ANDREW RICCO et al. v. BFI OF MT. LAUREL, NEW JERSEY, INC.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2049-05T12049-05T1

ANDREW RICCO and KAREN RICCO,

h/w,

Plaintiffs-Respondents,

vs.

BFI OF MT. LAUREL, NEW JERSEY,

INC., REPUBLIC SERVICES OF NEW

JERSEY, CORPORATION TRUST COMPANY,

Defendants-Appellants.

_______________________________________________________________

 

Submitted October 25, 2006 - Decided December 27, 2006

Before Judges Collester and Messano.

On appeal from the Superior Court of New Jersey, Law Division, Camden County, Docket No. L-3078-03.

Cruser, Mitchell & Sanchez, attorneys for appellants (Douglas V. Sanchez and Adam J. Kipnis, on the brief).

Eugene Mattioni, attorney for respondents.

PER CURIAM

Defendants, BFI of Mount Laurel, New Jersey, Inc. and Republic Services of New Jersey Inc. (BFI), appeal the jury's verdict in favor of plaintiffs, Andrew and Karen Ricco, in the amount of $41,538.36. After the addition of appropriate pre-judgment interest and taxed costs, the trial judge entered judgment in favor of the plaintiffs in the amount of $45,442.46. Defendants' motion for judgment notwithstanding the verdict pursuant to Rule 4:40-2, or, alternatively, for a new trial pursuant to Rule 4:49-1, was denied. BFI appeals from the denial of its motion and the judgment entered on the jury's verdict.

In its post-trial motion and this appeal, BFI raises three points.

POINT I.

THE TRIAL COURT ERRED IN NOT SUBMITTING THE ISSUE OF PLAINTIFF'S COMPARATIVE NEGLIGENCE TO THE JURY.

POINT II.

THE TRIAL COURT ERRED BY PERMITTING PLAINTIFF'S EXPERT DOCTOR TO TESTIFY ABOUT THE NECESSITY OF FUTURE SURGERY AND ITS COSTS.

POINT III.

THE TRIAL COURT ERRED BY PERMITTING PLAINTIFF TO READ TO THE JURY PORTIONS OF THE DEPOSITION TRANSCRIPT OF RICHARD HALL, DEFENDANT'S OPERATIONS MANAGER BECAUSE THE WITNESS WAS AVAILABLE TO TESTIFY AND DID TESTIFY AT TRIAL.

We have carefully considered these contentions in light of the trial record and appropriate legal standards. We affirm.

Andrew Ricco had worked for Williamette/Weyerhaeuser as a mechanic for twenty-seven years on the date of the accident. BFI owned and was responsible for the placement, maintenance, and pick up of trash dumpsters on the premises where plaintiff worked. Plaintiff testified that some of the dumpsters had flat lids, some had lids that were propped open at a forty-five degree angle by metal rods, and all were in generally poor condition. On the day of the accident, Friday, June 8, 2001, plaintiff discarded some corrugated cardboard boxes into one of the dumpsters whose lid was propped open. As he did so, the lid slammed down and slid off of the dumpster, striking plaintiff above his knees.

Plaintiff suffered contusions and abrasions; he left work and was very uncomfortable throughout the weekend. On Monday, he reported to Cooper Occupational Health Center where x-rays of his knees were taken and plaintiff was prescribed a course of physical therapy. Sometime in July, he consulted Dr. Todd Lipschultz who examined plaintiff's MRI films and recommended arthroscopic surgery to his right knee for a torn medial meniscus. Plaintiff, who had previously had successful arthroscopic surgery to the same knee in 1985, had Lipschultz perform the surgery on his right knee in August.

Throughout this time, plaintiff's left knee continued to cause him pain and discomfort. Diagnostic MRI's performed in 2002 revealed that plaintiff's left medial meniscus was also torn. However, plaintiff was not satisfied with the results of his right knee surgery and, despite Lipschultz' recommendation, decided against any further surgery to his left knee.

At trial, plaintiff called Dr. Sidney Tobias as his medical expert. Tobias, a board certified surgeon, evaluated plaintiff in 2004 for his worker's compensation case. His report, furnished in discovery, opined that plaintiff had suffered, among other things, a "post-traumatic tear of the right medial meniscus" and a "post-traumatic tear of the medial meniscus of the left knee," both as a result of the accident of June 8. In reaching his conclusions, Tobias relied upon plaintiff's entire medical file, including Lipschultz' surgical reports, and his own examination of plaintiff.

Six days before trial commenced, Tobias' testimony was videotaped at which time he opined that plaintiff would likely "require additional surgery or surgery, period, for his left knee and may well in the future require a total knee replacement on the right." Tobias also testified as to the reasonable costs associated with the future meniscus surgery on plaintiff's left knee. Defendant objected in a timely fashion to Tobias' testimony at the deposition and renewed those objections in a motion in limine to bar Tobias' testimony as the trial commenced.

BFI argued that Tobias was a general surgeon and was unqualified to give an opinion about a specific orthopedic surgical procedure that he admittedly had never performed. Defendant further argued that Tobias had offered opinions about the need and costs of future surgery but had not included any such opinions in his report. It argued that plaintiff was improperly utilizing Tobias' testimony to enter into evidence the hearsay opinion of Lipschultz regarding the need and costs of future surgery to plaintiff's left knee. Lastly, BFI argued that any opinion regarding knee replacement surgery was outside the scope of any previously furnished medical reports.

The trial judge reviewed the reports of Lipschultz and Tobias, as well as the deposition testimony, and concluded that Tobias' testimony regarding any knee replacement should be excluded because it had never been referenced in any prior report and defendant was surprised by such an opinion. However, with respect to the need and costs of left knee meniscus surgery, the judge determined that this did not "(come) as a surprise to . . . anyone familiar with the medical records in this case that said future surgery would be necessary." Tobias' deposition testimony was edited to omit the reference to right total knee replacement surgery and it was otherwise played for the jury at trial.

BFI also moved in limine to bar plaintiff's reading of the deposition testimony of defendant's employee, Richard Hall. Hall was BFI's Operations Manager for the area that serviced plaintiff's employer. In response to plaintiff's notice in lieu of subpoena, BFI produced Hall as its corporate designee with knowledge of the incident. Defendant argued that the reading of Hall's deposition on plaintiff's case in chief violated Rule 4:16 because Hall was available to testify in person. The trial judge concluded that the Rule did not restrict the use of the deposition when the deponent was the defendant's corporate designee and plaintiff was permitted to read portions of Hall's testimony to the jury as part of his case in chief.

Prior to summations, BFI requested the judge charge the jury as to plaintiff's comparative negligence. It argued that the jury could find plaintiff comparatively at fault because he was aware that some of the trash bins had faulty latches and lids, there were other trash bins available that had no lids on them at all, and plaintiff nonetheless chose to discard his boxes in this particular bin. The trial judge quickly determined,

Let's make it easy. I'm denying it. I don't think comparative comes into play. He went out. He threw the box. The lid fell, fell off the thing. I don't see how anyone could conclude that there was comparative negligence under the scenario set forth by Mr. Ricco. So your request for comparative is denied.

We now consider whether the trial judge's rulings regarding the admission of Hall's or Tobias' testimony, or his failure to charge the jury as to plaintiff's alleged comparative negligence, require reversal.

In seeking to exclude plaintiff's use of Hall's deposition testimony, BFI relies upon Rule 4:16-1(c) which reads,

Except as otherwise provided by R. 4:14-9(e), the deposition of a witness, whether or not a party, may be used by any party for any purpose, against any other party who was present or represented at the taking of the deposition or who had reasonable notice thereof if the court finds that the appearance of the witness cannot be obtained because of death or other inability to attend or testify, such as age, illness, infirmity or imprisonment, or is out of this state or because the party offering the deposition has been unable in the exercise of reasonable diligence to procure the witness's attendance by subpoena, provided, however, that the absence of the witness was not procured or caused by the offering party. The deposition of an absent but not unavailable witness may also be so used if, upon application and notice, the court finds that such exceptional circumstances exist as to make such use desirable in the interest of justice and with due regard to the importance of presenting the testimony of witnesses orally in open court.

However, this portion of the rule does not apply if the deposition testimony is that of a party and the proponent is an adverse party. Under those circumstances, Rule 4:16-1(b) provides,

The deposition of a party or of any one who at the time of taking the deposition was an officer, director, or managing or authorized agent, or a person designated under R. 4:14-2(c) or R. 4:15-1 to testify on behalf of a public or private corporation, partnership or association or governmental agency which is a party, may be used by an adverse party for any purpose against the deponent or the corporation, partnership, association or agency.

(emphasis added.)

Hall was produced in response to plaintiff's notice in lieu of subpoena that required BFI to produce for deposition a corporate designee with information about the incident. Rule 4:14-2(c) provides,

Organizations. A party may in the notice name as the deponent a public or private corporation or a partnership or association or governmental agency and designate with reasonable particularity the matters on which examination is requested. The organization so named shall designate one or more officers, directors, or managing agents, or other persons who consent to testify on its behalf, and may set forth for each person designated the matters on which testimony will be given. The persons so designated shall testify as to matters known or reasonably available to the organization.

(emphasis added.)

Thus, when produced for deposition, Hall became the corporate representative of BFI for purposes of this litigation. As such, it did not matter what Hall's official position was, or whether he was of a particular rank within BFI's organizational structure. Though not an "officer, director, or managing agent," Hall was some "other person" "designated" by BFI "to testify on (its) behalf." Id.

Rule 4:16-1(b) is based upon the hearsay exceptions for vicarious admissions contained in N.J.R.E. 803(b). Panasonic Indus. Co. v. Emerson Quiet Kool Corp., 269 N.J. Super. 502, 506 (Law Div. 1993). In particular, pursuant to N.J.R.E. 803(b)(3), "When a person is authorized by a party to make a statement concerning the subject," the statement is deemed an admission by the party itself. Defendant's continued reliance upon Rule 4:16-1(c)'s unavailability requirement is misplaced because admissions by a party opponent are admissible without regard to the declarant's availability. See also N.J.R.E. 803. The trial judge properly permitted plaintiff to read portions of Hall's testimony to the jury.

We further conclude that the videotaped deposition testimony of Tobias was properly admitted by the trial judge. Contrary to BFI's argument, Tobias, though a general surgeon, was qualified to render an opinion regarding plaintiff's right knee surgery and his likely need for future left knee surgery. We have noted in the past that while a license to practice medicine does not conclusively establish a doctor's ability to testify as an expert in a particular medical specialty, a "license to practice at least imports some general competency to testify on all medical subjects." Rosenberg v. Tavorath, 352 N.J. Super. 385, 400 (App. Div. 2002) (quoting Carbone v. Warburton, 11 N.J. 418 (1953)). A doctor may qualify as an expert based upon additional occupational experience or study. Ibid.

Tobias practiced vascular and traumatic surgery from 1967 to 1988, and he had evaluated orthopedic disabilities of the knees on thousands of occasions during his lengthy career. Though Tobias never performed orthopedic surgery, and never repaired a torn meniscus, this is hardly dispositive of his qualifications as an expert witness. Rather, his lack of actual operative experience and whether that was important in assessing his opinion was an issue better left to the jury to consider when deciding the weight, credibility, and probative value of his opinion. Id. at 400-01.

Turning to BFI's objections to the substance of Tobias' testimony, we begin by noting that our scope of review of the trial judge's evidential rulings requires that we grant substantial deference to the exercise of his discretion. DeVito v. Sheeran, 165 N.J. 167, 198 (2000). Evidence rulings will not provide a basis for reversal unless they reflect a clear abuse of that discretion. Benevenga v. Digregorio, 325 N.J. Super. 27, 32 (App. Div. 1999), certif. denied, 163 N.J. 79 (2000).

BFI argues that Tobias's report did not contain any opinion regarding plaintiff's need for future left knee surgery or its likely costs. While a party may assume an expert's testimony will be confined to the matters of opinion reflected in his report, "the logical predicates for and conclusions from statements made in the report are not foreclosed." Velazquez v. Jiminez, 336 N.J. Super. 10, 45 (App. Div. 2000), certif. denied, 169 N.J. 604 (2001) (quoting McCalla v. Harnischfeger Corp., 215 N.J. Super. 160, 171 (App. Div.), certif. denied, 108 N.J. 219 (1987)); Conguisti v. Ingersoll-Rand Co., 306 N.J. Super. 126, 131 (App. Div. 1997). Here, Tobias' own report included the diagnosis of a left medial meniscus tear, as well as the post-operative status of plaintiff's right knee. It further detailed the current limitations that plaintiff was experiencing in the use of his left knee. It was not unreasonable to assume that even though not expressed, Tobias would render an opinion that future surgical intervention was a "logical conclusion," particularly since Lipschultz had already recommended the procedure to plaintiff.

More importantly, we have noted that the exclusion of expert testimony is inappropriate if the proponent of the testimony did not intend to mislead and the opponent was not surprised or prejudiced by it. Congiusti, supra, 306 N.J. Super. at 132. Here, BFI was not surprised nor prejudiced because it had received Lipschultz' report that clearly recommended surgery on plaintiff's left knee and it had retained its own expert to rebut that conclusion. Plaintiff did not intend to mislead BFI because the opinions regarding plaintiff's need for surgery to his left knee and its costs were supplied during discovery.

BFI lastly argues that Tobias' testimony regarding future surgery to plaintiff's left knee should have been barred because it improperly relied upon the report of a non-testifying expert, Lipschultz. However, an expert is permitted to base his opinion upon facts and data "reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject." N.J.R.E. 703. These facts and data may include otherwise inadmissible evidence, including the opinions of a non-testifying expert. Brun v. Cardoso, No. A-0306-05, 2006 N.J. Super. LEXIS 299 *1 (App. Div. Nov 9, 2006). While the expert may rely upon the opinion of the non-testifying expert in formulating his own opinion, that reliance does render the non-testifying expert's report admissible unless an independent basis for admission exists. Day v. Lorenc, 296 N.J. Super. 262, 267 (App. Div. 1996).

Applying these general principles to a review of Tobias' videotaped testimony, the trial judge did not abuse his discretion by allowing Tobias to testify that plaintiff needed future left knee surgery. Tobias independently examined plaintiff and reviewed his medical records. Although he relied upon Lipschultz' reports in reaching his own conclusion, Tobias' testimony did not result in the "wholesale introduction of otherwise inadmissible evidence." State v. Vandeweaghe, 351 N.J. Super. 467, 481 (App. Div. 2002) (quoting State v. Farthing, 331 N.J. Super. 58, 79, (App. Div.), certif. denied, 165 N.J. 530 (2000)), aff'd on other grounds 177 N.J. 229 (2003).

Lastly, BFI argues that the trial judge should have charged the jury with respect to plaintiff's contributory negligence. It argues that plaintiff could have chosen a different dumpster in which to discard his cardboard box and, thus, negligently contributed to his injuries. "A plaintiff is deemed contributorily negligent when his or her actions constitute a failure to care for his or her safety as a prudent person in similar circumstances would." Zepf v. Hilton Hotel and Casino, 346 N.J. Super. 6, 22 (App. Div. 2001). However, the plaintiff's conduct should be submitted to the jury for comparison "only when it is wrongful and causally contributed to the injuries sustained." Bencivenga v. J.J.A.M.M., Inc., 258 N.J.Super. 399, 410 (App.Div.), certif. denied, 130 N.J. 598 (1992) (emphasis added).

Plaintiff's actions in this case did not demonstrate any failure on his part to exercise reasonable care for his own safety nor did they contribute to his injuries. Plaintiff disposed of a cardboard box in dumpsters provided by defendant; he did not misuse the dumpster in any way, nor did he use it for anything other than its intended purpose. Because there was no evidence that plaintiff had acted negligently, we affirm the trial judge's decision not to submit the issue to the jury.

 
Affirmed.

Because BFI's fourth point on appeal - that the trial court erred in not granting it a new trial - is entirely based upon the substantive points raised, we do not address it separately.

Plaintiff Karen Ricco's per quod claim was entirely derivative of her husband Andrew's claim for bodily injury. For the balance of this opinion, "plaintiff" shall refer to Andrew Ricco individually.

(continued)

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A-2049-05T1

December 27, 2006