NANCY JACOBS v. JERSEY CENTRAL POWER & LIGHT COMPANY
Annotate this CaseNOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-0255-16T3
NANCY JACOBS,
Plaintiff-Respondent,
v.
JERSEY CENTRAL POWER & LIGHT
COMPANY,
Defendant-Appellant.
__________________________________
Argued November 13, 2017 – Decided December 7, 2017
Before Judges Sabatino, Ostrer and Whipple.
On appeal from Superior Court of New Jersey,
Law Division, Ocean County, Docket No. L-
0813-14.
Stephen A. Rudolph argued the cause for
appellant (Rudolph & Kayal, attorneys;
Stephen A. Rudolph, on the briefs).
Roy D. Curnow argued the cause for
respondent (Law Office of Roy D. Curnow,
attorney; Roy D. Curnow and Randall J.
Peach, on the brief).
The opinion of the court was delivered by
SABATINO, P.J.A.D.
In this personal injury case, defendant Jersey Central
Power & Light Company ("JCP&L") appeals on multiple grounds from
the jury verdict in favor of plaintiff and the trial judge's
denial of its motion for a new trial.
Plaintiff, a homeowner, tripped over or stepped in a hole
left behind by a JCP&L employee, who removed a street light that
had fallen at the corner by her home. The employee disconnected
the light, took the pole out of the ground, and rolled up and
placed the leftover wires in the hole containing the base of the
light. He covered the wires with soil, still leaving an
indentation in the ground. He placed an orange safety cone over
the hole, but the cone disappeared within a few days. JCP&L did
not return promptly to repair the light or the hole.
Almost two months later, plaintiff walked out of her home
to get her mail. As she walked on the grassy area, she fell
over or into the hole, injuring her knee and lower back. After
treatments failed to abate her symptoms, plaintiff eventually
had lumbar surgery and knee replacement surgery. She did not
resume employment.
Plaintiff sued JCP&L for medical expenses, lost wages, and
pain and suffering. After a five-day trial in May 2016, the
jury found JCP&L eighty percent negligent and plaintiff twenty
percent negligent. The jury awarded plaintiff $650,000 in
damages, a sum the court molded to take into account her
2 A-0255-16T3
comparative fault. JCP&L moved for a new trial, which the trial
judge denied in a detailed written opinion.
On appeal, JCP&L raises multiple claims of trial error.
Among other things, defendant argues that the court should have
issued a directed verdict for JCP&L on liability because
plaintiff did not present a liability expert on utility industry
standards; plaintiff's orthopedic expert gave improper
testimony; the court incorrectly excluded proof favorable to the
defense; the jury charge was flawed; and the court should have
granted the new trial motion. For reasons that follow, we
affirm.
I.
We summarize the evidence and procedural history pertinent
to the issues raised on appeal. The facts, although disputed in
several respects, are relatively uncomplicated.
The Downed Light Pole and The Resultant Hole
During the evening of April 21, 2012, plaintiff Nancy
Jacobs and Sebastian DeCandia 1 were returning to their home in
Barnegat, when they noticed a streetlight pole had fallen down
on the corner of their property. Plaintiff reported the downed
pole to the local police department. The police dispatcher
1
Jacobs and DeCandia have since married. He is not a co-
plaintiff in this case.
3 A-0255-16T3
contacted the public utility responsible for the streetlight,
JCP&L, to inform it of the situation.
A line troubleshooter employed by JCP&L responded to the
scene the following day, April 22. He disconnected the light,
tested the wires, and removed the pole from the ground. He
rolled up the remaining wire and placed it in the hole. He used
some of the soil around the hole to cover the wires, but without
filling the hole completely. He placed an orange safety cone
temporarily over the hole. The employee testified that he did
not mark the area with white or other paint. According to his
testimony, he does not carry spray paint in his truck.
Nevertheless, according to the homeowners' testimony, the spot
was marked at some point with white paint in the surrounding
grass.
Two days later, when DeCandia and plaintiff were leaving
their home, he noticed that wires were sticking out from under
the cone. DeCandia used a yardstick or ruler to push the wires
back into the hole. With plaintiff's help, he took photographs
of the wires and the hole, using the yardstick or ruler to
measure dimensions. 2 The photos showed the safety cone and the
grass perimeter around a dirt hole marked with white paint.
2
At her deposition, plaintiff could not remember when the photos
specifically were taken, and portions of her responses suggested
a belief the photos were taken after her fall. However, at
4 A-0255-16T3
DeCandia testified, "a couple of days later," the orange
cone "disappeared" from their property. In addition, DeCandia
stated the white paint by the hole had faded about ten days
after it was marked on the grass. According to DeCandia, the
fading of the paint was due both to rain and the mowing of the
lawn.
DeCandia estimated he cut the grass about eight times
between the time the pole fell in April 2012 and plaintiff's
injury in June 2012. When cutting the grass, DeCandia treated
the hole 3 the same as the rest of the lawn. He noticed "[a]
little grass fell in the hole, and the hole kept getting
smaller, and the grass around it kept shrinking in. The hole
kept getting smaller and smaller . . . almost invisible."
A JCP&L employee, known as a Distribution Technical
Supervisor, was responsible for scheduling streetlight repairs
and installations. The supervisor testified that such repair
jobs are scheduled "on a date basis and an area basis," with
priority given to areas that need emergency power restoration.
trial, she acknowledged they had been taken a few days after the
pole fell. In his written decision denying JCP&L's new trial
motion, the judge noted that although there were certain
inconsistencies or ambiguities on this topic within plaintiff's
deposition testimony, defense counsel did not attempt to clear
them up with follow-up questions that might have dispelled the
confusion.
3
At various places in the record and in the trial judge's
opinion, the hole also is described as a "depression."
5 A-0255-16T3
The supervisor noted that although this particular downed light
was located within the geographic area of another JCP&L office,
his own office accepted the repair assignment since it had more
resources available at the time. The supervisor stated that his
office was busy with other projects during that period, although
he acknowledged that plaintiff's property was not "a low
priority job[.]"
The Accident and Plaintiff's Injuries
Nearly two months after the light pole had fallen and still
had not been replaced, plaintiff returned home from work at
approximately 6:30 p.m. on Monday, June 18, 2012. She went
outside to get the mail. She went through the garage, because
the lawn sprinklers were on in the front yard. Still wearing
sneakers from her job in a medical office, plaintiff walked down
the driveway to the sidewalk. She noticed a discarded water
bottle in the grass, and bent down to pick it up.
After plaintiff stood up and took a few steps, her right
foot became stuck in the hole. According to plaintiff, by that
time the grass had "completely grown over the hole," and she did
not notice the hole before stepping into it. As she described
the incident at trial, plaintiff "tried to catch [her]
balance . . . teeter-tottered back and forth, and then [] fell
back" onto her buttocks and back.
6 A-0255-16T3
Plaintiff felt discomfort, and walked back into the house.
DeCandia, who had not seen the accident, went inside and saw
plaintiff sitting in a chair. He asked her, "[W]hat's going
on[?]," to which plaintiff replied, "I fell in that damn hole
out there getting the mail." Plaintiff took a hot bath and
applied ice packs to her back. The couple did not report the
fall to the police, nor to JCP&L.
Plaintiff returned to work the following Monday, June 25.
However, according to plaintiff's testimony, her back began
"hurting more and more. Sitting was getting harder, standing,
everything. It was just . . . getting hard to function. . . .
The pain . . . was increasing."
About a day or so after plaintiff's fall, a JCP&L repair
crew arrived to perform work at the site. The crew discovered
the location was not "mark[ed] out." 4 After ordering a new mark-
out from the subcontractor, JCP&L placed another cone over the
hole on June 28 and sprayed the area with white paint.
4
According to its supervisor, JCP&L uses a subcontractor to
"mark out" areas on which JCP&L employees will perform work on
underground facilities. The mark-out identifies, with flags and
paint, underground gas lines, water lines, and electrical lines,
in order to prevent damage when digging in the area. The mark-
out apparently is distinct from the white paint DeCandia and
plaintiff initially saw on the grass around the hole before it
faded away.
7 A-0255-16T3
Plaintiff's Course of Treatment and Surgery
About two weeks after her fall, plaintiff saw Dr. James
Altamuro, a chiropractor. According to Dr. Altamuro, plaintiff
complained to him of "sharp pain, spasms in the lower right back
and hips and legs," because she "fell in a hole while picking up
a water bottle." She told Dr. Altamuro that "a street lamp was
removed," and that the hole left behind by the corner of her
house had "not been marked."
Dr. Altamuro recalled plaintiff was in "severe pain," and
was "walking in a bent-forward position," and "having a hard
time." He performed an orthopedic evaluation and diagnosed
plaintiff with "disc lumbar myelopathy, sciatica, lumbar strain,
and sacroiliac strain."
Plaintiff again saw Dr. Altamuro two days later, and
reported to him that she was unable to return to work because of
muscle spasms. He recommended that plaintiff undergo an MRI of
her back, which was taken a few days later. After Dr. Altamuro
reviewed the MRI results, he recommended plaintiff see an
orthopedist. Dr. Altamuro continued to treat plaintiff for
about twenty-five sessions, but "she wasn’t doing much better."
In November 2012, Dr. Altamuro noted plaintiff had fallen
on her knee, and was limping, which was delaying the recovery of
her lower back. Plaintiff stated she fell on her knee because
8 A-0255-16T3
her leg gave out. Plaintiff testified that she did not recall
reporting this to Dr. Altamuro; however, the information is
contained in his records. Plaintiff also "complained of a
degradation of her condition," due to the fact she was
performing more physical labor after Superstorm Sandy occurred
in late October 2012. Plaintiff testified that her knee was
"swelling and it was hurting more." She began limping "right
after" the incident, but did not complain of knee pain to a
doctor until later. Dr. Altamuro ultimately referred plaintiff
for an MRI of her right knee in April 2013.
Plaintiff first saw an orthopedist at Seaview Orthopedics
in June 2013, for ongoing problems with her lower back and knee.
In October 2013, plaintiff received an epidural injection in her
spine, which gave her temporary relief in her back. Steroid
injections were applied to her knee. However, the injections
failed to alleviate her pain.
Ultimately, plaintiff underwent a total right knee
replacement in December 2013. Additionally, in May 2014,
plaintiff underwent lumbar fusion surgery on three levels in her
lower back. As of the time of trial in 2016, plaintiff remained
unable to return to work.
Plaintiff testified at trial that she did not recall
previously complaining in February 2009 of back spasms or
9 A-0255-16T3
injury. Plaintiff did recall she had been treated by a
chiropractor around 2005. She also acknowledged that, around
2007, she suffered a strain in her back after tripping over a
"baby gate," and had been treated by Dr. Altamuro at that time
for approximately two weeks.
Dr. Cary Skolnick testified for plaintiff at trial as an
expert in orthopedic surgery. Dr. Skolnick practiced orthopedic
surgery from 1982 to 2006. In 2006, he ceased treating patients
and opened a company that evaluates and prepares reports for
patients in workers' compensation and personal injury cases, as
well as patients seeking a second medical opinion.
Dr. Skolnick examined plaintiff in May 2015, and reviewed
her pertinent medical records. He testified that plaintiff
reported to him that she had previously suffered from back
spasms around 2007, and received chiropractic treatment from Dr.
Altamuro. Dr. Skolnick noted plaintiff had pre-existing
arthritis in her knee, which he stated was not uncommon for a
woman such as plaintiff in her sixties.
Dr. Skolnick concluded that plaintiff's June 2012 fall,
which occurred "with her putting her foot in the hole and
twisting it and falling back," necessitated both her right knee
replacement and spinal surgery. He opined that plaintiff has
suffered permanent injuries as a result of the accident.
10 A-0255-16T3
The defense presented competing medical testimony from Dr.
Jay Bruce Bosniak, an expert in orthopedics and orthopedic
surgery. Dr. Bosniak reviewed plaintiff's medical records and
examined her in August 2015. Based on plaintiff's medical
records, Dr. Bosniak found "there was a considerable amount of
preexisting wear and tear or degenerative arthritic changes
present at her low back, as well as at her knee, all of which
were present well before the accident[.]" Dr. Bosniak testified
on direct examination that "any condition or any injury in the
[plaintiff's] back" is "not associated" with her June 2012 fall.
However, Dr. Bosniak later acknowledged on cross examination
that "the accident on top of her degenerative condition . . .
caused [plaintiff's spinal] problem." He also acknowledged
plaintiff's pre-accident medical records showed no complaints or
treatment relating to her knee. Even so, he opined the
mechanism of this accident was "not nearly enough" to have
produced the need for a total knee replacement.
The Trial and Related Motions
After the close of plaintiff's case in chief, JCP&L moved
for a directed verdict. The defense argued plaintiff's claims
must be dismissed because she had not presented expert opinion
addressing whether JCP&L had adequately secured the location of
the fallen streetlight and whether its delay in repairing the
11 A-0255-16T3
hole was reasonable. In addition, JCP&L argued that because
plaintiff had problems with her knee predating the accident, and
had not pled aggravation of a knee injury in her complaint, her
knee-related claims must be dismissed.
The court denied defendant's motion, ruling that a
liability expert was not necessary in this case, deeming the
reasonableness of defendant's conduct to be a proper subject of
common knowledge. The judge further ruled plaintiff's medical
expert had properly testified regarding an aggravated injury to
her knee.
At the end of the trial, the jury found defendant eighty
percent negligent and plaintiff twenty percent comparatively
negligent, and that both parties were a proximate cause of the
accident. The jury awarded plaintiff $70,000 for medical
expenses, $80,000 for lost income, and $500,000 for pain and
suffering, resulting in a $650,000 total gross verdict for
plaintiff. The verdict was reduced, upon factoring in
plaintiff's comparative negligence.
Defendant filed a motion for a new trial, which the court
denied in a twenty-six-page written opinion. Final judgment was
entered for plaintiff in the sum of $482,487.51, reflecting a
deduction for collateral source income and the addition of
prejudgment interest. This appeal ensued.
12 A-0255-16T3
II.
On appeal, JCP&L variously argues: (1) plaintiff needed a
liability expert to comment on industry standards for securing
downed streetlight locations and about the acceptable time
frames for repairing light pole holes; (2) the court erred in
excluding an office note of a treating physician containing a
description of the accident that allegedly varied materially
from plaintiff's other narratives of the accident; (3) Dr.
Skolnick impermissibly speculated about plaintiff's undocumented
pre-accident injuries; (4) Dr. Skolnick improperly testified his
diagnosis was consistent with the hearsay reports of
radiologists who interpreted plaintiff's MRIs; (5) the court
erroneously disallowed Dr. Bosniak from commenting about Dr.
Skolnick's written report; (6) the court improperly barred the
defense from cross-examining Dr. Skolnick about his forensic
company's finances; (7) the court misadvised the jurors they had
only three options on liability outcomes; (8) the court should
not have issued, sua sponte, a jury charge on aggravation; and
(9) cumulative error.
In considering these arguments, we apply well-established
standards of appellate review. In general, we apply a narrow
scope of review to civil jury verdicts. We ordinarily do not
set them aside and order a new trial unless there has been a
13 A-0255-16T3
proven manifest injustice. See R. 4:49-1; see also Kozma v.
Starbucks Coffee Co.,
412 N.J. Super. 319, 324 (App. Div. 2010);
Boryszewski v. Burke,
380 N.J. Super. 361, 391 (App. Div. 2005),
certif. denied,
186 N.J. 242 (2006).
Most of defendant's contentions on appeal assert the trial
court erred in making evidential rulings. Such rulings to admit
or exclude evidence are generally subject to a wide degree of
discretion. Ordinarily we will not set aside civil verdicts on
this basis unless the court has abused its discretion, including
with respect to issues of the admissibility of expert opinion.
Hisenaj v. Kuehner,
194 N.J. 6, 16 (2008); see also Dinter v.
Sears, Roebuck & Co.,
252 N.J. Super. 84, 92 (App. Div. 1991)
(citations omitted).
Moreover, if an issue was not raised below by a party's
trial counsel, relief is not warranted unless that party
demonstrates plain error by showing on appeal the error was
"clearly capable of producing an unjust result." R. 2:10-2; see
also State v. Macon,
57 N.J. 325, 336 (1971); Ball v. N.J. Bell
Tel. Co.,
207 N.J. Super. 100, 114 (App. Div.) (citing Macon,
supra,
57 N.J. at 337), certif. denied,
104 N.J. 383 (1986).
With respect to defendant's two claims of flaws in the jury
charge, we recognize "the critical importance of accurate and
precise instructions to the jury." Washington v. Perez, 219
14 A-0255-16T
3 N.J. 338, 350-51 (2014). Nonetheless, not all defects in a jury
charge inexorably require a new trial. We must consider the
overall charge as a whole, whether counsel voiced any
contemporaneous objection, see R. 1:7-2, and the likelihood that
the flaw was so serious that it was likely to have produced an
unfair outcome. Viscik v. Fowler Equip. Co.,
173 N.J. 1, 18
(2002); Gaido v. Weiser,
227 N.J. Super. 175, 198-99 (App. Div.
1988), aff'd,
115 N.J. 310 (1989).
As to defendant's argument that its new trial motion was
erroneously denied, we are mindful that a trial court shall not
be reversed on such rulings "unless it clearly appears that
there was a miscarriage of justice under the law." R. 2:10-1;
see also State v. Sims,
65 N.J. 359, 373-74 (1974). "[A] jury
verdict, from the weight of evidence standpoint, is impregnable
unless so distorted and wrong, in the objective and articulated
view of a judge, as to manifest with utmost certainty a plain
miscarriage of justice." Carrino v. Novotny,
78 N.J. 355, 360
(1979) (citations omitted). In making our own determination on
appeal as to whether such a miscarriage of justice occurred, we
accord substantial deference to the trial judge's assessment of
"intangible aspects of the case not transmitted by the written
record." Pressler & Verniero, Current N.J. Court Rules, cmt. 4
on R. 2:10-1 (2018) (citing Dolson v. Anastasia,
55 N.J. 2, 6-8
15 A-0255-16T3
(1969)). Those intangible elements include matters of witness
credibility and demeanor, and the trial judge's "feel of the
case." Ibid.
Lastly, although defendant's appeal in this case mainly
concerns issues that do not raise pure questions of law, we
apply de novo review to such discrete legal issues. Manalapan
Realty L.P. v. Twp. Comm. of Manalapan,
140 N.J. 366, 378
(1995).
Applying these appellate principles to the points raised by
JCP&L, we affirm the judgment for plaintiff, substantially for
the cogent reasons expressed in Judge James Den Uyl's post-trial
written opinion dated August 24, 2016. We add the following
comments and analysis.
A.
JCP&L's first and perhaps most strenuous argument is that
plaintiff was obligated to present an expert witness on
liability opining about industry standards. It asserts the
absence of such expert testimony requires the verdict to be set
aside. The trial judge rejected this argument, and so do we.
For a plaintiff to prevail on a claim of negligence, he or
she must prove "(1) a duty of care; (2) a breach of that duty;
(3) proximate cause; and (4) actual damages." Townsend v.
Pierre,
221 N.J. 36, 51 (2015) (quoting Polzo v. Cty. of Essex,
16 A-0255-16T3
196 N.J. 569, 584 (2008)). A plaintiff must establish each
factor by "competent proof." Ibid.
Competent proof of negligence sometimes may include expert
testimony. As a general matter of evidence law, N.J.R.E. 702
provides that "[i]f scientific, technical, or other specialized
knowledge will assist the trier of fact to understand the
evidence or to determine a fact in issue, a witness qualified as
an expert by knowledge, skill, experience, training, or
education may testify thereto in the form of an opinion or
otherwise." (emphasis added). To be admissible:
(1) the intended testimony must concern a
subject matter that is beyond the ken of the
average juror; (2) the field testified to
must be at a state of the art such that an
expert's testimony could be sufficiently
reliable; and (3) the witness must have
sufficient expertise to offer the intended
testimony.
[Landrigan v. Celotex Corp.,
127 N.J. 404,
413 (1992) (citing State v. Kelly,
97 N.J.
178, 208 (1984)).]
Rule 702 is "permissive," and "[i]n the broadest of terms, if an
issue to be decided by the trier of fact is of such a
specialized nature that the trial court determines that the
proposed expert testimony would assist the trier of fact in
making its determination, then the testimony may be admitted."
Biunno, Weissbard & Zegas, Current N.J. Rules of Evidence, cmt.
1 on N.J.R.E. 702 (2017) (emphasis added). Therefore, expert
17 A-0255-16T3
testimony "should not be permitted unless it concerns a subject
matter that is 'so distinctively related to some science,
profession, business or occupation as to be beyond the ken of
the average layman.'" Ibid. (citing State v. Kelly, supra,
97 N.J. at 208).
As Judge Den Uyl correctly recognized, expert testimony is
not always required to assess whether a particular defendant
acted negligently. Indeed, expert testimony is not necessary
when the jury can understand the concepts in a case "utilizing
common judgment and experience." Campbell v. Hastings,
348 N.J.
Super. 264, 270 (App. Div. 2002) (citation omitted). See also
Mayer v. Once Upon A Rose, Inc.,
429 N.J. Super. 365, 376-77
(App. Div. 2013) (holding that a liability expert on glass was
not needed to opine about the inherent nature of glass to
shatter if a glass vessel is held too tightly).
Basic principles of negligence law routinely call for lay
jurors to evaluate if a defendant's conduct was unreasonable.
Model Jury Charge (Civil), 5.10A, "Negligence and Ordinary Care"
(approved before 1984). Those basic notions of reasonable
behavior do not inexorably require an expert witness to testify
about standards of care, particularly in cases such as this one
that do not involve suit against a licensed professional covered
by the Affidavit of Merit statute,
N.J.S.A. 2A:53A-26 to -29.
18 A-0255-16T3
For instance, in Butler v. Acme Markets, Inc.,
89 N.J. 270,
274 (1982), the Supreme Court considered whether the defendant
grocery store had breached a duty to protect its patrons from
the criminal acts of third parties. The plaintiff had not
presented an expert witness on the subject. Id. at 275, 283.
The Court did not find the omission dispositive, observing
"there is no general rule or policy requiring expert testimony
as to the standard of care." Id. at 283 (emphasis omitted).
Although the Court noted such expert opinion could be "an aid to
a jury," it further stated that "its absence is not fatal."
Ibid. See also Mayer, supra,
429 N.J. Super. at 377 (similarly
observing that a glass expert "might have been helpful, but it
was not essential to plaintiff's case").
By contrast, a liability expert was deemed necessary in
Ford Motor Credit Co., LLC v. Mendola,
427 N.J. Super. 226, 239
(App. Div. 2012). In that case, a lessee brought her car to a
repair shop and then to a car dealership for inspection and
repair, after her "check engine" light had activated. Id. at
233-34. The car's engine seized eleven days after it was
returned to the lessee. Id. at 234. The parties disputed the
cause of the engine seizure. Ibid. We concluded that expert
testimony was necessary to assess whether the repair shop and
dealership had performed their functions negligently. Id. at
19 A-0255-16T3
239. In doing so, we noted that an automobile is a "complex
instrumentality," and that, over time, it has "increased in
mechanical and electronic complexity," thus diminishing the
general public's familiarity with its functioning. Id. at 236-
37. See also Hopkins v. Fox & Lazo Realtors,
132 N.J. 426, 450
(1993) (similarly recognizing that expert testimony is required
for a subject "so esoteric that jurors of common knowledge and
experience cannot form a valid conclusion") (quoting Wyatt ex
rel. Caldwell v. Wyatt,
217 N.J. Super. 580, 591 (App. Div.
1987)).
Here, JCP&L argues that because it is a public utility
company, and heavily regulated by the State of New Jersey and
the Board of Public Utilities, a jury cannot determine on its
own whether the utility's actions and inactions in this case
regarding the hole left on plaintiff's property were negligent.
The trial judge rejected this assertion, noting this case
involves matters of reasonableness and common knowledge.
Defendant has identified "no particular expertise that would be
necessary as in a medical malpractice case to determine whether
there was a deviation from the standard of care." He added,
"The jury can draw their own conclusions. But certainly, there
are facts in the record that would support a reasonable
inference in favor of [] plaintiff on the issue of liability."
20 A-0255-16T3
The JCP&L troubleshooter who removed the downed pole at
plaintiff's property explained to the jurors the steps he
normally takes in responding to a call, noting that he is
expected to make the area safe, by de-energizing the wires,
placing a safety cone, and covering the hole with dirt, if
available. In addition, the JCP&L supervisor explained to the
jurors the utility's procedures for scheduling repairs and
ordering mark-outs, as well as the customary amount of time
taken to respond to incidents.
In light of this testimony, the jury appropriately was
asked to assess whether defendant acted reasonably with respect
to the condition in which it left plaintiff's property after
removing the downed pole. The jury also appropriately was asked
to ponder whether the time that elapsed until the condition was
repaired – approximately two months – was reasonable. These are
subjects within the common knowledge of laypersons and are
capable of being decided by the jury without expert opinion.
Tellingly, although it is highly regulated, JCP&L has not
identified any provision set forth in a statute, regulation, or
industry guideline that specifies a standard of care addressing
5
the specific questions of negligence posed here. JCP&L has
5
We hasten to add that mere compliance with an industry standard
would not necessarily be conclusive proof of reasonable conduct.
See Buccafusco v. Pub. Serv. Elec. & Gas Co., 49 N.J. Super.
21 A-0255-16T3
failed to show that those questions are so esoteric or technical
to be beyond jurors' common notions of reasonableness. Nor did
JCP&L itself proffer a liability expert.
Although electrical power is undoubtedly a complex and
technical subject matter that often would call for expert
insight, plaintiff in this case was not harmed by an electrical
shock or surge. She simply fell into or stumbled upon a hole in
the ground, a hole which the jurors reasonably found to have
been left unattended too long without durable warnings or
barriers.
We therefore affirm the trial judge's decision allowing
plaintiff to proceed to a jury without a liability expert. The
judge rightly left it to the jury's common sense to decide the
negligence issues, based on the evidence and general principles
of reasonable care.6
385, 394 (App. Div.) (noting, specifically in a context
involving a defendant public utility, "[a]dherence to an
industry standard is not necessarily conclusive as to the issue
of negligence and does not of itself absolve the defendant from
liability"), certif. denied,
27 N.J. 74 (1958). As an extreme
hypothetical example, if an industry standard leniently provided
that a utility would not need to repair a hole left on
residential property by a downed pole for, say, up to five
years, a jury might rightly consider that time frame too long to
be objectively reasonable.
6
We do not foreclose the potential need for a liability expert
on utility industry standards in a more complicated case. For
example, such an expert might be necessary if a devastating
storm or widespread power failure in our state had occurred and
22 A-0255-16T3
B.
JCP&L next argues that the trial court wrongfully excluded
proof of an August 27, 2012 office note by an orthopedic
surgeon, Dr. Cary Glastein, which contained a description of the
accident that allegedly varied materially from plaintiff's other
narratives of the accident. In particular, Dr. Glastein's note
states that plaintiff fell on "6/8/12", and that she had
"tripped" when getting her mail "at nighttime." Plaintiff moved
in limine before trial to exclude this note on hearsay and other
grounds.
After conducting a Rule 104 hearing, Judge Den Uyl granted
the motion in limine and excluded the note. The judge found the
note to be inadmissible hearsay, and also that, as to its
probative value, the note "has nothing to do with [Dr.
Glastein's] medical opinion as to her diagnosis or prognosis or
whether or not [her injuries were] causally related." The judge
disallowed the note from being admitted as a prior inconsistent
statement to impeach plaintiff's credibility, noting that its
"marginal relevance" was "clearly outweighed by prejudice under
[N.J.R.E.] 403."
the defendant had asserted a defense of resource allocation for
dealing with the emergency. No such defense was argued in
summation to the jury in this case. And, as we have noted, the
downed pole and plaintiff's accident occurred months before
Superstorm Sandy.
23 A-0255-16T3
We are satisfied the trial judge did not misapply his
discretion in excluding this office note entry. Hisenaj, supra,
194 N.J. at 16. We acknowledge that admission of the note would
not violate the hearsay rules, if it were offered not for its
truth but only for impeachment. See N.J.R.E. 801. In addition,
assuming for sake of discussion there was sufficient
authentication, the note appears to be a business record under
N.J.R.E. 803(c)(6), and statements made by plaintiff within it
would qualify as admissible statements by a party opponent under
N.J.R.E. 803(b)(1).7
Nevertheless, the judge reasonably invoked Rule 403 in
excluding the note after weighing its marginal probative value
against the risks of undue prejudice and juror confusion.
Plaintiff, Dr. Glastein's patient, did not review or confirm the
accuracy of the note the doctor dictated. As Judge Den Uyl
reasonably pointed out, the accident date recorded in the note,
June 8, rather the actual date of June 18, could easily have
been a typographical error. Moreover, even if plaintiff told
7
It is debatable whether the note's recitation of the specific
date of the accident, whether plaintiff "tripped" or "fell", and
whether it was "nighttime" and whether the "lights were out,"
comprise facts that are "reasonably pertinent to [Dr.
Glastein's] diagnosis or treatment" under the separate hearsay
exception at N.J.R.E. 803(c)(4). The judge found that such
information was not reasonably pertinent to diagnosis or
treatment, and thus went beyond the "inception or general
character of the cause or external source" of plaintiff's
injuries admissible under the Rule. Ibid.
24 A-0255-16T3
Dr. Glastein that she "tripped" in the hole rather than
"stepped" or "fell" into it, such a minor difference of
terminology is of little consequence. Likewise, the note
indicating the accident happened at "night" is not manifestly
inconsistent with plaintiff's testimony that she fell at about
6:30 p.m.
On the whole, the judge did not abuse his discretion in
concluding that admission of the note was apt to confuse or
mislead the jury. The evidential ruling caused no manifest
injustice.
C.
JCP&L next argues that plaintiff's medical expert, Dr.
Skolnick, provided improper testimony in several respects. In
particular, JCP&L claims that Dr. Skolnick gave incorrect and
speculative opinions about plaintiff's pre-accident injuries
despite not having written corroboration of them in her pre-
accident medical records, which had been destroyed due to age.
JCP&L also contends that it is entitled to a new trial because
Dr. Skolnick improperly testified that his opinions were
consistent with his review of the records of a non-testifying
radiologist. These arguments are unavailing.
Notably, JCP&L's former counsel failed to object to the
testimony of Dr. Skolnick on these points at trial. Hence, we
25 A-0255-16T3
review these contentions only for plain error. Pursuant to Rule
2:10-2, "[a]ny error or omission shall be disregarded by the
appellate court unless it is of such a nature as to have been
clearly capable of producing an unjust result."
N.J.R.E. 703 requires that an expert's opinion "be grounded
in 'facts or data derived from (1) the expert's personal
observations, or (2) evidence admitted at trial, or (3) data
relied upon by the expert which is not necessarily admissible in
evidence but which is the type of data normally relied upon by
the experts.'" Townsend, supra,
221 N.J. at 53 (quoting Polzo,
supra,
196 N.J. at 583). The evidence rules thereby prohibit
"speculative testimony" from an expert. Id. at 53-55; Koruba v.
American Honda Motor Co.,
396 N.J. Super. 517, 525 (App. Div.
2007), certif. denied,
194 N.J. 272 (2008).
During cross-examination of Dr. Skolnick, the following
colloquy took place:
[Defense Counsel]: In terms of taking the
medical history, you did not inquire [of
plaintiff] as to the severity of the back
spasms, did you?
[Dr. Skolnick]: Which back spasms?
[Defense Counsel]: From the chiropractor
seven years earlier.
[Dr. Skolnick]: I did.
[Defense Counsel]: What did she tell you?
26 A-0255-16T3
[Dr. Skolnick]: She told me she had back
spasms. She went to the chiropractor five
or six times. It got better and it all went
away.
[Defense Counsel]: Did you ask her how often
it flared up?
[Dr. Skolnick]: After that, it did not flare
up?
[Defense Counsel]: Did you ask her how often
it flared up at that time?
[Dr. Skolnick]: It was flared up for a
period of a couple weeks until he treated
her and she got better.
[Defense Counsel]: And did you ask her
whether she had it at all any time prior to
that?
[Dr. Skolnick]: I asked her did you have any
problems with your back prior or after; . .
. And she told me about the two weeks that
she had seven years ago, and I documented
it.
The record confirms that, in his report, Dr. Skolnick made note
of plaintiff's history she had relayed to him. Applying his
medical knowledge to what plaintiff had reported, Dr. Skolnick
concluded plaintiff had previously suffered a temporary back
strain rather than a sprain. Plaintiff reported the back injury
had healed in approximately two weeks' time, whereas, as Dr.
Skolnick commented, "Sprains don't necessarily always heal."
Plaintiff reiterated this history in her own trial testimony.
27 A-0255-16T3
By the time of trial, the records of Dr. Altamuro for this
prior treatment of plaintiff, occurring seven or more years
earlier, had been routinely destroyed. We reject defendant's
contention that the chiropractor's routine destruction of
plaintiff's records renders Dr. Skolnick's testimony about the
prior back condition an inadmissible and speculative net
opinion.
Rule 703 specifically authorizes expert witnesses to
consider "facts or data" from any source reasonably used by
experts in the field, regardless of whether that information is
separately proven by admitted evidence. Dr. Skolnick was
entitled to rely on the history that plaintiff had reported to
him. The jury had an opportunity to consider the credibility of
that undocumented information. Given the absence of defendant's
objection, we detect no error, let alone plain error.
We likewise discern no plain error in the admission of this
snippet of Dr. Skolnick's direct examination:
[Plaintiff's Counsel]: And then, Doctor,
lastly, have you had an opportunity to
review the MRI reports? I believe there are
two lumbar MRI reports – MRI studies and one
study concerning the knee.
[Dr. Skolnick]: That is correct.
[Plaintiff's Counsel]: All right. Doctor,
and without giving us the interpretation by
the radiologist, can you tell us whether or
28 A-0255-16T3
not your opinions are consistent with your
review of those records.
[Dr. Skolnick]: They were.
Defendant contends this exchange represents impermissible
"bootstrap" testimony by Dr. Skolnick, stating his opinions were
consistent with the non-testifying radiologists' hearsay MRI
reports. We agree the exchange comes close to exceeding the
boundaries prescribed by James v. Ruiz,
440 N.J. Super. 45, 66
(App. Div. 2015), in which we held that N.J.R.E. 808 and other
established hearsay principles prohibit a testifying expert from
conveying to the jury, as a "conduit," the complex and disputed
hearsay opinions of a non-testifying expert. We also held in
James that this conduit prohibition "cannot be circumvented in
the guise of questions asking about the 'consistency' or
'inconsistency' of a testifying expert's own opinions with the
hearsay opinions of an expert who does not testify at trial."
Id. at 71.
Even so, we detect no reversible error arising from this
brief passage of Dr. Skolnick's testimony. As we have noted,
defendant's trial counsel did not object to it. The failure to
object "suggests that counsel 'perceived no error or prejudice,
and, in any event, prevented the trial judge from remedying any
possible confusion in a timely fashion.'" DiMaria Const., Inc.
v. Interarch,
351 N.J. Super. 558, 570 (App. Div. 2001) (quoting
29 A-0255-16T3
Bradford v. Kupper Assocs.,
283 N.J. Super. 556, 573-74 (App.
Div. 1995), certif. denied,
144 N.J. 586 (1996)), aff'd,
172 N.J. 182 (2002). The questioning did not reveal the substance
of the MRI reports themselves. Moreover, unlike other
situations where counsel unduly tried to capitalize on the
improperly-admitted consistency testimony, plaintiff's counsel
did not argue to the jury that the findings of the non-
testifying radiologists were "tie-breakers" the jury should rely
upon to resolve the dispute between the parties' competing
experts. James, supra,
440 N.J. Super. at 72.
D.
JCP&L contends that its medical expert Dr. Bosniak should
have been allowed to testify about aspects of Dr. Skolnick's
written expert report discussing plaintiff's prior symptoms.
This particular argument warrants little discussion.
Dr. Bosniak was permitted to testify at length concerning
his opinions about the significance of plaintiff's previous
injuries and treatment, in contrast to the testimony presented
earlier in the trial by Dr. Skolnick. The defense was afforded
an ample opportunity to set forth its position, without delving
into the contents of plaintiff's expert's written report through
the mouth of its own expert. The competing views of the experts
were sufficiently ventilated before the jury, through their
30 A-0255-16T3
respective spoken words on the witness stand. The judge did not
abuse his discretion under Rule 403 to curtail the exploration
of the pretrial expert reports, which were largely repetitive of
the doctors' trial testimony.
E.
JCP&L contends that its trial counsel should have been
permitted to cross-examine Dr. Skolnick about the finances of
the forensic evaluation company he owns, in a further effort to
show his testimony was biased. This point likewise fails to
support reversal.
We recognize "[e]xtensive cross-examination of experts is
generally permitted, subject to reasonably limitations imposed
by the trial court in its discretion." Nowacki v. Cmty. Med.
Ctr.,
279 N.J. Super. 276, 290 (App. Div.), certif. denied,
141 N.J. 95 (1995). "'[T]he scope of cross-examination of a witness
rests in the discretion of the trial' court and a decision to
limit cross-examination will not be disturbed on appeal 'unless
clear error and prejudice are shown.'" Casino Reinvestment Dev.
Auth. v. Lustgarten,
332 N.J. Super. 472, 492 (App. Div.)
(quoting Glenpointe Assocs. v. Twp. of Teaneck,
241 N.J. Super.
37, 54 (App. Div.), certif. denied,
122 N.J. 391 (1990)),
certif. denied,
165 N.J. 607 (2000).
31 A-0255-16T3
The trial judge here did not abuse his discretion in ruling
that defense counsel's desire to probe into the finances of Dr.
Skolnick's company was "getting too far afield," "confusing to
the jury," unduly "prejudicial," and "setting up a sideshow."
The judge also noted that, even if the testimony sought from the
expert had "some marginal relevance," it must be excluded under
N.J.R.E. 403.
A substantial portion of defense counsel's cross-
examination of Dr. Skolnick probed into credibility and bias
issues. Counsel questioned the doctor about his history as a
physician, and the fact that he has not treated patients or
performed surgery since 2006, and now focuses solely on
providing medical evaluations. Moreover, counsel elicited from
Dr. Skolnick that his company's sole purpose is to prepare
medical reports, and approximately eighty percent of the time is
hired by a plaintiff in a lawsuit. Dr. Skolnick was also
questioned about how much his company charged for evaluations,
and how much the company was paid in this particular case, as
well as the company's average monthly charges.
The judge appropriately exercised his discretion in
declining to allow defense counsel to delve further and query
Dr. Skolnick about collateral issues that would get into his
company's tax returns, net profits, and earnings. The judge's
32 A-0255-16T3
observation that such additional queries would taking the jury
"far afield" was well taken.
F.
JCP&L asserts the trial court erred in reading an
aggravation charge to the jury, as there allegedly was no
assertion of an aggravated injury at trial. We discern no such
error.
Our opinion in Edwards v. Walsh,
397 N.J. Super. 567 (App.
Div. 2007), is instructive. In that personal injury case, the
plaintiff suffered from disc herniation in her spine after being
involved in a car accident. Id. at 569. During the trial, the
plaintiff's medical experts testified that the disc herniation
was the result of the accident. Id. at 570. However, the
defendant's medical expert opined that the herniation was the
result of pre-existing degenerative disease. Id. at 570-71.
Based on this testimony, the trial judge elected to read an
aggravation charge to the jury. Id. at 572. On appeal, we held
that the judge did not err in reading the aggravation charge,
because "[a]lthough [the] plaintiff did not raise the issue in
her direct case – indeed, plaintiff denied any pre-existing
injury – defendant raised it in cross-examining[.]" Ibid.
Because the defendant had put the issue of a pre-existing
33 A-0255-16T3
condition "in play," the charge of aggravation was appropriate.
Ibid.
Similar to Edwards, plaintiff in this case did not
initially advance a claim of aggravation. But the defense
injected the issue by attempting to attribute plaintiff's back
and knee problems entirely to pre-existing injuries. For
example, on cross-examination of Dr. Skolnick, defense counsel
questioned him regarding his opinion on plaintiff's treatment
for back spasms that she suffered around 2007. Defense counsel
also brought out on cross-examination that Dr. Skolnick had
noted evidence of degeneration in the MRI reports. Furthermore,
defendant's own medical expert, Dr. Bosniak, testified at length
regarding plaintiff's pre-existing conditions. As Dr. Bosniak
opined, "there was a considerable amount of pre-existing wear
and tear or degenerative arthritic changes present at her low
back, as well as at her knee, all of which were present well
before the accident." Dr. Bosniak concluded that plaintiff's
degeneration, combined with the fall, led to the necessity of
spinal fusion surgery.
These defense efforts to focus on plaintiff's pre-existing
condition "opened the door" to plaintiff countering with an
argument that, to the extent the jury believed her pre-existing
conditions played a role in her pain and her need for surgery,
34 A-0255-16T3
then defendant bears responsibility for causing the aggravation
of those conditions.
Defendant objected during the charge conference to the
court's proposed issuance of an aggravation charge to the jury.
Judge Den Uyl overruled that objection. He instructed the jury
that:
The plaintiff had a degenerative condition
in her spine and also at her knee. However,
with respect to her back, there was more
particular testimony elicited, and that is
the accident aggravated this preexisting
condition of degenerative disease of this –
this pathology in her back. It gave rise to
her back injury and, ultimately, her back
fusion [surgery]. . . . [T]here was
testimony elicited from Dr. Bosniak that
there was a, what we call, an aggravation of
a preexisting disability.
The judge then proceeded to deliver a charge on aggravation that
tracked the Model Charge. Model Jury Charge (Civil), 8:11F,
"Aggravation of the Preexisting Disability" (approved January
1997).
Consistent with our comparable holding in Edwards, this
aggravation instruction was entirely appropriate under the
circumstances.
G.
As another charge issue, JCP&L complains the trial court
erred in instructing the jury about its options for finding
liability, and improperly omitted the option of finding
35 A-0255-16T3
defendant not negligent. Because defense counsel failed to
object to this aspect of the charge at trial, we review the
issue for plain error. R. 2:10-2.
While instructing the jury, the judge stated that defendant
denied that it was negligent, disputed the nature and extent of
the injuries, and further asserted that plaintiff was negligent
and caused her injuries. Moreover, the judge reminded the jury
that the applicable standard of proof was preponderance of the
evidence, and that plaintiff bore the burden of proof of proving
that defendant was negligent, but to the extent defendant
alleged that plaintiff was negligent, defendant bore that burden
of proof.
The judge then instructed the jury on principles of
comparative negligence. The judge noted in this regard that the
jury had "three options in this case." As the judge advised the
jury:
You can find that the – plaintiff was
negligent. You can find the defendant was
negligent. Or you can find that both
parties were negligent. And it's a
situation where if you find that both the
plaintiff and the defendant were negligent
in the proximate cause of the accident where
you get into comparing and you have to
assign percentages.
The judge further explained that "plaintiff has the burden of
proof for . . . the issues of negligence and proximate cause as
36 A-0255-16T3
against the defendant for this accident and also proving
proximate cause to the extent that the accident was the
proximate cause of her injuries." The judge also informed the
jury regarding principles of duty and breach, and instructed
that if the jury determined that defendant took "appropriate
action" to fix the light, the verdict would be in favor of
defendant. In addition, the judge instructed the jury regarding
the burden of proof, and that plaintiff needed to overcome this
burden in order to reach the step of allocating percentages.
When evaluating whether an alleged flaw in a jury trial
compels a new trial, we must consider the charge as a whole.
State v. Simon,
161 N.J. 416, 477 (1999). The alleged error
must be "viewed in the totality of the entire charge, not in
isolation." State v. Chapland,
187 N.J. 275, 289 (2006); see
also Viscik, supra,
173 N.J. at 18.
Here, given the context of the entire jury charge, the
judge did not omit the possibility that the jury could find
defendant not negligent. The "three options" referenced by the
judge, although they were not exhaustive, 8 lacked the capacity to
mislead the jury, in light of the many other appropriate points
of guidance contained in the charge.
8
The fourth option not explicitly mentioned by the judge is that
the jury could find that neither plaintiff nor defendant was
negligent. However, as we have pointed out, that possibility
was surely implicit from the remainder of the charge.
37 A-0255-16T3
H.
Defendant lastly asserts that it is entitled to a new trial
because of the cumulative effect of multiple alleged errors by
the trial court. We disagree.
An appellate court may reverse a trial court's judgment "if
'the cumulative effect of small errors [is] so great as to work
prejudice[.]'" Torres v. Pabon, 225 N.J. 167, 190 (2016)
(quoting Pellicer v. St. Barnabas Hosp.,
200 N.J. 22, 53
(2009)). The cumulative error doctrine provides that where a
court's legal errors "are of such magnitude as to prejudice the
defendant's rights or, in their aggregate have rendered the
trial unfair," a new trial by jury must be granted. State v.
Orecchio,
16 N.J. 125, 129 (1954). Under this doctrine, "when
an individual error or series of errors does not rise to
reversible error, when considered in combination, their
cumulative effect can cast sufficient doubt on a verdict to
require reversal." State v. Jenewicz,
193 N.J. 440, 473 (2008).
Nevertheless, even where a litigant alleges multiple
errors, "the theory of cumulative error will still not apply
where no error was prejudicial and the trial was fair." State
v. Weaver,
219 N.J. 131, 155 (2014). Further, where an
appellate court finds no errors in a trial, a defendant's
invocation of the cumulative error doctrine is of no avail. See
38 A-0255-16T3
State v. Rambo,
401 N.J. Super. 506, 527 (App. Div.), certif.
denied,
197 N.J. 258 (2008).
For the reasons we have already stated, we are unpersuaded
by each of defendant's separate claims of reversible trial
errors. To the contrary, we are impressed from our review of
the transcripts that the trial was fair, and that the judge
deftly supervised the proceedings in a thoughtful and skillful
manner. There were no proven errors, either singularly or in
combination, to warrant a new trial.
Affirmed.
39 A-0255-16T3
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