Villanueva v. Zimmer

• Decision Date: 21 June 2013
• Citation: 69 A.3d 131,431 N.J.Super. 301
• Parties: Rozelle E. VILLANUEVA, Plaintiff–Appellant, and Jose L. Villanueva, Plaintiff, v. Matthew J. ZIMMER, Defendant, and Carmen Derosa, Defendant–Respondent.
• Court: New Jersey Superior Court

431 N.J.Super. 301

69 A.3d 131

Rozelle E. VILLANUEVA, Plaintiff–Appellant,andJose L. Villanueva, Plaintiff,

v. Matthew J. ZIMMER, Defendant,andCarmen Derosa, Defendant–Respondent.

Superior Court of New Jersey,

Appellate Division.

Argued Nov. 27, 2012.

Decided June 21, 2013.

William L. Gold argued the cause for appellant Rozelle E. Villanueva (Bendit Weinstock, attorneys; Mr. Gold, of counsel; Sherri Davis Fowler, West Orange, on the brief).

James J. Pieper argued the cause for respondent Carmen DeRosa (Litvak & Trifiolis, attorneys; Mr. Pieper, Raritan, on the brief).

Bruce H. Stern argued the cause for amicus curiae New Jersey Association for Justice (Stark & Stark, attorney; Mr. Stern, Lawrenceville, of counsel and on the brief).

Before Judges MESSANO, OSTRER and KENNEDY.

The opinion of the court was delivered by

KENNEDY, J.A.D.

Plaintiff Rozelle A. Villanueva appeals from the entry of judgment for defendant Carmen DeRosa dismissing her personal injury complaint following a jury verdict that plaintiff did not sustain an injury proximately caused by the vehicle collision at issue in this litigation. Prior to trial, the per quod claim of Jose L. Villanueva was dismissed, and summary judgment was entered dismissing the complaint as to defendant Matthew J. Zimmer. Defendant DeRosa stipulated he was liable for the collision, and trial proceeded on the issues of proximate cause of injury and damages.

On appeal, plaintiff argues that

POINT [1] THE COURT BELOW ERRED IN EXCLUDING EVIDENCE OF THE SOCIAL SECURITY ADMINISTRATION'S DETERMINATION THAT PLAINTIFF WAS PERMANENTLY DISABLED AND UNABLE TO WORK.

POINT [2] THE COURT BELOW ERRED IN DISALLOWING THE USE OF THE SOCIAL SECURITY ADMINISTRATION'S DETERMINATION IN THE CROSS–EXAMINATION OF DEFENDANT'S EXPERT WITNESSES.

POINT [3] THE COURT'S INSTRUCTIONS TO THE JURY WERE INADEQUATE WITH RESPECT TO ITS CONSIDERATION OF THE SSA'S DETERMINATION

THAT PLAINTIFF WAS DISABLED AND UNABLE TO WORK.

Having considered these arguments in light of the record and the applicable law, we affirm.

I.

We shall first set forth the facts derived from the trial record. Thereafter, we shall set forth the facts pertaining to the controversy arising from plaintiff's efforts to introduce at trial the Social Security Administration's determination that she was disabled.

A.

On October 28, 2005, plaintiff was driving north on Route 287 in Hanover Township and had stopped due to heavy traffic. Zimmer was stopped in a pickup truck behind plaintiff when DeRosa, driving a van, struck the rear of Zimmer's truck, pushing it into the rear of plaintiff's vehicle. After the accident, plaintiff told the responding State police officer that she was “okay” and drove away from the scene. However, shortly thereafter, plaintiff began to feel sore and went to the emergency room at a local hospital, where she was examined and released. On a follow-up visit to the emergency room, plaintiff complained of difficulty walking and was given crutches.

Approximately four months after the accident, plaintiff began treatment with a chiropractor for back and neck pain. Feeling she was not getting relief, plaintiff was referred to Richard Kaul, M.D., a specialist in “interventional pain and minimally invasive spine surgery.” Kaul opined that plaintiff had bilateral L5/S1 radiculopathy¹ and tears in the intervertebral discs at L4/5 and L5/S1. He treated plaintiff with caudal and epidural steroid injections in her lower back and undertook manipulation of her spine under anesthesia. These treatments afforded plaintiff only temporary relief, however.

Kaul recommended spinal fusion therapy to stabilize plaintiff's spine and relieve her back pain, but plaintiff declined the surgery, claiming she could not afford it. Michael D. Freeman, Ph.D., a forensic epidemiologist, opined that the accident of October 28, 2005, caused plaintiff's injuries.

Plaintiff testified at trial that she did not return to work as a seamstress because of her pain and her inability to perform her job functions. She stated her job required her to stand for long periods, carry bolts of cloth and operate sewing machines with a foot pedal.

Three doctors testified for the defense at trial. Barry Levine, M.D., an orthopedic surgeon, testified that plaintiff was “massively obese” and was 5'5? tall and weighed over 300 pounds at the time of the accident. He stated he found no objective evidence of injuries resulting from the accident and that plaintiff's back problems and complaints of pain were common in overweight individuals. Roger Berg, M.D., a radiologist, stated that plaintiff's Magnetic Resonance Imaging (MRI) films showed no evidence of any herniated discs, annular tears or disc displacement. He added that plaintiff did have age-related disc degeneration. Elliot Grossman, M.D., a neurologist, testified that he found no evidence of any neurologic injury related to the accident.

B.

On June 24, 2007, the Social Security Administration (SSA) issued a four-page “Notice of Award” to plaintiff which stated “[y]ou are entitled to monthly disability benefits” and that “[w]e found that you became disabled under our rules on October 28, 2005.” The notice set forth the amount of the disability payments plaintiff would receive, and explained, “[t]he decisions we made on your claim are based on information you gave us. If this information changes, it could affect your benefits.” The notice also stated, “[d]octors and other trained staff decided that you are disabled under our rules.... [T]his decision must be reviewed at least once every [three] years[,]” and benefits would “end if you are no longer disabled.” However, the notice contained no findings of fact.

Prior to trial, defense counsel raised a number of in limine motions, including, apparently, an objection to plaintiff introducing any evidence or testimony pertaining to the SSA disability determination. The trial judge reserved decision on a number of these motions. Nonetheless, during his opening statement, plaintiff's attorney stated, “Now, as the result of the injuries [plaintiff] can't work. And how do you know she can't work? The Social Security Administration has determined that she is totally disabled [,]” prompting an objection from defense counsel. The trial judge instructed counsel not to say anything further on the subject until she ruled on defendant's motion.

The next day, out of the presence of the jury, the trial judge ruled on defendant's motion to preclude reference to the SSA determination. Plaintiff, relying on Golian v. Golian, 344 N.J.Super. 337, 781 A.2d 1112 (App.Div.2001), argued that the determination creates a rebuttable presumption that plaintiff was disabled and unable to work as a consequence of the accident. The trial judge disagreed and stated, in part:

[The SSA] did not have the benefit of ... the medical reports ... of the defense doctors here. And what this case involves is plaintiff's claim that she suffered a permanent injury as a result of this accident that resulted in her inability to work. Those are the issues that this jury needs to determine based on the evidence presented here, not evidence of a determination that was made by ... [the SSA] that did not have the benefit or the evidence that might have suggested that this disability is not—or was not caused by this accident. That being said so, it cannot come in for the proposition to establish that the plaintiff is presumed to be permanently disabled which is what the plaintiff wants to use this finding for.... What plaintiff needs to establish for this jury is that she did in fact sustain a permanent injury. Plaintiff has the proofs of that contention with the testimony of Dr. Kaul, but it's for this jury to determine whether she does in fact have a permanent injury that was caused by this collision and that resulted in her disability.... [Plaintiff is] allowed to testify that she has not been able to return to work. She has not returned to work. She's been unable to do so.

Plaintiff then argued she should be allowed to use the determination to cross-examine defendant's orthopedic expert, but the trial judge again disagreed and advised counsel that she would not allow through the “back door [what] you can't get in through the front door.”

The trial judge also denied plaintiff's subsequent motion for reconsideration, as well as defendant's motion for a mistrial based on plaintiff's reference to the SSA determination on the opening statement. Counsel did not request a curative instruction.

During his closing argument, defense counsel repeatedly stressed that plaintiff presented no medical testimony that she was unable to work, and stated, “[n]o one but the plaintiff says that she can't work anymore.” He added that plaintiff “freely admits” she never looked for a job after the accident, and did not produce a vocational expert. Before his closing argument, plaintiff's counsel addressed the judge out of the presence of the jury and, referring to the defense closing, stated, “the evidence of [plaintiff's] disability was prevented from coming in in the form of Social Security on the very arguments [defense counsel] just made.” He then requested, “Social Security said she's disabled and that's a finding ... now I need a charge from your honor that says that.”

After hearing argument from both counsel, the trial judge ruled, in pertinent part:

[A]lthough something can be determined to be inadmissible, if a party opens the door, by—unfairly, using either evidence or comments, even in argument, unfairly comments on the evidence such that the door is opened to what would otherwise be inadmissible evidence, the Court has an obligation to recognize as much.

....

[Defense counsel] has chosen to attack the plaintiff's credibility extensively regarding the idea that she's not seeking work for reasons unrelated to a lack of ability to work.

And for that reason, I find the door has been opened for the jury....

I'm going to be very...