MARIA PINHO et al. v. ANTONIO J. FONSECA, et al.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5778-05T15778-05T1

MARIA PINHO and JOSE PINHO,

her husband,

Plaintiffs-Appellants,

v.

ANTONIO J. FONSECA,

Defendant,

and

FRANK GRASSO and GERALDINE GRASSO,

Defendants-Respondents.

_____________________________________

 

Argued March 14, 2007 - Decided April 25, 2007

Before Judges Stern and Sabatino.

On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, L-2256-03.

Matthew P. Pietrowski argued the cause for appellants (Levinson Axelrod, attorneys; James Bayard Smith, Jr., on the brief).

James T. Gill argued the cause for respondents (Leary, Bride, Tinker & Moran, attorneys; Mr. Gill, on the brief).

PER CURIAM

This appeal concerns a personal injury case that was tried twice on damages, after summary judgment on liability had been entered in favor of plaintiff Maria Pinho. In the first trial, the jury awarded plaintiff $60,000. After the court granted the defendant a new trial for reasons that are central to this appeal, the case was retried and resulted in a "no-cause" verdict. Plaintiff does not identify any errors in the retrial itself, but argues that the court misapplied its discretion in ordering that second trial and thus seeks to reinstate the first verdict. We affirm.

I.

On January 20, 2002, plaintiff was a passenger in a motor vehicle operated by defendant Antonio Fonseca in South Amboy. While stopped on a ramp leading to Routes 9 and 35 North, the Fonseca vehicle was struck in the rear by a motor vehicle owned by defendant Geraldine Grasso and operated by defendant Frank Grasso. Plaintiff contends that she injured her upper and lower back in the collision.

Plaintiff thereafter filed a personal injury complaint in the Law Division against Fonseca and the Grassos. Because her claims were subject to the limitation-on-lawsuit option ("verbal threshold") of the Automobile Insurance Cost Reduction Act of 1998 ("AICRA"), N.J.S.A. 39:6A-8, plaintiff appended to her complaint a certification of permanency from her treating chiropractor, Dr. Emma Yepez-Ziegenbalg. In her certification, Dr. Yepez-Ziegenbalg stated that plaintiff had sustained in the subject accident herniated discs at C3-4 through C6-7, as well as a bulging disc at L4-5 and that those injuries were permanent.

Prior to trial, the Law Division granted plaintiff's motion for partial summary judgment on liability against defendant Frank Grasso. The court determined that Mr. Grasso's conduct in striking the Fonseca vehicle in the rear was negligent and that his negligence was "the sole and proximate cause of the accident." Additionally, the court dismissed Fonseca as a defendant, there apparently being no fault on his part.

The record discloses that plaintiff had been involved in a slip-and-fall accident in 1999, for which she received treatment to both her neck and her back. That injury was first disclosed to the defense in plaintiff's answers to interrogatories. Plaintiff also discussed the prior accident in her deposition. In particular, plaintiff testified at her deposition that she "fell once," "[m]aybe [in] '99." She also testified that she had hurt her "spine on the lower part," because "when [she] fell [she] hit the coccyx." When asked about her treatment for that prior accident, plaintiff acknowledged that she had seen two chiropractors, a "Dr. Rapp" and a "Dr. Emma." However, plaintiff's deposition testimony attempted to minimize that prior treatment. She asserted in particular that she had only been treated "[f]or a short while. I went a few times and then I stopped and then I went back just to see if everything was all right."

In preparation for the damages-only trial, plaintiff retained as an expert, David Lessing, M.D., a Board-certified orthopaedic surgeon. After examining plaintiff in April 2003, Dr. Lessing opined that she had injured her cervical and lumbar discs in the January 2002 motor vehicle accident. In particular, Dr. Lessing reached diagnoses "related to the [subject] accident [of] disc herniation [at] C3 through C7 and disc bulges [at] L3-4 and L4-5." Dr. Lessing further opined that "[t]he disc herniation and bulges represent a permanent distortion of the normal disc architecture, which will not return to normal over time."

As part of his analysis, Dr. Lessing acknowledged plaintiff's prior treatment following her 1999 fall. In the "Prior History" section of his expert report, Dr. Lessing noted that plaintiff had "previous chiropractic treatment for a previous accident," that she had been "treat[ed] for back pain after [a] fall on the ice," and "[a]fter the [prior] accident in question she developed neck pain and shoulder pain." Further, the "Medicals" section of Dr. Lessing's report indicates:

Prior medicals are available before the accident in question. These began on 04/22/99 from Newton Rapp, D.C. Those notes reflect treatment on 04/22/99 and 05/19/99 for neck pain and back pain.

Treatment notes begin on 02/01/00 and continue to 12/19/01 with Dr. Emma Yepez-Ziegenbalg, also a chiropractic physician. [Plaintiff] treated there for neck pain and left sided low back pain. There is no documentation of any radiation to the leg, left or right during that period until 08/06/01 where there is one mentioned left buttock pain but no further mention of any back pain through 12/19/01. Neck pain is described as being to both arms.

Finally, the "Prognosis" section of Dr. Lessing's report states:

The prognosis in this case is poor. The injured discs will deteriorate at a faster rate and to a more severe endpoint [than] that [which] would have been anticipated without the trauma imposed by the 01/20/02 accident. Therefore, [plaintiff] can unfortunately look forward to increasing pain and diminishing function in the neck and back as time goes on.

During the discovery process plaintiff was examined by defendant's own medical expert, Edward Rachlin, M.D. Dr. Rachlin is also a Board-certified orthopaedic surgeon. Plaintiff, whose native language is Portuguese, was accompanied at that defense examination by her daughter, who served as a translator.

For reasons that are unclear from the record, the medical history for plaintiff recited in Dr. Rachlin's report substantially conflicted with the history described in plaintiff's interrogatory answers, her deposition, and the report of her own expert, Dr. Lessing. Specifically, Dr. Rachlin's report reflects:

The patient states she had no previous injuries or problems involving the neck.

10 years ago, the patient fell on snow injuring her back. The patient was treated [and] had no trouble as a result of the injury.

This history varies from plaintiff's own proofs in that (1) plaintiff apparently disavowed to Dr. Rachlin that she had any prior neck injury, despite contrary proofs that she had been treated for neck pain, as well as back pain, following the slip-and-fall accident, and (2) Dr. Rachlin describes the prior accident as happening "10 years ago", i.e., in or about 1994, rather than the 1999 date elsewhere ascribed to that prior accident.

In any event, Dr. Rachlin opined in his report that plaintiff's present complaints were purely subjective in nature. He contended that she had "no objective musculoskeletal findings to explain a prolongation of symptoms," and had no neurologic deficits. He stated that the MRI findings, showing "possible" disc herniation at C3-7 and a disc bulge at L4-5, were "not causally related" to the January 2002 motor vehicle accident. Instead, Dr. Rachlin determined that plaintiff's disc-related MRI findings were "pre-existing with no evidence of nerve root impingement." He also noted the absence of findings "indicative of permanent residuals relative to the [January 2002] accident."

Before the first trial, plaintiff moved in limine to preclude Dr. Rachlin from referring in his testimony "to any prior or subsequent accidents, injuries or other conditions." In support of that motion, plaintiff's counsel argued that Dr. Rachlin had "authored no opinion whatsoever to causally relate anything to any prior accident, injury or condition." In response, defense counsel alluded to Dr. Rachlin's report during the oral argument on the motion. According to defense counsel, Dr. Rachlin had referred to plaintiff's prior accident as happening "10 years ago" and that the "[p]atient . . . had no trouble as a result of the injury." Nonetheless, defense counsel argued that, as a matter of credibility, she should be permitted "to ask Ms. Pinho about whether or not she has been injured before this [January 2002] accident[.]" Defense counsel elaborated upon this request as follows:

I would just [propose to] ask [plaintiff] had she injured herself before - injured her low back which is one of the areas here that she claims she injured in our accident, the low back, the neck, and I don't know what else right now. But did - did you injure your low back before and I guess she would be candid under oath and she would say yes and did you receive treatment. When was that and that was it[?]

During the course of the oral argument, the motion judge and defense counsel consistently and on four separate occasions referred to plaintiff's fall on ice as having occurred "ten years ago." At no point did plaintiff's counsel correct that misconception, which was clearly inconsistent with plaintiff's post-accident chiropractic treatment records dating from April 1999 to December 2001. The judge's analysis of the in limine motion was quite explicit in its reliance upon that supposed ten-year interval:

[J]ust so I'm clear, Dr. Rachlin is not going to try to relate [to the subject motor vehicle accident] the incident that occurred 10 years ago, the fall on the snow where [plaintiff] indicated that she injured her back.

[Emphasis added.]

Defense counsel responded to the judge that Dr. Rachlin "did not do so in his report." The judge then reinforced the importance of that understanding of the record by indicating to defense counsel that her "ruling is [going to] be premised on what you tell me." Again, plaintiff's counsel remained silent and did not correct the judge's misimpression about the timing of the prior accident or the duration of the treatment.

After weighing these considerations under the standards for admissibility under N.J.R.E. 401 and 403, the motion judge orally granted plaintiff's in limine application:

It's my understanding that Dr. Rachlin is not going to imply that - that there was a preexisting condition that is now causing her injuries. And, counsel can correct me if I'm wrong, but it's my understanding that he took a past history about a slip and fall incident, however, he doesn't relate her condition today to that incident. Henceforth, this [c]ourt finds that there would be no reason, although it's relevant, I believe that counsel, both counsel can stipulate to the fact that he took a past history and the doctor can say that he took an entire history of the . . . plaintiff. However, based upon . . . [N.J.R.E.] 401 and 403, although the past history is relevant it would be prejudicial if there's no reason to offer that and no reason to tie that into his ultimate conclusion, his ultimate diagnosis. And according to what [defense counsel] has told me, there would be no reason to offer that other than for that the jury may allude that there was some type of - some type of connection and according to what [defense counsel] has told me, Dr. Rachlin is not going to testify that these prior injuries had anything to do to . . . her injuries today as a result of the accident in question, therefore, the prejudice probably would outweigh any relevance.

[Emphasis added.]

Adhering to the in limine ruling, defense counsel at the first trial apparently did not cross-examine plaintiff or Dr. Lessing regarding plaintiff's prior slip-and-fall accident or her treatment for those injuries. Nor did the defense apparently present expert testimony from Dr. Rachlin at the first trial discussing or causally relating the prior accident to the plaintiff's current alleged injuries.

The jury in the first trial returned a verdict for plaintiff, awarding her $60,000 in damages on October 13, 2005. The jury awarded no damages, however, to plaintiff's husband Jose Pinho on his claims of loss of consortium.

Subsequently, defendant filed a motion for a new trial, and for an order vacating the in limine order that had excluded reference to the plaintiff's prior accident. The motion was heard by the judge who had presided over the first trial. After considering the arguments of counsel and then allowing the parties several weeks to attempt settlement, the judge issued an oral ruling on January 20, 2006 granting defendant's post-trial motion.

In describing the earlier proceedings on the motion in limine, the judge observed that "[a]lthough [the court] was provided with Dr. Lessing's report and Dr. Rachlin's report, this [c]ourt [had] focused merely on the past history section of both reports." The judge noted that "[u]nfortunately, when this [c]ourt reviewed Dr. Lessing's report it focused merely on the Past History section. This [c]ourt [had] assume[d] that the "Medicals" section [of that report had] dealt with the motor vehicle accident in issue that occurred on 1/20/02." The judge also noted that she had relied upon plaintiff's deposition testimony, in which plaintiff contended that she had "only [been] treated for a 'short while'" and that "she went a few times, stopped and then went back, '[t]o see if everything was all right.'" The judge, in hindsight, recognized that her earlier assumptions about the non-recent nature of plaintiff's prior injury and the supposedly short length of plaintiff's prior treatment were simply incorrect.

Acknowledging those earlier misperceptions, the trial judge candidly assessed their consequences, as follows:

In making [its] ruling [on plaintiff's in limine motion], the [c]ourt was of the opinion that the prior incident occurred 10 years ago as set forth in Rachlin's report. In fact the [c]ourt [has since] reviewed the [motion] transcript. [In that transcript,] [t]he [c]ourt references this prior accident as occurring 10 years ago. This [c]ourt was never corrected by other counsel of the correct year of the prior accident. Upon reviewing the "Medicals" section of Dr. Lessing's report, [it is] apparent that this prior accident occurred in 1999 and that the plaintiff was treating with doctors before this prior incident up until 2/19/01 [;] a year - a month before the accident in question.

Further, when the [c]ourt rendered its decision it did not take into consideration that this prior incident was close in time to the accident in question that plaintiff had treat[ment] for the prior accident nearly one month prior to the accident in question.

Regarding defense counsel's arguments at the motion in limine,

the judge noted that:

Unfortunately, defense counsel did not argue that she wished to challenge Dr. Lessing's opinion on causal relationship and to bring his credibility into question to the extent that he elected to rely on the records of post-accident treating doctors but to ignore the findings and records of the treating chiropractors from the prior accident as set forth in . . . plaintiff's certification.

Moreover, defense counsel failed to argue at the time of the motion that she intended to present evidence that the bulge is shown on the MRI and/or disc herniations were traumatic in origin and were more likely to have resulted from a direct compression of the spine when plaintiff landed on her coccyx rather than in a relatively minor motor vehicle accident while wearing a seatbelt as set forth in . . . counsel's certification.

Moreover, defense counsel failed to argue at the time of the motion that she anticipated examining Dr. Lessing on the findings on the MRI films and how they related to the prior accident.

Lastly, defense counsel failed to argue the fact that plaintiff first began treating with a chiropractor, Dr. Rapp, beginning on April 22, 1999 and continuing, according to the notes reviewed by Dr. Lessing, in May 18, 1999 for back and neck pain. Plaintiff then changed chiropractors to Dr. Emma Yepez-[Ziegenbalg], who treated plaintiff for neck and back pain and left sided low back pain from February 21, 2001 to December 19, 2001. According to Dr. Lessing's report, there was one mention of left buttocks pain in August 2001 among her continuing complaints.

Additionally, the judge noted that defense counsel had also failed to argue that "the last visit to the chiropractor admitted to by plaintiff, took place one month before, what the defendants ascribed at trial as a minor tap from the rear." The judge did recognize that these points, although not raised by defense counsel at oral argument on the in limine motion, had been set forth in defendant's brief on the motion.

In sum, the judge concluded that plaintiff's actual medical history "is much different than the court's initial understanding that plaintiff treated for an injury that occurred 10 years ago and that this treatment was minimal." To the contrary, the judge recognized that:

[P]laintiff had [been] treated extensively over the course of two years with two different chiropractors for neck, back and shoulder injuries. Thus, the defendant was improperly foreclosed in eliciting testimony regarding plaintiff's prior treatment and injuries. At the very least, defendant should have been permitted to cross examine Dr. Lessing that his prior condition in his opinion, that this prior condition was unrelated to her current condition. This court's ruling barred any cross examination of Dr. Lessing with respect to plaintiff's past medical history preventing defendant from challenging the . . . validity of Dr. Lessing's opinion on causal . . . relationship. Dr. Lessing probably would have admitted that the plaintiff had left buttocks complaints and radiating pain into her arms before the motor vehicle accident at the very least.

[It is] true that Dr. Lessing does not relate the prior injuries to the injuries suffered in the motor vehicle accident. However, that is not reason enough to disallow cross examination of Dr. Lessing. Defense counsel could have decided not to call Dr. Rachlin at the close of its case. Depending on the information received in cross examination of Dr. Lessing it may not have been necessary for them to call Dr. Rachlin as an expert. Certainly they had no duty to do so.

[Emphasis added.]

The judge also determined that the evidence of plaintiff's treatment for her prior injuries should have been admissible for impeachment purposes. The judge reached that conclusion because the documentation of plaintiff's two-year treatment period, extending to one month prior to the January 2002 automobile accident, was flatly inconsistent with her deposition testimony claiming that her treatment had been brief.

Given all of these factors, the judge reconsidered her original in limine determination. On further, and more accurate, reflection, the judge instead found that evidence concerning plaintiff's prior accident was indeed relevant, and that there was "no risk of undue prejudice" in allowing a jury to consider it. Consequently, the judge ruled that cross-examination should have been permitted "regarding [Dr. Lessing's] opinions on causation and whether he considered plaintiff's prior injuries when rendering his ultimate opinion that plaintiff's current complaints are related solely to the 1/20/02 . . . motor vehicle accident."

Based upon these post-trial findings, the judge granted defendant's application for both a new trial and the reconsideration of the original in limine ruling. However, as a condition of such relief, the judge ordered defendant to remit plaintiff's expert fees and costs in retrying the matter. In awarding such costs, the judge reasoned that defense counsel could have obviated the court's prior misconceptions with a fuller and more accurate presentation at the oral argument on the motion in limine.

The matter was retried before a different judge and jury in June 2006. That second trial, which consumed four days, resulted in a verdict of "no cause for action" in favor of the defendant. As already noted, plaintiff does not contend that any reversible errors transpired during the second trial. We presume, for the sake of our analysis, that defense counsel did in fact cross-examine plaintiff, her expert Dr. Lessing, or both, at the second trial concerning her 1999 accident and her subsequent treatment.

Plaintiff solely challenges the trial court's order of January 20, 2006, granting the second trial and vacating the court's earlier order precluding defense counsel from raising plaintiff's prior accident and treatment before the jury. In particular, plaintiff argues that the court misapplied its discretion in ordering a second trial. Consequently, plaintiff seeks to have the original $60,000 verdict reinstated.

II.

We begin by recognizing that our scope of review of the trial court's decision to grant defendant a new trial is narrow. "A motion for a new trial is addressed to the sound discretion of the trial court." Baumann v. Marinaro, 95 N.J. 380, 389 (1984); see also Crawn v. Campo, 136 N.J. 494, 510-12 (1994); Hill v. N.J. Dep't. of Corrections, 342 N.J. Super. 273, 302 (App. Div. 2001), certif. denied, 171 N.J. 338 (2002). The grant or denial of a motion for a new trial should not be disturbed on appeal unless that discretion has been abused. Hill, supra, 342 N.J. Super. at 302, see also R. 2:10-1 (a court's ruling on a new trial motion shall not be reversed "unless it clearly appears that there was a miscarriage of justice under the law"). If the new trial motion is predicated upon a claim that the trial judge erred on an evidentiary ruling, we must accord deference to the trial court's conclusion regarding any prejudice that flowed from that ruling. Hill, supra, 342 N.J. Super. at 302.

R. 4:49-1 obligates a trial judge to grant a motion for a new trial "if, having given due regard to the opportunity of the jury to pass upon the credibility of the witnesses, it clearly and convincingly appears that there was a miscarriage of justice under the law." That obligation arises whether the motion is based upon a contention that the verdict was against the weight of the evidence, or, as here, "based upon a contention that the judge's initial trial rulings resulted in prejudice to a party." Hill, supra, 342 N.J. Super. at 302; see also Crawn v. Campo, supra, 136 N.J. at 510-12.

We are mindful that the judge who granted defendant's new trial motion did not expressly state that she was setting aside the first verdict because of a "miscarriage of justice." However, a fair reading of the judge's lengthy oral ruling easily supports defendant's contention that such a finding of injustice was implicit in the judge's reasoning. The judge took pains to re-examine her analysis of the in limine motion, which was predicated upon an erroneous and uncorrected belief that plaintiff's prior accident had occurred a decade before the January 2002 motor vehicle collision, and that plaintiff's treatment from that prior accident was merely brief. The judge also underscored her assessment that defendant, in hindsight, had been prejudiced at the first trial because he was forbidden from raising that prior accident and the ensuing treatment before the jury. The judge's post-trial misgivings about the in limine ruling are strong and self-evident. We have no hesitation in treating the judge's ruling as a finding that the defense motion satisfied the injustice requirements of R. 4:49-1.

Likewise, it is manifest that the judge was satisfied that her initial evidentiary ruling, given her subsequently-corrected misconceptions about plaintiff's prior accident, needed to be reconsidered under the cognate principles of R. 4:49-2 (authorizing reconsideration on matters as to which "the court has overlooked or as to which it has erred"); see also Cummings v. Bahr, 295 N.J. Super. 374, 384-85 (App. Div. 1996). The judge recognized that she had overlooked the true dates of plaintiff's prior accident and treatment, and thus had erred in precluding defense counsel from exploring those issues during the first trial. Her original ruling deserved reconsideration.

On the merits, we agree that the trial judge's unfortunate misimpressions concerning the timing and nature of plaintiff's prior slip-and-fall and treatment substantially influenced her original ruling on the in limine motion. The judge repeatedly referred during the motion colloquy to the supposed ten-year interval between the prior and subject accidents, a mistake emanating from the inaccurate history contained in Dr. Rachlin's reports. At one point the judge even stressed that her decision would be "premised" on those supposed circumstances. No one corrected the judge's misimpressions. That led to the erroneous preclusion on the defense's effort to impeach, or at least counteract, the plaintiff's claims at the first trial that her injuries had solely emanated from the subject collision.

Plaintiff contends that, even if the proper dates of her prior accident and treatment are taken into account, defense counsel was properly foreclosed from alluding to those previous circumstances during the first trial. We disagree.

As a general matter, where a plaintiff has previously sustained injury to the same area injured in her present claim, evidence of those prior injuries may be relevant to the issue of proximate cause. Paxton v. Misiuk, 34 N.J. 453, 460 (1961). Our Supreme Court recently reaffirmed that principle in Davidson v. Slater, 189 N.J. 166 (2007), which, like this matter, was an automobile negligence case arising under AICRA. The Court in Davidson quoted with approval its earlier observation in Paxton that "every defendant, in response to an allegation that his negligence has caused injury, possesses the right of demonstrating by competent evidence that that injury 'could' have been caused, wholly or partly, by an earlier accident. . . ." Davidson, supra, 189 N.J. at 187 (citing Paxton, supra, 34 N.J. at 460-61).

Plaintiff contends that such "competent evidence" of alternative causation is lacking here because defendant's medical expert, Dr. Rachlin, did not specify in his report that plaintiff's earlier slip-and-fall was a cause of her present maladies in her neck and back. However, defendant did not need to have such a linkage expressed within the four corners of Dr. Rachlin's report. Instead, defendant should have been permitted to explore such a theory of alternative causation in his cross-examination of plaintiff's own expert, Dr. Lessing, who acknowledged plaintiff's prior accident and treatment history in his report. See Allendorf v. Kaiserman Enterprises, 266 N.J. Super. 662, 672-74 (App. Div. 1993) (sustaining defendant's establishment of the "possibility" of an alternative medical cause by confronting plaintiff's expert on cross-examination with facts concerning plaintiff's medical history). Here, as in Allendorf, defense counsel should have been permitted to ask plaintiff's expert about plaintiff's prior history "for the purpose of impeaching the credibility" of plaintiff's contention, shared by Dr. Lessing, that her present complaints were solely the result of the subject accident. Allendorf, supra, 266 N.J. Super. at 674; see also Gaido v. Weiser, 227 N.J. Super. 175, 188-89 (App. Div. 1988) aff'd, 115 N.J. 310 (1989) (permitting counsel to cross-examine an expert witness, who had testified as to cause of a patient's death, as to whether her opinion would have been different had she considered additional facts).

Moreover, we note that the prior accident and treatment in question here were quite close in nature and time to plaintiff's January 2002 motor vehicle collision. As the record reflects, plaintiff had continued to be seen by her chiropractor until December 2001, only one month before the subject accident. The chiropractor's final treatment note dated December 19, 2001 discloses that plaintiff was continuing to present with muscle spasms in her cervical and lumbar spine areas, and showed a decreased range of motion in her cervical spine. The chiropractor further documented at that visit that plaintiff had not been "complying with [his] care plan/instructions," and was being "referred out for other medical care complication[s] outside [the] scope" of the chiropractor's treatment. Plaintiff also was apparently advised by the chiropractor to "return as needed."

In sum, the defense had far more than a conjectural basis to ask Dr. Lessing about these matters on cross-examination and, depending upon the expert opinion this elicited, also raise those matters on the cross-examination of plaintiff. The record contains an ample basis to explore a potential "logical relationship" between the 1999 slip-and-fall and the 2002 motor vehicle collision. Allendorf, supra, 266 N.J. Super. at 672.

We therefore discern no misapplication of discretion by the court in granting defendant's motion for a new trial, thereby rectifying its prior decision barring defense counsel from making proper inquiries on cross-examination about plaintiff's prior accident. Indeed, we are impressed that the judge acted conscientiously in recognizing her prior misconceptions and providing appropriate relief despite her prior ruling.

Affirmed.

 

The pleadings also include a per quod claim by Maria Pinho's husband, co-plaintiff Jose Pinho. Because the husband's claims are entirely derivative of his wife's claims, we shall hereafter refer to Maria Pinho as the "plaintiff."

For ease of reference, we shall hereafter describe the remaining defendants, Frank and Geraldine Grasso, as "defendant."

Dr. Rachlin's report was dated February 10, 2004.

We should note that neither of the respective individual attorneys on this appeal for plaintiff and defendant were the attorneys who had argued the in limine motion.

We have not been furnished by counsel with the transcripts of either the first or second trial, and do not find them essential to our disposition.

The chiropractic records actually reflect that plaintiff's treatment continued to December 19, 2001.

Defendant does not cross-appeal that fee award.

In making this observation, we by no means intimate that a different judge had to preside over the second trial.

We do not make any finding, however, that the conduct of either counsel violated the Rules of Professional Conduct. The court apparently had in its file Dr. Lessing's report with the actual dates of plaintiff's prior injury and treatment. This is not a clear instance in which plaintiff's counsel "fail[ed] to disclose to the tribunal a material fact knowing that the omission [was] reasonably certain to mislead" it. See R.P.C. 3.3(a)(5). Nor do we find that defense counsel's unfortunate adoption of Dr. Rachlin's mistaken ten-year time line was so egregious to constitute a violation of the competency standards of R.P.C. 1.1, particularly given that defendant's motion briefs had apparently contained the correct dates and related information. Even so, it would have been preferable for one or both counsel to have corrected the judge's factual misimpression on the spot.

Although defense counsel at oral argument on the in limine motion focused upon her desire to cross-examine plaintiff herself about the prior injury, we do not conclude that defendant waived the right to cross-examine plaintiff's expert on that subject as well.

(continued)

(continued)

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A-5778-05T1

April 25, 2007