BARBARA WEGNER and RICHARD WEGNER v. NICHOLAS A. DERRICO

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SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-4910-17T2

BARBARA WEGNER and
RICHARD WEGNER,

Plaintiffs-Appellants,

NICHOLAS A. DERRICO and
J AND J DINA TRUCKING,

Defendants-Respondents.
_____________________________

Argued October 18, 2019 – Decided February 28, 2020

Before Judges Ostrer, Vernoia and Susswein.

On appeal from the Superior Court of New Jersey, Law
Division, Middlesex County, Docket No. L-1742-15.

Craig M. Aronow argued the cause for appellants
(Rebenack, Aronow & Mascolo, LLP, attorneys; Craig
M. Aronow, of counsel and on the briefs; Paul M.
Brandenburg and Rachel E. Holt, on the briefs).

John V. Mallon argued the cause for respondents
(Chasan Lamparello Mallon & Cappuzzo, PC,
attorneys; John V. Mallon, of counsel and on the brief;
Ryan J. Gaffney, on the brief).
PER CURIAM

The key factual issue in this auto accident case was who had the green

light. The accident happened shortly before dawn on November 11, 2014, at the

intersection of U.S. Route 130 and County Route 522 in South Brunswick

Township. Defendant Nicholas Derrico was heading south on Route 130.

Plaintiff Barbara Wegner entered the intersection from eastbound Route 522,

intending to turn north after crossing Route 130's southbound lanes. The two

vehicles collided and Wegner suffered significant injuries.

Each party claimed to have the right of way. But, a major controversy at

trial was whether Wegner's medical condition affected her actions. Wegner

argues the court should have barred evidence of her medical history, because

defendants presented no expert opinion to interpret it, and there was no

competent evidence she actually suffered a medical episode. She contends the

court's error led the jury to find her fifty-percent responsible, and Derrico and

the trucking company that employed him, twenty and thirty percent responsible,

respectively. As a result, her $375,000 in damages were halved. 1 We agree the

trial court erred, and reverse and remand for a new trial on liability. We reject

1
The jury awarded Wegner's husband zero damages on his per quod claim. For
convenience, we used "Wegner" to refer to Barbara Wegner.
A-4910-17T2
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Wegner's argument that she and her husband are entitled to a new trial on

damages.

The jury heard from Wegner and Derrico; their respective accident

reconstruction experts; a motor carrier safety expert; two drivers who

approached the intersection on northbound Route 130; and the responding police

officer. Without reviewing the testimony in detail, it is fair to conclude that the

evidence as to who had a green light, and who had red, was far from clear.

Wegner and Derrico were at odds. She testified she stopped at the intersection

with a red light, and proceeded only after it turned green. Derrico said he had a

green light when he approached the intersection and saw Wegner cross his path.

And each third-party witness's testimony was inconsistent with the other's, and

in some respects, with prior statements.

Complicating the jury's fact-finding, the traffic lights could cycle through

as many as four different phases to accommodate multiple turning lanes; but a

phase could be skipped if no vehicle waited to turn.2 In some phases, one

direction of Route 130 had a red light when the opposite had green. So, one

2
A fifth phase could be triggered by oncoming traffic from the east on Fresh
Ponds Road, but the evidence was that road was closed the morning the accident
occurred.
A-4910-17T2
3
could not necessarily conclude that if a northbound witness had a red light,

Derrico did also and not Wegner. The officer opined that Derrico had the right

of way, based in part on a witness's statement that she later clarified. The traffic

reconstruction experts selectively credited witnesses' statements and drew other

inferences from the evidence to reach conclusions that favored their respective

clients. The commercial motor carrier safety expert opined that Derrico and his

employer failed to follow safety and training protocols, including those

pertaining to accident avoidance.

The defense tried to convince the jury that Wegner entered the intersection

against the light because she was suffering a seizure, caused by a medical

condition that she had failed to treat consistently. As disclosed in discovery,

Wegner periodically had stress-induced seizure-like episodes. They were

caused by an assault and head injury she suffered when she was a school bus

driver over fifteen years before the accident. She said it was diagnosed as post-

traumatic stress disorder. During an episode, she experienced "tunnel vision,"

as she called it. She would just stare straight ahead for a minute or two,

restricting her ability to see side to side; she would be unable to concentrate;

and, a pain in the side of her face made it difficult to speak clearly. Her

A-4910-17T2
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neurologist prescribed medicine for it. In deposition, Wegner said her last

episode was in 2010 or 2011, and she never had one while driving a vehicle.

The defense accident reconstruction expert discussed Wegner's medical

history in his report, and postulated that her symptoms described a "focal or

absence seizure." Although he conceded there was no evidence she suffered an

episode before the collision, "with the medical history, it is a factor which must

be considered."

In an in limine motion, Wegner's counsel sought to bar introduction of

Wegner's medical and medication history, and challenged the defense expert's

qualifications to address the matter. The court reserved decision, but barred

mention of the subject in opening statements. 3 The court ultimately ruled on the

motion before Wegner testified near the end of plaintiff's case. The court held

that Wegner's "medical condition and her medications are . . . highly relevant to

this issue of . . . why somebody would pull out in front of a tractor trailer." The

court allowed defendants to inquire not only about her medicine for the seizure-

like condition, but also medicines she took for other conditions. The court held

3
We do not imply that the trial court was obliged to rule on the motion pre -
trial. See State v. Cordero, 438 N.J. Super. 472, 484 (App. Div. 2014)
(disfavoring "in limine rulings on evidence questions," and noting evidence
questions are best addressed in the context of the trial).
A-4910-17T2
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that an expert was not necessary because defendants proposed to use Wegner's

own descriptions of her condition and medications. The court also held that the

defense could, in order to challenge Wegner's credibility, elicit apparent

inconsistencies between Wegner's description of her condition and medication

history in deposition, and records of statements she made to her physician and

in an unrelated municipal court matter.

On direct-examination, Wegner described her history of seizure-like

episodes and her symptoms. She said she was being treated and had not had an

episode in years. On redirect, she explained that the symptoms were triggered

by stress or nervousness; she could feel them coming; and she had no stress or

anxiety the morning of the crash. She also said she had no problems with her

various medications.

On cross-examination, Wegner was confronted with her neurologist's

records, ostensibly to refresh her recollection of statements she made to him.

Although Wegner testified that the documents did not refresh her recollection,

defense counsel – over plaintiff's counsel's objection – repeatedly read aloud

excerpts of the medical records, thereby presenting their content to the jury.

Counsel then asked Wegner about her compliance with her anti-seizure

medicine, as well as her use of other medicines. Defense counsel elicited that

A-4910-17T2
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Wegner had taken two weeks off as sick days during October, a month before

the accident, and she was also out sick on November 10, the day before the

accident, but could not recall why. However, in deposition, she said she had

pneumonia in October. She insisted that she was not sick the morning of the

crash. Defense counsel also elicited that Wegner was arrested multiple times,

and in a municipal court proceeding in 2012, she said that she "zoned out"

because of a traumatic seizure.

Before the start of the defense case, the court emphasized that it had not

yet decided whether the defense expert could testify about Wegner's medical

condition. However, Wegner's counsel stated that, based on the court's decision

to allow questioning on the subject through Wegner, he felt impelled to raise the

subject with the defense expert, to highlight his statement that defendant had no

proof that Wegner's condition caused the accident. On cross-examination,

Wegner's counsel also elicited that the expert had received no education in

medicine or pharmacology, but he did say that he was an emergency medical

technician for nearly twenty years.

To address the suggestion that Wegner had failed to take her medication

as prescribed before the accident, her counsel sought to introduce her pharmacy

A-4910-17T2
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records. He and defense counsel agreed that both the pharmacy records and the

neurologist's records would be introduced into evidence.

Wegner's medical history was the predominant theme of the defense

summation. Using the pharmacy records, counsel noted numerous times during

a multi-year period when Wegner did not timely renew her prescriptions.

Wegner had testified that her physician regularly tested her blood to monitor the

levels of her medicine in her system. Defense counsel noted that Wegner refilled

her prescription twenty days before the accident, but he argued that was more

than ninety days late, based on the previous refill date. Over objection, he

suggested that the twenty days was too soon to build up the medicine in her

system and to achieve its intended effect. The court held that the jury was free

to draw the suggested inference from the evidence.

Defense counsel also highlighted the neurologist's records, which showed

that Wegner went a significant period of time without seeing her neurologist,

although she saw him three times in the year the accident occurred. Defense

counsel also suggested that Wegner's sick days before the accident were

somehow related. He asked the jury, "Why? We don’t know. We don’t know

what's going on, but we do know she had been off the medication for three

months."

A-4910-17T2
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Counsel also noted that one of the records from a visit to the physician ten

months before the accident stated that Wegner feared the onset of symptoms if

she became stressed, and could not calm herself down. Counsel also highlighted

Wegner's statement before the municipal court in 2012. In sum, defense counsel

argued that Wegner ran the red light, and she did so because of her medical

condition and her failure to treat it properly.

II.

We agree with Wegner that the trial court erred in permitting defendants

to reference Wegner's medical history of seizure-like episodes, and her alleged

medication non-compliance. Absent expert opinion, defendants presented

insufficient evidence that she suffered symptoms the morning of the accident,

and such symptoms could have impelled her to run a red light.

We review evidentiary decisions under the abuse of discretion standard.

Estate of Hanges v. Metro. Prop. & Cas. Ins. Co., 202 N.J. 369, 383-84 (2010);

see also State v. Zola, 112 N.J. 384, 414 (1988) (stating "the necessity for . . .

the administration of expert testimony" is within trial court's discretion). "An

abuse of discretion 'arises on demonstration of manifest error or injustice,' . . .

or when there is a 'clear error of judgment.'" Rodriguez v. Wal-Mart Stores,

Inc., 237 N.J. 36, 57 (2019) (quoting Hisenaj v. Kuehner, 194 N.J. 6, 20 (2008)

A-4910-17T2
9
and State v. Brown, 170 N.J. 138, 147 (2001)). An improper evidentiary ruling

will warrant reversal if it is "clearly capable of producing an unjust result."

Manata v. Pereira, 436 N.J. Super. 330, 343-44 (App. Div. 2014) (quoting Green

v. N.J. Mfrs. Ins. Co., 160 N.J. 480, 502 (1999)).

We acknowledge that a driver's medical condition may be relevant to

determining whether he or she negligently operated a vehicle. "[I]n a given

situation it may indicate lack of due care for a person to drive on a public

highway when he is suffering from a disease which he knows, or which a

reasonable person should know, . . . may imperil his control of the vehicle."

Kreis v. Owens, 38 N.J. Super. 148, 154 (App. Div. 1955). Furthermore, "it is

not always possible to prove by direct and specific evidence a person's physical

or mental condition at a particular time." Id. at 152-53. However, circumstantial

evidence of the condition must be timely:

[W]hen such a condition is relevant, the law permits it
to be shown circumstantially by proof of the existence
of the condition before the event in question and
thereafter, so long as the offered proof is within such
reasonable time proximity thereof as to permit a
reasonable inference that it existed at the particular
time.

[Id. at 153 (emphasis added).]

A-4910-17T2
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The evidence of Wegner's last episode was not "within such reasonable

time proximity" to warrant suggesting she suffered an episode immediately

before the accident. Wegner conceded that she told a municipal court in 2012

that she "zoned out" as a result of a traumatic seizure. That was two years before

the accident. In her statements to her physician in 2014, which defendants

introduced, she reported that she had not experienced any episodes. Defense

counsel's suggestion that Wegner may have experienced an episode in October

2014, or the day before the accident – because she was out sick – was based on

nothing but speculation. Notably, Wegner testified that she had pneumonia in

October 2014, and could not recall why she did not go to work the day before

the accident. A party may not prove causation based on "mere speculation."

Kulas v. Public Serv. Elec. & Gas Co., 41 N.J. 311, 318 (1964).

There also was no basis in the evidence for the jury to infer, as defense

counsel encouraged, that Wegner was not fully protected by her medicine the

day of the accident. Even assuming she had been non-compliant in the fall of

2014, she refilled her prescription twenty days before the accident and,

presumably, took the medicine during that period of time. The fact that

Wegner's physician monitored her to assure appropriate levels of the medicine

in her system did not warrant a reasonable inference that she was unprotected

A-4910-17T2
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the day of the accident. How long it took to achieve therapeutic absorption of

Wegner's medicine was outside the ken of the jury and required an expert.

Expert testimony is required if the issue is "so esoteric that jurors of common

judgment and experience cannot form a valid judgment." Butler v. Acme

Markets, Inc., 89 N.J. 270, 283 (1982). In particular, expert testimony is

required to prove causation of a medical condition. Allendorf v. Kaiserman

Enters., 266 N.J. Super. 662, 672 (App. Div. 1993).

Without an expert opinion, and absent other relevant evidence, defendants

should not have been permitted to suggest that Wegner was negatively affected

by her alleged medication non-compliance. In Ratner v. General Motors

Corporation 241 N.J. Super. 197, 204 (App. Div. 1990), the defendant suggested

that the side effects of a hypertension medicine caused the driver-plaintiff to

lose control of her vehicle. Defense counsel was permitted to read from the

Physicians Desk Reference (PDR) a litany of potential side effects of the drug.

Ibid. We held, "[W]ithout an expert opinion, [the PDR] should not have been

admitted here." Id. at 205. We noted that the record included no evidence that

the plaintiff experienced any of the listed side effects. Ibid.

Furthermore, even if Wegner suffered from an episode immediately before

the accident, the evidence was insufficient to enable the jury to conclude – as

A-4910-17T2
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the defense suggested – that her episode caused her to enter an intersection

against a red light. She testified that when she had an episode, she stared ahead

and was unable to concentrate. A jury could not infer, without expert opinion,

that those symptoms prevented her from discerning red from green, or propelled

her to enter an intersection against a light. Defendants were obliged to call an

expert witness, familiar with Wegner's condition, to support such an inference.

We reject defendants' argument that Wegner's medical history was

otherwise admissible to impeach her credibility. In Allendorf, we held that

evidence that the plaintiff had episodes of passing out was admissible to impeach

her credibility, after she testified that she was in perfect health and never blacked

out. 266 N.J. Super. at 674. The error in this case was permitting initial inquiry

about Wegner's medication compliance, the frequency of her doctor visits, and

whether her last episode was in 2012, or 2010 or 2011. That was inadmissible

absent expert opinion. Defendants may not, in the guise of impeachment,

bootstrap the introduction of otherwise inadmissible evidence.

We also reject defendants' invited error argument – that Wegner's counsel

consented to the introduction of her physician's records in return for the

agreement to admit her pharmacy records; and her counsel chose to cross-

examine defendants' expert about Wegner's condition. It is abundantly clear that

A-4910-17T2
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Wegner's counsel took those steps as a result of the trial court's initial error in

permitting the introduction of evidence of Wegner's medical condition and

medication history; and the trial court's error in permitting defense counsel to

present the substance of medical records through Wegner, who did not recall

them. The trial court had "a duty to prevent [the] witness from putting into the

record the contents of an otherwise inadmissible writing under the guise of

refreshing recollection." State v. Caraballo, 330 N.J. Super. 545, 557 (App. Div.

2000).

In sum, we are convinced that the introduction of evidence of Wegner's

medical condition and her alleged medication non-compliance was in error, and

capable of producing an unjust result. Inasmuch as the issue of who ran the red

light was hotly disputed, and defense counsel placed great weight on Wegner's

condition, the evidence may have led the jury to allocate a greater share of fault

to Wegner than it would have done otherwise. Therefore, a new trial on liability

is required.

III.

Wegner contends that she is also entitled to a new trial on damages. We

are unpersuaded. "The scope of the new trial depends on the nature of the

injustice." Ogborne v. Mercer Cemetery Corp., 197 N.J. 448, 462 (2009)

A-4910-17T2
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(quoting Fertile v. St. Michael's Med. Ctr., 169 N.J. 481, 490 (2001)). When

the damages award was not "'tainted' by the error in the liability portion of the

case . . . retrial need not include the issue of damages." Ibid. Wegner has not

shown how the trial errors affected the jury's damages verdict. Therefore, a new

trial on damages is not warranted.

Given our resolution of the above issues, we need not address Wegner's

remaining points on appeal.

Reversed as to liability and remanded for a new trial on liability. Affirmed

as to damages. We do not retain jurisdiction.

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