COLLEEN P. MOORE v. TALAL I. ARIDI, et al.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0089-04T20089-04T2

COLLEEN P. MOORE,

Plaintiff-Appellant,

v,

TALAL I. ARIDI and NMAC,

Defendants-Respondents.

 

Submitted: March 1, 2006 - Decided July 28, 2006

Before Judges Fall and Grall.

On appeal from the Superior Court of New Jersey, Law Division, Atlantic County,

ATL-L-2674-01.

Cronin and Musto, attorneys for appellant (Patrick T. Cronin, of counsel and on the brief).

Hurvitz & Waldman, attorneys for respondents (William M. David, on the brief).

PER CURIAM

In this personal injury automobile negligence action, plaintiff Colleen P. Moore appeals from an order entered on July 19, 2004, dismissing her complaint against defendant Talil I. Aridi, following a jury verdict finding that defendant was negligent; that defendant's negligence was a proximate cause of the motor vehicle accident; that plaintiff was negligent; that plaintiff's negligence was a proximate cause of the accident; that defendant was 85% negligent and plaintiff 15% negligent; that plaintiff sustained injuries proximately caused by the accident; but that plaintiff had not sustained a permanent injury as a result of the accident. The following factual and procedural history is relevant to our consideration of the arguments advanced on appeal.

On November 27, 2000, plaintiff was the owner and operator of a motor vehicle involved in an accident on Shore Road, Linwood, at its intersection with Central Avenue, with a vehicle operated by defendant and owned by defendant NMAC. On August 21, 2001, plaintiff filed a complaint against defendants, seeking damages for personal injuries she allegedly sustained as a result of the defendants' negligence.

During the discovery period, which had been extended, defendants filed a motion to compel plaintiff to produce certain records, including a copy of diary calendars and/or diaries maintained by plaintiff from the date of the accident until the present. On June 6, 2003, the Law Division issued an order, granting the discovery motion and compelling plaintiff to produce various information, including the referenced calendars and/or diaries, within ten days.

The de bene esse videotaped deposition of Dr. John L. Gaffney plaintiff's treating physician was taken on October 21, 2003. On or about November 20, 2003, plaintiff filed and served a motion, seeking an order redacting certain portions of Dr. Gaffney's testimony prior to its presentation at trial. Among the objected portions of Dr. Gaffney's testimony in response to questioning by defense counsel is the following colloquy:

Q. And would you agree with me that when patients are involved in litigation that there can be a propensity to either exaggerate complaints, either consciously or unconsciously, or not tell you about prior problems?

[Plaintiff's Counsel]: Objection.

[Defense counsel]: Basis?

[Plaintiff's Counsel]: Unless you're about to qualify the doctor as a sociologist, you're asking him to speculate as to general human nature and then apply this to Ms. Moore?

[Defense Counsel]: All right. I'll go to the foundation. Let's go back on.

Q. Doctor, you're involved in the medical field, right?

A. Yes.

Q. You would agree with me that within the medical field there are a number of studies and journal articles that talk about patients that may be involved in litigation and how it may impact either their symptoms or complaints that are given when they're involved in litigation, true?

A. I don't agree with that.

Q. You've never seen any studies that suggest

A. No, I guess I'm not an expert.

Q. You can't disagree until at least I pose the question and then we can be sure we're on the same page. You disagree with the proposition that there are medical studies and journal articles that discuss the proposition that when people are involved in litigation it may have an impact on the complaints that are given to a doctor?

[Plaintiff's Counsel]: Objection.

* * * *

Q. Do you recall the last question?

A. Yeah. I don't agree.

The defendants opposed the motion.

On December 19, 2003, the motion judge entered an order that redacted several portions of Dr. Gaffney's videotaped deposition, including the above-quoted deposition testimony. The order was supported by a written decision issued by the motion judge on that date. In determining to strike that portion of the deposition, the motion judge stated, in pertinent part:

Asking a witness to characterize the testimony of another witness is argumentative, highly improper, and should not be countenanced. State v. T.C., 347 N.J. Super. 219, 238 (App. Div. 2002)[, certif. denied, 177 N.J. 222 (2003)]; State v. Green, 318 N.J. Super. 361, 378 (App. Div. 1999)[, aff'd, 163 N.J. 140 (2000)]. What's more, there is no basis in our law for the expression of an expert opinion as to the truthfulness of a statement by another witness. State v. J.Q., 252 N.J. Super. 11, 39 (App. Div. 1991), aff'd, 130 N.J. 554 (1993). Defense counsel's improper questioning of Dr. Gaffney implies that an expert opinion supports the generalization that litigants exaggerate. Counsel would have the fact finder deduce from the generalization that since Plaintiff is a litigant, she is exaggerating her injuries. The implied proposition violates the cited precedent and is logically fallacious. Accordingly, it shall be stricken.

* * * *

Defense Counsel's question about alleged medical articles violates the prohibition against soliciting opinions about the credibility of statements of witnesses. It also violates N.J.R.E. 803(C)(18) which requires as a foundation that treatises be established as reliable authority before counsel may examine a witness on statements contained in such treatises. Counsel did not call to the attention of the expert witness "statements contained in published treatises," nor did counsel first establish "as a reliable authority" the sources he was allegedly referencing. The cross-examination shall be stricken.

The matter was tried to a jury before a different judge between June 29, 2004, and July 1, 2004. Plaintiff called, as an expert witness, Dr. David Michael Watral, a psychologist, concerning the results of a neuropsychological evaluation he conducted of her. Dr. Watral testified he had examined plaintiff on July 24, 2001, and on August 22, 2001. Based on the information provided by plaintiff concerning the occurrence of the November 27, 2000 accident, Dr. Watral concluded that plaintiff had

suffered from a grade three concussion, that is a loss of consciousness, and suffered from what's referred to as post-traumatic amnesia, that is, because she had this concussion she literally couldn't remember information for some time immediately prior to the impact to a period of time following the accident.

Dr. Watral stated he performed a mental examination of plaintiff which he described as

observing the patient, . . . looking for signs that they understand what's going on, that they're oriented, that they can answer questions, that they can reliably . . . describe what's going on, how distractible they are, whether they're oriented, whether they actually know where they are, and getting information from them.

In performing his mental status examination of plaintiff, Dr. Watral found she had difficulty in remembering things. Specifically,

she had at least mild concentration difficulties; that although she was, her speech was fluent, that is that it could, it flowed forth and she was grammatic, she had word-finding problems so that she struggled to find the right words to express herself. . . . Basically, that she had problems with attention and concentration and memory were the things that were the most salient things, the biggest things that showed up in this portion of the exam.

Dr. Watral testified the second phase of his examination consisted of administering a battery of formalized testing. In discussing the results of those tests, Dr. Watral stated, in part:

She was cooperative. We know that from the, some of the tests that we did and the way she performed them that she was pretty straightforward in her responses. She was not lying or trying to be deceitful or trying to exaggerate in some way.

After analyzing the information in both phases of his examination, Dr. Watral concluded that plaintiff had suffered a grade three concussion from the accident, leading to "a persistent brain injury, a mild brain injury that we would describe as a post-concussion syndrome, a persistent post-concussion syndrome." He explained, as follows:

What this really means is that her brain kind of was jumbled up by that accident and did not straighten out in those six months time. She . . . also had psychological factors affecting pain. When people are in pain and they're confused and have other problems and have emotional difficulties that feeds into the pain and the pain feeds back into those problems. And she had adjustment problems with mixed anxiety and depression, which by the time I saw her was fairly chronic because she was six months out of this accident and still having difficulties.

During the cross-examination of Dr. Watral, the following colloquy ensued:

Q. The diagnosis that you made of the post-concussion syndrome is based upon the history that you found from the emergency room records, correct?

A. And the history that she provided and the results of the neuropsychological testing.

Q. And the testing, let's talk about that a little bit. The testing is in effect testing where you provide a stimulus and she gives a response, true?

A. Yes.

Q. It in part requires the appropriate motivation and input from the patient and voluntarily committing to the test, true?

A. That's right.

Q. And you know that there are in fact studies that show that these tests may not be reliable if motivation is not intact.

[Plaintiff's Counsel]: Objection. Can we be heard.

During the sidebar discussion concerning the objection, plaintiff's counsel informed the judge that his objection was based on the fact that defendant's counsel had not laid a foundation for his questioning of Dr. Watral, and that defense counsel should not be permitted to question him based on the purported existence of unnamed, unidentified reports. There was no contention that the referenced December 19, 2003 ruling of the motion judge concerning Dr. Gaffney's testimony constituted the law of the case or was related to the issues raised with respect to the questioning of Dr. Watral. The judge ruled that the line of questioning was proper as long as defense counsel questioned Dr. Watral with respect to specific reports or authoritative articles.

Defense counsel then proceeded to question Dr. Watral with respect to his familiarity with various journals and studies in the area of neuropsychology. Referring to a "Heaton" study with which Dr. Watral acknowledged his familiarity, the following exchange occurred:

Q. Would you agree with me that Heaton at one point in time did a study that was published in the Journal of Consulting and Clinical Psychology that talks about faking responses on neuropsychological testing?

A. Yes.

Q. And would you agree with me that that study found that neuropsychologists couldn't distinguish between 16 people who purportedly had a brain injury and 16 control patients, and the doctors couldn't distinguish between them?

A. Those doctors couldn't, that's right.

Q. So you would agree with me that there is significant dispute in terms of how doctors review neuropsychological testing and how they may utilize it within the field, true? Different doctors may see different things from tests, true?

A. Well, there's - -

Q. Do you agree with that proposition?

A. Excuse me. There is also, there is always an element of subjectivity. I mean none of us see things exactly the same as one another. So that, and you're almost being philosophical here about this. I think that there are - -

Q. Heaton isn't being philosophical, is it?

A. No, it's not. But it's not a - -

Q. It's a hard scientific study that went through the analysis and criteria for publication, true?

A. Yes.

Dr. Watral was also asked about his familiarity with various other studies.

On re-direct, plaintiff's counsel asked Dr. Watral numerous questions concerning the Heaton study. Dr. Watral explained in detail the objective nature of the testing he utilized in the evaluation of plaintiff, explaining that she had suffered a serious injury. On re-cross, defense asked several additional questions concerning the Heaton study. Plaintiff's counsel then asked the following:

Q. Doctor, in your examination of patients, particularly Ms. Moore, since the publication of this Heaton article, have you tried to take into account the findings of the Heaton article and dealt with them?

A. I think I deal with them as well as anyone else can. I really honestly do. I think that Dr. Heaton's article alerted us to the fact that we just can't rely on our own personal judgment, that we have to get out there and try to do something that's a little bit more objective. And I certainly make that effort and I think other neuropsychologists do too.

During her deposition taken on April 4, 2003, plaintiff testified that since the accident and resulting cognitive problems she had been maintaining calendars and diaries to assist her with her daily routines and appointments. Following the deposition, by letter to plaintiff's counsel dated April 10, 2003, counsel for defendant requested various information, including "[a] copy of any diary calendars or diaries kept by plaintiff[.]"

On or about May 7, 2003, defendant filed a motion, seeking an order compelling plaintiff to produce various information, including the diary calendars or diaries referred to during deposition. On June 6, 2003, the court entered an order compelling plaintiff to produce, within fifteen days, various information, including a "copy of diary calendars and/or diaries maintained by the plaintiff from the date of the accident to the present[.]"

At trial, during her direct examination, plaintiff testified that due to injuries sustained during the accident she was having memory problems, and that she has

been late to [the children's] activities and needed help from friends and had to write things down constantly and then be told to write things down because I wasn't accustomed to doing these things, to writing everything, to keeping, logging things on a, like you would put on a secretary's desk I put up on walls. As my friends would help me I put a very large calendar that you would write in big blocks and I would have it on the wall next to the phone for when every activity and everything had to be done because I couldn't remember, I couldn't put it together.

During cross-examination of plaintiff, defense counsel asked whether plaintiff recalled being requested, during her deposition, to produce "any calendars that you've utilized to help you with your routines and appointments?" Plaintiff's counsel objected to that line of questioning and the following occurred during a sidebar conference:

THE COURT: Do you have some objection?

PLAINTIFF'S COUNSEL: My assumption is that counsel is going to cross-examine the witness on the failure to respond to an oral notice to produce.

DEFENDANT'S COUNSEL: No, there's a court order, counsel.

PLAINTIFF'S COUNSEL: There's a court order?

DEFENDANT'S COUNSEL: Requiring the production of all calendars and diaries.

PLAINTIFF'S COUNSEL: I'd like to see that because I'm not familiar with that.

DEFENDANT'S COUNSEL: I'll get it. June 6th, 2003 court order. Paragraph two requires all diaries, calendars, amongst other things.

* * * *

DEFENDANT'S COUNSEL: Are you withdrawing the objection, counsel?

PLAINTIFF'S COUNSEL: I'll let you know in a minute. The concern I have, Judge, is as I read the order and the memorandum of Judge Nugent that accompanies it indicates at the time that if any party fails to comply by said date the aggrieved party may apply for dismissal or suppression pursuant to paragraph (1)(a) of this Rule, but promptly on motion to which the order to compel shall be annexed with certifications, et cetera. My original assumption that goes with that order to produce is that it's the party applying, the redress is to make an application to the court regarding the witness failing to produce the material. This line of questioning is improper.

* * * *

DEFENDANT'S COUNSEL: I find it hard to believe that they would try to restrict this. We make a demand at depositions. It's not honored. We get a court order compelling production of the documentation, it's not complied with. It obviously doesn't exist. The documents don't exit or else we would have been supplied with the documentation. And now counsel is suggesting that we can't inquire as to whether she ever produced such records and confirm that she hasn't had --

THE COURT: You can ask the question then. You can ask the question.

Thereafter, defense counsel briefly questioned plaintiff concerning the failure to honor the request to produce her diaries and calendars. Plaintiff testified that she did not recall receiving any request, but stated she did "remember keeping my calendars, whether or not I have them." There were no questions posed to plaintiff on re-direct examination concerning the diaries or calendars.

On appeal, plaintiff presents the following arguments for our consideration:

POINT I

THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY ALLOWING DEFENSE COUNSEL TO CROSS-EXAMINE PLAINTIFF'S PSYCHOLOGICAL EXPERT WITH STUDIES THAT SUGGESTED THAT PLAINTIFFS EXAGGERATE INJURIES DURING LITIGATION.

A. The Trial Court's Ruling Violated The Law Of The Case Doctrine.

B. The Trial Court's Ruling Allowed Impermissible Hearsay To Be Admitted Into Evidence.

POINT II

THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY ALLOWING DEFENSE COUNSEL TO CROSS-EXAMINE PLAINTIFF WITH UNENFORCED DISCOVERY ORDER.

Plaintiff claims that the trial court committed reversible error by allowing the defendant to cross-examine her psychological expert with studies that suggested that plaintiffs exaggerate their injuries during litigation. She argues that allowing this testimony violated the "law of the case" doctrine, and amounted to inadmissible hearsay.

"The law-of-the-case doctrine is a guide for judicial economy based on the sound policy that 'when an issue is once litigated and decided during the course of a case, that decision should be the end of the matter.'" Feldman v. Lederle Lab., 125 N.J. 117, 132 (1991)(quoting State v. Hale, 127 N.J. Super. 407, 410 (App. Div. 1974)). As employed by the courts, the doctrine dispenses with the "considering again what has been previously decided in the same suit," thus ordinarily precluding a court from re-examining an issue previously decided by the same court in the same case. United States v. Maybusher, 735 F.2d 366, 370 (9th Cir. 1984), cert. denied, 469 U.S. 1110, 105 S. Ct. 790, 83 L. Ed. 2d 783 (1985).

The doctrine "applies to the principal that where there is an unreversed decision of a question of law or fact made during the course of litigation, such decision settles that question for all subsequent stages of the suit." Hale, supra, 127 N.J. Super. at 410. The doctrine most commonly applies to the "binding nature of appellate decisions upon a trial court if the matter is remanded for further proceedings or upon a different appellate panel which may be asked to reconsider the same issue on a subsequent appeal." Ibid. (quoting 5 Am. Jur 2d, Appeal and Error, 744 at 188-89 (1962)). Under the law-of-the-case doctrine, "decisions of law made in a case should be respected by all other lower or equal courts during the pendency of that case." State v. Reldan, 100 N.J. 187, 203 (1985); Hale, supra, 127 N.J. Super. at 410-11.

However, application of the law-of-the-case doctrine is discretionary. Reldan, supra, 100 N.J. at 205. The doctrine should be applied flexibly to serve the interests of justice, thus the proper exercise of this discretion should take into account a number of relevant factors that bear on the pursuit of justice and, particularly, the search for truth. Ibid. Specifically, the doctrine is intended to avoid judges at the same level from reversing each other. Id. at 203.

Here, we find no violation or application of the law-of-the-case doctrine to the questioning of Dr. Watral. In addition to the fact that application of that doctrine is discretionary, here, it was not raised by plaintiff's counsel as a basis for the objection. More significantly, there is a significant distinction between the questioning of Dr. Gaffney during which no treatises or studies were cited and that of Dr. Watral, where specific studies were referred to, and with which Dr. Watral was fully familiar, and were in his field of expertise. In fact, Dr. Watral recognized Dr. Heaton's study as authoritative in his field, testifying that Dr. Heaton's study had resulted in a greater sense of awareness and diligence by psychologists in their evaluations. This line of questioning was fully appropriate in the testing of Dr. Watral's opinion, and was properly admitted. See Jacober v. St. Peter's Medical Ctr., 128 N.J. 475, 477-78 (1992) (holding that a text may be qualified as a learned treatise by expert testimony or by judicial notice rather than solely by the cross-examined expert), modified in part on other grounds, 130 N.J. 586 (1992); Ruth v. Fenchel, 21 N.J. 171, 176 (1956) (an expert witness may be properly cross-examined with the contents of treatises to call into question the weight to be attached by the factfinder to the opinion of the witness); Roper v. Blumenfeld, 309 N.J. Super. 219, 228-29 (App. Div.) (accord), certif. denied, 156 N.J. 379 (1998).

Plaintiff also asserts that the court erred in permitting defense counsel to improperly cross-examine her with an unenforced discovery order. We disagree. N.J.R.E. 611(b) limits the scope of cross-examination "to the subject matter of the direct examination and matters affecting the credibility of the witness." Considerable latitude is customarily permitted in the cross-examination of a witness, and the trial court is vested with particularly "broad discretion to determine the proper limits of cross-examination" where the credibility of a witness is at issue. State v. Steele, 92 N.J. Super. 498, 503 (App. Div. 1966). "Additionally, as a general rule, any fact which bears against the credibility of a witness is relevant to the issue being tried, and the party against whom the witness is called has a right to have that fact presented to the jury to aid them in determining credibility." State v. Pontery, 19 N.J. 457, 472 (1955).

Here, plaintiff testified to her cognitive difficulties and referred to the fact that she was required to maintain calendars in order to remember daily appointments and activities of the children. The cross-examination concerning her failure to produce such calendars and diaries was thereby fully appropriate, and was directly relevant on the issue of plaintiff's credibility concerning her loss-of-memory and cognitive-impairment claims.

Affirmed.

 

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A-0089-04T2

July 28, 2006