RAHATJAHN and AKBAR JAHN v. FRANK J. MONTANINO
Annotate this CaseNOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
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SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-3956-15T3
RAHAT JAHN and AKBAR
JAHN,
Plaintiffs-Appellants,
v.
FRANK J. MONTANINO,
Defendant-Respondent.
____________________________
Submitted October 5, 2017 – Decided February 21, 2018
Before Judges Rothstadt and Gooden Brown.
On appeal from Superior County of New
Jersey, Law Division, Middlesex County,
Docket No. L-4658-13.
Garces, Grabler & LeBrocq, PC, attorneys for
appellants (Michelle M. Tullio and Arlindo
B. Araujo, on the brief).
Law Offices of Robert A. Raskas, attorneys
for respondent (Michael J. Kavanagh, on the
brief).
PER CURIAM
In this automobile negligence case, Rahat Jahn and her
husband, Akbar Jahn,1 (collectively plaintiffs), appeal from the
April 6, 2016 judgment of zero damages entered by the Law
Division following a jury trial on damages only, wherein the
jury found Rahat2 did not sustain a permanent injury. We affirm.
We only recite the facts relevant to the issues raised on
appeal, namely, the admissibility of the defense expert's
opinion on permanency3 and the rejection of plaintiffs' proposed
open-ended voir dire question. The underlying automobile
accident occurred on July 22, 2011, and involved vehicles
operated by Rahat and defendant, Frank Montanino. On July 19,
2013, plaintiffs filed a complaint against defendant alleging
economic and non-economic damages.4 After reviewing her medical
records, Francis DeLuca, M.D., F.A.C.S., a defense expert in the
field of orthopaedic surgery, examined Rahat on July 10, 2014.
1
The parties' briefs and Notice of Appeal misspelled
Akbar's name. We will disregard this typographical error and
use the spelling he provided during his testimony.
2
We refer to the Jahns by their first names to avoid any
confusion caused by their common surname. We intend no
disrespect.
3
Because plaintiffs sued for noneconomic damages, the
verbal threshold statute required them to prove permanent
injury. See
N.J.S.A. 39:6A-1.1 to -35.
4
In the complaint, Akbar alleged loss of consortium and
companionship from the injuries to his wife.
2 A-3956-15T3
In his report, Dr. DeLuca found Rahat's "examination to be
normal[,] both orthopaedically and neurologically[,] with no
evidence of any focal neurologic deficit or radiculopathy." Dr.
DeLuca saw "no indication for any further or future treatment or
testing."
Over the course of discovery, Dr. DeLuca furnished five
addendums to his July 10, 2014 report, based on additional
medical records he received and reviewed. In all of the
addendum reports, Dr. DeLuca's opinion "remain[ed] unchanged[,]"
finding Rahat's examination to be "normal." In one addendum
dated October 21, 2014, Dr. DeLuca analyzed Rahat's MRI films
and opined "[t]he cervical and lumbar MRI films show[ed]
evidence of preexisting degenerative changes, unrelated and
unaffected by the subject motor vehicle accident[,]" and showed
"no evidence of any trauma or injury."
On September 14, 2015, six months after his last addendum
report, Dr. DeLuca underwent a de bene esse deposition. During
his testimony, plaintiffs' counsel objected to Dr. DeLuca
offering any expert opinion "as to whether [Rahat's] medical
condition as a result of the car accident [was] permanent or
not." Plaintiffs contended that Dr. DeLuca never gave "an
opinion one way or the other" regarding permanency "in any of
the reports that he issued." Dr. DeLuca clarified that he
3 A-3956-15T3
found, within a reasonable degree of medical certainty, that
"[Rahat] ha[d] a normal examination; entirely normal as related
to this accident. So when somebody has a normal examination,
they have no residual permanency."
Following the deposition, on October 19, 2015, plaintiffs
moved in limine to redact portions of Dr. DeLuca's testimony.
On March 21, 2016, the trial judge heard oral argument on the
motion. In rendering his decision, the judge considered the
surprise and prejudicial effect of admitting Dr. DeLuca's
testimony. In this regard, the judge queried whether it was
plaintiffs'
[P]osition that after having [Dr. DeLuca's]
report since 2014 and seeing his five or six
addendums, all of which . . . continue to
say, "Normal, normal, normal, normal,
normal" . . . she has nothing wrong with her
at all. Is there really a surprise to you
that rises to the level of . . . undue
prejudice at the [de bene esse deposition],
when he adds the next sentence, which is
that, "My opinion is she did not sustain a
permanent injury in this accident[?]"
After plaintiffs' counsel responded affirmatively, the
judge denied plaintiffs' motion, reasoning:
The fact of the matter is the report was
initially issued on July 10 of 2014. Dr.
DeLuca spends two or three pages saying
that, from his perspective, every aspect of
[Rahat] is normal. He talks about it
orthopedically; he talks about it
neurologically . . . . He talks about she
doesn’t need further treatment and he talks
4 A-3956-15T3
about it being normal. The statute does
define "permanent injury" as being . . . an
injury that does not or will not heal to
function normally.
The judge acknowledged that Dr. DeLuca's initial report did
not contain a separate "[o]pinion" section, which the judge
described as "more traditional." However, the judge concluded
that the language in the initial report, coupled with the
repetition of "my opinions remain unchanged" and the examination
was "normal" in all of the addendums, demonstrated that Dr.
DeLuca repeatedly presented his opinion as to permanency and
belied plaintiffs' claims of surprise or prejudice. The judge
explained,
I really don’t think that it can be said
that you were surprised . . . to learn that
his "formal opinion" as you want to deem it
at his [de bene esse deposition], when he
said no permanency, is a surprise in light
of how these reports are worded and what
his, again, "opinions" were in all of his
reports consistently from as early as July
of 2014.
The parties appeared for trial the following day. Before
the jury voir dire, plaintiffs requested that the judge ask the
potential jurors, "[d]o you have an opinion one way or the other
as to whether the extent of property damage to a car is needed
in order to determine whether someone can be injured in a car
accident?" The judge denied the request, reasoning that the
issue was "already . . . covered . . . by the model [jury]
5 A-3956-15T3
charge." The judge explained further, "I think your concerns
are[] also addressed by some of the other questions in their
totality."5
Thereafter, the judge granted plaintiffs' motion for a
directed verdict on the issue of liability, finding "no question
of material fact that would prevent this [c]ourt from granting
summary judgment." A jury trial on damages only was conducted
from March 22 to March 24, 2016. During the final charge to the
jury, tracking Model Jury Charge (Civil), 5.34, "Photographic
Evidence in Motor Vehicle Accidents" (2009), the judge gave the
following instruction:
Now in this case a number of
photographs of . . . the vehicles involved
in the accident . . . show the damages or
depicted condition of the vehicles after the
impact. As judges of the facts, you may
attribute such weight to the photographs as
you deem appropriate, taking into
consideration all the other evidence in this
case.
In some accidents resulting in
extensive vehicle damage, the occupants may
suffer minor injuries or no injuries at all.
In other accidents where there is no or
5
The other questions referred to by the judge are not part
of the record and were not supplied by plaintiffs. We presume
the jurors were asked the Civil Model Jury Selection Questions,
as promulgated by the Directive. See Administrative Directive
#4-07, "Jury Selection — Model Voir Dire Questions Promulgated
by Directive #21-06 — Revised Procedures and Questions" (May 16,
2007),
http://www.judiciary.state.nj.us/directive/2007/dir_04_07.pdf.
6 A-3956-15T3
little apparent vehicle damage, the
occupants may suffer serious injuries. In
reaching your decision in this matter, you
are to give the photographs whatever weight
you deem appropriate . . . in determining
whether [Rahat] sustained injuries as a
result of the accident.
The jury returned a verdict, finding that Rahat failed to
prove by a preponderance of the evidence that she suffered a
permanent injury proximately caused by the accident, and the
judge entered a memorializing judgment from which this appeal is
taken. On appeal, plaintiffs renew their argument that "Dr.
DeLuca failed to opine, one way or the other, as to whether
[Rahat] sustained any permanent injuries from the automobile
accident." They assert they were surprised and prejudiced
"since it was never made known to them, during the course of
discovery, as to his opinion on the ultimate issue of
permanency." They contend the judge erred in denying their
motion to strike the objectionable testimony. We disagree.
We review a trial court's evidentiary rulings under an
abuse of discretion standard. Villaneuva v. Zimmer,
431 N.J.
Super. 301, 310 (App. Div. 2013) (citing Hisenaj v. Kuehner,
194 N.J. 6, 12 (2008)). We will only reverse a trial court's
evidentiary ruling if the decision whether to admit or bar
evidence "was so wide off the mark that a manifest denial of
7 A-3956-15T3
justice resulted." Green v. N.J. Mfrs. Ins. Co.,
160 N.J. 480,
492 (1999) (quoting State v. Carter,
91 N.J. 86, 106 (1982)).
Rule 4:17-4(e) provides, in pertinent part, that a party
utilizing an expert at trial must provide a report containing "a
complete statement of that person[']s opinions and the basis
therefor." When an expert's report is furnished, "the expert's
testimony at trial may be confined to the matters of opinion
reflected in the report." McCalla v. Harnischfeger Corp.,
215 N.J. Super. 160, 171 (App. Div. 1987) (quoting Maurio v. Mereck
Constr. Co., Inc.,
162 N.J. Super. 566, 569 (App. Div. 1978)).
The trial judge has discretion to bar expert testimony on a
subject not covered in the written reports provided in
discovery. Ratner v. Gen. Motors Corp.,
241 N.J. Super. 197,
202 (App. Div. 1990) (citing Nicholl v. Reagan,
208 N.J. Super.
644, 651 (App. Div. 1986)). "Imposition of the sanction of
exclusion of evidence under . . . [Rule] 4:17-4(e) . . . is
always subject to the sound discretion of the trial judge."
Skibinski v. Smith,
206 N.J. Super. 349, 354-55 (App. Div.
1985). In weighing whether to impose or suspend the sanction of
exclusion,
[t]he factors which would "strongly urge"
the trial judge, in the exercise of his
discretion, to suspend the imposition of
sanctions, are (1) the absence of a design
to mislead, (2) absence of the element of
surprise if the evidence is admitted, and
8 A-3956-15T3
(3) absence of prejudice which would result
from the admission of the evidence.
[Ratner,
241 N.J. Super. at 202 (quoting
Westphal v. Guarino,
163 N.J. Super. 139,
145-46 (App. Div.), aff’d o.b.,
78 N.J. 308
(1978)).]
In Ratner, we permitted testimony not contained in the
expert's report after applying these factors. Id. at 202.
Although the evidence was unquestionably a surprise, we
determined the preclusion of the testimony would have resulted
in a denial of justice and reversed the trial court's decision
barring it. See id. at 202-07.
A court should only bar expert testimony when it is
entirely distinct from the facts and conclusions in the report.
See Mauro v. Owens-Corning Fiberglas Corp.,
225 N.J. Super. 196,
206 (App. Div. 1988), aff’d sub nom. Mauro v. Raymark Indus.,
Inc.,
116 N.J. 126 (1989). In Mauro, the expert testified to
statistics and data to support his findings of the plaintiff's
enhanced medical risk without including them in his report.
Ibid. The trial court barred the testimony, and we affirmed,
finding that allowing the testimony to be introduced at trial
surprised and prejudiced the plaintiff. Ibid.
However, even an intent to mislead or surprise the opposing
party can be negated by the expert's availability for a pretrial
deposition. See Congiusti v. Ingersoll-Rand Co., Inc., 306 N.J.
9 A-3956-15T
3 Super. 126, 133 (App. Div. 1997). In Congiusti, although it
found the expert's testimony went beyond the scope of his
report, the trial court admitted the testimony because it
determined there was no prejudicial effect. Ibid. We agreed
and affirmed, "especially as plaintiffs chose not to depose the
witnesses to flesh out any questions they may have had
concerning the . . . opinions expressed in the reports." Ibid.
Here, we discern no abuse of discretion by the judge in
permitting Dr. DeLuca to testify to permanency. The only
difference between Dr. DeLuca's reports and his de bene esse
deposition testimony was that he explicitly used the term
"permanency" during the latter. These circumstances are
entirely distinguishable from cases like Mauro, where the expert
introduced statistics and data at trial that were not in his
reports. Plaintiffs in this case cannot seriously contend they
were surprised to hear Dr. DeLuca testify that he found no
permanent injury after they were given reports where he
repeatedly used the word "normal" to describe Rahat's condition.
Next, plaintiffs contend that the exclusion of their
proposed open-ended voir dire question "unduly influenced the
[jury's] finding of no permanent injury." Plaintiffs assert
that the question would have "eliminated the existence of a
disqualifying state of mind to allow for intelligent exercise of
10 A-3956-15T3
preemptory challenges," and "[b]y disallowing the question," the
judge "did not adequately probe the possibility of prejudice"
and thereby abused his discretion. We disagree.
"Voir dire examination serves the dual purposes of enabling
the court to select an impartial jury and assisting counsel in
exercising peremptory challenges." Mu'Min v. Virginia,
500 U.S. 415, 431 (1991). Trial judges control the scope of the voir
dire inquiry, which is left "to the sound discretion of the
trial judge who should balance the plaintiff's claim of need and
the basis therefor against the possibility of prejudice to the
defendant." Roman v. Mitchell,
82 N.J. 336, 348-49 (1980); R.
1:8-3. As such, we accord deference to the trial court's
determination under the abuse of discretion standard. Roman,
82 N.J. at 348-49; State v. Simon,
161 N.J. 416, 466 (1999)
(holding that a judge's decisions during voir dire will not be
reversed, absent abuse of discretion).
Here, we note that there is no argument or indication that
the judge failed to adhere to Directive #4-07 by asking each
juror at least three open-ended questions that required answers
in narrative form. See Administrative Directive #4-07, "Jury
Selection — Model Voir Dire Questions Promulgated by Directive
#21-06 — Revised Procedures and Questions" (May 16, 2007),
http://www.judiciary.state.nj.us/directive/2007/dir_04_07.pdf.
11 A-3956-15T3
Indeed, the purpose of the Directive "is to empanel a jury
without bias, prejudice or unfairness." Gonzalez v. Silver,
407 N.J. Super. 576, 596 (App. Div. 2009) (citing State v. Morales,
390 N.J. Super. 470, 472 (App. Div. 2007)).
Instead, the judge here rejected plaintiffs' proposed
additional open-ended voir dire question as redundant, after
considering the other questions as well as the jury instruction,
Model Jury Charge (Civil), 5.34, "Photographic Evidence in Motor
Vehicle Accidents" (2009), both of which expressly addressed the
issue of the correlation between the extent of property damage
to a car and injury sustained in a car accident. We discern no
abuse of discretion in the judge's determination.
Affirmed.
12 A-3956-15T3
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