Szczecina v. PV Holding Corp.

997 A.2d 1079, 414 N.J. Super. 173, 2010 N.J. Super. LEXIS 110
New Jersey Superior Court Appellate Division·Decided June 25, 2010·Published·Cited by 20 cases

Opinion

The opinion of the court was delivered by

FASCIALE, J.S.C.

(temporarily assigned).

Defendants Joseph J. Martino and Melissa Boos1 appeal from a $1,000,000 jury verdict following a verbal threshold, damages-only trial. The primary question on appeal is whether clearly inappropriate statements about the defense made by plaintiffs counsel in his opening statement and summation warrant a new trial. Those statements included derisive comments about defendants, their counsel, and their expert witnesses, as well as counsel’s request that the jury “send a message” through its verdict. Because we conclude that counsel’s conduct infected the jury’s verdict, we reverse and remand for a new trial.

On August 2, 2004, plaintiff Barbara Szczeeina2 and defendant Joseph J. Martino were the drivers of two cars involved in a three-car accident. She and her passenger son, David Johnson, filed separate lawsuits seeking damages for personal injuries sustained in the accident. At the non-binding arbitration involving plaintiffs claim, Martino was found one hundred percent responsible for the accident, and plaintiff was awarded $65,000. Martino filed a request for a trial de novo. After both remaining defendants stipulated to liability, the two cases were tried simultaneously on the issue of damages, including the verbal threshold. During deliberations, Johnson settled.

[176]*176Plaintiff was fifty-six years old at the time of the accident. She alleged injuries to her left hand and neck, as well as injuries to her back for which she received numerous epidural injections. Defendants argued that her hand and neck complaints had resolved before trial, and that plaintiffs back pain was neither permanent nor related to the accident.

The primary contested issue at trial was whether there was a causal relationship between plaintiffs alleged back pain and the accident. In support of their position that it was not, defendants pointed to the fact that there was no documented complaint by plaintiff about back pain until many months after the accident. Plaintiff complained of back pain at a visit with her chiropractor on March 16, 2005, and first mentioned back pain to her orthopedist on September 2, 2005. Defendants also pointed to the facts that, on the night of the accident, no x-rays of plaintiffs back were taken in the hospital, and the hospital records do not mention back problems.

Defendants pointed to the testimony of plaintiffs pain management specialist, Dr. Lipsky, that there were arthritic changes in her back. Plaintiff first saw Dr. Lipsky on March 16, 2005, but he did not treat her between May 2005 and November 2006. In November 2006, plaintiff received three epidural injections. In January 2007, plaintiff experienced a different type of back pain. Dr. Lipsky testified that the later-occurring low back pain was “related more to the facet joints and the inflammatory changes around the epidural space and less to inflammation of the nerve root” and that plaintiff had “less referred pain to the leg.”

Plaintiff contended that at the hospital she complained about back pain, and that someone “wrote something down,” but she did not know “what they wrote down.” Plaintiff testified that at her first visit with her orthopedist she told him about her back pain, but she speculated that he never wrote it down because she thought “he was more concerned with [her] hand and he was in the process of moving his offices.”

[177]*177On December 11, 2008, the jury returned a verdict of $1,000,000 in favor of plaintiff, unanimously finding that the accident proximately caused her injury.3 On February 6, 2009, the trial judge denied defendants’ motion for a new trial or, alternatively, for a remittitur. Defendants argued, among other things, that the verdict was against the weight of the evidence and was improperly affected by the comments made by plaintiffs counsel during opening and closing arguments. In denying the motion, the judge found that “[wjhile counsel may have made a few comments that should not be encouraged, there is no indication that these few comments prejudiced defendants to such an extent that they are entitled to a new trial.”

On appeal, defendants contend that plaintiffs counsel overstepped the bounds of appropriate trial advocacy which, they contend, led to an unjust result. They also argue that plaintiff failed to prove a permanent injury as required by N.J.S.A. 39:6A-8a, that the damage award was excessive, that a remittitur was warranted, and that the trial judge erred by not amending the judgment to remove Boos as a liable defendant because she had no involvement in causing the accident and there' was no agency. Finally, defendants contend that the trial court erred by not granting the motion for a new trial.

We begin our analysis by focusing on the statements made by plaintiffs counsel. In addition to being excessively argumentative, his opening statement attacked the integrity of defendants, defense counsel and the defense witnesses. Even more inappropriately, plaintiff’s counsel asked the jury to “send a message” that “we’re not going to accept that the paid agreers, the spin doctors[,] are trying to get [defendants] off the hook.” His summation, which can appropriately contain argument to the jury, [178]*178was inappropriate in this case because it continued additional inflammatory attacks on the defense.

“The fundamental purpose of opening statements is ‘ “to do no more than inform the jury in a general way of the nature of the action and the basic factual hypothesis projected, so that they may be better prepared to understand the evidence.” ’ ” Amaru v. Stratton, 209 N.J.Super. 1, 15, 506 A.2d 1225 (App.Div.1985) (quoting Passaic Valley Sewerage Comm’rs v. Geo. M. Brewster & Son, Inc., 32 N.J. 595, 605, 161 A.2d 503 (1960) (quoting Farkas v. Middlesex County Bd. of Chosen Freeholders, 49 N.J.Super. 363, 367-68, 139 A.2d 779 (App.Div.1958))). Counsel “must be summary and succinct” and “[njothing must be said which the lawyer knows cannot in fact be proved or is legally inadmissible.” Passaic Valley, supra, 32 N.J. at 605, 161 A.2d 503 (citing Paxton v. Misiuk, 54 N.J.Super. 15, 20, 148 A.2d 217 (App.Div.1959), aff'd, 34 N.J. 453, 170 A.2d 16 (1961); Shafer v. H.B. Thomas Co., 53 N.J.Super. 19, 26, 146 A.2d 483 (App.Div.1958)).

In addition, it is improper for an attorney to make derisive statements about parties, their counsel, or their witnesses. In Rodd v. Raritan Radiologic Associates, P.A., 373 N.J.Super. 154, 171-72,

Szczecina v. PV Holding Corp., 997 A.2d 1079, 414 N.J. Super. 173, 2010 N.J. Super. LEXIS 110 (N.J. Ct. App. 2010).

997 A.2d 1079 (Szczecina v. PV Holding Corp.) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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