NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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.
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-3994-17T1
BALDWIN L. DON, a/k/a BALDWIN DON, and SHIRLEY DON, his spouse,
Plaintiffs-Respondents,
v.
EDISON CAR COMPANY, INC., d/b/a VOLVO OF EDISON, a/k/a EDISON CAR CO., INC., RICHARD BRATEMAN, GEORGE LYNK, BONDED OIL COMPANY, LLC, a/k/a BONDED OIL CO. LLC, DAVID A. SOEL, and NEW JERSEY MANUFACTURERS INSURANCE COMPANY,
Defendants,
and
CELE BRATEMAN,
Defendant-Appellant. _____________________________ Submitted February 11, 2019 – Decided May 9, 2019
Before Judges Haas and Mitterhoff.
On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-0680-15.
Connell Foley LLP, attorneys for appellant (Kathleen S. Murphy, of counsel and on the brief).
Davis, Saperstein & Salomon, PC, attorneys for respondents (Christopher T. Karounos, of counsel and on the brief).
PER CURIAM
Defendant Cele Brateman appeals the trial court's April 27, 2018 order
denying her motion for a new trial. The case arises from an August 2013 car
accident in which plaintiff Baldwin L. Don sustained personal injuries.
Defendant asserts that the jury verdict awarding $355,000 in damages to plaintiff
and $45,000 to his wife was excessive, and that the jury was unduly influenced
by the erroneous admission of hearsay testimony regarding a recommendation
for surgery by a non-testifying medical expert. That error, defendant claims,
was compounded by comments made by plaintiff's attorney in opening and
closing statements referring to the surgery. Having reviewed the record and the
governing legal authorities, we conclude that the trial court's evidentiary rulings
allowing plaintiff to testify about a treatment recommendation and his reasons
A-3994-17T1 2 for not pursuing certain courses of treatment based on a hearsay exception was
not an abuse of discretion. In addition, we find that the hypothetical question
posed to the defense medical expert did not violate the rule against the admission
of hearsay opinions as delineated in in James v. Ruiz, 440 N.J. Super. 45 (App.
Div. 2015). Finally, to the extent that counsel's comments in summation
exceeded the purpose for which the evidence was allowed, those comments were
not clearly capable of producing an unjust result, and the verdict was otherwise
supported by the evidence. Accordingly, as more fully explained below, we
affirm.
I.
We glean the following facts from the record. On August 7, 2013,
defendant's vehicle rear-ended a vehicle that then struck plaintiff's vehicle from
the rear. Plaintiff's personal injury action against defendant proceeded to trial
on February 20, 2018. 1 After defendant stipulated liability for the three-car rear
end collision, the matter was tried on the issues of proximate causation and
damages.
1 Although plaintiff's complaint originally named as additional defendants Edison Car Company Inc. d/b/a Volvo of Edison, Richard Brateman, George Lynk, Bonded Oil Company LLC, and David A. Soel, the claims against the foregoing defendants were disposed of on motion. Accordingly, at the time of trial, Cele Brateman was the only remaining defendant. A-3994-17T1 3 During his opening statement, plaintiff's counsel commented on certain
evidence the jury could be expected to hear:
[Plaintiff] will testify, as will the doctors, the pain symptoms he experiences. He will tell you that from August 2013 till now, the chiro [sic] didn't work, the PT didn't work. He had an epidural injection by Dr. Ragukonis, who is a certified--- Board certified pain management specialist. That helped a little bit, it wore off. Okay. He wanted to get more, there was approval issues. He wants to get surgery. He's scared of the surgery, he'll tell you. He wants to get the surgery. He can't get the surgery right now and hasn't been able to for a couple of years because of treatment that he is undergoing for a completely unrelated illness, nothing caused by the accident, but he' taking hormone therapy and different treatments for a cancer that he is suffering from. He still can't get the surgery until that's done. And, even then, the surgery will not – …remove the syrinx.
Defense counsel objected to counsel's reference to surgery, noting that
none of plaintiff's three testifying medical experts had recommended or even
mentioned surgery. In that regard, plaintiff's three medical witnesses had
already testified in de bene esse depositions, and none of the videotaped
testimony made any reference to surgery. Plaintiff's counsel contended that such
testimony was not hearsay as it was not offered for the truth of the matter but
"goes to [plaintiff's] state of mind and his pain and suffering" because after
discussing surgery with his doctors it "weighed on his mind" and "goes to the
A-3994-17T1 4 loss of enjoyment of life." The court sustained the objection but refrained from
instructing the jury to ignore the reference to surgery, believing it would only
serve to highlight the objected-to remarks. The court directed that plaintiff's
counsel should not comment further on the need for surgery further during his
opening statement, but reserved ruling on whether plaintiff himself could testify
about treatment options he was offered but did not pursue.
Opening statements then continued without incident, focusing on the
primary issues in dispute: (1) whether a syrinx 2 shown on plaintiff's MRI was
caused by the accident and (2) whether plaintiff sustained a permanent injury as
a result of the accident. With regard to the second issue, defense counsel argued
that:
In reference to his claim of permanency, I submit to you, ladies and gentlemen, that Mr. Don's treatment for this claimed injuries [sic] do not warrant a finding of permanent injury. Again, he treated chiropractically for a number of months, received one epidural for the complaints of pain he had. And that is the extent of any treatment that Mr. Don has. He has not had any treatment since July if 2017. And that was only three treatments in that year by a chiropractor.
2 A syrinx is defined as "[a] pathologic tubular cavity in the brain or spinal cord with a gliotic lining." Stedmans Medical Dictionary 892430 (Updated Nov. 2014). At trial, Dr. Ragukonis testified that a syrinx is "a fluid filled abnormality within the spinal cord itself." A-3994-17T1 5 Due to scheduling issues, the defense medical expert, Dr. Joseph Dryer,
was taken out of turn resulting in his being the first expert to testify at trial.
Prior to his testimony, on plaintiff's voir dire of Dr. Dryer concerning his
qualifications, Dr. Dryer conceded that he was not a neurosurgeon, that only
neurosurgeons perform surgery on syrinxes, and that he had never operated on
a syrinx. He also admitted that in his forensic work for Examworks he
performed 500 medical evaluations a year on behalf of defendants, earning a
quarter million dollars for that work.
After the trial court nonetheless qualified Dr. Dryer as an expert, Dr. Dryer
testified as to his medical evaluation of plaintiff and his review of the medical
records. Dr. Dryer concluded that plaintiff's neurological and orthopedic
examinations were both normal, and that there was no evidence of a spinal cord
injury. Dr. Dryer did not discover any evidence of acute trauma or injury after
reviewing plaintiff's MRI.
Dr. Dryer conceded that plaintiff's MRI revealed a syrinx in his cervical
spine. He opined that the accident did not cause the syrinx and instead, the
syrinx pre-dated the accident. Underlying this conclusion was the fact that he
found no evidence of a spinal cord injury or spinal cord compression – two
known causes of a syrinx. He also noted that a syrinx generally takes six months
A-3994-17T1 6 after an accident to develop, and "it would be very unusual" to see a syrinx
develop two months after the accident as plaintiff alleged. Ultimately, Dr. Dryer
concluded that "the syrinx has been here for his whole life and it was here before
the accident." For that reason, Dr. Dryer opined that plaintiff did not have a
permanent injury from the car accident.
During cross-examination, plaintiff's counsel asked Dr. Dryer whether he
had reviewed an October 19, 2016 consultation note from Dr. Arginteanu, a
neurosurgeon, to Dr. Ragukonis, plaintiff's pain management doctor. Dr. Dryer
testified that he had. Plaintiff's counsel then began to pose a question which
referenced a recommendation for spinal fusion surgery by Dr. Arginteanu in that
note, which was met by a timely objection by defense counsel. During the
ensuing sidebar, defense counsel argued that the non-testifying expert's
recommendation for surgery was an inadmissible hearsay opinion and that she
would not have the opportunity to cross-examine the declarant. Plaintiff's
counsel proffered that he would ask Dr. Dryer a hypothetical question if, based
on the position of the syrinx, a three-level spinal fusion surgery would be a
treatment option for plaintiff. The trial judge ruled that plaintiff's counsel would
be permitted to ask this question in that generic, hypothetical form.
A-3994-17T1 7 In accordance with the court's ruling, plaintiff's counsel asked the
following hypothetical question:
Q: So Doctor, we were talking about a – a three level spinal fusion. . . . From an orthopedic standpoint, would that be a – a potential surgery that someone with a syrinx in that certain area could receive?
Dr. Dryer, unaware of the court's limitation on testimony about Dr. Arginteanu's
note, asked a question in response.
A: If you can just tell me, I – I looked at the note and it – it – he specified posterior versus anterior. Now if you said posterior, then I – I would disagree.
Q: Only [be]cause you're asking Doctor, hang on one second. Posterior.
A: Yeah, so I disagree with that.
Following Dr. Dryer's testimony, plaintiff presented videotaped de bene esse
depositions of three medical experts: Dr. Kevin C. Yao, a board-certified
neurosurgeon, Dr. Thomas P. Ragukonis, a board-certified pain management
specialist, and Dr. Marc Daniel, a chiropractor. Dr. Yao testified that he had
performed a medical evaluation of plaintiff. Based on his evaluation, Dr. Yao
found that plaintiff reported "no symptomology with regard to neck or back
pain" prior to the car accident, but experienced "various severe neck pain that
failed to respond to the treatment measures such as pain management and
A-3994-17T1 8 chiropractic treatment." After reviewing plaintiff's MRI, Dr. Yao noted that
plaintiff "has discogenic disease in his cervical spine meaning some degree of
disc disease where the discs are not quite normally positioned." Significantly,
Dr. Yao identified a syrinx in plaintiff's spinal cord, which could bring about
symptoms such as severe pain or difficulty moving, and noted that a syrinx could
form as "a direct consequence of having trauma to the spine." Dr. Yao noted
that plaintiff displayed these symptoms.
Dr. Yao opined that plaintiff's syrinx was traumatically induced, and that
plaintiff's discogenic disease predisposed him to having trauma to his spinal
cord. Specifically, Dr. Yao testified that "[i]t seems within a reasonable degree
of medical certainty that [the] syrinx was caused by the trauma from the car
accident."
In addition to opining that plaintiff's syrinx was traumatically induced, Dr.
Yao testified that the syrinx was a permanent injury and that there was no
treatment that a board-certified neurosurgeon could perform to restore plaintiff's
spinal cord back to its original state. Typically, according to Dr. Yao, a syrinx
does not disappear and either remains the same or could worsen and cause
further spinal cord dysfunction, resulting in loss of feeling, loss of strength, loss
of bladder and bowel function.
A-3994-17T1 9 Next the jury heard the videotaped testimony of Dr. Daniels, plaintiff's
treating chiropractor. Dr. Daniels testified that plaintiff presented at this office
two days after the accident with complaints of severe pain. During the
examination, Dr. Daniels observed inflammation in plaintiff's cervical spine, as
well as muscle spasms in his neck and back. He treated plaintiff with ice, gentle
manipulation, heat, electrical muscle stimulation, and flexion distraction
techniques. Dr. Daniels treated plaintiff about three times a week over the next
two months, but plaintiff's pain was not improving with treatment. At that point,
Dr. Daniels decided to refer plaintiff for additional diagnostic tests, including
an MRI, in addition to continuing his treatment protocol.
After Dr. Daniels read plaintiff's MRI, he recommended that plaintiff visit a
neurologist because he had several concerns about the findings on the MRI. He
explained that plaintiff had "a manifestation of shooting pains" and felt it was
"appropriate to get other opinions." Plaintiff continued to be treated by Dr. Daniels
until July 2017, with visits gradually becoming less frequent. Dr. Daniels treated
plaintiff four or five times in 2015, five times in 2016, and three times in 2017. In
Dr. Daniels' opinion, plaintiff had sustained cervical radiculitis, panniculitis or
inflammation affecting the sacrum, herniated disc, and persistent spasm as a result
A-3994-17T1 10 of the August 2013 accident. In Dr. Daniels' opinion, these were permanent injuries.
Moreover, he testified that:
I don't think anything is really going to dramatically improve [plaintiff's] condition. I don't think surgery will be clinically helpful or warranted, for that matter. And I don't think that any more treatment would really be helpful for this individual.
The videotaped testimony of Dr. Ragukonis, a pain management
physician, was then played for the jury. Plaintiff saw Dr. Ragukonis in
December 2014, sixteen months after the accident, after he failed to experience
long-lasting results from his other treatments. As part of his initial evaluation,
Dr. Ragukonis reviewed plaintiff's MRI and noted that plaintiff had a syrinx in
his spinal cord. Dr. Ragukonis initially treated plaintiff with a muscle relaxant
and anti-inflammatories, and ultimately with a surgical epidural injection. In
total, Dr. Ragukonis treated plaintiff six times between December 2014 and
December 2016.
Dr. Ragukonis offered no opinion as to when the syrinx appeared since it
was outside of his area of expertise. He nevertheless concluded that the car
accident was the reason plaintiff developed pain and sought out medical
treatment, and that plaintiff's injuries were permanent.
A-3994-17T1 11 Plaintiff testified about the happening of the accident. He indicated that
his vehicle was at a stop when it was hit from behind with such force that his
vehicle was pushed forward into a median. Plaintiff identified photographs
depicting the damage to his car and the other involved vehicles. Plaintiff
admitted that although he was experiencing pain and stiffness in his back and
neck, he told the police that he did not want to go the hospital. Instead, that
evening, plaintiff attempted to schedule an appointment with Dr. Nichols, his
primary care physician. Plaintiff was unable to schedule an appointment with
Dr. Nichols, so the next day, he saw another doctor at the practice and then went
to see Dr. Daniels, his chiropractor.
Plaintiff also testified that he was examined by three neurosurgeons, Dr.
Yao, Dr. Roy Vingan, and Dr. Marc Arginteanu. Neither Dr. Vingan nor Dr.
Arginteanu testified at trial. On direct examination of plaintiff, he was asked
about treatment options that were discussed with the non-testifying
neurosurgeons.
[Plaintiff's counsel]: Okay. And I don't want to know the specifics of what you discussed with Dr. [Vingan] regarding reading the MRI, but did you discuss potential treatments for your condition with Dr. [Vingan]?
[Plaintiff]: Yes.
A-3994-17T1 12 [Defense counsel]: Objection, Your Honor.
....
[Defense counsel]: He's talking about what a doctor told him, Your Honor.
[The court]: That wasn't the question. It was like did you discuss treatment and he didn't ask what he said. He said did you discuss. [Plaintiff's counsel]: Okay without getting into the specifics of your discussion, what was your understanding of the type of treatment that you were looking for with Dr. [Vingan]? [Defense counsel]: Objection, Your Honor. It's a backdoor. At sidebar, plaintiff's counsel averred that the Dr. Vingan's
recommendation for surgery was only being offered to show the effect on the
listener – whether plaintiff chose to have surgery based on this recommendation
and his reasoning for his choice. Plaintiff's counsel proffered that plaintiff
would "testify that there was other medical conditions that also made [him]
uncomfortable for getting the surgery, but he is not going to say anything about
what those conditions were or even what treatment he was receiving[.]"
Defense counsel maintained that plaintiff's "testimony in reference to a
recommendation by a non-testifying [physician], the fact of what his state of
mind was or what he heard somebody said goes right into the non-testifying
expert's opinion as to whether or not surgery was required or recommended." A-3994-17T1 13 Defense counsel stressed that none of plaintiff's three testifying experts opined
that plaintiff required surgery, and that plaintiff was offering these
recommendations from non-testifying doctors to show the truth of the matter
asserted – that plaintiff required surgery.
The trial court overruled the objection, reasoning:
I already made a determination and [plaintiff] will be able to testify as to what treatment he underwent and that he did not follow one of the treatments and for whatever reasons it is and especially because that goes in conjunction with the testimony of . . . Dr. Daniel, which was the plaintiff's own doctor who indicated that he wouldn't even recommend it because he didn't think it would help or something like that. So, I mean there has been some information about surgery from Dr. Daniel and the impact or lack thereof that it would have on [plaintiff] and I believe that generic application – the generic application is allowable.
In accordance with this ruling, plaintiff testified that after reviewing
plaintiff's MRI. Dr. Vingan recommended that plaintiff receive surgery on his
cervical spine. Plaintiff did not pursue the surgery "because of the risks that
were entailed and the level of pain that [he] was able to endure." Plaintiff also
testified that Dr. Arginteanu, who worked in the same office as Dr. Yao,
recommended surgery on his neck. Plaintiff wanted to pursue the surgery, but
A-3994-17T1 14 did not because he was undergoing treatment for an unrelated medical condition
at that time.
On cross-examination, plaintiff acknowledged that he had no scheduled
appointments for any treatments or surgery for his injuries. He also
acknowledged that his treatment since the accident was limited to three months
of chiropractic treatment three times a week, followed by sporadic visits in 2014,
2015 and 2016, when he underwent an epidural injection, followed by additional
chiropractic treatment in 2017.
On re-direct, plaintiff's counsel asked plaintiff if he wanted to get surgery,
to which plaintiff responded that he did. Plaintiff's counsel then asked if
plaintiff was going to get surgery once he was able, which was met by a timely
objection by defense counsel. At sidebar, the judge ruled that the question was
permissible, but directed plaintiff not to expand on the question because plaintiff
"already gave a response to why he's not able to get [the surgery] right now. "
Accordingly, when plaintiff's counsel repeated the question after the sidebar,
plaintiff testified that he would have the surgery once he was able, but did not
have a surgery scheduled. Over another objection by defense counsel, plaintiff
also testified that he felt like he needed the surgery based on his symptoms.
A-3994-17T1 15 In addition to detailing his treatment history, plaintiff testified about the
impact the accident had on his life. Plaintiff indicated that "every day [he]
wake[s] up with tension headaches that range in pain from a level two to a level
four." He no longer engaged in certain activities that he formerly enjoyed, such
as biking or playing tennis because of the "risk of throwing [his] neck out."
Plaintiff also testified that he was either limited in being or unable to be intimate
with his wife, and that his pain affected the way he traveled and worked. In
sum, plaintiff stated that the pain he felt and the limitations from the syrinx
would impact his life moving forward.
Plaintiff's wife testified that plaintiff was a very active person prior to the
accident, but became less active afterwards. She also indicated that plaintiff
was less social and more fatigued from the pain following the accident.
During summations, defense counsel argued that no doctor had testified
that plaintiff required surgery for his injuries, which was met by an objection by
plaintiff's counsel:
You've heard testimony from plaintiff and plaintiff's wife that there was a recommendation of surgery. I submit to you, ladies and gentlemen that none of the doctors that testified here today, Dr. Yao, never recommended surgery. Dr. Ragakonis, never recommended surgery. Dr. Daniels, plaintiff's chiropractor, in fact, even said here was no surgery that he would recommend nor would it benefit [plaintiff].
A-3994-17T1 16 The only reference you heard from surgery was from the plaintiff and the plaintiff's wife themselves. You never heard from any such doctor who recommended that surgery was to be performed.
[Plaintiff's attorney]: Objection, Your Honor. I loath to object on closing, but we need a sidebar.
During the ensuing sidebar, plaintiff's counsel argued that defense counsel
misrepresented the record because Dr. Dryer testified that he reviewed Dr.
Arginteanu's letter recommending surgery. The trial court directed defense
counsel to clarify to the jury that no testifying doctor had recommend surgery,
and defense counsel did so when she resumed the summation.
Likewise, plaintiff's counsel also addressed plaintiff's need for surgery
during his summation:
[Plaintiff] spoke to three neurosurgeons. He talked to Dr. [Vingan]. . . . He talked to Dr. Arginteanu. He talked to the neurosurgeons, discussed what was going on, did physical therapy, some vitamins, some other meds, okay? Ended up going on some pain killer's all right? Had to stop his activities, some normal activities. Ended up getting actual pain management and an epidural and was confirmed one hundred percent he needs surgery. He wants surgery. There was a time he may have or may not have been able to do it personally but there was [an] issue that stopped it and now for other medical issues he can't for the time being. But when everything gets worked out, okay, he needs surgery.
A-3994-17T1 17 Defense counsel did not object to these comments.
At the conclusion of the trial, the jury found that plaintiff sustained a
permanent injury as a result of the car accident and awarded him $75,000 in
damages for past pain and suffering and $280,000 for future pain and suffering .
The jury also awarded Shirley Don $45,000 for the loss of plaintiff's services
and consortium. On March 15, 2018, the trial court entered an order of judgment
in the aggregate amount of $400,000 plus prejudgment interest.
Defendant moved for a new trial on March 16, 2018, arguing that the trial
court erred in allowing plaintiff and Dr. Dryer to testify about recommendations
for surgery from non-testifying medical experts, as well as allowing plaintiff's
counsel to comment on plaintiff's need for surgery during his opening statement
and summation. Defendant contended that the testimony and comments
prejudiced the jury, and that the verdict was against the weight of the evidence. 3
After holding oral argument on April 27, 2018, the trial court denied
defendant's motion for a new trial in an oral decision. With respect to plaintiff's
testimony relating to recommendation for surgery by non-testifying doctors, the
3 Defendant's motion also alternatively sought remittitur of the damage award. In response, plaintiff filed a cross-motion for additur. The trial court denied both of these motions. Neither party challenges the denial of these motions on appeal. A-3994-17T1 18 trial court reasoned that the testimony was offered to show the effect on the
listener, not the truth of the matter asserted. Additionally, the trial court
concluded that there was sufficient evidence to support the jury's verdict, and
that the verdict did not shock the judicial conscience.
This appeal followed.
II.
On appeal, defendant contends that the trial court "erred in admitting the
finding of a non-testifying medical expert creating reversible error necessitating
the reversal of the jury verdict." Specifically, defendant challenges the
admission of such testimony during the direct examination of plaintiff and the
cross-examination of Dr. Dryer. Defendant also argues that plaintiff's counsel
improperly commented that plaintiff required surgery for his injuries during his
opening statement and summation. Defendant maintains that the cumulative
effect of the testimony and comments tainted the jury and resulted in a verdict
that potentially included the recommendations for future surgery.
We review the denial of a motion for a new trial under the same standard
that bound the trial court. Risko v. Thompson Muller Auto. Grp., Inc., 206 N.J.
506, 522 (2011). We will disturb the trial court's ruling only if "it clearly and
convincingly appears that there was a miscarriage of justice under the law." R.
A-3994-17T1 19 4:49-1(a); see also Risko, 206 N.J. at 521 ("[A] motion for a new trial should be
granted only where to do otherwise would result in a miscarriage of justice
shocking to the conscience of the court." (internal quotation omitted)). A
miscarriage of justice may "arise . . . from manifest lack of inherently credible
evidence to support the finding, obvious overlooking or undervaluation of
crucial evidence, [or] a clearly unjust result." Risko, 206 N.J. at 521 (alterations
in original) (quoting Lindemuth v. Holden, 296 N.J. Super. 42, 48 (App. Div.
1996)). "On a motion for a new trial, all evidence supporting the verdict must
be accepted as true, and all reasonable inferences must be drawn in favor of
upholding the verdict." Boryszewski ex rel. Boryszewski v. Burke, 380 N.J.
Super. 361, 391 (App. Div. 2005).
We also review a trial court's evidentiary rulings under a deferential
standard. "When a trial court admits or excludes evidence, its determination is
'entitled to deference absent a showing of an abuse of discretion, i.e., [that] there
has been a clear error of judgment.'" Griffin v. City of E. Orange, 225 N.J. 400,
413 (2016) (alteration in original) (quoting State v. Brown, 170 N.J. 138, 147
(2001)). "Thus, we will reverse an evidentiary ruling only if it 'was so wide [of]
the mark that a manifest denial of justice resulted.'" Ibid. (quoting Green v. N.J.
Mfrs. Ins. Co., 160 N.J. 480, 492 (1999)).
A-3994-17T1 20 A.
We first turn to defendant's contention that the trial court erred when it
allowed plaintiff to testify that Dr.'s Vingan and Arginteanu had recommended
that plaintiff undergo surgery. It is well established that hearsay is not
admissible at trial unless an exception applies. N.J.R.E. 802. Hearsay requires
three elements: "(1) a 'statement;' (2) 'other than one made by the declarant
while testifying at the [present] trial or hearing;' and (3) offered in evidence for
its truth, i.e., 'to prove the truth of the matter asserted' in the statement ." James
v. Ruiz, 440 N.J. Super. 45, 59 (App. Div. 2015) (alteration in original) (quoting
N.J.R.E. 801(c)).
If the statement is not offered for its truth, then by definition it is not
hearsay. State v. Long, 173 N.J. 138, 152 (2002). Thus, out of court statements
can be admissible not for their truthfulness, but to show a statement's effect o n
the listener. See Carmona v. Resorts Int'l Hotel, Inc., 189 N.J. 354, 376 (2007)
("Where statements are offered, not for the truthfulness of their contents, but
only to show that they were in fact made and that the listener took certain action
as a result thereof, the statements are not deemed inadmissible hearsay."
(quoting Russell v. Rutgers Cmty. Health Plan, 280 N.J. Super. 445, 456-57
(App. Div. 1995))).
A-3994-17T1 21 Therefore, some statements are "not objectionable as hearsay . . . [because
they] are offered to explain plaintiff's actions, and not for the truthfulness of
their content." Jugan v. Pollen, 253 N.J. Super. 123, 136-37 (App. Div. 1992)
(holding that statements made to plaintiff regarding the limitations of his activity
were not hearsay when "offered to prove offered to prove that plaintiff limited
his activity based upon advice given to him."). Such an out-of-court statement,
however, "frequently has an impermissible hearsay aspect as well as a
permissible non-hearsay aspect." Spragg v. Shore Care, 293 N.J. Super. 33, 57
(App. Div. 1996). Thus, "the rule generally is to admit such evidence with a
limiting instruction, unless the probative purpose of the statement is
substantially outweighed by the danger of its improper use." Ibid.
Applying these standards, we conclude that the trial court did not exceed the
bounds of its discretion when it permitted plaintiff to testify about the
recommendations for surgery for the purpose of showing that the statements were in
fact made and that plaintiff took certain actions in response. Even assuming that the
evidence had a hearsay component, when a statement has both an impermissible
hearsay aspect and a permissible non-hearsay aspect, a court should generally "admit
such evidence with a limiting instruction, unless the probative purpose of the
statement is substantially outweighed by the danger of its improper use." Spragg,
A-3994-17T1 22 293 N.J. Super. at 57. Here, the MRI scan finding of a syrinx was undisputed
and the statements did not pertain to the central disputed issue of causation.
Rather, plaintiff simply testified that he was provided with a treatment option
and the reasons he did not pursue the treatment at the time. Although this
testimony suggests that plaintiff required surgery for his injuries, it more
directly goes to the effects of the recommendations on plaintiff – namely, that
he had not yet followed through with surgery because of the risks entailed and
the other treatment he was receiving for an unrelated illness, but that he would
consider undergoing surgery in the future. 4 Defense counsel ably countered this
testimony on cross-examination and closing by pointing out that no surgery was
scheduled.
For these reasons, in the circumstances presented in this case, we find that
the trial court's ruling that plaintiff could testify to the recommendations for
surgery does not amount to "a clear error in judgment" and was not "so wide [of]
the mark that a manifest denial of justice resulted." Griffin, 225 N.J. at 413.
Because we find no abuse of discretion in allowing plaintiff to testify about the
surgical treatment option, plaintiff's counsel's remarks in opening, which
4 To be sure, the trial court could have issued a limiting instruction during plaintiff's testimony, but defendant did not request such a limiting instruction. A-3994-17T1 23 accurately set forth the evidence the jury would hear, were permissible pursuant
to the court's evidentiary ruling and are therefore not a basis to reverse the
verdict.
B.
We next address defendant's contention that the trial court erred in
allowing plaintiff's counsel to elicit testimony from Dr. Dryer about Dr.
Arginteanu's treatment recommendation. Defendant contends that plaintiff's
cross-examination of Dr. Dryer ran afoul of the standards set forth in James v.
Ruiz, 440 N.J. Super. 45, requiring reversal. We disagree.
In James, we held that an attorney may not "question[ ] an expert witness
at a civil trial, either on direct or cross-examination, about whether that
testifying expert's findings are consistent with those of a non-testifying expert
who issued a report in the course of an injured plaintiff's medical treatment" if
"the manifest purpose of those questions is to have the jury consider for their
truth the absent expert's hearsay opinions about complex and disputed matters."
440 N.J. Super. at 51. The plaintiff's expert in James opined that plaintiff's CT
scan showed a disc bulge, whereas the defendant's expert opined that there was
no disc bulge shown on the CT scan. Id. at 71. The opinion of plaintiff's expert
was consistent with that of the interpreting radiologist, who was not testifying
A-3994-17T1 24 at trial. Id. at 71-72. We held that the plaintiff could not ask a medical expert
witnesses whether their reading of the CT scan was consistent or inconsistent
with that of a non-testifying radiologist, thereby utilizing the radiologist's report
as a "tie breaker" on the contested issue of whether plaintiff had disc bulges.
See ibid.
In this case, the question posed to Dr. Dryer did not seek to establish that
his opinion was "consistent" with Dr. Argintineu's opinion; rather it simply
asked whether Dr. Dryer himself felt that a fusion was an appropriate treatment
for a syrinx. Plaintiff's counsel did not attempt to use Dr. Arginteanu's
recommendation to show that Dr. Dryer disregarded relevant facts or to present
Dr. Arginteanu's treatment recommendation as a "tie breaker" between
competing expert opinions. In that regard, there was no "tie" to break: Dr. Yao
testified he did not believe any future treatment by a neurosurgeon would cure
the syrinx, and Dr. Daniels testified that in his opinion plaintiff would not
benefit from surgery.
We thus conclude that the cross-examination of Dr. Dryer did not run
afoul of the standards set forth in James. The trial court correctly ruled that the
hypothetical question that was posed to Dr. Dryer was entirely permissible. See
Townsend v. Pierre, 221 N.J. 36, 58 (2015) ("The use of hypothetical questions
A-3994-17T1 25 in the presentation of expert testimony is permitted by N.J.R.E. 705, provided
that the questions include facts admitted or supported by the evidence." (internal
quotation omitted)). The oblique reference to Dr. Arginteanu's note was
engendered by Dr. Dryer's failure to respond to the leading hypothetical question
with a simple "no." Instead, Dr. Dryer asked a question in response, whether it
was a posterior or anterior fusion. The doctor then answered no, he did not agree
with that. We find no error in the trial court's evidentiary ruling, and the cursory
and indirect reference to the note by Dr. Dryer is not a basis to overturn the
C.
Finally, we address defendant's contention that plaintiff's counsel
impermissibly argued that plaintiff needed surgery for his injuries during
summation. As detailed above, plaintiff's counsel argued in summation that
plaintiff "one hundred" percent needed surgery for his injuries . Defendant
argues that these comments improperly used the challenged hearsay from non -
testifying doctors to support that plaintiff required surgery.
Indisputably, these comments exceeded the purpose for which the trial
court ruled the evidence admissible. Defense counsel, however, did not object
during plaintiff's summation. See DiMaria Const., Inc. v. Interarch, 351 N.J.
A-3994-17T1 26 Super. 558, 570 (App. Div. 2001) (quoting Bradford v. Kupper Assocs., 283 N.J.
Super. 556, 573-74 (App. Div. 1995)) ("The failure to object suggests that
counsel 'perceived no error or prejudice, and, in any event, prevented the trial
judge from remedying any possible confusion in a timely fashion.'").
Accordingly, we review the trial court's failure to strike these comments during
summation for plain error and will reverse only if this failure was "clearly
capable of producing an unjust result." R. 2:10-2.
At the outset, "[a]s a general matter, 'counsel is allowed broad latitude in
summation [and] counsel may draw conclusions even if the inferences that the
jury is asked to make are improbable, perhaps illogical, erroneous or even
absurd.'" Bender v. Adelson, 187 N.J. 411, 431 (2006) (quoting Colucci v.
Oppenheim, 326 N.J. Super. 166, 177 (App. Div. 1999)); see also Model Jury
Charges (Civil), 1.12(c), "Role of the Attorneys (approved Oct. 2009) ("In their
opening statements and in their summations [the attorneys] have given you their
views of the evidence and their arguments in favor of their client’s position.
While you may consider their comments, nothing that the attorneys say is
evidence and their comments are not binding upon you." (emphasis added)).
In this case, defense counsel effectively discredited plaintiff's purported
need for surgery by emphasizing in summation that no testifying doctors had
A-3994-17T1 27 recommended surgery. Although plaintiff's counsel implicitly relied on
inadmissible hearsay when arguing that plaintiff did in fact need surgery, he did
not specifically mention Dr. Vingan or Dr. Arginteanu. In other words, plaintiff
did not directly reference any challenged hearsay to refute defense counsel's
argument that only plaintiff testified that he needed surgery. Considering the
wide latitude provided to attorneys to make arguments during summation, and
mindful that defense counsel's failure to object during summation deprived the
trial judge of the opportunity to remedy any error in a timely fashion, we do not
find that plaintiff's counsel comments rise to the level of plain error.
Moreover, we find that contrary to defense counsel's argument, the
objected-to remarks were not clearly capable of causing the jury to ignore its
duty to render a verdict based on the evidence at trial and not on speculation. In
that regard, with respect to the central disputed issue of causation, the jury had
to resolve the conflicting opinions of Dr. Yao and Dr. Dryer regarding the origin
of plaintiff's syrinx. In summation, plaintiff's counsel emphasized Dr. Yao's
superior qualifications as a board-certified neurosurgeon who is experienced
with performing spinal cord surgeries, and the fact that less than one percent of
his practice was devoted to forensic work. By contrast, Dr. Dryer is a board-
certified orthopedist who is qualified to perform surgeries on the bones around
A-3994-17T1 28 the spinal cord but not on the spinal cord itself, and he conducts roughly 500
defense medical examination annually earning a quarter million dollars for that
work. On this basis, the jury could reasonably find Dr. Yao's testimony more
credible than Dr. Dryer's. Furthermore, because neither Dr. Yao nor Dr. Dryer's
testimony focused on whether plaintiff required surgery, the fleeting comments
in summation regarding plaintiff's need for surgery are unlikely to have
influenced the jury's credibility determinations on these competing experts.
With respect to damages, we likewise find no indication in the record that
the jury impermissibly awarded an excessive damages award based on the fact
the plaintiff was offered surgery for his injuries. In accordance with the model
jury charge, the trial judge instructed the jury: "The plaintiff's claim in this case
does not include any claims for medical expenses. Therefore, in determining
the reasonable amount of damages due to plaintiff, you shall not speculate upon
or include medical expenses as a part of the damages." Model Jury Charges
(Civil), 8.20(c) "Medical Expenses (Auto)" (rev. Jan. 2017). "We presume the
jury followed the court's instructions." State v. Smith, 212 N.J. 365, 409, 54
A.3d 772, 797 (2012) (citing State v. Loftin, 146 N.J. 295, 390 (1996)). Thus,
we presume that the jury did not award damages specifically for future surgical
costs and instead focused on compensating plaintiff for his pain and suffering.
A-3994-17T1 29 In this regard, we uphold the trial judge's finding that the jury's award of
damages does not shock the judicial conscience. The time-unit rule, Rule 1:7-
1(b), permits an attorney to "suggest to the trier of fact, with respect to any
element of damages, that unliquidated damages be calculated on a time -unit
basis without reference to a specific sum." Accordingly, in summation,
plaintiff's counsel pointed out that plaintiff had a life expectancy of 23.9 years,
or 209,364 hours, and asked the jury to use its "collective wisdom [to] com[e]
up with what is the value of one hour of the pain, suffering, loss of enjoyment
of life and issues that [plaintiff] has faced up until now and will fact for the rest
of his life knowing he has that syrinx." When calculated to an hourly rate, the
jury's award of $75,000 for past pain and suffering amounts to $5.63 per hour
for an eight-hour day, 5 and the jury's award of $280,000 for future pain and
suffering equals only $4.01 per hour for an eight-hour day. 6 Viewing the
evidence in the light most favorably to plaintiff, we see no reason to disturb the
5 The date of the accident, August 7, 2013, to the last day of trial February 27, 2018, spans 1665 days. $75,000 ÷ 1,665 days = $45.04 per day. $45.04 ÷ 8 hours = $5.63 per hour. 6 23.9 years life expectancy equals 8,733 days. $280,000 ÷ 8733 days = $32.06 per day. $32.06 ÷ 8 hours = $4.01 per hour. A-3994-17T1 30 trial court's finding that the amount of the award did not shock the judicial
conscience.
D.
In summary, we find no reason to disturb the jury's verdict and affirm the
trial court's denial of defendant's motion for a new trial. To the extent we have
not specifically addressed any remaining arguments raised by defendant, we
conclude they lack sufficient merit to warrant discussion in a written opinion.
R. 2:11-3(e)(1)(E).
Affirmed.
A-3994-17T1 31