RENE ZAVALA v. PATRICIA M. NOVAK

Annotate this Case

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-2637-08T3

RENE ZAVALA,

Plaintiff-Appellant,

and

DEBORAH LASSO, his wife,

Plaintiff,

PATRICIA M. NOVAK,

Defendant-Respondent,

and

JOHN R. NOVAK,

Defendant.

__________________________________

Argued November 12, 2009 - Decided January 5, 2010

Before Judges Stern, Sabatino and Newman.

On appeal from the Superior Court of New
Jersey, Law Division, Middlesex County,
Docket No. L-6342-06.

Mitchell D. Perlmutter argued the cause for
appellant (Zavodnick, Perlmutter & Boccia,
LLC, attorneys; Mr. Perlmutter, on the
brief).

Michael J. McCaffrey argued the cause for
respondent (Purcell, Ries, Shannon, Mulcahy
& O'Neill, attorneys; Mr. McCaffrey, on the
brief).

PER CURIAM

This case arises out of a collision between a bicyclist and

a sport utility vehicle ("SUV"). The bicyclist was injured and

filed suit against the SUV driver. A jury found the bicyclist

sixty-nine percent at fault in causing the accident and the

driver only thirty-one percent at fault, thereby resulting in a

"no-cause" judgment in favor of the defendant-driver.

The bicyclist now appeals, raising various allegations of

trial error. We affirm.

At about 5:10 p.m. on March 7, 2006, plaintiff1 Rene Zavala

was pedaling his Mongoose XR200 bicycle eastbound on Dutch Neck

Road in East Windsor. Plaintiff intended to cross the

intersection at U.S. Route 130 and continue east on Dutch Neck

Road. The intersection is controlled by a traffic signal.

There are three lanes on Dutch Neck Road as it approaches

the intersection in the opposite direction, from the east: a

1
Although plaintiff's wife Deborah Lasso was originally named in
the complaint as a co-plaintiff, her claims were dismissed
before trial for failure to provide discovery, a disposition
that she has not appealed. Consequently, we shall use the term
"plaintiff" to refer solely to the bicyclist, Rene Zavala.

A-2637-08T3
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left-hand turn lane for vehicles turning onto Route 130 south; a

middle lane for vehicles continuing straight; and a third lane

for vehicles making right-hand turns onto Route 130 north.

It is undisputed that, upon changing from a red light, the

traffic signal facing east on Dutch Neck Road temporarily

displays an illuminated green arrow for vehicles turning left

onto Route 130 south. When that green left-turn arrow times

out, the signal changes first to an amber-colored arrow and then

to a solid green light. It is also undisputed that drivers on

Dutch Neck Road lawfully may turn left onto Route 130, even

after the green arrow is replaced by the amber and then the

solid green signals, provided that such left-turning drivers

make appropriate observations. The same directional signals

apply with respect to the traffic signal facing west.

As plaintiff was approaching the intersection on his

bicycle on Dutch Neck Road from the west, defendant Patricia M.

Novak2 was approaching in her vehicle on Dutch Neck Road from the

east. She was driving the SUV, a 2004 Nissan Pathfinder.

2
Mrs. Novak's husband, John R. Novak, was the registered owner
of the SUV. Although Mr. Novak was named in the complaint as a
co-defendant, he was not operating the SUV in the accident and
his relationship to the vehicle is not at issue on this appeal.
On plaintiff's motion, Mr. Novak was dismissed with prejudice as
a defendant. Consequently, we shall refer to Mrs. Novak
singularly as "defendant."

A-2637-08T3
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Defendant intended to make a left-hand turn onto Route 130

south.

Although the parties agree that the SUV collided with the

bicycle within the intersection, they offered differing accounts

about the mechanics of the accident. Their disparate narratives

became the crux of the liability dispute at the ensuing trial.

According to plaintiff, who testified at depositions and at

trial through a Spanish interpreter, his bicycle came to a full

stop as he approached the intersection and he initially

encountered a red light. He recalled being on the right side of

Dutch Neck Road, and that he had been riding his bicycle on the

pavement and not on the sidewalk. Plaintiff also recalled that

he had rested one of his feet on the sidewalk and the other foot

on his bicycle as he waited for the light to change.

Plaintiff contended that he waited for a few seconds after

the light changed to a full green before starting through the

intersection. As he pedaled forward, he heard a vehicle, which

turned out to be defendant's SUV, accelerate. Plaintiff claimed

that he tried to go around the SUV, but he was unsuccessful and

the SUV struck his bicycle. The impact temporarily knocked

plaintiff out. When he regained consciousness, plaintiff was on

the ground, approximately forty-five feet from the point of the

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collision, feeling intense pain in his left ankle. His bicycle

also was damaged.

The record suggests that, in approaching the intersection,

plaintiff was under a misimpression about the propriety of

vehicles continuing to turn left onto Route 130 south after the

green left-turn arrow times out. At his deposition, plaintiff

stated his belief that cars on Dutch Neck Road turning left onto

Route 130 "cannot cross" once the green arrow "was already

turned off." Plaintiff indicated that, in proceeding into the

intersection, he had assumed that "no car was going to veer

[into his path] because the arrow was already off so no car can

cross." These deposition answers reflecting plaintiff's

misunderstanding were read to the jury during plaintiff's cross-

examination at trial. Plaintiff acknowledged that he has not

held a driver's license and had not studied the traffic laws.

On appeal, however, plaintiff does not dispute the legality of

cars turning left onto Route 130 with a solid green light,

provided that they make proper observations that the

intersection is clear to do so.3

3
In his final charge to the jury, the trial judge explained the
See N.J.S.A. 39:4-116
applicable traffic laws on the subject.
(regarding special left or right turn lanes controlled by
directional arrows).

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5

Defendant, meanwhile, stated that she had stopped for a red

light in the left-hand turn lane on Dutch Neck Road, facing

west. She recalled being the fifth or sixth vehicle in line to

turn left onto Route 130 south. She also recalled that after

the arrow turned green, several vehicles ahead of her made the

left-hand turn. However, the car immediately in front of her

remained in the turning lane, as the signal changed from a green

arrow to an amber arrow, and then finally to a solid green.

After a brief pause to check oncoming traffic, the car directly

in front of defendant turned left.

According to defendant, once the car ahead of her had made

its left turn, she observed that no other vehicles were coming

from the opposite direction and that the light was still a solid

green. She then drove into the intersection and began turning

left onto Route 130 south. At that point, she reportedly heard

a loud "thumping" sound. She immediately pulled over to the

side of the road, in front of a fast-food restaurant.

Another motorist, Daniel Mileaf, was near the intersection

when the accident occurred. Mileaf became a key witness at

trial. According to Mileaf, he was driving his own SUV, a Kia

Sportage, on Dutch Neck Road, traveling in the same easterly

direction as plaintiff. Mileaf was on his way home from work;

and planned on turning right onto Route 130 south. He first saw

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plaintiff about 100 to 200 yards from the intersection. At that

point, according to Mileaf, plaintiff was riding his bicycle on

the sidewalk. Mileaf was then traveling at about thirty-five

miles per hour. He observed that plaintiff, although he was not

going as rapidly as Mileaf's SUV, was pedaling "very, very hard"

and "very fast." Plaintiff appeared to be standing up and "the

bike was going back and forth while he was leaning into it very

hard." Mileaf estimated that plaintiff's speed was

approximately twenty miles per hour.

Mileaf recalled initially passing plaintiff's bicycle.

Mileaf then began to slow down, because the light at the Route

130 intersection was then red. As Mileaf slowed down,

plaintiff's bicycle passed him, at a point about thirty feet

from the intersection. Mileaf was unsure of the bicycle's

speed at that point, but he believed that it was "still a good

clip" of at least ten or fifteen miles per hour. The light then

changed to green, but Mileaf came to a stop because there were

other vehicles stopped in front of him.

Mileaf testified that he then looked away for a "matter of

seconds" from the area of plaintiff's bicycle to the left, so as

to be sure that no one was going to be coming towards Mileaf

from that direction. Mileaf then "cut [his] wheel to look where

[he] was going," and saw a bicycle "right on the ground directly

A-2637-08T3
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in front of [him]." Mileaf stopped his vehicle and went over to

provide assistance. Mileaf assumed that the bicyclist lying on

the ground was the same bicyclist he had seen pedaling on the

sidewalk, as he recalled "no other bikes there." Mileaf

acknowledged that he did not witness the actual collision.

Detective Christopher Jackson of the East Windsor Police

Department was dispatched to the scene of the accident.

Detective Jackson was a member of the police department's

traffic safety unit, having served in that unit since 1998. He

had received extensive training and experience in accident

investigation, and had completed numerous 80-hour and 40-hour

formal courses on various topics in that field.

Upon arriving at the scene, Detective Jackson examined the

physical evidence, including plaintiff's bicycle and defendant's

SUV, and took photographs. He interviewed defendant but not

plaintiff, whose injuries were too severe to make a statement at

the scene. Plaintiff's statement was taken later, over the

telephone, by an officer who spoke Spanish.

Detective Jackson noted that the SUV had damage to its

bumper and its hood, which was "crumpled up." He also noted

that the left pedal on the bicycle had become detached, and that

there was a mark on the front of the SUV consistent with the SUV

coming into contact with the bike pedal. These physical

A-2637-08T3
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markings indicated to Detective Jackson that the front of the

SUV had struck plaintiff's bicycle.

Detective Jackson also interviewed Mileaf at the accident

scene. According to the police report, Mileaf told the

detective that he had seen the bicycle involved in the accident

"pass by at a rather fast speed while traveling on the sidewalk

toward Route 130."

In his written report, Detective Jackson concluded, for the

purposes of his own investigation, that both plaintiff and

defendant were at fault in causing the collision. Detective

Jackson criticized plaintiff for initially riding on the

sidewalk and then entering the crosswalk as he approached Route

130. The detective wrote that defendant "could not have

anticipated the bicycle emerging from that location." However,

Detective Jackson also criticized defendant for failing to

observe and yield to the bicycle attempting to cross the highway

in the opposite direction, prior to making her left turn onto

Route 130 south. Consequently, the detective did not issue a

traffic summons to either party.

Plaintiff subsequently filed a personal injury action

against defendant in the Law Division, alleging that defendant

had been negligent in driving her SUV and colliding with his

bicycle. Plaintiff sought compensatory damages for his pain and

A-2637-08T3
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suffering, although he did not seek at trial past or prospective

lost wages. Defendant denied liability, and contended that

plaintiff's own comparative fault was the sole or predominant

cause of the accident.

The case was tried before a jury over several days in

October 2008. Plaintiff testified and recounted his version of

the accident. Over the objection of defendant and following an

admissibility hearing under N.J.R.E. 104, plaintiff also

presented expert testimony from Detective Jackson. The

detective's testimony corresponded to the observations about the

accident that he had made in his police report. However,

Detective Jackson was not asked at trial for his ultimate

conclusions about who caused the accident. On cross-

examination, Detective Jackson acknowledged that he had not made

findings concerning either the respective speeds of the bicycle

and the SUV prior to impact, or the distances that they had

traveled.

Plaintiff also briefly called Donald Santora, a detective

with the Mercer County Prosecutor's Office. Detective Santora

had measured various objects at the collision scene and created

a corresponding diagram. On cross-examination, Detective

Santora agreed that the likely point of impact was about ten to

twelve feet south of the crosswalk. However, he could not

A-2637-08T3
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determine whether plaintiff's bicycle had been in the crosswalk

originally and had swerved out of it in an effort to avoid

defendant's oncoming SUV.

The defense presented factual testimony from defendant and

Mileaf. The defense also called, over plaintiff's objection,

William J. Martin, as an expert witness in accident

reconstruction.4 Martin opined that the accident was solely

caused by plaintiff in apparently riding his bicycle on the

sidewalk and then not slowing down as he veered into the

intersection. Martin contended that plaintiff was not likely to

have been visible to defendant, particularly given the time of

day and the associated shadows created by the low sun in the

southwest sky.

Based on Mileaf's eyewitness account that the bicycle was

going about fifteen to twenty miles per hour and other

variables, Martin calculated that it would have taken the

bicycle 0.9 to 1.4 seconds from the point that it entered the

street until it reached the point of impact. By comparison,

Martin calculated that it would have taken defendant's SUV

approximately 4.6 to 5.7 seconds from the time that it started

its left turn to its arrival at the same point. Martin further

4
We shall address the admissibility and contents of Martin's
testimony in more detail in Point II(A), infra.

A-2637-08T3
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determined that, at the time the bicycle came into the

intersection, the SUV was only about thirty to forty-five feet

from the point of impact and thus would have been visible to

plaintiff.

Martin further opined that it is most likely that the

bicycle collided with the front of defendant's SUV at an angle,

and that it was not directly in front of the SUV at the time of

collision. He deduced from the physical evidence that

plaintiff's center of gravity on the bicycle was lower than the

hood of the SUV. According to Martin, had the bicycle collided

with the SUV while being ridden upright, the impact would have

likely caused plaintiff to be catapulted onto the SUV's hood,

and he would have landed at a different spot. These factors

suggested to Martin that plaintiff had to be "going fast enough

to lean hard to the right" on his bicycle at the time of impact.

Martin further noted that the contact marks found on the SUV

after the collision were consistent with his theories of

causation.

Counsel also read into the record various deposition

excerpts. The parties also admitted into evidence numerous

photographs taken of the accident scene.

In addition to these proofs concerning liability, the

parties also presented medical testimony and other evidence

A-2637-08T3
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concerning plaintiff's injuries from the accident. By leave of

this court, the parties have not supplied us with the portions

of the transcript concerning damages, because the issues on

appeal solely relate to liability matters.

By a vote of seven-to-one, the jury returned a verdict

finding that both plaintiff and defendant were negligent,

allocating 69% comparative fault to plaintiff and 31% fault to

defendant. Pursuant to the "ultimate outcome" precepts of our

comparative fault laws, see N.J.S.A. 2A:15-5.1, the trial court

entered judgment in favor of defendant because the jury found

her negligence was exceeded by that of plaintiff.

Plaintiff now raises several alleged trial errors on

appeal. Specifically, he argues that: (1) the trial court

improperly allowed Martin to testify as an expert, and his

opinions were unreliable and contained inadmissible net

opinions; (2) the judge should have issued a special instruction

to the jury emphasizing the presumed accuracy of Martin's

deposition transcript; (3) the judge improperly permitted

defense counsel to ask defendant on cross-examination about

false testimony that plaintiff previously gave at his deposition

about how he had obtained his Social Security number; (4) the

verdict was an improper "quotient" verdict; and (5) plaintiff

was deprived of a fair trial because of the alleged partiality

A-2637-08T3
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of the trial judge. Having carefully considered each of these

arguments, we conclude that none of them have sufficient merit

to warrant a new trial.

II.

Plaintiff challenges the trial court's determination, which

was reached after a N.J.R.E. 104 hearing conducted outside of

the jury's presence, that Martin is qualified as an expert in

accident reconstruction. Plaintiff also complains that Martin's

methodology was insufficiently reliable and scientific under

N.J.R.E. 702 to allow him to present opinions in this case.

Lastly, plaintiff argues that several portions of Martin's

testimony contained inadmissible net opinion. These contentions

are all unpersuasive.

Under N.J.R.E. 702 and the case law developed under that

evidence rule, expert testimony is admissible in the courts of

our State if it conveys "scientific, technical, or other

specialized knowledge" and "will assist the trier of fact to

understand the evidence or determine a fact in issue[.]"

N.J.R.E. 702. Generally, our Supreme Court has applied a three-

part test in reviewing such issues of expert admissibility:

(1) the intended testimony must concern a
subject matter that is beyond the ken of the
average juror; (2) the field testified to
must be at a state of the art that such an
expert's testimony could be sufficiently
reliable; and (3) the witness must have

A-2637-08T3
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sufficient expertise to offer the intended
testimony.

[State v. Kelly,
97 N.J. 178, 208 (1984);
see also Agha v. Feiner,
198 N.J. 50, 62
(2009) (applying this same three-part
admissibility test in a civil context;
Hisenaj v. Kuehnuer,
194 N.J. 6, 15-16
(2008) (same).]

The trial judge had a reasonable basis in this case to conclude

that all three aspects of this admissibility standard were met.

We reach that conclusion mindful that our scope of review of

expert admissibility rulings by trial courts is limited, and

that we should not disturb the trial court's decision unless the

ruling demonstrably comprises an abuse of discretion. Hisenaj,

supra,
194 N.J. at 16; see also Carey v. Lovett,
132 N.J. 44, 64

(1993).

More specifically, we are satisfied from our own review of

the record that the accident reconstruction testimony presented

by Martin comprised "a subject matter that is beyond the ken of

Kelly, supra,
97 N.J. at 208. Accident
the average juror."

reconstruction testimony, as a general matter, has been

recognized as a subject that can be distinctly advantageous to

jurors, in sifting through the sometimes-complex variables

involved in understanding the mechanics of a motor vehicle

collision and the probable cause or causes of the impact. See,

e.g., State v. A.O.,
198 N.J. 69, 88 (2009) (citing accident

A-2637-08T3
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reconstruction as an example of a common subject of expert

testimony); Hisenaj,
194 N.J. at 13-25 & n.6 (approving the

admission of defendant's expert on the biomechanics of an

accident, and also noting that the defense had also produced "an

accident re-constructionist who testified to the impact of the

collision"); State v. Pigueiras,
344 N.J. Super. 297, 302 (App.

Div. 2001), certif. denied,
171 N.J. 337 (2002) (sustaining the

admission of expert testimony from an accident reconstructionist

who opined as to the probable reduction of a skidding vehicle's

speed).

The fact that expert testimony on accident reconstruction

was not required to be adduced in this particular case does not

mean that Martin's expert testimony was unhelpful to the jurors

in their fact-finding role. The parties hotly disputed how the

collision occurred, and whether or not plaintiff's bicycle,

given its position and rate of speed, would have been readily

observed by defendant, the SUV driver, as she made her turn

across the intersection. Indeed, Martin was called, in part, to

counteract some of the opinions offered in plaintiff's case-in-

chief by Detective Jackson, even though Detective Jackson did

not address the ultimate issues of causation at trial.

Additionally, we concur with the trial judge that Martin

possessed adequate qualifications to testify as an accident

A-2637-08T3
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reconstructionist, thereby satisfying another prong of the

Supreme Court's admissibility standard. See Kelly, supra,
97 N.J. at 208. The record indicates that Martin served as an

officer in the Philadelphia Police Department for twenty-two

years, spending the last twelve of those years in the Accident

Investigation Division. During that time, Martin attended

relevant courses at the Northwestern University Center for

Public Safety, as well as the Institute of Police Technology and

Management ("IPTM") at the University of North Florida. He was

the primary investigator of more than 2,400 vehicular accidents

as a police officer. He has received accreditation from the

Accreditation Commission for Traffic Accident Reconstruction

("ACTAR"). Of particular significance here, Martin completed a

pedestrian and bicycle accident investigation course at IPTM.

He has testified as an expert witness more than seventy times in

the courts of New Jersey, the federal courts, and the courts of

several other states. Given that extensive background, we have

no trouble in affirming the trial judge's acceptance of Martin

as a qualified expert.

The remaining requirement of admissibilitywhether the

expert's methodology is "sufficiently reliable"is also

reasonably supported by the record in this case. Kelly, supra,

97 N.J. at 208. As reflected in his expert report and in his

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testimony, Martin traveled to the accident scene, took pertinent

measurements, and obtained photographs. There is no suggestion

in the record that the intersection changed in the interim. He

also studied the written reports and the various accounts of the

collision provided by plaintiff, defendant and Mileaf.

Based on these various sources of information, Martin

performed several calculations of time and distance, which are a

recognized and accepted aspect of accident reconstruction. See,

e.g., Piguerios, supra,
344 N.J. Super. at 302 (sustaining the

admission of testimony from an accident reconstruction expert

who applied friction coefficients to calculate that defendant's

vehicle had reduced its speed prior to collision). From these

calculations and other analysis, Martin presented several

inferences concerning the bicyclist's probable speed and

location in entering the intersection, the comparable speed and

location of defendant's SUV, the likely point of impact, and the

probable angle of the bicycle as it came into contact with the

SUV. Martin properly offered these opinions and inferences, not

as absolute truth, but, as his written report stated, within "a

certainty and accident
reasonable degree of scientific

reconstruction experience[.]"

Plaintiff insists that Martin's expert methodology was

unreliable and unworthy of the jury's consideration. He argues

A-2637-08T3
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that Martin placed undue reliance on Mileaf's observations,

noting that Mileaf's testimony was inconsistent in certain

respects and that Mileaf did not see the actual moment of

impact. Plaintiff also contends that Martin was likely mistaken

in his belief that all of the damage to the SUV was below the

bicycle's thirty-inch-high center of gravity, given a post-

accident photograph showing that the hood of the SUV had damage

marks forty inches high. Plaintiff also attacks various other

aspects of Martin's analysis, including his application of a so-

called "pedestrian-throw" factor; his analysis of the effect of

the late-afternoon light and shadows; his evaluation of the

physical damage to the bicycle's handlebars; and other discrete

factors within his testimony.

All of these counterpoints are the fair subject of

impeachment and cross-examination, but do not render Martin's

See Hisenaj, supra,
194 N.J. at 24; see
testimony inadmissible.

also Lanzet v. Greenberg,
126 N.J. 168, 186 (1991). In sum,

even if some aspects of Martin's expert analysis have

weaknesses, we are satisfied that the trial judge did not abuse

his discretion in allowing the jury to consider the expert's

opinions, as part of the wide range of proofs and counter-proofs

in this case.

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Plaintiff also contends that several portions of Martin's

testimony are inadmissible "net opinion." We recognize that an

expert witness's opinions that are not reasonably supported by

the factual record and an explanatory analysis from the expert

See Creanga v. Jardal, 185 N.J.
may be excluded as net opinion.

345, 360 (2005). In general, an expert should provide the "whys

and wherefores" supporting his or her analysis. Beadling v.

William Bowman Assocs.,
355 N.J. Super. 70, 87 (App. Div. 2002).

We concur with the trial judge's assessment that, in the

main, Martin's expert views were demonstrably "formulated based

upon a foundation of facts and testimony which were made

available to [him] before trial as well as his personal

observations of the site of the accident[.]" The jury had the

prerogative to accept or reject those opinions, in full or in

part. Even if some of Martin's opinions were stated in more

conclusory terms than others adduced from him during his

examination, we detect no harmful error in the jury being

exposed to the full panoply of his evaluation. Any net opinions

that he offered were, at worst, incidental to the overall

capitalized upon by plaintiff's own
presentation, and were

advocacy in cross-examination and summation.

We therefore affirm the trial court's determinations

regarding Martin's expert testimony in all respects.

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III.

Plaintiff next seeks a new trial because of the trial

court's denial of his request to deliver a special instruction

to the jurors about the legally-presumed accuracy of a

4:16-4(d). This argument
deposition transcript under Rule

requires little discussion.

This issue arises as follows. The transcript of Martin's

deposition reflects that Martin stated, at the end of responding

to a question about the physical damage to defendant's SUV that,

"[a]ll of the damage on the SUV is under two feet high." Martin

explained that this observation was significant because the

center of gravity of plaintiff's bicycle, as he estimated it,

was thirty inches. This deposition testimony signified that the

SUV was only damaged below the bicycle's center of gravity,

i.e., below thirty inches. According to Martin, if the damage

to the SUV was below the plaintiff's center of gravity, then it

was likely that plaintiff entered the intersection, saw the SUV,

and made an evasive maneuver. Damage at or above plaintiff's

center of gravity could potentially indicate that plaintiff was

riding upright at impact and took no evasive maneuvers.

However, during his cross-examination at trial, Martin

asserted that the deposition transcript contained a

typographical error, and that he had actually said at the

A-2637-08T3
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deposition that all of the damage to the SUV was under "three,"

not "two," feet high. Martin asserted such an alleged error in

transcription after being shown a photograph by plaintiff's

counsel depicting damage to the SUV above the two-foot mark.

Martin conceded that he had not attempted to correct the

deposition transcript before trial after it had been furnished

to him by the stenographer.

These developments prompted plaintiff's attorney to request

the court to provide the jury with a special instruction about

the presumed accuracy on a transcript prepared by a certified

shorthand reporter. The requested instruction would, in

essence, embody the terms of Rule 4:16-4(d). That Rule

provides, among other things, that "[e]rrors and irregularities

in the matter in which the [deposition] testimony is transcribed

. . . are waived unless a motion to suppress the deposition or

some part thereof is made with reasonable promptness after such

defect is, or with due diligence might have been, ascertained."

Since no such timely request had been made here in advance
Id.

of trial regarding the accuracy of Martin's transcript,

plaintiff wanted the jury specifically told that the transcript,

and not the witness's personal recollection of what he said,

controlled.

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The trial judge declined plaintiff's request for the

special instruction. The judge noted that, in his preliminary

charge to the jury before the trial began, he advised them that

testimony in depositions and sworn interrogatory responses

should be given the same import as testimony from the witness

stand at trial. See Model Civil Jury Charge 1.12E. The judge

further recalled that the jurors had been paying attention when

that explanation was provided.

To counteract Martin's belated claim of a transcription

error, plaintiff called, as a rebuttal witness, the certified

shorthand reporter who had transcribed Martin's deposition. The

reporter explained to the jury that she had checked her

shorthand notes from the deposition. She verified that she had

correctly transcribed Martin's testimony at that session,

stating that all of the damage to defendant's vehicle was "under

two feet high." She also verified that she had signed a

certification at the end of the transcript, attesting to its

accuracy.

Under these circumstances as they developed, we discern no

necessity for the trial judge to have issued a special

instruction to the jury about the accuracy of the deposition

transcript. Martin's claim of a transcription error was

effectively rebutted by the testimony of the shorthand reporter,

A-2637-08T3
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who had no stake in the outcome of this litigation. Plaintiff's

counsel used this discrepancy to his advantage in attacking

Martin's credibility in his summation. Although special

instruction from the court referencing the Court Rule might have

punctuated the discrepancy even further, we do not think the

trial judge was obligated to give one. His handling of this

extemporaneous issue was well within the bounds of permissible

discretion and fairness.

IV.

The next issue raised by plaintiff concerns defense

counsel's impeachment of plaintiff on recross-examination, by

confronting him with an apparently false answer that plaintiff

initially gave in his deposition testimony about the bona fides

of his Social Security number. The entire exchange presented to

the jury was as follows:

[DEFENDANT'S ATTORNEY:] Sir, have you lied
under oath in this case?

A: No.

Q: Sir, do you recall at your deposition I
asked you about your Social Security Number?

A: I misrepresented the question of what
he asked me.

Q: Sir, very simple, under oath at your
deposition, you gave me a false Social
Security Number after you were sworn to tell
the truth, correct?

A-2637-08T3
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A: I swore to tell the truth and I didn't
lie in any way. I misinterpreted the
question. I don't have a Social Security.

Q: You gave me a Social Security Number
and you said that's your Social Security
Number, but it wasn't, right?

A: I don't have a Social Security Number.

Defense counsel asked no further questions of plaintiff, and

plaintiff's counsel eschewed any further redirect examination.

The pertinent deposition testimony alluded to in this

exchange at trial, which was not read aloud to the jurors,

consisted of the following:

[DEFENDANT'S ATTORNEY:] You are here on a
visa?

A: No.

Q: Are you a citizen with a green card?

A: No.

Q: How did you enter the United States?

A: Illegal.

Q: When did you enter the United States
most recently?

A: Four years ago.

Q: How did you enter the United States?

A: Illegal.

Q: How is the question, sir? Bus? Plane?
Automobile? Foot?

A: Airplane.

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25

Q: When did you first enter the United
States of America?

A: November. I don't recall the date.

Q: What year?

A: 2002.

Q: Since you first entered the United
States, you have --

A: No, I don't recall.

Q: How many times have you departed from
the United States and returned?

A: None.

Q: Have you ever been convicted of a
crime?

A: No.
***

Q: Where are you now employed?

A: Home Depot store.

Q: In what town?

A: Hightstown.

Q: Hightstown, New Jersey?

A: Yes.

Q: When you applied for work there, did
you hand in a Social Security card or give a
Social Security number?

A: A Social Security number.

Q: What number?

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A: [Deleted.]

[DEFENDANT'S ATTORNEY:] Is that your Social
Security number?

A: Yes.

Q: If you're not a resident or a citizen
of the United States, how did you get a
[S]ocial [S]ecurity number?

[PLAINTIFF'S ATTORNEY:] Objection as to
form.

A. I don't understand.

Q: How did you get a Social Security
number if you're not a resident or citizen
of the United States of America?

A: What are you asking about? The Social?

Q: Yes, I am asking how you got a Social
Security number.

A: Is it necessary to say where it came
from?

Q: Sir, I ask the questions, if you don't
mind.

A: Illegally.

Q: How did you get it sir?

A: Bought it.

Q: You bought it on a street corner?

A: No.

Q: From where did you buy it sir?

A: It was sold to me.

[(Emphasis added).]

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27

In Serrano v. Underground Utils. Corp.,
407 N.J. Super. 253

(App. Div. 2009), a case decided after the deposition of

plaintiff and the instant trial took place, we held that a

presumption should be applied against the routine discovery of a

plaintiff's immigration status in civil litigation, unless there

are substantive issues in the case, such as a wage loss claim,

that hinge upon a plaintiff's lawful status and ability to work

in this country. Id. at 281 n.8. Following the holdings of

many courts in other jurisdictions, we disfavored in Serrano

such routine status-based inquiries in discovery, because of the

practical "chilling effect" on foreign-born litigants attempting

to vindicate their legal interests in our courts. Id. at 272.

We noted, as other courts have found, that such status-related

inquiries can have an unwholesome chilling effect, even upon

lawful, properly-documented immigrant workers. Ibid. We also

recognized in Serrano the potential for undue prejudice if

evidence of such illegal residency status were admitted at trial

solely for purposes of impeaching an immigrant plaintiff's

credibility. Id. at 275.

Relying upon these recently-announced precepts in Serrano,

plaintiff argues that he is entitled to a new trial because the

trial court here allegedly permitted defense counsel to delve

into his immigration status. We disagree.

A-2637-08T3
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The present scenario is factually distinguishable from the

precise concerns expressed in Serrano, which arose on

interlocutory appeal from a discovery context, not a trial

situation. Defense counsel in this case asked at trial only

about plaintiff's earlier false testimony at his deposition

concerning his Social Security number. Defense counsel did not

ask plaintiff at trial about the legality of his immigration

status. The questioning, which the judge permitted in his

allowable discretion on recross-examination under N.J.R.E. 611,

was brief and circumscribed.

This admissibility issue was anticipated and addressed

through an in limine motion filed by plaintiff before trial.

The trial judge weighed the competing claims of relevance under

N.J.R.E. 401 and prejudice under N.J.R.E. 403, and determined

that inquiry about plaintiff's false deposition testimony would

be admissible at trial for the sole purpose of impeaching

plaintiff's truthfulness as a witness. The judge strictly

instructed defense counsel not to delve into plaintiff's

immigration status, which the judge agreed with plaintiff's

counsel was "a collateral issue which is not pertinent to the

case." The judge made clear that he did not want the jury to

hear defense counsel ask about "immigration" or about

plaintiff's "legal status." Instead, the judge limited the

A-2637-08T3
29

inquiry to pointing out that plaintiff had lied under oath at

his deposition, at least initially before he corrected himself,

concerning his Social Security number.

Defense counsel adhered to the court's admonition in his

questioning of plaintiff before the jury. In fact, defense

counsel made no mention during his summation of the recross-

examination or about plaintiff's false deposition testimony or

Social Security number.

Plaintiff maintains that the recross-examination must have

inflamed the jury against him. Although he acknowledges that

defense counsel did not explicitly address his immigration or

legal status in the United States, he argues that the

questioning must have intimated to the jurors that plaintiff was5

living here illegally. Plaintiff further argues that, although

defense counsel did not talk about the Social Security testimony

specifically in his closing argument, he accomplished that

objective indirectly, by arguing to the jury that the case was

about "credibility" and that plaintiff was not a credible

witness.

On balance, we are satisfied that plaintiff is not entitled

to a new trial arising out of this issue, given the

5
The record is silent as to plaintiff's present immigration or
legal status, and that present status is irrelevant to our
consideration of the evidentiary issue before us.

A-2637-08T3
30

idiosyncratic manner in which the issues arose in this case. We

need not comment upon whether, after Serrano, defense counsel

would have been allowed to question plaintiff at deposition

about his immigration status or Social Security number. The

record before us does not specify when, for example, it became

apparent before trial that plaintiff was eschewing any wage loss

claim.

Given the existence of the false deposition testimony, the

key point instead is whether the trial judge committed

reversible error in allowing the jury to know about that prior

false statement. The statement was admissible under hearsay

principles as a statement by a party opponent. See N.J.R.E.

803(b)(1). The statement also was not established through

extrinsic proof, but instead was acknowledged by plaintiff

himself during his own cross-examination. See N.J.R.E. 607 and

608. Although we recognize the risk that some jurors might be

biased against plaintiff because of his lack of a valid Social

Security number, we also recognize why the trial judge thought

that the fact that plaintiff had lied in his deposition in this

very case had sufficient probative value to justify that risk.

To some degree, plaintiff's status in this country was

self-injected into this case. In his opening statement to the

jury, plaintiff's counsel underscored that his client had come

A-2637-08T3
31

"to the United States from Ecuador to make a better life for

himself and for his family." He further reminded the jurors

that people come to this country from "different backgrounds and

different nationalities" and that "we probably know individuals

as family members that have migrated here to the United States

and some that do not have a good capture of the English

Plaintiff's counsel6 repeated these themes in his
language."

summation, improperly referring to some of the jurors by their

last names and highlighting their own diverse backgrounds.

Counsel repeated that plaintiff had "come to this country to

make a better life for himself and his family." Plaintiff and

his counsel spotlighted his foreign-born status rather than

treating it as irrelevant.

All in all, we discern no "palpabl[e] abuse[ of]

discretion" or any "manifest denial of justice" resulting from

the trial judge's evidentiary ruling on this issue that would

require us to mandate a new trial. See Green v. N.J. Mfrs. Ins.

Co.,
160 N.J. 480, 492 (1999).

Plaintiff's contention that the jurors reached an improper

"quotient verdict" stems from the fact that when the jurors were

6
We note that plaintiff's appellate counsel did not deliver the
opening or closing arguments at trial, which were presented by a
different attorney serving as co-counsel.

A-2637-08T3
32

polled individually about their votes, the jury foreman stated:

"Your Honor, I think, Your Honor, we have a question as to the

way we tabulated but I don't know the forum to ask the

question." The foreman continued, "[m]ay I explain how we each

individually had our own vote and it came to a seven-one vote

and then we used those numbers to take a average which we voted

on the average." The trial judge responded that "when you agree

to the average, which was either 31 percent [or] 69 percent, I

need to know who voted yes and who voted no." The foreman then

indicated that he understood the court's explanation. The final

polling confirmed that seven of the eight jurors had indeed

voted in agreement that plaintiff was 69 percent responsible for

the accident. Plaintiff's counsel did not request the court to

have the jury further polled to explain how they arrived at

their verdict, or to conduct any other investigation into the

matter.

On appeal, plaintiff contends for the first time that the

verdict amounted to an improper "quotient verdict," in violation

of the principles of Shankman v. State,
184 N.J. 187 (2005). As

the Supreme Court noted in Shankman, a quotient verdict is

commonly defined as a situation in which "there [is] a

preliminary agreement or understanding among the jurors that

each will select a figure as representing his opinion of value

A-2637-08T3
33

or damage and that the sum of said amounts divided by the number

of jurors will be accepted by each as his or her verdict, and is

Id. at 198 (quoting Marks v. State Road
in fact so accepted."

Dept.,
69 So. 2d 771, 773 (Fla. 1954)). Such an advance

commitment by jurors to accept an averaged verdict as their

individual verdict is improper, because it "has the capacity to

foreclose all subsequent discussion, deliberation or dissent

among jurors, that is inconsistent with the essential jury

Id. at 200.
function."

The present record is bereft of any indication that the

jurors in this case had mutually agreed in advance to adopt a

final verdict that simply averaged the eight positions of the

individual jurors. Absent such evidence, plaintiff's arguments

about how the jurors conducted their deliberations are purely

speculative. There is nothing wrong, per se, about the remarks

of the foreman to the trial judge, which simply indicated that

the jurors had "voted on the average." Such averaging only

if the jurors had
would have been improper under Shankman

committed to an averaged result in advance.

Plaintiff bypassed the opportunity to investigate the issue

and develop the record further before the jurors were dismissed.

There is no reason at this point to revisit the question.

A-2637-08T3
34

VI.

We have considered the remainder of plaintiff's arguments,

including his unpersuasive contention that the trial judge was

not impartial and deprived him of a fair trial. We detect no

such partiality or unfairness. Indeed, as one counter-example,

the trial court's admission of expert testimony from Detective

Jackson, despite plaintiff's failure to designate him in

discovery as an expert witness, bespeaks a lack of bias against

plaintiff. This contention of bias, as well as plaintiff's

other arguments, lack sufficient merit to warrant discussion in

this opinion. R. 2:11-3(e)(1)(E).

The judgment for defendant is affirmed.

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35

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