TAMMY WILKEY v. ELAINE M. MAYER

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1946-11T2

TAMMY WILKEY,

Plaintiff-Respondent,

v.

ELAINE M. MAYER,

Defendant-Appellant.

_____________________________________

October 15, 2013

 

Argued December 12, 2012 - Decided

 

Before Judges Sapp-Peterson and Nugent.

 

On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-5342-09.

 

Floyd F. Lombardi argued the cause for appellant (DeSevo Lombardi, P.A., attorneys; Mr. Lombardi, on the brief).

 

Charles S. Lorber argued the cause for respondent (Mandelbaum, Salsburg, Lazris & Discenza, P.C., attorneys; Mr. Lorber, of counsel; Lance N. Olitt and Mara P. Codey, on the brief).

PER CURIAM

This personal injury action stems from an automobile-pedestrian accident. Defendant, Elaine M. Mayer, appeals from a judgment entered on a jury verdict of $600,000 in favor of plaintiff, Tammy Wilkey, the pedestrian struck by the car defendant was driving. Defendant contends plaintiff's accident reconstruction expert's improper opinion testimony on proximate cause and the court's mishandling of the jury's request for a copy of the proximate cause instruction resulted in the jury's finding that plaintiff's negligence was not a proximate cause of the accident. Defendant also contends that plaintiff's expert was permitted to give a net opinion, and that the cumulative effect of misconduct by plaintiff's counsel tainted the jury's verdict. We agree that plaintiff's expert's opinion that plaintiff's failure to exercise due care was not the proximate cause of the accident -- an opinion the expert repeated several times during cross-examination -- was improper and requires a new trial on liability. Plaintiff has not challenged the jury's damage award, however. Accordingly, we affirm in part and reverse in part.

I.

The accident occurred on Market Street in Saddlebrook on Friday morning, September 24, 2007. Defendant was driving a 2006 Toyota Camry west on Market Street. Plaintiff, a pedestrian, was crossing Market Street. Defendant's Toyota struck plaintiff, who was severely injured.

Plaintiff, age thirty-eight at the time of the accident, had no memory of it. She recalled little about the day of the accident other than waking, saying goodbye to her cat, and waking up in the emergency room. At trial, she developed her liability claim by reading to the jury excerpts from defendant's deposition and by presenting the testimony of John A. Desch, a professional engineer and accident reconstruction expert.

According to defendant's deposition testimony, the accident happened on a clear day. Traffic on Market Street was light to medium. Although there were no obstructions to her line of sight, defendant, age fifty-three, did not see plaintiff until "[a] split second before impact." Plaintiff came from defendant's left. In the instant she first saw plaintiff, defendant put her foot toward the brake and pulled to her right. The impact occurred at the same time. Defendant did not apply the brakes before her car struck plaintiff.

Defendant admitted during her deposition that she had been diagnosed with a cataract in her right eye. She explained that she had peripheral vision in the eye but could see nothing straight ahead. She also admitted that she had a congenital cataract in her left eye, but claimed she had good vision in the left eye.

When Desch testified, he identified the sources of the information he reviewed before forming his opinion about how the accident happened. The sources included: discovery exchanged by the parties, including defendant's interrogatory answers, to which was attached a transcribed statement taken from an eyewitness, Linda DeYoung; defendant's deposition testimony, in which she testified about her speed and other matters; photographs of plaintiff's clothing, the damage to defendant's Toyota, and the accident scene; Desch's inspection of the scene, measurements he took at the scene, and his calculation of the coefficient of friction of the roadway surface; the police report identifying the accident location on Market Street 500 feet west of its intersection with Legregni Street; a "Change Report" identifying the accident location on Market Street 150 feet west of its intersection with Legregni Street; and engineering data, including typical driver "perception reaction" time and pedestrian walking rates of speed. Desch derived pedestrian walking speeds from data correlating walking rates to a pedestrian's gender and age. According to the data, a thirty-eight-year-old female who is in the eighty-fifth percentile walks at or below 5.8 feet per second.

Following Desch's disclosure of the data and facts upon which he based his opinion, the court excused the jury and conducted a hearing pursuant to N.J.R.E. 104 to determine whether, as defendant contended, Desch's opinion was a net opinion. After Desch explained on direct examination the conclusions he had derived from the material and data he had evaluated, defendant objected to Desch's conclusions as net opinions; not because they were without factual support, but because "[Desch] disregarded evidence that he had available to him in making this report." Defendant argued that Desch had disregarded certain sections of the police report that identified where on Market Street the accident occurred, and the statement of DeYoung, who said plaintiff ran across Market Street approximately a half block away from the nearest crosswalk.

The court did not permit defendant to cross-examine Desch at the N.J.R.E. 104 hearing, deciding that cross-examination was unnecessary because defendant's challenge to Desch's opinion was not based on the absence of factual support for Desch's conclusions, but rather on defendant's assertion that Desch had disregarded evidence that contradicted his conclusions. The court explained that Desch's failure to consider information contradictory to his conclusions did not render his opinion a net opinion, because there was an otherwise adequate basis for it. The court further explained that defense counsel could cross-examine Desch about his purported failure to consider all relevant information.

The court ruled, however, that Desch could not testify that plaintiff crossed Market Street at an unmarked crosswalk, and could not testify that defendant failed to use due caution. Over defendant's objection, and though acknowledging that the issue of proximate cause was a jury question, the court ruled that plaintiff's expert "can give an opinion on proximate cause[] [a]nd you can demonstrate how it's erroneous." The court overruled defendant's objection to Desch's opinion "that [defendant's] actions by failing to make observations of [plaintiff] crossing the roadway during clear daylight lighting conditions, was the proximate cause of the accident."

Following the N.J.R.E. 104 hearing, Desch testified before the jury that the distance traversed by plaintiff from the curb to the point of impact was forty-two feet. He explained that based on that distance and the average walking speed for a woman of plaintiff's age, it would have taken plaintiff seven seconds "to cross from the curb, walking [out] into the road, [to] get to the point of impact." Desch also explained that in seven seconds, a car traveling at thirty miles per hour, or forty-five feet per second, would travel more than a football field in length, or more than three hundred feet. From those calculations, Desch concluded that defendant was three hundred feet from the point of impact when plaintiff began to cross the road.

Desch next explained that stopping distance is a function of perception, reaction time, and braking distance. Using variables of one second and one-and-one-half seconds for defendant's reaction time, and speeds of twenty, twenty-five, and thirty miles per hour based on defendant's deposition and interrogatory answers; and variables of 5.8 feet per second to 11.3 feet per second for plaintiff's walking and jogging paces based on data for women of plaintiff's age; Desch concluded that had defendant seen plaintiff as plaintiff started to cross the street, defendant could have stopped well before the point of impact, perhaps fifty feet short of impact.

According to Desch's reconstruction of the accident, plaintiff was walking from the south side of Market Street, in a northerly direction across Market Street, at a likely speed of 5.8 feet per second; and as that was occurring, defendant's Toyota was approaching from approximately three hundred feet away. Defendant's view was unobstructed, so she had ample opportunity to see plaintiff and avoid the accident. In Desch's opinion, defendant's failure to make proper observations caused the accident.

The trial court ruled that defendant could not ask Desch if he had reviewed DeYoung's statement. During cross-examination, Desch conceded that a pedestrian in plaintiff's situation had an obligation to exercise prudence, care, and watchfulness. He also conceded that plaintiff's "mistake was she never continued to look to the right." When asked why he didn't mention that fact in his report, Desch responded, "that's not, in my opinion, the proximate cause of the accident. The proximate cause of this accident, in my opinion, was the fact that [defendant] never saw this woman crossing for the seven seconds that she was out into the roadway. She never saw her."

When pressed, Desch said that plaintiff was partially responsible for the accident. In response, defendant repeated the open-ended question he had previously asked, namely, why Desch had not mentioned in his report his opinion about plaintiff's conduct. Desch responded:

Because the proximate cause, the real reason, if you were to look at this accident and take all factors considered, I believe that a pedestrian who has [three hundred] feet of visibility of a vehicle and begins the crossing has the right to complete the crossing. You asked me about the statutes. That's what the statute says. If a pedestrian is crossing in an intersection, they must be yielded to if the driver can yield . . . she had three hundred feet to stop that vehicle, sir."

 

Defendant asked that the court "strike the non-responsive portions of the answer." The court denied defendant's request.1

Defendant next attempted to have Desch acknowledge there could be more than one proximate cause of an accident. Notwithstanding its earlier ruling that the expert could testify that defendant's conduct was the proximate cause of the accident, and that defendant could cross-examine him about why the opinion was wrong, the court sustained the objection, explaining: "That's a question of law for the Court. I'll define proximate cause to the jury at a later time. The expert's definition of proximate cause will not help this jury. The objection is sustained." The consequence of the court's various rulings about proximate cause was that Desch repeatedly told the jury that defendant's conduct was the proximate cause of the accident, but did not have to answer cross-examination questions about whether defendant's conduct was also a proximate cause of the accident.

Although not framed in terms of proximate cause, defendant had Desch acknowledge that both parties were responsible to some degree for causing the accident. Desch also acknowledged that plaintiff should have looked to the right, seen the car coming, and stopped for her own safety, but did not do that.

Desch added that defendant's failure to observe was greater than plaintiff's failure to observe. Desch stated:

I believe that the contributing factors to this are both the pedestrian crossing without then looking again to the right, but in my opinion, the proximate cause deals with [defendant's] actions.

 

Defendant testified that she left her mother's house at approximately eight o'clock on the morning of the accident to go to a bank on Market Street in Saddlebrook. After turning on Market Street, "all of a sudden [she] saw in [her] left peripheral vision blue." According to defendant, the figure was almost to the car, almost up against the car. She tried to swerve to her right and picked up her foot to brake. The impact occurred almost simultaneously. Defendant testified the impact occurred on the driver's side front left fender above the wheel. She supported her testimony by identifying photographs that showed a dent on the driver's side fender above the front wheel well and scuff marks "beginning [on] the driver's side fender next to the wheel."

Defendant also testified that her vision problems had existed since birth, that she obtained a driver's license at age seventeen, and that she took both an eye test and a written test in order to obtain her license.

During cross-examination, plaintiff's counsel highlighted the contrast between defendant's testimony that she first saw plaintiff a split second before the accident, and defendant's answer to an interrogatory in which she alleged plaintiff ran across Market Street into the left side of her vehicle. Defense counsel objected on the basis that the interrogatory answer had been prepared based upon other sources of information, not plaintiff's observations. The court overruled the objection. When confronted with her answer during cross-examination, defendant disavowed it. She explained that she had typed her own answers to interrogatories at her home and her answers were much longer than the set plaintiff's counsel showed her. She acknowledged her signature at the end of the interrogatories, but claimed the signature page was removed from the set she typed and stapled to the set that had been marked as an exhibit at trial. Defendant further explained that she sent her own typewritten set of interrogatories to her attorney, and never received back a revised typewritten set to sign. Nevertheless, she maintained at trial that plaintiff had run into the side of her car, bounced off, and then hit the ground.

Defendant acknowledged during cross-examination that her prescription for eyeglasses had changed over time, and that she had never notified the New Jersey Motor Vehicle Commission2 that it was different. She also acknowledged that driving was very important to her.

The jury began deliberating at approximately twelve noon. Later in the afternoon, the jury asked four questions, one of which was: "[C]an we have a written definition of proximate cause?" The court asked the attorneys if they had any objection to the court copying and distributing to the jury the written definition of proximate cause. The court proposed to provide the jury with a copy of a Model Jury Charge (Civil), 7.30D, "Comparative Negligence (Auto) - Proximate Cause" (revised 12/2011). The charge states:

Each party must not only prove the negligence of the other party by preponderance or greater weight of the credible evidence, but also that this negligence was a proximate cause of the accident.

 

By proximate cause it is meant that the negligent conduct of the party was an efficient cause of the accident, that it necessarily set the other causes in motion and naturally and probably led to the accident in question.

 

Neither party objected. Although defense counsel questioned whether the court intended to tell the jury there could be more than one proximate cause of an accident, counsel did not object when the court replied that it intended to give the jury the model charge only.

The jury determined by a unanimous vote that defendant was negligent, and defendant's negligence was a proximate cause of plaintiff's injuries; and by a five-to-one vote that plaintiff was negligent, but plaintiff's negligence was not a proximate cause of her injuries. The jury awarded plaintiff damages of $600,000. Following the court's denial of defendant's motion for relief from judgment or a new trial, the court entered judgment, plus interest, on the jury's verdict. Defendant appealed.

II.

Defendant first contends the jury's determination that plaintiff's negligence was not a proximate cause of the accident resulted from a combination of improper testimony given by plaintiff's expert and erroneous instructions given by the court to the jury. We agree that it was error to permit the expert to testify in the manner that he did on the issue of proximate cause.

We begin our analysis with the fundamental proposition that it is the court's function, not that of an expert, to interpret the law. Bedford v. Riello, 392 N.J. Super. 270, 278 (App. Div. 2007), rev d on other grounds, 195 N.J. 210 (2008). The concept of proximate cause "is an expression of legal significance." Kreis v. Owens, 38 N.J. Super. 148, 156 (1955) (quoting Brumberger v. Burke, 56 F.2d 54, 56 (3d Cir. 1932)). "It is therefore the duty of a trial judge, where the question of 'proximate cause' is involved, to explain to the jury in simple terms what the law means by that expression and to illustrate the application of its legal principles to the facts of the particular case which he is trying." Ibid. (quoting Brumberger, supra, 56 F. 2d at 56); see also Scafidi v. Seiler, 119 N.J. 93, 101 (1990) ("Proximate cause is a factual issue, to be resolved by the jury after appropriate instruction by the trial court.").

Desch usurped the function of both the court and the jury when he repeatedly testified that defendant's conduct was the proximate cause of the accident. Desch also testified, improperly, that defendant's failure to observe was greater than plaintiff's failure to observe. See Nesmith v. Walsh Trucking Co., 123 N.J. 547, 548-49 (1991) (explaining "that the trial court should not have permitted the expert to offer his opinion about which of the parties could more readily have avoided the accident"), rev'g on dissent 247 N.J. Super. 360-371-73 (App. Div. 1989).

Although Desch was qualified by his education, training, and experience to reconstruct such things as the Toyota's rate of speed and path of travel, plaintiff's pace and path of travel, and the times it would have taken the parties to traverse certain distances, nothing in his background gave him any special ability to apply legal concepts of proximate cause and comparative negligence to the facts that he had reconstructed. That was, exclusively, the jury's task. We review a trial court's rulings on evidence for abuse of discretion. Estate of Hanges v. Metro. Prop. & Cas. Ins. Co., 202 N.J. 369, 382 (2010). Here, the court misapplied its discretion by permitting Desch to express an opinion that plaintiff's conduct did not proximately cause the accident. That error was exacerbated by the court's prohibiting defendant from asking Desch if plaintiff's conduct was also a proximate cause of the accident. Those rulings permitted Desch to give an opinion on proximate cause adverse to defendant, yet avoid cross-examination on the same issue as it applied to plaintiff.

Plaintiff argues that the court properly instructed the jury on both the concept of proximate cause and that there could be more than one proximate cause of an accident. Plaintiff also points out that one juror determined that plaintiff's negligence was a proximate cause of the accident, and argues from that circumstance that all of the jurors understood the concept of proximate cause.

We recognize that the court charged the jury in accordance with the Model Jury Charges. But, by the time the court explained proximate cause to the jury, Desch had repeatedly told the jury that defendant's conduct was the sole proximate cause of the accident. Plaintiff had emphasized that opinion in her closing argument. Significantly, the majority of jurors came to the identical conclusion Desch had expressed in his "expert opinion": that both parties had failed to exercise due care, but only defendant's failure to exercise due care was the proximate cause of the accident. The expert's improper testimony "clearly had the potential to influence unduly the jury determination." Nesmith, supra, 123 N.J. at 549. For that reason, we reverse and remand for a new trial on liability.3

Although we need not address defendant's other arguments, we do so for the sake of completeness in the event the issues recur when the case is retried. Defendant argues that the court permitted Desch to give a net opinion. Not so. Desch based his opinion on his inspection of the accident scene, the police report, defendant's deposition testimony, the dimensions of the roadway, the speed of defendant's automobile at the time of the accident, ranges of plaintiff's walking speed, and data reasonably relied upon by experts in his field. Desch's opinion was "based on facts or data of the type identified by and found acceptable under N.J.R.E. 703 . . . [and was not a] bare opinion that ha[d] no support in factual evidence or similar data . . . ." Pomerantz Paper v. New Comm. Corp., 207 N.J. 344, 372 (2011).

The gist of defendant's challenge to Desch's opinion, at trial and on this appeal, is that Desch did not sufficiently consider certain notations on the police report and DeYoung's statement. Defendant argues she should have been permitted to cross-examine Desch during the hearing outside of the presence of the jury to determine why Desch did not consider those facts. But defendant did cross-examine Desch in the jury's presence about the police report. As to DeYoung's statement, "hearsay evidence not relied upon by an expert may not be employed on cross-examination." State v. Spencer, 319 N.J. Super. 284, 299 (App. Div. 1999); see also Corcoran v. Sears Roebuck and Co., 312 N.J. Super. 117, 130 (App. Div. 1998).

In his final point, defendant accuses plaintiff's counsel of misconduct. Defendant asserts that plaintiff's counsel engaged in prolonged cross-examination of defendant about an interrogatory answer alleging plaintiff ran across Market Street into her car, knowing that the answer was not based on her personal knowledge. Defendant also asserts that plaintiff's counsel improperly argued to the jury that defendant should have turned in her license, and that she did not notify "Motor Vehicles" that her vision had worsened because "[t]hey might take her off the road."

We find nothing improper about plaintiff's cross-examination of defendant concerning her interrogatory answers. Although the defendant asserts it was apparent that her "version of the accident" was based on the police report and the statement of the eyewitness, she did not say that in her interrogatory answers. Rule 4:17-4(a) states "[t]he person answering the interrogatories shall designate which of such information is not within the answerer's personal knowledge and as to that information shall state the name and address of every person from whom it was received, or, if the source of the information is documentary, a full description including the location thereof." Defendant could have avoided being cross-examined on her inconsistent answers by complying with that rule. Having failed to comply with the rule, she can hardly complain about the cross-examination that was a direct consequence of her non-compliance.

Plaintiff's argument to the jury about what "Motor Vehicles" would have done, and speculation about why defendant had not reported her vision problems, was entirely improper. Defendant's objection to the argument should have been sustained. The argument was inflammatory and unsupported by the evidence. The premise of the argument itself that defendant did not notify the Motor Vehicle Commission about changes in her prescription for eyeglasses because she feared her license would be revoked has no basis. The implicit assertion that people either do, or should, notify the New Jersey Motor Vehicle Commission whenever there is a change in their prescription for eyeglasses simply has no basis. When the case is retried, the court should prohibit counsel from making that argument or any other argument not based on relevant evidence presented during trial.

Defendant has not challenged the jury's damage verdict and has acknowledged that "[n]o aspect of the issue of damages is an issue on this appeal." We see no reason to have the parties re-litigate damages, since "the liability issues and the damage issues [are] fairly separable." Truchan v. Sayreville Bar & Rest., Inc., 323 N.J. Super. 40, 53 (App. Div. 1999).

Affirmed in part, reversed in part.

1 A trial court cannot "strike" an answer. With certain exceptions not applicable here, "all proceedings in court shall be recorded verbatim." R. 1:2-2. Defendant did not specify what portions of the record that he considered non-responsive and did not request a curative instruction.

2 Defendant referred to the New Jersey Motor Vehicle Commission as the Department of Motor Vehicles.

3 The trial court did not abuse its discretion when it provided a copy of its charge on proximate cause to the jury. Rule 1:8-8 now enumerates factors a court may consider when deciding whether to provide the jury with a copy of the charge.