VIRGINIA COCKERLINE v. KEVIN CLARK

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3706-10T1

VIRGINIA COCKERLINE, as

Administratrix ad Prosequendum

and General Administratrix of

the ESTATE OF MARK COCKERLINE,

Plaintiff-Appellant/

Cross-Respondent,

v.

KEVIN CLARK and UNITED PARCEL

SERVICE, INC.,

Defendants-Respondents/

Cross-Appellants,

and

ERIKA MENENDEZ,

Defendant.

________________________________

October 9, 2013

 

Argued March 13, 2013 - Decided

 

Before Judges Grall, Simonelli and Koblitz.

 

On appeal from the Superior Court of New Jersey, Law Division, Union County, Docket No. L-4172-04.

 

Elizabeth H. Hamlin argued the cause for appellant/cross-respondent (Garrity, Graham, Murphy, Garofalo & Flinn, attorneys; Ms. Hamlin, of counsel and on the briefs).

 

Michael J. O'Neill argued the cause for respondent/cross-appellant (Ansa Assuncao LLP, attorneys; Mr. O'Neill, James H. Gordon (Ansa Assuncao LLP) of the Pennsylvania bar, admitted pro hac vice, and Roman T. Galas, of counsel and on the briefs).

 

The opinion of the court was delivered by

SIMONELLI, J.A.D.

This wrongful death matter returns to this court after the reversal of a jury verdict in favor of plaintiff Virginia Cockerline and remand for further proceedings. Cockerline v. Menendez, 411 N.J. Super. 596 (App. Div.), certif. denied, 201 N.J. 499 (2010). In this appeal, plaintiff challenges the March 10, 2011 Law Division order, which dismissed the complaint with prejudice prior to the new trial, as well as several adverse pre-trial motion rulings. Defendants Kevin Clark (Clark) and United Parcel Service, Inc. (UPS) cross-appeal from the October 15, 2010 order, which denied their motion for summary judgment. We affirm in part, reverse in part and remand for further proceedings.

The facts are set forth more fully in this court's prior opinion and need not be repeated herein at length. We summarize the facts in that opinion that are pertinent to this appeal and add additional facts from our review of the record.

At approximately 8:00 p.m. on January 2, 2003, plaintiff's estranged husband, Mark Cockerline (Cockerline), and his girlfriend, Brigitte Nguyen (Nguyen), were traveling north on the eastern spur of the Turnpike near mile marker 110.1 Id. at 609. Freezing rain had made the road slick. Ibid. At some point, Cockerline's blue Audi was on the shoulder of the roadway. There was no direct testimony presented at the trial explaining what led the car to be there. Ibid. Prior to the trial, Nguyen had not been deposed and she did not testify at the trial.

Clark was driving his UPS tractor-trailer approximately fifty to fifty-five miles per hour in the northbound right lane and slowed down to between thirty and forty miles per hour because of the freezing rain. Ibid. As he drove toward a hill at milepost 110, he saw the lights of stopped vehicles some distance ahead and applied his brakes to slow down. Ibid. Another tractor-trailer to Clark's left slowed down as well, but slid to the right and sideswiped Clark's truck. Id. at 605-06. As Clark counter-steered to maintain control of his truck, the two tractor-trailers again came into contact. Id. at 606. Unable to stop, Clark's truck hit the rear of a vehicle driven by Erika Menendez (Menendez).2 Ibid.

Menendez was also driving north on the Turnpike. Ibid. Because of freezing rain, she was only traveling thirty miles per hour. Ibid. As she crested the hill near mile marker 110, she saw a car in her lane that was perpendicular to the roadway and a blue Audi on the shoulder next to a barrier. Ibid. Menendez thought the two vehicles had been involved in an accident and brought her car to a stop to avoid hitting the car blocking her lane. Ibid. She was then struck in the rear by Clark's UPS truck and pushed forward into the car that was blocking her lane. Ibid. Both the driver of the car she struck and the driver of the tractor-trailer that sideswiped Clark's UPS truck left the scene and were never identified. Id. at 607.

As Clark was checking on the people in Menendez's car, Nguyen came up to him and Joseph Fazio, a passing motorist who stopped to render assistance. Ibid. Nguyen was crying, appeared distraught and asked them to help her find her boyfriend. Ibid. Nguyen told Fazio that her boyfriend had jumped over the barrier. Ibid. Fazio looked over the barrier and saw what appeared to be a man's body. Ibid.

When New Jersey State Trooper Michael Rohrman arrived at the scene, a distraught Nguyen told him that she and Cockerline had been driving home in his blue Audi when they were involved in an accident and ended up on the shoulder. Ibid. She also said that Cockerline exited the car, stood near the left headlight, yelled at her to get out of the car, moved toward the barrier and then jumped over it. Ibid.

Trooper Rohrman examined the Audi and saw damage on the right and left sides. Ibid. He also examined the UPS truck, which had come to rest at an angle across two lanes of travel and the shoulder, and saw damage to the left side of the cab. Id. at 607-08. The trooper also indicated that the UPS truck stopped within one foot of the Audi, but there were no signs that the truck struck the Audi. Id. at 608. Trooper Rohrman looked over the barrier and saw Cockerline lying face up approximately eighty to one-hundred feet below the Turnpike, directly below where the UPS truck had come to rest. Ibid.

Trooper Rohrman examined Menendez's car and saw significant rear-end damage as well as damage to its right side. Ibid. Based on his observations, the trooper concluded that Menendez slid on ice and struck the Audi before the UPS truck struck Menendez. Ibid. The trooper did not believe there was any contact between the UPS truck and the Audi or any connection between the UPS truck and Cockerline's death. Ibid.

Due to the lack of physical evidence, plaintiff's expert engineer, Steven Schorr, was unable to reconstruct the circumstances of Cockerline's death. Ibid. He limited his testimony to Clark's sight distance as he approached the hill and the amount of time required for him to halt his truck after seeing Menendez's car ahead of him. Ibid. Schorr did not opine on whether Clark had been negligent in his operation of the UPS truck or whether the extent of the damage to Menendez's car, or the fact that its occupants evidently were not severely injured, was an indication of Clark's speed. Id. at 609.

Cockerline sustained multiple rib fractures, a crushed chest, punctured lungs, two fractured femurs, a completely ruptured aorta and a hematoma to one portion of his brain. Ibid. He died as the result of internal bleeding from the ruptured aorta. Ibid. Plaintiff's expert forensic pathologist, Haresh G. Mirchandani, M.D., opined that Cockerline's fall did not cause the femur fractures, and concluded that Cockerline's legs were fractured when he was struck from behind by a vehicle as he was walking. Ibid.

This court remanded the matter on February 4, 2010. On October 20, 2010, almost eight years after the accident, Nguyen testified at a de bene esse video deposition. She recalled that it was cold, icy and raining on the night of the accident and the road became slippery as she and Cockerline approached the hill at mile marker 110. They had to stop in their lane because cars ahead had hit each other and were blocking the lane. After they stopped, Cockerline saw a truck rapidly approaching from behind and screamed to her to get out of the car. She looked in the rearview mirror, saw the UPS truck approaching "too fast" and thought she was "going to die because the truck [was] going to crush [her]." As Cockerline exited the Audi, the UPS truck "violent[ly] hit" the car in the rear, pushing it onto the shoulder and against the barrier, blocking her exit from the passenger's side. In order to exit the car, she climbed over the driver's seat and crawled out and underneath the truck, which had come to rest to the left of the Audi.

Nguyen testified that she did not see where Cockerline went after he exited the Audi, nor did she see him go over the barrier. As she looked for him after exiting the car herself, someone told her that they saw "something white flying over the bridge." She looked over the barrier and saw Cockerline lying one hundred feet below the roadway.

Nguyen said that it was "impossible" for Cockerline to have jumped over the barrier; rather, something must have "pushed" him. She denied having told Trooper Rohrman and Fazio that Cockerline jumped over the barrier and disputed the trooper's conclusions about how the accident occurred. She also said that it was "impossible" that Cockerline was standing in front of the Audi because he was in the car with her the whole time until he tried to exit. She believed that the UPS truck struck him, although she did not see him get hit. The trial judge subsequently ruled that Nguyen's testimony was admissible and the jury must assess her credibility.

Schorr issued a supplemental expert report after Nguyen's deposition. Based on his review of the record and Nguyen's testimony, Schorr presented the following theory of liability: the Audi was stopped in the right lane prior to the collision; the UPS truck struck the Audi, moving it forward and to the right and causing it to strike Cockerline, who had exited the car; the Audi's front bumper contacted Cockerline's legs below his center of mass; the contact projected Cockerline's body onto the Audi's hood as the car continued forward and to the right toward and into the barrier; and the Audi's contact with the barrier then produced a force that propelled Cockerline over the barrier, falling one hundred feet to his death.

I.

The trial judge3 barred Schorr's supplemental report as an inadmissible net opinion, finding there was no evidence that Cockerline was in front of the Audi when the UPS truck allegedly struck it, and Nguyen's testimony did not place him there. The judge also directed a verdict in defendants' favor prior to the new trial and dismissed the complaint. Both of these rulings constitute reversible error.

An expert's opinion must be based on facts or data. N.J.R.E. 703. The facts or data may come from other witnesses. Ibid.; Lanzet v. Greenberg, 126 N.J. 168, 186 (1991). Expert testimony is admissible as long as it is consistent with some admissible testimony or hypothetical. State v. Pillar, 359 N.J. Super. 249, 290-91 (App. Div.), certif. denied, 177 N.J. 572 (2003). We will not disturb the court's ruling on the admissibility of expert evidence unless it was "so wide of the mark as to constitute a manifest denial of justice and an abuse of discretion." Hisenaj v. Kuehner, 194 N.J. 6, 25 (2008) (citations and internal quotation marks omitted).

In reviewing a motion for involuntary dismissal pursuant to Rule 4:47-2(b), our task is to determine whether the evidence, along with its legitimate inferences, could have sustained a judgment in favor of the party opposing the motion. Dolson v. Anastasia, 55 N.J. 2, 5 (1969); Pressler & Verniero, Current N.J. Court Rules, comment 2.1 on R. 4:37-2(b) (2013). Neither the trial judge nor this court, as a reviewing court, are "concerned with the weight, worth, nature or extent of evidence, but must accept as true all [of] the evidence supporting the party opposing the motion, and accord him [or her] the benefit of all favorable inferences. Then, if reasonable minds could differ, the motion must be denied." Polyard v. Terry, 160 N.J. Super. 497, 505-06 (App. Div. 1978) (citing Dolson, supra, 55 N.J. at 5), aff'd o.b., 79 N.J. 547 (1979). "A motion for involuntary dismissal only should be granted where no rational [factfinder] could conclude that the plaintiff marshaled sufficient evidence to satisfy each prima facie element of a cause of action." Godfrey v. Princeton Theological Seminary, 196 N.J. 178, 197 (2008).

A defendant may move at trial for an involuntary dismissal after the plaintiff "has completed the presentation of evidence on all matters other than the matter of damages (if that is an issue)." R. 4:37-2(b). The rule "is a rule of trial, not pre-trial, and, accordingly, is not available to the court as a basis of a sua sponte involuntary dismissal on a proffer of proof required by it prior to trial." Pressler & Verniero, Current N.J. Court Rules, cmt. 2.2 on R. 4:37-2(b) (2013) (citing Klier v. Sordoni Skanska Constr. Co., 337 N.J. Super. 76, 83 (App. Div. 2001)).

"[A]lthough the rule permits an involuntarily dismissal after the plaintiff's opening statement, such motions 'are not favored and should not be granted unless the facts are undisputed and the law free from doubt.'" Ibid. (quoting Hirsch v. Schwartz, 87 N.J. Super. 382, 387 (App. Div. 1965)); see also Passaic Valley Sewerage Comm'rs v. Geo. M. Brewster & Son, Inc., 32 N.J. 595, 606-07 (1960) (holding that an involuntary dismissal is permissible where the legally determinative facts are "stipulated" or "admittedly uncontrovertible"). In addition, the court may not weigh evidence on a motion for involuntary dismissal but must accept as true all the evidence that supports the plaintiff and give the plaintiff the benefit of every possible favorable inference that can be logically and legitimately deduced therefrom. Passaic Valley, supra, 32 N.J. at 607.

Here, the judge improperly granted involuntary dismissal based on the proffer of proof that he required from plaintiff's counsel prior to opening statements and ignored that the facts surrounding the accident were not stipulated or "admittedly uncontrovertible," but, in fact, hotly disputed. The judge also ignored evidence that supported plaintiff's theory of liability, such as Nguyen's testimony that the UPS truck struck the Audi after Cockerline exited, her statement to Trooper Rohrman at the scene that Cockerline had exited the Audi and was standing near the left headlight when he began yelling at her to get out of the car, and Dr. Mirchandani's opinion that Cockerline's legs were broken when he was struck from behind by a vehicle as he was walking. This evidence was sufficient to establish an inference that Cockerline had reached the front of the Audi before the UPS truck struck it.

The judge also erred in excluding Schorr's supplemental report. The judge ruled that Nguyen's testimony was admissible and a jury could infer from it that the circumstances upon which plaintiff relied may have existed. Yet the judge barred the supplemental report because it relied on Nguyen's testimony, which did not affirmatively place Cockerline in front of the Audi. The report states, however, that in addition to Nguyen's testimony, Schorr relied on the trial testimony of Clark, Trooper Rohrman, Menendez and Fazio and evidence that Cockerline had been struck from behind by a vehicle. The judge should not have ruled that Schorr's reliance on the inferences from Nguyen's testimony was impermissibly speculative. In our view, Nguyen's testimony was not so unreliable as to make it amenable to assessment as a matter of law; rather, her testimony required a jury's credibility assessment. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995); Alves v. Rosenberg, 400 N.J. Super. 553, 566 (App. Div. 2008). Accordingly, we reverse the judge's grant of involuntary dismissal and bar of Schorr's supplemental report.

 

II.

Plaintiff and Cockerline were involved in divorce litigation at the time of the accident but were still married. Their two children were thirteen and twelve years old when their father died. Cockerline, supra, 411 N.J. Super. at 610. As an element of wrongful death damages, plaintiff sought alimony and child support she would have received if the divorce litigation had concluded. Ibid. Expert evidence of her expectations of alimony and child support was admitted at the trial. A month before the new trial, defendants filed a motion in limine to bar this evidence.4 The judge granted the motion, finding that plaintiff was not entitled to these damages because she and Cockerline were still married. The judge limited recovery to survivorship damages and Cockerline's pain and suffering.

Shortly thereafter, plaintiff served an amended expert report, which calculated wrongful death damages without regard to her expectation of alimony and child support. The judge barred the report on the grounds that it was served after the expiration of the extended discovery date, plaintiff failed to show exceptional circumstances to re-open discovery and because the amended report advanced a new theory of damages.

The Wrongful Death Act (Act), N.J.S.A. 2A:31-1 to -6, allows a decedent's survivors to pursue the claims that the decedent could have pursued for injuries from "a wrongful act, neglect or default." N.J.S.A. 2A:31-1. The claims must be pursued by the decedent's administrator ad prosequendum, N.J.S.A. 2A:31-2, "for the exclusive benefit of the persons entitled to take any intestate personal property of the decedent." N.J.S.A. 2A:31-4. Because the creation of this statutory remedy was "in derogation of the common law[,] . . . the terms definitive of the persons or classes of persons for whom the remedy is provided are not to be expanded beyond their fair intendment." Turon v. J. & L. Constr. Co., 8 N.J. 543, 558 (1952).

A person asserting the status of surviving wife or husband must demonstrate "a marriage relationship," and may not be an "unwed companion" who could have married the decedent but had not actually done so, regardless of the reason, Sykes v. Zook Enters., 215 N.J. Super. 461, 466-71 (Law Div. 1987), aff'd sub nom. Sykes v. Propane Power Corp., 224 N.J. Super. 686, 695-97 (App. Div. 1988), and regardless of any intention to marry in the future. Cassano v. Durham, 180 N.J. Super. 620, 621, 625-26 (Law Div. 1981). Standing under the Act "is not conditioned on dependency," id. at 623, although dependency may affect the distribution of the damage award among all persons with standing. Wolff v. Mercer Med. Ctr., 220 N.J. Super. 360, 364-66 (App. Div. 1987).

Plaintiff presented no authority that a spouse who was in the process of divorcing the decedent at the time of death is entitled to alimony and child support as an alternative measure of wrongful death damages. The case she relies on, Luis v. Cavin, 198 P.2d 563 (Cal. Ct. App. 1948), does not authorize such alternative damages, either specifically or by inference from any general principle of fairness or legitimate expectations. To the contrary, Luis emphasized the claimant's continuing status as the decedent's wife and heir, notwithstanding the waiver of inheritance rights that would have been affected by entry of a final divorce judgment. Id. at 117. Accordingly, given the arguments presented, we cannot conclude that the judge abused his discretion in barring evidence of her expectations of alimony and child support. Because this evidence was admitted at the first trial, we do not foreclose reconsideration of this issue on remand.

However, the judge erred in barring plaintiff's amended expert report. Because defendants waited until shortly before trial to move in limine to bar expert evidence of plaintiff's expectations of alimony and child support, the judge should have afforded her the opportunity to serve her amended expert report. The judge's failure to do so unfairly deprived her of the ability to prove wrongful death damages.

In addition, plaintiff is not precluded from presenting new wrongful death damages claims or proofs on re-trial. This court has held that

[W]here a new trial has been granted 'the case stands as if there had never been a trial; the court has the same power with reference to matters connected with the trial of the case as it had before the first trial was had, and it is the duty of the court to proceed as in the first instances. The new trial is had as if there had never been a previous cone.' New claims and defenses may be asserted in the subsequent trial.

 

[Murphy v. Implicito, 392 N.J. Super. 245, 256 (App. Div. 2007) (emphasis added) (quoting Franklin Disc. Co. v. Ford, 27 N.J. 473, 492 (1958)) (citations omitted).]

 

Thus, in a retrial, the parties are "not limited to the same proofs and theories of liability that [they] offered in the first trial." Id. at 257. "'[T]he case stands as if there had never been a trial.'" Ibid. (quoting Kimble v. Degenring, 116 N.J.L. 602, 603 (Sup. Ct. 1936).

Wrongful death survivorship damages are "a replacement for that which [the] decedent would likely have provided and no more." Hudgins v. Serrano, 186 N.J. Super. 465, 476 (App. Div. 1982); accord Smith v. Whitaker, 160 N.J. 221, 231 (1999). "The amount of recovery is based upon the contributions, reducible to monetary terms, which the decedent reasonably might have been expected to make to the survivors," and are limited to "pecuniary loss" to the exclusion of "injury to the feelings, mental suffering or loss of society and companionship." Alfone v. Sarno, 168 N.J. Super. 315, 321 (App. Div. 1979), modified on other grounds, 87 N.J. 99 (1981). On remand, the court must afford plaintiff a full opportunity to develop her wrongful death damages and afford defendants an opportunity to respond.

III.

Plaintiff contends that the judge erred by allowing defendants to designate certain experts that had been excluded from the first trial due to discovery violations. Plaintiff decries the procedural irregularity of allowing defendants to utilize these experts without a showing of due diligence or extraordinary circumstances, but does not argue that naming these experts caused her any prejudice. Thus, there is no manifest injustice to be corrected. See Hisenaj, supra, 194 N.J. at 25 (quoting State v. Wakefield, 190 N.J. 397, 435 (2007), cert. denied, 552 U.S. 1146, 128 S. Ct. 1074, 169 L. Ed. 2d 817 (2008)) (holding that the admissibility of expert testimony is within the trial court's discretion, and its admission is reversible error only if it causes "'a manifest denial of justice'").

IV.

Dr. Mirchandani gave a de bene esse video deposition. The judge permitted plaintiff to substitute a new expert forensic pathologist after Dr. Mirchandani became unavailable due to illness; however, the judge only allowed the substitute expert to give rebuttal testimony. Plaintiff argues that the substitute expert was already constrained by the parameters of Dr. Mirchandani's testimony, limiting the substitute expert to rebuttal did not enhance that constraint, and having to bifurcate her evidence between playing Dr. Mirchandani's de bene esse video deposition and live rebuttal testimony "would severely impact on the orderly presentation" of her case.

The trial court has discretion over the conduct of a trial. Persley v. N.J. Transit, 357 N.J. Super. 1, 9 (App. Div.), certif. denied, 177 N.J. 490 (2003). That discretion extends to "control of the proof at the trial," which includes the scope of a witness's testimony. Bosze v. Metro. Life Ins. Co., 1 N.J. 5, 10 (1948). There is no ground for complaint "unless there is a clear abuse of discretion which has deprived a party of a fair trial." Persley, supra, 357 N.J. Super. at 9. Complaints about the conduct of a trial must be viewed "within the context of the entire record in order to determine its prejudicial impact." Id. at 10.

Plaintiff does not suggest, nor can she, that the restriction on her substitute expert would impose any substantive limitation on her expert forensic pathology evidence. While it might be simpler for one expert to present all of the pathology evidence, there were practical reasons for the judge's ruling -- to ensure there was no change in the substance of Dr. Mirchandani's opinions and prohibit an expert from adopting another expert's opinions without engaging in an independent analysis. See Krohn v. N.J. Full Ins. Underwriters Ass'n, 316 N.J. Super. 477, 485-86 (App. Div. 1998) (holding that an expert may testify about opinions of non-testifying experts that actually formed a basis of his or her own opinion, but should not relate such opinions merely because the opinions are congruent with his or her own), certif. denied, 158 N.J. 74 (1999). Accordingly, we discern no abuse of discretion in the judge's decision to only allow rebuttal testimony from the substitute expert.

IV.

Plaintiff contends that the judge erred in barring a "preventability determination" that UPS made following a determination that the contact between the UPS truck and Menendez's vehicle was preventable, and a supervisor's testimony that Clark was at fault for the collision with Menendez. Plaintiff asserted that this evidence was an admission of guilt. We disagree.

The judge found, and we agree, that the preventability determination contained no admissions by UPS about how or why the accident with Cockerline occurred, and the supervisor's testimony was nothing more than a net opinion about the accident with Menendez. The judge explained that the preventability determination could only be probative after "an entire collateral" proceeding about how it had been conducted. Because the preventability determination was a matter entirely separate from the circumstances of the accident itself, the judge concluded it "could only confuse, take an undue consumption of time and mislead a jury." Accordingly, the judge barred it pursuant to N.J.R.E. 403, concluding that its value was outweighed by its potential prejudicial affect. This ruling was correct.

Relevant evidence is "evidence having a tendency in reason to prove or disprove" a material fact. N.J.R.E. 401. Relevant evidence is usually admissible unless some exception applies. N.J.R.E. 402. However, it may be excluded if its probative value is "substantially outweighed" by risks that include undue prejudice, confusion of the issues, and waste of time. N.J.R.E. 403. The decision to admit or exclude relevant evidence is within the court's discretion, and it is reversible only if the court "palpably abused" its discretion by making a finding "so wide of the mark that a manifest denial of justice resulted." State v. Carter, 91 N.J. 86, 106 (1982); accord Verdicchio v. Ricca, 179 N.J. 1, 34 (2004).

Our Supreme Court has "decline[d] to adopt the privilege of self-critical analysis as a full privilege, either qualified or absolute." Payton v. N.J. Tpk. Auth., 148 N.J. 524, 545 (1997). The court must address concerns about admitting "evaluative and deliberative materials" on a case-by-case basis. Ibid.

We are satisfied that the judge was well within his discretion to find that the preventability determination was substantially more prejudicial than probative. Neither plaintiff nor the record suggest that UPS attempted to determine Clark's blame or legal responsibility for striking Menendez's vehicle or that UPS attempted to investigate subsequent aspects of the accident, much less assign liability. Accordingly, the judge properly barred the preventability determination.

V.

The UPS truck was equipped with an in-vehicle information system or IVIS, which, among other things, recorded the truck's speed and brake applications. Cockerline, 411 N.J. Super. at 610. UPS protocol required that information be stored on a UPS computer for thirty days unless the vehicle had been involved in a serious accident. Ibid. In that case, the IVIS data was to be printed and retained, and no repairs were to be made to the particular vehicle. Ibid. Clark's UPS truck was repaired several days after the accident and the IVIS data was purged after thirty days. Ibid.

Plaintiff asserted a spoliation damages claim, which was severed before the trial and dismissed with prejudice after the trial based on mootness. On remand, plaintiff sought to reinstate the claim. The judge denied the motion because plaintiff did not appeal the dismissal of the claim.5 In this appeal, plaintiff argues that the dismissal was not an adjudication on the merits, notwithstanding that it was with prejudice, and thus, her failure to appeal the dismissal did not foreclose a motion for relief pursuant to Rule 4:50-1.

A party may seek relief pursuant to Rule 4:50-1(e) from a final judgment or order if "a prior judgment or order upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment or order should have prospective application[.]" The motion "is addressed to sound discretion of the trial court, which should be guided by equitable principles in determining whether relief should be granted or denied." Hous. Auth. of Morristown v. Little, 135 N.J. 274, 283 (1994). "It is well established" that a motion under Rule 4:50-1 "may not be used as a substitute for a timely appeal." Wausau Ins. Co. v. Prudential Prop. & Cas. Ins. Co., 312 N.J. Super. 516, 519 (App. Div. 1998).

Unless the dismissal order specifies otherwise, the involuntary dismissal of any claim, "other than a dismissal for lack of jurisdiction, operates as an adjudication on the merits." R. 4:37-2(d). However, notwithstanding this literal language, "a dismissal for mootness" is not an adjudication on the merits, but rather a finding that "there is nothing to adjudicate," and therefore "more like one for lack of jurisdiction than one after a trial on the merits." Transamerica Ins. Co. v. Nat'l Roofing, Inc., 108 N.J. 59, 63-64 (1987).

While Transamerica supports plaintiff's position that the first judge did not dismiss the spoliation damages claim on the merits, that does not resolve this issue. Even without an adjudication on the merits, the dismissal was appealable as of right under Rule 2:2-3(a)(1) because it was final for all parties in a case where all other issues had been decided on the merits. See e.g., Smith v. Jersey Cent. Power & Light Co., 421 N.J. Super. 374, 383-84 (App. Div.), certif. denied, 209 N.J. 96 (2011); S.N. Golden Estates, Inc. v. Cont'l Cas. Co., 317 N.J. Super. 82, 87 (App. Div. 1998); Frantzen v. Howard, 132 N.J. Super. 226, 227 (App. Div. 1975). Perhaps that is why plaintiff argues, instead, that this court's reversal vacated the order and created an unintended circumstance meriting Rule 4:50-1 relief. The question thus becomes whether the second judge abused his discretion by using plaintiff's failure to appeal as the ground for denying reinstatement, even though the Rule 4:50-1(e) grounds for such relief plainly existed.

The first judge, and this court, validated the use of spoliation evidence and a spoliation inference to determine negligence notwithstanding the severance of the spoliation damages claim. There is nothing in the comprehensive discussion of spoliation in the leading case of Tartaglia v. UBS PaineWebber, Inc., 197 N.J. 81, 113-23 (2008), that suggests a plaintiff may not present evidence of spoliation nor seek a jury charge on the spoliation inference unless the jury is also charged with the separate question of damages for the difficulties the spoliation caused the plaintiff in preparing and presenting the case. It is therefore far from certain that the dismissal of plaintiff's spoliation damages claim would have prejudiced her ability on remand to develop and present a case on liability for negligence that included the spoliation evidence and inference. In that light, plaintiff has not suffered sufficient prejudice at this time from the second judge's denial of reinstatement of the spoliation damages claim to represent an abuse of discretion. If such prejudice should arise during the retrial, or if the jury should render a negligence verdict that dissatisfies plaintiff, she may seek reinstatement of the spoliation damages claim at that time under Rule 4:50-1(f), which allows a court to grant relief from a judgment or order upon "any other reason justifying relief from [its] operation." Accordingly, we reject plaintiff's argument without prejudice to her ability to assert it in the event she is barred from presenting spoliation evidence at the retrial or receives an adverse verdict.

VI.

On cross-appeal, defendants contend that the judge erred by failing to grant summary judgment. They argue that the first judge had barred plaintiff's sole current theory of causation on remand -- that the UPS truck pushed the Audi into Cockerline in a manner that caused him to fall from the overpass. Defendants posit that plaintiff's failure to cross-appeal from the dismissal of that theory barred her from asserting it on remand under the doctrines of res judicata and collateral estoppel. We disagree.

Res judicata prevents parties from re-litigating in a new proceeding any "claims or issues that have already been adjudicated" on the merits. Velasquez v. Franz, 123 N.J. 498, 505 (1991). It requires an "identity of issues, parties and cause of action." Forgash v. Lower Camden Cnty. Sch., 208 N.J. Super. 461, 465 (App. Div. 1985).

"'As a general principle, collateral estoppel is that branch of . . . res judicata which bars relitigation of any issue which was actually determined in a prior action, generally between the same parties, involving a different claim or cause of action.'" In re Liquidation of Integrity Ins. Co., 214 N.J. 51, 66 (2013) (quoting Div. of Youth & Family Servs. v. R.D., 207 N.J. 88, 114 (2011)). When the prior action is the subject of a prior federal court judgment, the binding effect of that judgment, whether applying principles of res judicata or collateral estoppel, is determined by the law of the jurisdiction that rendered it. Ibid. Collateral estoppel bars "'the relitigation of an issue that has already been litigated and resolved in a prior proceeding.'" Id. at 20 (quoting Pleming v. Universal-Rundle Corp., 142 F.3d 1354, 1359 (11th Cir. 1998)). Collateral estoppel only applies if the party seeking to rely on the doctrine shows:

(1) [T]he issue at stake is identical to the one involved in the prior proceeding; (2) the issue was actually litigated in the prior proceeding; (3) the determination of the issue in the prior litigation must have been a 'critical and necessary part' of the judgment in the first action; and (4) the party against whom collateral estoppel is asserted must have had a full and fair opportunity to litigate the issue in the prior proceeding.

 

[Ibid.]

 

In the prior appeal, this court noted that the first judge had precluded plaintiff's theory that the UPS truck hit Cockerline or the Audi because there was no supporting evidence. Cockerline, 411 N.J. Super. at 613. As we have previously stated in this opinion, in a retrial the parties are not limited to the same proofs and theories of liability that they offered in the first trial. Murphy, supra, 392 N.J. Super. at 257. Nguyen's testimony and Schorr's supplemental report, rendered after the trial, provided new evidence and supported a new theory of liability that destroyed the identity of issues that collateral estoppel and res judicata require. Collateral estoppel may not apply to an issue that was otherwise fully and fairly litigated if there is new evidence that was unavailable in the prior proceeding for reasons other than its proponent's lack of diligence -- new evidence keeps the issues, or at least the litigation of them, from being identical. Fama v. Yi, 359 N.J. Super. 353, 360 (App. Div.) (holding that collateral estoppel does not apply in cases "where plaintiff obtained new evidence regarding causality which was likely to change the result"), certif. denied, 178 N.J. 29 (2003); Barker v. Brinegar, 346 N.J. Super. 558, 565-68 (App. Div. 2002) (same). Because res judicata and collateral estoppel share the required element of identity of issues, the same considerations also make res judicata inapplicable. Accordingly, the judge properly denied summary judgment.

Affirmed in part, reversed in part and remanded for further proceedings. We do not retain jurisdiction.

1 Plaintiff and Cockerline were in the midst of a divorce at the time he died.

2 Menendez was named a defendant who settled prior to the trial.

3 The case was assigned to a different judge for the new trial.

4 The new trial was set for March 10, 2011, and defendants filed the motion on February 4, 2011.

5 In plaintiff's cross-appeal, she only challenged a post-trial ruling with respect to the validity of the collateral source doctrine, N.J.S.A. 2A:15-97. Id. at 604.