DEBRA MERCATANTI et al. v. RICO PASTA COMPANY, a New York Corporation

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3877-04T23877-04T2

DEBRA MERCATANTI and LOUIS

MERCATANTI,

Plaintiffs-Appellants,

v.

RICO PASTA COMPANY, a New York

Corporation,

Defendant-Respondent,

and

SHOP RITE OF FISCHER

BOULEVARD, a New Jersey Corporation,

Defendant.

_______________________________________

 

Argued March 22, 2006 - Decided April 21, 2006

Before Judges Parker and Grall.

On appeal from Superior Court of New

Jersey, Law Division, Mercer County,

L-3257-01.

Robert P. Zoller argued the cause for

appellants (Sterns & Weinroth, attorneys;

Mr. Zoller and Christopher E. Torkelson, on the brief).

Vincent R. Glorisi argued the cause for

respondent.

PER CURIAM

Plaintiffs Debra and Louis Mercatanti appeal following a jury verdict in favor of defendant Rico Pasta Company. Debra alleged that she was injured as a result of swallowing metal contained in pasta manufactured by defendant; she asserted claims based on negligence and strict liability. Louis, her husband, sued for damages per quod. Plaintiffs' complaint against defendant Shop Rite was dismissed on motion for summary judgment prior to trial. On appeal plaintiffs challenge two rulings on evidentiary matters. Because we find no abuse of discretion, we affirm.

On August 25, 2000, the Mercatantis sat down to a pasta dinner prepared by Louis. The pasta was a frozen product manufactured by defendant. Louis topped it with a red meat sauce and meatballs made by his mother. After Debra swallowed her first bite, she felt as if she had something in her throat. The feeling did not pass overnight and the following morning she went to the emergency room. Dr. Latta, the emergency room physician, informed her that an x-ray showed a piece of a metal in her throat. The emergency room record signed by Dr. Latta, and admitted as a joint exhibit at trial, indicated that Dr. Latta was told that Debra had eaten crab and macaroni.

After two unsuccessful attempts by other physicians, on August 27, 2005, Dr. Schneiderman removed the metal object. He described the object as a "small metallic object in the form of a metal staple" and reported that pathology had described it as a "1.3 cm gray metal wire." Debra subsequently developed an abscess, required additional surgery and went through a difficult recovery.

Plaintiffs' engineering expert, Dr. Howard Phillip Meadoff, testified about the metal detection system utilized at defendant's plant. Plaintiffs' attorney asked Dr. Meadoff whether he had "an opinion to a reasonable engineering probability whether [that system] would detect every piece of metal that may get into the pasta on that assembly line?" Dr. Meadoff's response was: "My opinion is that it's possible that the [system] would not detect every piece of metal that passes -- that's in that production line." On cross-examination, defense counsel was permitted to ask Dr. Meadoff whether he was aware that there had not been a complaint about metal in defendant's food products in the forty years it had been in business. Dr. Meadoff said he was "not aware of any claims one way or the other." There was no further testimony about defendant's record.

Defense counsel issued a subpoena to secure Dr. Latta's testimony. The doctor advised that he would attend but warned that he might arrive late. He also advised that he was no longer certain about whether his notation in the emergency record was properly read as "crab" and had no independent recollection of Debra's report to him. On the date he was scheduled to testify, Dr. Latta did not appear. He e-mailed plaintiffs' attorney, who informed the judge that Dr. Latta said he had come to the courthouse but left because he could not find a place to park. The judge permitted defense counsel to read Dr. Latta's deposition testimony, but only after it was redacted to exclude any reference to Debra's having eaten "crab and macaroni." The deposition testimony read informed the jurors that Dr. Latta was working in the emergency room and had completed and signed Debra's emergency room record, including the portion listing her history and her chief complaint.

On the basis of the foregoing evidence, the jurors found that plaintiffs failed to establish defendant's liability.

Plaintiffs present two arguments for our consideration on appeal:

I. THE TRIAL COURT COMMITTED PLAIN ERROR

IN FINDING DR. LATTA UNAVAILABLE AND IN

ALLOWING HIS DEPOSITION TESTIMONY TO BE

READ TO THE JURY.

A. DR. LATTA WAS NOT UNAVAILABLE.

B. DR. LATTA'S DEPOSITION

TESTIMONY WAS UNRELIABLE AND

SHOULD NOT HAVE BEEN READ TO

THE JURY.

C. APPELLANTS WERE NOT [SIC]

PREJUDICED BY THE COURT'S

RULINGS ALLOWING THE

INTRODUCTION OF UNRELIABLE

EVIDENCE.

II. THE TRIAL COURT ERRED IN PERMITTING

TESTIMONY ABOUT THE ABSENCE OF A PRIOR

HISTORY OF CLAIMS AGAINST RICO PASTA

COMPANY.

Our review of the record convinces us that the arguments lack sufficient merit to warrant extended discussion in a written opinion. R. 2:11-3(e)(1)(E). The rulings to which plaintiffs object are evidentiary decisions reviewable only for abuse of discretion. See MacKay v. CSK Publ'g Co., 300 N.J. Super. 599, 617 (App. Div. 1997); Vartenissian v. Food Haulers, Inc., 193 N.J. Super. 603, 610 (App. Div. 1984). We see no clear abuse of discretion and certainly no error that was clearly capable of producing an unjust result. R. 2:10-2.

Plaintiffs fail to show that the trial judge's decision to admit the redacted deposition testimony of Dr. Latta was manifestly unjust. Green v. New Jersey Mfrs. Ins. Co., 160 N.J. 480, 492 (1999). As Judge Jacobson explained in ruling on plaintiffs' motion for a new trial, the witness' erratic behavior -- evidenced by his failure to appear because of lack of a parking space, his equivocation about his testimony and his communication with plaintiffs' counsel rather than defense counsel -- was sufficient to show that he was unavailable despite diligent efforts and reasonable means exhausted by defense counsel. See Avis Rent-A-Car, Inc. v. Cooper, 273 N.J. Super. 198, 202-03 (App. Div. 1994). Moreover, the judge took care to redact the deposition testimony about "crab and macaroni," which was arguably prejudicial to plaintiffs' case. As a result, the testimony about which plaintiffs complain had no probative value that was prejudicial to plaintiffs' case. The testimony served only to identify the emergency room record that had been admitted as a joint exhibit. Thus, even if there were error in admission of the redacted testimony, it could not have influenced the outcome of this case.

Plaintiffs' second objection is without support in the record. There was no testimony about "the absence of a prior history of claims against Rico Pasta Company." The judge permitted defense counsel to probe the basis for the opinion given by plaintiffs' expert. See N.J.R.E. 703. In response, the expert testified that he was "not aware of any claims one way or another." The jury did not receive evidence on the absence of prior complaints. The judge instructed the jurors that nothing the attorneys said was evidence. See State v. Manley, 54 N.J. 259, 277-78 (1969). As plaintiffs acknowledge, the judge precluded admission of any evidence on this issue in defendant's case. Because the cross-examination that the judge permitted had no potential to deprive the plaintiffs of a fair trial, there is no basis for us to disturb the discretionary ruling. Persley v. New Jersey Transit Bus Operations, 357 N.J. Super. 1, 9 (App. Div.), certif. denied, 177 N.J. 490 (2003).

Affirmed.

 

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A-3877-04T2

April 21, 2006