MAUREEN F. WEILAND et al. v. MICHELE E. CANTONE

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5634-05T3

MAUREEN F. WEILAND and

THEODORE WEILAND, JR.,

Plaintiffs-Appellants,

v.

MICHELE E. CANTONE,

Defendant-Respondent.

___________________________________

 

Argued October 11, 2007 - Decided October 24, 2007

Before Judges Wefing, R. B. Coleman and Lyons.

On appeal from Superior Court of New Jersey,

Law Division, Bergen County, No. BER-L-4407-04.

Nancy C. Ferro argued the cause for appellant

(Ferro and Ferro, attorneys; Nancy C. Ferro,

on the brief).

John G. Tinker, Jr., argued the cause for

respondent (Leary, Bride, Tinker & Moran,

attorneys; Mr. Tinker, on the brief).

PER CURIAM

Plaintiffs appeal from a judgment of no cause of action entered following a jury trial. After reviewing the record in light of the contentions advanced on appeal, we affirm.

Plaintiff was stopped in traffic when her vehicle was struck in the rear by a vehicle driven by defendant. Plaintiff contended that her left shoulder was injured in the accident, and she eventually underwent rotator cuff surgery. Defendant conceded liability but denied that plaintiff's shoulder injury was related to the accident. The matter was tried on damages only. The first question on the jury verdict sheet asked if plaintiff had proved that defendant's negligence was "a proximate cause of the harm or injuries claimed." The jury responded in the negative.

The accident in question occurred on the afternoon of May 24, 2002. Neither party went to the hospital after the accident. Although plaintiff testified that she told the police officer who responded to the scene that she had injured her shoulder, the report he prepared only listed her complaints of pain in her neck and back. The officer testified he did not recall plaintiff complaining of her shoulder.

Several days after the accident, plaintiff saw her chiropractor and began a course of treatment with him. When her shoulder pain persisted, she went to a neurologist for testing. She then consulted with an orthopedist and had physical therapy through February 2004. Eventually, she underwent shoulder surgery in December 2005. At trial, she presented the videotaped testimony of her surgeon, who expressed the opinion that her injuries were related to the accident of May 2002. Defendant presented the testimony of her medical expert, who testified that plaintiff's shoulder injury was not related to the accident.

Prior to testimony commencing, defendant made a motion to bar plaintiff from testifying that her delay in having this surgery was related to problems she experienced in having her insurance carrier agree to pay the cost. Defendant contended that any mention of insurance would be prejudicial. The trial court granted the motion. Plaintiff argues on appeal that the trial court's ruling in this regard was erroneous. Having reviewed the trial court record, we have concluded that we need not determine whether the trial court's original ruling was correct because we are satisfied that plaintiff was not harmed by it.

After the trial court made its ruling, it did agree, at the request of plaintiff's counsel, that plaintiff could testify that her delay was due to the fact that she did not have the money to have the surgery performed. Plaintiff, however, did not avail herself of the benefit of this ruling. During the course of her testimony she repeatedly attributed her delay to her responsibilities in caring for her seven children and her concern about possible complications developing after the surgery.

Plaintiff points to defense counsel's summation, a portion of which stressed the long period of time that elapsed between the accident and the shoulder surgery. Plaintiff argues that the trial court's ruling unfairly deprived her of the ability to respond to this argument. The record, however, as we have noted, does not support this argument. Any difficulty plaintiff's counsel may have experienced in responding to this point in his own summation was the result of plaintiff's testimony, not the ruling of the court.

The judgment under review is affirmed.

 

Plaintiff Maureen F. Weiland was involved in the accident; her husband sues per quod. For the balance of this opinion, we shall refer to plaintiff in the singular.

(continued)

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A-5634-05T3

October 24, 2007