DERVI OLIVERO-PENA v. HECTOR GONZALEZ, JR

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

DERVI OLIVERO-PENA,

Plaintiff-Appellant,

v.

HECTOR GONZALEZ, JR.,

Defendant-Respondent.

_______________________________________________

October 24, 2014

Submitted September 30, 2014 Decided

Before Judges Hoffman and Whipple.

On appeal from Superior Court of New Jersey, Law Division, Hudson County, Docket No. L-1160-10.

J. Peter Byrne, attorney for appellant.

Harwood Lloyd, L.L.C., attorneys for respondent (Jeanne O. Marino, on the brief).

PER CURIAM

Plaintiff appeals from a February 11, 2013, order dismissing its complaint based on a jury verdict of no cause in favor of defendant, entered on February 5, 2013. We have considered plaintiff's arguments in light of the record and applicable legal standards. We affirm.

This appeal stems from a motor vehicle accident on March 17, 2009. Defendant admitted liability, and the case went to trial solely on the issue of damages. Plaintiff was provided with an interpreter up until the jury retired to deliberate.

Testimony at trial established that defendant's automobile hit plaintiff's parked van on March 17, 2009. Plaintiff testified that, upon impact, his body jerked back and forth and he hit his nose on the steering wheel. Plaintiff did not seek medical attention until the next day, when he went to Meadowlands Hospital complaining of a headache and neck pain. He did not complain about his nose on that day. Plaintiff's attorney made an appointment for him to see a doctor in Elizabeth, where he received treatment for his nose and underwent surgery. He previously had nasal surgery in 2005. Plaintiff also introduced evidence of a permanent injury to his nose. In particular, he said that he could no longer smell and had lost some of his sense of taste. He also continued to complain of neck pain.

At least two times during the trial, plaintiff had to be instructed not to tell the jury about the circumstances surrounding the accident because of the stipulation of liability. Plaintiff wanted to tell the jury that defendant was intoxicated and was warned by the judge that such testimony would not be permitted. On cross examination of plaintiff, it was established that plaintiff had been involved in other accidents which resulted in previous injuries.

Plaintiff's orthopedic expert, Dr. I.P. Ahmad, testified that he had examined plaintiff and reviewed his MRI. He opined that plaintiff suffered from a sprain of the neck in the back, radiating pain, bulging herniated discs, and a fractured nose for which he underwent a rhinoplasty, all of which he related back to the March 2009 accident. His conclusion was that plaintiff had suffered from "residual effects. In all probability his prior injuries were aggravated by this accident and you could have difficulty in performing activities of daily life."

Plaintiff's otolaryngologist, Dr. James Z. Cinburg, testified that plaintiff previously had surgery to correct nasal obstruction which involved the removal of cartilage, and that upon examination subsequent to the March 2009 accident, plaintiff had pain in his nose and obstruction. Dr. Cinburg found an acquired deviated septum and an external nasal deformity consistent with a nasal fracture. He subsequently performed reconstructive nasal septal surgery on plaintiff. He also testified that the injury caused plaintiff's loss of smell but it should eventually abate if the repair was successful. He also acknowledged that he was relying upon plaintiff's own report as to the cause of the injury.

Defendant presented testimony from Dr. Douglas Noble, a neuroradiologist, and Dr. Ralph E. Ricciardi, Jr., an orthopedic surgeon. Dr. Noble reviewed plaintiff's MRIs from 2006, 2007, and 2009. He offered his opinion that the MRIs were identical for all three years, he did not see any herniation or bulging discs, and that plaintiff did not suffer any cervical injury as a result of the accident. Dr. Ricciardi examined plaintiff and reviewed his history and his medical records. He offered an opinion that, based upon his examination and review, plaintiff had never fully recovered from his prior accident in 2005. He gave extensive testimony concerning his review of all of plaintiff's medical records, which highlighted a lack of support for the existence of an injury to plaintiff's nose as a result of the accident, as well as no permanent orthopedic injuries.

Plaintiff's medical bills were presented to the jury as an exhibit over the objection of defense counsel, but later admitted into evidence by agreement of the parties in a different form as a summary. During jury deliberations, the jury raised four questions regarding plaintiff's medical bills. During discussion between the judge and counsel of these questions, the judge did not call for an interpreter to be present despite the fact that plaintiff had been provided an interpreter throughout the trial. The judge instructed the jurors to consider the documents admitted into evidence and the jury's own collective recollection of the testimony and exhibits at trial.

On February 5, 2013, the jury returned a verdict of no cause in favor of defendant.

Plaintiff filed a notice of appeal on March 26, 2013, from the trial court's February 11, 2013, order. He argues for the first time that

I. THE JURY'S FAILURE TO AWARD AT LEAST MINIMAL DAMAGE[S] WAS AGAINST THE WEIGHT OF THE EVIDENCE CONSTITUTING A MISCARRIAGE OF JUSTICE.

II. THE ABSENCE OF AN INTERPRETER AT THE TIME THE JURY SUBMITTED FOUR QUESTIONS TO THE COURT PREJUDICED SUBSTANTIAL RIGHTS OF THE PLAINTIFF AND PRODUCED AN UNJUST RESULT.

III. THE COURT SHOULD HAVE ALLOWED TESTIMONY AS TO THE DEFENDANT'S INTOXICATION AND A CLAIM FOR PUNITIVE DAMAGES SHOULD HAVE BEEN PLEADED.

Appellate courts will typically decline to consider issues not properly raised to the trial court when there was an opportunity to do so, unless the issues pertain to the jurisdiction of the trial court or matters of significant public interest. State v. Robinson, 200 N.J. 1, 20 (2009). Any error not raised below is to be disregarded "unless it is of such a nature as to have been clearly capable of producing an unjust result." R. 2:10-2. In a jury trial, the possibility of an unjust result must be "sufficient to raise a reasonable doubt as to whether the error led the jury to a result it otherwise might not have reached." State v. Macon, 57 N.J. 325, 336 (1971). Similarly, "[t]rial errors which were induced, encouraged or acquiesced in or consented to" by counsel are not typically grounds for reversal on appeal. State v. Harper, 128 N.J. Super. 270, 277 (App. Div.), certif. denied, 65 N.J. 574 (1974).

"[T]he issue of whether a jury verdict was against the weight of the evidence shall not be cognizable on appeal unless a motion for a new trial on that ground was made in the trial court." R. 2:10-1; see also Ogborne v. Mercer Cemetery Corp., 197 N.J. 448, 462 (2009). Plaintiff did not move for a new trial, and there is nothing apparent in the record warranting the conclusion that the jury reached an unjust result.

During deliberations the jury sent out four questions, and the trial judge thoroughly addressed them with counsel. At this time in the proceedings, the interpreter had left the courtroom and was not called back. No objection was raised to proceeding without the interpreter, nor was there any discussion of the issue. After the judge and counsel discussed the four questions, the judge instructed the jury to rely upon their collective understanding and recollection of the testimony. Shortly thereafter the jury returned a verdict.

Decisions regarding the need for interpreters are left to the discretion of trial courts, and are not "disturbed on appeal unless an abuse of discretion is manifest." State in Interest of R.R., 79 N.J. 97, 117 (1979). Abuse of discretion occurs when a decision 1) has no rational explanation, 2) departs from established policies without explanation, or 3) rests on an impermissible basis. Feigenbaum v. Guaracini, 402 N.J. Super. 7, 17 (App. Div. 2008).

"[A] functional approach to abuse of discretion examines whether there are good reasons for an appellate court to defer to the particular decision at issue." Flagg v. Essex County Prosecutor, 171 N.J. 561, 571 (2002). "An appellate court applying this standard should not substitute its own judgment for that of the trial court, unless the trial court's ruling is so wide of the mark that a manifest denial of justice resulted." State v. J.A.C., 210 N.J. 281, 295 (2012) (internal citations and quotations omitted).

The trial court, without explanation, departed from the established policy of having an interpreter present for all stages of the trial. This error, however, did not result in a manifest denial of justice. Nor is it adequate grounds for reversal under the plain error standard of review, as it is not clearly capable of producing an unjust result or raising a reasonable doubt as to whether the jury verdict would have been different had an interpreter been provided during discussion between the court and counsel of the jury's questions.

Pursuant to Rule 2:11-3(e)(1)(E), we find that plaintiff's arguments with regard to the failure to plead a claim for punitive damages and the trial court's refusal to allow evidence of intoxication in support thereof are "without sufficient merit to warrant discussion in a written opinion." Therefore, we find that a new trial is not warranted.

Affirmed.