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Cumulative Trial Errors Merit New Trial to Defendants for $4.5 Million Jury Award in Automobile Accident Case

By on June 10, 2016 in Blog with 0 Comments

Plaintiff Sophia Torres (“Torres”) suffered injuries as a result of a motor vehicle accident with the garbage truck being driven by Defendant Javier Pabon (“Pabon”) for his employer, Defendant Suburban Disposal (“Suburban”). Torres was seriously injured in a rear-end collision between her car and the Suburban truck. She claims that, due to the negligent maintenance of the truck’s taillights, she was unable to observe the truck and rear-ended it. In Torres v. Pabon, 2016 N.J. LEXIS 553 (2016), the Supreme Court reversed the $4.5 million jury verdict due to multiple errors committed by the trial court during the trial.

Due to five improper rulings, the Supreme Court found that the determination as to both liability and damages was affected, meriting a new trial on both. The verdict had been upheld by the Appellate Division. Thus, the Appellate Division ruling was reversed and the case remanded back to the trial court for a new trial.

The five improper rulings were as follows: (1) permitting an adverse inference charge for the failure of the Defendant Pabon to testify; (2) permitting the plaintiff to read to the jury untimely and improper requests for admission as to the opinions of the defendants’ orthopedic expert, Dr. Helbig; (3) permitting an adverse inference charge as to the failure of the defendants to have Dr. Helbig testify at trial; (4) the failure of the trial court to properly charge the jury on a driver’s duty to follow at a safe distance; and (5) the failure of the trial court to instruct the jury that the plaintiff’s medical expenses should not be included in the calculation of damages.

An “adverse inference” charge (also known as a Clawans charge) is merited when a party’s failure to present evidence “raises a natural inference that the party so failing fears exposure of those facts would be unfavorable to him.” In such a situation, the trial court judge would instruct the jury that it may draw an adverse inference against the party who would be expected to call that person as a witness but fails to do so.

However, there are a number of factors that the trial court must consider before deciding whether an adverse inference charge would be appropriate. The Supreme Court found that had the trial court undertaken a thorough analysis of these factors, it would have denied the plaintiff’s request for an adverse inference charge as to the defendants’ failure to call Pabon as a witness.

The first factor is that the uncalled witness was peculiarly within the power or control of the one party. Here, the Court found that the plaintiff could have simply served a notice in lieu of subpoena upon his counsel and that notice would have compelled Pabon to testify at the trial. Moreover, the plaintiff deposed Pabon and, thus, was fully familiar with his testimony.

By giving the adverse inference charge, when it was not merited, the trial court suggested to the jury that Pabon’s testimony would have undermined the defendants’ case and that defendants sought to conceal that testimony from the jury. However, plaintiff not only utilized his deposition testimony at trial but she also had the benefit of this jury charge, which was harmful to the defendants. Accordingly, the Court found the trial court erred in giving the jury the Clawans charge with respect to the defendants’ decision not to call Pabon to testify at trial.

Next, the Court considered the trial court’s ruling to permit plaintiff to read to the jury plaintiff’s late served requests for admissions stating Dr. Helbig’s opinions and its Clawans charge based upon defendants’ decision not to call Dr. Helbig as an expert witness at trial. As for the requests for admissions, they were served long after the close of discovery and were not even due until after the trial was well underway. The Court found that the defendants had no obligation to respond to them.

They were also substantively improper because the plaintiff was attempting to seek the defendants’ admissions to introduce into evidence portions of Dr. Helbig’s expert report. Thus, they did not conform to the rule pertaining to requests for admissions and the trial court’s ruling permitting their use was error.

As for the Clawans charge, again, the Supreme Court found that the trial court failed to undertake the proper analysis as to the use of an adverse inference charge. Plaintiff could have called Dr. Helbig to the stand. Thus, defendants did not have exclusive control over this witness.  Further, prior case law has held that a Clawans charge is rarely warranted when the missing witness is an expert witness because there are various reasons why an expert witness may not be called, unrelated to a party’s fear of adverse testimony.

Accordingly, the Supreme Court found that the trial court committed two errors as to Dr. Helbig. It improperly permitted the plaintiff’s attorney to read her untimely and improper requests for admission to the jury and it gave the jury an unwarranted Clawans charge as to the decision not to call Dr. Helbig as a witness.

As for the trial court’s instruction regarding the duty of a driver to maintain a safe distance while following another vehicle, the trial court mistakenly referred to this duty as belonging to the defendant when it was the plaintiff who was following the defendant – not vice versa. In this case, it was the plaintiff who was subject to the duty not to follow too closely, not the defendant. By juxtaposing the two parties and instructing the jury that the defendant had the obligation to follow the plaintiff’s vehicle at a safe distance, the jury may have been left with the mistaken impression that it was the defendant’s truck that was following the plaintiff’s vehicle too closely. Again, the Supreme Court found that this mistaken charge was contradictory, confusing, and was error.

Last, in her testimony, the plaintiff blurted out that she was unable to pay “hundreds of thousands of bills.” Under AICRA (Automobile Insurance Cost Reduction Act), evidence of the amounts collectible or paid under a standard insurance policy are inadmissible. There is a model jury charge (Medical Expenses (Auto)) which states that “the plaintiff’s claim in this case does not include any claims for medical expenses.” Although the defense counsel did not request this charge be given, the Court held that the trial court should have included the medical expense charge in its jury instructions. Without this charge, the jury may have mistakenly assumed that the medical expenses described by the plaintiff were part of her claim for damages.

The Supreme Court considered the cumulative nature of all of these trial court errors on the fairness of the trial. It concluded that the trial court’s five erroneous determinations warranted a new trial on both liability and damages. These rulings could have affected the jury’s determination of both the negligence of Pabon, as well as the plaintiff’s damages. Accordingly, the Supreme Court found that the defendants were not afforded a fair trial on either liability or damages and reversed and remanded the matter back to the trial court for a new trial.

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About the Author

About the Author:

Ms. Ramos is an Executive Committee Member and Co-Chair of the Litigation Department at Capehart Scatchard, P.A. located in Mount Laurel, New Jersey. She is an experienced litigator with over 25 years experience handling diverse matters. Practice areas include tort defense, business litigation, estate litigation, tort claims and civil rights defense, construction litigation, insurance coverage, employment litigation, shareholder disputes, and general litigation.

For the years 2020 and 2021, Ms. Ramos was selected for inclusion in The Best Lawyers in America© in the practice area of Litigation - Insurance. The attorneys on this list are selected based upon the consensus opinion of leading lawyers about the professional abilities of their colleagues within the same geographical area and legal practice area. A complete description of The Best Lawyers in America© methodology can be viewed via their website at: https://www.bestlawyers.com/methodology.

In 2021, Capehart Scatchard and Ms. Ramos received the “Best Law Firm” ranking in the area of Litigation – Insurance (Metro, Tier 3) published by U.S. News & World Report and Best Lawyers®. Law firms included on the list are recognized for professional excellence with consistently impressive ratings from clients and peers. To be eligible for a ranking, a firm must have at least one attorney who has been included in the current edition of Best Lawyers in America, which recognizes the top five percent of practicing lawyers in the United States. Betsy Ramos (Litigation – Insurance) was recognized for this prestigious award in the 2021 edition. For a description of the “Best Law Firm” selection methodology please visit: https://bestlawfirms.usnews.com/methodology.aspx.

“Best Law Firms” is published by Best Lawyers in partnership with U.S. News & World Report. For a description of the selection methodology please visit: https://bestlawfirms.usnews.com/methodology.aspx.

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