NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-1177-17T2
LORETA ORBEA,
Plaintiff-Appellant,
v.
ROGER B. BUTLER, and PERFORMANCE LOGISTICS, LLC,
Defendants-Respondents. _______________________________
Submitted October 22, 2018 – Decided April 1, 2019
Before Judges Sabatino and Mitterhoff.
On appeal from Superior Court of New Jersey, Law Division, Hudson County, Docket No. L-1398-14.
Hegge & Confusione, LLC attorneys for appellant (Michael J. Confusione, of counsel and on the brief).
Thompkins, McGuire, Wachenfeld & Barry, LLP, attorneys for respondents (Joseph K. Cobuzio, of counsel and on the brief; Kimberly D. McDougal, on the brief).
PER CURIAM This matter arises from a jury verdict after the trial of plaintiff Loreta
Orbea's personal injury lawsuit in which she sought damages for injuries she
sustained in an August 28, 2013 motor vehicle accident. Although the jury
found in her favor, plaintiff contends that the jury's award of $27,500 was
inadequate to compensate her for her injuries and resulting pain and suffering.
In that regard, plaintiff asserts that the pretrial judge erred in denying an
extension of discovery and concluding that her significant ongoing treatment did
not constitute exceptional circumstances as defined by Vitti v. Brown, 359 N.J.
Super. 40 (Law Div. 2003). Relatedly, plaintiff asserts that the trial judge erred
in excluding all evidence of treatment for back injuries after the 2013 accident,
including evidence that she had recently undergone a two-level lumbar fusion.
We find that the effect of these two rulings deprived the jury of an
opportunity to assess the full extent of plaintiff's alleged injuries and render its
own determination as to the etiology of plaintiff's complaints and her need for
surgery. Because the evidence was essential to a full and fair presentation of
plaintiff's case, its exclusion was clearly capable of producing an unjust result.
Accordingly, we reverse and remand for a new trial.
A-1177-17T2 2 I.
On August 28, 2013, plaintiff's car was stopped at a stop sign in a Target
parking lot when a tractor-trailer driven by defendant Roger Butler, an employee
of defendant Performance Logistics LLC, struck her vehicle. The impact
allegedly pushed plaintiff's vehicle to the curb. In the year following the
accident, plaintiff's complaints centered on her right shoulder, for which she
ultimately received surgery to correct a rotator cuff tear on June 26, 2014.
Significant to the issues in this appeal, plaintiff was involved in an earlier
2009 car accident in which she sustained injuries. In 2012, plaintiff had a
lumbar fusion surgery related to the 2009 accident performed by Dr. Frank
Moore. Although she did not immediately experience complaints related to her
lumbar spine after the 2013 accident, plaintiff testified at her deposition that
sometime in or around 2014 she returned to Dr. Moore complaining of a
recurrence of back pain. Dr. Moore ordered follow up radiological studies and
prescribed pain medication. In December 2015, plaintiff saw Dr. Louis
Quartaroro of New Jersey Spine Institute, again complaining of severe lower
back pain and swelling.
During plaintiff's March 2016 deposition, she testified that:
I started feeling my lower back pain again. My back started getting swollen. A year after I had the fusion I
A-1177-17T2 3 was able to get up to see or if I was watching TV I was able to get up like normal. A year after I had this then the pain came back. I wasn't able to get up like I used to. The pain gets down my butt and then my leg and I feel like something is rubbing like two bones rubbing to each other.
On June 16, 2016, plaintiff consulted Dr. Steven P. Waldman, M.D., a board
certified pain management doctor, to address her worsening lumbar complaints.
Dr. Waldman concluded that in addition to the rotator cuff tear, plaintiff
sustained an exacerbation of her prior disc injuries as a result of the August 28,
2013 accident.
As a result of her worsening lumbar complaints, Plaintiff filed a motion
to reopen discovery returnable June 10, 2016. While the motion was pending,
the June 1, 2016 discovery end date expired. On June 8, 2016, the parties
attended a case management conference with the presiding judge of the civil
division, in which plaintiff's counsel alerted the court that plaintiff was now
considered a potential candidate for spinal surgery. Counsel advised that a
motion returnable June 10, 2016 was pending, which sought to reopen and
extend discovery to address plaintiff's ongoing treatment. On June 10, 2016,
nine days after the discovery period had expired, the presiding civil judge denied
plaintiff's motion, noting on the order that
A-1177-17T2 4 Motion is untimely filed under R. 4:24-2. Information on joint fusion surgery is too vague and of dubious causal connection to this accident. Lack of exceptional circumstances. Removed from arbitration.
The judge did not categorically rule out that discovery might be extended
if plaintiff actually had the surgery, having noted two days before at the June 8,
2016 case management conference that "[I] typically don't grant motions like
this when someone has a recommendation for surgery but not an actual date
scheduled."
Thereafter, the trial was adjourned three times, once by plaintiff, once by
defendant, and once due to court error. In an April 24, 2017, letter plaintiff's
counsel advised the judge and defense counsel that plaintiff had undergone a
two-level lumbar fusion on March 31, 2017 and requested an opportunity to
reopen and extend discovery. In an April 26, 2017 telephonic case management
conference, defense counsel strenuously objected to this last-minute request,
asserting he had reasonably relied on the court's June 10, 2016 order denying an
extension of discovery, and in particular the court's finding in June 2016 that
there was a dubious causal relationship between plaintiff's lumbar condition and
the 2013 accident. In response, the judge responded that defense counsel was
"reading too much into my order." The judge stated:
A-1177-17T2 5 [Plaintiff's counsel is] right to point out that the June 2016 order merely denied an extension of discovery. It didn't bar any claims or proofs, it just – I didn't see enough at that time to extend things and reopen it. So there isn't an appellate panel in this State that would countenance me telling you, too bad, see you next Tuesday, try your case and she doesn't get to talk about her surgery. It's just not going to happen, nor should it. It wouldn't be fair.
[(Emphasis added).]
The court adjourned the trial and directed plaintiff's counsel to make a
formal motion to reopen discovery.
On June 7, 2017, plaintiff's counsel filed a motion to reopen and extend
the discovery end date. In support of the motion, plaintiff's attorney certified
that plaintiff had undergone a two-level lumbar fusion on March 31, 2017. The
certification attached as exhibits medical records of consultations and testing in
the five months prior to the surgery, as well as the operative report of the surgery
itself. Counsel certified that this significant ongoing treatment was an
exceptional circumstance that warranted relief reopening and extending
discovery. By order dated June 23, 2017, the court denied the motion for failure
to attach a copy of the prior order as required by Rule 4:24-1(c). Plaintiff's
counsel did not rectify this failure by supplying the court with the missing order
or otherwise seeking reconsideration at any time prior to the new trial date.
A-1177-17T2 6 Trial was then scheduled for September 25, 2017. The trial judge granted
defendants' motion in limine to exclude all testimony regarding plaintiff's back
injury at trial. The trial judge observed that he did not have much discretion
because of the presiding judge's June 23, 2017 ruling. The ruling in limine
excluded any and all references to complaints or treatment related to plaintiff's
back. Plaintiff indicated that she would respect the judge's ruling, but
commented, with the court's permission and without objection, that
If I cannot mention the surgery because I had the surgery too late when I found a good doctor, it is okay. I am willing not to mention that. But I don’t think it is fair that I cannot say all the pain that I have gone through because of this accident including my back which is the main problem I have as of right now. I have a shoulder problem, yes, but my back, it is incredible that I cannot say what happened to me in that accident, and just because I have a pre-existing condition, yes, I did have a fusion before, but that accident, because of that accident I had another fusion…[.]
The trial judge, however, adhered to his ruling that "the back is not part
of this case" and "essentially this is a torn rotator cuff case."
Defendant conceded liability in opening statements and the trial
proceeded on the issue of damages and proximate causation. Plaintiff testified
about the happening of the accident and her treatment for her right shoulder
A-1177-17T2 7 injury, which included physical therapy, medication and arthroscopic surgery.
Consistent with the court's ruling in limine, plaintiff did not testify about her
recent back surgery or any back complaints or limitations after the 2013
accident.
On cross-examination, defense counsel selectively took advantage of the
limitation imposed by the court by impeaching plaintiff's credibility using
records from her 2009 accident related to shoulder and back complaints, while
deliberately omitting any reference to plaintiff's recent treatment related to her
back.
Q: Ms. Orbea, I want to focus on before this accident. August—before August 28, 2013. I want to focus on the accident where you were involved where you were hit by a drunk driver in 2009. 1 A: Yes. Q: And the accident was a rear end hit, pushed you into another vehicle, and you sustained injury, is that correct? A: Yes, I did. Q: And we are referring to it for this trial as other problems, the injuries you sustained in that accident. That is what your testimony was, the other problems, correct? A: Could you repeat that question?
1 Although there was no objection to the repeated reference of a drunk driver in the 2009 accident, we observe that the driver's alleged intoxication was irrelevant and is ordinarily inadmissible. See Gustavson v. Gaynor, 206 N.J. Super. 540, 545 (App. Div. 1985). A-1177-17T2 8 Q: Yes. You have used twice, one where you were describing the Vicodin that you are taking, that you also take it for other problems. A: Yes. Q: Do we have an understanding? A: I don't have an understanding. Q: The injuries you sustained in the drunk driver that you sustained in 2009 we are referring to as "other problems" in this trial, is that correct? A: Do I have to say the truth? Q: Correct, yes or no? A: Don't— Q: Don't get caught? .... Q: I will repeat the question, Ms. Orbea. The injuries you sustained in 2009 as a result of being rearended by a drunk driver we are calling for today's trial the "other problems," is that your testimony? A: No, that is not my testimony.
The jury then heard testimony from plaintiff's treating doctor Fred Lee,
M.D., and the defense examiner, Thomas Edward Helbig, M.D. Both physicians
testified about their physical examinations, review of MRI films and x-rays, Dr.
Lee's treatment and their respective opinions about diagnosis, causal relation,
and prognosis for plaintiff – all carefully limited to the right-shoulder injury in
accordance with the trial court's ruling.
After trial, the jury returned a verdict in favor of the plaintiff, finding by
a vote of six to zero that plaintiff sustained an injury that was proximately caused
A-1177-17T2 9 by the accident, and fixing damages, again by a vote of six to zero, at $27,500.
This appeal followed.
II.
Denial of motion to reopen discovery
On appeal, plaintiff first contends that the trial court erred in denying her
June 23, 2017 motion to reopen discovery. The decision whether to reopen or
extend the period of discovery is reviewed for abuse of discretion. Leitner v.
Toms River Reg'l Sch., 392 N.J. Super. 80, 87 (App. Div. 2007). "Our standard
of review is limited to a determination of whether the trial court mistakenly
exercised its discretion in denying plaintiff's motion for an extension of the
discovery period under R. 4:24-1(c)." Huszar v. Greate Bay Hotel & Casino,
Inc., 375 N.J. Super. 463, 471-72 (App. Div.), certif. granted and remanded, 185
N.J. 290 (2005).
Our system of justice favors the fair disposition of cases on their merits.
See Viviano v. CBS, Inc., 101 N.J. 538, 547 (1986); Stanley v. Great Gorge
Country Club, 353 N.J. Super. 475, 486 (Law Div. 2002). On the other hand,
the system also strives to make litigation "expeditious and efficient." Leitner,
392 N.J. Super. at 91. The Rules of Court are designed to achieve, among other
goals, certainty in trial dates. Ibid. As we have recognized, however,
A-1177-17T2 10 exceptional circumstances can arise, where trial dates or other litigation
deadlines should be extended in the interests of justice and to avoid punishing
litigants unfairly. Id. at 91-94. The fair balance between fairness and trial-date
certainty is reflected in Rule 4:24-1(c) governing extensions of discovery, which
provides in pertinent part:
The parties may consent to extend the time for discovery for an additional 60 days by stipulation filed with the court or by submission of a writing signed by one party and copied to all parties, representing that all parties have consented to the extension. If the parties do not agree or a longer extension is sought, a motion for relief shall be filed . . . and made returnable prior to the conclusion of the applicable discovery period. . . . [I]f good cause is otherwise shown, the court shall enter an order extending discovery. . . . No extension of the discovery period may be permitted after an arbitration or trial date is fixed, unless exceptional circumstances are shown.
Because the Rule does not define "exceptional circumstances," in Vitti,
the court set forth a four-part test that must be satisfied in order to establish
"exceptional circumstances." 359 N.J. Super. at 51. Specifically, a party must
show
(1) why discovery has not been completed within time and counsel's diligence in pursuing discovery during that time; (2) the additional discovery or disclosure sought is essential; (3) an explanation for counsel's
A-1177-17T2 11 failure to request an extension of the time for discovery within the original time period; and (4) the circumstances presented were clearly beyond the control of the attorney and litigant seeking the extension of time.
[Rivers v. LSC P'ship, 378 N.J. Super. 68, 79 (App. Div. 2005) (citing Vitti, 359 N.J. Super. at 51).]
Plaintiff must provide "[a] precise explanation that details the cause of delay
and what actions were taken during the elapsed time[.]" Bender v. Adelson, 187
N.J. 411, 426 (2006).
In Vitti, the defendants made a motion to extend discovery "more than six
weeks after the discovery end date." 359 N.J. Super. at 42. The defendants,
believing the plaintiff would release them after settling with the codefendant,
did not depose the plaintiff or obtain its own independent medical examination.
Id. at 43. The court found that the plaintiff never indicated that he was
abandoning his claims against Brown and that defense counsel's miscalculation
of the risk that the plaintiff would proceed against his client after settling with
the codefendant did not rise to exceptional circumstances under the rule. See
id. at 52-53. The court found that although deposing the plaintiff and obtaining
an independent medical examination would be "helpful" to the defendant's case,
the sought-after additional discovery was not essential, and the defendant
A-1177-17T2 12 offered no explanation for his failure to pursue any discovery whatsoever in the
time provided. Ibid.
The Vitti court contrasted the facts in that case with cases involving
significant ongoing medical treatment after a trial or arbitration date is fixed.
There may be any number of situations in which one may be able to establish exceptional circumstances relatively simply. There is one problem often encountered in personal injury litigation that illustrates that point. It is not unusual for a personal injury claimant to be involved in ongoing medical treatment or diagnosis, as litigation is proceeding through discovery, which might result in some sudden and unexpected change in the claimant's condition. Typically, a claimant may be presented with the need for surgery which had not been anticipated. To the extent those developments were reasonably anticipated during the discovery period, one would expect an application to extend the time for discovery to be filed before discovery ends. Assuming the additional treatment or new diagnosis truly requires discovery or disclosure, good cause could easily be established. Similarly, it would not be difficult to establish exceptional circumstances, if the treatment or diagnosis could not have been anticipated during the discovery period. In that circumstance, it could presumably be established that the attorney and litigant had no control over the situation. The failure to complete the discovery at issue within the original discovery period and the failure to file the motion to extend within that time could be easily explained.
[Id. at 52 (emphasis added).]
A-1177-17T2 13 This case presents the factual scenario envisioned by the court in Vitti.
Plaintiff's back complaints were evolving throughout the litigation, and she was
receiving ongoing treatment for her back. That treatment unexpectedly
culminated in plaintiff's undergoing a two-level lumbar fusion in March 2017.
Although plaintiff had been deemed a potential candidate for surgery in June
2016, the court at that time denied the motion to extend, noting the uncertainty
of when if ever plaintiff would actually undergo the procedure, and the
perceived insufficiency of proof that the 2013 accident was a causal factor of
plaintiff's back complaints.
In the interim, plaintiff repeatedly amended her interrogatories with new
information regarding her medical treatment accompanied by the appropriate
certification pursuant to Rule 4:17-7, which provides:
Except as otherwise provided by R. 4:17-4(e), if a party who has furnished answers to interrogatories thereafter obtains information that renders such answers incomplete or inaccurate, amended answers shall be served not later than 20 days prior to the end of the discovery period, as fixed by the track assignment or subsequent order. Amendments may be allowed thereafter only if the party seeking to amend certifies therein that the information requiring the amendment was not reasonably available or discoverable by the exercise of due diligence prior to the discovery end date. In the absence of said certification, the late amendment shall be disregarded by the court and adverse parties. Any challenge to the certification of
A-1177-17T2 14 due diligence will be deemed waived unless brought by way of motion on notice filed and served within 20 days after service of the amendment. Objections made thereafter shall not be entertained by the court. All amendments to answers to interrogatories shall be binding on the party submitting them. A certification of the amendments shall be furnished promptly to any other party so requesting.
Defendants never formally objected to the amendments, based on their intention
to move to bar the materials at trial in reliance on the court's June 10, 2016 and
June 23, 2017 orders.
When plaintiff underwent the surgery on March 31, 2017, plaintiff's
counsel promptly moved to reopen discovery. As noted, the motion was denied
based on a procedural deficiency- the failure to attach the prior order extending
discovery as required by Rule 4:24-1(c). It would have been preferable for
plaintiff's counsel to cure the deficiency by supplying the omitted order or
otherwise moving for reconsideration, and his failure to do so undoubtedly
contributed to the trial court's having never addressed the substantive issue as to
whether exceptional circumstances existed to warrant reopening discovery. In
light of the magnitude of the impact in this particular case of disallowing post -
surgery discovery, however, we will address the issue whether plaintiff had
A-1177-17T2 15 shown exceptional circumstances to extend discovery, the denial of which
warrants a new trial.2
Here, addressing the four prongs of the exceptional circumstances test, it
is clear that the reason discovery was not completed within the initial discovery
period was because most of plaintiff's significant treatment occurred after the
discovery end date had expired; indeed, the lumbar surgery occurred only a
couple of months before the final motion to reopen discovery was filed. Plaintiff
was reasonably diligent throughout the litigation in obtaining reports and
serving medical discovery as it became available. Cf. Rivers, 378 N.J. Super.
at 80-81 (exceptional circumstances not established where plaintiff's counsel
failed to pursue discovery from defendant and obtain an expert report in a timely
manner). Plaintiff cooperated by appearing at depositions and defense exams as
requested. The timing of the surgery was beyond the control of the litigant, and
the evidence was essential to a fair and complete presentation of her injuries to
the jury. Unfortunately, because the court denied the motion based on a
procedural deficiency, the court never analyzed whether or not plaintiff had met
2 Our decision should not be read as supporting a proposition that any post - discovery treatment would constitute exceptional circumstances; to the contrary, as defined by Vitti, it is only significant ongoing treatment that warrants an extension beyond that contemplated by the Rules of Court. A-1177-17T2 16 the exceptional circumstances standard, a standard the court preliminarily
suggested would be met at the April 26, 2107 telephonic conference.
Nonetheless, on the specific facts of this case, we find that the motion should
have been granted as there were exceptional circumstances as defined by Vitti
warranting a brief extension of discovery. The denial of such relief was a rare
misapplication of discretion, albeit aided by plaintiff's failure to attach prior
orders to the motion papers.
The court's order in limine barring introduction of any evidence of plaintiff's back complaints or treatment
For the same reasons, the trial court's reliance on the June 23, 2017 order
to bar any mention of complaints or treatment to the back deprived plaintiff of
a fair and just adjudication of the merits of her claims.
With respect to the trial court's evidentiary rulings, we generally will not
set them aside unless the court has abused its discretion, including with respect
to issues of the admissibility of expert opinion. Hisenaj v. Kuehner, 194 N.J. 6,
16 (2008); see also Dinter v. Sears, Roebuck & Co., 252 N.J. Super. 84, 92 (App.
Div. 1991). Trial errors that were brought to the attention of the court are
reviewed for harmful error. "Any error or omission shall be disregarded by the
appellate court unless it is of such a nature as to have been clearly capable of
producing an unjust result [.]" R. 2:10-2. Thus, if a trial court is found to have
A-1177-17T2 17 abused its discretion, or otherwise erred, we must then determine whether that
error amounted to harmful error. State v. Prall, 231 N.J. 567, 581 (2018).
Allowing the introduction of the back surgery evidence may have
significantly changed the calculus of the trial. At the outset, the court's in limine
ruling prevented plaintiff from explaining, in response to questions on cross -
examination, that some of her current complaints and need for medication were
related to her recent lumbar fusion, while defense counsel remained free to
suggest, unchallenged, that all of plaintiff's "other problems" stemmed from the
2009 accident. Moreover, while it is uncertain what credence the jury would
have given the excluded evidence, barring all of the evidence was clearly
capable of creating an unjust result. As plaintiff's back complaints were severe
enough to require surgery prior to trial, the jury should have been able to
consider plaintiff's back injuries and make its own determination whether those
injuries were causally related to the accident. In that regard, we cannot say with
any degree of confidence that the jury award reflected a complete assessment by
the jury of plaintiff's condition. That is particularly so in a case where defendant
conceded liability and the jury unanimously found that plaintiff suffered injuries
proximately caused by the accident and unanimously awarded her damages.
A-1177-17T2 18 We are sensitive to the trial court's desire and obligation to expeditiously
move cases. See R. 1:33-6(b) ("[T]he Presiding Judge of each functional unit
within the vicinage shall be responsible for the expeditious processing to
disposition of all matters filed within that unit."); see also R. 4:5B-2 (noting trial
court's authority to conduct case management conference to "promote the
orderly and expeditious progress of the case."). Moreover, we recognize that in
this case, plaintiff's counsel's failure to seek reconsideration of the order
contributed to the trial court's having never addressed the substantive issu e
whether exceptional circumstances existed to warrant reopening discovery.
However, as we have previously stated:
[W]e are satisfied that the rules remain equipped to allow a trial judge to render substantial justice in all cases and that where the court system is not in a position to schedule a meaningful arbitration or trial date, a sanction that results in a deprivation of a litigant's day in court on the merits is anathema to the fair and efficient administration of justice. We are reminded of Justice Clifford's apt comment that "[o]ur rules of procedure are not simply a minuet scored for lawyers to prance through on pain of losing the dance contest should they trip." Stone v. Old Bridge Tp., 111 N.J. 110, 125 (1988) (dissenting opinion). The rules do not exist for their own benefit. The rules, instead, are only a framework for the fair and uniform adjudication of cases brought into our system. Ragusa v. Lau, 119 N.J. 276, 283-84 (1990) (the rules "should be subordinated to their true role, i.e., simply a means to the end of obtaining just and expeditious
A-1177-17T2 19 determinations between the parties on the ultimate merits.").
[Ponden v. Ponden, 374 N.J. Super. 1, 10-11 (App. Div. 2004).]
Thus, we conclude that under the particular facts of this case, the
exclusion of the evidence regarding plaintiff's lumbar fusion deprived plaintiff
of a fair adjudication of her case on the merits. Because the omission of this
evidence was clearly capable of producing an unjust result, R. 2:10-2, we are
constrained to reverse and remand for a new trial.
Defense cross-examination based on prior specific statements to her employer
Finally, Plaintiff argues that the verdict should be overturned based on
defense counsel's cross-examination of plaintiff about her decision to not tell
her employer, the North Bergen Board of Education, that she moved from North
Bergen to Fairview. Plaintiff testified that she did not tell the Board about this
move because there was a requirement that teachers live in North Bergen and
she was concerned about losing her job. Defendants used this testimony to argue
at closing that plaintiff is untruthful and that the jury should not trust her
testimony. Because there was no objection to this aspect of the cross-
examination or defense counsel's comments in summation, we must consider
A-1177-17T2 20 under a plain error standard whether admitting the evidence gave rise to a
manifest justice requiring reversal. R. 2:10-2.
In State v. Scott, the Supreme Court reemphasized that N.J.R.E. 405 and
608 "preclude the use of specific instances of conduct to attack the credibility
of a witness." 229 N.J. 469, 481 (2017). Rule 405 states "[s]pecific instances
of conduct not the subject of a conviction of a crime shall be inadmissible" but
specific instances may also be admitted "[w]hen character or a trait of character
of a person is an essential element of a charge, claim, or defense." N.J.R.E. 405.
Rule 608 provides that "a trait of character cannot be proved by specific
instances of conduct" unless "otherwise provided by Rule 609 [Impeachment by
Evidence of Conviction of Crime]" or attacking credibility of a witness based
on "a prior false accusation against any person of a crime similar to the crime
with which defendant is charged." N.J.R.E. 608. In Scott, the Court stated that
"Rule 608 explicitly excludes specific instances of conduct as a means of
proving a character for untruthfulness, permitting only opinion or reputational
evidence." 229 N.J. at 483. Plaintiff also points out that evidence may be
omitted when "its probative value is substantially outweighed by the risk . . . of
undue prejudice." N.J.R.E. 403.
A-1177-17T2 21 Defendants argue that they were entitled to impeach plaintiff, and that
plaintiff opened herself up to this line of questioning because on direct she
testified that she lived in Fairview. As defendants note, Rule 607 allows parties
to "examine the witness and introduce extrinsic evidence relevant to the issue of
credibility." N.J.R.E. 607. However, that rule is by its terms subject to the
limitation in Rules 405 and 608.
Here, defendants' questions on cross-examination did not go to the
truthfulness of plaintiff's testimony that she lives in Fairview. Cf. Allendorf v.
Kaiserman Enters., 266 N.J. Super. 662, 674 (App. Div. 1993) ("[T]he evidence
that plaintiff had episodes of passing out prior to the accident was admissible
for the purpose of impeaching the credibility of her testimony that she was 'in
perfect health' and had never had 'any problem with blacking out' prior to the
accident."). Rather, the questions sought to elicit testimony that on some prior
occasion plaintiff allegedly lied about living in North Bergen. Thus, rather than
impeaching plaintiff's testimony at trial, defendants sought to introduce a
specific instance of conduct to show plaintiff's general character for
untruthfulness. Pursuant to Rules 405 and 608, as interpreted by Scott, this was
clearly impermissible.
A-1177-17T2 22 Nonetheless, "if an issue was not raised below by a party's trial counsel,
relief is not warranted unless that party demonstrates plain error by showing on
appeal the error was 'clearly capable of producing an unjust result.'" Jacobs v.
Jersey Cent. Power & Light Co., 452 N.J. Super. 494, 502 (App. Div. 2017)
(quoting R. 2:10-2). Guided by the plain error standard, we do not find that the
admission of the prohibited evidence was sufficient to warrant reversal in this
case.
At the outset, "the '[f]ailure to make a timely objection indicates that
[plaintiff's] counsel did not believe the remarks were prejudicial at the time they
were made,' and it 'also deprives the court of the opportunity to take curative
action.'" Risko v. Thompson Muller Auto. Grp., Inc., 206 N.J. 506, 523 (2011)
(quoting Jackowitz v. Lang, 408 N.J. Super. 495, 505 (App. Div. 2009)).
Moreover, defendants did not rely solely on the prohibited evidence to further
their argument that plaintiff was untruthful. Rather, counsel cited to several
other contradictions and/or inconsistencies between her statements to medical
providers and her testimony at trial to show that plaintiff has a tendency to lie.
Finally, and perhaps most tellingly, the jury returned a reward of $27,500 for a
case that centered on a torn rotator cuff, which suggests the jury rejected defense
counsel's argument that plaintiff could not be believed. Therefore, we decline
A-1177-17T2 23 to reverse the verdict based on the Rule 608 violation, which we presume will
not be repeated at any retrial.
III.
For the reasons expressed above, we conclude that plaintiff is entitled to
a new trial based on the trial court's denial of an extension of discovery and
ruling in limine excluding all evidence of plaintiff's treatment for back injuries
after the 2013 accident.
Reversed and remanded for a new trial. We do not retain jurisdiction.
A-1177-17T2 24