NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-3230-13T4
STUART SACKMAN and PATRICIA SACKMAN, His Wife, APPROVED FOR PUBLICATION Plaintiffs-Appellants, April 26, 2016 v. APPELLATE DIVISION
NEW JERSEY MANUFACTURERS INSURANCE COMPANY,
Defendant-Respondent. ___________________________________
Argued October 7, 2015 - Decided April 26, 2016
Before Judges Fuentes, Koblitz and Gilson.
On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-8522-11.
Michael L. Pescatore argued the cause for appellants (Shamy, Shipers & Lonski, P.C., attorneys; David P. Levine, on the brief).
Susan A. Lawless argued the cause for respondent (Purcell, Mulcahy, Hawkins, Flanagan & Lawless, L.L.C., attorneys; Ms. Lawless, of counsel and on the brief; Alyssa K. Weinstein, on the brief).
The opinion of the court was delivered by
FUENTES, P.J.A.D. On June 2, 2008, a car driven by Earl Smith rear-ended
plaintiff1 Stuart Sackman's car while it was stopped on Route 22
in Bridgewater Township. Plaintiff claims he sustained
permanent injuries on the left side of his body, particularly
his left shoulder. Plaintiff settled his claims against Smith
and sought underinsured motorist (UIM) compensation from New
Jersey Manufacturer Insurance Company (NJM), the carrier that
issued his automobile insurance policy.2 The policy issued by
NJM contained a provision pursuant to the Automobile Insurance
Cost Reduction Act (AICRA), N.J.S.A. 39:6A-1.1 to -35, requiring
plaintiff to show he suffered a permanent injury, as defined in
N.J.S.A. 39:6A-8(a), in order to recover compensatory damages.
Unable to reach a resolution of his UIM claims, plaintiff
filed suit against NJM. The matter was tried in the Law
Division before a jury over a period of three days in January
2014. After deliberating for approximately twenty minutes, the
jury returned a unanimous verdict finding plaintiff did not
prove, by a preponderance of the evidence, he sustained a
permanent injury that was proximately related to the June 2,
1 Because Patricia Sackman's per quod claims derive from her status as Stuart Sackman's spouse, we will refer to "plaintiff" in the singular. 2 It is undisputed plaintiff provided NJM with timely notice of his intention to settle his claims against Smith. See Longworth v. Van Houten, 223 N.J. Super. 174, 194 (App. Div. 1988).
2 A-3230-13T4 2008 accident. The trial court thereafter denied plaintiff's
motion for a new trial.
Plaintiff now appeals arguing the trial judge erred in
denying his motion to preclude the jury from having to find he
suffered a permanent injury that is proximately related to the
June 2, 2008 accident. Plaintiff claims the evidence presented
at trial indisputably established this element of his cause of
action as a matter of law. Alternatively, plaintiff argues the
brevity of the jury's deliberations is per se indicative of bias
and constitutes a clear miscarriage of justice. Finally, in the
course of her opening statement to the jury, NJM's counsel
referred to the tortfeasor as "defendant." Plaintiff argues the
court's curative instructions to the jury in response to his
counsel objection were insufficient to cure NJM's counsel's
misleading characterization of the trial and constitutes
reversible error.
We reject these arguments and affirm. We derive the
following facts from the evidence presented at trial.
I
Plaintiff was forty-nine years old when the Subaru Tribeca
SUV he was driving was struck from behind by a 1970 two-seater
Volvo driven by Earl Smith, a retired New Brunswick firefighter.
The parties were travelling westbound on Route 22 in Bridgewater
3 A-3230-13T4 Township. According to Smith, as he attempted to stop his car,
he inadvertently "caught the gas pedal and the break [sic] at
the same time." This caused his car "to literally [lift] itself
up, but it wouldn't stop because the engine was pulling it." He
"tapped" plaintiff's car going "somewhere between five and ten
miles an hour."
Plaintiff testified the Volvo was travelling approximately
twenty miles per hour at the time it collided with his Subaru.
Plaintiff also claimed he was wearing his seatbelt and had both
of his hands on the steering wheel at the time of the accident.
As a result of the collision, plaintiff's left elbow struck the
closed driver-side car window, causing a "small abrasion"
visible as a "pinkish spot." Plaintiff stepped out of his car
and walked to the side of the road to speak with Smith. They
each asked the other if he was "okay" and both responded they
were not injured.
An officer from the Bridgewater Township Police Department
responded to the scene. Plaintiff told the officer he was not
injured and did not need medical attention or an ambulance.
After providing the officer with his driving credentials,
plaintiff returned to his car and drove away. At trial, NJM's
counsel introduced into evidence two photographs depicting the
4 A-3230-13T4 damage sustained by plaintiff's Subaru Tribeca as a result of
the accident.
Before addressing the injuries related to the 2008
accident, plaintiff's counsel questioned him about his medical
history. Plaintiff testified he injured his left shoulder three
years earlier in a 2005 car accident. His treatment included a
cortisone injection, which was effective in relieving his pain.
In overcoming this injury, plaintiff particularly noted his high
pain threshold:
I have a really high pain tolerance, so I don't really like to address pain in my head. I like to think past it, which I did and worked out like a dog . . . to bring these muscles and that thing back, which I did. So after a period of time, no, it didn't bother me at all.
Plaintiff testified that on January 19, 1984, he "broke his
neck" in a surfing accident on the island of Martinique. "I was
body surfing and I caught by a wave [sic] and it slammed me head
first into the ground." According to plaintiff, he was
diagnosed with a "C-7" fracture, which is located in the
cervical area of his spinal cord. As plaintiff explained,
"[t]here was a lateral fracture that ended up one millimeter
5 A-3230-13T4 away from my spine."3 In response to his attorney's question,
plaintiff testified he recovered from this injury "absolutely."
Plaintiff credited his recovery to his rigorous exercise
routine, which he characterized as "extreme." According to
plaintiff, he swam twenty to thirty miles per week. He
testified his body "was perfect" before the June 2, 2008
accident.
In addition to these traumatic injuries, plaintiff was
diagnosed with diverticulitis and colitis approximately one year
before the June 2008 accident. He had abdominal surgery to
address these gastrointestinal problems. However, plaintiff
emphasized that none of the medical incidents he experienced
before the June 2008 accident interfered with or affected his
ability to perform his job as a "legal videographer."4 As
plaintiff described to the jury, the physical demands of his job
required him to carry up to 150 pounds of equipment and climb
"under things" to run wires.
Despite being asymptomatic immediately after the June 2,
2008 accident, plaintiff testified he began to feel "little
3 Despite the technical nature of plaintiff's testimony, defense counsel did not object. Cf. Berkowitz v. Soper, 443 N.J. Super. 391, 398-402 (App. Div. 2016). 4 As described by plaintiff, his job as a "legal videographer" consisted of videotaping discovery depositions for attorneys.
6 A-3230-13T4 twinges and stuff" the morning after the accident. However,
because of his "high pain tolerance," he did not seek medical
attention. His discomfort intensified two days after the
accident. He felt pain only on the left side of his body, from
the "scapula" to his left foot. He "knew then something was
wrong, really wrong" when he was unable to get out of his bed.
Plaintiff saw his general practitioner, Dr. Scott Yeager,
on Monday June 9, 2008, a week after the accident. According to
plaintiff, his "chest was on fire and my back was on fire." He
consulted an orthopedist and received treatment from a
chiropractor after his consultation with Dr. Yeager. The
orthopedist administered a cortisone injection in his left
shoulder. He did not recall whether he also received physical
therapy during this time period.
On March 2, 2009, plaintiff consulted with orthopedic
surgeon Dr. Jeffrey S. Abrams, who recommended physical therapy
consisting of electrical stimulation and heating pads. The
therapy improved the range of motion of his left shoulder.
Despite this improvement in his physical condition, he was still
unable to swim. He told Dr. Abrams that "no matter how hard I
tried to build my muscles again I thought my muscles would be
strong enough where I could keep it in place, but it's not how
it works."
7 A-3230-13T4 Dr. Abrams ordered plaintiff to undergo a magnetic
resonance imaging (MRI) test. According to Dr. Abrams, the MRI
test revealed plaintiff had "damage to his rotator cuff . . .
not a tear." Dr. Abrams diagnosed plaintiff as suffering from
"a rotator cuff tendinopathy, which means inflamed tendons."
Following his standard practice, Dr. Abrams first recommended a
conservative non-operative approach. In this case, he directed
plaintiff receive therapy and resume exercising.
Dr. Abrams saw plaintiff again approximately six weeks
later. At that time, plaintiff reported constant pain without
any improvement. Under these circumstances, Dr. Abrams opted to
perform a surgical procedure known as an arthroscopy. As
explained by Dr. Abrams, this procedure involves drilling "a
little hole in the bone;" the physician places a hollow screw
into the bone, and stitches it through the screw. Once the
screw is in place, the instrument is retrieved leaving the screw
behind attached by the stiches. The stitches are then passed
through the tissue. On June 3, 2009, Dr. Abrams performed the
surgery in an outpatient surgical center, commonly referred to
as "same day surgery." Dr. Abrams testified the surgery was
performed as expected without complications.
Plaintiff testified he was confined to a recliner chair for
nine weeks after the surgery. He also claimed the surgery did
8 A-3230-13T4 not completely restore him to his pre-accident physical
condition. He still experiences pain and feels "absolutely
damaged." His left hand "trembles" and he does not have the
same grip strength. He feels "pain shooting down [his] arm in
the weirdest ways," as if he is having a heart attack.
Comparing his physical condition before and after the accident,
plaintiff testified:
My chest hurts on the left side. My -- my left breast, it looks like -- like my pec is hanging a little bit differently than the right. I used to have a duck chest when I swam and I don't have it anymore. I used to have abdominal muscles that they're gone. I now have -- I'm fat -- I'm a fat guy now. I used to be -- I was a monster. I was a man that people would look at and go wow. And I would think yeah, man, you -- you've worked hard for this. You deserve this -- this -- you deserve these people noticing how hard you've applied yourself.
Plaintiff testified he "can't swim anymore because [he]
[doesn't] enjoy it anymore because between [his] shoulder blades
there's this cracking and stopping sometimes that locks me up in
a certain way and it's not smooth." Plaintiff also testified
that the injury affected his relationship with his wife and
daughters. He does not share time with them as he did before
the accident; he does not play with them anymore. Everything he
used to do with his teenage daughters is now done by his wife
"because they don't need me. They just don't need me the same
9 A-3230-13T4 way." He attributed this estrangement from his children to the
injury he sustained in the June 2008 accident. Plaintiff gave
this testimony on January 14, 2014.
Finally, with respect to his job as a legal videographer,
plaintiff testified on direct examination that he has been
unable to resume the physical activities required to perform his
job. On cross-examination, plaintiff agreed with Dr. Abrams's
medical assessment that he has recovered complete range of
motion on his left shoulder. Plaintiff also conceded that his
shoulder is completely stable and no longer falls out. As to
his ability to work, plaintiff acknowledged that in a form he
completed for his chiropractor dated on July 11, 2008, he
answered "yes" to the following question: "Have you been able to
work since this injury?"
Plaintiff also acknowledged on cross-examination that
between 2003 and the accident on June 2, 2008, he sought medical
treatment for "an abnormal sensation" in his left arm. Defense
counsel also presented plaintiff with documentation indicating
that in the summer of 2003 he had seen his family physician
"complaining of weakness in [his] upper left extremity[.]"
These records also showed plaintiff consulted his primary care
physician in July 2003 for "left upper extremity pain for at
least a year." The 2003 report also stated plaintiff had
10 A-3230-13T4 "chronic upper back and left superior shoulder pain with
abduction."
In addition to his role as plaintiff's treating physician,
Dr. Abrams also testified as an expert witness in plaintiff's
case in chief. The jury heard his testimony in a de bene esse
videotaped deposition taken on May 21, 2013. After he described
the surgery he performed on plaintiff on June 3, 2009, Dr.
Abrams opined, within a reasonable degree of medical certainty,
that "[t]he most symptomatic injury here was his biceps
symptoms, and his biceps symptoms were a direct result of a
superior labrum tear. A superior labrum tear is a traumatic
event. And the traumatic event in this particular case was a
result of an accident because it's a traumatic etiology."
When asked whether the surgery was successful, Dr. Abrams
responded:
[Yes], I think so. I think that it's one of these things where patients, this patient particularly, let's not do in general, this patient is improved. He couldn't do certain things, he can do them now. . . . That being said, there were things he couldn't do that he can do now. And so we would agree, both the patient and I, that he has been improved . . . . And so I think we're both pleased with where we are now from a structural part of his shoulder.
Plaintiff last saw Dr. Abrams for a post-surgical
consultation on January 14, 2013, approximately six months
11 A-3230-13T4 before Dr. Abrams's de bene esse deposition, and one year before
the start of the trial. Based on this examination, Dr. Abrams
testified plaintiff "continue[d] to have some symptoms in his
upper extremity." Plaintiff also complained about "pain along
the shoulder blade[,] . . . some pain radiating up and down his
left upper extremity[, and] some weakness in his actual grip and
side of the neck." Plaintiff told Dr. Abrams his pain level was
a two to three on a scale of one to ten.
With respect to whether plaintiff's injuries or symptoms
were permanent, Dr. Abrams expressed the following opinion,
within a reasonable degree of medical certainty:
I do feel that there will be permanency. As I stated earlier, patients through multiple reasons will not be pain-free and back to full activities. I think we improve their condition by repairing these damaged structures.
He still has ongoing symptoms three or four years later, and I would not be surprised with that. For now I don't think there's any other surgical intervention, but I do feel that his symptoms have some permanency, and I think that the two to three out of ten in pain is a reasonable expectation.
However, Dr. Abrams also noted that plaintiff's "range of
motion of his shoulder [had] improved. It [was] very close to
what his range of motion would be on his other shoulder. His
strength [was] better. And he did not have any crepitus or
grinding or area of concern." According to Dr. Abrams,
12 A-3230-13T4 I don't think -- he has a fairly normal range of motion. I don't think the range of motion is a big issue. I think his big issue now is pain. And so I don't think there is really anything else to offer the man . . . . So by fixing his cartilage or fixing the ring around the plate, we were repairing his ligaments. We achieved that goal, but that doesn't necessarily take away all of the problems that go along with the surgery.
Dr. Abrams admitted he had not reviewed certain records
pertaining to plaintiff's medical history prior to arriving at
his diagnosis. Specifically, Dr. Abrams was not aware that: (1)
a neurologist and chiropractor had examined plaintiff in 2003;
(2) plaintiff received physical therapy in 2005 at the Kessler
Institute for Rehabilitation; (3) plaintiff had an MRI test on
his shoulder in 2003; (4) office notes and medical records
pertaining to this medical consultation were available; and (5)
plaintiff underwent "EMG/NCV testing of his upper extremities in
2003." Finally, Dr. Abrams testified plaintiff did not explain
the "mechanics of the injury to him." Plaintiff only told him a
car rear-ended his car; he was wearing his seatbelt at the time.
NJM called orthopedic surgeon Dr. Edward M. Decter as an
expert witness. He examined plaintiff on September 17, 2010,
and again on September 13, 2012. Dr. Decter reviewed the
reports describing plaintiff's previous injuries, as well as
those relating to this accident. After examining plaintiff on
13 A-3230-13T4 September 17, 2010, Dr. Decter opined plaintiff's left shoulder
was "symmetrical and equal" to his right shoulder. He found
plaintiff had a normal internal and external rotation with no
evidence of instability. According to Dr. Decter, the surgery
was intended to address "some instability of his shoulder where
the labrum was torn." Dr. Decter opined that "Dr. Abrams
corrected the shoulder instability by his operation." He also
found a causal relationship between the shoulder surgery and the
torn labrum attributable to the June 2, 2008 accident.
Dr. Decter gave the following testimony with respect to the
issue of permanency:
A. [Y]es, his shoulder has been altered and it wasn't what God gave him, but the whole purpose of what Dr. Abrams did was to reattach the labrum back to the glenoid socket and that's what he did.
Q. And [Dr. Abrams] did it successfully in your opinion.
A. Well, my exact words were he made an excellent functional recovery as it relates to his shoulder surgery. He has regained full mobility without any focal findings. I said Dr. Abrams should be commended on an excellent job of the shoulder reconstruction. He also did some other things in the shoulder. He --
Q. Well, before we get to that, Doctor, I just want to now ask you my question after we discussed your definition. After your examination, review of all of the records, did you have an opinion as to whether or not
14 A-3230-13T4 Mr. Sackman suffered a permanent injury as a result of -- to his shoulder as a result of the June 2nd, 2008 accident?
A. He has made a good functional recovery with full motion and good strength. There has been an alteration in the anatomy of his shoulder.
Q. He has full range of motion?
A. He regained his range of motion and he had a good functional outcome.
NJM also called Dr. Eric L. Fremed, who testified via a
videotaped de bene esse deposition as an expert in neurology.
Based on an examination he performed on October 14, 2012, Dr.
Fremed found plaintiff's motor function and range of motion in
his left shoulder to be completely normal. In fact, plaintiff
had full functional use of both his arms. However, Dr. Fremed
noted atrophy of plaintiff's left arm. He opined the atrophy
was not related to the June 2008 accident because plaintiff had
reported this same condition in 2003. Dr. Fremed opined, within
a reasonable degree of medical certainty, that plaintiff had not
suffered any permanent neurological injury related to the June
2, 2008 accident.
After NJM concluded its presentation, plaintiff moved to
"bar the defense from raising the verbal threshold defense in
their summation as well as removing it [from] the jury charge
and the jury verdict questionnaire." Defense counsel objected,
15 A-3230-13T4 arguing the evidence presented to the jury clearly established a
disputed issue of fact as to the permanency of plaintiff's
injuries as defined in N.J.S.A. 39:6A-8(a). The trial judge
agreed with defense counsel's argument and denied plaintiff's
motion.
II
Against this record, plaintiff now argues the trial court
erred in denying his motion to preclude the jury from deciding
whether plaintiff proved, by a preponderance of the evidence,
that he sustained a permanent injury proximately related to the
June 2, 2008 accident. Stated differently, relying on the
Supreme Court's holding in Gilhooley v. County of Union, 164
N.J. 533 (2000), plaintiff argues the orthopedic hardware
implanted by Dr. Abrams to surgically repair the injury to his
left shoulder constituted sufficient evidence to satisfy, as a
matter of law, the "permanent injury" threshold under N.J.S.A.
39:6A-8(a).
In response, NJM argues the evidence presented to the jury
was not so one-sided that it precluded a reasonable juror from
finding the injuries plaintiff sustained, proximately related to
the June 2008 accident, have sufficiently healed to enable him
to regain his normal function. NJM also notes that plaintiff's
own testimony conflicted at times, creating a clear issue of
16 A-3230-13T4 credibility for the jury. Finally, NJM emphasizes that
plaintiff's reliance on Gilhooley is misplaced because the Court
in that case addressed the plaintiff's injury in the context of
the Tort Claims Act (TCA), N.J.S.A. 59:1-1 to 59:12-3, not
AICRA.
The record here is replete with evidence from which a
rational jury could find plaintiff did not present sufficient
evidence to satisfy his statutory burden. Under N.J.S.A. 39:6A-
8(a), "[a]n injury shall be considered permanent when the body
part or organ, or both, has not healed to function normally and
will not heal to function normally with further medical
treatment." Although plaintiff did not discuss or even cite the
relevant standard of review, the question before us is governed
by Rule 4:40-1, which provides:
A motion for judgment, stating specifically the grounds therefor, may be made by a party either at the close of all the evidence or at the close of the evidence offered by an opponent. If the motion is made prior to the close of all the evidence and is denied, the moving party may then offer evidence without having reserved the right to do so. A motion for judgment which is denied is not a waiver of trial by jury even if all parties to the action have so moved.
In reviewing a trial court's decision on a motion for a
directed verdict, this court "appl[ies] the same standard that
governs the trial courts." Frugis v. Bracigliano, 177 N.J. 250,
17 A-3230-13T4 269 (2003). The standard for a motion made pursuant to Rule
4:40-1 is akin to the standard applicable to a motion for
summary judgment under Rule 4:46-2(c). We must determine
"whether the evidence presents a sufficient disagreement to
require submission to a jury or whether it is so one-sided that
one party must prevail as a matter of law." Ibid. (quoting
Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540
(1995)).
Indeed, "[a] motion for a directed verdict, made pursuant
to [Rule] 4:40-1 . . . 'shall be denied if the evidence,
together with the legitimate inferences therefrom, could sustain
a judgment in [the non-movant]'s favor.'" Edwards v. Walsh, 397
N.J. Super. 567, 571 (App. Div. 2007) (quoting R. 4:37-2(b)).
Otherwise, where "the evidence and uncontradicted testimony is
'so plain and complete that disbelief of the story could not
reasonably arise in the rational process of an ordinarily
intelligent mind, then a question has been presented for the
court to decide and not the jury.'" Frugis, supra, 177 N.J. at
270 (quoting Ferdinand v. Agric. Ins. Co., 22 N.J. 482, 494
(1956)).
Here, the trial judge made the following findings in
support of his decision to deny plaintiff's motion:
In deciding this motion naturally the Court has to give all inferences in favor of
18 A-3230-13T4 the non-moving party in this case, the defendant. Plaintiff contends that Dr. Abrams clearly testified that as the result of the labral tear which was repaired by the arthroscopic surgery in 2010 that there is going to be and will be into the future pain caused by this repair of the tear, caused by the injury that was caused by this accident continuing into the future.
However, Dr. Decter -- it is not the defendant's burden to prove by a preponderance of the evidence that there was not an injury and that's what plaintiff is asking. The defense expert, Dr. Decter, clearly testified that in his opinion Dr. Abrams did a superlative job, I don't know if that's the word he used, but he was excellent, he would use Dr. Abrams to repair his own shoulder.
He was effusive in his [praise] and what he also said was he completely -- he completely healed, that the body part in question now functions normally and he doesn't have to use those words, but his testimony was he has full range of motion, he has strength, his [sic] has suppleness, he has all of these various degrees of standards to determine whether or not the left shoulder has been restored to function normally and it -- that's the standard and I find that he has presented sufficient testimony and credible medical evidence based upon his analysis of the credible medical evidence relied upon by plaintiff's expert to render that opinion.
I find that [permanency] is a matter of fact that has to be determined by the jury and the motion is denied.
[(Emphasis added).]
19 A-3230-13T4 In cases where the question of permanency under N.J.S.A.
39:6A-8(a) is hotly contested, such as it was in this case, the
jury, acting within its fact-finding role, must determine
whether plaintiff has satisfied his statutory burden by a
preponderance of the evidence. Ames v. Gopal, 404 N.J. Super.
82, 85-86 (App. Div. 2008), certif. denied, 198 N.J. 316 (2009).
Here, the trial judge's analysis and ultimate conclusion is
amply supported by the evidence presented at trial and properly
applied the statutory standard established by the Legislature in
Plaintiff next argues the fact it took the jury
approximately twenty minutes to reach a unanimous verdict
finding plaintiff did not prove, by a preponderance of the
evidence, he sustained a permanent injury that is proximately
related to the June 2, 2008 accident constitutes a per se
miscarriage of justice. Plaintiff's appellate brief devotes a
total of two and one half pages to this argument. A half of one
page contains a verbatim recitation of the Model Civil Jury
Charge, through which a trial judge admonishes jurors to decide
the case impartially and not permit "sympathy, passion, bias, or
prejudice," to influence their decision. Model Jury Charge
(Civil), 1.12P, "No Prejudice, Passion, Bias or Sympathy"
(2007). Plaintiff does not cite any legal authority to support
20 A-3230-13T4 the extraordinary relief he seeks from this court. Plaintiff
merely equates the brevity of the deliberations with a
miscarriage of justice. Under these circumstances, plaintiff's
argument lacks sufficient merit to warrant any further
discussion in a written opinion. R. 2:11-3(e)(1)(E).
Finally, plaintiff argues the trial judge committed
reversible error when he failed to give a proper curative
instruction to the jury in response to a remark made by defense
counsel in the course of her opening statement to the jury.
Plaintiff's counsel devoted a total of one and a quarter pages
in his appellate brief to this argument. Here again,
plaintiff's counsel did not cite any legal authority in support
of his client's legal position on appeal. Although this
argument is completely devoid of merit, we will nevertheless
address it in some detail because it is predicated on an alleged
misstatement of law or fact by defense counsel, compounded by an
alleged erroneous or inadequate response by the trial judge.
When defense counsel addressed the jury for the first time
in her opening statement, she introduced herself as follows:
I represent the defendant, Mr. Earl Smith, who is here with us today. As you've just heard, in this case you're not going to have to determine who was at fault for an accident that happened now on June 2nd, 2008. Mr. Smith has taken responsibility for that accident, but your task this week
21 A-3230-13T4 is going to be no less difficult than if you had to have the full case in front of you.
In this case . . . plaintiff must prove to your satisfaction as reasonable people, and by a preponderance of the evidence . . . that the June 2nd, 2008 accident and that accident alone, not past life experiences, not subsequent life experiences, but that accident alone cause Mr. Sackman to suffer a permanent injury. . . ."
At the conclusion of defense counsel's opening statement,
plaintiff's counsel requested to be heard outside the presence
of the jury. At this N.J.R.E. 104 hearing, plaintiff's counsel
argued that since this suit was an UIM claim against NJM, it was
improper and misleading for defense counsel to refer to the
tortfeasor as "defendant." To cure this mischaracterization,
plaintiff's counsel requested the trial judge give the jury a
curative instruction that Mr. Smith's personal assets are not in play at all, and quite frankly I think it requires instruction to the jury there's sufficient insurance coverage in this matter.
I know I'm not allowed to mention NJM and I'm not allowed to mention insurance coverage and I did not. I constantly referred to the defense or defendant in this case. And quite frankly, I'm not even so sure it's appropriate for Mr. Smith to be constantly referred to as the defendant when he is not the defendant in this case and there is no actually pending law suit or pending action against him as a named defendant.
22 A-3230-13T4 [(Emphasis added).]
The trial judge denied plaintiff's application and instead
instructed the jury as follows:
Your only function in this case is to determine, number one, whether the injuries reached a level where the plaintiff is entitled to sue for damages and if so, based upon the evidence and jury instruction I give you on damages at the conclusion of the case, what amount of damages would compensate the plaintiff for his injuries.
Plaintiff argues the judge's rejection of his trial
counsel's proposed curative instruction constituted reversible
error. Specifically, plaintiff's appellate counsel states in
the brief before us: "When one combines this element of the
trial with the fact that the jury rendered a no cause verdict on
the threshold in only twenty-one minutes, one must seriously
question the validity of the jury's verdict." Here again
plaintiff's appellate counsel did not cite any legal authority
to support this position.
Had plaintiff's appellate counsel taken the time and effort
to conduct even a modicum of research of this legal issue, he
would have discovered our Supreme Court addressed this precise
contentious question in Bardis v. First Trenton Ins. Co., 199
N.J. 265 (2009), an opinion released by the Court five years
before the start of this trial. As framed by Justice Hoens on
23 A-3230-13T4 behalf of a majority of the Court in Bardis, "[W]e are called
upon to answer . . . whether, in a jury trial arising out of
Underinsured Motorist (UIM) coverage, the insurer should be
identified as the defendant."5 Id. at 269. Citing with approval
our holding in Krohn v. New Jersey Full Ins. Underwriters Ass'n,
316 N.J. Super. 477, 483 (App. Div. 1998), certif. denied, 158
N.J. 74 (1999), the Bardis Court emphasized that "[a] UIM action
is essentially a contract-based substitute for a tort action
against the tortfeasor." Bardis, supra, 199 N.J. at 279. The
Court nevertheless rejected
the request for a rule compelling the insurer in a UIM trial to be identified as the defendant . . . . Instead, in the context of a UIM trial, in which the circumstances of the underlying accident are the focus, we are persuaded that the insurer's identity is ordinarily irrelevant. Nonetheless, we leave it to the sound discretion of the trial judge to conclude, and to act accordingly, if circumstances in a particular trial suggest otherwise.
[Id. at 277.]
We acknowledge that reasonable minds can differ on this
question. Indeed, in Bardis, Justice Albin wrote a passionate
and compelling concurrence expressing his belief
that the jury can handle the truth, that the jury can be trusted to be fair to the true
5 The Bardis Court also addressed two other issues that are not relevant to this discussion.
24 A-3230-13T4 parties in interest, and that feeding fictions to the jury is an unacceptable way to run a transparent court system. I also believe that a properly instructed jury-- even in an insurance coverage case--is capable of rendering a fair verdict. In courtrooms throughout this State, juries hear sensational cases widely reported in the press, sometimes involving notorious defendants or plaintiffs, but we have faith that carefully selected jurors given proper legal guidance will do justice. I see no reason to depart from that paradigm for an insurance company in a UIM coverage case.
[Id. at 282-83 (Albin, J., concurring).]
III
We cannot, in good conscience, conclude this opinion
without finding that the brief submitted by plaintiff's counsel
in this appeal warrants the imposition of monetary sanctions
pursuant to Rule 2:9-9. Because we are keenly aware of the
extraordinary nature of this action, we want to clearly explain
the reasons underpinning our decision. Our reproach is not
based on counsel's failure to adhere to the format requirements
delineated in Rule 2:6-2. Plaintiff's appellate brief was
neatly printed and the point headings clearly identified the
legal issues raised therein. Furthermore, although we have
rejected plaintiff's arguments, we do not claim plaintiff's
counsel raised frivolous arguments, completely lacking any
reasonable basis in law or equity.
25 A-3230-13T4 The attorney's failings here are not based on the type of
conduct proscribed pursuant to Rule 1:4-8(a) and N.J.S.A. 2A:15-
59.1 as "frivolous litigation." As our colleague Judge Lyons
made clear in Alpert, Goldberg, Butler, Norton & Weiss, P.C. v.
Quinn, 410 N.J. Super. 510, 545 (App. Div. 2009), certif.
denied, 203 N.J. 93 (2010), while "Rule 1:4-8 has a punitive
purpose in seeking to deter frivolous litigation, it also seeks
to compensate a party that has been victimized by another party
bringing frivolous litigation." (Citing Deutch & Shur, P.C. v.
Roth, 284 N.J. Super. 133, 141 (Law Div. 1995)). By contrast, a
sanction imposed under Rule 2:9-9 is intended to deter the
improper prosecution or defense of an appeal and prevent the
misuse of judicial resources that result from such derelictions.
In re Tenure Hearing of Cowan, 224 N.J. Super. 737, 752-53 (App.
Div. 1988), Judge Brody explained how an attorney's failure to
adhere to Rule 2:6-2(a)(4) (which requires an appellant's brief
to include "[a] concise statement of the facts material to the
issues on appeal supported by references to the appendix and
transcript") profoundly undermined the court's ability to
comprehend the material facts in the case.
The limitation on the number of pages in a brief has a wholesome purpose. It requires the brief writer to recount the facts and to argue the law with economy. That constraint is designed to produce a brief that is well-
26 A-3230-13T4 organized, thoughtful, comprehensible and to the point.
. . . .
Appellant's expansiveness infected the legal arguments in his brief with similar unproductive results. Over 20 pages are devoted to single-spaced extensive quotations from published opinions and from the record. At one point two opinions are quoted in three and a half continuous pages without regard to the relevancy of the quoted material.
[Id. at 752-53.]
Here, the brief submitted by plaintiff's counsel must be
censured and sanctioned because it displayed an utter
indifference to the standards of professional competence a
tribunal is entitled to expect from an attorney admitted to
practice law in this State. Even a cursory review of
plaintiff's appellate brief reveals a complete lack of any
effort by counsel to cite and discuss, in a professionally
reasonable manner, relevant legal authority in support of the
three arguments raised therein.
The first argument in plaintiff's appellate brief states
the trial court erred in denying plaintiff's motion to preclude
the jury from considering the question of permanency. We have
stated the reasons for rejecting this argument in Part II of
this opinion. However, it bears repeating that plaintiff's
brief cited only Gilhooley v. County of Union, supra, as support
27 A-3230-13T4 for this argument. The brief did not discuss or even identify
the relevant standard we must apply in reviewing the trial
judge's decision, nor did it include an analysis of how the
Court's reasoning in Gilhooley applied to the facts of this
case, or to the verbal threshold requirements in AICRA.
Plaintiff's second argument sought to overturn the jury's
verdict. Counsel again failed to cite any legal authority in
support of this argument; he did not articulate the relevant
standard of review, or identify the specific incidents of
impropriety that irreparably tainted the jury's verdict. The
only legal reference included as support for vacating the jury's
verdict consisted of a verbatim recitation of the standard model
jury charge the trial judge gave the jury describing its
obligation to decide the case without bias or prejudice.
Plaintiff's third and final argument point sought the
reversal of the jury verdict based on defense counsel's alleged
misrepresentation in her opening statement before the jury. As
part of this argument, plaintiff's counsel also questioned the
efficacy of the trial judge's response to the alleged
misstatement by defense counsel. Plaintiff's counsel did not
cite any legal authority to support this argument. Counsel's
unsupported assertions covered a total of one and one quarter
pages.
28 A-3230-13T4 Thirty-nine years ago, this court repudiated the same type
of shoddy, unprofessional submission, and in the process
endorsed the following standards of professionalism that must be
followed in the presentation of legal analysis in appellate
briefs:
Despite the fact that independent research by the court is, to a greater or lesser extent, the invariable rule, the parties may not escape their initial obligation to justify their positions by specific reference to legal authority. Paucity of such reference suggests a like paucity of authority helpful to the party. The absence of any reference to the law, as here, suggests as well a regrettable and reprehensible indifference on the part of the brief writer not only to the rules but to the interest of the client as well.
[State v. Hild, 148 N.J. Super. 294, 296 (App. Div. 1977). (Emphasis added).]6
We now reaffirm our commitment to the enforcement of the
professional standards our colleagues expressed in Hild.
Lawyers who take on the responsibility to represent clients
6 We emphasize that at the time our colleagues endorsed this standard of professional responsibility, legal research was performed by the attorney through a labor-intensive process that often consumed hours of an attorney's time. It required personally reviewing the various legal digests to identify a line of possibly relevant cases. If a case seemed relevant, the attorney had to examine the Shepard's volumes, one by one, to ensure the case had not been reversed or distinguished in a manner adverse to the legal argument at issue. Today, far more comprehensive research can be completed in a matter of minutes.
29 A-3230-13T4 before this court are expected to: (1) familiarize themselves
with the record developed in the forum of origin; (2) research
and analyze the competent legal authority related to the salient
facts of the case; and (3) submit briefs in support of the
arguments identified therein which reflect that the lawyers
conducted these tasks in a diligent and professional manner.
This is the kind of effort a tribunal in this State is entitled
to expect from an attorney admitted to practice in this State.
Most importantly, as we noted in Hild, this is the kind of
professional effort an attorney owes to his or her client.
Ibid.
As appellate judges, we review hundreds of briefs every
year.7 The quality of the legal analysis presented to us varies
in every case from excellent to poor. However, a large
percentage of the briefs we review fall within the middle to
upper range of this spectrum. We accept this as an unavoidable
aspect of any human endeavor, knowing that facility of
expression, advocacy skills, and intellectual abilities are not
equally distributed. What we cannot accept, however, is a lack
7 As reported by the Administrative Office of the Courts, "[t]he Appellate Division decides approximately 6,500 appeals and 10,000 motions each year." New Jersey Courts, http://www.judiciary.state.nj.us/appdiv/index.html (last visited Apr. 18, 2016).
30 A-3230-13T4 of effort. That is what occurred here. That is the basis for
our decision to sanction plaintiff's appellate counsel.
Plaintiff's appellate counsel failed to conduct even a
modicum of legal research or attempt to present any reasonably
competent analysis of the law as it related to the facts of this
case. By submitting a shoddy, professionally unacceptable
brief, plaintiff's appellate counsel displayed a disrespect for
the work of this court and for the legal profession itself. The
indifference to the fundamental tenets of the legal profession
displayed here by plaintiff's appellate counsel warrants the
imposition of a monetary sanction under Rule 2:9-9.
Rule 2:9-9 authorizes this court to impose sanctions
against an attorney who fails "properly to prosecute or defend
an appeal." These sanctions may include, but are not limited
to, dismissal of the appeal, "imposition of costs or attorney's
fees[,] or such other penalty as may be assessed personally
against the attorney." In this respect, our Supreme Court has
admonished that "if it is at all possible, the litigant should
not be burdened with his attorney's derelictions." Paxton v.
Misiuk, 34 N.J. 453, 458 (1961).
Plaintiff's appellate counsel is ordered to issue a check
from the firm's business account payable to the Treasurer of the
State of New Jersey in the sum of $200. The check shall be
31 A-3230-13T4 remitted to the Clerk of the Superior Court, Appellate Division
within ten calendar days of the release of this opinion.
Affirmed.
32 A-3230-13T4 _____________________________________________________ GILSON, J.S.C. (temporarily assigned) concurring.
I concur in the well-reasoned opinion of the court, except
for section III. I agree with my colleagues in encouraging
professional standards of advocacy. Attorneys should strive to
make reasoned arguments based on the facts and law and should
candidly cite supporting or opposing precedent. I write
separately because I believe a monetary sanction is not
warranted here. Admittedly, plaintiffs' appellate counsel could
have done more, but I do not find their brief so lacking in
thought and preparation as to manifest a disrespect to
professional standards. I take this position because I believe
that sanctions should be reserved for appropriate limited
situations. In my opinion, this is not such a situation.