EILEEN SHIMIZU v. EILEEN M BRANDES-SOCEY

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3495-09T4

EILEEN SHIMIZU,

Plaintiff-Appellant,

v.

EILEEN M. BRANDES-SOCEY,

Defendant-Respondent.

_______________________________

December 7, 2010

Argued November 4, 2010 - Decided

Before Judges Sapp-Peterson and Fasciale.

On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Docket No. L-1090-07.

Eileen Shimizu, appellant, argued the cause pro se.

William F. Hartigan, Jr., argued the cause for respondent (McLaughlin & Cooper, attorneys; John J. Gentile, of counsel; Mr. Hartigan, on the brief).

PER CURIAM

On December 11, 2005, plaintiff's vehicle was rear-ended while stopped for a yield sign entering the Pennington Circle in Hopewell Township, Mercer County. The parties stipulated liability, and the case was tried on damages only. Plaintiff claimed that she sustained permanent injuries to her neck and back. The jury returned a verdict of no cause. Plaintiff's subsequent motion for a new trial was denied, and the present appeal followed. On appeal, plaintiff contends the trial court erred when it permitted voir dire of the prospective jurors concerning plaintiff's cancer and also erred when it instructed the jurors that there was no causal relationship between plaintiff's claimed injuries sustained in the accident and her cancer. We disagree and affirm.

Prior to jury selection, the court addressed a proposed question defense counsel proffered for the jury voir dire:

The testimony in this case may refer to the fact that several years after the motor vehicle accident of December 11, 2005, plaintiff, Eileen Shimizu, was diagnosed with cancer. The parties in this case agree and I am instructing you, that plaintiff's involvement in the motor vehicle accident of December 11, 2005 had nothing to do with the onset or progression of her cancer.

1. Would the fact that the evidence could refer to plaintiff's cancer affect your ability to decide this case fairly and in accordance with the law I give you?

2. Have you had any personal experience with cancer, affecting you or a loved one, which could affect your ability to decide this case fairly and without bias, prejudice or sympathy?

Plaintiff's counsel found the second numbered paragraph to be repetitive of the first numbered paragraph. Additionally, plaintiff's counsel indicated:

[W]hile I am not presenting any expert testimony regarding any nexus between the car accident and the onset of my client's condition, we don't feel as though that it's necessary to say that the plaintiff's involvement in this motor vehicle accident . . . had nothing to do with the onset of the progression of her cancer.

Defense counsel had no objection to eliminating the second numbered paragraph if the court was satisfied the first numbered paragraph adequately covered the subject matter. The court then proposed to advise the jury that "after the accident[,] Ms. Shimizu was diagnosed with cancer and ask the jury whether or not that would have any [e]ffect on their ability to be fair in the case[.]"

Plaintiff's counsel had no objection to this question. Nonetheless, defense counsel expressed the belief that defendant was entitled to have the jury instructed that there was no connection between the two events because there was no evidence to the contrary and cancer is a "highly volatile" and "sensitive" subject matter. In response, plaintiff's counsel acknowledged that plaintiff would not be presenting any "expert testimony to that effect" and expressed that "there's nothing to rebut." The following colloquy occurred between the court and plaintiff's counsel:

THE COURT: What I'm telling the jury is that there is no evidence in this case that the cancer was caused by the accident. It's perfectly correct, isn't it, based upon your proofs? There is no evidence --

[PLAINTIFF'S COUNSEL]: There will be no expert testimony to that effect, that's correct.

THE COURT: So I think that clears it up and I think, look, we don't want -- nobody wants a juror on this case that's going to be unfairly influenced by the fact that the plaintiff has cancer that is not shown to be caused by this accident.

Now there may be other reasons why it may be relevant[.] I'm not going to go through those now. But as far as the causation, there is no evidence here that the cancer was caused by the accident, am I right?

[PLAINTIFF'S COUNSEL]: The last sentence, Judge?

THE COURT: There is no evidence that the cancer was caused by the accident.

[PLAINTIFF'S COUNSEL]: Can I confer with my client for a minute, Judge?

THE COURT: Sure.

[PLAINTIFF'S COUNSEL]: MR. HILLMAN: Thank you.

(Tape off)

(Tape on)

[PLAINTIFF'S COUNSEL]: . . . make this decision but it's our opinion that just simply asking question number one would solve the entire problem.

THE COURT: I understand. But I think in fairness, like I said, we don't want any juror on the jury that would be improperly influenced by the situation so I think that would ferret it out.

We can only presume that the court instructed the jury as it proposed because plaintiff failed to include the actual instruction as part of the record on appeal. Other than the reference to plaintiff's cancer during the voir dire, the only other reference to plaintiff's cancer occurred during defense counsel's opening when he told the jury:

Before we began the case[,] the jury was voir dired or asked about this question about the diagnosis of cancer, to what extent that it's going to be mentioned in this case. I have no idea.

No one is suggesting, and I certainly am not, that you shouldn't have sympathy for the plaintiff having been diagnosed with that condition. I'm not suggesting that at all.

All I am saying is that you should not let any sympathy you have affect your deliberations and your verdict in this case because you were all chosen for this jury because you indicated that you would not.

On appeal, plaintiff urges that "[t]he sole purpose of the voir dire relating to [p]laintiff's cancer worked to present an extra-judicial fact to the jurors without the necessity of proving truthfulness by way of a medical report or a deposition." Additionally, plaintiff argues that the disclosure of the fact of her cancer had nothing to do with the purpose of voir dire, which is to ferret out potential bias or prejudice sufficient to challenge a prospective juror for cause or as a peremptory challenge.

Control over the scope of jury voir dire is left to the sound discretion of the trial judge. Roman v. Mitchell, 82 N.J. 336, 348-49 (1980). The trial judge's exercise of such discretion will ordinarily not be disturbed on appeal absent a showing of prejudice resulting from an abuse of that discretion. State v. Biegenwald, 106 N.J. 13, 27 (1987). The record here does not reflect any abuse of discretion resulting in prejudice to plaintiff.

Plaintiff did not object to the jury being made aware that she developed cancer several years after the accident. Although counsel represented that there would be no expert testimony that there was a nexus between the accident and her subsequent development of cancer, we are satisfied the court did not abuse its discretion by specifically advising the jury that there was no causal connection between the two events. Without such an instruction, the jury was left to speculate that such a causal connection may exist.

Affirmed.