New Jersey’s Appellate Division recently reversed a Bergen County trial court and remanded the matter for a new trial, following a jury verdict in favor of the plaintiff. In the matter of Juan Morales-Hurtado v. Abel Reinoso, a motor vehicle negligence action, the jury returned a verdict in favor of the plaintiff for $50,000 in pain and suffering, plus $71,615.73 for past medical expenses. The jury apportioned plaintiff 20% of fault for the accident. Plaintiff appealed the exclusion of a life care planning expert, but further appealed the verdict because of a number of unduly prejudicial comments and objections made by defense counsel during the course of the trial.
The action was one in which the negligence of the defendant motorist, a minibus driver, was not disputed. At issue were the damages claimed, and whether comparative fault should be attributed to the plaintiff driver, as well. The injuries complained of were several herniations to the lower back in a 28-year-old plaintiff, followed by a surgical intervention involving insertion of a cage device, with screws and rods, into the plaintiff’s lower back. Interested observers will note that a verdict for 80% of $121,615.73 for such an injury, where liability is not contested, is plainly a defense victory.
The commentary by defense counsel that was at issue on appeal pervaded the trial, and much of it was not even objected to. The Appellate Division ruled that such objections were unnecessary in order for it to exercise its discretion. For example, in cross-examining the plaintiff, defense counsel opened with a line of inquiry into the plaintiff’s citizenship status and ability to speak English. The defense attorney asked of plaintiff whether there were other passengers in the car with him, and their ages – and further inquired, of his own client, as to whether other passengers in the plaintiff’s car sued him – despite a ruling by the court that defense counsel could not inquire into whether the other passengers were injured in the accident. The court immediately struck the answer from the record.
Counsel’s cross-examination of the plaintiff’s proffered expert neurosurgeon was similarly problematic. The physician, who brought his file with him to trial, acknowledged that it contained a “draft” expert report on cross-examination. The contents of the report were not discussed, but the Appellate Division noted that it was improper even to begin this line of questioning, insofar as New Jersey’s Court Rules require that reports be submitted to counsel, and the existence of a “draft” report would be misleading to jurors who were unfamiliar with the requirements of discovery in New Jersey. Additionally, the physician was asked about the concept of “secondary gain,” where a patient is noted to make complaints because he feels that those complaints might result in the receipt of monetary compensation – despite no evidence existing anywhere in the record that the plaintiff exhibited secondary gain. Moreover, counsel asked the same physician whether he understood that it was the plaintiff’s lawyer’s job to be his advocate, and not the physician’s.
Additional commentary during opening and summation was discussed by the court, as well as questioning concerning the deployment of airbags in the plaintiff’s vehicle. The Appellate Division adopted and affirmed the holding in Taing v. Braisted (discussed here), that evidence concerning the deployment, or non-deployment, of vehicular airbags is not admissible in the absence of expert testimony.
The court determined that the actions of defense counsel presented a “cumulative effect” on the jury’s determination, and reversed the verdict, remanding the matter for a new trial.Defense attorneys and their clients should take note of this decision. A victory at trial is surely hard-fought – but counsel must make sure that their advocacy does not itself give rise to reversal.
If you have any questions about this case, or want to discuss an issue of New Jersey negligence law, please feel free to contact the author, Tom Emala at email@example.com.