Diaz v. Gormley

• Decision Date: 30 January 2019
• Docket Number: DOCKET NO. A-4449-16T3
• Parties: MERCEDES G. DIAZ and LIBERTO DIAZ, her husband, Plaintiffs-Appellants, v. GERALD GORMLEY, PERFORMANCE FOOD GROUP and/or PERFORMANCE FOOD SERVICE, Defendants-Respondents, and RYDER TRUCK RENTAL, Defendant.
• Court: New Jersey Superior Court — Appellate Division

MERCEDES G. DIAZand LIBERTO DIAZ, her husband, Plaintiffs-Appellants, v. GERALD GORMLEY, PERFORMANCE FOOD GROUPand/or PERFORMANCE FOOD SERVICE, Defendants-Respondents,andRYDER TRUCK RENTAL, Defendant.

DOCKET NO. A-4449-16T3

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION

Submitted October 17, 2018

January 30, 2019

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.

Before Judges Alvarez and Reisner.

On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-0433-15.

McHugh & Imbornone, PA, attorneys for appellants (John F.X. Kennedy and Salvatore Imbornone, Jr., on the brief).

Lester Schwab Katz & Dwyer, LLP, attorneys for respondents (C. Briggs Johnson and Gerald Gunning, on the brief).

PER CURIAM

After a trial solely on the issue of damages, a jury awarded plaintiff Mercedes G. Diaz $3200 for pain and suffering, and $2800 for lost wages. The Law Division judge molded the Employee Retirement Income Security Act of 1974, 29 U.S.C. § 1000 to 1461 (ERISA) lien of $17,588.15 to the verdict. Subsequent to plaintiff's unsuccessful motion for a new trial, the judge sua sponte conducted oral argument on one of plaintiff's disputed medical bills, which she had not allowed plaintiff to present to the jury. Even at that point, plaintiff's counsel could not represent to the court that the bills had been timely and fully disclosed to defendants Gerald Gormley, Ryder Truck Rental, and Performance Food Group. The judge ordered plaintiff's counsel to provide a written accounting so the issue of reimbursement could be revisited at a second jury trial. Ultimately, the parties settled instead of trying the matter. We now affirm the judge's denial of the new trial motion and affirm the jury's verdict.

On appeal, plaintiff raises the following points:

POINT I

THE TRIAL COURT ERRED IN DENYING PLAINTIFF'S MOTION FOR A NEW TRIAL AS DEFENSE COUNSEL'S UNDULY PREJUDICIAL COMMENTS WERE IMPROPER AND UNMISTAKABLY POISONED THE JURY VERDICT, RESULTING IN A MISCARRIAGE OF JUSTICE

POINT II

THE TRIAL COURT HAD AN AFFIRMATIVE DUTY TO INTERVENE DURING SUMMATION AND THE TRIAL COURT'S FAILURE TO DECLARE A MISTRIAL OR GRANT A NEW TRIAL WAS PLAIN ERROR

POINT III

THE CUMULATIVE ERROR DOCTRINE MANDATES THAT PLAINTIFF RECEIVE A NEW TRIAL

POINT IV

THE TRIAL COURT ERRED IN EXCLUDING EVIDENCE OF PLAINTIFF'S VALID ERISA LIEN AND DR. LANE'S UNPAID MEDICAL BILL INCURRED AS A RESULT OF DEFENDANT'S ADMITTED NEGLIGENCE

We address the first three claims of error in combination and set forth the relevant circumstances and quotes in that section. We next address the issue of the exclusion of certain medical bills, plaintiff's point four, and provide the relevant facts in that portion of the opinion gleaned from the transcripts of proceedings.

I.

Plaintiff's new trial motion focused on defendant's allegedly prejudicial opening and closing statements and the judge's exclusion of a $40,000 bill for shoulder surgery and the ERISA lien from the proofs presented to the jury. The Law Division judge ruled that the opening and closing statements were not improper, and therefore not a basis for a new trial, as the "case boiled down very simply to the lack of credibility in the claims that were being asserted by plaintiff." She reviewed some of the testimony in support of her conclusion, noting that plaintiff had significant pre-existing health issues: "complaints of pain in the same body parts that she alleges were injured as a result of the accident." These included plaintiff's pre-existing urinary incontinence, which she alleged was worsened by her accident-related injuries. The judge observed that plaintiff presented "not one shred of paperwork" in support of her lost wages claim, and that defendants' video surveillance depicted plaintiff as "functioning completely normal." Hence the judge considered the jury's verdict reasonable. Because in her view the verdict was not "shockingly inadequate or [a] miscarriage of justice under the law[,]" she did not grant a new trial.

Plaintiff did not object to counsel's opening or closing. Before summations, plaintiff's attorney said he wished to raise a concern regarding theanticipated defense arguments about plaintiff going to "litigation doctors." He said he was not requesting a ruling and never objected afterwards.

Rule 2:10-2 states that on appeal, we will not reverse unless the allegedly plain error was "clearly capable of producing an unjust result." It is presumed that when counsel fails to object, it ordinarily indicates counsel's perception that no harm has been inflicted. See Fertile v. St. Michael's Med. Ctr., 169 N.J. 481, 495 (2001). The absence of an objection suggests that counsel sees no prejudice and has the unfortunate consequence of preventing the trial judge from remedying any possible confusion. Bradford v. Kupper Assocs., 283 N.J. Super. 556, 573-74 (App. Div. 1995). Relief under this rule, at least in civil cases, is discretionary and "should be sparingly employed." Gaido v. Weiser, 115 N.J. 310, 311 (1989) (quoting Ford v. Reichert, 23 N.J. 429, 435 (1957)). We examine the unobjected-to opening and closing statements under the plain error doctrine.

During opening statements, counsel is neither permitted to be excessively argumentative, or to attack the integrity of adverse parties. Szczecina v. P.V. Holding Corp., 414 N.J. Super. 173, 177-78 (App. Div. 2010). Summations must not continue inflammatory attacks on the other side. Id. at 178. As we said in Szczecina, "[t]he fundamental purpose of opening statements is 'to do nomore than inform the jury in a general way of the nature of the action and the basic factual hypothesis projected, so that they may be better prepared to understand the evidence.'" Ibid. (citing Amaru v. Stratton, 209 N.J. Super. 1, 15 (App. Div. 1985)). In addition to being required to be "summary and succinct," an attorney must not state facts which cannot be proven, or make legally inadmissible statements. Ibid. (citing Passaic Valley Sewerage Comm'rs v. George M. Brewster & Son, Inc., 32 N.J. 595, 605 (1960)). It is inappropriate for an attorney to make "derisive statements" about the parties, their attorneys, or their witnesses. Ibid.

Similarly, in summation counsel is prohibited from using disparaging language to discredit the opposing party. Ibid. Attacks upon a defendant's character or his witness's integrity "occupy no rightful place in proper commentary on the evidence and the credibility of testimony." Rodd v. Raritan Radiologic Assocs., P.A., 373 N.J. Super. 154, 171-72 (App. Div. 2004). The "send a message" argument is inappropriate in civil cases, not just criminal. Jackowitz v. Lang, 408 N.J. Super. 495, 508 (App. Div. 2009). As a result, even when "silence is inexplicable[,]" the absence of an objection is not necessarily dispositive of a claim of plain error. T.L. v. Goldberg, 453 N.J. Super. 539, 558-59 (App. Div. 2018).

We quote the relevant sections from defense counsel's opening and closing statements. In opening, counsel said:

Now, unfortunately, at that point, we have a divergence. And I want to point out, yes, there was an accident, but an accident is not an opportunity for financial gain.

. . . .

But as counsel noted to you, it's a week later that she goes to her general practitioner and sees the nurse practitioner, or the physician's assistant, and there's no mention of this accident. . . . but I would submit to you, if you had had an accident which you're now claiming as they sit here now and by bringing this case they're claiming she suffered terrible injuries which have totally impacted her life a week after, you would have told your doctor something about it.

Instead, she then starts going to a doctor on Staten Island. And I think that's something also significant. Why is she going to Staten Island? She lives in Carteret. She works in Carteret. Are there no doctors here in New Jersey to treat her? Instead, she's going over that bridge at 15 bucks a pop to see doctors. And she sees the first doctor in Staten Island on July 2nd. He immediately is ordering scans, tests, different things. And I think when you see all of the evidence and you hear from the experts, you're going to have some questions as to why are you getting those sort of tests, spending that sort of money at that point when it's two weeks after this alleged accident. There was no situation. None of those doctors describe an emergent situation that she immediately needed to have a scan. Did it change the way they handled the treatment of Mrs. Diaz? Not at all.

What I'll submit to you is not too long after the accident, this thing split into two tracks. There's the real track, which is the real doctors who treated Mrs. Diaz, and then there is the litigation track. And that -- those tracks split apart and they've remained split apart, and the litigation track is ending here.

. . . And the key question, and again, it illustrates how things split into two tracks, real treatment and then litigation treatment.

Ms. Diaz was seen on July 12th after the accident -- so that's about three weeks later -- by her urologist Dr. Patel.¹ She had had two procedures already to her bladder before this accident. She's seen in a followup procedure -- one of the procedures was about a month before the accident. So she's seen in followup on July 12th by Dr. Patel. And, again, is there any mention of this terrible automobile crash, this getting hit by a tractor trailer? Is there any mention of any problems, back pain? There's no mention of any problem with her urinary symptoms at that point. It's a completely normal examination.

The first time there is a mention of anything in the regard to a problem that -- a worsening of what -- the problem that she had before is in August of

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