MITZI ROSADO v. LISA MARSHALL

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2967-11T3

MITZI ROSADO,

Plaintiff-Respondent,

v.

LISA MARSHALL,

Defendant-Appellant,

and

NEW JERSEY MANUFACTURERS

INSURANCE COMPANY,

Defendant/Intervenor-

Appellant.

_________________________________

September 13, 2013

 

Argued January 24, 2013 - Decided

 

Before Judges Grall, Koblitz and Accurso.

 

On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Docket

No. L-556-10.

 

Stephen A. Rudolph and James M. Merendino argued the cause for appellants (Rudolph & Kayal, attorneys for appellant Lisa Marshall; Connell Foley, LLP, attorneys for appellant New Jersey Manufacturers Insurance Company; Mr. Rudolph and Mr. Merendino, on the joint briefs).

 

John M. Vlasac, Jr., argued the cause for respondent (Vlasac & Shmaruk, LLC, attorneys; Mr. Vlasac, on the brief).

 

PER CURIAM

In this verbal threshold case tried only on damages, defendant Lisa Marshall1 appeals from entry of judgment, after a jury verdict in favor of plaintiff Mitzi Rosado, in the amount of $976,063.65, and from denial of her motion for a new trial or remittitur. Because plaintiff's counsel's patently inappropriate statements about the defense expert in summation were clearly capable of producing an unjust result, we reverse and remand for a new trial on damages.

Plaintiff, fifty-one years old, was the driver of a car rear-ended by defendant on Saturday, February 16, 2008. Plaintiff's mother was a back-seat passenger. Plaintiff accompanied her mother to the hospital in an ambulance but did not seek treatment herself. On the Monday following the accident, plaintiff visited an orthopedist, complaining of neck and back pain. The doctor recommended three weeks of physical therapy. Having completed those twelve visits without significant relief, plaintiff returned to her doctor who referred her for an MRI.

The MRI report of plaintiff's cervical spine noted slight disc bulges at C2-3 and C4-5 both without central canal, lateral recess or neural foraminal stenosis; a disc bulge at C5-6 with facet degenerative changes especially on the left and mild left foraminal encroachment; and a disc bulge at C6-7 extending into the neural foramen especially on the left with mild neural foraminal encroachment worse on the left. The radiologist's impression was "disc bulges most significant at C6-7 and C5-6. Facet degenerative changes especially on the left at C5-6. No focal disc herniation."

The MRI report of plaintiff's lumbar spine noted a disc herniation at L3-4 and a smaller one at L4-5, both in the left lateral recess and neural foramen with posterior element spondylosis and no central canal, right lateral recess or right neural foraminal stenosis; and a disc bulge at L5-S1 posterocentrally and extending into the right lateral recess and neural foramen, with no central canal, left lateral recess or left neural foraminal stenosis. The radiologist's impression was "disc herniations left lateral recess and neural foramen

L3-4 and to a lesser extent L4-5. Disc bulge more prominent on the right L5-S1. Posterior element spondylosis."

Plaintiff's doctor advised that she could either go back to physical therapy or try epidural injections. Plaintiff did neither. She testified that physical therapy "just wasn't working," and that the risk of infection, paralysis and immune system suppression from injections, coupled with their being only a "temporary fix," caused her to reject that option. Plaintiff visited a chiropractor one time and saw another orthopedist three times. No doctor recommended surgery. She testified that she tried another physical therapist "much later . . . but that was probably worse." Plaintiff takes no prescription medication but takes Aleve "probably five times a week." She missed only one day of work, the Monday after the accident when she first went to the doctor, and had no other treatment in the over three-and-a-half years between the accident and trial.

Plaintiff testified that she is always in pain, which she described "as having a knife in my back constantly." She testified that the pain in her back radiates down her legs and her knees and has not abated at all since the accident. She testified that she suffers from frequent headaches and the pain in her neck radiates to her shoulders such that she feels as if she has "a monkey on [her] back." In response to a question from her counsel as to whether her pain was "ever non-existent," she testified, "No. It's always there. The pain in the neck and back are always there." She testified that she never had any problems with her neck or back prior to the accident.

Besides plaintiff, the only other witnesses to testify were the parties' board certified orthopedic experts, both of whom testified on videotape. Plaintiff's expert testified that plaintiff suffered disc bulges at levels C5-6 and C6-7 and herniations at L3-4 and L4-5 as a result of the accident and that her injuries were permanent. Defendant's expert testified that plaintiff had suffered only temporary cervical and lumbar strain in the accident with no objective medical evidence of herniated discs or cervical or lumbar radiculopathy, and that she was exaggerating her symptoms.

During the de bene esse deposition of the defense expert, plaintiff's counsel confronted him with his testimony in two prior cases, questioned his review of the MRI studies in this case, and explored the extent of his work on behalf of defendants in personal injury cases. Because counsel justifies his summation comments about the expert on the basis of the expert's response to these questions, we discuss them at length.

Plaintiff's counsel asked the defense expert whether he would agree that the medical literature states that ninety percent of the traumatically induced herniated discs in the lumbar spine occur at levels L4-5 and L5-S1. The expert responded, "That's the most common area where you see degeneration or disc pathology, period." The transcript continues as follows:

Q Well, Doctor, my question was, do you agree that the literature, orthopedic literature that is, your area of specialty, that the literature says approximately 90 percent of traumatically induced herniated discs occur at L4-L5 and L5-S1, do you agree with that?

 

A I agree with that with also the explanation that not just traumatic, but degenerative changes are also most commonly seen at those levels.

 

After ascertaining that the expert could not recall "an examination case from several years ago," counsel then confronted the expert with his prior testimony as follows:

Q Fair enough. Let me refresh your recollection. I'm specifically looking at a transcript from Goodman vs. Nunez with an April 14, 2008 date. I'm looking at Page 28, Lines 7 through 11 and the question asked of you under oath, as you are today, Doctor, at that time was, "Would you agree that generally in the orthopedic literature, that approximately 90 percent of traumatically induced herniated discs occur at the L4[-]L5 and L5[-]S1?" And your answer was, "Right."

 

Does that refresh your recollection how you testified in front of that jury and that judge on that date?

 

A Again, all disc pathology, whether it's traumatic or degenerative is primarily at those levels.

 

Q So traumatic or so which testimony do you want to change? The one you gave in front of the jury under oath on that day or [are you] going to go with what you said here today, that it's not just traumatic, the literature is also traumatic and degenerative?

 

Later in the testimony, counsel asked the defense expert, whether a disc "that has signs of degeneration be more or less prone to acute herniation with trauma?" The expert responded:

A I would probably make the statement that it might be actually less because the disc is of softer consistency and is less likely to respond to a firm pressure or sudden trauma, you know. Can it happen in a trauma, yes, but is it very common? Not very common.

 

Q The question was more or less prone and I'm still waiting for an answer.

The expert replied that "a degenerated disc is not necessarily more prone to herniate with trauma." Defense counsel then confronted the expert with his prior testimony in the earlier case.

Q Okay. Do you remember testifying, it's April 2008 . . . Page 71, I'm going to ask you, again, to that, under oath just like you are today, on Page 71, Line 7,

. . . "Are degenerative discs susceptible, actually more susceptible to herniation from trauma than a healthy disc?" And your testimony under oath at that time was, "I would say more susceptible."

 

So I asked you the very same question, I actually asked you it four times today and I just want to know what's the reason for your inconsistent answer? You testified under oath on April 14th in 2008 and again in Middlesex County and I asked you this very same question and today you said actually it's less susceptible. So I have to ask you again, which one is the right answer, Doctor?

 

A Yeah, in my opinion, most disc herniations are due to the degeneration and part of the degeneration process and have nothing to do with trauma.

 

Q Doctor, that wasn't even the question. Let me refresh your recollection, okay? Not even of the question that was asked of you in April. I'll ask you my question which I asked you now probably for the fifth time, would you agree that a disc that has signs of degeneration is most susceptible to herniate when in a traumatic -- as a result of trauma than a disc that is not degenerative?

 

A Well, the opinion I'm giving today is not necessarily so and my review of the MRI scans specifically in this case did not even show herniations.

 

With regard to the MRI scans in this case, the defense expert testified on direct examination to his usual practice of reviewing any MRI studies or X-rays on a view box in his office while he conducts an independent medical exam (IME). On cross, plaintiff's counsel asked whether the expert had a specific recollection of reviewing plaintiff's studies on his view box. The expert replied, "I would have done it at the view box in the room right next door." Counsel then explained that he put the question to the expert

because these MRIs were never given to you in actual form, they were never done like that. They were on a disk that was brought to you. So I want to know how you were able to use them on the view box in the room next door if they were only ever provided to you on disk?

 

The expert testified that he had a computer as well as a view box in the office adjacent to his examining room and he would have reviewed the MRI studies there, whether they were on film or disk. He further testified that he reviewed the studies twice, the first time when plaintiff brought them to him and again when defense counsel later sent them. Although his first report did not note whether the studies were on film or disk, his supplemental report noted that the studies were provided on a disk. The expert then clarified his statement, "you know, quite frankly, just from my [supplemental] report, looking at it now, I couldn't be sure whether it was on the computer or the actual film also." Counsel followed up.

Q But you're sure you saw them before that first report or did you see them after the [supplemental] report?

 

A No, no, no. She brought studies with her.

Q Oh, [plaintiff] brought studies to you?

A Yes, which I returned to her.

Counsel also established that forensic work comprised approximately ten percent of the defense expert's billings, and that ninety-five percent of that work was performed on behalf of defendants.

In his summation, plaintiff's counsel addressed the jury about the doctor's prior testimony in other cases and the extent of his work for defendants in the following terms.

Counsel says he doesn't care about prior testimony. Well, I do care because when a doctor is asked the same medical questions about medical literature that doesn't change in a matter of years and if it changed, he could tell me, the answer should be the same no matter who's paying for it, whether I retain him or the defense does. And it should be the same at each trial.

 

So yes, when I have a jury trial where a doctor comes up and gives me answers that aren't -- I look to find other trials that he's testified in and see, did he give consistent answers, is he credible, has he been asked this question in other cases that involve similar types of things and similar incidents?

 

I do care about that. You should too. That's credibility. Also goes to bias.

 

Well what did we learn about [the defense expert] from these other cases, but from what he's told us recently? We know that the man earns about $76,000 . . . a year just doing initial exams and reports.

 

. . . .

 

So if we add in, who knows how many cases he does with additional reports like this one where he did four and we add in additional fees, it's not out of the realm of possibility to say this doctor is generating 100, maybe over $100,000 a year on just doing this.

 

And this work, he told us, makes up more than 10 percent of his overall medical billing. The way he makes his money. When I get into that, he didn't [deny] it. That's what he said.

 

And then what did he tell you? He said over 95 percent of all of that work, meaning all of that 76, $100,000, whatever -- of money, comes from one place.

 

That's bias, Ladies and Gentlemen. That's why I care. It's like we just had an election on Tuesday, if you found out that the people you voted for only got their money from major corporations, you would never vote for that person because they don't care about Main Street, okay, they don't.

 

That's bias. That's why everybody in this room needs to care because if you have a biased witness, then anything that comes out of that person's mouth is bias. It is not credible, it can't be trusted. Most importantly, it is not fair.

 

It's not fair to [plaintiff] and other plaintiffs that come into this court and it's not fair to you. You sat here, you gave up your time, you had -- maybe had a day off today that you had to give up and come here to do and then you sat through two hours of testimony from a man who does this and who was lurched in front of [you] and was -- and said to you, I am supposed to be giving you an independent opinion.

 

. . . .

 

That's why I care. That is a bias. If he was sitting on this jury, I would have wrote him out, same with the -- same with the defense. If somebody else sat in this chair and said yeah, I love plaintiffs, 95 percent of my work comes from them, you're gone. You're gone because we can't trust you to be neutral, to be independent and that's the purpose of these examinations that we have in these cases, where treating doctors can't come in to testify, we are allowed and permitted to retain doctors to examine and then review the treating records.

 

. . . .

 

Do you think for one second with all the resources available to both defense counsel, that if there was any such information out there on [plaintiff's expert], that they would have blown this

up . . . .

 

You didn't hear one scintilla of evidence about that because there is

none . . . .

Counsel then proceeded to discuss the various inconsistencies he noted in the defense expert's testimony culminating with his review of the MRI films.

He rendered his initial report on March 1st in 2009 and that's when he told you folks that that contained all of his conclusions and when counsel asked him, what are your conclusions in this case, he went back to his March 1st report and read them from there.

 

And -- but he didn't say that he had confirmation until his March 29th report, that he actually reviewed the MRI's that were on the disk and if these are the only one's out there folks, there's a problem.

 

That means that somebody, maybe it's the good doctor, Mr. 95 percent rendered an opinion in this case without seeing the actual films.

. . . .

[The plaintiff's expert] admitted that, you know, there maybe is some difference when two doctors interpret something. Yes. When a biased doctor and an un-biased doctor interpret something, there's going to be a difference.

 

But you see what happens when a totally neutral doctor who has nothing to do with a case and [the plaintiff's expert], who looked at two independent sets of films at two different times for two different purposes, [the plaintiff's expert] for litigation and [the non-testifying radiologist] looked at those films, had nothing in common and they're the same. Why is that?

 

Maybe 100 grand, maybe all from one source, I don't know. But you can't -- now that you know that, you can't take that out of your brain. Anything that that man said to you, you must be thinking, well what was the motivation for that? What was the motivation for that? Why is his opinion different from the totally neutral radiologist? Why is it different from that of [the plaintiff's expert]?2

 

Like I told you in the beginning of this case, [the defense expert] actually admits a lot about this case. I think he was dying to tell you the truth. If it wasn't for how much money he was getting from the defense -- I ultimately believe he would. He was trying to tell you, yes, she suffered an injury as a result of this accident, but that's as far as he could go without stopping the gravy train.

Plaintiff's counsel concluded this line of attack on the defense expert with the following remarks.

[B]ecause despite what we've learned now about [the defense expert], about his bias, about 95 percent and where his money comes from, knowing all that now, he then had the, I'm going to use a strong word and it's gall, to try to taint the integrity of my client by telling you in a videotaped deposition for trial, that she was exaggerating when I examined her . . . .

 

. . . .

 

That is horrific. To come in here with a biased background and then know that the medicine is not on your side to taint . . . the integrity of the plaintiff, that's not how you ask a jury to decide a case.

 

. . . .

It's two doctors, but there's only one telling you how it is. There's another one telling you what he has to say.

Following deliberations, the jury determined that plaintiff had suffered a permanent injury in the accident and awarded her damages for pain and suffering of $925,000. With the addition of pre-judgment interest, the judgment amount totaled $976,063.65. After hearing argument, the trial judge denied defendant's motion for new trial or remittitur. Although noting that he would have sustained objections to particular phrases and ordered the jury to disregard them had defense counsel objected, the judge concluded that "I'm going to let it stand and see where it goes from here." This appeal followed.

Because there was no objection to any part of plaintiff's counsel's summation, we review counsel's comments only for plain error, Fertile v. St. Michael's Med. Ctr., 169 N.J. 481, 493, (2001), that is, error clearly capable of producing an unjust result. R. 2:10-2. The rationale underlying the plain error rule is that a court should not countenance an unjust result because of the oversight of the advocate. Jurman v. Samuel Braen, Inc., 47 N.J. 586, 591 (1966). If a reviewing court upon canvassing the record harbors reasonable doubt "as to whether the error led the jury to a result it otherwise might not have reached," a new trial must be ordered. State v. Macon, 57 N.J. 325, 336 (1971); Szczecina v. PV Holding Co., 414 N.J. Super. 173, 184 (App. Div. 2010).

Defendants contend that plaintiff's counsel's patently inappropriate comments in summation deprived them of a fair trial, notwithstanding their failure to object at the time they were made. We agree. Viewing this verdict in light of plaintiff's injuries and minimal treatment, as well as her testimony regarding the effect her injuries have had on her ability to work and manage her daily life, we conclude that there is a substantial likelihood that the inflammatory comments of plaintiff's counsel in summation led the jury to a result it otherwise would not have reached and that the trial judge's denial of defendant's motion for a new trial was a miscarriage of justice. R. 2:10-1; Henker v. Preybylowski, 216 N.J. Super. 513, 517 (App. Div. 1987) (explaining that where a verdict is disproportionately high, the court should carefully consider any factors tending to infect the verdict with prejudice, partiality or passion).

Although we do not expect, and would not want trials to be passionless, nevertheless, "our jurisprudence has long ago set boundaries for advocacy, and unequivocally defined conduct that, by its potential to cause injustice, will not be tolerated." Geler v. Akawie, 358 N.J. Super. 437, 463 (App. Div.), certif. denied, 177 N.J. 223 (2003). This was a routine verbal threshold case in which liability was not in issue. The question for the jury was whether plaintiff suffered a permanent injury in the accident, and, if so, the amount necessary to make her whole.

Plaintiff's expert testified that the MRI studies revealed a permanent injury, while the defense expert saw only disc bulges and degenerative changes. Instead of challenging the expert's objectivity within accepted bounds of trial advocacy, plaintiff's counsel suggested, without any basis in the evidence, that the expert had rendered an opinion without reviewing the MRI studies and had been paid to lie to the jury. As we have recently had occasion to remind attorneys who indulge in derisive statements and invective directed at opposing parties, counsel or witnesses, verdicts obtained through such tactics are at risk, even in the absence of any objection. Szczecina, supra, 414 N.J. Super. at 185.

Although counsel are afforded wide latitude in summation, they not at liberty to misrepresent evidence or distort the factual picture. Tartaglia v. UBS Paine Webber, Inc., 197 N.J. 81, 128 (2008). As a review of the quoted testimony makes clear, plaintiff's counsel advised the defense expert that plaintiff brought the MRI scans to the doctor on disk at the time of her IME. Contrary to what counsel advised the jury, the expert never said that he could not confirm that he actually reviewed the MRIs that were on the disk until his supplemental report. The doctor was adamant that he had reviewed the scans twice, first when plaintiff brought them to him and again when defense counsel mailed them to his office. His testimony was that he could not tell from reviewing either report whether he viewed the scans on film or disk. Accordingly, there was no basis in the evidence to suggest as counsel did "that somebody, maybe it's the good doctor, Mr. 95 percent rendered an opinion in this case without seeing the actual films."

Contrary to plaintiff's contention on appeal, those remarks were not isolated comments in an otherwise unobjectionable closing argument. They were intimately bound up with counsel's general theme that the defense had paid their expert to lie to the jury. We have previously stated quite clearly that suggesting a defense expert is "'a professional witness'" who 'adjust[s] his testimony for every case'" amounts to an attack on a witness's integrity that "occup[ies] no rightful place in proper commentary on the evidence and the credibility of testimony." Rodd v. Raritan Radiologic Assocs., 373 N.J. Super. 154, 171-72 (App. Div. 2004). We have also deemed it improper for counsel to comment on a witness's failure to produce a scholarly article supporting his position by telling a jury that "'do you think that a [defendant] with his lawyer and their resources wouldn't produce that article to you if it existed?'" Ibid. A review of plaintiff's counsel remarks in closing, quoted at length in this opinion, reveal them to be strikingly similar to ones we have previously ruled out of bounds.

Our purpose in defining appropriate parameters for comment by counsel to a jury is not to enforce a civility code for trial lawyers. We view an attack by counsel on a witness's "character or morals, when they are not in issue, [as] a particularly reprehensible type of impropriety[,]" Paxton v. Misiuk, 54 N.J. Super. 15, 22 (App. Div. 1959), because of the potential for such comments to cause injustice by instilling "'in the minds of the jury impressions not founded upon the evidence,'" Geler, supra, 358 N.J. Super. at 467 (quoting Botta v. Bruner, 26 N.J. 82, 98 (1958)). That plaintiff's counsel's comments had the capacity to cause this type of injustice is inescapable here.

Plaintiff's counsel justifies his relentless attack on the credibility of defendant's expert and counsel (the lawyer who hired the expert to lie to the jury) by claiming that we held in Black v. Seabrook Assocs., 298 N.J. Super. 630, 637-38 (App. Div. 1997), that it is not improper or prejudicial to call opposing counsel a liar "as long as some basis exists in the evidence from which to draw an inference of incredibility."

Black was a wrongful death and survivorship action brought by a woman following the death of her husband. During the plaintiff's cross-examination, defense counsel noted that the birth certificates of her children had been amended and suggested that they had been altered to conceal the paternity of her children born during her marriage to the decedent. The plaintiff subsequently established that the amendments were to correct clerical errors on the documents and were entirely innocuous. In closing, her counsel stated that the defense counsel's reckless accusation that the plaintiff had had a child with a man other than her dead husband was "the type of innuendo, accusation, and out and out lies [that the defense attorney] has told you," and now "stands before you and asks you to believe his version of what occurred." Id. at 634. Although reversing the verdict on other grounds, we noted that the "[d]efense counsel had no business doing what he did, and he deserved what he received in the closing arguments from his adversary." Id. at 638.

Black's highly unusual fact-pattern obviously provides no support for the inappropriate remarks plaintiff's counsel leveled at the defense in this case. Plaintiff's counsel argues that his comments were not "misleading, deceptive or derogatory," and "merely summed up trial testimony." Having carefully reviewed the entire record, we fail to see how telling the jury that the defense expert

was dying to tell you the truth. If it wasn't for how much money he was getting from the defense -- I ultimately believe he would. He was trying to tell you, yes, she suffered an injury as a result of this accident, but that's as far as he could go without stopping the gravy train,

can be fairly characterized as merely summing up trial testimony. On the contrary, the comments were without basis in the evidence and beyond the bounds set for fair advocacy. They had a clear capacity of producing an unjust result. Accordingly, we reverse the judgment and remand for a new trial on damages. Our resolution of the case makes it unnecessary to address defendants' remaining arguments.

Reversed and remanded for a new trial on damages.

1 Defendant New Jersey Manufacturers Insurance Company (NJM), plaintiff's UIM (under-insured motorist) carrier intervened in the action pursuant to Zirger v. Gen. Accident Ins., 144 N.J. 327, 341 (1996).

2 The propriety of commenting on the opinions of the non-testifying radiologist was not raised on appeal. See Agha v. Feiner, 198 N.J. 50, 63 (2009) (holding that N.J.R.E. 703 "was not intended as a conduit through which the jury may be provided the results of contested out-of-court expert reports.").