs the prejudice to defendant resulting from the admission of this evidence. See State v. Kelly, 97 N.J. 178, 217, n. 21 (1984)(citing State v. Sands, 76 N.J. 127, 146 (1978)). If the judge concludes that Gulli was convicted of a crime, and that such evidence should be admitted, the judge should only permit evidence as to the fact of any conviction, without further inquiry into the details of the crime.

IV.

Defendants raise several other issues in seeking reversal of the judgment. They argue that the judge erred: in permitting evidence that Gulli's actions may have worsened plaintiff's injuries; by failing to charge the jury on the "independent contractor" rule; by refusing to bifurcate the matter as to liability and damages; and by denying defendants' request that the jury be instructed on the statute and regulation governing the dispensing of gasoline. We have considered these contentions and find them not to be of sufficient merit to warrant discussion in this opinion. R. 2:11-3(e)(1)(E).

Defendants also argue that the damages assessed are excessive. In view of our decision to remand for a new trial, this issue is moot.

Reversed and remanded for a new trial in conformity with this opinion.

 

(continued)

(continued)

17

A-0544-04T2

October 12, 2005