LUCYNA JAKUBOWSKA v. VIVIANA G. MASTROBUONI

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

LUCYNA JAKUBOWSKA,

Plaintiff-Respondent,

v.

VIVIANA G. MASTROBUONI,

Defendant-Appellant.

______________________________

JANUSZ JAKUBOWSKI and LUCYNA

JAKUBOWSKA, his wife,

Plaintiffs-Respondents,

v.

VIVIANA G. MATROBUONI,

Defendant-Appellant.

_______________________________

July 22, 2014

 

Argued July 1, 2014 Decided

 

Before Judges Espinosa and Kennedy.

 

On appeal from Superior Court of New Jersey, Law Division, Bergen County, Docket Nos. L-4488-11 and L-4556-11.

 

Brian R. Lehrer argued the cause for appellant Viviana G. Mastrobuoni (Schenck, Price, Smith & King, LLP, attorneys; Mr. Lehrer, on the brief).

 

Neil S. Weiner argued the cause for respondent Lucyna Jakubowska (Lynch, Lynch, Held & Rosenberg, P.C., attorneys; Arthur V. Lynch, of counsel; Mr. Weiner, on the brief).

 

Christian P. Stueben argued the cause for respondent Janusz Jakubowski (Law offices of Rosemarie Arnold, attorneys; Natalie A. Zammitti Shaw, on the brief).

PER CURIAM

Defendant appeals from judgments entered on May 6, 2013, following a jury verdict awarding plaintiff Lucyna Jakubowska (Lucyna)1 $95,000 and plaintiff Janusz Jakubowski (Janusz) $68,000 for bodily injuries they suffered as a result of an automobile collision. Defendant argues the trial judge erred in denying motion for a mistrial on the basis of improper and prejudicial comments made by Lucyna's counsel during closing argument. For reasons stated hereinafter, we reverse the judgment as to plaintiff Lucyna and we remand for a new trial; we affirm the judgment, however, as to plaintiff Janusz.

I.

Very briefly, on November 7, 2009, plaintiff Janusz was driving a vehicle in which plaintiff Lucyna was a passenger on Saddle River Road in Saddle Brook when their vehicle was rear-ended by defendant. Both plaintiffs sustained injuries in the collision and underwent medical treatment. At trial, defendant conceded liability, and, because plaintiffs were subject to a limited tort threshold, the only issues for the jury were whether each plaintiff suffered a permanent injury proximately caused by the accident and, if so, the amount of reasonable compensation.

The evidence at trial showed that Lucyna, 42 years of age at the time of the accident, complained of severe back and neck pain. She underwent an MRI which showed two cervical herniations and several cervical and lumbar disc bulges. She thereafter underwent a series of facet and epidural injections to address her pain and limitation of movement.

Lucyna was examined by Robert Goldstone, M.D., a board certified orthopedic surgeon, on behalf of the defense, and his de bene esse deposition testimony was played for the jury. Dr. Goldstone testified that Lucyna suffered no permanent injury as a consequence of the accident, and that the MRI films merely showed degenerative changes in the cervical and lumbar spines unrelated to trauma. He also stated that some of Lucyna's responses to his questions during the defense examination were "bizarre" and subjective.

Defendant also testified briefly about the accident. Lucyna's counsel, during cross-examination, brought out that defendant gave a statement shortly after the accident, in which she never said that Lucyna acted "suspiciously," but that at her deposition, after she spoke to her lawyer, she used that adverb to describe Lucyna at the scene.

Janusz also complained of severe neck and back pain, and was diagnosed with a number of annular tears and disc herniations in the lumbar and thoracic spines, as well as bulges in those spinal areas and in the cervical spine. Further, he was diagnosed with cervical and lumbar radiculopathy and underwent a series of lumbar and thoracic epidural injections.

Janusz was not examined by Dr. Goldstone on behalf of the defense, but rather his MRI films were reviewed by Robert Traflet, M.D., a board certified radiologist, who testified the films revealed long-standing "chronic degeneration."

During his closing, counsel for defendant told the jury that "the issue is not whether [plaintiffs] got hurt. The issue is whether they suffered a permanent injury[.]" He added that plaintiffs' complaints of pain "doesn't mean that they are lying. It doesn't mean that they're fakers or phonies . . ." and that "no one has called them that . . . These are not the type of people that are frauds. They're decent people."

During his closing, counsel for plaintiff Lucyna undertook a highly aggressive tone and made several improper and prejudicial comments. While not every comment was improper, we note the following:

Now here, despite what Mr. Lehrer has said to you, they are in effect saying that my clients are a liar, cheat, and a fraud. They deny it. They don't like when I even talk about it but they're doing it -- sometimes they come right out and say it and other times, they do it in a more stealth manner. . . . If Ms. Jakubowska was a liar, cheat, and a fraud, would she come in and admit on the stand that she has a previous back problem two years earlier when there's no medical records?

 

Would she, if she was trying to be a liar, cheat, and fraud, and to deceive this Court and the members of the jury, would she not seek emergency room treatment right away? . . .

 

If she was a liar, cheat, and a fraud, would she return to work and try to get through her day or would she stay home and say, okay, I'm not going to work anymore.

 

. . . .

 

. . . You feel comfortable with [Dr. Goldstone] but he's talking to you and there's a reason for that because he's handpicked by the defense.

 

In this case, who did we bring to you, okay? Not somebody handpicked by me. . . . Not some slick presentation that's designed to do certain things . . . [.]

 

. . . Now I would like to talk to you just for a moment about some of the, what I would refer to as the -- some of the defense tactics here that have gone on. And some of this you may have seen and some might be simple. Some may not be so simple and it may take me a little bit of time to discuss that with you here.

 

. . . .

 

What [Dr. Goldstone] does with the -- the physical exam, and this is -- and this is very tricky and it's one of those things that I'm not sure that everyone followed during the course of the video tape but he gets very tricky when he starts doing the physical exam. . . .

 

He doesn't do all the tests, okay? And I think I rattled off that he does one or two. There are about 30 others he could have done. But then what he does, he does-- and this is -- this is the part that is -- that is -- that you may find disturbing is, that he then goes on the offensive. He doesn't do the test but then he goes on the offensive and he tries to say that well, the person is lying. They're not telling the truth. Their sensation is off. When he doesn't even do a complete exam.

 

And I'll tell you the reason for that. The reason that he doesn't do the full exam is because if he did the full exam, he might actually find what he's looking for. . . .

 

. . . .

 

. . . Every one, what he has to do is, he has to disagree with both the patient and the patient's doctor. And he does it and you can see how well he does it. He does it with a smile on his face.

 

Now how and why does Doctor Goldstone disagree with the patient's doctor every single time? Well, I'm going to tell you that it's a combination of three things. It's -- I'm going to tell you it's bad medicine, it's the -- I'm going to say it's the defense and I'm going to say it's sleazy slander, and then the third thing is bias. So when we refer to bad medicine, I'll use
Doctor Goldstone's words.

 

. . . .

 

45 years that he's been administering tests yet, he wants to come in and tell us how much he knows. Now that's the bad medicine part, okay? Now I want to talk to you about this part, which is the defense sleazy slander, is what I'm going to talk about and that is when Doctor Goldstone does the examination. He -- what does he say? . . .

He says that what my client's responses were bizarre, were bizarre. Why do you think he used that word? He's using that word to in some way inflame you to believe that somehow, Ms. Jakubowska is in some way trying to mislead you, okay? Now I'll say and you already heard this before that, Mr. Lehrer, the defense counsel and Doctor Goldstone, have worked together on numerous cases and I think it was that they had been together for about 25 cases here in court, on trial here.

 

So, they've worked together for a long time. And I'm going to seg[ue] to -- and it goes under this category as well is -- and I asked the defendant here who is not here in the courtroom today but when she was here and she decided to show up for court, where all of us had to be for the past week. When she was here for the hour or so, I asked her, did you give a statement after and she says, yes I did. And I asked her, did you ever use the word suspicious in that statement anywhere?

 

And this is before there's a lawyer, before there's anyone. Before anyone is involved. . . . And all of the lawyers then go to the lawyers office and there's a deposition, okay? What happens then? All of the sudden we heard, and it was very important for her to get that point out that Ms. Jakubowska was going to her neck and that seemed suspicious.

 

So again, what's the point of that? It all of the sudden crops up two years later, after there's a lawyer involved and everything else. . . . So, I told you before, I said there's -- there's -- and he's very nice, Mr. Lehrer. He comes across very, very nicely. But when you put those two together, there are -- they do this and they call her a liar, a cheat, and a fraud both covertly and overtly, both.

 

. . . And why and how does [Dr. Goldstone] earn this money? He earns the money by, as I said; he comes into court, he does the same thing over and over again and it is difficult to point out all of the problems that he's got. And that's one of the reasons I'm here. I'm here because I want to go after this because I don't think this is right.

 

. . . .

 

So he knows that unless he's called out on this and what he's doing, he's going to continue to do it over and over
again. . . . Now why was all of this done? Why was all of this done with Doctor Goldstone? All of this was done for the protection of money, the defense money, and that's why this was all done.

 

. . . .

 

. . . Now if you think in your conscience that it's okay for the defense to continue to behave this way, by hiring Doctor Goldstone and some of the other tactics that I've outlined for you, and you feel that Ms. Jakubowska should not recover, then you should say that and say that she has not sustained a permanent injury. And you should vote no and she should get no recover, if you feel that way.

 

. . . .

 

. . . [I]f you feel that Ms. Jakubowska has sustained a permanent injury in this accident and the community does not approve of the defense tactics in this case, say so with your verdict.

 

. . . .

 

How a case like this is handled and how the defense uses your own fear of -- and -- of you know, by using things like bizarre and suspicious and all that. They use it against regular people all the time and this is what's going on. So you're the conscience of this community here, okay? When you speak, you're going to speak the community's attitudes. It's up to you; do you want to let this stand or not?

 

So when you render your decision, you don t speak alone for yourself, you speak for justice and the community for everyone and remember that.

Following the completion of the summations, defendant's counsel asked for a mistrial out of the presence of the jury predicated upon the comments of Lucyna's counsel.2 The trial judge declined to grant a mistrial, but did advise the jury "it is improper to disparage any witnesses and you are not the conscience of the community."

II.

Defendant argues that the "inappropriate attacks" made by Lucyna's counsel during summation had to have "infected both verdicts" entitling defendant to a new trial. Plaintiff Lucyna argues that because defendant neither claims nor demonstrates that the verdicts are excessive in any way, the errors complained of were harmless and that, by not objecting during the summation, defendant waived objection. Plaintiff Janusz argues that his case did not involve Dr. Goldstone, was based upon different proofs than that of plaintiff Lucyna and was not fueled by an incendiary closing. Consequently, no relief is warranted as to his verdict.

We have "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). "Although attorneys are given broad latitude in summation, they may not use disparaging language to discredit the opposing party, or witness, or accuse a party's attorney of wanting the jury to evaluate the evidence unfairly, of trying to deceive the jury, or of deliberately distorting the evidence." Rodd v. Raritan Radiologic Assocs., P.A., 373 N.J. Super. 154, 171 (App. Div. 2004)(citations omitted); accord Szczecina v. PV Holding Corp., 414 N.J. Super. 173, 178 (App. Div. 2010)("[I]t is improper for an attorney to make derisive statements about parties, their counsel, or their witnesses.").

"To remedy the prejudice caused by untrue statements or inferences, trial courts may, depending on the severity of the prejudice, issue a curative instruction or grant a mistrial." Bender v. Adelson, 187 N.J. 411, 433 (2006). On appeal, we defer to the discretion of the trial judge who has the "feel of the case." Khan v. Singh, 397 N.J. Super. 184, 202 (App. Div. 2007), aff'd, 200 N.J. 82 (2009) (citation omitted). However, when remarks on summation "cross the line beyond fair advocacy and comment, and have the ability or 'capacity' to improperly influence the jury's 'ultimate decision making,' Bender, supra, 187 N.J. at 416, 435, the trial judge must take action." Risko v. Thompson Muller Auto. Group, Inc., 206 N.J. 506, 522 (2011); NuWave Inv. Corp. v. Hyman Beck & Co., Inc., 432 N.J. Super. 539, 567 (App. Div. 2013), certif. granted, 217 N.J. 303 (2014).

Here, the comments of plaintiff's counsel were highly improper. This was a routine verbal threshold case in which liability was not in issue. The question for the jury was whether plaintiffs suffered a permanent injury in the accident, and, if so, the amount necessary to make them whole. In his summation, however, plaintiff Lucyna's counsel went far beyond the bounds of normal advocacy in such a case. He accused the defense of intentionally trying to get the jury to unfairly evaluate the evidence; of deception; of mounting a "sleaze" campaign against plaintiff; and coaching defendant to make certain untrue statements. None of this is proper or appropriate. See Szczecina, supra, 414 N.J. Super. at 178.

In addition, by inviting the jury to "say so with your verdict" if it finds plaintiff sustained a permanent injury and that "the community does not approve of the defense tactics in this case," counsel for plaintiff Lucyna plainly asked the jury to "send a message" an argument long condemned in New Jersey. See Jackowitz v. Lang, 408 N.J. Super. 495, 504-05 (App. Div. 2009).

We perceive the trial judge's response to defendant's timely request for a mistrial to be insufficient in light of the relentless improprieties in the closing of counsel for plaintiff Lucyna. Fleeting comments, even if improper, do not always require a mistrial. Jackowitz, supra, 408 N.J. Super. at 505. The commentary here, however, was not fleeting, but was the core of plaintiff's argument.

Moreover, while it would have been better for counsel to have objected during the course of the objectionable diatribe, here, as in Szczecina, "when counsel engages in patently inappropriate conduct, such as derisive statements and other invectives aimed at opposing parties, counsel or witnesses, or when there is an inappropriate request to 'send a message,' the trial judge should act before the situation reaches the point at which an unjust result is likely or even possible. Attorneys who engage in this type of conduct risk losing a favorable jury verdict, even if there is no objection." 414 N.J. Super. at 185.

Nonetheless, we do not perceive that the prejudice wrought by counsel for plaintiff Lucyna necessarily infected the verdict obtained by counsel for plaintiff Janusz. The proofs were different in each case, and, more importantly, counsel for plaintiff Janusz made none of the improper comments made by his colleague.

Reversed and remanded for a new trial as to plaintiff Lucyna Jackubowska; affirmed as to plaintiff Janusz Jackubowski.

1 Because their last names are so similar, we refer to the individual plaintiffs by their first names to differentiate between them, where appropriate. We mean no disrespect.

2 Defense counsel explicitly limited his objections to the comments made by Lucyna's counsel, and raised no objection whatever to the closing arguments of Janusz's counsel.