NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-2302-15T4
CHRISTIAN ANGELES,
Plaintiff-Respondent/ Cross-Appellant,
v.
CARMEN I. NIEVES,
Defendant-Appellant/ Cross-Respondent.
_______________________________
Argued October 24, 2017 – Decided June 28, 2018
Before Judges Carroll and Leone.
On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-5685-13.
Brian G. Steller argued the cause for appellant/cross-respondent (Connell Foley, LLP, attorneys; Brian G. Steller, of counsel and on the briefs).
Steven P. Haddad argued the cause for respondent/cross-appellant (Haddad Law Offices, attorneys; Steven P. Haddad, of counsel and on the brief; Nehal Modi, on the brief).
PER CURIAM After an auto accident, a jury found defendant Carmen I.
Nieves liable and awarded plaintiff Christian Angeles a $3,000,000
judgment. Both parties appeal from a December 31, 2015 order.
Defendant appeals the order's denial of her motion for a new trial.
Plaintiff cross-appeals from the order's grant of a remittitur
reducing the judgment to $1,100,000. We reverse the order denying
a new trial, vacate the order granting the remittitur, and remand
for a new trial.
I.
Plaintiff testified that, on September 23, 2011, he was
driving his two-door car on a two-lane avenue a block from his
house in Perth Amboy when defendant, on a street with a stop sign,
drove into the intersection and struck the passenger side of his
car.1 Photos showed a dent on the passenger door of plaintiff's
car, and scratches on the front of defendant's car.
Plaintiff testified as follows. The impact pushed his car
across the street, onto the sidewalk, and into a fence, causing
his body to hit the driver's door. Plaintiff called the police,
but did not request an ambulance or emergency treatment. Plaintiff
drove home.
1 Defendant testified she stopped, looked both ways, and proceeded into the intersection at 5 m.p.h.
2 A-2302-15T4 Plaintiff felt "some pain, a little bit of pain," in his
neck, shoulder, and back. He went home and took a pill. The pain
went away but returned when the medicine wore off. Two weeks
later, when he could not take the pain anymore, he called a
chiropractor. When the pain worsened, plaintiff went to the
emergency room, where he was given medicine and crutches.
From October 17 to December 14, 2011, plaintiff received
eleven chiropractic treatments with massages. From November 11,
2011, to June 8, 2012, he received twenty-one acupuncture
treatments. On December 1, 2011, plaintiff went to a pain
management specialist, Dr. Amit Poonia, who diagnosed him with
pain, sprains/strains, radiculopathy, and disc displacement,
prescribed medication, and gave him three epidural injections on
March 16, April 13, and May 11, 2012, which enabled him to walk
without crutches. In June 2012, plaintiff consulted with Dr. Carl
Giordano, who recommended surgery. Plaintiff did not get surgery
or seek any more medical treatment before the September 2015 trial.
Dr. Giordano testified the accident caused a herniated L3-L4
disc and a disc protrusion at L4-L5. He recommended a micro-
discectomy. Plaintiff's expert, Dr. Wayne King, testified the
accident caused herniated discs at L3-L4, L4-L5, and L5-S1. King
also recommended surgery. Defendant's expert, Dr. Joseph Dryer,
testified the herniated discs were due to degeneration.
3 A-2302-15T4 Plaintiff testified as follows. Although his neck and
shoulders improved, his pain in his lower back remained "between
9 and 10" on a scale of ten, and he still had pain in his leg and
could not put much weight on it. "[A]fter the accident my life
changed a lot because I have to stay home permanently because my
back hurts a lot."
My life has changed 75 percent. I cannot sit for a long period of time. I am a truck driver and I cannot work the same way I did before. . . . I cannot run. I cannot jump. . . . I cannot kneel . . . . I cannot even drive – well, if I ever drive it has to be on [pills] and it is with a great deal of pain.
Plaintiff testified he could not coach his kids in basketball,
he could not take them to see the Pope during the papal visit, and
he had problems during sex. Plaintiff's wife testified similarly,
and added that plaintiff no longer did yard work, and couldn't
play with the children.
Plaintiff filed his complaint in September 2013. After a
four-day trial, the six jurors unanimously issued its verdict on
September 30, 2015. The jury found that: plaintiff did not drive
negligently; defendant drove negligently; defendant caused the
collision; plaintiff sustained at least one permanent injury as a
result; and the sum of money which would compensate him for his
4 A-2302-15T4 pain, suffering, disability, impairment, and loss of enjoyment of
life was $3,000,000.
Defendant filed a motion for new trial and/or remittitur.
After hearing oral argument, the trial court issued a written
opinion dated December 30, 2015, and the order dated December 31,
2015, denying a new trial but granting remittitur reducing the
judgment to $1,100,000. Plaintiff accepted the remitted amount.
Defendant appealed, and plaintiff cross-appealed.
II.
Defendant contends the trial court erred in precluding her
from cross-examining plaintiff's claims of disability using photos
of plaintiff engaging in athletic activities. "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)
(citations omitted). Thus, an appellate court "will reverse an
evidentiary ruling only if it 'was so wide off the mark that a
manifest denial of justice resulted.'" Ibid. (citation omitted).
We must hew to that standard of review.
As set forth above, plaintiff and his wife testified about
how disabled he was as a result of the evidence. Defense counsel
also cross-examined about plaintiff's working out at the gym.
5 A-2302-15T4 Plaintiff's wife testified plaintiff "can't go to the gym anymore"
since the accident and "d[id]n't go anymore." Plaintiff testified
that before the accident, "I used to work out," but now "I can't."
Defense counsel then asked plaintiff if he maintained a
Facebook account. Plaintiff objected. At sidebar, defense counsel
showed the trial court screenshots from plaintiff's Facebook page
dated January 15, 2013. One screenshot showed plaintiff in a
sleeveless shirt and sweatpants at a gym near exercise equipment,
with a photo caption "In order to maintain the artistic action
figure."
The trial court asked if defense counsel had made plaintiff's
counsel aware defense counsel was going to use Facebook. Defense
counsel replied: "No, just – just for cross-examination, Judge."
When defense counsel explained the photo showed plaintiff at the
gym working out, the court mistakenly responded that plaintiff had
testified "yes, I do work out." The court stated it was "very
concerned about the prejudicial aspect of" the gym photo, and
sustained the objection.
Defendant attached the gym photo to her motion for a new
trial, as well as other screenshots from plaintiff's Facebook
page. A screenshot dated October 3, 2012, showed plaintiff wearing
a life preserver standing on the edge of a beach a few feet in
front of a "WaveRunner" (a brand of large jet-ski). A screenshot
6 A-2302-15T4 dated June 16, 2013, showed plaintiff in a short wetsuit sitting
on a WaveRunner, with the photo caption "In water hesitating."2
In his response to the motion for a new trial, plaintiff
argued his Facebook page was not public. On appeal, plaintiff
does not dispute the photos were obtained from his publicly-
accessible Facebook profile page. Cf. Robertelli v. N.J. Office
of Atty. Ethics, 224 N.J. 470, 487 (2016).
In its written opinion denying defendant's motion for a new
trial, the trial court quoted the rules governing the admission
of relevant evidence and the exclusion of unduly prejudicial
evidence, N.J.R.E. 401, 402, and 403. The court then ruled:
Viewing the evidence in the light most favorable to the non-moving party, Mr. Angeles, the Facebook content had limited probative value. The photographs showed Mr. Angeles standing or sitting near athletic equipment. There was a lack of authentication and foundation. Conversely, the surprise to Mr. Angeles was profound: the prejudice level, potentially high. The jury might well have wondered what Mr. Angeles was doing in a gym in the first place.
2 Plaintiff notes the trial transcript contains no mention of the WaveRunner photos. Defendant responds that defense counsel's efforts to use the photos were prematurely precluded by the court at trial. On defendant's motion for a new trial, the trial court stated it had ruled both the gym photo and the WaveRunner photos could not be shown to the jury. Thus, we consider both the gym photo and WaveRunner photo.
7 A-2302-15T4 Defendant challenges each of the trial court's rationales.
First, in determining the probative value of evidence, it is
inappropriate to view the evidence "in the light most favorable
to the non-moving party."3 Rather, under N.J.R.E. 401, "[t]he
'test [of relevancy] is broad and favors admissibility[.]'" State
v. Schnabel, 196 N.J. 116, 131 (2008) (alteration in original)
(citation omitted). Moreover, "[t]he burden lies with the party
seeking exclusion of the evidence to show that the probative value
is substantially outweighed by one or more of the factors listed
in [N.J.R.E.] 403." McLean v. Liberty Health Sys., 430 N.J. Super.
156, 167 (App. Div. 2013); see Rosenblit v. Zimmerman, 166 N.J.
391, 410 (2001) ("The burden is clearly on the party urging the
exclusion of evidence[.]" (quoting Biunno, Current N.J. Rules of
Evidence, comment 1 on N.J.R.E. 403 (1999-2000))). "A reviewing
court will not defer to a trial court if its decision '"'is based
on a mistaken understanding of the applicable law.'"'" Mernick
v. McCutchen, 442 N.J. Super. 196, 199 (App. Div. 2015) (quoting
C.A. ex rel. Applegrad v. Bentolila, 219 N.J. 449, 459 (2014)).
Second, the excluded evidence was relevant. The January 15,
2003 photo showing plaintiff at a gym directly contradicted the
testimony by plaintiff's wife that after the September 23, 2011
3 That is the standard for summary judgment. Qian v. Toll Bros. Inc., 223 N.J. 124, 134-35 (2015).
8 A-2302-15T4 accident plaintiff could not and did not go to the gym. Moreover,
the photo of plaintiff at the gym in exercise clothes, bearing the
caption "[i]n order to maintain the artistic action figure,"
supported a reasonable inference that plaintiff was working out
at the gym, in direct contradiction to plaintiff's testimony that
after the accident he could not work out.
Similarly, the October 3, 2012 and June 16, 2013 photos
showing plaintiff, wearing wetsuits or life preservers, sitting
on or standing near WaveRunners in or near the water, raised a
reasonable inference that plaintiff was riding the WaveRunners.
Thus, those photos, and the January 15, 2013 photo of plaintiff
at the gym, were inconsistent with plaintiff's overall testimony
that after the accident he "had to stay home permanently because
my back hurts a lot," and that he could not engage in modest
physical activities or drive a vehicle without a great deal of
pain.
Evidence is relevant if it has "a tendency in reason to prove
or disprove any fact of consequence to the determination of the
action." N.J.R.E. 401. That standard "is generous: if the
evidence makes a desired inference more probable than it would be
if the evidence were not admitted, then the required logical
connection has been satisfied." State v. Williams, 190 N.J. 114,
123 (2007). "[I]f evidence does support the existence of a
9 A-2302-15T4 specific fact, even obliquely, it is relevant and admissible."
Verdicchio v. Ricca, 179 N.J. 1, 34 (2004); see N.J.R.E. 402. If
the photos were taken after the accident, as defendant contended,
the photos tended to disprove plaintiff's claims of disability by
making more probable the inference that he was able to engage in
vigorous physical activity.
Third, post-accident photos of plaintiff apparently engaged
in strenuous activity would have substantial probative value.
"Probative value 'is the tendency of the evidence to establish the
proposition that it is offered to prove.'" State v. Buckley, 216
N.J. 249, 261 (2013) (citation omitted). Motion pictures which
"actually portray plaintiff engaged in some strenuous activity
which on deposition she had already testified is beyond her
capacity" is valuable evidence to deflate a plaintiff's claim.
Jenkins v. Rainner, 69 N.J. 50, 58 (1976); Mernick, 442 N.J. Super.
at 202. Still photos are also telling, especially as plaintiff
added a caption stating he is at the gym "to maintain [his]
artistic action figure."
Although the photos depicted plaintiff standing near the gym
equipment and WaveRunner and sitting on a WaveRunner, rather than
actually working out or riding the WaveRunner, the gym and
WaveRunner photos showed plaintiff dressed to work out and to ride
a WaveRunner, respectively. His attire, and the captions he gave
10 A-2302-15T4 the pictures, strongly support the inference he was engaged in
those strenuous activities.
The trial court expressed concern the gym photo might have
caused the jury to wonder what plaintiff was doing in a gym.
However, that was no reason to preclude use of the photos on cross-
examination. Cross-examination "is the 'greatest legal engine
ever invented for the discovery of truth.'" State v. Cope, 224
N.J. 530, 555 (2016) (quoting California v. Green, 399 U.S. 149,
158 (1970)). If the photos cast doubt on plaintiff's claim of
disability, they "could have undermined" that claim and "cast
doubt on [his] general veracity and capacity to tell the truth."
See State v. Castagna, 187 N.J. 293, 311 (2006).
Moreover, plaintiff would have had the opportunity on cross-
or redirect examination to explain what he was doing in a gym or
with WaveRunners, or to dispute when the photos were taken, and
the jury would have had the opportunity to evaluate the credibility
of his answer. Any subsequent concern about speculation "could
have been ameliorated with a limiting instruction to the jury."
See Davis v. Barkaszi, 424 N.J. Super. 129, 142 (App. Div. 2012).
Fourth, relevant evidence may be excluded only "if its
probative value is substantially outweighed by the risk of (a)
undue prejudice." N.J.R.E. 403. This standard was not satisfied
by the trial court's statements that it was "very concerned about
11 A-2302-15T4 the prejudicial aspect" or that "the prejudice level [was]
potentially high." "The mere possibility that evidence could be
prejudicial does not justify its exclusion." State v. Morton, 155
N.J. 383, 453-54 (1998). "It is not enough for the opposing party
to show that the evidence could be prejudicial[.]" State v. Cole,
229 N.J. 430, 448 (2017).
Crucially, the trial court did not identify any prejudice
from the photos other than their probative value in disproving
plaintiff's disability claim. "Even when evidence is 'highly
damaging' to a [plaintiff's] case, 'this cannot by itself be a
reason to exclude otherwise admissible and probative evidence.'"
State v. Brockington, 439 N.J. Super. 311, 333 (App. Div. 2015)
(citation omitted). "[T]he question is not whether the challenged
testimony will be prejudicial to the objecting party, 'but whether
it will be unfairly so.'" Griffin, 225 N.J. at 421 (quoting
Stigliano v. Connaught Labs., 140 N.J. 305, 317 (1995)). "We
would ill-serve the cause of truth and justice if we were to
exclude relevant and credible evidence only because it might help
one side and adversely affect the other." Stigliano, 140 N.J. at
317.
"'Evidence claimed to be unduly prejudicial is excluded only
when its "probative value is so significantly outweighed by [its]
inherently inflammatory potential as to have a probable capacity
12 A-2302-15T4 to divert the minds of the jurors from a reasonable and fair
evaluation" of the issues in the case.'" Griffin, 225 N.J. at 421
(alteration in original) (citations omitted). There was nothing
inflammatory in the photos of the smiling plaintiff in exercise
clothes near exercise equipment. The photos would not divert the
jury from the issues, as they directly addressed the issue of
whether plaintiff was as disabled as he claimed.
We recognize that "[t]he trial court is granted broad
discretion in determining both the relevance of the evidence to
be presented and whether its probative value is substantially
outweighed by its prejudicial nature." Green v. N.J. Mfrs. Ins.
Co., 160 N.J. 480, 492 (1999). However, the photos were not
inflammatory and there was no unfair prejudice to weigh. Cf. id.
at 501-02 (finding the trial court abused its discretion in
admitting evidence whose probative value "was substantially
outweighed by its exceedingly inflammatory nature").
Moreover, the trial court agreed the photos had probative
value. Even if the photos' probative value was "limited" as the
court stated, there was no undue prejudice by which the photos'
probative value could be outweighed, let alone substantially
outweighed. Thus, "[w]e find no support for the invocation of
N.J.R.E. 403(a) as the means for excluding this evidence." See
State v. Hockett, 443 N.J. Super. 605, 615 (App. Div. 2016)
13 A-2302-15T4 (reversing exclusion of photos inconsistent with a witness's
testimony). "In sum, we conclude that the trial court's decision
to bar [the photos under N.J.R.E. 403] was an abuse of discretion."
See Griffin, 225 N.J. at 422-23.
Fifth, in denying a new trial, the trial court also stated
"there was a lack of authentication and foundation." Neither
objection was raised at trial, and plaintiff on appeal does not
challenge the authenticity of the photos. See Hockett, 443 N.J.
Super. at 614 (finding that, by claiming prejudice and "failing
to otherwise object, the prosecution tacitly acknowledged the
photographs actually depicted what the defense claimed").
Moreover, defendant sought to use the photos to cross-examine
plaintiff. Authentication and foundation are preconditions for
the admission of evidence. N.J.R.E. 901; Biunno, Weissbard &
Zegas, Current N.J. Rules of Evidence, comment 1 on N.J.R.E. 611
at 666 (2018). By contrast, "documents that are not going to be
admitted into evidence, or do not need to be admissible, need not
be authenticated." Biunno, Weissbard & Zegas, Current N.J. Rules
of Evidence, comment 1 on N.J.R.E. 901 (2018) (citing Plaza 12
Assocs. v. Carteret Borough, 280 N.J. Super. 471, 477-78 (App.
Div. 1995)). "Impeachment of a witness' credibility need not be
limited to evidence adduced at trial." Delgaudio v. Rodriguera,
14 A-2302-15T4 280 N.J. Super. 135, 141 (App. Div. 1995) (citing State v. Martini,
131 N.J. 176, 255 (1993)).
In any event, defense counsel began to ask plaintiff if he
maintained a Facebook account, but further questioning was
precluded when the trial court expressed concern over prejudice
and sustained the objection. Had the inquiry not been interrupted,
defense counsel could have asked plaintiff further questions to
establish that the photos and their captions came from plaintiff's
Facebook account. "Authenticity can be established by direct
proof — such as testimony by the author admitting authenticity[.]"
State v. Hannah, 448 N.J. Super. 78, 90 (App. Div. 2016).
Moreover, the requisite showing "'may be made
circumstantially.'" Ibid. (citation omitted). "The requirement
of authentication or identification as a condition precedent to
admissibility is satisfied by evidence sufficient to support a
finding that the matter is what its proponent claims." N.J.R.E.
901. "Authentication '"does not require absolute certainty or
conclusive proof" — only "a prima facie showing of authenticity"
is required.'" Hannah, 448 N.J. Super. at 89 (citations omitted).
There was evidence supporting a prima facie showing that the
photos were authentic. As the trial court acknowledged, the gym
photo depicted plaintiff. It is undisputed that the WaveRunner
photos also depicted plaintiff. Each of the photos were on
15 A-2302-15T4 Facebook screenshots showing the header "Christian R. Angeles" and
a profile picture, comments by other Facebook subscribers on the
photos, and replies bearing plaintiff's header and the profile
picture. This evidence could have been "sufficient to meet the
low burden imposed by our authentication rules." Id. at 90-91
(finding a tweet was authenticated by its use of the defendant's
Twitter handle, her profile photo, the content of the tweet, its
nature as a reply, and trial testimony).
As to foundation, our Supreme Court has remarked:
the persuasive representational nature of photographs demands that the foundation for the admission of photographs must be properly laid. We have stated the rule as follows: "'[t]he authentication of photographic evidence prior to its admission seems to contemplate proof that the photograph is a substantially correct representation of the matters offered in evidence, and this includes an identification or statement as to what the photograph shows.'"
[Brenman v. Demello, 191 N.J. 18, 30 (2007) (alteration in original) (quoting State v. Wilson, 135 N.J. 4, 14 (1994)).]
Again, had defense counsel been permitted to question
plaintiff further, it seems likely that plaintiff, who was depicted
in each of the photos, wrote the captions for the photos, and
posted them on his Facebook page, could "identify the persons,
places, or things shown in the photograph[s]," and state whether
the photos were a substantially correct representation of the
16 A-2302-15T4 "event that was the subject of testimony," namely plaintiff's
activities at the gym and with the WaveRunners. Wilson, 135 N.J.
at 14, 18. "'[A]ny person with knowledge of the facts represented
in the photograph may authenticate it.'" Hockett, 443 N.J. Super.
at 613 (citation omitted).
Plaintiff argued the dates the photos were taken were unknown.
Even if the date was at issue, "the better course was for the
judge, in his gatekeeping role, to . . . leave for the factfinder
a 'more intense review' of the photographs and the credibility of
the authenticating witness." Id. at 614-15 (quoting Biunno,
Weissbard & Zegas, Current N.J. Rules of Evidence, comment 1 on
N.J.R.E. 901 (2015)).
Sixth, the trial court stated "the surprise to [plaintiff]
was profound." The court cited Persley v. N.J. Transit Bus
Operations, 357 N.J. Super. 1 (App. Div. 2003), where we noted
"unfair surprise" was a factor in determining whether "[a] motion
picture of a reconstruction of a particular event may be admitted
into evidence." Id. at 14, 15. However, Persley involved a
computer-generated, animated, video simulation of an accident
created by the defense. Id. at 4, 8. Here, by contrast, plaintiff
posed for the photos, wrote the captions for the photos, posted
them on his Facebook page, and replied to comments about the
photos. Thus, he was well aware of the existence and content of
17 A-2302-15T4 the photos. See Hayes v. Delamotte, 231 N.J. 373, 391 (2018) ("A
party's use of evidence in its closing argument cannot be an
'unfair surprise' to the adverse party that properly produced,
introduced, and admitted the same evidence at trial.").
Although plaintiff posted the photos on his public Facebook
page, he may have been surprised defendant was using the photos
at trial, because she did not produce them in discovery. However,
the trial court did not state it was excluding the photos as a
discovery sanction.
Nonetheless, plaintiff argues we may affirm on any
appropriate ground even if it is not the ground relied on by the
trial court. Plaintiff cites Isko v. Planning Bd. of Livingston,
51 N.J. 162, 175 (1968), which ruled: "It is a commonplace of
appellate review that if the order of the lower tribunal is valid,
the fact that it was predicated upon an incorrect basis will not
stand in the way of its affirmance."
We agree with plaintiff that defendant had a continuing
obligation to produce the photos in discovery. Plaintiff's
complaint demanded defendant produce documents, including "all
photographs . . . obtained regarding the [P]laintiff." Plaintiff's
complaint also demanded defendant answer the "Uniform
Interrogatories, Form C," which includes questions seeking
information about "any photographs . . . made with respect to
18 A-2302-15T4 anything that is relevant to the subject matter of the complaint,"
and "any statements or admissions [by plaintiff] as to the subject
matter of this lawsuit," which encompassed the captions. It is
not "ground for objection that the examining party has knowledge
of the matters as to which discovery is sought." R. 4:10-2(a).
Nonetheless, a discovery violation does not necessarily
justify the exclusion of proffered evidence. "[A]lthough it is
the policy of the law that discovery rules be complied with, it
is also the rule that drastic sanctions should be imposed only
sparingly." Zaccardi v. Becker, 88 N.J. 245, 253 (1982). The
exclusion of relevant evidence "'is a drastic remedy and should
be applied only after other alternatives are fully explored[.]'"
State v. Washington, 453 N.J. Super. 164, 190 (App. Div.) (citation
omitted), appeal denied, __ N.J. __ (2018). Before invoking that
sanction, "'the court should explore alternatives.'" Ibid.
(citation omitted).
To support her argument that exclusion was the proper remedy,
plaintiff claims the circumstances are analogous to Jenkins.
There, the defendants' investigator conducted covert surveillance
of the plaintiff, taking motion pictures to show she was feigning
injury, but the defendants refused to disclose the movies or the
circumstances under which they were taken. 69 N.J. at 52-53, 55-
56. Our Supreme Court required disclosure, reasoning: "It is no
19 A-2302-15T4 more unlikely that a defendant may resort to chicanery in
fabricating motion pictures of one alleged to be the plaintiff
than it is that a plaintiff may indeed be a faker." Id. at 57.
"If [the movie] is unleashed at the time of trial, the opportunity
for an adversary to protect against its damaging inference by
attacking the integrity of the film and developing counter-
evidence is gone or at least greatly diminished." Id. at 57-58.
Here, by contrast, having posed for the photos, captioned
them, and posted them on his Facebook page, plaintiff already knew
better than defendant "where, when, how often and under what
circumstances the [photos] were taken." Id. at 53, 59. Under
those circumstances, there was no claim that defendant had resorted
to chicanery by fabricating the photos or captions. Indeed, no
suggestion is made that plaintiff had any basis for attacking the
integrity of the photos.
Moreover, plaintiff has not suggested any other counter-
evidence he could have offered other than his own testimony.
Plaintiff was present and available to testify about where, when,
and under what circumstances he posed for the photos, captioned
them, and posted them. Any surprise to plaintiff's counsel could
have been adequately addressed by a recess to allow consultation
with plaintiff and examination of his Facebook page. Thus, total
20 A-2302-15T4 exclusion of the photos would not have been an appropriate
Accordingly, there was no basis to exclude the photos. As
the photos had substantial probative value to rebut plaintiff's
claim of disability, their exclusion "was clearly capable of
producing an unjust result." R. 2:10-2. That the exclusion was
prejudicial was evidenced by the $3,000,000 verdict based on
plaintiff's unrebutted claim of disability. See Rosenblit, 166
N.J. at 410 (finding prejudice based on the damage award in another
case). In any event, plaintiff cannot show that the exclusion of
the photos was harmless. Accordingly, we reverse and remand for
a new trial.4
III.
Defendant also contends a new trial is required by remarks
by plaintiff's counsel during his closing argument. The remarks
referred to an objection during plaintiff's direct testimony.
During plaintiff's direct examination, after eliciting Dr.
Giordano's recommendation to have surgery, plaintiff's counsel
asked "did you undergo the surgery," and plaintiff said "I didn't
4 We need not reach defendant's contention it was plain error for the trial court not to have a hearing under N.J.R.E. 104 to determine the admissibility of the photos. See Kemp v. State, 174 N.J. 412, 432-33 (2002).
21 A-2302-15T4 because I didn't have the money." Defense counsel objected, but
the trial court believed plaintiff had said only "I didn't."5
Plaintiff's counsel asked plaintiff "why didn't you have the
surgery," and defense counsel again objected, pointing out that
plaintiff had previously gratuitously volunteered that persons of
his ethnicity "have to pay a lot for healthcare." The court told
plaintiff's counsel he would have to lead plaintiff "if he's going
to say something about . . . the lack of insurance or money."
Instead, plaintiff's counsel questioned plaintiff about other
topics.
In his closing argument, plaintiff's counsel argued defense
counsel "made a big deal towards the end of his summation about
[plaintiff] never having surgery. If you'll recall, I asked him
the question and he was cut off because of an objection." The
trial court sustained defense counsel's objection. Plaintiff's
counsel argued to the jury "the reason he didn't have the surgery,
we're not able to find out," and then moved on.
We do not condone plaintiff's counsel's remarks, which "are
not to be repeated on retrial." Rodd v. Raritan Radiologic
Assocs., 373 N.J. Super. 154, 172 (App. Div. 2004). However, we
find no reversible error. Defendant notes that attorneys "may not
5 Plaintiff asserts the objection cut off the interpreter before translating plaintiff's use of the word "dinero."
22 A-2302-15T4 use disparaging language to discredit the opposing party, or
witness, or accuse a party's attorney of wanting the jury to
evaluate the evidence unfairly, of trying to deceive the jury, or
of deliberately distorting the evidence." Id. at 171. However,
plaintiff's counsel did not use disparaging language or make any
such accusations. Cf. ibid. (plaintiff's counsel accused
defendant doctor of caring more about making money and defendant's
expert of adjusting his testimony); Szczecina v. PV Holding Corp.,
414 N.J. Super. 173, 184 (App. Div. 2010) (plaintiff's counsel
"unwarrantedly and inappropriately accused the entire defense of
spinning the evidence").
Moreover, the trial court sustained defendant's objection to
the initial remark in closing. Defendant did not object to the
second remark or seek any other relief from either remark.
Moreover, the court instructed the jury that "what the attorneys
say is not evidence and their comments are not binding on you,"
and that it was the jury's recollection of the evidence which
controls. Accordingly, we reject this claim.
IV.
Finally, defendant argues we should order a new trial because
the remitted $1,100,000 verdict was against the weight of the
evidence. As we have already ordered a new trial based on the
exclusion of the photos, we need not address this claim.
23 A-2302-15T4 Similarly, we need not reach plaintiff's cross-appeal arguing
the remittitur was an abuse of discretion. Because the exclusion
of the photos requires that we vacate the jury's verdict, we could
not reinstate the jury's $3,000,000 verdict even if the remittitur
was an abuse of discretion.
We also decline to review the validity of the remittitur
because the trial court's remittitur ruling was based in part on
Supreme Court case law that our Court has since overturned. The
trial court relied on He v. Miller, 207 N.J. 230 (2011). "The He
Court held that a trial judge could rely on both his personal
knowledge of verdicts as a practicing attorney and jurist and
'comparable' verdicts presented by the parties in deciding a
remittitur motion." Cuevas v. Wentworth Grp., 226 N.J. 480, 486
(2016); see He, 207 N.J. at 255-57. Relying on He, the trial
court here cited verdicts reported throughout the State, and
verdicts "which with the court is familiar."
However, after the trial court's December 2015 remittitur
ruling, the Supreme Court in 2016 "conclude[d] that such an
approach is not sound in principle or workable in practice."
Cuevas, 226 N.J. at 486; see id. at 503-09. In Cuevas, the Court
held that "a judge's personal experiences with seemingly similar
cases while in practice and on the bench are not relevant in
deciding a remittitur motion." Id. at 505. The Court also held
24 A-2302-15T4 "that the comparison of supposedly similar verdicts to assess
whether a particular damages award is excessive is ultimately a
futile exercise that should be abandoned." Ibid. Thus, in Cuevas,
the "Court rejected many aspects of its earlier holding in He."
Krzykalski v. Tindall, 448 N.J. Super. 1, 5 n.3 (App. Div. 2016),
aff'd, 232 N.J. 525 (2018).
As we have already granted a new trial on other grounds, it
would be pointless to review the trial court's remittitur ruling
based in part on the overruled aspects of He. Remittitur should
be addressed in the first instance by the trial court applying the
proper standard.6 If a remittitur motion is filed after the
retrial, the trial court should apply current law, including
Cuevas.
6 "[A]n appellate court must pay some deference to a trial judge's 'feel of the case' . . . because '[i]t is the judge who sees the jurors wince, weep, snicker, avert their eyes, or shake their heads in disbelief,' who may know 'whether the jury's verdict was motivated by improper influences,' and who may be privy to observations that could not have been made by the jury." Cuevas, 226 N.J. at 501-02 (citations omitted). Here, the trial court cited such factors, including plaintiff's interjection before the jury about his inability to afford healthcare. The court also cited plaintiff's apparent lack of pain and discomfort while testifying, but "[a] judge's 'feel of the case' based on observing a party or a witness in the courtroom is entitled to minimal weight if the jury had the same opportunity to make similar observations." Id. at 502 (citation omitted).
25 A-2302-15T4 We reverse the order denying a new trial, vacate the jury's
verdict, and remand for a new trial. We do not retain
jurisdiction.
26 A-2302-15T4