JOZEF ZYGMANIAK v. HEATHER POLAND

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5815-05T15815-05T1

JOZEF ZYGMANIAK,

Plaintiff-Appellant,

v.

HEATHER POLAND,

Defendant-Respondent,

and

GARY POLAND and IFA INSURANCE COMPANY,

Defendants.

___________________________________

 

Submitted: October 3, 2007 - Decided October 25, 2007

Before Judges Axelrad and Payne.

On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, L-1506-04.

Tobias & Kaplan, attorneys for appellant (David H. Kaplan, of counsel; Martin M. Barry, on the brief).

David E. Rehe & Associates, attorneys for respondent (John J. Kapp, on the brief).

PER CURIAM

Plaintiff Jozef Zygmaniak, the rider of a bicycle hit by a car, appeals from a no-cause jury verdict entered against him in his personal injury action against Heather Poland, the operator of the motor vehicle. On appeal, plaintiff contends the trial court erred in denying his in limine motions to bar defendant's expert from testifying: (1) about plaintiff's alcohol consumption for lack of supportive, supplementary evidence that plaintiff was unfit to safely operate his bicycle because of intoxication, and (2) that plaintiff's intoxication resulted in an impairment that was a significant contributing factor to the accident because the testimony constituted an inadmissible net opinion. We discern no misapplication of law nor abuse of discretion in the trial court's ruling on either issue and affirm.

The following evidence was presented at trial. The accident occurred at the intersection of Bordentown and Stevens Avenues, in South Amboy, on March 31, 2002, shortly after 2:00 a.m. Plaintiff, on his way to go fishing, was riding his bicycle on Bordentown Avenue. Defendant was stopped at a stop sign and blinking red signal on Stevens Avenue, waiting for traffic to pass. Plaintiff continued on Bordentown Avenue through the blinking yellow signal at the intersection with Stevens Avenue. After looking both ways, defendant proceeded into the intersection where her vehicle was struck by plaintiff who attempted, but was unable, to swerve out of the car's way. Plaintiff's bicycle struck the front driver's side of defendant's car and plaintiff flipped over the handle bars onto the roadway.

Sergeant David Kales, a South Amboy police officer who was traveling westbound on Bordentown Avenue and had passed defendant's car while it was stopped at the intersection, observed the accident. He stated in his report and in a deposition read at trial that plaintiff, who had been wearing a black leather jacket, was riding a bicycle with no lights or reflectors. Plaintiff was also traveling on the wrong side of the road -- eastbound in the westbound lane of Bordentown Avenue -- and was proceeding downhill at a high rate of speed into the intersection where the accident occurred. The officer reflected in his report that plaintiff had been drinking, based on the way he had been answering questions at the time and the presence of the odor of alcohol. Neither party received a citation for the accident.

After the accident, plaintiff was transported to the Raritan Bay Medical Center emergency room. His blood alcohol level was measured at .198% at 5:18 a.m. During the litigation plaintiff admitted to consuming "almost a six pack" of beer prior to the accident, though there was an apparent discrepancy between his deposition and trial testimony as to whether he drank shortly before he went fishing from 11:30 p.m. to 2:00 a.m., or earlier in the day between 3:00 p.m. and 7:00 p.m.

Defendant offered John Brick, Ph.D., a biological psychologist, as an expert in psychopharmacology to testify to the "behavioral and physiological effects of alcohol intoxication and the measuring and calculation of alcohol in the blood and the bodily fluids." In preparation for his report and testimony, Dr. Brick reviewed the discovery, including the parties' depositions, the police accident report, plaintiff's answers to interrogatories, the medical records, and miscellaneous photographs. He then drew upon his "knowledge, training and experience," and provided a written opinion "to a reasonable degree of scientific probability" as to the "measurement, consumption and biobehavioral effects of alcohol" in plaintiff. Dr. Brick estimated the probable alcohol content of plaintiff's blood at the time of the accident by extrapolating from plaintiff's blood alcohol level reported by the hospital when tested three hours after the accident under a range of evidential and scientific assumptions based on when plaintiff said he was drinking, his age and weight, and rates of alcohol absorption and elimination. Based on plaintiff's deposition testimony that he drank beer from the time he awoke from his nap at 11:30 p.m. until he finished gathering his things and left for his fishing expedition around 2:00 a.m., the expert calculated plaintiff's blood alcohol content (BAC) at the time of the accident to be between .16% and .22%. Dr. Brick also concluded that plaintiff's recollection and testimony regarding how much alcohol he had consumed was not supported by the objective evidence in the case; rather, the evidence supported the conclusion that he had consumed about double the admitted amount, between ten to thirteen standard drinks.

Noting in his report that ["a]lcohol generally acts as a central nervous system depressant," Dr. Brick explained that "[t]he behavioral symptoms associated with alcohol intoxication include, loss of fine and gross motor control and a decrease in sensory perception and cognitive abilities such as memory and good judgment." Alcohol also affects a person's ability to "multi-task." Dr. Brick elaborated that alcohol intoxication may interfere with a bicycle rider's eye-hand-foot coordination of pedaling, steering, balancing and adapting to changes in the road surface, while simultaneously monitoring and reacting to traffic control devices, signs, road markings, road or walkway hazards, other vehicles, and estimating time, distance and speed. Referencing DWI studies, the expert concluded that an intoxicated bicyclist, who requires similar "divided attention" skills as a motorist, would be at a significant risk for an accident.

Dr. Brick then analyzed the behavioral effects of alcohol on plaintiff, noting plaintiff's perception that he was traveling slowly and riding on the sidewalk was not consistent with the observations made by the police officer. The expert also found plaintiff's failure to yield the right-of-way to a motor vehicle when plaintiff was traveling on the wrong side of the road to be indicative of impaired judgment, as was his inability to anticipate and respond to roadway conditions, and that both the impaired judgment and perception were consistent with alcohol intoxication. Dr. Brick was of the opinion that as a result of plaintiff's consumption of ten or more beers, objectively reflected in an elevated blood alcohol level, he became intoxicated and impaired; his ability to safely operate a vehicle was compromised; and the alcohol intoxication was a significant contributing factor to the accident.

Plaintiff made an in limine motion to bar evidence of his alcohol consumption on two grounds. First, he argued Dr. Brick's report failed to provide supportive evidence that demonstrated an impairment resulting from intoxication that contributed to the cause of the accident, i.e., that plaintiff's drinking affected the safe operation of his bicycle and made him unfit to ride his bicycle. Thus, he urged the probative value of the expert's evidence was outweighed by the potential for unfair prejudice, citing Gustavson v. Gaynor, 206 N.J. Super. 540, 544 (App. Div. 1985). Secondly, he argued that absent any specific fact to link plaintiff's intoxication to impairment in operating his bicycle and to support his conclusion that plaintiff's intoxication was a "significant contributing factor to this accident," Dr. Brick's report in this regard was an inadmissible net opinion.

Judge Pullen denied plaintiff's motion and permitted Dr. Brick to testify. Based on the documents he reviewed, Dr. Brick testified to his understanding of the circumstances of the accident, defendant's statements as to the amount of beer he drank and the time frame, the hospital BAC results, and his conclusion that plaintiff drank ten to thirteen beers prior to the accident. The expert explained his extrapolation of the probable alcohol content of plaintiff's blood at the time of the accident, noting the initial calculation in his report of .16% to .22% based on plaintiff's deposition testimony that he had begun drinking at ll:30 p.m. Based on plaintiff's trial testimony that he stopped drinking at 7:00 p.m., before he took his nap, Dr. Brick testified that at the time of the accident plaintiff's BAC would have been at a higher range of between .2% and .27%, and thus he would have been "significantly more intoxicated." Either range was above the legal limit for motor vehicle operators in New Jersey.

Dr. Brick further testified, consistent with his report, to the general effects of alcohol on cognitive, mental and psychomotor skills and functions of a bicycle rider, including perceptions, attention, balance, reaction time, judgment, and decision-making. He concluded that, based on plaintiff's estimated blood alcohol level at the time of the accident, in "all probability" such "divided attention," "impairment of judgment," and "impairment of perception" would apply to plaintiff. After Dr. Brick completed his testimony, plaintiff renewed his application to bar Dr. Brick's testimony as being a net opinion, which was subsequently denied by the court.

In his closing, defense counsel argued credibility, emphasizing the discrepancies between the testimony of plaintiff and the police officer as to plaintiff's high rate of speed and riding his unlit bicycle on the wrong side of the street. As to plaintiff's alcohol consumption, he mentioned the officer's notation in the report and plaintiff's counsel's failure to cross-examine Dr. Brick on how many beers the expert estimated plaintiff drank or his calculation of plaintiff's BAC at the time of the accident. He contrasted plaintiff's negligent conduct with the lack of negligence of defendant, who was stopped at a stop sign, looking in both directions for traffic to pass, and was struck when she entered the intersection.

In summation, plaintiff's counsel acknowledged that his client's blood alcohol level was above the legal limit and that someone who is drinking has his perception and judgment impaired. He argued, however, there was no credible evidence presented by Dr. Brick showing that such impairment contributed to the accident, and the accident would have happened whether plaintiff was sober or not. According to counsel, there was no evidence of plaintiff's negligence as opposed to that of defendant, who he claimed failed to stop and make proper observations at the stop sign and yield the right-of-way to the bicyclist who was close by.

The jury found plaintiff seventy-five percent at fault for the accident, and the no-cause verdict was entered. This appeal ensued. On appeal, plaintiff renews the arguments he made to the trial court.

In Gustavson we recognized the public concern for drunk drivers while establishing protections so jurors would not overreact when there are allegations of drinking and driving. 206 N.J. Super. at 546-47; see also Black v. Seabrook Assocs., Ltd., 298 N.J. Super. 630, 637 (App. Div.), certif. denied, 149 N.J. 409 (1997). Noting that evidence of intoxication is relevant to the issue of negligent driving, we held that in order to introduce evidence of prior drinking, supportive evidence must be presented "from which the trier of the fact may reasonably conclude that the drinking affected the safe operation of the vehicle." Id. at 544-45. Such evidence includes "excessive drinking, driving at an excessive speed, recklessness or erratic driving, drunken behavior at the accident scene, or similar acts suggestive of an unfitness to drive." Id. at 545. We found reversible error in admitting testimony that the defendant driver had consumed a few bottles of beer several hours before the accident and shortly before the accident had stopped at a nightclub where alcohol was sold, determining unfair prejudice substantially outweighed the probative value of the evidence. Id. at 547. In that case there was substantial proof that neither driver was under the influence of alcohol at the time of the accident, and the only supplementary evidence of defendant driver's unfitness to drive was his possible veering two or three feet out of his lane while driving on a curving road at night. Id. at 546.

In considering plaintiff's in limine motion, the trial court discussed the facts and legal principles of Gustavson and Seabrook Associates. The court was satisfied the evidence of alcohol consumption or intoxication was so relevant to the issue of fault and the parties' comparative negligence that, on balance, the probative value of the proffered evidence was not outweighed by any potential prejudice to plaintiff. It further found the .19% BAC reading following the accident that was contained in the hospital report constituted sufficient supplementary evidence of intoxication as that term was defined in Gustavson to render Dr. Brick's testimony admissible. Lastly, the court was convinced there were sufficient facts and information contained in the discovery documents that the expert reviewed, as well as in authoritative sources, to support Dr. Brick's opinions regarding plaintiff's intoxication and impairment in operating his bicycle to withstand a net opinion challenge.

"Traditional rules of appellate review require substantial deference to a trial court's evidentiary rulings." State v. Morton, 155 N.J. 383, 453 (1998). We have afforded substantial deference to a trial court's discretionary decision to admit or exclude evidence. Benevenga v. Digregorio, 325 N.J. Super. 27, 32 (App. Div. 1999), certif. denied, 163 N.J. 79 (2000). Generally, such discretionary evidential ruling "is not disturbed unless there is a clear abuse of discretion." Dinter v. Sears, Roebuck & Co., 252 N.J. Super. 84, 92 (App. Div. l99l). "Even where there may have been error, reversal is required only when an unjust result occurred." Ibid. We are satisfied the evidence of impairment was sufficient to meet Gustavson's requirements for admissibility, and discern no abuse of discretion in the challenged rulings pertaining to Dr. Brick's report and testimony.

Unlike in Gustavson, here there was relevant supportive evidence, reviewed and relied upon by Dr. Brick, from which a jury could reasonably conclude that plaintiff's alcohol consumption affected the safe operation of his bike and played a role in the accident. The officer's observations of plaintiff's bike riding and conduct within minutes and seconds of the collision are reflected in his report and deposition. Sergeant Kales noted defendant's erratic behavior, driving at a high rate of speed down a hill in violation of bicycle regulations, and his belief that plaintiff had consumed alcohol. In addition, in depositions plaintiff admitted he drank a six pack of beer from ll:30 p.m. to 2:00 a.m., and his blood alcohol level at the hospital three hours after the accident was .198%. The record contained sufficient supplementary evidence of intoxication to admit the proffered expert testimony, subject to plaintiff's ability to challenge the weight of Dr. Brick's opinions or argue that alcohol consumption had no bearing on plaintiff's style of bike riding or on the occurrence of the accident. Moreover, the alcohol pharmacologist's estimation of plaintiff's BAC at the time of the accident and his discussion of how intoxication affects human physiology and impairs an ability to operate a bicycle was highly probative as to the issues raised in the case regarding the negligence of the parties. We discern no basis to second-guess the trial judge's conclusion, after conducting the appropriate balancing test, that such probative value of Dr. Brick's testimony was not outweighed by any potential prejudice to plaintiff.

Dr. Brick's report and testimony contained sufficient factual foundation so as not to be considered a net opinion. See Vuocolo v. Diamond Shamrock Chemicals, Co., 240 N.J. Super. 289, 300 (App. Div. l990). He relied on plaintiff's admission of alcohol consumption; the facts and circumstances surrounding the accident contained in the accident report and the medical records; scientific evidence of the calculation of alcohol in the body; authoritative studies; and his knowledge, training and experience regarding the behavioral and psychological effects of alcohol intoxication. Dr. Brick testified to plaintiff's estimated blood alcohol level at the time of the accident, which was substantially in excess of the legal limit for motorists in New Jersey, and opined that such blood level "probably" impaired plaintiff's ability to operate a bicycle by reducing his ability to attend to various stimuli and clouding his perception and judgment. Thus the expert drew a link from his knowledge of alcohol intoxication and plaintiff's observed behavior before the accident, confirmed by plaintiff's high BAC reading, and reached the conclusion that plaintiff was impaired.

Dr. Brick provided the foundation, but he did not testify to the causal connection that plaintiff claims, i.e., that plaintiff's intoxication resulted in an impairment that was a significant contributing factor to the accident. The jury was free to draw such connection by combining Dr. Brick's testimony regarding the likely effect of alcohol on plaintiff's conduct and the testimony regarding the circumstances of the accident itself, which included plaintiff's high rate of speed, his traveling on the wrong side of the road, his incorrect perception that through eye contact defendant had given him the right-of-way, his inability to avoid the crash, and his striking of defendant's car.

Even if the jury discounted the testimony concerning alcohol, the evidence was more than sufficient to find plaintiff more negligent than defendant. Plaintiff was wearing dark clothing, riding a bicycle in the middle of the night without a light or horn, against traffic, down a hill at a high rate of speed, and struck defendant's car in an intersection.

Affirmed.

 

Prior to trial the claims asserted against defendant Gary Poland, the owner of the motor vehicle, were dismissed with prejudice by consent order on the grounds that there was no agency relationship between him and his daughter Heather Poland at the time of the accident.

(continued)

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A-5815-05T1

October 25, 2007