ORLANDO CHUNGA v. WELLS FARGO AUTO AND NEW JERSEY MANUFACTURERS INSURANCE COMPANY

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2353-03T52353-03T5

ORLANDO CHUNGA,

Plaintiff-Respondent,

v.

WELLS FARGO AUTO AND NEW JERSEY

MANUFACTURERS INSURANCE COMPANY,

Defendants,

and

RICHARD MELLAGE,

Defendant-Appellant.

______________________________________________________________

 

Argued September 26, 2005 - Decided

Before Judges Lintner, Parrillo and Holston, Jr.

On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-10128-00.

William F. Hartigan, Jr. argued the cause for appellant (McLaughlin & Cooper, attorneys; John J. Gentile, of counsel; Mr. Hartigan, on the brief).

David H. Kaplan argued the cause for respondent (Frank A. Tobias, attorneys; Mr. Kaplan, on the brief).

PER CURIAM

Defendant, Richard Mellage, appeals the October 3, 2003 Law Division order for judgment entered pursuant to a jury verdict of September 23, 2003 that found defendant negligent and his negligence a proximate cause of an automobile/pedestrian accident on September 18, 2000. The jury determined that plaintiff, Orlando Chunga, was contributory negligent but that his negligence was not a proximate cause of the accident. The jury awarded plaintiff $725,000 in damages. The court granted pre-judgment interest in the amount of $128,687.50 and entered a total judgment of $853,687.50. Defendant also appeals the December 9, 2003 Law Division order denying defendant a new trial as to all issues. We affirm.

On September 18, 2000 defendant was driving his vehicle along Route One in Woodbridge when he struck plaintiff, a pedestrian, who was wearing dark clothing and was attempting to cross Woodbridge Center Drive at the intersection of Route One and Woodbridge Center Drive. According to defendant, plaintiff was running across the lanes of the intersection when he struck him with his vehicle.

Defendant testified that he had left a Pizzeria Uno Restaurant traveling north on Route One enroute to his employer, TGI Fridays, in order to obtain his work schedule for the upcoming week. While on Route One, he proceeded in the right lane at a speed of approximately fifty miles per hour - the speed limit in the area. Approaching the Route One and Woodbridge Center Drive intersection, Route One has two northbound lanes. An exit lane begins on the right before the intersection and continues through the intersection into a jug-handle for northbound vehicles to go left onto Gill Lane or make a U-turn and go south on Route One. Defendant stated that he proceeded into this lane at a speed of forty-five miles per hour intending to use the jug-handle to cross Route One to get onto Gill Lane.

Defendant testified that as he approached the intersection, his vehicle's low beams were on, and traffic volume was light to medium. Defendant indicated that he observed plaintiff two or three car lengths away crossing through the middle lane. Plaintiff was moving from defendant's left to right. When defendant first observed plaintiff, he did not think he was going to hit him. He began to break and turn to the right, but as he did so his vehicle hit the curb. Attempting to correct himself, defendant then turned the wheel to the left. Plaintiff was in the exit lane when he was struck by the front fender of defendant's car.

Plaintiff testified that when he arrived at the intersection, the light facing him was green and thus concluded that defendant drove through a red light. He also indicated he had a "walk" sign. He stated that he did not observe any traffic coming toward him and proceeded to cross the street. Plaintiff did not recall anything else about the accident.

Jeffrey Springer (Springer), a motorist at the intersection, testified that he was stopped at a red light on Woodbridge Center Drive facing west toward Route One and Gill Lane. Springer did not recall seeing defendant's vehicle before the accident and only saw arms and legs in a silhouette passing across the path of his lights from the other side of the intersection. He indicated that plaintiff was thrown approximately forty to fifty feet.

Antonio Rentas (Rentas) was a passenger in Springer's vehicle. Rentas stated that while stopped at the intersection the overhead lights were out and that it was dark. He indicated that he observed plaintiff running across Route One prior to the accident from the opposite direction. He also stated that at the time of impact, the light was still red for the Springer vehicle. Rentas stated that plaintiff was thrown thirty to fifty feet by the impact.

Patrolman Ronald Leidner (Leidner) of the Woodbridge Police Department investigated the accident and testified that defendant gave him the following statement as to how the accident occurred:

[Defendant] was traveling in the right lane northbound on Route One, intending to take the jug-handle for Route One north to Gill Lane. As he passed through the intersection he noticed a pedestrian running across the roadway a few feet in front of him and to the left. The pedestrian seemed . . . he said the pedestrian started to run faster towards . . . towards the shoulder, crossed his path, and he tried to veer left and struck the pedestrian.

Leidner indicated that plaintiff was conscious when he arrived but was combative and refused to provide a statement.

At the scene, Leidner noticed an odor of alcohol on defendant's breath. When questioned about his consumption of alcohol that evening, defendant stated that he had three beers over a four-to-five-hour period. Leidner administered field sobriety tests to him. Defendant passed the tests and Leidner concluded that defendant was not intoxicated.

Plaintiff testified that as a result of his injuries he was unable to feed and care for himself for approximately six weeks after he left the hospital. Plaintiff stated that he regularly has shoulder, back and knee pain and suffered a loss of range of motion in his shoulder. Physical therapy did
"little" to help his condition. He has difficulty standing and walks with a limp.

Plaintiff's medical expert, Dr. Gregory P. Charko, an orthopedic surgeon, examined plaintiff on January 24, 2002. Dr. Charko testified that plaintiff suffered multiple rib fractures, a fractured collarbone and scapula in his right shoulder and a partial rotator cuff tear in his right shoulder. Plaintiff also sustained a partial tear of the cruciate ligament in his left knee. Dr. Charko stated that an x-ray of the knee showed a comminuted fracture of the fibula, which weakens the attachment point to the ligaments. There was a fracture at the top of the tibia that attaches to the capsule surrounding the knee joint, affecting the stability of the knee. As a result of the fracture and ligament tear, plaintiff's knee gave out regularly. Dr. Charko opined that plaintiff's knee will continue to deteriorate and will suffer arthritic change because of instability. The doctor stated:

[T]he gradual destruction of the cartilage surface, chronic inflammation of the joint such that over time the cartilage wears away, that the cartilage wears away and to the point where some day there will be bone scraping against bone and that's when those people need joint replacement when they can't tolerate the pain anymore.

. . . .

Dr. Charko further explained:

As knees get more arthritic, we know that the composition of the joint fluid changes. It gets a little more watery. We lose some of this chemical called hyaluronic acid.

. . . .

[t]he last resort would be surgery, which depending on when in the future that is, could be anything from a knee replacement, which is what we offer people today, but there is research going on at this time for a more biologic replacement type surgeries.

Dr. Charko concluded that plaintiff's injuries were caused by the accident and permanent in nature. Dr. Charko stated that plaintiff's right shoulder was guarded.

Defendant's medical expert, Dr. Robert J. Bercik, an orthopedic surgeon, examined plaintiff on May 17, 2001. Dr. Bercik concluded that plaintiff sustained a cervical and a lumbar sprain, a fracture of the right clavicle and right scapula, and some fractures of the right rib cage. Dr. Bercik also found that plaintiff sustained an injury to his right shoulder and left knee. Dr. Bercik believed plaintiff's prognosis was good and believed that he did not sustain a permanent injury to his cervical or lumbar spine. As for plaintiff's knee, Dr. Bercik opined that plaintiff would not require a total knee replacement.

Paul R. Stevens (Stevens), a consulting and forensic engineer, testified for plaintiff as an accident reconstruction expert. Stevens explained that even when the light is green for traffic on Gill Lane, the "Walk/Don't Walk" signal remains in a "Don't Walk" condition. Stevens determined that defendant's vehicle was traveling twenty-five to thirty miles per hour when it entered the intersection and twenty to twenty-five miles per hour when it continued through the intersection prior to the accident. Stevens calculated that from the time defendant first saw plaintiff until the accident occurred, three seconds had elapsed, assuming that plaintiff was in the left northbound lane running across the highway at a rate of eleven feet per second. Stevens testified that he could not say whether defendant could stop in time to avoid hitting plaintiff if he was traveling at twenty-five miles per hour. If defendant was traveling at thirty miles per hour, he would not have been able to avoid the accident. Stevens conceded that he did not evaluate plaintiff's role in the accident and that plaintiff would have been able to observe defendant's vehicle from 150 feet away.

John Desch (Desch), defendant's accident reconstruction expert, testified that plaintiff's version of the accident and his testimony that the pedestrian signal said "Walk" was not consistent with the manner in which traffic signals operate. The "Walk/Don't Walk" signal will not change to "Walk" unless the button is pushed. Desch opined that the light for Woodbridge Center Drive was red and the lights for Route One were green. Desch stated that a pedestrian would not be visible at a distance greater than 125 feet. Moreover, because of the dark clothing that plaintiff was wearing, a driver would not be able to see a pedestrian until the individual was thirty or forty feet away. As a result, defendant's perception and reaction time were hindered. Desch opined that plaintiff could have avoided the accident by simply looking to his right and observing defendant traveling toward him and that there was no evidence that defendant was operating his vehicle in an unsafe or unreasonable manner.

Dr. Gary L. Lage, a toxicologist, testified for plaintiff concerning the effect of defendant's alcohol consumption of three beers while at Pizzeria Uno. Dr. Lage explained that he factored into his calculation defendant's gender, weight, height, food consumption, amount of alcohol consumed, and the time period involved, and after considering all of these factors, he was able to calculate defendant's blood alcohol concentration. Dr. Lage opined that defendant's blood alcohol level was "approximately .05 to .06 percent." At those levels, defendant's reaction time would have been delayed. Dr. Lage based his opinion on the fact that typical reaction time is increased from 2.5 to 3.2 seconds at that blood alcohol level. Dr. Lage, in his opinion, also considered Stevens' opinion as to the amount of time, speed and distance defendant's vehicle would have had to avoid the accident. Based on defendant's deposition testimony that he was traveling twenty miles per hour as he approached the exit lane, Dr. Lage concluded that defendant's reaction time was delayed, and he was unable to avoid the accident.

Dr. John Brick, an expert in the behavioral effects of alcohol, testified for defendant. He explained the formula for calculating blood alcohol concentration and concluded that defendant's blood alcohol level was .01, which he characterized as "very, very low." Dr. Brick opined that defendant was not impaired by the alcohol and that it was not a causative factor of the accident.

Defendant presents the following arguments for our consideration:

POINT I

IT WAS ERROR FOR THE COURT NOT TO BAR THE LATE REPORT OF DR. GARY LAGE.

POINT II

THE TRIAL COURT ERRED BY DENYING THE DEFENDANT'S MOTION IN LIMINE TO BAR ANY TESTIMONY REGARDING ALCOHOL CONSUMPTION.

POINT III

THE ADMISSION OF THE OPINION TESTIMONY OF THE PLAINTIFF'S EXPERT, GARY L. LAGE, WAS ERROR SINCE IT CONSTITUTED A NET OPINION.

POINT IV

THE JURY'S VERDICT ON LIABILITY AND DAMAGES WAS AGAINST THE WEIGHT OF THE EVIDENCE AND WAS CLEARLY AND CONVINCINGLY A MISCARRIAGE OF JUSTICE UNDER THE LAW.

POINT V

THE CUMULATIVE EFFECT DURING THE TRIAL OF REFERENCES TO ALCOHOL CONSUMPTION AND IMPAIRMENT BY THE COURT, THE WITNESSES AND COUNSEL AND IN THE JURY CHARGE RESULTED IN THE DENIAL OF JUSTICE.

I

Defendant argues that the court should have barred the submission of Dr. Lage's expert report because it was submitted after the discovery end-date and adversely prejudiced defendant. Defendant contends that the report could have been submitted prior to the end of discovery because plaintiff knew that defendant consumed alcohol, as disclosed by the police report, and that there were no exceptional circumstances which would apply to extend the discovery end-date as required by Rule 4:24-1(c). In Smith v. Schalk, 360 N.J. Super. 337, 345-46 (App. Div. 2003), this court held that answers that were amended five and three days before trial to add new medical information, without a certification that the information was not reasonably available for discovery by the exercise of due diligence prior to the discovery end date, as required by Rule 4:17-7, constituted reversible error.

However, in Tucci v. Tropicana Casino and Resort, Inc., 364 N.J. Super. 48, 52-53 (App. Div. 2003), we reversed the dismissal of the plaintiff's action based on a late expert's report where (1) the plaintiff's attorney had demonstrated extraordinary personal reasons for the late report; (2) the failure to submit the report on time was neither willful nor intended to mislead; and (3) no irremediable prejudice was shown. We explained:

The Best Practices rules were "designed to improve the efficiency and expedition of the civil litigation process and to restore state-wide uniformity in implementing and enforcing discovery and trial practices." They were not designed to do away with substantial justice on the merits or to preclude rule relaxation when necessary to "secure a just determination."

[Id. at 53 (citations omitted).]

Defendant's deposition was not taken until November 20, 2001, at which point, plaintiff determined the need to obtain a toxicology expert. Plaintiff was only able to secure Dr. Lage three months later. Dr. Lage's report was not completed until March 21, 2002. Plaintiff could not control how long it would take to compile and complete the report. Plaintiff's interrogatories were amended the day after the report was completed. Unlike in Schalk, there was no prejudice to defendant by the late admission. Defendant was afforded the opportunity to obtain a toxicologist and an accident reconstruction expert.

The motion transcript reveals that defendant was willing to agree to obtain his own alcohol and accident reconstruction experts, as well as have the discovery period extended. The court ensured that defendant had ample time to conduct his own discovery. Defendant fails to explain how he was prejudiced, complaining only that the report was submitted after the end of the discovery period. The record lacks any evidence suggesting that the late submission was willful or intentional. We are convinced that the admission of Dr. Lage's report was a proper exercise of the court's discretion.

II

Defendant argues that the references to his alcohol consumption, from jury selection to jury instructions, tainted the jury's verdict. Relying on Gustavson v. Gaynor, 206 N.J. Super. 540 (App. Div. 1985), certif. denied, 103 N.J. 476 (1986), defendant contends that no supplementary evidence was ever adduced at trial indicating that defendant was unfit to drive.

The facts here are distinguishable from those in Gustavson. In Gustavson, we held that evidence of consumption of alcoholic beverages was inadmissible unless there was "supplementary evidence from which the trier of fact may reasonably conclude that the drinking affected the safe operation of the vehicle." Id. at 544-45. Supplementary evidence could include "conduct such as excessive drinking, driving at an excessive speed, recklessness or erratic driving, drunken behavior at the accident scene, or similar acts suggestive of an unfitness to drive." Id. at 545. Here, Dr. Lage's testimony and evidence that defendant drove through the red light, lost control by striking his car on the southeast curb before entering the intersection, and swerved to strike plaintiff constituted the supplementary evidence from which the jury could reasonably conclude that defendant's drinking affected the safe operation of his vehicle.

The trial judge in distinguishing Gustavson stated that Dr. Lage, a toxicologist, testified that the defendant had a blood alcohol reading of .05 percent and that the alcohol in defendant's blood would have had an effect on defendant's ability to perceive and react to events. The judge stated, "[t]he issue here is really one of impairment as opposed to intoxication." The court determined that the evidence was proper because one's reaction time and perception may be hindered without being legally intoxicated and that the amount of alcohol that was in defendant's body could have affected the defendant's ability to perceive objects and evaluate time and distance.

Moreover, the court's charge on the effect and use by the jury of the testimony of both the liability and damages experts made clear that the jury was free to disregard an expert's testimony if the jury found the testimony not to be credible. The court stated:

In examining each expert's opinion you can consider their reasons for testifying, if any, their believability, their qualifications, all the considerations that generally apply when you're deciding whether or not to believe any witness's testimony. And remember that the weight of an expert's opinion depends on the facts on which an expert bases his opinion. You as jurors must also decide whether the facts relied on by an expert actually existed.

Again, you are not bound by any -- by the testimony of any expert, you give it whatever weight you deem its appropriate. You can accept or reject all or part of any expert's opinion. And it's for you to reach -- to resolve any -- any conflicts in the testimony of the experts using those same guidelines in determining credibility that I mentioned earlier.

 
Finally, you are not bound by the testimony of an expert. You may give it whatever weight you deem is appropriate. You may accept or reject all or part of an expert's opinion(s).

[(emphasis added).]

We are satisfied that Judge Epstein's ruling denying defendant's request to bar testimony as to defendant's alcohol consumption was proper.

III

Defendant argues that Dr. Lage's testimony should not have been admitted because it constituted a net opinion. Defendant asserts that Dr. Lage did not set forth a factual foundation to render an opinion regarding defendant's blood alcohol level. Defendant's contention is without merit.

"Under New Jersey law, an expert's opinion must be based on a proper factual foundation." Dawson v. Bunker Hill Plaza Assocs., 289 N.J. Super. 309, 323 (App. Div.), certif. denied, 146 N.J. 569 (1996). That foundation must be premised upon facts within the expert's own knowledge or, in the case of a hypothetical question, facts and inferences supported by the evidence. Stanley Co. of America v. Hercules Powder Co., 16 N.J. 295, 305 (1954); Angel v. Rand Express Lines, Inc., 66 N.J. Super. 77, 85 (App. Div. 1961). If there is no factual basis for an expert's opinion, then it is lacking in foundation and is "worthless." State v. One Marlin Rifle, 319 N.J. Super. 359, 370 (App. Div. 1999).

An expert's bare conclusion, unsupported by factual evidence, is inadmissible as a net opinion. Ibid. The net opinion rule requires the expert to give the "why and wherefore of his expert opinion, not just a mere conclusion." Ibid. Thus, the rule prohibits speculative testimony and "'frequently focuses . . . on the failure of the expert to explain a causal connection between the act or incident complained of and the injury or damage allegedly resulting therefrom.'" Grzanka v. Pfeifer, 301 N.J. Super. 563, 580 (App. Div. 1997), certif. denied, 154 N.J. 607 (1998) (quoting Buckelew v. Grossbard, 87 N.J. 512, 524 (1981)).

In reviewing the record, it is evident that Dr. Lage set forth a factual basis on which his opinion was based. Dr. Lage testified that the factors needed to be considered when determining blood alcohol level were: (1) gender; (2) weight; (3) height; (4) food consumption; (5) the alcohol consumed; and (6) the time period involved. Dr. Lage noted that defendant was five-foot-eight inches tall, weighed 155 pounds, consumed potato skins, and drank three beers in a time period of four hours. Based on this information, Dr. Lage opined that defendant had a blood alcohol level of approximately .05 to .06 percent. Dr. Lage then testified as to how he was able to derive defendant's blood alcohol concentration stating:

A single beer in an individual the size of Mr. Mellage will increase his blood alcohol level to almost .03 percent, .029 percent. In addition, the fact that it's beer and the fact that there is food in the stomach means that the absorption is going to be slowed.

In my opinion he would not have begun to see an increase of significant, or meaningful, or measurable increase in his blood alcohol until after 9:30 that night and it then rose up until probably a half an hour to an hour after his last drink. So combining that, the three beers, the time period that's there, and the elimination rate, I came up with a calculation that at 12:30 his blood alcohol level would have been approximately .05 to .06.

The record clearly provides the factors that Dr. Lage considered in rendering his opinion. After explaining how defendant's blood alcohol level of .05 to .06 was calculated, Dr. Lage testified as to some of the effects of defendant's alcohol level, such as delayed reaction time and visual impairment.

In denying defendant's request for a new trial, Judge Epstein explained:

I've already indicated my reasons for allowing alcohol into this case and normally I agree it wouldn't be admissible given the facts of the case, but with the experts' conclusions, that is that the defendant's reaction time was reduced by seven seconds and the reconstruction expert saying that he would have been able to avoid the accident if he had reacted within normal reaction time as opposed to seven seconds later, I thought that it was -- that I didn't have a choice but to admit it into this case. And I -- I think it did have an impact on the case, but more because of the jury -- I didn't think it had a punitive aspect, I think it was more because the jury accepted the fact that had [defendant] not been drinking before the accident he would have been able to avoid the accident and this wouldn't have taken place and therefore they put all of the blame on him.

[(emphasis added).]

The judge correctly denied defendant's motion to bar Dr. Lage's testimony as a net opinion.

IV

Defendant contends that the jury's verdict on liability and damages was against the weight of the evidence and constituted a miscarriage of justice under the law. Defendant argues that the jury's failure to find that plaintiff's negligence was a proximate cause of the accident constituted reversible error. In addition, defendant asserts that the jury's damages award of $750,000 was excessive, because plaintiff never underwent surgery while in the hospital, after being discharged underwent physical therapy, returned to work and obtained no subsequent treatment.

The trial court's decision on a motion for a new trial will not be reversed "unless it clearly appears there was a miscarriage of justice under the law." R. 2:10-1. See also Dolson v. Anastasia, 55 N.J. 2, 6-8 (1969). To determine whether there was a miscarriage of justice, we defer to the trial court regarding "intangibles" not transmitted by the record, namely, credibility, demeanor and the "feel of the case" but otherwise make our own independent determination of whether a miscarriage of justice occurred. Id. at 6.

As to liability, the testimony of plaintiff that he crossed at a green light with a "walk" sign in his favor, witness testimony that defendant lost control of his car, struck his vehicle on the southeast curb, and in order to right his vehicle swerved, striking plaintiff, and testimony of defendant's delayed reaction time constituted sufficient evidence to sustain the jury's verdict.

As to damages, plaintiff was hospitalized from September 18, 2000 until October 13, 2000. He sustained multiple upper-body fractures, a rotator cuff tear, and damage to his knee that is likely to degenerate and is permanent.

Judge Epstein in denying defendant's motion for a new trial concluded:

The amount of the award I don't find is excessive in light of the severe injuries that the plaintiff incurred, he was hit by a car, he was thrown into the air 20, 30, 40, 50 feet, I'm not really sure. But he had a punctured lung, he had rib fractures, he had numerous other fractures, he had -- he had constant pain and he was unable to do a lot of things, including playing soccer which apparently he did substantially before the accident. There was also testimony that he may need a total knee replacement which I did allow.

. . . .

I don't think this is a case, as I explained before, to grant a remitter. The criteria here is whether or not there was a miscarriage of justice, whether it was the -- the decision was manifestly unjust and the amount of money was so unfair as it would shock the conscience of the court and none of it does and therefore a motion for a new trial is denied.

Having carefully reviewed the entire record, we are convinced that the jury's liability verdict does not constitute a manifest denial of justice under the law. We are also satisfied that the jury's damages verdict, although generous, was supported by the record and, therefore, was not excessive. We thus find no reason to disturb the jury's liability and damages verdicts or the court's decision denying defendant's motion for a new trial.

 
Affirmed.

Wells Fargo Auto and New Jersey Manufacturers Insurance Company were no longer parties to the action at the time of the entry of the judgment and order being appealed.

(continued)

(continued)

21

A-2353-03T5

October 12, 2005