WALID ABOUTAY v. MATTHEW T. SAVARINO

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5458-04T55458-04T5

WALID ABOUTAY,

Plaintiff-Respondent,

v.

MATTHEW T. SAVARINO,

Defendant-Appellant,

and

TYLER M. TOWNSEND,

Defendant-Respondent,

and

JOHN A. SAVARINO,

Defendant.

_______________________________________

 

Argued May 23, 2006 - Decided August 1, 2006

Before Judges Axelrad, Payne and Sabatino.

On appeal from the Superior Court of New Jersey, Law Division, Hunterdon County, L-66-03.

Joseph F. Trinity argued the cause for appellant (Gebhardt & Kiefer, attorneys; Mr. Trinity, on the brief).

James J. Dunn argued the cause for respondent Walid Aboutay (Levinson Axelrod, attorneys; Mr. Dunn, on the brief).

William L. Brennan argued the cause for respondent Tyler M. Townsend (Callan, Koster, Brady & Brennan, attorneys; Mr. Brennan, on the brief).

PER CURIAM

In this multi-vehicle accident case, defendant Matthew Savarino appeals a judgment entered against him on March 28, 2005, following a four-day trial in which the jury awarded the injured plaintiff, Walid Aboutay, the sum of $850,000. Savarino also appeals a May 27, 2005 order denying his motion for a new trial on various grounds.

We affirm the judgment of liability finding Savarino, who admitted his own negligence in causing the accident but also alleged fault by a codefendant driver, solely responsible for plaintiff's injuries. However, we remand for a new trial on damages, because of the foreperson's suggestion to the court that the jury's award could have been the product of an improper quotient verdict and because of the lack of sufficient inquiry into that possibility before the jury was discharged, as mandated by Shankman v. State, 184 N.J. 187, 198 (2005) and Cavallo v. Hughes, 235 N.J. Super. 393, 398 (App. Div. 1989).

I.

This case arises out of a three-vehicle accident that occurred on the night of January 24, 2002. Plaintiff was delivering pizzas by car in a rural area in Hunterdon County. The conditions were dark and foggy, and the roads were slick from an earlier drizzle. Plaintiff was traveling around a bend on Sergeantsville Road, a two-lane thoroughfare, when he saw two sets of headlights coming towards him in a no-passing zone. The headlights emanated from a pick-up truck driven by appellant Savarino and from an auto driven by codefendant Tyler Townsend. Savarino had been attempting to pass Townsend, accelerating his truck to a speed of about fifty to fifty-five miles per hour in a thirty-five mile per hour zone.

According to Savarino's testimony, he had tried to pass Townsend because he perceived that she was driving too slowly and thought she might not know where she was going as she had a California license plate. Savarino claimed, contrary to the testimony of Townsend, that he began his passing maneuver in a legal passing zone, but that Townsend had resisted his effort by speeding up her car. Eventually, Savarino succeeded in getting past Townsend, but as he moved back into the lane in front of her car and pressed the brakes, he started to lose control of his truck, swerving again into the opposite lane. At this point, plaintiff's car came around the bend from the oncoming direction. Upon seeing the two sets of headlights rapidly approaching him, plaintiff attempted evasive action. He swerved into the opposite lane, colliding head-on with Townsend's automobile.

The collision trapped plaintiff's right foot under the gas pedal, and a local fire crew removed him from his vehicle. He was taken to a nearby hospital, where emergency medical staff diagnosed him as having a fractured right elbow as well as dislocated fractures of the right tibia and fibula extending into the ankle joint with a dislocation of the joint and torn ligaments.

Plaintiff underwent immediate surgery, consisting of an open reduction and internal fixation of the ankle, anchored with two metal screws. His right leg was placed in a cast, extending from his foot up to his knee, which he wore for approximately three to four months, after which he underwent physical therapy. Plaintiff later underwent a second operation to remove the hardware from the first surgery. He continues to wear a leg brace and a stocking for swelling. His elbow injury has healed.

Plaintiff was out of work for about three to four months after the accident and for an additional month after the second surgery. He testified that he continues to suffer from constant pain, swelling, hot sensations and limitations on the movement of his ankle, noting that the pain and swelling were increasing more than three years after the accident. Plaintiff's medical expert, Jerome Elliot Decker, M.D., an orthopedic surgeon who was one of his treating physicians, opined that plaintiff's condition will deteriorate with time and that he will develop post-traumatic arthritis in the future. The defense presented expert testimony from Michael Deehan, M.D., also an orthopedic surgeon, who examined plaintiff and opined that his ankle fracture was well healed and that successive x-rays taken in 2002 and 2004 showed intact joint space in the ankle and no signs of post-traumatic arthritis.

The jury was charged on March 10, 2005 and retired to commence its deliberations that day at 2:35 p.m. Around 4:30 p.m., the trial judge received a note from an alternate juror, who apparently had a flight to catch that evening, inquiring about the time the deliberating jury could take to reach a verdict. After conferring with counsel, the trial judge summoned all of the jurors to the courtroom and responded to the alternate's timing inquiry as follows:

First of all, no one is going to rush you on your verdict. You'll get as much time as you need . . . [.]

I need to inform you of a logistical issue which is that the -- some of the court personnel have to leave by 5:15 [p.m.]. So if you're unable to reach a verdict by that point, we will resume tomorrow at -- I would ask that you come in at 8:30 [a.m.]. But again, it's critically important [that] nobody feel[s] rushed, you [should not] feel we['ve] got to do it by 5:15 because everything the Court said about giving justice and paying careful attention and deliberating impassionately continues.

So what I think I would ask you now is would you prefer to break now or would you want to continue until 5:15 . . .?

. . . .

Why don't we send you back into the deliberation room[?] If you want to[,] reply by note as to . . . whether you want to stay until 5:15 or break for today and continue tomorrow. We would like to start tomorrow at 8:30 if that . . . isn't a problem for anybody.

. . . .

If you wish to address the timing issue by note, please let us know. Otherwise, we'll figure at approximately 5:15 we'll call you back and adjourn for the day. But again, [it's] just critically important that you don't think of that 5:15 as a deadline for you making a decision. I notice several of you--you all seem to understand that. Some of you are nodding yes, so you all do understand that. Thank you.

This guidance was consistent with the judge's preceding colloquy with counsel, and none of the attorneys objected to the instruction.

The jurors again retired to decide if they would continue to deliberate any further that day. They opted to press ahead, and the judge was informed of that fact at 4:47 p.m. through a note from the foreperson. At 5:05 p.m. the jury returned with a verdict.

In announcing the verdict on the record, the foreperson first indicated that the jury had found that Townsend was not negligent. Proceeding down the verdict sheet, the foreperson then stated that the jury had awarded plaintiff $850,000 in damages, as the amount of money necessary to "reasonably and fairly compensate the plaintiff for his injuries and losses." The foreperson additionally stated that the jury's votes on the liability issue and on the damages award were both unanimous, i.e., six to zero.

Savarino's counsel then requested that the clerk poll the jurors on the verdict. All six jurors individually confirmed that the liability verdict was unanimous. The clerk then began to poll the jury regarding the damages award, at which point the the following exchange took place:

THE FOREPERSON: The same -- can we do a side bar?

THE COURT: No.

THE FOREPERSON: We were taking an average. We all --

THE COURT: Wait a second. You all are -- either agree on the verdict or you don't.

THE FOREPERSON: Okay. 850,000.

[Emphasis added.]

The clerk then polled the six jurors regarding the $850,000 award, and they unanimously confirmed their agreement with that amount. Concerned about the foreperson's earlier comment about the jurors "taking an average," the judge decided to have the clerk again confirm from the jurors whether "the verdict of the [$]850,000 [is] a verdict to which you each individually agree?" The polling on this question was repeated and the jurors' responses were again unanimous.

At that point Savarino's counsel requested to be heard at sidebar, and the following colloquy ensued. Although the colloquy is lengthy, we present it here almost in its entirety because of its importance to our disposition of Savarino's appeal.

MR. TRINITY [SAVARINO'S COUNSEL]: I continue -- obviously the foreperson, in response to your question about whether there was agreement on the verdict amount, said that, well, it was an average how they may have come to an agreement on the $850,000 -- not based on an agreement on that number but by some agreement that they were going to agree to an average. And we could have one of those numbers being $50 million.

THE COURT: That's speculation.

MR. TRINITY: I know that's speculation, but it's speculation based on the records from the jury.

MR. DUNN [PLAINTIFF'S COUNSEL]: Juries average all the time. That's how they come to verdicts. They all come to a compromise which the jury is supposed to do. There's supposed to be give and take. And a verdict at 850,000, there really is no issue.

MR. TRINITY: I'm not sure how juries come to their verdicts. As I understood the charge, they were to agree on a verdict amount. There was no charge that they were to average it or come to a compromise.

THE COURT: It would not be illogical since no instruction is given as to amount. I don't know how in the world under that charge anyone would expect them initially to have a single amount. Almost be beyond human endeavor to say without any guidance[,] hearing only you three [in summations,] that they're all going to agree on the same amount.

I think what we started to have was the foreman giving a rationale which jurors are not supposed to do. But I did for the record ask that additional question do you agree with this verdict, and I don't think there's anything more the Court can do. I don't blame you for putting your concerns on the record.

MR. TRINITY: I understand. My concern is there is an agreement as to an average and not as to a verdict amount. I'm sorry.

. . . .

THE COURT: I think the question I asked is the only one that could be asked under the circumstances, so the Court's going to enter judgment in accordance with that verdict.

Maybe some day another Court will look at it and review. The Court can't control that. The Court only can do what seems appropriate under the circumstances right now, and the Court has not heard any compelling argument that what this jury has done is out of bounds or is based on bias or prejudice or flipping a coin.

. . . .

THE COURT: I'm not sure. Is any attorney requesting any additional questions?

MR. DUNN: No.

THE COURT: I suggested that to Mr. Trinity and I said I don't think I have to. But if you feel there's some additional question I should ask?

MR. BRENNAN [TOWNSEND'S COUNSEL]: I think you started --

THE COURT: I don't think there's anything much beyond what the Court asked.

MR. TRINITY: I think the Court's follow-up question was good. I mean they're all going to now at this point -- they're all going to say 850,000 to whatever question is asked. However, that still does not alleviate my concern they may have -- there may not have been an agreement on that number.

THE COURT: No, we cannot inquire into the thought processes of the jurors. If anyone started to say we did this and then we came together, we came apart, we came back, that would be inappropriate for the deliberative process.

We can do that one question, do you subscribe to this verdict, and the answer is yes.

MR. DUNN: Just --

THE COURT: Go ahead.

MR. DUNN: Just so my record's clear, look, the jury, I'm sure they average in a lot of cases. There's nothing prohibited about it. The bottom line, we polled individually do you all agree with the amount of $850,000. Every one of them said yes and that's the record which should be satisfactory.

MR. TRINITY: Again, just the question was asked do you agree with the verdict amount and the answer wasn't yes. The initial was, well, we averaged, and that's not yes. But --

THE COURT: The answer then became yes, but the record is what it is.

MR. DUNN: Okay.

THE COURT: And the Court's ruling is what it is.

MR. DUNN: Thank you.

Following the colloquy, the judge thanked and discharged the jurors. A few days later, on March 28, the court entered a judgment in favor of plaintiff against defendant Savarino in the sum of $953,490.87, which included the $850,000 verdict, a previously-stipulated additional sum of $23,948.64, and prejudgment interest.

Savarino filed a motion for a new trial, arguing that the jury's damages award was an illegal "quotient verdict." Savarino also claimed that the verdict comprised a miscarriage of justice because the trial judge had permitted plaintiff's counsel to pose leading questions to co-defendant Townsend under N.J.R.E. 611(c), in a manner prejudicial to Savarino. Lastly, Savarino contended that plaintiff's counsel had made an improper comment during summation. After hearing oral argument, the trial judge denied the new trial motion, amplifying his findings in an extensive memorandum opinion dated May 27, 2005.

This appeal by Savarino followed.

II.

Initially, we address Savarino's argument that the trial judge misapplied his discretion in permitting plaintiff's counsel, as part of his case-in-chief, to pose questions to codefendant Townsend in leading form, pursuant to N.J.R.E. 611(c). Savarino contends that Townsend, who had minimal automobile insurance coverage as compared with that of Savarino, was not truly adverse to plaintiff, and that it thus was improper for the trial judge to permit plaintiff's counsel to lead Townsend in her testimony. Savarino further contends that he suffered prejudice as a result of the leading questioning, because it afforded plaintiff the opportunity, in essence, to present his theory of the case twice: once through Townsend's guided testimony and again through plaintiff's own direct examination. We reject these claims, substantially for the reasons expressed in the trial judge's memorandum opinion. We add here our own comments reinforcing that analysis.

As a general matter, N.J.R.E. 611(a) states, in pertinent part, that "[t]he court shall exercise reasonable control over the mode and order of interrogating witnesses . . . [.]" This provision reflects the "broad discretion invested by the common law in trial judges to control the scope and mode of examination of witnesses, during both direct and cross-examination." Biunno, Current New Jersey Rules of Evidence, Comment 1 to N.J.R.E. 611 (2006 ed.); see also Cestero v. Ferrara, 110 N.J. Super. 264, 273 (App. Div. 1970), aff'd, 57 N.J. 497 (1971). Such discretion is specifically embedded in subsection (c) of Rule 611 concerning leading questions:

(c) Leading questions. Leading questions should not be used on the direct examination of a witness except as may be necessary to develop the witness' testimony. Ordinarily, leading questions should be permitted on cross-examination. When a party calls an adverse party or a witness identified with an adverse party, or when a witness demonstrates hostility or unresponsiveness, interrogation may be by leading questions, subject to the discretion of the court.

[N.J.R.E. 611(c) (emphasis added).]

Our present evidence rules thus expressly allow a party who calls an adverse party as a witness, as is his or her right under N.J.S.A. 2A:81-6, to pose leading questions to that adverse party, even absent a particularized showing that the witness is "hostile" or "unresponsive." This principle, which deviates from the common law requirement of proof of actual antagonism, see, e.g., Lerman v. Lerman, 245 N.J. Super. 312, 318 (Ch. Div. 1990), tracks the categorical approach of Federal Rule of Evidence 611(c). However, the opportunity to lead such an adverse party on the witness stand is subject to the trial judge's discretion. N.J.R.E. 611(c).

Here, plaintiff's counsel called codefendant Townsend as his very first witness. Before that direct examination of Townsend proceeded, Savarino's counsel objected to plaintiff's counsel asking her any leading questions, arguing that there was no adversity between Townsend and plaintiff, there being a stipulation that plaintiff was not at fault in the accident. The trial judge, invoking Rule 611(c), denied the blanket application to bar such leading questions, noting that plaintiff and Townsend were clearly adverse on issues of damages, if not as to liability. However, the judge explicitly invited Savarino's counsel to raise objections to specific questions posed to Townsend, which the judge would then address individually.

In the course of Townsend's ensuing direct examination, plaintiff's counsel did indeed lead her testimony in a liberal manner. However, Savarino raised no specific objections to the questions that were posed. As matter of fact, the only objection to that questioning came from Townsend's counsel. The judge sustained that sole objection, because the form of the question at issue was framed, in essence, as the plaintiff's counsel "testifying" about his own understanding of the mechanics of the accident.

Having considered the record as a whole, we discern no abuse of discretion in the trial judge permitting plaintiff's counsel to pose leading questions to Townsend. We reach that conclusion for three principal reasons.

First, there was real adversity between Townsend and plaintiff. Although Townsend's insurance coverage was comparatively slim, Townsend faced substantial personal liability for an excess verdict, had the jury assessed her with a percentage of fault in causing the accident, in light of the significant permanent injuries resulting from the collision. Plaintiff refused to release Townsend as a codefendant, in spite of the fact that her insurer deposited her policy limits with the court before trial. The evidence of Townsend's alleged negligence, i.e., that she wrongfully impeded Savarino's attempt to pass her car, actually was elicited by plaintiff's counsel, in the course of his direct examination of Savarino. When Townsend moved for a directed verdict at the close of plaintiff's case, plaintiff opposed the motion on the basis that "one or both defendants" were responsible for the accident, although his counsel did acknowledge that there was "not a lot of evidence" of Townsend's negligence. Although we appreciate that Townsend surely was a secondary target, she was a target nonetheless, and one sufficient to be deemed adverse to plaintiff for purposes of N.J.R.E. 611. See Black's Law Dictionary 1144 (7th ed. 1999) (defining an adverse party as one "whose interests are opposed to the interests of the other in the action").

Second, Savarino's counsel failed to object to any of the specific questions posed to Townsend. The court granted the sole objection raised to that questioning by Townsend's attorney, a circumstance which suggests that the trial judge was fair in his exercise of discretion and that he would have duly considered any specific objections from Savarino, had his counsel presented any. We discern no plain error in these circumstances. R. 2:10-2.

Additionally, we observe that even if the judge had granted Savarino's blanket application to preclude leading questions by plaintiff's counsel, it is likely that the same narrative details would have emerged from Townsend when she was examined by her own counsel.

All in all, we are confident that the trial judge's determinations under Rule 611 were sound. We thus affirm the judgment declaring Savarino negligent and solely liable for causing the subject accident.

III.

A quotient verdict is produced when deliberating jurors commit to accept, as their final decision, the average of their respective personal assessments of monetary damages prior to calculating that average. Shankman, supra, 184 N.J. at 198 (2005), Pushcart v. New York Shipbuilding Co., 85 N.J.L. 525, 527-28 (Sup. Ct. 1914). Quotient verdicts are illegal. Ibid.; see also Cavallo, supra, 235 N.J. Super. at 398.

In Shankman, the Supreme Court emphasized that the problem with quotient verdicts is not that jurors decide to calculate damages by averaging, but rather that they bind themselves to the outcome before they know what it will be:

The objectionable aspect of such agreements is that jurors who participate in quotient verdicts "agree, without knowing in advance what the quotient will be, to be bound by it and to foreclose the opportunity for further discussion and for comparison and evaluation of individual juror's positions, . . . [and such verdicts are thus arrived at] through a process of chance or gambling and are not founded upon discussion, deliberation, reasoning, and collective judgment in which each juror has an opportunity for individual participation."

[Shankman, supra, 184 N.J. at 201 (quoting Cavallo, supra, 235 N.J. Super. at 398) (citation omitted).]

Thus, proof that the jurors used an averaging process to come to their damages award does not suffice to invalidate the award. Shankman, supra, 184 N.J. at 201. The aggrieved party also has the burden of showing "there was a positive prior agreement to abide by the result of this process . . . [.]" Id. at 200 (quoting Pushcart, supra, 85 N.J.L. at 527).

In Shankman, the Court instructed that trial judges, when confronted with circumstances suggesting that a damages award may represent an improper quotient verdict, cannot rest solely upon the jury polling process to vitiate concerns of impropriety. Shankman, supra, 184 N.J. at 203. The Court held that it was insufficient for the trial judge in that case to poll each juror about whether he or she "agreed with" the damages verdict. Id. at 196-98. Instead, the Court held that the trial judge should have asked the jurors whether the jurors had made an advance agreement to accept an averaged figure, at least when the judge "ha[d] been asked to do so by counsel." Id. at 203.

The Supreme Court's direction on this point is quite strong. "[H]aving been confronted by a specific request from counsel to inquire further, the trial court was duty bound to engage in further inquiry and to remove doubt about an illegal quotient verdict from the record of a reviewing court." Ibid. (emphasis added). The Court noted that the fruits of such inquiry, where it is sought by counsel, assures that the jury "fulfill[s] the supremely important role entrusted to it in our jury trial system." Ibid., citing Kennedy v. Kennedy, 18 N.J.L. 450, 458 (Sup. Ct. 1842) (Hornblower, J., concurring). See also Cavallo, supra, 235 N.J. Super. at 398 n.2 (in declining to vacate a potential quotient verdict where counsel "failed to request any follow-up questions," we recommended that "in future cases when similar issues arise that the trial judge specifically inquire whether there was a prior agreement").

Guided by the mandates of Shankman and Cavallo, we necessarily conclude that the trial judge erred in failing to make further inquiry of the jurors about the genesis of the "averaging" process alluded to by the foreperson. We understand the trial judge's hesitancy in invading the deliberative process of the jury. However, it is possible to minimize the extent of such an intrusion, as Shankman recognizes, by simply asking the jurors whether there was or was not any prior agreement to accept an average sum before the group calculation was made. Such a limited inquiry would not have to delve into the specific numbers or views put forth by any deliberating juror, or the identity of the juror or jurors who had proposed or advocated that they undertake such an averaging process.

Bearing in mind the important principles of verdict integrity at stake, we are satisfied that Savarino's counsel sufficiently raised with the trial judge his concerns that the verdict may have been the by-product of an improper advance agreement to accept an averaged damages award. We recognize that Savarino's counsel, when pressed by the trial judge, ultimately did not suggest any more questions to ask of the jurors once they had been polled in open court about their individual agreement with the $850,000 award, and the judge had expressed to counsel his sense that such polling was sufficient to resolve the issue. However, counsel's failure to follow up on his articulated concerns in the form of a specific question did not eradicate them. As Savarino's counsel hypothesized, the very sizeable verdict, coupled with the foreperson's comment about averaging, raises a specter that there could have been one or more "outliers" on the jury who injected a whopping figure into the group calculations and thus skewed the averaging process. It would be an injustice if that had occurred and the jurors felt bound to accept that skewed average because of a prior commitment to do so.

Of course, it may well be that there was no improper agreement-to-agree among the jurors here before the averaging process was performed, and that the verdict was perfectly sound. We simply cannot tell, the jury having been discharged before a sufficient inquiry into the verdict's propriety was completed.

Given these uncertain circumstances, and the unequivocal directives of our case law, we are constrained to vacate the award and remand for a new trial on damages. We do not do so lightly, for we appreciate the conscientious efforts of counsel and the trial judge to deal extemporaneously with a difficult situation that arose quite unexpectedly at the tail end of the court day. We are also mindful that the Court's instructive opinion in Shankman was issued after this episode occurred, although its principles had been foreshadowed in Cavallo. Nevertheless, we must be faithful to the Court's holdings and carry out the clear dictates of precedent.

Affirmed as to liability; remanded for a new trial on damages.

 

We have highlighted pertinent sections that are relevant to our analysis in Part III of this opinion.

Savarino has not pressed on this appeal an independent argument concerning plaintiff's summation, although he mentions the summation in the context of his argument concerning the fairness of Townsend's direct examination.

In particular, we refer to counsel's expressed reservations about "some agreement that they [the jurors] were going to agree to an average," and his concern that there was "an [advance] agreement as to an average."

As an aside, we reject Savarino's subsidiary claim that the verdict was independently tainted because it was returned so swiftly after the judge's instruction about the expected closing time of the courthouse. As our quotation of the transcript reflects, the judge repeatedly and appropriately told the jurors not be rushed, and we shall presume that the jurors heeded that advice.

(continued)

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A-5458-04T5

August 1, 2006