ROSA V. DIAZ v. MARIO P. HIDALGO

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0178-06T20178-06T2

ROSA V. DIAZ,

Plaintiff-Appellant,

v.

MARIO P. HIDALGO,

Defendant-Respondent.

____________________________________

 

Argued May 23, 2007 - Decided August 14, 2007

Before Judges Parrillo and Sapp-Peterson.

On appeal from the Superior Court of New Jersey, Law Division, Union County,

L-1252-04.

Christopher F. Struben argued the cause for appellant (Michael A. Percario, attorney; Mr. Struben, on the brief).

Edwin J. McCreedy argued the cause for respondent (McCreedy and Cox, attorneys; Mr. McCreedy, on the brief).

PER CURIAM

Plaintiff Rosa V. Diaz appeals from a jury verdict of no cause based upon her failure to prove she sustained a permanent injury within the meaning of the verbal threshold provisions of the Automobile Insurance Cost Reduction Act (AICRA), N.J.S.A. 39:6A-8(a). On appeal, plaintiff claims the trial court erred when it (1) permitted defense counsel to argue that the jury should draw an adverse inference from the non-appearance of plaintiff's treating physician and charged the jury on the witness' non-appearance, (2) permitted defendant to reopen his case to present proof that he was operating a passenger vehicle, and (3) limited plaintiff's ability to demonstrate the extent of the defense expert's bias and prejudice evidenced by his personal relationship with defense counsel's firm. Having reviewed the record and applied the applicable law, we reject all of plaintiff's arguments and affirm.

The case was tried over three days, at the end of which the jury, by a seven-to-one vote, found defendant one hundred percent liable for the accident. The jury, by unanimous vote, also found that plaintiff, who was subject to the verbal threshold, failed to prove that she had sustained a permanent injury.

Plaintiff's claims arise out of a motor vehicle accident that occurred on April 7, 2003. At the time, plaintiff was the operator of a motor vehicle that was stopped at a traffic light in Watchung when she was rear-ended by a vehicle operated by defendant resulting in injuries to her neck, chest, and shoulders.

Fifteen days after the accident, plaintiff commenced treatment for her injuries with a chiropractor, Dr. Joseph D'Agostini. At trial, however, plaintiff did not call Dr. D'Agostini as a witness. Instead, she produced one expert witness, Dr. David Wolkstein, an orthopedic surgeon, who first examined plaintiff for her accident-related injuries in 2005.

Prior to opening statements, defense counsel objected to plaintiff's counsel offering any explanation to the jury as to why Dr. D'Agostini would not be produced as a witness. The court ruled that neither party could comment about the doctor's non-appearance in their opening statements.

Just prior to the testimony of Dr. Wolkstein, plaintiff's counsel requested that he be permitted to elicit from the doctor the fact that plaintiff was examined at his request because Dr. D'Agostini was unavailable to come to court. Defense counsel objected, arguing that any testimony from Dr. Wolkstein as to why Dr. D'Agostini would not appear was hearsay. The court agreed, but at that time also advised defense counsel that he would not be permitted to comment on the doctor's non-appearance in his summation.

Two days later, after plaintiff had rested and during the defense case, the court conducted a charge conference during which she reversed her earlier ruling:

I have a determination to make as to two different medical associations, St. George Chiropractic and also Dr. D'Agostini. I have to determine whether the adverse inference charge is appropriate as to these two parties.

To begin with I'm going to find it is not appropriate as to the St. George Chiropractic. Among the things I have to determine is whether the testimony of St. George Chiropractic would have been superior to the testimony produced in court. All we have at best is that she treated for two weeks, I don't find that sufficient to call for the adverse inference under [State v. Clawans, 38 N.J. 162 (1962)].

But let me read to you while I decide the second case some of the language from [Wild v. Roman, 91 N.J. Super. 410 (App. Div. 1966)]. It has to appear that the witness was within the party to produce the witness. I have to find that merely -- not that they weren't produced but that it would be natural for the party to produce such a witness. It must appear reasonably probable that the witness could testify to specifically identifiable facts and that its evidence would not be merely cumulative but would be superior to that already utilized as to the fact to be proved. That's not to be used if the witness is clearly available to both sides or -- and this is where I was wrong the other day, [Defense Counsel], I was ruling against you on this point and you were right -- I was -- I ruled the defense in this case didn't -- does not have to show me that the doctor was unavailable to the defendant because it's clear that the testimony would have been adverse to [defense counsel's] client, so to the extent I went arguing in that direction, I was wrong.

This is really a peculiar case because what we have here is the doctor wasn't produced, wasn't produced because the plaintiff's attorney got a letter saying the doctor wasn't going to testify anymore.

In Clawans, supra, the Court stated:

Generally, failure of a party to produce before a trial tribunal proof which, it appears, would serve to elucidate the facts in issue, raises a natural inference that the party so failing fears exposure of those facts would be unfavorable to him. But such an inference cannot arise except upon certain conditions and the inference is always open to destruction by explanation of circumstances which make some other hypothesis a more natural one than the party's fear of exposure. This principle applies to criminal as well as civil trials, to the State as well as to the accused.

For an inference to be drawn from the nonproduction of a witness it must appear that the person was within the power of the party to produce and that his testimony would have been superior to that already utilized in respect to the fact to be proved.

[38 N.J. at 170-71 (internal citations omitted).]

We reviewed Clawans in State v. Hickman, 204 N.J. Super. 409 (App. Div. 1985), certif. denied, 103 N.J. 495 (1986), where we noted that Clawans imposed upon a trial judge, to whom a request for an adverse inference or adverse jury instruction has been made, a duty to determine,

(1) that the uncalled witness is peculiarly within the control or power of only the one party, or that there is a special relationship between the party and the witness or the party has superior knowledge of the identity of the witness or of the testimony the witness might be expected to give; (2) that the witness is available to that party both practically and physically; (3) that the testimony of the uncalled witness will elucidate relevant and critical facts in issue[;] and (4) that such testimony appears to be superior to that already utilized in respect to the fact to be proven.

[Id. at 414].

We apply those factors here. Dr. D'Agostini was plaintiff's treating physician, whose treatment commenced shortly after the accident, as distinguished from Dr. Wolkstein, whose testimony was produced solely as an expert witness and who examined plaintiff for the first time two years after the accident. Thus, Dr. D'Agostini was a witness that one would expect to be called on behalf of plaintiff.

As a fact witness, Dr. D'Agostini was equally available to both plaintiff and defendant. Ordinarily, the equal availability of a witness to both sides suffices to negate an adverse inference argument or instruction. Wild, supra, 91 N.J. Super. at 414. Here, however, there was the additional factor of the judge's sua sponte reversal of her earlier ruling after plaintiff presented her case. This ruling left plaintiff's counsel unable, during the brief fifteen-minute recess the court afforded, to obtain the witness' presence or to make arrangements for his presence. Thus, plaintiff was placed at unfair advantage. We therefore conclude that the court erred in permitting the adverse inference argument and also in giving an adverse inference instruction. We view the errors, however, as harmless. R. 2:10-2

Plaintiff's proofs that she sustained a permanent injury under the verbal threshold statute cannot be characterized as strong. Nisivoccia, supra, 286 N.J. Super. at 431 (citing Wild, supra, 91 N.J. Super. at 418 (App. Div. 1966) (unauthorized adverse inferences improperly prejudiced jury verdict where plaintiff presented a "strong case of malpractice")). There was testimony from defendant that immediately after the accident, plaintiff indicated that she was fine. Plaintiff did not treat with Dr. D'Agostini until two weeks later and only treated with him for several months with no evidence of any further treatment from any doctor thereafter.

Plaintiff's expert testified that her neurological examination was "unremarkable" and that he found no evidence of spasm when he conducted his one-time physical examination of plaintiff two years after the accident. Defendant's expert found no objective sign of injury and opined that plaintiff sustained a cervical sprain that was not permanent in nature.

There was also conflicting evidence related to whether the injury caused plaintiff to lose time from employment. In her deposition, plaintiff testified that prior to the accident, she had last worked in 2002 at a bakery, but began working at ShopRite in October 2003. At trial, however, she testified that she was in fact working at ShopRite at the time of the accident and was out two weeks due to the injuries she sustained from the accident, but she made no claim for lost wages.

Thus, in our view, the evidence that plaintiff's injuries were not permanent, within the meaning of AICRA, was compelling. Guided by the plain error standard, we are persuaded that defense attorney's comments and the judge's instructions were not capable of producing an unjust result. See R. 2:10-2; Nisivoccia, supra, 286 N.J. Super. at 431.

Plaintiff's remaining arguments are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). We add only that the judge was well within her discretion to permit defendant to reopen the case to establish that defendant was operating a private passenger vehicle, a fact that was never in dispute prior to trial. See State v. Wolf, 44 N.J. 176, 190-91 (1965) (noting authority illustrating that a trial court has discretion to reopen a case for the introduction of additional evidence, even while a jury is deliberating). Additionally, the manner in which a trial is conducted is committed to the sound discretion of the trial judge to "exercise reasonable control over the . . . present[ation] [of] evidence so as to . . . avoid needless consumption of time . . . ." N.J.R.E. 611(a). The court permitted plaintiff's counsel to elicit testimony from Dr. Bercik that disclosed that defense counsel's law firm personally represented him on two occasions. Further, the jury was instructed to consider the reason for Dr. Bercik's testimony, including any interest he had in the outcome of the case. Thus, the jury was aware that as part of its assessment of Dr. Bercik's credibility, it could consider his relationship with the defense firm.

Affirmed.

 

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A-0178-06T2

August 14, 2007