THOMAS MCNALLY v. ROBERT H. GERULDSEN

(NOTE: The status of this decision is .)
 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0342-08T30342-08T3

THOMAS MCNALLY,

Plaintiff-Appellant,

v.

ROBERT H. GERULDSEN and VERONICA

M. GERULDSEN,

Defendants-Respondents.

_______________________________________

 

Argued April 21, 2009 - Decided

Before Judges Skillman and Grall.

On appeal from Superior Court of New

Jersey, Law Division, Middlesex County,

Docket No. L-4101-05.

Martin M. Barry argued the cause for

appellant (Tobias & Kaplan, attorneys;

Mr. Barry, on the brief).

William C. Carey argued the cause for

respondents (McElroy, Deutsch, Mulvaney

& Carpenter, attorneys; Mr. Carey, of

counsel and on the brief).

PER CURIAM

Plaintiff Thomas McNally appeals from the dismissal of a complaint in which he sought damages for injuries sustained in a motor vehicle accident. The case was dismissed because plaintiff, who intended to rely on the results of a magnetic resonance imaging (MRI) to establish the permanent injury required for recovery under the Automobile Insurance Cost Reduction Act (AICRA), N.J.S.A. 39:6A-1.1 to -35, did not have a witness qualified to read the films.

The accident occurred in June 2003. Plaintiff filed the complaint in May 2005. Trial dates were scheduled and rescheduled eight times between May 2007 and August 2008. On August 4, 2008, a jury was impaneled and defense counsel first learned that the radiologist who interpreted plaintiff's MRI would not be a witness at the trial. In plaintiff's responses to defendant's interrogatories, he had indicated that "all treating and examining medical providers" could be expected to testify as to diagnosis, prognosis, course of treatment, degree of permanency and causal connection.

On August 5, 2008, before opening statements, defense counsel moved to bar plaintiff's chiropractor from testifying about the results of plaintiff's MRI unless plaintiff's chiropractor was qualified to interpret MRI films. Plaintiff's attorney acknowledged that the chiropractor was not qualified and that without the MRI results he would be unable to prove a permanent injury as required by AICRA. Relying on this court's decision in Brun v. Cardoso, 390 N.J. Super. 409 (App. Div. 2006), the trial court ruled that the results of the MRI could not be introduced as substantive, objective evidence of plaintiff's injuries through the testimony of the chiropractor. Although the trial court gave plaintiff's attorney an opportunity to arrange for the radiologist to testify at this trial, counsel was unable to do so and requested a mistrial. Defense counsel did not object.

The trial court found that defense counsel's conditional objection to the chiropractor's testimony was timely, and that plaintiff should have anticipated an objection based on Brun. The court concluded that regardless of defense counsel's consent there was no adequate justification for a mistrial. Based on plaintiff's concession that the results of the MRI were essential to proof of his claim, the court dismissed the complaint with prejudice.

Plaintiff's first claim on this appeal is that the trial court erred by concluding that the radiologist's opinion could not be admitted through the testimony of his chiropractor. The argument lacks sufficient merit to warrant extended discussion in a written opinion. R. 2:11-3(e)(1)(E). In Brun, we held that, on objection to admission of the results of an MRI as substantive objective medical evidence of the permanent injury required by AICRA, the testimony of a person qualified to interpret the films is required. 390 N.J. Super. at 421, 424. In Agha v. Feiner, 198 N.J. 50, 59-66 (2009), a case decided after plaintiff filed his brief on this appeal, the Supreme Court not only agreed with this court's holding in Brun but also rejected a claim that Brun announced a new rule of law. The Court explained, "[T]here is simply nothing in our prior jurisprudence or in prior practice to suggest" that an out-of-court diagnosis may be admitted as substantive evidence of a condition over an adversary's objection. Id. at 66. The Court reached that conclusion after considering and rejecting arguments based on N.J.R.E. 703 and 803(c)(6). Id. at 63-66, 66 n.9.

Plaintiff also contends that the trial court erred in denying his unopposed motion for a mistrial. Absent a clear abuse of discretion, this court defers to the trial court's decision on a mistrial motion. Barber v. Shoprite of Englewood & Assocs., Inc., 406 N.J. Super. 32, 51 (App. Div. 2009); State v. L.P., 352 N.J. Super. 369, 379 (App. Div.), certif. denied, 174 N.J. 546 (2002).

Plaintiff has not established a clear abuse of discretion. "The exercise of judicial discretion implies conscientious judgment, not arbitrary action. It takes account of the law and the particular circumstances of the case and is directed by the reason and conscience of the judge to a just result." Hager v. Weber, 7 N.J. 201, 212 (1951) (internal quotations omitted).

The judicial authority to grant a mistrial "should be exercised with the greatest of caution" and when necessary to address "error or irregularity" that deprives a party of the essence of a fundamental right. Wright v. Bernstein, 23 N.J. 284, 296 (1957). The relief is afforded when necessary to remedy unfairness attributable to the party's adversary or judicial error. McKenney v. Jersey City Med. Ctr., 167 N.J. 359, 375-76 (2001) (adversary's failure to disclose surprise testimony); cf. Agha, supra, 198 N.J. at 67-68 (reversal based on inadequate evidence was too harsh where plaintiff's failure to present essential testimony was attributable to the court's erroneous evidentiary ruling). In addition, when a plaintiff's claim is "dependent upon a particular witness's testimony," a mistrial should be granted to avoid "irretrievable loss of the claim" if the witness's failure to appear is attributable to circumstances not reasonably foreseen or "excusable neglect," rather than the plaintiff's "fault." Klimko v. Rose, 84 N.J. 496, 501-02 (1980); see Brun, supra, 390 N.J. Super. at 420 (concluding that a mistrial should have been granted because of the unique and unforeseeable circumstances and the absence of "any case law directly on point"); see also Agha, supra, 198 N.J. at 67-68 (noting that plaintiff was prepared to present the essential witness and would have done so but for the court's erroneous ruling).

In this case, the trial court's decision to deny a mistrial was based on a conscientious assessment of the circumstances of this case and application of the foregoing legal principles. A determination that a mistrial was not necessary to prevent unfairness based on defense counsel's conduct, unforeseen circumstances or excusable neglect is implicit in the court's observation that plaintiff's inability to proceed was based on a failure to anticipate a timely objection to incompetent evidence. Thus, this denial of a mistrial was not an arbitrary action.

Plaintiff argues that the sanction of dismissal that followed was too harsh, especially in light of defense counsel's willingness to consent to a mistrial. Unlike the plaintiffs in Agha and Brun, however, this plaintiff had no reason consistent with excusable neglect for his failure to present the essential witness. For that reason, we cannot conclude that plaintiff's adversary or the trial court's ruling deprived plaintiff of an opportunity to present his claim. See Wright, supra, 23 N.J. at 296. This dismissal was not, as plaintiff argues, a sanction imposed for violation of a procedural rule to block plaintiff from reaching the courtroom. See Ghandi v. Cespedes, 390 N.J. Super. 193, 198 (App. Div. 2007). Rather, the case was dismissed due to plaintiff's admitted inability to establish his claim before the jury that had been impaneled to decide the merits, which is a relevant distinction that plaintiff's argument overlooks.

Affirmed.

 

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A-0342-08T3

May 14, 2009