ROY BATTLE v. FELICIA MAYE

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4593-07T14593-07T1

ROY BATTLE,

Plaintiff-Appellant/

Cross-Respondent,

v.

FELICIA MAYE, SCOTT SEWELL,

MERCEDES BENZ CREDIT OF CANADA

and OLD REPUBLIC INSURANCE

COMPANY,

Defendants,

and

ESTELL MAYE,

Defendant-Respondent/

Cross-Appellant.

_____________________________________

 

Argued October 1, 2009 - Decided

Before Judges Fisher and Sapp-Peterson.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. L-5134-05.

Michael I. Okechuku argued the cause for appellant/cross-respondent.

John V. Mallon argued the cause for respondent/cross-appellant (Chasan, Leyner & Lamparello, PC, attorneys; Mr. Mallon, of counsel and on the brief; Richard W. Fogarty, on the brief).

PER CURIAM

Plaintiff Roy Battle appeals from a no cause verdict returned against him, and defendant Estell Maye cross-appeals from the trial court order precluding defendant from using any portion of plaintiff's deposition at the time of trial. On appeal, plaintiff claims the court abused its discretion when it barred his expert report and precluded his expert from testifying at trial. In addition, plaintiff contends the court erred when it denied his motion for a new trial. We agree that the trial court mistakenly exercised its discretion when it barred plaintiff's expert report and prohibited the expert from testifying. Nonetheless, because the expert report and testimony were limited to the issue of damages, which the jury never reached due to its finding of no negligence on the part of Estell Maye, we find no reversible error. We therefore affirm.

The facts giving rise to plaintiff's complaint arose out of a motor vehicle accident occurring on Interstate 495 in Fairfax, Virginia. Plaintiff was a rear seat passenger in a vehicle operated by defendant Estell Maye (Estell) and owned by defendant Felicia Maye (Felicia). Plaintiff claims that Estell made a sudden and illegal lane change into the path of a vehicle operated by defendant Scott Sewell, causing a collision from which plaintiff contends he sustained serious injuries. Plaintiff commenced an action in the Law Division to recover damages for the injuries he sustained. Because only Estell and Felicia were served with the summons and complaint, the court administratively dismissed the complaint against the other named defendants.

Pretrial discovery was slated to end on November 29, 2006, but was extended by consent of the parties to January 28, 2007. Although defendants filed a motion to dismiss plaintiff's complaint for failure to provide discovery in early January 2007, that motion was later withdrawn when plaintiff served the requisite responses on January 29, one day after the discovery end date. Notwithstanding that the discovery period had ended, the parties continued to engage in discovery and, according to plaintiff's counsel, agreed that the parties would be deposed at the same time. Depositions were scheduled for February 9, and a defense medical examination of plaintiff was scheduled for June.

On February 9, only plaintiff appeared for the deposition. Plaintiff's counsel later told the court, during a pretrial hearing, that defense counsel represented that he had not received the notice for his client but promised to reschedule the deposition. When plaintiff's counsel attempted to schedule the deposition, he was told to "get them an order showing that the discovery has been extended for me to take their client's deposition even though they took my client's deposition after the expiration of . . . the discovery end date." Thereafter, plaintiff's counsel filed a motion seeking to further extend discovery. By order dated March 16, the court denied the motion, finding that discovery had ended, an arbitration date had already been scheduled for June 21, and that "[n]o precise explanation detailing the cause of the delay and no description of plaintiff's actions during the elapsed time was provided."

Three months later, plaintiff failed to appear for the previously scheduled June 5 defense medical examination, and defense counsel sent written notice to plaintiff's counsel rescheduling the examination for an October date. In response, plaintiff's counsel advised defense counsel that the discovery period was over and that he would not produce his client absent a court order. A motion to dismiss plaintiff's complaint for failure to submit to the examination followed, but the court denied the motion, finding that the "[m]otion [was] extremely untimely," discovery had ended in January, arbitration had occurred in June, and the matter was listed for trial on February 11, 2008.

When the parties next appeared before the court on April 8, 2008 as part of a pretrial hearing, defense counsel moved to bar the use of plaintiff's expert report at the time of trial because it had been served after the discovery end date. Defense counsel argued:

Your Honor, it's my position that if . . . I don't get the opportunity to get an exam that I'm entitled to under the rules and have an expert testify in my client's behalf and they're going to be prejudiced that way[,] then it has to flow both ways and plaintiff's expert should be barred as well . . . [.]

The court was persuaded by this argument and ruled:

I'm going to bar the use of plaintiff's deposition and . . . I'm going to bar the . . . use of plaintiff's expert report, all of which was presented after the discovery end date based on the . . . plaintiff's refusal to have the plaintiff submit to an IME [Independent Medical Examination] during that same period after having agreed to it.

The matter proceeded to trial one week later without either plaintiff or defendant presenting any expert testimony on the nature and extent, if any, of plaintiff's injuries. After hearing two days of testimony from plaintiff, Estell and Felicia, the jury retired to commence its deliberations following summations and the court's jury charge. When the jury announced that it had reached a verdict, it answered the first question as to whether defendant Estell was negligent with a "Yes," by a vote of three to five, but the jury foreman then advised the court that it was the opposite, "[f]ive yes and three -- ." The court interrupted the foreman to instruct that:

Any verdict that you reach as to any question has to be by an affirmative vote or [sic] of seven or eight jurors whether that's yes or no. Seven -- at least seven of you have to agree.

So I'm going to ask you to please return to the jury room and continue deliberations until you have done so.

The jury resumed its deliberations and, upon announcing to the court that it had reached a verdict, reported that as to the question of whether Estell was negligent, it had determined that she was not negligent by a vote of seven to one.

Plaintiff's counsel immediately made a motion for a new trial on the basis that the verdict was against the weight of the evidence and that the court had improperly suppressed plaintiff's expert report. The court denied the motion, stating that it found plaintiff's testimony "incredible" and "[t]he jury apparently agreed with that."

I.

Rule 4:24-2 provides in pertinent part that "[u]nless the court otherwise permits for good cause shown, motions to compel discovery and to impose or enforce sanctions for failure to provide discovery must be made returnable prior to the expiration of the discovery period." Here, defendants filed a motion to dismiss plaintiff's complaint for failure to provide discovery on January 4, 2007, returnable February 2. That motion was later withdrawn after plaintiff served responses to interrogatories that included an expert report on January 29, one day after the discovery end date. Having accepted the expert report at that time, the court should not have entertained nor granted defendants' motion to bar the expert report more than one year after the expiration of discovery. Nonetheless, the court's error in considering the motion and excluding the report was harmless, since the report addressed plaintiff's injuries, an issue the jury never reached.

We reject plaintiff's contention that the exclusion of the report prejudiced the jury on the issue of Estell's negligence. The trial court instructed the jury that because plaintiff claimed that Estell was negligent in the operation of her vehicle and that such negligence caused an accident and plaintiff's resulting injuries, plaintiff

has the burden of establishing by a preponderance of the evidence all the facts necessary to prove the following issues. One, that Estell[] Maye was negligent; that her negligence was what caused the accident, and that the accident was a proximate cause of . . . his injury and the extent of damages suffered by him due to those injuries.

The court later instructed the jury:

Now, if you find that the defendant, Estell[] Maye, or as appropriate, the truck driver was negligent, you must find that such party's negligence -- I'm sorry, that such party's negligence was a proximate cause of the accident before you can find that such party was responsible for the injuries claimed by the plaintiff. And it is the duty of the plaintiff to establish by a preponderance of the evidence that the negligence of defendant, Estell[] Maye, was a proximate cause of the accident and of his . . . injury just as it is the burden of the defendant, Miss Maye, to prove the negligence, if any, of the truck driver as being a proximate cause of the accident and of the injuries to the plaintiff.

These instructions were in accordance with appropriate legal principles. Because the trial court properly instructed the jury that plaintiff must first prove the issue of liability before considering the issue of damages, we presume the jury understood and followed those instructions. See State v. Manley, 54 N.J. 259, 270 (1969). Nor is this presumption overcome by the fact that the jury initially announced a five- to-three vote against Estell. The court reinstructed the jury on the requirement that any verdict it reached on each question must be based upon an "affirmative vote or [sic] of seven or eight jurors whether that's yes or no . . . at least seven of you have to agree" and that "then you proceed to the next question, et cetera."

The fact that further deliberations led the jury to conclude that Estell was not negligent by a vote of seven to one is not evidence that the jury reached this conclusion because of the absence of expert testimony on the issue of plaintiff's injuries. Finally, there is no evidence of jury misconduct, nor does plaintiff raise such an allegation. Barber v. ShopRite of Englewood & Assocs., Inc., 406 N.J. Super. 32, 36 (App. Div. 2009) (holding that when there is evidence of juror misconduct, the test for determining whether a new trial will be granted is whether the misconduct had a tendency to influence the jury's arrival at its verdict inconsistent with the legal proofs and the court's charge).

II.

Likewise, the court did not err in denying defendant's motion for a new trial. A jury verdict is entitled to a presumption of correctness. Baxter v. Fairmont Food Co., 74 N.J. 588, 598 (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 trial court may order a new trial when "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." R. 4:49-1(a). As a reviewing court, we are essentially guided by the same standard, except that we accord due deference to the fact of the trial judge's "feel of the case." Dolson v. Anastasia, 55 N.J. 2, 6 (1969).

Plaintiff, a backseat passenger, testified that Estell missed a lane and cut over, "put on the brake somehow and we [wound] up almost in the middle of the road and all of a sudden a truck came and hit us from nowhere . . . ." Estell testified that she was rear-ended approximately one minute after she negotiated a lane change into the middle lane of Interstate 95. She denied stopping or braking prior to impact. Felicia testified that she was a front seat passenger and she personally noted that it was clear for Estell to switch lanes at the point that she did. She too testified that their vehicle was struck approximately one minute after Estell made the lane change.

In the absence of other independent evidence related to the circumstances surrounding the accident, the jury was left to assess the credibility of the three witnesses who testified. Credibility and demeanor are intangibles that are not transported into the record. Carrino v. Novotny, 78 N.J. 355, 360 n.2 (1979) (citing Pressler, Current N.J. Court Rules, comment 4 on R. 2:10-1 (2010)). As such, the grant of a new trial is appropriate "[o]nly when upon examination the verdict is found to be so contrary to the weight of the evidence as to give rise to the inescapable conclusion that it is the result of mistake, passion, prejudice or partiality . . . ." Aiello v. Myzie, 88 N.J. Super. 187, 194 (App. Div.), certif. denied, 45 N.J. 594 (1965). We reach no such conclusion here. In view of our decision, the issue raised in the cross-appeal is moot.

 
Affirmed.

Also referred to as Ray in the appellate record.

Felicia Maye was dismissed by the trial court as a result of a motion for a directed verdict at the conclusion of Estell Maye's testimony. The dismissal is not part of this appeal.

Improperly pled as Estell Bolden. Also spelled Estelle throughout the transcripts and in appellant's brief.

Since defendants share the same last name, we refer to them by first name in this opinion, and mean no disrespect by doing so.

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A-4593-07T1

November 6, 2009