ANGELL A. YOUNG v. WILLIAM H. THOMAS

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1024-07T11024-07T1

ANGELL A. YOUNG,

Plaintiff-Appellant,

and

NYEASHA DANIELS,

KARL YOUNG, CRYSTALE McKINNEY and

RALPH McKINNEY,

Plaintiffs,

vs.

WILLIAM H. THOMAS, V, and

DEBRA M. THOMAS,

Defendants-Respondents.

__________________________________

 

Argued: November 6, 2008 - Decided:

Before Judges Cuff and Fisher.

On appeal from the Superior Court of New Jersey, Law Division, Camden County, Docket No. L-2315-04.

Joel Wayne Garber argued the cause for appellants (Garber Law, attorneys; Mr. Garber, on the brief).

Alexa J. Nasta argued the cause for respondents (Green, Lundgren & Ryan, P.C., attorneys; Francis X. Ryan and Ms. Nasta, on the brief).

PER CURIAM

On May 3, 2002, while stopped at a traffic signal in Lawnside, plaintiff Angell A. Young's car was struck from behind by defendant William H. Thomas, V. Afterward, plaintiff and the three passengers in her vehicle claimed to have suffered personal injuries. Plaintiff alleged that she injured her back. Defendant stipulated liability; the sole issue at trial was whether plaintiff suffered a permanent injury in this accident. A jury returned a verdict in favor of defendant. Plaintiff's motion for a new trial was denied and it is from this order that she appeals. We affirm.

Plaintiff alleged that the collision caused injuries to her back. Defendant argued that plaintiff's lumbar problems were caused by a prior accident, and the minimal force associated with the collision, as attested to by the minimal damage to plaintiff's vehicle, did not cause any injury to plaintiff.

Prior to the commencement of trial, plaintiff made a motion to submit a portion of the deposition testimony of her treating physician, who also treated the passenger. The physician would opine that the passenger injured his rotator cuff as a result of the collision with defendant. Plaintiff argued that this evidence was necessary to rebut an anticipated argument by defendant that the force of the accident's impact was not great enough to cause plaintiff's alleged injury. Judge Kassel denied her request under N.J.R.E. 403, observing that the relevance of the treating physician's testimony was substantially outweighed by the risk of confusing the jury, and that its admission would lead to a mini-trial concerning issues unrelated to plaintiff's personal injury claim. The judge cautioned, however, that he would allow the jury to hear the treating physician's testimony if the defense opened the door to its admission.

Plaintiff called defendant as a witness during her case. During cross-examination by defense counsel, defendant testified that he hit the back of plaintiff's car as he was slowing to a stop at a red traffic signal. His vehicle sustained a slightly bent front license plate. Defendant stated that he observed scuff marks on the back of plaintiff's car that may have resulted from its contact with his car. Defendant was then asked whether he heard "anybody" state they were injured after the accident. Defense counsel quickly modified the question to "Did you hear [plaintiff] say that she was injured at that time?"

Plaintiff later argued that this line of questioning opened the door to the admission of testimony regarding the passenger's injured shoulder. Defense counsel responded that she accidentally used the word "anyone," rather than "plaintiff," and maintained that her faux pas was not prejudicial. Relying on his earlier reasoning under N.J.R.E. 403, Judge Kassel once again denied plaintiff's request, choosing instead to instruct the jury that, in addition to plaintiff, three other passengers in her car claimed injuries from the accident. Defense counsel then proceeded to argue during her summation that the force of the collision between the two automobiles was not great enough to cause plaintiff's injury.

On appeal, plaintiff argues that the trial judge erred by barring testimony of injury to other occupants of her car. She also argues that the door to the admission of this evidence was opened when defense counsel asked defendant whether "anybody" stated they were injured at the scene of the accident. Plaintiff submits that the trial court should have granted her motion for a new trial on the grounds that the foregoing errors resulted in a miscarriage of justice. R. 4:49-1(a).

A trial court's ruling on a motion for a new trial "shall not be reversed unless it clearly appears that there was a miscarriage of justice under the law." R. 2:10-1. When deciding if there was a miscarriage of justice, "[t]he standard governing an appellate tribunal's review . . . is essentially the same as that controlling the trial judge." Dolson v. Anastasia, 55 N.J. 2, 7 (1969). Thus, appellate review is not limited to a determination of whether the trial court abused its discretion. Ibid. Rather, a reviewing court must make its own determination as to whether there was a miscarriage of justice, deferring to the trial judge only with respect to witness credibility, demeanor, and "other criteria which are not transmitted by the written record . . . ." Ibid.

Defendant's entire case was predicated on the theory that his negligence did not, in fact, cause plaintiff's injury because the force of the collision between their vehicles was negligible and that all physical complaints and limitations derived from a prior auto accident. To that end, the treating physician's testimony regarding the passenger's shoulder injury was relevant. Nevertheless, the trial judge determined that the probative value of that evidence was substantially outweighed by the risk that its admission would lead to a mini-trial concerning issues unrelated to plaintiff's personal injury claim.

A trial court "is granted broad discretion in determining both the relevance of the evidence to be presented and whether its probative value is substantially outweighed by its prejudicial nature." Green v. N.J. Mfrs. Ins. Co., 160 N.J. 480, 492 (1999). Indeed, "[d]eterminations pursuant to N.J.R.E. 403 should not be overturned on appeal" unless the trial court patently abused its discretion. Ibid. That did not occur here. Judge Kassel's ruling was based on a reasonable concern that the admission of the treating physician's testimony would confuse the jury and deteriorate into a trial within a trial.

Defense counsel did not "open the door" when she asked defendant whether "anyone" said they were injured at the scene of the accident. "'The 'opening the door' doctrine is essentially a rule of expanded relevancy and authorizes admitting evidence which otherwise would have been irrelevant or inadmissible in order to respond to (1) admissible evidence that generates an issue, or objection.'" Alves v. Rosenberg, 400 N.J. Super. 553, 564 (App. Div. 2008) (quoting State v. James, 144 N.J. 538, 554 (1996)). Nevertheless, the "opening the door" doctrine must yield to the evidentiary limitations set forth by N.J.R.E. 403. State v. Vandeweaghe, 351 N.J. Super. 467, 483 (App. Div. 2002), aff'd, 177 N.J. 229 (2003). Accordingly, when a trial court finds that the probative value of the otherwise inadmissible responsive evidence is substantially outweighed by the risk of undue prejudice or confusion of the issues, such evidence may be excluded. Ibid.

Here, Judge Kassel chose to issue a curative instruction that informed the jury that three other persons claimed physical injuries as a result of the accident between plaintiff and defendant. In doing so, the judge noted that the jury was aware that the impact was minor, that no ambulance appeared at the scene, and that plaintiff did not seek immediate treatment at an emergency room. Moreover, defense counsel quickly rephrased the question to direct defendant's attention solely to complaints uttered by plaintiff.

When weighing the effectiveness of curative instructions, a reviewing court should give deference to the determination of the trial court. Khan v. Singh, 397 N.J. Super. 184, 202-03 (App. Div. 2007). To be sure, there are some circumstances where the resulting prejudice is so great that a curative instruction would be insufficient. See Genovese v. N.J. Transit Rail Operations, Inc., 234 N.J. Super. 375, 378-79 (App. Div.) (finding the court's curative instructions "insufficient to overcome the strong psychological impact" of the trial judge's elicitation of expert testimony regarding "bottom line" wage loss figures), certif. denied, 118 N.J. 195 (1989). This is not one of those times. Judge Kassel's decision to issue a curative instruction to the jury was a "measured response" to defense counsel's minor error during cross-examination of defendant. Moreover, there was substantial evidence before the jury to support its finding that plaintiff did not suffer a permanent injury in this accident.

Defendant's argument during summation regarding the minimal impact between the parties' vehicles also did not require the admission of medical testimony concerning the nature and extent of a passenger's injury. Defendant was entitled to make this argument. See Brenman v. Demello, 191 N.J. 18, 32-33 (2007) (in automobile accident cases, a jury may surmise that there is a proportional relationship between the force at which two cars collide and the injuries resulting therefrom).

The September 20, 2007 order denying plaintiff's motion for a new trial is, therefore, affirmed.

Affirmed.

The claims of the three passengers settled prior to trial.

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A-1024-07T1

December 17, 2008