JOSE IBARRONDO v. WILLIAM E. CANDEE

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6290-09T3

JOSE IBARRONDO and NORMA

GALARZA,

Plaintiffs-Appellants,

v.

WILLIAM E. CANDEE,

Defendant-Respondent.

__________________________________

SubmittedMay 25, 2011 Decided July13, 2011

Before Judges Fisher and Sapp-Peterson.

On appeal from the Superior Court of New Jersey, Law Division, Camden County, Docket No. L-4583-08.

Hark & Hark, attorneys for appellants (Jeffrey S. Hark, on the brief).

Green, Lundgren & Ryan, P.C., attorneys for respondent (Alexa J. Nasta, on the brief).

PER CURIAM

A jury returned a no cause verdict in favor of defendant at the conclusion of a liability trial arising out of plaintiffs' personal injury claims in which plaintiffs alleged they sustained severe and permanent injuries as result of defendant's negligent operation of his motor vehicle. On appeal, plaintiffs present the following points for our consideration:

POINT I

CANDEE WAS NOT ENTITLED TO UTILIZE THE BLACKOUT DEFENSE WITHOUT PROVIDING EXPERT TESTIMONY THAT SUPPORTED THE EXISTENCE OF A MEDICAL CONDITION WHICH CAUSED AN UNFORESEEABLE BLACKOUT.

A. CANDEE MUST PROVIDE EVIDENCE OF A PREVIOUSLY UNKNOWN UNDERLYING MEDICAL OR PHYSIOLOGICAL CONDITION IN SUPPORT OF HIS ALLEGED 'BLACKOUT' AFFIRMATIVE DEFENSE.

B. EXPERT TESTIMONY WAS NECESSARY TO DELIVER EVIDENCE SHOWING CANDEE'S BLACKOUT WAS UNFORESEEABLE DESPITE HIS PREEXISTING HEART CONDITION.

POINT II

THE TRIAL COURT ERRED IN COMPLETELY PREVENTING THE PLAINTIFFS FROM QUESTIONING CANDEE ABOUT HIS MEDICAL CONDITION BECAUSE EXPERT TESTIMONY WAS NOT NECESSARY FOR THE PLAINTIFFS TO EXAMINE CANDEE TO DEMONSTRATE HIS OWN KNOWLEDGE OF HIS MEDICAL CONDITION AND SYMPTOMS.

POINT III

THE TRIAL JUDGE ERRED WHEN HE PREVENTED THE PLAINTIFFS FROM ELICITING TESTIMONY ON CANDEE'S MEDICAL CONDITION AFTER DEFENSE COUNSEL'S EXAMINATION OPENED THE DOOR TO THE TOPIC.

POINT IV

THE TRIAL JUDGE ERRED WHEN HE DID NOT READ CIVIL JURY CHARGE 5.30E IN ITS ENTIRETY AFTER CANDEE TESTIFIED REGARDING HIS SYMPTOMS IMMEDIATELY BEFORE THE ALLEGED BLACKOUT.

POINT V

ALL FOUR ERRORS MADE BY THE TRIAL JUDGE WERE CUMULATIVE IN NATURE AND DENIED THE PLAINTIFFS[] THEIR RIGHT TO A FAIR TRIAL ON THE MERITS.

We have considered the points raised in light of the record, arguments advanced in the brief, and applicable legal principles, and conclude they are without sufficient merit to warrant extensive discussion in a written opinion. R. 2:11-3(e)(1)(E).

Prior to trial, plaintiffs filed a motion in limine to preclude defendant from asserting, as a defense to negligence, that he experienced a blackout just before the accident. Plaintiffs argued that in order to assert this defense, defendant was required to present expert testimony demonstrating the existence of an unforeseen medical condition that caused his unforeseeable blackout. In addition, plaintiffs urged that expert testimony was necessary to establish that defendant's pre-existing heart condition was not causally related to the blackout or, alternatively, if it was causally related, then the blackout was unforeseen. Defendant opposed the motion, arguing that he was not attempting to establish that a medical condition caused his blackout and, therefore, expert testimony was not required. The trial court denied the motion, concluding that it was plaintiffs' burden to bring forth expert testimony addressing defendant's blackout, defendant's medical condition, and the causal relationship, if any, between defendant's condition, his blackout, and the resulting accident.

At trial, plaintiff, Jose Ibarrondo, testified that while stopped, waiting to exit a bank parking lot onto Grove Street in Cherry Hill, he "saw . . . defendant come off . . . Route 70 . . . and he just hit me and then the car spun and we wound up on the pole." Just before the impact, plaintiff observed that defendant's head "was slightly slumped over" to his left side. Ibarrondo told the investigating police officer at the scene that defendant appeared unconscious moments before the accident.

Plaintiffs called defendant as a witness as part of their case and posed no questions relative to defendant's pre-existing medical condition. During cross-examination, defense counsel questioned defendant about what he was experiencing just before the impact, and defendant responded: "I was coming down Route 70[.] [A]ll of a sudden I got this accelerated heart rate, a buzzing in my ears[.]" On redirect, plaintiffs' counsel sought to explore with defendant whether defendant had experienced these symptoms previously. The court denied this application, reasoning that such testimony required an expert to establish a correlation between the symptoms and the resulting accident. In addition, in its charge to the jury, the court did not include instructions that addressed the foreseeability of the loss of consciousness with respect to a medical condition known to a defendant prior to a mishap. Model Jury Charge (Civil), 5.30E, "Effect of Black Out" (1984).

Our scope of review of a trial court's evidentiary rulings during trial concerning the admissibility or exclusion of evidence is very limited. Dinter v. Sears, Roebuck & Co., 252 N.J. Super. 84, 92 (App. Div. 1991). "As a general rule, admission or exclusion of proffered evidence is within the discretion of the trial judge whose ruling is not disturbed unless there is a clear abuse of discretion." Ibid. See also Hisenaj v. Kuehner, 194 N.J. 6, 12 (2008) (review of evidential ruling is limited to examining the decision for abuse of discretion); Brenman v. Demello, 191 N.J. 18, 31 (2007) (determination of admissibility of evidence is reviewed for palpable abuse of discretion). Reversal is warranted only in cases of a clear abuse of discretion. Purdy v. Nationwide Mut. Ins. Co., 184 N.J. Super. 123, 130 (App. Div. 1982).

A trial court decision will constitute a clear abuse of discretion where "the 'decision [was] made without a rational explanation, inexplicably departed from established policies, or rested on an impermissible basis.'" United States v. Scurry, 193 N.J. 492, 504 (2008) (quoting Flagg v. Essex Cnty. Prosecutor, 171 N.J. 561, 571 (2002)). However, if a judge makes a discretionary decision but acts under a misconception of the applicable law, we need not defer; instead, we must adjudicate the controversy in the light of the applicable law in order that a manifest denial of justice be avoided. State v. Steele, 92 N.J. Super. 498, 507 (App. Div. 1966); Kavanaugh v. Quigley, 63 N.J. Super. 153, 158 (App. Div. 1960).

Here, prior to trial, plaintiffs took defendant's deposition, in which he testified that in 2005, he was diagnosed with atrial fibrillation, an irregular heartbeat, and had been under the care of a cardiologist since that time. He also provided the names of the two cardiologists who had treated him.

Thus, prior to trial, plaintiffs were afforded the opportunity to explore defendant's medical condition in order to ascertain the causal relationship, if any, to the resulting accident. At trial, defendant testified that he had never experienced a blackout prior to the accident. Plaintiffs presented no evidence to rebut this testimony.

Permitting plaintiffs to explore defendant's medical condition, without the benefit of expert testimony addressing the causal connection between defendant's condition and the resulting accident, had the clear capacity to confuse and mislead the jury as well as unduly prejudice defendant. See N.J.R.E. 403. Consequently, the court did not abuse its discretion in denying plaintiffs' in limine motion to preclude defendant from testifying that he experienced a blackout just before the accident. Nor did the court abuse its discretion in precluding plaintiffs' counsel from exploring defendant's pre-existing medical condition.

Finally, in connection with the court's instruction to the jury on defendant's explanation that he blacked out, we find no abuse of discretion in the court's refusal to instruct the jury regarding its consideration of a defendant's claim of blackout in the context of a defendant's prior medical condition and previous history of susceptibility to blackouts.

As noted earlier, plaintiffs presented no evidence that defendant, prior to the accident, suffered from any condition that placed him on notice that he was susceptible to fainting spells, seizures, or weakness from which it was reasonably foreseeable to him that such condition could lead to blackouts.

Affirmed.