STEVEN COHEN v. GINAMARIE F. CUOMO

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1964-07T31964-07T3

STEVEN COHEN,

Plaintiff-Appellant,

v.

GINAMARIE F. CUOMO and

ANDREA A. CUOMO,

Defendants-Respondents.

_________________________________

 

Argued April 22, 2009 - Decided

Before Judges Parrillo, Lihotz and Messano.

On appeal from Superior Court of New Jersey, Law Division, Mercer County, Docket No. L-0270-04.

Dennis S. Brotman argued the cause for appellant (Fox Rothschild, LLP, attorneys; Mr. Brotman, of counsel and on the brief).

William F. Hartigan, Jr., argued the cause for respondents (McLaughlin & Cooper, P.C., attorneys; John J. Gentile, of counsel; Mr. Hartigan, on the brief).

Abbott S. Brown argued the cause for amicus curiae The Association of Trial Lawyers of America-New Jersey (Bendit Weinstock, P.A. and Medvin and Elberg, attorneys; Mr. Brown and Alan Y. Medvin, on the joint brief).

PER CURIAM

In this auto negligence matter, plaintiff Steven Cohen appeals from a judgment following a jury verdict, which attributed eighty percent liability to defendant Ginamarie F. Cuomo, but awarded no damages after concluding plaintiff did not suffer permanent injuries as required by N.J.S.A. 39:6A-8. On appeal, in addition to arguing the verdict was against the weight of the evidence, plaintiff challenges various trial rulings. We have considered the arguments raised in light of the record and applicable legal standards and we affirm.

The basic facts surrounding the accident follow. On June 12, 2002, at approximately 9:00 p.m., plaintiff's vehicle, while traveling northbound on Yardville Hamilton Square Road nearing the Klockner Road intersection, was struck by defendant's vehicle, which was traveling on the same road in the opposite direction, when she turned left in front of plaintiff's oncoming car. Immediately after the accident, plaintiff told his wife "he never saw" defendant's car prior to impact as "she came out of nowhere."

As a result of the accident, plaintiff remembered hitting his head on the center console and being helped out of his vehicle and laid down on a nearby curb. Plaintiff was dizzy and "a little dazed as to what actually happened," his head was hurting, and he felt a lump on his head as he wiped blood from his eyes. He also hit his right knee. Plaintiff had a cut above his left eye, a large hematoma around his left eye and forehead, and tenderness on his right shin.

Plaintiff did not remember speaking with anyone at the scene. In contrast, defendant testified plaintiff spoke to her and told her he was not wearing his seatbelt. She further testified that after the accident, plaintiff sat on a nearby curb and smoked a cigarette.

Officer James Scott of the Hamilton Township Police Department reported to the scene of the accident. In his report, Officer Scott noted plaintiff suffered moderate injuries, was conscious and comprehended and responded to questions. He further recorded the only safety equipment used was an airbag, suggesting plaintiff denied using a seatbelt. Officer Scott radioed for an ambulance, which took plaintiff to Robert Wood Johnson University Hospital (RWJ).

Defendant was issued a summons at the scene. She later pled guilty to a downgraded charge during a municipal court hearing.

At trial, plaintiff presented expert testimony in support of his position that he suffered various injuries as a result of the accident, including but not limited to a closed head injury, bulging and herniated discs, memory loss, vision impairment, a torn left medial meniscus, and post-traumatic psychiatric disorder. He also asserted he was prevented from returning to his prior employment as a truck driver. Experts presented by the defense disputed plaintiff's conditions were caused by or related to the accident.

On appeal, plaintiff raises these points for our consideration:

POINT I: DEFENDANT WAS IMPROPERLY PERMITTED TO UNDERMINE THE COURT'S PRIOR RULING THAT THERE WOULD BE NO SEATBELT DEFENSE TO THE EXTREME PREJUDICE OF PLAINTIFF.

POINT II: PLAINTIFF WAS DENIED A FAIR JURY SELECTION PROCESS IN ACCORDANCE WITH JURY SELECTION STANDARDS MANDATED BY THE SUPREME COURT OF NEW JERSEY.

POINT III: THE FINDINGS OF FACT OF THE JURY ARE IRRATIONAL AND AGAINST THE WEIGHT OF THE EVIDENCE.

POINT IV: THE TREATMENT OF PLAINTIFF'S EXPERT ECONOMIST WAS SO DEMEANING AND DISDAINFUL AS TO COMPLETELY UNDERMINE THE CREDIBILITY OF PLAINTIFF'S PRESENTATION, WHILE PLAINTIFF'S ECONOMIST WAS IMPROPERLY BARRED FROM TESTIFYING TO HIS ANALYSIS CONTAINED IN HIS REPORTS.

POINT V: PLAINTIFF WAS PREJUDICED BY THE ALLOWANCE OF HEARSAY TESTIMONY BY DEFENDANT'S NEUROLOGY EXPERT.

POINT VI: PLAINTIFF IS ENTITLED TO A MISTRIAL WITH COSTS.

We will address each of these issues and include, as necessary, additional relevant facts presented at trial.

Plaintiff first argues the trial court erred when it permitted defense evidence in contravention of an in limine order. Plaintiff filed a motion to bar the trial testimony of defendant's proffered seatbelt experts, asserting they were net opinions. An order entered on August 4, 2006 granted plaintiff's request. Thereafter, plaintiff moved in limine for exclusion of references in the hospital and medical records suggesting he was an "unrestrained driver." Plaintiff asserted defendant would use the references to suggest plaintiff's failure to wear a seatbelt caused his injuries.

The trial judge denied plaintiff's motion, concluding the contradictory statements made by plaintiff regarding his seatbelt usage were admissible inconsistent statements by a party and relevant to test plaintiff's credibility. The court also emphasized the accuracy of plaintiff's recollection of the events surrounding the accident in June 2002 was crucial.

However, the court granted plaintiff's request to instruct the jury that his seatbelt usage was not to be considered "as a fact bearing upon comparative negligence." See N.J.R.E. 105 (requiring court, upon request, to instruct jury as to proper scope when evidence is admissible for one purpose but not another). The court stated: "I think the . . . instructions will safeguard any danger that the jury will . . . make a finding that seatbelt use is an issue in this case with regard to comparative negligence. And I'll specifically . . . charge that [the] seatbelt issue, other than for credibility purposes, is not an issue in this case."

On cross-examination, plaintiff was asked to explain why he initially stated to police, emergency personnel, his family doctor, and an orthopedist that he either was not wearing a seatbelt or was unsure whether he was restrained, then, more than two years after the accident, changed that statement. He told two treating specialists he was wearing a seatbelt and testified in depositions that he always wears a seatbelt because it automatically engages when you are seated in the car.

On appeal, plaintiff argues allowing evidence, which implied his non-use, even for a limited purpose, caused the jury to engage in improper "speculation and conjecture" and conclude "he was lying to them when he testified that he was wearing a seatbelt and shoulder harness." Citing Waterson v. Gen. Motors Corp., 111 N.J. 238 (1988), plaintiff maintains "evidence of non-use must be excluded in a case where the court has determined that a seatbelt defense is excluded."

In Waterson, supra, the Court determined whether evidence of a plaintiff's failure to use a seatbelt was admissible on the issue of liability. 111 N.J. at 242. The Court adopted this principle:

if a jury finds that a plaintiff's failure to wear a seat belt constitutes negligence that contributed to plaintiff's injuries and damages, that negligence shall be considered in determining plaintiff's award. . . . [A] plaintiff's recovery for injuries that could have been avoided by seat-belt use may be reduced by an amount reflecting plaintiff's comparative fault in not wearing a seat belt. . . . The jury may take into account plaintiff's negligent failure to use a seat belt only to reduce plaintiff's recovery for these seat-belt damages.

[Id. at 241.]

Here, the trial court stated the non-use evidence was not produced to show plaintiff bore a measure of fault for his injuries, but rather the references were directed to whether plaintiff's version of the accident, as told immediately after the accident, changed over time. Defendant makes no claim that the evidence somehow touched on the character of plaintiff's injuries, as everyone conceded it was irrelevant to negligence.

We fail to understand the purpose of placing the non-use evidence before the jury. Once the trial court properly excluded the seatbelt defense, in light of defendant's failure to demonstrate through expert testimony that plaintiff's non-use increased the severity or extent of his injuries, the statements were irrelevant. Since the non-use evidence had been excluded regarding the critical issue of plaintiff's negligence, "then both the specific and general effects of any contradiction on such a collateral matter have very little value." Gonzalez v. Silver, 407 N.J. Super. 576, 594-95 (App. Div. 2009) (citing Mueller & Kirkpatrick, Evidence, 6.62 at 677 (1995)). Regarding liability, although defendant did not concede this issue, plaintiff's version of the accident matched defendant's. Therefore, plaintiff's report that he was unrestrained when the collision occurred, but thereafter asserted he wore a seatbelt, did not relate to a disputed fact or bear on the jury's role to assess fault and evaluate the nature, including permanency, of plaintiff's injuries.

Moreover, the evidence should have been excluded pursuant to N.J.R.E. 403, which grants a trial court the discretion to exclude otherwise admissible evidence if its probative value is outweighed by its prejudicial effect.

This balancing test applies whether or not the evidence is being admitted as direct evidence in the party's case-in-chief, or as indirect evidence for impeachment purposes. See Biunno, Current N.J. Rules of Evidence, comment 1 on N.J.R.E. 607 (2007) ("The use of extrinsic evidence to enhance or impair the credibility of a witness may generally be done by the party who called the witness as well as by an adverse party, although . . . . [t]he trial court still has discretion under N.J.R.E. 403 to exclude extrinsic evidence if the court finds that the probative value of the evidence is substantially outweighed by any of the counterfactors mentioned in that rule.").

[Gonzalez, supra, 407 N.J. Super. at 594-95.]

We reject the trial court's determination that the evidence was admissible on the issue of "whether or not [plaintiff's] recollection was accurate," relying on N.J.R.E. 607 (evidence of plaintiff's conflicting statements allowed to impeach credibility about his version of the facts). "Indeed, under present circumstances, impeach[ment] evidence cannot be used to support an inference that a witness has a 'tendency' to be untruthful." Id. at 594 (citing Reinhart v. E.I. DuPont de Nemours, 147 N.J. 156, 166 (1996)). The inferences allowed to be drawn did not bear on the substantive issues in this case to justify admission as prior inconsistent statements under N.J.R.E. 607, 613(b) or 803(a)(1). Ibid.

We will only reverse when a trial court's misapplication of discretion in evidentiary rulings results in a manifest denial of justice. State v. E.B., 348 N.J. Super. 336, 344 (App. Div.), certif. denied, 174 N.J. 192 (2002). In this matter, although we agree the trial court erred in allowing the evidence that plaintiff did not wear a seatbelt, we nevertheless determine the error was harmless, considering the repeated specific instructions given to the jury along with the evidence presented at trial as a whole.

The trial court instructed the jury about the limited use of the seatbelt references. Following the parties' opening statements, the court immediately issued the following limiting instruction:

[T]he use of the seatbelt, whether or not [plaintiff] was wearing a seatbelt, will not play any role in this case with regard to comparative negligence or any responsibility that [he] had to avoid any consequences from the accident by operating a seatbelt.

There's only one issue it's relevant to and that issue is to the credibility of [plaintiff] and that's what you'll assess. Whether or not his statements regarding the seatbelt use reflect at all upon his credibility. There's no other issue that that goes to in this case.

Again, when giving its charge to the jury the court stated:

[I]f I give you a limiting instruction, you can only consider that evidence for that purpose and for no other purpose.

In that regard there is one particular area that I am going to give you a limiting instruction on and I already have. That involves the testimony of [plaintiff's] statements about whether he was or was not wearing a seatbelt at the time of the accident.

That testimony has been admitted by this Court for one reason only. That is to allow you to assess the credibility of [plaintiff]. It's not being offered to show any negligence or any comparative negligence on the part of the plaintiff and you may not use it for that purpose.

You can only use it in consideration of the credibility and in assessing the credibility of [plaintiff] and for no other purpose in this particular case.

It is presumed juries understand and follow the court's instructions on legal principles. State v. Savage, 172 N.J. 374, 394 (2002). In this matter, the court emphasized the limited use of the seatbelt evidence, and we have no reason to doubt the jury complied with the direction given. Although we conclude the evidence should have been excluded, after considering all the evidence, we are satisfied the jury understood its role was to discern causation and permanency regarding plaintiff's injuries.

Generally, this trial was a battle of experts on the issue of whether plaintiff's complaints resulted from the accident or other causes. The jury assessed the numerous conflicting expert witnesses presented by each side along with plaintiff's inconsistent testimony regarding his injuries. In addition, we cannot ignore that despite the in limine ruling, it was plaintiff who first asserted the evidence would show he wore a seatbelt in his opening statement. Later, plaintiff questioned his orthopedic expert regarding his observations of seatbelt injuries. The defense responded with rebuttal evidence on this issue.

When viewed in that light, we decline plaintiff's invitation to grant a new trial. We conclude the trial court's misapplication of discretion in admitting the seatbelt evidence did not result in a manifest denial of justice.

Plaintiff additionally argues the court's inclusion of a "false in one false in all" charge was "particularly improper and prejudicial." This argument too is rejected.

The doctrine of "false in one, false in all" may be "invoked when [a] false testimony or statement is willfully or knowingly or intentionally given or made concerning a material fact in the case[.]" Coleman v. Pub. Serv. Coordinated Transp., 120 N.J.L. 384, 387 (1938) (citations omitted). The doctrine relates to the weight of the testimony and whether a trial court invokes it is a matter left to its discretion. Hargrave v. Stockloss, 127 N.J.L. 262, 266 (E. & A. 1941).

In denying plaintiff's objection to using the proposed charge, the trial judge stated, "I think there's a host of inconsistencies in the testimony of [plaintiff]. . . . I think false in one, false in all certainly applies in this case." Accordingly, he charged the jury:

Now with regard to credibility. If you believe that any witness or party willfully or knowingly testified falsely to any facts significant to your decision in this case with the intent to deceive you, you may give such weight to his or her testimony as you may deem it is entitled. You may believe some of it or you may, in your discretion, disregard all of it.

This charge was accompanied by credibility instructions consistent with Model Jury Charge (Civil), 1.12 K, "Credibility" (short version) and L, "Credibility" (long version) (Nov. 1998). See State v. Allen, 308 N.J. Super. 421, 427 (App. Div. 1998) (when giving "false in one, false in all" charge, the court must also give full charge on credibility).

Considering the contradictory and equivocal statements plaintiff made to treating physicians, his completion of an October 2004 job application on which he affirmatively stated he had not had an injury or illness in the last five years, and his limited recollection when testifying on some issues at trial, the charge was appropriate. We will not disturb the trial judge's reasoned exercise of discretion.

Next, plaintiff, joined by amicus, The Association of Trial Lawyers of America (ATLA), challenges, as reversible error, the court's noncompliance with the jury selection standards established by the Administrative Office of the Courts and approved by the Supreme Court set forth in Directives #21-06 and #04-07. Plaintiff contends the court posed only closed ended questions during jury voir dire, despite repeated requests to pose questions to ascertain the jurors' feelings with respect to tort reform. Plaintiff argues he was prejudiced by the improper jury selection as the case was heard by "a jury with potential biases [that were] never fairly identified."

After thoroughly reviewing the entire voir dire, we conclude plaintiff's argument is unavailing. We are satisfied the trial court's substantial compliance with the Directives assured "the overall scope and quality of the voir dire was sufficiently thorough and probing" and assured a panel of fair and impartial jurors.

Directive #04-07, which supplements Directive #21-06, requires:

Some open-ended questions must be posed verbally to each juror to elicit a verbal response. The purpose of this requirement is to ensure that jurors verbalize their answers, so the court, attorneys, and litigants can better assess the jurors' attitudes and ascertain any possible bias or prejudice, not evident from a yes or no response, that might interfere with the ability of that juror to be fair and impartial. Open-ended questions also will provide an opportunity to assess a juror's reasoning ability and capacity to remember information, demeanor, forthrightness or hesitancy, body language, facial expressions, etc. It is recognized that specific questions to be posed verbally might appropriately differ from one case to another, depending upon the type of case, the anticipated evidence, the particular circumstances, etc. Therefore, rather than designating specific questions to be posed verbally to each juror, the determination is left to the court, with input from counsel, in each case.

The purpose of the Court's Directives "is to empanel a jury without bias, prejudice or unfairness." Gonzalez, supra, 407 N.J. Super. at 596 (citing State v. Morales, 390 N.J. Super. 470, 472, 475 (App. Div. 2007)). "The requirements are imposed in order to establish uniform practices that will assure a thorough and meaningful inquiry into jurors['] relevant attitudes." Ibid. (internal quotations omitted). The hallmark of the inquiry is to ferret out possible bias or prejudice.

Prior to jury selection, the court reviewed proposed voir dire questions. Rule 1:8-3(f). Certain questions requested by plaintiff were accepted, in addition to the model questions initially promulgated by Directive #21-06 and supplemented by Directive #04-07. Plaintiff also sought use of a specific question on tort reform, that is, "How do you feel about the right of a citizen to sue for money damages due to personal injury caused by negligence?" The trial judge declined to ask this question because the subject matter was encompassed by a protocol question, which the court intended to use, namely: "The [c]ourt is aware that there has been a great deal of discussion about something called tort reform and that refers to laws that restrict your right to sue or limit the amount recovered. Do you have an opinion about that?" At plaintiff's request, this question was also posed: "Do any of you have a feeling that jury awards in general have either been too high or too low?"

In addition to the above open-ended questions, the court posed a question regarding possible biases resulting from separation or divorce or living with another individual who you later marry; additional biographical questions regarding each prospective juror's hobbies, interests, family members, television preferences and utilized media sources; and the required omnibus questions regarding the individual's ability to be fair and impartial. The court followed-up with further inquiry when an individual juror offered an affirmative response to a "yes or no" question.

On appeal, plaintiff offers no basis to show he was prevented from assessing the "reasoning ability and capacity to remember information, demeanor, forthrightness or hesitancy, body language, facial expressions, etc." of the prospective jurors. Instead, he suggests the trial judge disregarded the Directives because the questions employed by the court were not open-ended and his suggested formulation was preferable. Plaintiff's complaint is less about the fairness of the procedure employed and more about the court's refusal to accept the form of the question with respect to tort reform.

Examining the trial court's inquiry, we note the tort reform question reflected the model jury selection questions included in Directive #04-07. We observe the initially seated jurors were not asked the open-ended questions individually, but rather as a group. When no one expressed an opinion, the court moved forward with the next question. However, as jurors were stricken, the replacements were questioned individually.

The inquiry was designed to prompt juror responses that were something other than "yes or no" answers. Here, the jurors predominately stated they "had no opinion" on tort reform. An argument could always be advanced that the court should ask each juror additional or more questions. However, plaintiff's objection, unaccompanied by some evidence that the process employed was biased or unfair, is an insufficient basis to warrant reversal.

We disagree with the ATLA's characterization of this selection process as "perfunctory." Further, we do not agree with plaintiff and the amicus that the court disregarded the Directives or that the process was biased and unfair.

The court did not rush through the process or limit inquiry to "yes or no" questions. This is reflected by the fact selection took one and one-half days and the court went through two full panels of jurors, as fifty-one people were dismissed. The judge posed at least three questions to which jurors could express an opinion and asked follow-up questions when warranted. For example, two proposed jurors vocalized a sense that some verdicts were too high and each was asked to explain what was meant by their comments and whether the role of a juror could be performed fairly and other jurors explained their experiences with relatives suffering from brain injuries or mood disorders.

Also, we accept as valid the trial judge's comment that the court is not required to ask a juror who states he or she does not have an opinion one way or another on the issue of tort reform why he or she has no opinion. The Directives do not suggest jury selection should become confrontational or obtrusively probing.

We emphasize trial judges must fully comply with the mandates of the Directives. This requires trial judges to provide a meaningful examination of each proposed juror, not a robotic recitation of questions without concern for the received responses. We urge trial judges first to closely examine the proposed voir dire questions to ensure each juror will be required to provide a broader narrative response to open-ended questions as sought by the Directives, and second, to ask follow-up inquires of those jurors who vocalize only limited responses.

In this matter, when considering the entire voir dire, we are satisfied the inquiry employed, although not perfectly matched to the Directives, adequately assured fairness in this jury selection process and does not warrant the verdict be set aside. Velazquez v. Portadin, 321 N.J. Super. 558, 574 (App. Div. 1999), rev'd on other grounds, 163 N.J. 677 (2000).

Plaintiff's third challenge suggests the trial court erred in denying his post trial motion for a new trial because the jury's verdict was shocking, irrational and against the weight of the evidence. He contends all of the testifying experts, including those proffered by defendant, overwhelmingly agreed he suffered numerous permanent injuries as a result of the accident. Further, plaintiff argues the liability verdict was tainted because the jury must have concluded he did not wear his seatbelt, and therefore, apportioned twenty percent liability to him. To properly evaluate plaintiff's argument, understanding this was nearly a head-on collision and plaintiff injured his head in the accident, we must provide an overview of the trial testimony.

Following the accident, plaintiff was admitted to the RWJ emergency room. He was described as alert and complained of pain in his right knee and a bump on his head. A physician's report and triage assessment stated plaintiff had not lost consciousness. Radiographic testing revealed "[n]o acute fractures, subluxation or bony destruction," and a CT scan of plaintiff's head showed no abnormalities. Plaintiff was discharged with a prescription for Percocet and instructions to follow up with his family doctor in five days and return to work on June 15, 2002.

The next day, plaintiff was examined by his family physician, Lubna Ahmed, M.D. He complained of neck pain, a limited range of motion, swelling of his left eye and forehead, and pain in his right knee. She requested an MRI, which was performed at RWJ that afternoon. The MRI of plaintiff's cervical spine revealed

small posterior disc bulges from C3-4 through C6-7. A small posterior right disc protrusion is evident at C6-7. There is mild bilateral foraminal stenosis at C5-6 and on the right side, at C6-7. No cord compression or significant central canal stenosis is noted within the facet joints from C4-5 through C6-7.

Plaintiff was discharged with a diagnosis of post-traumatic cervical strain and instructed to follow up with Dorota M. Gribbin, M.D., a physiatrist.

Plaintiff saw Dr. Gribbin on June 14, 2002. His complaints included "severe neck pain and stiffness, left thigh pain and paresthesias, right knee pain, [and] inability to walk due to left thigh pain and right knee pain." Plaintiff did not express he was suffering from headaches, dizziness or left knee discomfort. An initial EMG was normal. Dr. Gribbin diagnosed plaintiff with "traumatic brain injury," multiple musculoskeletal injuries, cervical radiculopathy, and lumbar radiculopathy. She referred him for neurological and ophthalmological consultations. She ordered lumbar spine and right knee MRIs.

Plaintiff had twenty-four office visits with Dr. Gribbin from June 2002 to August 2007. A file note made on December 11, 2002 states she advised plaintiff to stop participation in weightlifting and martial arts.

Dr. Gribbin prescribed physical therapy and other periodic therapies, including lateral facet and epidural blocks for lower back pain, and trigger point injections for right shoulder pain. She recommended plaintiff not return to work until October 30, 2002.

In 2004, plaintiff complained of right shoulder pain. Dr. Gribbin referred plaintiff for a driving evaluation at St. Lawrence Rehabilitation Center. Plaintiff's performance "revealed significant physical limitations for managing a car," including "visual field difficulties" and trouble concentrating. He was "instructed to refrain from driving until given physician and/or DMV clearance." A "Behind-The-Wheel evaluation" revealed plaintiff was "safe to return to driving without restriction" as he was "very aware of his visual deficit and consistent[ly] turned his head and scanned traffic on his left." However, Dr. Gribbin concluded plaintiff would never be able to return to work as a truck driver.

In light of plaintiff's visual difficulties, he underwent a visual field analysis at Will's Eye Hospital on August 29, 2002, and September 7 and 30, 2002. Plaintiff was diagnosed with non-traumatic acute posterior vitreous detachment in his left eye. Thereafter, an examination by Steven G. Safran, M.D., an ophthalmologist, noted plaintiff had "visual field deficits" "consistent with trauma from the accident," however, the doctor could not rule out the possibility that these symptoms existed beforehand. He noted improvement over the examinations and stated, "I cannot say that his field defects would make him fail the individual state criteria for meeting a commercial drivers license."

On June 25, 2002, C. Alexander Moskwa, Jr., M.D., an orthopedic surgeon, evaluated plaintiff's complaints of knee pain, which was more prominent on the left than the right. Dr. Moskwa concluded plaintiff suffered "[b]ilateral knee contusions with a small hematoma on right [] knee" resulting from the accident. An MRI of plaintiff's left knee revealed a "tear involving the posterior horn of the medial meniscus." Plaintiff underwent surgery on his left knee on September 27, 2002, followed by the same surgical procedure on his right knee in December 2002.

During plaintiff's last visit on January 14, 2003, Dr. Moskwa found he had "a full pain free range of motion" and "responded very well to his bilateral knee arthroscopy." Dr. Moskwa opined plaintiff should not continue to drive trucks and recommended he find another job.

On July 12, 2002, plaintiff began seeing John Charuk, a clinical psychologist with a sub-specialty in neuropsychological evaluation and treatment. Based upon plaintiff's statements and various testing, Dr. Charuk opined "plaintiff had a closed head injury without loss of consciousness, cognitive disorder due to trauma, post-traumatic stress headaches, and acute post-traumatic stress disorder." Neuropsychological testing revealed plaintiff had "visual processing deficits," which might prevent him from being able to work as a truck driver. Plaintiff was sent for additional testing at the RWJ Speech and Hearing Center. Based upon those test results, Dr. Charuk classified plaintiff's symptoms - headaches, temper problems, and short-term memory difficulties - under the category of post-concussion syndrome and concluded plaintiff was permanently disabled. He also noted plaintiff suffered from an increasingly worsening temper as a result of his head injury, opining plaintiff would always suffer "some residual [diffuse] cognitive dysfunction" and will "become more dysfunctional if things don't go well or if stress increases or things are thrown at him too rapidly." Plaintiff's last examination was December 16, 2004.

Almost one year later, on November 17, 2005, plaintiff returned to Dr. Charuk stating he was "severely depressed" because he could not handle work as a loading dock supervisor for Roadway Express. At this time, plaintiff was also in the midst of a divorce proceeding. Dr. Charuk recommended plaintiff resign from his job "due to increased stress, anxiety and [an] explosive temperament."

Based on a referral from Dr. Charuk, plaintiff was examined by Lorraine Sgarlato-Inducci, Ph.D., an audiologist at RWJ, on September 24, 2002. He continued treatment until January 3, 2003. Plaintiff complained of difficulty retaining information, hearing over background noise, and sound sensitivity. Dr. Sgarlato-Inducci opined plaintiff suffered mild to moderate impaired auditory discrimination, that is, central auditory processing weaknesses including decoding and organization. Her treatment recommendations included therapy, which allowed plaintiff to improve. Dr. Sgarlato-Inducci stated plaintiff's auditory deficits could occur from jarring his brain, but she could not rule out the possibility that they were a pre-existing condition.

Barry Perlman, M.D., a radiologist with specialized training in nuclear medicine, performed a SPECT study of plaintiff's brain on April 19, 2004. The scan showed two areas of brain abnormality where there is an area of less activity: one is "decreased uptake in the left temporal lobe, and . . . the right frontal parietal junction."

Also, Dr. Charuk referred plaintiff to Jeffrey D. Petersohn, M.D., an anesthesiologist with a subspecialty in interventional anesthesiology, who examined him on October 6, 2004. Dr. Petersohn's de bene esse deposition was played for the jury. His diagnosis was that plaintiff suffered from "lumbar discogenic pain syndrome with L4-5, and probably a right L5-S1 posterior annular tear as well as [a] focal disc protrusion or herniation." He recommended lumbar discography followed by a CT scan. The discography revealed "[m]ultilevel moderate-severe degenerative disc disease with concordant discogenic pain generation at L5-S1." Relying on plaintiff's recitation of events and symptoms, Dr. Petersohn opined the June 12, 2002 accident was the "sole provoking cause" of plaintiff's injury and concluded plaintiff should cease driving trucks and would have to live with his pain, as he was not a candidate for spinal surgery. Dr. Petersohn admitted he had not read the emergency room records, or a June 14, 2002 MRI evincing possible degenerative disc changes predating plaintiff's accident.

Edward Kim, M.D., a psychiatrist, specializing in neuropsychiatry, evaluated the permanency of plaintiff's head injury. On January 16, 2004, Dr. Kim reviewed plaintiff's medical records and determined plaintiff was suffering from "diffused cognitive deficits" that were "directly and causally related to the injuries he had in the motor vehicle accident," which are consistent with "mixed bipolar mood disturbance" commonly following "head trauma." He opined plaintiff was completely disabled and unable to work, but noted "there was potential for improvement over time."

On cross-examination, Dr. Kim acknowledged plaintiff's electrocardiogram (EEG), which measures electrical activity in the brain, was normal. In his diagnosis, Dr. Kim relied on a history provided to Dr. Charuk and plaintiff's statements that he suffered "severe headaches and dizziness" "immediately after the accident"; was "absentminded" and "distract[i]ble"; and had difficulty concentrating "even for brief periods of time."

Dr. Kim examined plaintiff a second time on February 19, 2007 and diagnosed him with "personality change secondary to traumatic brain injury labile type" and "dementia secondary to head trauma." He concluded "it is unlikely that [plaintiff] will experience further cognitive and functional improvement that will allow him to return to competitive employment."

Numerous defense experts also testified. Aaron Sporn, M.D., an orthopedic surgeon, examined plaintiff on October 21, 2004. Dr. Sporn's findings were contrary to several of plaintiff's experts. Specifically, he found no radiculopathy, minimal diminishment in neck motion; no localized areas of pain, spasm, inflammation or distortion in the neck; no evidence of injuries to the base of the neck, middle or lower back; no issues with the knees post surgery; normal function in the arms, legs, neck and back; normal strength and sensation; and no neurological deficits in the arms or legs, indicating the absence of a disc abnormality affecting nerve function. His review of plaintiff's radiology records revealed plaintiff suffered from degenerative arthritis and related problems brought on by normal wear and tear associated with age.

Dr. Sporn opined the accident likely caused plaintiff to sustain "soft tissue sprains and strains of the cervical spine and lumbar spine, and soft tissue sprains, strains and contusions of both knees." While Dr. Sporn theorized plaintiff's knee problems were due to "normal aging, wear and tear, [and] arthritis," which preceded the accident, he acknowledged the accident may have "aggravated and worsened" plaintiff's pre-existing conditions, contributing to his need for surgery.

Thomas Sacchetti, Ph.D., was the defense's expert neuro-psychologist. In an August 15, 2005 examination, plaintiff told Dr. Sacchetti he remembered hitting his head on the center console during the accident and was dazed and wobbly but could not recall whether he lost consciousness. Dr. Sacchetti administered a number of tests to plaintiff which revealed: plaintiff's pre- and post-accident IQ had not changed; plaintiff scored in the average range on a majority of the memory tests; he had a mild impairment in motor sequencing and dexterity in his right hand; he had left visual field problems; plaintiff had average language skills; he had low average to average complex problem-solving skills; he scored within the average range on frontal lobe testing; and, he had no difficulties with spatial or complex integrative skills. Personality tests revealed plaintiff "had a tendency to magnify or over-report his psychological problems. So he reported very high levels of anxiety, depression, post-traumatic stress and concern, and physical or somatic concerns."

Firmly disagreeing with Dr. Kim, Dr. Sacchetti stated plaintiff had no signs of a damaged brain, post-traumatic stress disorder, organically based mood disorder or personality change. His review of the radiographic evidence, that is, the MRI scan, showed no lesions and no frontal lobe impairment. Further, in contrast to Dr. Charuk's finding, at the time plaintiff saw Dr. Sacchetti in 2005, he did not have "any physical or organic problems with brain functioning related to the accident of 2002." Dr. Sacchetti concluded, plaintiff had not been of above average intelligence prior to the accident, and he disagreed that any noted deficits shown by testing were a result of plaintiff's head injury. Dr. Sacchetti further opined plaintiff does not "currently ha[ve] any residuals" associated with a brain injury resulting from the accident.

Finally, he stated, plaintiff's reported diminished frustration control and increased temper levels were not a result of the accident. Dr. Sacchetti stated, at worst, plaintiff sustained a mild closed head injury, not a permanent head injury, and individuals who suffer such an injury can recover completely.

William C. Brown, Jr., M.D., an ophthalmologist, examined plaintiff on November 28, 2005. He performed a visual field test and noted a deficit in plaintiff's peripheral vision, but concluded the high number of false negatives rendered the test unreliable. Dr. Brown expected to see evidence of "traumatic optic neuropathy in either eye" given the history of head trauma, but did not. Dr. Brown concluded plaintiff suffered no vision deficits as a result of the accident.

The final defense expert was John William Vester, M.D., a neurologist, who examined plaintiff on March 18, 2005. Dr. Vester also concluded plaintiff had "a mild closed-head injury" with "no acute intercranial problems" or "permanent structural brain injury." With regard to plaintiff's neck, Dr. Vester opined plaintiff had "preexistent cervical spondylotic disease," as noted on the MRI. He agreed plaintiff's "preexistent lumbar spondylotic disease or degenerative disease" would have caused plaintiff consistent extreme pain within forty-eight hours after the accident. However, the symptoms of cervical strain eventually improved. Dr. Vester found no consistent neurological findings to support cervical radiculopathy. Further, Dr. Vester concluded the noted disc herniations were degenerative changes related to aging. Finally, Dr. Vester concluded plaintiff should not suffer any long term neurological problems due to the accident.

In the course of the cross-examination of plaintiff and his wife, the defense challenged plaintiff's alleged cognitive dysfunction by showing, after the accident, he achieved Dean's List recognition in one semester while obtaining an associate's degree from Mercer County Community College; performed very well on testing conducted by Roadway Express during a job interview; and described his skills as "detail oriented," computer literate, possesses the "ability to multitask and manage time well," and possesses "excellent written and verbal communication skills." Finally, in a medical report submitted to an employer in November 2004, plaintiff affirmatively stated he had no illness or injury within the last five years; he suffered no head or brain injuries, disorders or illnesses; and he suffered no nervous or psychiatric disorder, severe depression or spinal injury or disease. The defense also introduced prior reports regarding a lower back work-related injury suffered on September 12, 2000, which required hospitalization and medication and staying out of work for eighteen days, and an injury on April 26, 2000, in which plaintiff hurt his right foot and knees and was out of work for two months.

Following the verdict, plaintiff moved for a new trial. In reviewing plaintiff's motion the trial judge ruled:

With regard to the [] argument[] that the verdict is irrational or against the weight of the evidence, most of the testimony of the plaintiff's experts with regard to permanency and causation certainly was contradicted by the substantial testimony given by defendant's experts.

The biggest aspect of plaintiff's claim of permanency in this case and the one on which the plaintiff spent the most time developing, was plaintiff's argument that [he] suffered a closed head injury as a result of this motor vehicle accident and that he suffered cognitive difficulties as a result of the [] accident. Those injuries were largely dependent upon plaintiff's own self-reporting to the doctors and his testimony at trial. And plaintiff -- there were problems to say the least with plaintiff's credibility as [he] testified in this case, and the statements that he made to other people outside the courtroom.

. . . .

Here, clearly, this jury could find that the injuries, if any, that were suffered by [plaintiff] as a result of the accident were not the type of injuries that meet the definition of permanency under [AICRA] and, again, the verdict here was that there was no cause for action because there was no permanent injury proven by the plaintiff in this case.

In reviewing a motion for a new trial, the trial judge cannot substitute his or her judgment for that of the jury. Rather, the judge "is required to canvass the record [and weigh the evidence] to determine whether reasonable minds might accept the evidence as adequate to support the jury's verdict." Hacker v. Statman, 105 N.J. Super. 385, 391 (App. Div.) (citing Kulbacki v. Sobchinsky, 38 N.J. 435, 445 (1962)), certif. denied, 54 N.J. 245 (1969); Dolson v. Anastasia, 55 N.J. 2, 6 (1969). A jury verdict is entitled to a presumption of correctness. Baxter v. Fairmont Food Co., 74 N.J. 588, 597-98 (1977). A jury's evaluation of factual issues must be afforded "the utmost regard." Love v. Nat'l R.R. Passenger Corp., 366 N.J. Super. 525, 532 (App. Div.), certif. denied, 180 N.J. 355 (2004). A jury's verdict can only be disturbed when, on examination of the evidence, the verdict "is found to be so contrary to the weight of the evidence as to give rise to the inescapable conclusion that it was the result of mistake, passion, prejudice, or partiality . . . ." Aiello v. Myzie, 88 N.J. Super. 187, 194 (App. Div.) (citing Hager v. Weber, 7 N.J. 201, 210 (1951)), certif. denied, 45 N.J. 594 (1965). Thus, the jury verdict will not be disturbed "unless it clearly appears that there was a miscarriage of justice under the law." R. 2:10-1; R. 4:49-1; Johnson v. Scaccetti, 192 N.J. 256, 280 (2007); Caldwell v. Haynes, 136 N.J. 422, 431 (1994); Baxter, supra, 74 N.J. at 596.

We recently reiterated that standard as follows:

Jury verdicts should be set aside in favor of new trials only with great reluctance, and only in cases of clear injustice. On a motion for a new trial, all evidence supporting the verdict must be accepted as true, and all reasonable inferences must be drawn in favor of upholding the verdict.

Neither trial nor appellate courts may grant a new trial unless it clearly appears there was a miscarriage of justice. Appellate courts should give considerable deference to a trial court's decision to order a new trial because "the trial court has gained a 'feel for the case' through the long days of the trial."

[Boryszewski v. Burke, 380 N.J. Super. 361, 391 (App. Div. 2005) (citations omitted), certif. denied, 186 N.J. 242 (2006).]

Beyond these "intangibles," an appellate court is to make its own independent determination of whether a miscarriage of justice occurred. D.G. v. N. Plainfield Bd. of Educ., 400 N.J. Super. 1, 26-27 (App. Div.), certif. denied, 196 N.J. 346 (2008), cert. denied, ___ U.S. ___, 129 S. Ct. 776, 172 L. Ed. 2d 756 (2008).

Applying these standards, and based upon our review of the record, we are satisfied the jury's verdict was grounded in the evidence. The issues of causation and permanency were hotly disputed. Plaintiff's failure to disclose his prior back and knee injuries to his treating physicians; discrepancy in reporting his symptoms to various treatment professionals; admitted "embellishment" of his resume; and written statements of no injury or illness made when he completed his job application casts a large shadow on his credibility, causing the jury to accept the evidence provided by defendant.

As to liability, we attribute significance to the jury's question posed to Officer Scott. A juror asked whether there were skid marks or evidence of braking by plaintiff. Officer Scott stated he recalled no skid marks. This evidence, when taken together with plaintiff's wife's testimony that plaintiff stated he did see defendant's car before impact, shows the twenty percent liability assessment apportioned to plaintiff was based on facts not related to plaintiff's seatbelt use.

We conclude the verdict did not constitute a miscarriage of justice. On the contrary, there was sufficient credible evidence present in the record as a whole to support all aspects of the jury's verdict.

Plaintiff next contends the treatment of his expert economist, Ronald L. Rosenberg, Ph.D., undermined the credibility of his case, and the trial court erred in prohibiting Dr. Rosenberg from testifying as to plaintiff's lost pension benefits. In opening statements, the jury was told by plaintiff, without objection from defendant, that testimony would be presented regarding plaintiff's wage and pension loss. On the morning Dr. Rosenberg was to testify, defendant objected, arguing the expert's report on the issue of plaintiff's lost pension benefits was based on a conversation with Areles Alvarez of Teamster Local 641 Welfare Fund. However, Alvarez's position with the Local was not disclosed, and the report did not state the expert reviewed the specific pension documents. Dr. Rosenberg's report stated that but for the accident, if he continued working with his prior employer, plaintiff's pension interest would have been fully vested as of the report's date, April 5, 2004. Plaintiff testified his pension would not vest until August 4, 2004. It was agreed the pension had no value until it was vested. Defendant requested a Rule 104 hearing to determine whether Alvarez was a reliable source of information regarding plaintiff's pension interest as used by Dr. Rosenberg.

After discussion, the trial court ordered an evidential hearing to determine the reliability of the source of information used to formulate Dr. Rosenberg's opinion on the value of plaintiff's lost Teamster's pension interest. At the hearing, Dr. Rosenberg specifically noted he reviewed the summary plan description of the pension benefit plan and identified Alvarez as an employee of the Local with whom he spoke by telephone to get information on plaintiff's interest. He affirmed she was the "key information source" he relied upon for the information used to calculate the date plaintiff's pension interest vested. However, he failed to bring his entire file to court and could offer any additional details of Alvarez's title or position with the Local to support the reliability and basis of her knowledge of the information she imparted. As a result, the trial court allowed Dr. Rosenberg to obtain his records and resumed the hearing following lunch.

When Dr. Rosenberg resumed testimony, he acknowledged he could not state with certainty who directed him to speak to Alvarez regarding details of plaintiff's Teamster's pension interest. He remembered someone gave him her name so he contacted her by calling the union office. Consequently, the trial judge barred Dr. Rosenberg's testimony regarding the Teamster's pension.

Plaintiff maintains the trial court abused its discretion and asserts, given Dr. Rosenberg's qualifications and proofs, defendant's challenge should have been presented through cross-examination, rather than by the unduly prejudicial remedy of striking the expert's testimony. We disagree.

It is within the trial court's discretion to determine "the sufficiency of [an] expert's qualifications[,] 'and [its decision] will be reviewed only for manifest error and injustice.'" State v. Townsend, 186 N.J. 473, 493 (2006) (quoting State v. Torres, 183 N.J. 554, 572 (2005)). When the admissibility of an expert's testimony is questioned, the trial court should hold a hearing in accordance with N.J.R.E. 104. Review of the outcome of the hearing is then conducted using the abuse of discretion standard. See Hisenaj v. Kuehner, 194 N.J. 6, 24 (2008) (trial court's rejection of expert's testimony on net opinion grounds was not abuse of discretion).

Pursuant to N.J.R.E 703, an expert's opinion must "be supported by facts or data either in the record or of a type usually relied on by experts in the field." Scully v. Fitzgerald, 179 N.J. 114, 129 (2004). Generally, requirements for the admissibility of expert testimony include: (1) the subject matter of the testimony must be "beyond the ken of the average juror"; (2) the field about which the testimony is being offered must be at a point where "an expert's testimony could be sufficiently reliable"; and (3) the expert "must have sufficient expertise to offer the intended testimony." Townsend, supra, 186 N.J. at 491 (internal quotations and citations omitted). The expert may rely on hearsay information "[i]f of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject," even if that data is not admissible. N.J.R.E. 703. However, the Rule does not allow the admission of otherwise inadmissible evidence. Day v. Lorenc, 296 N.J. Super. 262, 267 (App. Div. 1996).

Dr. Rosenberg could not provide foundational support for the use of the hearsay evidence attributed to Alvarez, precluding the substantiation, and thus, the admissibility of his testimony on that issue. The trial court did not abuse its discretion in excluding Dr. Rosenberg's testimony bottomed on hearsay information received from a source not shown to be the type reasonably relied upon by experts in the field.

Plaintiff also argues defendant's neurologist Dr. Vester improperly testified regarding the contents of radiology reports contrary to Brun v. Cardoso, 390 N.J. Super. 409, 424 (App. Div. 2006). Plaintiff's argument is misplaced.

In Brun, we ruled an MRI report may not be admitted into evidence under N.J.R.E. 703 without the testimony of a qualified physician to read the films. Id. at 421. The plaintiff attempted to introduce the MRI results into evidence by bootstrapping to a chiropractor's testimony when the doctor was not trained or qualified to read the results. Id. at 424. Without the MRI report, there was no evidence of the plaintiff's injuries.

In Agha v. Feiner, 198 N.J. 50, 54 (2009), the Court reaffirmed that "testifying physicians could not establish the substance of the contested MRI" unless the expert was "qualified to interpret an MRI." This matter is factually distinguishable. Here, unlike Brun and Agha, the radiology reports commented on by Dr. Vester were already part of the evidential record, having been introduced by plaintiff. Thus, the evidence was admitted independently of Dr. Vester's testimony.

A testifying expert is permitted to be questioned and to comment on other expert reports in evidence reviewed or considered when formulating his opinion. Day, supra, 296 N.J. Super. at 267; N.J.R.E. 703. Thus, under N.J.R.E. 703, a hearsay statement, such as a radiologist's report by a non-testifying expert, may be referred to by a testifying expert "for the purpose of apprising the jury of the basis for his opinion[.]" Agha, supra, 198 N.J. at 63. The report referred to by Dr. Vester was not a contested out-of-court expert report, but one already part of the record.

We are satisfied all remaining arguments not otherwise addressed, including Point VI, are of insufficient merit to warrant extended discussion in a written opinion. R. 2:11-3(e)(1)(E).

 
Affirmed.

Defendant Andrea A. Cuomo was joined in the litigation as the owner of the vehicle driven by defendant Ginamarie F. Cuomo. Throughout this opinion defendant refers to Ginamarie F. Cuomo.

The record includes only plaintiff's motion, counsel's certification, a supporting brief, and the order. There is no transcript or explanation of reasons.

The RWJ emergency room physician's report and triage assessment made on the date of the accident, and the day following the accident when plaintiff underwent an MRI, stated he was an unrestrained driver, involved in a motor vehicle accident without losing consciousness.

ATLA is now known as the New Jersey Association for Justice.

Administrative Directive #21-06, "Approved Jury Selection Standards, Including Model Voir Dire Questions," was issued by the Supreme Court on December 11, 2006. The Directive instructed that the standards and model questions it promulgated were to be used for trials beginning "on or after Monday, January 22, 2007."

Administrative Directive #04-07 was issued by the Court on May 16, 2007, and promulgated revised procedures and questions, modifying Directive #21-06.

Dr. Moskwa's de bene esse deposition was played for the jury.

We use the spelling of the expert's name provided in defendant's merits brief rather than the unconfirmed spelling in the transcript of "Zuchetti."

A second jury question asked whether Officer Scott could estimate the speed of the vehicles. The court did not pose it to the officer because there was no foundation that he was qualified to answer.

(continued)

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A-1964-07T3

August 21, 2009