Hayes v. Delamotte

• Decision Date: 10 January 2018
• Docket Number: A–4 September Term 2016,077819
• Citation: 231 N.J. 373,175 A.3d 953
• Parties: Doreen HAYES, Plaintiff–Appellant, v. Barbara DELAMOTTE, Defendant–Respondent, and GEICO Insurance Company, Defendant.
• Court: New Jersey Supreme Court

231 N.J. 373

175 A.3d 953

Doreen HAYES, Plaintiff–Appellant,

v. Barbara DELAMOTTE, Defendant–Respondent,andGEICO Insurance Company¹ , Defendant.

A–4 September Term 2016

077819

Supreme Court of New Jersey.

Argued September 12, 2017

Decided January 10, 2018

Kimberly L. Gozsa argued the cause for appellant (Levinson Axelrod, attorneys; Kimberly L. Gozsa, on the brief).

Stephen A. Rudolph argued the cause for respondent (Rudolph & Kayal, attorneys; Stephen A. Rudolph, on the brief).

Donald A. Caminiti argued the cause for amicus curiae New Jersey Association for Justice (Breslin & Breslin, attorneys; Donald A. Caminiti and Jessica E. Choper, on the brief).

JUSTICE SOLOMON delivered the opinion of the Court.

Following an automobile accident, plaintiff Doreen Hayes filed a complaint against Barbara Delamotte and the GEICO Insurance Company (collectively, defendants) seeking damages for personal injuries. At the first jury trial, defendants presented, by videotaped deposition, the expert testimony of an orthopedic surgeon who had examined plaintiff. Defendants' expert compared what he described as two different Magnetic Resonance Images (MRIs) of plaintiff's cervical spine, one that he identified as a pre-accident image taken in 2007 and one that he identified as an image taken after the 2008 accident. The doctor also testified, over plaintiff's objection, to the opinions contained in reports of non-testifying physicians.

Although the doctor identified the MRIs he referenced as pre- and post-accident images, the MRIs, which were labeled, bore the same post-accident "Exam Date." The parties did not address the MRI labeling issue at the time of the deposition or during trial. Plaintiff's counsel, however, sought to replay a portion of the videotaped deposition during summation to show that both MRIs bore labels reflecting the same post-accident date. Defense counsel objected. The trial court denied plaintiff's request, reasoning that expert testimony would be necessary to establish that the MRIs in the video were in fact the same.

The trial resulted in a judgment in favor of defendants. Plaintiff moved for a new trial, which was granted by the trial court on the ground that plaintiff "did not receive substantial justice" because "the jury gave greater weight" to the testimony of defendants' expert than to that of plaintiff's expert.

During the second trial, the defense expert testified again via a video deposition taken for use at the second trial. The second trial ended in a jury verdict in favor of plaintiff. Defendant appealed, and the Appellate Division reversed. The appellate panel concluded that the trial court improperly granted plaintiff's motion for a new trial and reinstated the jury's finding from the first trial in favor of defendants.

We now reverse the judgment of the Appellate Division and reinstate the jury's verdict in favor of plaintiff following the second trial. Because the trial court's error in preventing plaintiff from replaying a portion of the deposition during summation at the first trial resulted in a miscarriage of justice, the trial court properly granted plaintiff's motion for a new trial.

I.

A.

We derive the facts pertinent to this appeal from the record of the first trial.

In 2001, prior to the accident and injury at issue, plaintiff was diagnosed with a syrinx, or fluid-filled hole, in her thoracic spine, which caused back, chest, neck, arm, and leg pain. MRIs were taken to monitor the syrinx's growth every six to nine months. That same year, plaintiff suffered a neck injury in an accident, and ultimately underwent surgery for a cervical fusion at her C4–5 and C5–6 vertebrae in 2002. Following that surgery, plaintiff received physical therapy but no other continued treatment. Plaintiff's last MRI, prior to the accident at issue in this case, was taken in May 2007.

In 2008, plaintiff was a front-seat passenger in a vehicle operated by her mother, defendant Barbara Delamotte. The vehicle left the roadway and collided with trees and a telephone pole, allegedly to avoid a collision with an unidentified vehicle. Emergency personnel extracted plaintiff and her mother from their car using the "jaws of life" and transported them to the hospital, where they were treated and released.

After the 2008 accident, plaintiff's family physician provided treatment and ordered a cervical MRI. Because plaintiff's condition did not improve, she consulted a pain management specialist, an orthopedic surgeon, and a neurosurgeon. The neurosurgeon, Dr. Robert Sabo, examined plaintiff, ordered another MRI, and ultimately performed spinal fusion

surgery on plaintiff's C6–7 and C7–T1 vertebrae.

B.

Plaintiff filed a complaint claiming that her mother and the unidentified vehicle caused the 2008 accident. Plaintiff alleged that she sustained permanent injuries in that accident, and her complaint named Delamotte and plaintiff's own insurance carrier, GEICO Insurance Company, with whom plaintiff had uninsured motorist coverage, as defendants, along with "John Doe" defendants connected with the unknown vehicle. Before trial, defendants retained Dr. Arthur Vasen, an orthopedic surgeon, to examine plaintiff and review her medical records, including cervical MRIs taken before and after the 2008 accident. Defendants took Dr. Vasen's videotaped deposition for use at trial rather than call him to give in-court testimony. At trial, plaintiff moved in limine to have portions of Dr. Vasen's deposition referring to reports of non-testifying doctors stricken from the video, arguing that those reports presented opinions on complex medical issues and that plaintiff's counsel was unable to cross-examine those experts. The trial court denied the motion.

At trial, defendants presented Dr. Vasen's videotaped deposition. Prior to playing Dr. Vasen's testimony, the trial court gave the jury a limiting instruction regarding the use of non-testifying experts' opinions. The trial court explained, "I instruct you as the jury in this case you are not to consider any such out of Court statements by any non-testifying experts as substantive proof of the content of those statements."² Dr. Vasen testified that there were no differences between the MRIs purportedly taken on May 4, 2007 (before the accident) and May 17, 2008 (after the accident). However, the films that Dr. Vasen showed in the tape were both labeled May 17, 2008. The parties did not address that issue at Dr. Vasen's deposition or before the close of evidence at trial.

At the conclusion of the parties' evidence, plaintiff's counsel requested the opportunity to replay Dr. Vasen's testimony during summation, and comment on the testimony, to demonstrate to the jury that the doctor compared MRI films marked with the same date.³ Defendant objected to the request. After conducting a N.J.R.E. 104(a) hearing and reviewing Dr. Vasen's videotaped deposition outside the presence of the jury, the trial court upheld defendant's objection to plaintiff's showing and commenting on a part of the doctor's testimony during summation. The judge reasoned that there was no expert testimony from Dr. Vasen, Dr. Sabo, or the radiologist who took the MRIs to differentiate between the films or to evaluate their potential mislabeling.

C.

Prior to the parties' closings, the trial court found that defendants' negligence caused the accident as a matter of law. Based on that finding, the court explained that the jury would have to assess the percentage of fault attributable to plaintiff's mother and the unknown vehicle and to determine whether plaintiff sustained a permanent injury proximately caused by the 2008 accident. In its charge to the jury, the trial court provided an additional limiting instruction as to the reports of non-testifying experts that mirrored its earlier instruction. Ultimately, the jury determined that plaintiff's mother was solely responsible for the 2008 accident but found that plaintiff did not sustain a permanent injury proximately caused by that accident. Therefore, judgment was entered in favor of defendants.

Plaintiff moved for a new trial, arguing that it was reversible error for the court to bar counsel from showing a part of Dr. Vasen's videotaped testimony or commenting on Dr. Vasen's comparison of the MRI films during summation. In assessing plaintiff's argument, the trial court found that its decision to bar the video replay was legally correct. The court reasoned that replaying the testimony would have been prejudicial. Despite those findings, the court granted plaintiff's motion for a new trial, concluding that plaintiff "did not receive substantial justice" because "the jury gave greater weight to Dr. Vasen's testimony than to Dr. Sabo."

Thereafter, a second trial was conducted. Because the first trial resulted in a determination that plaintiff's mother (hereinafter "defendant") was solely responsible for the accident, the second trial concerned only the issue of whether plaintiff sustained a permanent injury as a result of the 2008 accident. Dr. Vasen's videotaped deposition was retaken for use at the second trial. Although Dr. Vasen resolved the issues as to the dates of the MRIs he reviewed, plaintiff once again moved in limine to bar Dr. Vasen's testimony about the findings of non-testifying doctors. This time, the court granted plaintiff's motion in limine, citing Agha v. Feiner, 198 N.J. 50, 965 A.2d 141 (2009), on the ground that the opinions of the non-testifying experts were being used improperly to validate Dr. Vasen's opinions. After the second trial, the jury found that plaintiff sustained a permanent injury proximately caused by the 2008 accident and awarded her $250,000 in damages.

Defendant appealed. The Appellate Division found that the trial court improperly granted a new trial and reinstated the jury's verdict in favor of defendant from the first trial.

The appellate panel noted that "there was no credible evidence or expert testimony in the record that the MRI films were incorrectly...