FRED BUFFALOE v. CHESTER DUBIL

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4109-09T4

FRED BUFFALOE,

Plaintiff-Appellant/

Cross-Respondent,

and

MARY BUFFALOE and BRYANT BUFFALOE,

Plaintiffs-Appellants,

v.

CHESTER DUBIL,

Defendant-Respondent/

Cross-Appellant.

__________________________________

ArguedApril 12, 2011 Decided July 14, 2011

Before Judges Waugh and St. John.

On appeal from the Superior Court of New Jersey, Law Division, Burlington County, Docket No. L-1816-07.

Michael Confusione argued the cause for the appellants(Hegge & Confusione,LLC, attorneys; Mr. Confusione, of counsel and on the brief).

Steven Antinoff argued the cause for the respondent/cross-appellant (Parker Young & Antinoff, LLC, attorneys; Mr. Antinoff, on the brief).

Karleen K. Groon (Palmer & Barr, P.C.) arguedthe causefor the appellant/cross-respondent (Ms. Groon and John J. McGrath, attorneys; Mr. McGrath of counsel and on the brief).

PER CURIAM

Plaintiffs Fred Buffaloe, his wife Mary Buffaloe, and their adult son Bryant Buffaloe1 appeal from an order of the Law Division dismissing their personal injury suit against defendant Chester Dubil, following a jury verdict of no cause of action.2

On appeal, plaintiffs do not directly challenge the jury's verdict that each of them failed to prove a "permanent injury" for the purposes of satisfying the verbal threshold. N.J.S.A. 39:6A-8(a). Instead, they challenge several evidentiary rulings made by the judge during the trial, arguing that those errors warrant a new trial. Because we conclude that any error with respect to the evidentiary rulings was either moot or harmless, we affirm.

I.

We discern the following facts and procedural history from the record on appeal.

On September 2, 2006, Fred was driving his wife and son to a family party in their Ford Taurus. Plaintiffs felt a sudden impact from behind. After they exited the Taurus, they observed that it had been hit from behind by Dubil's vehicle. Each of the plaintiffs received medical treatment for injuries they contend resulted from the accident.

Plaintiffs filed a personal injury action against Dubil, who filed an answer and a counterclaim in which he alleged that Fred had been at fault in causing the accident. The matter was tried to a jury in April 2010. At trial, Dubil claimed that Fred had pulled in front of him without signaling and then put on his breaks. His testimony was disputed by each of the plaintiffs. There were indications that Dubil had been drinking prior to the accident, but the trial judge precluded testimony on that issue.

The trial judge held that Dubil was negligent as a matter of law. The jury was asked to determine whether each of the plaintiffs satisfied the verbal threshold. The jury found against each of the plaintiffs on the verbal threshold.

This appeal followed.

II.

Plaintiffs challenge three evidentiary rulings by the trial judge. First, they contend that the judge erred in excluding testimony concerning Dubil's alleged intoxication and the fact that he received a citation for careless driving at the time of the accident. Second, they contend that the judge erred in preventing Mary from testifying that she experienced "tingling" and "numbness" in her arms. Third, they contend that the judge erred in barring a line of cross-examination intended to impeach defendant's medical expert.

Having reviewed the issues raised in light of the record and the applicable law, we conclude that they are without merit and do not warrant extensive discussion in a written opinion. R. 2:11-3(e)(1)(E). We add only the following.

Generally, a trial judge's evidentiary rulings are reviewed under an "abuse of discretion" standard. Brenman v. Demello, 191 N.J. 18, 31 (2007) (citing Green v. N.J. Mfrs. Ins. Co., 160 N.J. 480, 492 (1999)). Those rulings are generally accorded substantial deference. Benevenga v. Digregorio, 325 N.J. Super. 27, 32 (App. Div. 1999), certif. denied, 163 N.J. 79 (2000).

We need not dwell on the first evidentiary issue because it was addressed to the issue of liability and had no bearing on whether plaintiffs satisfied the verbal threshold. Inasmuch as the jury determined that plaintiffs failed to satisfy the threshold, issues related to Dubil's liability are moot.

The second issue relates to testimony concerning symptoms experienced by Mary that were subjective and not causally related to the accident by any of Mary's expert evidence. Although injuries that do not satisfy the verbal threshold themselves can be the basis of recovery if a plaintiff satisfies the threshold with respect to at least one other injury, Mary did not satisfy the threshold with respect to any injury. Consequently, even if the judge's ruling could be considered an abuse of discretion, the issue is moot because the excluded evidence would not have helped Mary prove that she had sustained a "permanent injury" for the purposes of getting past the verbal threshold.

With respect to the final issue, the judge's exclusion of questions concerning the liability of experts and radiologists in medical malpractice suits, we agree with the trial judge that the line of questioning was somewhat confusing. See N.J.R.E. 403(a). Because the testimony had been given during a de bene esse deposition, there was no opportunity to make any clarifications.

Given the broad discretion allowed on cross-examination, it would not necessarily have been error to allow the cross-examination, but we see no abuse of discretion by excluding it in this case and defer to the trial judge's discretion on that issue. Benevenga, supra, 325 N.J. Super. at 32. In any event, if there was any error, it was harmless. R. 2:10-2 ("Any error or omission shall be disregarded by the appellate court unless it is of such a nature as to have been clearly capable of producing an unjust result . . . ."). We see no reason to conclude that the jury might have reached a different result had the testimony at issue not been excluded.

Affirmed.

1 Because plaintiffs share the same last name, we will refer to them by their first names for the sake of convenience.

2 Dubil filed a notice of cross-appeal, but did not file a supporting brief. Consequently, we dismiss the cross-appeal.