PAUL LABAS v. JUAN C. ESQUIVEL-MOLINA

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4470-04T14470-04T1

PAUL LABAS,

Plaintiff-Appellant,

v.

JUAN C. ESQUIVEL-MOLINA,

Defendant-Respondent.

___________________________________

 

Argued May 17, 2006 - Decided

Before Judges Wefing, Fuentes and Graves.

On appeal from Superior Court of New

Jersey, Law Division, Somerset County,

Docket No. L-2007-02.

John R. Gorman argued the cause for

appellant (Lutz, Shafranski, Gorman and

Mahoney, attorneys; Mr. Gorman, on the

brief).

James T. Gill argued the cause for

respondent (Leary, Bride, Tinker & Moran,

attorneys; Mr. Gill, of counsel and on

the brief).

PER CURIAM

Plaintiff Paul Labas filed suit against defendant Juan C. Esquivel-Molina in connection with an automobile accident that occurred on October 11, 2001. Defendant conceded liability. The case was tried before a jury on the question of the quantum of damages, if any, plaintiff was entitled to receive. The jury found in defendant's favor.

Plaintiff now appeals arguing that the trial court committed reversible error in three respects: (1) by permitting defendant to introduce hearsay evidence of plaintiff's complaints in connection with injuries sustained in a 1997 accident; (2) by failing to declare a mistrial after defense counsel's comment concerning the legal action related to the 1997 accident, in violation of the court's earlier ruling; and (3) by charging the jury on the question of aggravation of preexisting injuries.

After reviewing the record and considering prevailing legal standards, we find no merit in plaintiff's arguments outlined in points (2) and (3). R. 2:11-3(e)(1)(E). We add the following brief comments in the interest of clarity. It is undisputed that the trial court issued an in limine ruling directing defense counsel not to refer to or otherwise mention the litigation involving the 1997 accident. It is equally clear that defense counsel referred to this litigation in the process of questioning plaintiff. We are satisfied, however, that the trial court did not mistakenly exercise its discretion in denying plaintiff's motion for a mistrial. See State v. Rechtschaffer, 70 N.J. 395, 405 (1976).

With respect to point (1), we are compelled to reverse and remand this matter for a new trial. We are satisfied that the manner and timing of defense counsel's cross-examination of the plaintiff, concerning a medical report prepared in connection with the 1997 accident, deprived plaintiff of his right to a fair trial. We further conclude that the trial court's instructions to the jury on this issue were at best insufficient to address the prejudice caused by this line of questioning, and at worst may have served only to exacerbate the problem.

We wish to emphasize, that our decision to reverse is not indicative of any conclusion that defense counsel's actions here were part of a preconceived tactical maneuver, designed to gain an unfair advantage in this contest. We accept defense counsel's representation, made during oral argument before us, that his application to the trial court to reopen the case and permit him to recall plaintiff was exclusively based upon his own belated appreciation of the significance of the medical report authored by Dr. Weiss.

We do find it troubling, however, that this key piece of evidence was not provided to plaintiff's counsel in discovery, despite its undeniable importance in substantiating the central theme of the defense's trial strategy, to wit, that plaintiff's injuries were not caused by this accident. Of course, from plaintiff's perspective, it matters not whether defense counsel acted in good faith or executed a malevolent scheme. The net result was the same.

We will discuss the issues raised by plaintiff in the context of the following facts, which we summarize here from the evidence presented at trial.

I

Plaintiff was twenty-seven years old at the time of the October 11, 2001 accident. By this time, plaintiff had been injured a number of times in his life. In response to defendant's interrogatories requesting that he list any injury he had sustained prior to the 2001 accident, plaintiff provided the following information: "The plaintiff injured his neck and low back in a September 2, 1997 motor vehicle accident. The plaintiff treated for those injuries with Dr. Richard Lebovicz . . . . The plaintiff was also injured in an October 29, 2000 motor vehicle accident wherein he injured his low back, upper back, and neck."

Approximately four days after the October 11, 2001 accident, plaintiff visited a physician complaining of pain in his lower back. On October 20, 2001, plaintiff began attending physical therapy sessions at the Staten Island Center for Alternative Therapies. He continued with this course of treatment for approximately three months at which point he temporarily stopped, because the back pain became too great. The physical therapy proved ineffectual, leading plaintiff to consult with neurologist Dr. Bilal Mian.

Dr. Mian ordered diagnostic tests, including magnetic resonance imaging ("MRI") studies and electromyography ("EMG") tests. He also suggested that plaintiff continue receiving physical therapy three times per week. Plaintiff testified that when he first began treatment with Dr. Mian his principal and overriding problem was pain in his lower back. He gave the following description of his condition.

[The pain] was starting on the left side, it was going down -- down to the knee behind the leg, but when the pain was truly bad the whole body ached. I mean as you said before [addressing his own counsel], I'm no stranger to injuries, but I never had anything like it before.

[Emphasis added.]

Given plaintiff's complaints, Dr. Mian recommended that he consult with a pain management specialist. In May and June of 2002, plaintiff received three epidural injections at the New Jersey Pain Institute at Robert Wood Johnson Medical School. This treatment sufficiently reduced plaintiff's pain level to enable him to resume physical therapy. Despite this progress, plaintiff testified that he remained severely limited by the pain. According to plaintiff, the pain and the resulting limitations on his life that he experienced from the 2001 accident far exceeded the pain and suffering he endured in connection with the 1997 and 2000 accidents.

We note that plaintiff was the first witness to testify at trial. At the end of his direct testimony, plaintiff was cross-examined by defense counsel on the details of the injuries and treatment he received for the 1997 and 2000 accidents.

Q. Your 1997 accident, did you have an MRI on your low back following that accident?

A. I honestly do not recall.

Q. Okay. If I showed you one with a date of October 1997 on it and your name, you wouldn't have any reason to dispute it, right?

A. Absolutely not.

Q. And the 2000 accident, did you have an MRI to your lower back after that accident?

A. Yes, I did.

Q. So you gave complaints of injury to your lower back after each of those accidents to your doctors, didn't you?

A. I must have.

Q. You must have. Well, otherwise why would they do an expensive procedure such as MRI --

A. Correct. That's --

Q. -- on your low back?

A. That's what I'm trying to say. I do not remember talking about it, but I must have.

As this line of questioning illustrates, defense counsel confronted plaintiff with specific details of his treatment history relative to the 1997 and 2000 accidents to demonstrate plaintiff's injury and complaints of pain involving the same area of his body allegedly affected by the 2001 accident. This was the precise strategy defense counsel announced to the jury in his opening statement.

You're only going to be determining what damages the plaintiff proves to you by the . . . preponderance of the greater [weight of the] evidence that he sustained in this accident as opposed to the accident in 2000, the accident in 1997 . . . .

Plaintiff has that burden of proof. Plaintiff -- for you to compensate plaintiff for the accident that involves my client, you have to find that, okay, these things were there, but here's something new. This is something that was caused by this accident and this is the value on that issue.

And plaintiff has the burden of proof on that. So that any point in time when you're deliberating in this case, when you have all the evidence and you're talking about it, you come up on an issue and you say, well, the low back, was that caused by this automobile accident? And three of you say, yeah, I think so, and three of you say, it makes more sense because of that MRI from 2000 and the MRI from 1997, which [plaintiff's counsel] didn't talk about which was even earlier, all procedures taken, x-rays -- special x-rays is what MRIs are -- of the low back in 1997.

He must have had complaints of the low back in 1997 or they wouldn't have sent him for an MRI of the low back. In 2000 he must have had complaints or they wouldn't have sent him for the MRI.

The trial record shows that defense counsel steadfastly developed and pursued this issue, not only during plaintiff's cross-examination, but in his cross-examination of Dr. Mian, plaintiff's treating physician. The following excerpts from Dr. Mian's cross-examination testimony illustrates the point.

Q. Now Mr. Labas was involved in an accident, automobile accident, in 1997 where he sustained neck and back injuries and complaints.

A. Right.

Q. You've become aware of that?

A. Right.

Q. Sometime today?

A. Right.

Q. Were you aware that he was referred for an MRI [on] October 21st of 1997 with regard to his lumbosacral spine?

A. Not that I'm aware of.

Q. Did you get a copy of the report?

A. I don't remember.

Q. So you haven't -- you haven't reviewed the film?

A. No. I don't remember reviewing those -- I have reviewed the old films, but I don't remember the date. So I'm not sure which one was the old -- is it one previous accident or two? I have reviewed one old films [sic] with the new films.

Q. Okay. You reviewed the films of 2000, [one] year before the accident that's --

A. That's what I believe.

Q. Okay. There was another accident in 1997 and an MRI done at that time. Did you ever see that?

A. No. I don't remember seeing it.

Q. Would you like to see it?

A. Yes. If you have it.

Q. Would it surprise you if a bulging disc was found at L4[-]5 back in October 21st of -- 1997 also?

A. No. It doesn't surprise me at all. It is exactly the same what he had in 2000 before the accident.

Q. Okay. So that doesn't affect your opinion in this case that the patient's present complaints are a result -- are the result only of the October 2001 accident and not his prior ones, right? It doesn't affect that?

A. No. Not my opinion of that radicular pain which I'm describing.

[Emphasis added.]

Further in his testimony Dr. Mian made clear that, in his opinion, the pain attributable to the October 11, 2001 accident was the result of an aggravation of preexisting injuries which may have been caused by the 1997 and/or 2000 accidents. Specifically, according to Dr. Mian, although plaintiff's lower back injury predated the 2001 accident, his radicular symptoms, (pain radiating from his lower back down his left leg), were not present before the 2001 accident.

Q. I think you gave an opinion to this jury that the disc bulges at L4[-]5 and L5[-]S1 were either caused, related to, or aggravated by the automobile accident of October 2001. Is that correct?

A. That's correct.

Q. They weren't caused by it. You know that now, right? I just showed you an MRI report from a year before the accident and another one from three years before the accident that showed the same condition. So that existed and it wasn't caused by the automobile accident, right?

A. No. I think you did show me that at L4[-]

5 the disc above what I'm talking about has similar condition four years ago, one year ago. And at this time it may be little bit different, little bit more. At L5[-]S1 which is the nerve which is causing the pain to the patient which is causing the radicular symptoms to the patient had no bearing before.

He had never had radicular pain. He never had a pain -- shooting type of pain as far as I know the history of this patient.

Q. So you're basing your opinion before this jury based on the patient's complaints then, right, the patient's complaints?

A. No. I'm [] putting all things together, including patient's symptoms, . . . the exacerbations, my examination, my EMG, MRI -- the report, which is different, and over two years period of time [sic] seeing the patient I put all things together.

* * * *

Q. Do you believe that the bulging disc located at L4[-]5 in 1997 and 2000 was caused by the automobile accident in 2001?

A. No. There was a bulging there before. It is aggravated by this accident.

[Emphasis added.]

These carefully developed facts only serve to crystallize the overwhelming prejudice caused to plaintiff's case by defense counsel's untimely disclosure of a report prepared by plaintiff's treating physician in the 1997 accident. The magnitude of the problem can best be appreciated when viewed in the light of the procedural posture of the case at the time this issue arose.

II

Although the scope of the trial was limited to a determination of damages, it took four days for the case to be delivered to the jury for deliberation. Defense counsel first brought up the issue of the report after both sides had rested and the charge conference had been completed. The record reflects only defense counsel's seemingly innocuous but, considering the procedural status of the case, incongruous comment that he had "a couple of questions for Mr. Labas." Although not entirely clear, counsel's comment appears to have been directed at the trial court. Inexplicably, this drew no reaction or comment from the court.

The issue surfaced again when plaintiff's counsel addressed the court challenging the propriety of the defense counsel's "request." Plaintiff's counsel objected to the report on hearsay grounds. It is also clear from the record, that plaintiff's counsel had not been provided with a copy of the report in discovery and had no idea of its content, even as he argued against its introduction. Defense counsel offered the following argument in support of his application:

I think there's two reasons why I can do it. One is that statements regarding current condition and complaints are not by . . . definition hearsay. And the other is it's a credibility issue in this case at this point in time. And a credibility issue significant to the opinion of Dr. Mian.

[Emphasis added.]

Despite this proffer, the only ostensible explanation offered by defense counsel for his failure to address this issue directly with Dr. Mian in the course of his cross-examination was that he "did not have [the 1997 report] specifically at [his] fingertip[s] when Dr. Mian was still on the stand." (Emphasis added). The trial court responded to this "explanation" stating, "I'm going to allow it. It goes to credibility."

The court acknowledged, however, that the report contained "double hearsay" statements. Thus, in an effort to cure the hearsay problem, the court decided to "tell the jury that . . . they're not hearing about it as to the truth of the matter that is his foot hurt or whatever it was, but as to credibility."

After the jury returned to the courtroom, the court announced that defense counsel was recalling the plaintiff to the stand. Thereafter, the following testimony was presented to the jury.

Q. With regard to the 1997 accident were you treated by a Dr. Weiss?

A. I do not recall the name, but I'm sure I was treated by some doctor.

* * * *

Q. Okay. But in connection with that 1997 automobile accident did you ever tell Dr. Weiss that you had pains from your back running down your left leg and sometimes even into your feet?

A. What I do remember from that accident is that I complained about the lower back and I did complain about the upper back and the neck, but that's -- that's my recollection. I do not recall what in particular I told Dr. Weiss.

Q. Okay. Do you remember ever telling any of the doctors who treated you for that 1997 accident that you had pains in your low back running down your left leg?

A. Sir, I do not recall. There have been a lot of activities since then. There have been a number of injuries since then. And I've spoken to a number of doctors. There are a lot of people in the medical profession who are friends of mine. I do not recall what was said to a particular doctor eight years ago.

Q. I just want to show you a record, a report of David Weiss, D.O., dated November 12, 1997. And Dr. Weiss reported -- and tell me if I read this wrong. "[Plaintiff] has neck and low back pain daily in nature. [Dr. Weiss] notes radicular pain involving the left lower extremity and notes occasional episodes of pins and needles down the left leg as well.

A. You read it correctly, yes.

Q. Okay. After I've shown you that, does that refresh your recollection of having given those particular complaints to Dr. Weiss back in 1997?

A. Again, I do not recall saying that, but if it's on the paper and signed by Dr. Weiss, I'm sure that's what happened.

[Emphasis added.]

Plaintiff's counsel did not object to the manner defense counsel questioned plaintiff as to the contents of Dr. Weiss's report. As the examination continued, defense counsel asked plaintiff whether he requested that his karate instructor write a letter setting out the length of time plaintiff had missed from his program. This prompted the following sidebar exchange between the attorneys.

[PLAINTIFF'S COUNSEL]: This is another document I've never seen. May I see it?

[DEFENSE COUNSEL]: Sure. That's [plaintiff's] letter. The one underneath it is a letter from Bryan [the karate instructor] written I think to Mazzel [plaintiff's attorney in connection with the 1997 accident].

[PLAINTIFF'S COUNSEL]: I'm trying to read this. I'm just figuring what he's saying.

[DEFENSE COUNSEL]: All I want to do is show him the one underneath for refreshing the recollection as to how much time he missed from karate and kick boxing as a result of the '97 accident.

[PLAINTIFF'S COUNSEL]: So now we want to use the hearsay statement of another witness?

THE COURT: Well, first of all, this is --

[DEFENSE COUNSEL]: I can use anything to refresh his recollection.

THE COURT: This is an admission. This is an admission.

[PLAINTIFF'S COUNSEL]: Well --

THE COURT: This is signed by him.

[PLAINTIFF'S COUNSEL]: Well, when you're saying this, you're talking about the May 15, 1998, letter --

THE COURT : Yes.

[PLAINTIFF'S COUNSEL]: -- from Mr. Labas to his lawyer at the time.

[DEFENSE COUNSEL]: He just said he may. I'm not going to deal with this. All I want to do, he doesn't know -- he said a couple of months. I want to show him this and ask him if it refreshes his recollection.

[PLAINTIFF'S COUNSEL]: Well --

[DEFENSE COUNSEL]: -- about how long it was.

[PLAINTIFF'S COUNSEL]: Well, if you're going to do that, I would prefer that you not read the contents.

[DEFENSE COUNSEL]: I won't.

[PLAINTIFF'S COUNSEL]: Let him read it and see if he refreshes his recollection.

[DEFENSE COUNSEL]: I won't. Okay. That's fair.

THE COURT: Okay.

[Emphasis added.]

III

We will now address the legal issues implicated by these facts.

The trial judge is responsible for the management of the trial and is vested with wide discretion to perform this function. New Jersey Div. of Youth and Family Servs. v. J.Y., 352 N.J. Super. 245, 264 (App. Div. 2002); State v. T.E., 342 N.J. Super. 14, 18 (App. Div.), certif. denied, 170 N.J. 86 (2001). Toward that end, N.J.R.E. 611 confers upon the trial judge the authority and responsibility to "exercise reasonable control over the mode and order of interrogating witnesses and presenting evidence so as to [] make the interrogation and presentation effective for the ascertainment of the truth. . . ."

N.J.R.E. 612 provides that:

[I]f a witness while testifying uses a writing to refresh the witness' memory for the purpose of testifying, an adverse party is entitled to have the writing produced at the hearing for inspection and use in cross-examining the witness. The adverse party shall also be entitled to introduce in evidence those portions which relate to the testimony of the witness but only for the purpose of impeaching the witness.

The correct practice when utilizing a writing for the purpose of refreshing a witness's recollection, is for the witness to first be given the opportunity to read the document privately, to himself or herself, and then inquire whether the contents of the writing has refreshed the witness's memory. This manner of proceeding is intended to prevent the unwarranted disclosure to the factfinder of potentially prejudicial incompetent evidence.

Our discovery rules are designed to promote an equally important salutary goal, "to eliminate, as far as possible, concealment and surprise in the trial of lawsuits to the end that judgments therein be rested upon the real merits of the causes and not upon the skill and maneuvering of counsel." McKenney v. Jersey City Med. Ctr., 167 N.J. 359, 376 (2001) (quoting Wymbs v. Twp. of Wayne, 163 N.J. 523, 543 (2000)). Thus, both sides in a civil dispute should have a fair and reasonable opportunity, well in advance of trial, to evaluate the evidence each side intends to use in furtherance of his or her case and, if there are legal grounds, to seek the aid of the court in preventing such evidence from improperly affecting the outcome of the trial.

The timely application of these bedrock principles would have prevented the undeniable prejudice plaintiff endured as a result of defense counsel's eleventh hour revelation of Dr. Weiss's report. From his reaction, there is no question that the report's existence came as a complete surprise to plaintiff's counsel. He was therefore understandably unprepared to counteract its devastating effect. But the prejudice did not end there. Rather than permitting the witness to read the report privately, defense counsel read the contents of the document out loud, thus circumventing the safeguards provided in N.J.R.E. 612. This was nothing less than an introduction through the "backdoor" what the trial court had previously determined to be inadmissible "double hearsay" evidence.

Given the procedural posture of the case, the trial court should have, at the very least, forcefully demanded that defense counsel provide a more suitable explanation for his failure: (1) to produce this crucial document in discovery; and (2) to raise the issue during the cross-examination of the plaintiff and/or of the plaintiff's expert. Under these circumstances, defense counsel's brief, off-the-cuff statement that the report "was not specifically at my fingertip[s]," is simply insufficient.

The trial court's attempt at mitigating the damage caused by the Weiss report was not only ineffective, but may have compounded the problem by adding the element of confusion to the mix. As noted earlier, as part of its in limine ruling, the court indicated to counsel that it would instruct the jury that it should consider the statements in the Weiss report only for the limited purpose of assessing plaintiff's credibility. Thus, as part of the general charge, the court gave the jury the following instructions: "Also during this case there was reference to the plaintiff's complaints to Dr. Weiss. Please know that you heard that not to prove the truth of the matter asserted, but only as to plaintiff's credibility."

On their face, these instructions leave the jury to consider a paradox. If the statements in the Weiss report are not to be considered as proof of the matter asserted (complaints of radicular pain attributable to the 1997 accident), then how do they affect the credibility of plaintiff's testimony that he only experienced these symptoms after the 2001 accident? Stated differently, the only way for plaintiff's credibility to be affected by the Weiss report, is to consider the report as accurately and truthfully stating plaintiff's radicular symptoms attributable to the 1997 accident. As the following excerpts from his closing argument indicate, this point was not lost on defense counsel.

Dr. Mian after fighting with me, when we boil it down to [] his opinion is, all right, there were two bulges in the 2000 MRI which predates your accident by a year. And there were the same bulges in the 2001 MRI which was after.

And he didn't know about one of those bulges existing on a 1997 MRI from the accident back then. But he says finally the reason I say that -- that the 2001 accident caused more injury to this plaintiff is because he never had complaints running down his leg before.

Now [plaintiff's counsel] asked him about his -- his health doctor's file, [] the guy he went to when he had a cold or a bad fever or something like that. And he said is there anything in there about low back? No. Only one time a couple of months before the 2001 accident.

Is there anything in there about radiculopathy? No, there isn't. Well, he didn't treat with that doctor for his back problems. He had other doctors he treated for with his back problems. And one of them we read about today. That was Dr. Weiss.

He told Dr. Weiss back in 1997 that he had constant daily pain in his neck, in his back, that ran down the left leg. Exactly the same thing that Dr. Mian said was never in the record before. And into the foot.

Dr Mian's opinion can be -- can rise no higher than the facts upon which it's based. And the facts upon which his opinion are based are flawed. They're wrong. He did have that complaint before.

[Emphasis added.]

The hallmark of judicial proceedings is fairness. Trials are not mere contests, to be won by any means necessary. With all the imperfections inherent in any enterprise devised by human beings, trials are our best effort to determine truth, thereby achieving a measure of justice. The ability of the courts to perform this function depends upon the fair administration of procedural rules. These rules are not there just to describe how "the game is played," they are designed and intended to implement the constitutional promise of due process. When the essence of these rules is violated, the outcome of the proceedings cannot stand.

Reversed and remanded for a new trial.

 

We note that the remark by defense counsel was fleeting and apparently inadvertent. The trial court immediately responded to plaintiff's counsel's objection with an appropriately worded curative instruction.

In fact, plaintiff's counsel specifically asked defense counsel to show him the report "before [plaintiff] is cross-examined with it since I've never seen it."

Defendant argues that the trial judge was incorrect in its determination, because plaintiff's statements to Dr. Weiss, as reflected in the report, were admissible under N.J.R.E. 803(c)(4), as "[s]tatements made in good faith for purposes of medical diagnosis or treatment which describe medical history, or past or present symptoms, pain or sensations. . . ." Our discussion here, however, does not concern the correctness of the trial court's ruling.

(continued)

(continued)

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A-4470-04T1

July 28, 2006