ANGELA COLLADO v. MARDY D. ROMAN

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0482-10T1

ANGELA COLLADO,

Plaintiff-Appellant,

v.

MARDY D. ROMAN and

GLORIA TAN,

Defendants-Respondents.

_______________________________

Telephonically Argued June 6, 2011

Decided August 30, 2011

Before Judges R. B. Coleman and Lihotz.

On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Docket No. L-1258-07.

Dominick E. DeFilippo argued the cause for appellant (Mr. DeFilippo, of counsel; Randi S. Greenberg, on the briefs).

David J. Dering argued the cause for respondents (Leary, Bride, Tinker & Moran, attorneys; Mr. Dering, of counsel and on the brief).

PER CURIAM

Plaintiff Angela Collado appeals from a no cause of action jury verdict dismissing her personal injury complaint against defendants Mardy Roman and Gloria Tan. Defendants admitted liability and trial proceeded on the issues of plaintiff's injuries and damages. On appeal, plaintiff argues various evidentiary rulings by the trial judge prejudiced her case, warranting a new trial. We disagree and affirm.

The automobile accident occurred on March 12, 2005. Plaintiff was stopped at a traffic signal on Secaucus Road (County Road 678) waiting to turn right onto the ramp for Tonnele Avenue (Route 1/Route 9 South) in Jersey City, when her vehicle was struck in the rear by an automobile owned by Tan and operated by Roman. According to plaintiff, the vehicle operated by Roman pushed her vehicle five feet forward even though she had applied her brakes at the time of the accident.

After the accident was documented by police, plaintiff reported to work. After a few hours she developed a headache, pressure in her shoulders and other pains that forced her to leave early. The following day, plaintiff continued to suffer from a headache and felt general discomfort throughout her body. When her headache symptoms worsened on March 14, 2005, she sought treatment at St. Mary's Medical Center's emergency room. Plaintiff was treated for her complaints of severe headaches. Plaintiff was prescribed pain medication and discharged the same day. In the ensuing six months, Dr. Anthony Scarpello provided plaintiff with a regular chiropractic treatment for pain in her neck, lower back, arm, and jaw, which included adjustments to the bone, electronic stimulation, manipulation under anesthesia (MUA) and physical therapy.

Plaintiff recovered from most of her injuries; however, the pain in her lower back persisted. Also, in the latter months of 2005 she began experiencing weakness in her legs for the first time, causing her to fall. She experienced these difficulties once every six months. On May 17, 2009, plaintiff fell as she was walking outside of her home towards her door. She explained she did not trip or slip; her legs just gave out. Unlike the previous falls she had suffered, plaintiff felt a "tremendous amount of pain" up and down her entire left leg before she fell and needed assistance to return to her feet. Because she felt severe pain and was unable to stand on her own, plaintiff was taken to Meadowlands Hospital for evaluation.

Plaintiff was diagnosed with a torn ACL in her left knee which was repaired by two surgeries on September 1 and December 8, 2009. Plaintiff used crutches and a cane in the weeks following each surgery, was out of work for seven months and at the time of trial has a four and one-half inch scar at the surgery site.

Plaintiff filed her negligence complaint against defendants on March 9, 2007. At trial, defendants stipulated their liability and plaintiff's proofs were limited to her claim for damages for injuries suffered to her lower back and left knee. During trial, each side presented expert medical testimony analyzing plaintiff's injuries and their cause. Teofilo Dauhajre, M.D., an orthopedic surgeon, testified on behalf of plaintiff; defendants' orthopedic expert was Kevin J. Egan, M.D. Each expert based his opinion on two office examinations of plaintiff and the review of her diagnostic test results. The experts offered differing diagnoses of plaintiff's underlying medical conditions and the cause of her torn ACL.

After a four day trial, the jury returned a verdict in favor of defendant. The jury's answers to the posed interrogatories reflected it found plaintiff proved she sustained injury to her left knee or lower back as a result of the accident, yet failed to prove the injuries suffered in the accident were permanent. On August 20, 2010, the trial court entered an order for judgment of no cause of action.

On appeal, plaintiff challenges certain evidentiary rulings by the trial judge and asserts omissions in the jury charge were error. We examine each of these claims.

Plaintiff argues the trial court erred in barring her use of prior deposition testimony of Dr. Egan. She maintains "[h]ad the plaintiff been permitted to confront the doctor with prior inconsistent testimony given under oath in other proceedings, such inconsistencies would not have only been substantively admissible under [N.J.R.E.] 803(a)(1), but would also have been before the jury for its consideration in determining whether plaintiff's injuries were permanent and causally related to the accident." Plaintiff contends the trial court's erroneous denial "depriv[ed] the jury of the opportunity to consider matters that went directly to the expert's qualifications and credibility," and foreclosed her ability to impeach Dr. Egan's credentials and bias, warranting a new trial.

Our review of evidential determinations is limited. Estate of Hanges v. Metro. Prop. & Cas. Ins. Co., 202 N.J. 369, 383 (2010). The standard we apply is to determine whether the trial court's determination of the admissibility of evidence reflects a misapplication of discretion "because, from its genesis, the decision to admit or exclude evidence is one firmly entrusted to the trial court's discretion." Id. at 383-84 (citing Green v. N.J. Mfrs. Ins. Co., 160 N.J. 480, 492 (1999)). Generally, a "trial court is granted broad discretion in determining both the relevance of the evidence to be presented and whether its probative value is substantially outweighed by its prejudicial nature." Green, supra, 160 N.J. at 492. "'[A] reviewing court should uphold the . . . findings undergirding the trial court's decision if they are supported by adequate, substantial and credible evidence on the record.'" Hanges, supra, 202 N.J. at 383-84 (quoting MacKinnon v. MacKinnon, 191 N.J. 240, 253-54 (2007)). "Stated differently, [] the latitude initially afforded to the trial court in making a decision on the admissibility of evidence -- one that is entrusted to the exercise of sound discretion -- requires that appellate review, in equal measures, generously sustain that decision, provided it is supported by credible evidence in the record." Ibid.

When plaintiff attempted to utilize Dr. Egan's prior deposition testimony, defendants objected because the transcript had not been provided in discovery. Plaintiff argued the document was not previously requested and was privileged work product not subject to discovery. Without discussing the substance of the proposed inconsistent statement, the trial judge excluded the deposition transcript as extrinsic evidence offered for impeachment purposes, which would cause delay and constitute unfair surprise pursuant to N.J.R.E. 611 and N.J.R.E. 613.

Plaintiff identifies two areas to test Dr. Egan's credibility: "how and whether" Dr. Egan earned his foreign medical school degree and "the percentage of his practice which was devoted to clinical work versus litigation exams." We have combed the record without success to locate the exact nature of the claimed inconsistent testimony.1 Nevertheless, the record provides enough information to allow our review.

Plaintiff examined Dr. Egan, asking whether he received a medical degree from Guadalajara University, Mexico, to which he responded he received a "medical diploma," and was degreed by the State of New York and also licensed to practice in New Jersey, which states he is a medical doctor. At sidebar, plaintiff suggested the prior testimony intimated that Dr. Egan did not know the foreign university did not have a medical doctor program. The court suggested plaintiff's request to read the prior deposition would take additional time for her to research the position. Plaintiff relented so long as she was permitted to ask a few more questions regarding the differences between Dr. Egan's awarded degree and an award of a M.D. degree. Dr. Egan responded that he completed his degree requirements, then "transferred back to the American medical school system." Based on this questioning, the point counsel sought to present was clearly placed before the jury. Further, on two occasions, the court offered to stop the trial to conduct a more formal review. These opportunities were declined by counsel, making them unavailable as a basis for appeal. See Harris v. Peridot Chem. (N.J.), Inc., 313 N.J. Super. 257, 296 (App. Div. 1998) ("Trial errors which were induced, encouraged or acquiesced in or consented to by [] counsel ordinarily are not a basis for reversal on appeal.") (citation and internal quotation marks omitted).

Further, plaintiff detailed Dr. Egan's clinical and forensic work efforts. Dr. Egan suggested the proportion is "50-50" but the percentage of each type of work "varies from week to week and month to month." Again counsel sought to use the prior deposition testimony in the ensuing questions. The trial judge recessed for lunch to fully review the issue.

Relying on N.J.R.E. 613, the trial judge exercised her discretionary power to prevent the admission of extrinsic evidence of prior inconsistent statements, which would result in unfair surprise. See Biunno, Current N.J. Rules of Evidence, comment 2 on N.J.R.E. 613 (2011). The court determined plaintiff's failure to provide defendants with the deposition transcript during discovery resulted in unfair surprise at trial. Further, the use of the document was excluded because it raised a collateral issue that would delay the trial and have a tendency to confuse the jury by engaging in a discussion of unrelated facts. See State v. Bulna, 27 N.J. 93, 100 (1958) (holding a trial court may exclude extrinsic evidence which is unrelated to the subject of the jury's factfinding).

We do not agree the trial judge abused her discretion. Arguably, the notice to produce documents seeking "any and all statements or reports made by any person . . . concerning this civil action or its subject matter" is broad enough to encompass the prior deposition of Dr. Egan, defendants' expert. Also, exploration of the technical issue of exactly how many forensic cases and treatment cases Dr. Egan reported on the date of another case or trial would require needless discussion and explanation of what year the other testimony was given, whether his practice changed since that time, and possibly how Dr. Egan classified the various cases -- all of which was tangential to the subject litigation and not likely to aid the jury's review.

More important, plaintiff was given ample opportunity to attack Dr. Egan's bias as an advocate for the defense. Six pages of questions are devoted to this issue. Plaintiff was afforded a fair trial and, on this issue, we discern no basis to reverse.

A second evidential ruling attacked by plaintiff relates to the trial judge's determination to bar photographs or actual presentation of plaintiff's scar from her 2009 ACL reconstruction surgeries. Specifically, the court precluded proofs of the "significant scarring" to vault the verbal threshold. Plaintiff argues the trial court "was unduly restrictive in suggesting that [a "significant scarring"] claim was not properly made, when in fact that claim was inherent in the plaintiff's orthopedic injuries and the treatment she received." We disagree.

As noted, plaintiff filed her complaint in 2007 and had surgery in 2009. She did not amend her interrogatory answers to add residual scarring as a compensable injury until two weeks before trial, well after the discovery end date. Photographs plaintiff intended to introduce depicting the scarring were not provided to defendants until the day of trial.

Plaintiff's auto insurance policy contained the lawsuit threshold under the Automobile Insurance Cost Reduction Act (AICRA), N.J.S.A. 39:6A-1.1 to -35. Therefore, she was required to prove one of the six kinds of injuries listed in N.J.S.A. 39:6A-8(a) to recover compensation for non-economic damages such as disability, impairment, and pain and suffering.

In complying with the statutory requirements, plaintiff must file a certification from a physician attesting that she had sustained "a permanent injury," as described under the statute.2 N.J.S.A. 39:6A-8(a). See also Kennelly-Murray v. Megill, 381 N.J. Super. 303, 312-13 (App. Div. 2005). The failure to submit the requisite certification regarding her scarring is fatal to the presentation of such a claim under the statute. The statute is specific, eliminating any guesswork as to a plaintiff's claims.

The trial judge concluded plaintiff had not properly presented a claim for "significant scarring" under N.J.S.A. 39:6A-8(a). Consequently, plaintiff was barred from presenting "any photographs or any evidence with regard to any scarring of the knee." However, testimony that plaintiff underwent the surgeries and that she suffered scarring as a result of the surgeries, was permitted.

We specifically reject plaintiff's contention that "scarring was a natural consequence of the type of surgery plaintiff underwent, and therefore plaintiff was entitled to present it as part of her case." Inferential compliance, as plaintiff suggests, is not permitted to certify those permanent injuries alleged to be caused by an accident. We conclude no error was made.

In a related argument, plaintiff suggests the trial judge erred in not permitting her to use photographs of her scarring when questioning Dr. Egan after he characterized the knee scar as "well-healed." Plaintiff believes the photographs were appropriate to challenge the doctor's testimony and the jury "should have been able to assess whether the doctor s summary and dismissive description of a 'well-healed' scar was a fair and accurate assessment of [plaintiff] s post-operative appearance." We are not persuaded.

Dr. Egan was permitted to explain what he meant by describing the scar as "well-healed." He stated: "Healed means it [has] come back together, and it [has] left a scar. Any time we make an incision, it leaves a scar . . . . When it is not well healed, it means it's open and draining, [and] has evidence of ongoing failure to heal." Following several intervening questions, plaintiff then asked Dr. Egan to describe the size and appearance of plaintiff's scar. Another objection was made and sustained based on the prior ruling that scarring was not relevant. We conclude the trial judge's limitation on plaintiff's proofs to the functioning of her left knee and whether she suffered a permanent injury, but prohibiting use of permanent scarring for a similar purpose, was consistent with her prior ruling. Plaintiff should not be permitted to circumvent the requirements of N.J.S.A. 39:6A-8(a) by indirectly presenting proof she was directly barred from offering.

Plaintiff also asserts the trial court erred in failing to charge the jury with an aggravation of a preexisting disability jury charge. This claim lacks sufficient merit to warrant extended discussion in our opinion. R. 2:11-3(e)(1)(E). We include these brief comments.

Plaintiff's complaint does not plead aggravation of a pre-existing condition and her trial evidence did not include proof that she suffered an aggravation of a preexisting injury. Rather, this was the defense's theory as Dr. Egan opined, based on his review of the MRI, that plaintiff's knee problems resulted from chronic degeneration of the ACL which likely existed prior to the accident. In fact, defendant sought inclusion of Model Jury Charge (Civil), 8.11(f), "Aggravation Of The Preexisting Disability" (1997), which the court rejected. Plaintiff never requested the inclusion of the charge.

The proofs were not centered on whether the accident aggravated plaintiff's preexisting condition; no proof of a prior injury to her knee or lower back were offered. Dr. Egan merely explained plaintiff's torn ACL resulted from a degenerative condition that pre-dated the accident; he never linked it to the accident. Therefore, the court properly rejected the inclusion of the requested charge. See Dynasty, Inc. v. Princeton Ins. Co., 165 N.J. 1, 13-14 (2000) ("A jury instruction that has no basis in the evidence is insupportable, as it tends to mislead the jury."). We find no error.

The final argument advanced by plaintiff is that the court erred in barring plaintiff's proposed comments during summation on defendant's absence from trial. Plaintiff argues she "was entitled to point out to the jury" that defendant did not "offer factual support for the arguments of his counsel by testifying at trial" to the assertion that this was a low impact collision. The trial judge reasoned that liability was stipulated and Roman's absence was not relevant to the issues being tried.

The court noted defendants could not be called to testify as a result of their failure to cooperate with their insurance carrier. The judge correctly understood plaintiff's comments, if permitted, were designed solely to enflame the jurors' passion or prejudice against defendant by suggesting the jury draw an adverse inference that Roman's version of events was not viable because of his absence.

Based upon our determinations that the trial court's rulings were not made in error, we reject plaintiff's suggestion that the cumulative effect of erroneous rulings denied her a fair trial. The jury's verdict will not be disturbed.

1 The record makes clear that plaintiff was protective of revealing what she felt was "a smoking gun," which may explain why the proposed information was not read into the transcript. Absent a record of the excluded evidence, our review may be impeded or impossible. The better practice is to mark the excluded document or have it read into the record outside the presence of the jury.

2 The statute provides that "an injury shall be considered permanent when the body part . . . has not healed to function normally and will not heal to function normally with further medical treatment." N.J.S.A. 39:6A-8(a).