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Multiple Trials Error by Defense Counsel Merit Reversal of Jury Verdict

By on December 20, 2018 in Litigation with 0 Comments

The Appellate Division on December 6, 2018 issued a reported opinion addressing several key issues regarding trial tactics.  Given that this opinion was approved for publication, it must be assumed that it is the Appellate Division’s intention to emphasize the issues addressed therein so as to influence the conduct of future trials. The matter is Morales-Hurtado v. Reinoso, 2018 WL 6362663 (App. Div. December 6, 2018).

The factual background is straightforward. Plaintiff filed a bodily injury claim arising out of a motor vehicle accident which took place on August 24, 2011. Defendant did not dispute at trial that he was partially responsible for causing the accident. However, the issue of Plaintiff’s liability for the happening of the accident was before the jury. The right front corner of the minibus that Defendant was driving struck the left driver’s side corner of the 2003 Honda Civic which Plaintiff was driving.  Plaintiff asserted that he intended to make a right turn, and accordingly activated his turn signal, but had to yield for pedestrians crossing the road.  He recalled passing the Defendant’s bus shortly before the impact, but claimed that, while stopped for the pedestrians, he saw the bus itself stopped with a passenger getting on to the bus. Plaintiff returned his attention to the pedestrians, and, seconds later, felt the impact to the rear of his vehicle.

During his opening statement, defense counsel made reference to ours being a “litigious society” in explaining why surveillance was conducted of Plaintiff.

At the outset of his cross examination of Plaintiff, defense counsel asked Plaintiff a variety of questions about Plaintiff’s native country, his citizenship, and his ability to speak English.

Defense counsel also brought out that the airbags in Plaintiff’s car did not deploy upon impact.

The Defendant’s trial testimony as to the happening of the accident was different from Plaintiff’s version of the accident, the police report, and Defendant’s own interrogatory answers. In short, Defendant claimed at trial that he had been traveling behind Plaintiff, and when the traffic light turned green, without utilizing a signal, Plaintiff began to turn right and then suddenly stopped, such that Defendant did not have sufficient time to stop.  However, in his discovery responses, Defendant indicated he had himself been in the process of making a turn.

When Plaintiff’s counsel attempted to bring out these inconsistencies, defense counsel objected, asserting that there were no inconsistencies.

Defense counsel had also brought out on cross-examination of Plaintiff that two of the passengers in his vehicle were 60 years old. Defense counsel proffered that he did this “to the extent (one) communicated what happened to the cop.”  However, defense counsel’s last question on direct to his own client was “Did any of the occupants, other than (Plaintiff), sue you?”  The Trial Court immediately struck that question and instructed the jury it was irrelevant to the issue of liability.

Plaintiff claimed that he suffered a variety of bulging and herniated discs in his cervical, thoracic and lumbar spine. The defense questioned whether these injuries predated the accident.

One of Plaintiff’s medical experts prepared a draft narrative report that included the notation “draft for attorney review.” Defense counsel cross-examined the doctor about whether it was his custom and practice while treating patients to write reports to the patient’s lawyers for their approval of what the doctor was recommending.

Plaintiff ultimately underwent spinal surgery, and in his cross examination of the surgeon, defense counsel asked the surgeon if he was familiar with the “concept of secondary gain,” which the doctor defined as “when a patient has a reason to have symptoms beyond organic reasons, beyond reasons that you could explain with the pathologies you have discovered.”  Morales-Hurtado, at *2. However, no expert had opined that Plaintiff was experiencing “secondary gain.”

Multiple other medical experts were also called to the stand and examined at length by the parties.

The jury returned a unanimous verdict on liability, attributing 80% liability to Defendant and 20% to Plaintiff. Plaintiff was then awarded $50,000.00 for pain, suffering, disability, impairment and loss of enjoyment of life by a vote of 7 to 1. The jury unanimously awarded Plaintiff $71,615.73 for past medical expenses.

Plaintiff thereafter appealed, arguing that the Trial Court erred in permitting defense counsel to raise the concept of “secondary gain” through his cross-examination of Plaintiff’s surgeon, even though none of the experts said that Plaintiff was experiencing the same. Plaintiff also alleged that defense counsel’s conduct, including what were characterized as “personal attacks” on witnesses and Plaintiff’s counsel, warranted a new trial. The defense responded that his trial tactics were nothing more than aggressive cross-examination and valid witness impeachment.

The Court began by describing cross-examination as “the greatest legal engine ever invented for the discovery of truth.”  California v. Green, 399 U.S. 149, 158 (1970).  However, the Court then referenced Rule of Professional Conduct 3.4(e) for the proposition that a trial attorney shall not “allude to any matter that the lawyer does not reasonably believe is relevant or that will not be supported by admissible evidence, assert personal knowledge of facts in issue except when testifying as a witness, or state a personal opinion as to the justness of a cause, the credibility of a witness, the culpability of a civil litigant or the guilt or innocence of an accused.”

The Appellate Division then discussed the Court’s role in overseeing trials, noting that credibility determinations are to be made by the jury.

The Court noted that while an innocuous violation of any of the foregoing principles does not necessarily require a new trial, when taken together, numerous small errors can accumulate so as to deprive a party of a fair trial.  Torres v. Pabon, 225 N.J. 167, 191 (2016).

While the defense had argued that Plaintiff’s counsel did not object to many of the foregoing instances, nor indeed raised many of those issues on appeal, the Court noted that an “appellate court may, in the interest of justice, notice plain error not brought to the attention of the trial or appellate court.”  Rule 2:10-2.  In this context, the Appellate Division referenced several of the key aspects of the trial is set forth above.

Regarding defense counsel’s opening statement, the Court indicated that an opening statement is not an occasion for argument, but rather to state what evidence will be presented and to relate parts of the evidence and testimony to the whole. The Court held that defense counsel’s reference to a “litigious society was improper. The remark was not a statement of evidence, and it arguably was an appeal to prejudice.”  Morales-Hurtado, at *7.

The Court characterized defense counsel’s questions regarding Plaintiff’s citizenship, need for an interpreter and the like as having the potential to appeal to prejudice, inflame certain jurors, and distract them from their proper role in the justice system, which is to evaluate relevant evidence fairly and objectively.  State v. Sanchez-Medina, 231 N.J. 452, 463 (2018).  The Court held that the probative value of such questions was substantially outweighed by the risk of undue prejudice.  Serrano v. Underground Utils. Corp., 407 N.J. Super. 253, 281 (App. Div. 2009).

The Court then found defense counsel’s questioning regarding the ages of the passengers in the car as relevant to the “context of the totality of inappropriate comments and questions throughout the trial,” noting that “as we have recognized, sometimes jury instructions about the misuse of evidence are simply inadequate to effectively blunt the risks of significant prejudice.”  James v. Ruiz, 440 N.J. Super. 45, 76-77 (App. Div. 2015).

Then, the Court reiterated that testimony regarding air bags is inadmissible in the absence of expert testimony.

The Court then turned to the cross-examination of Plaintiff’s medical experts.  After reiterating that cross-examination about a doctor’s relationship with a law firm, the number of times they have testified at the firm’s request, and the basis of their compensation arguably demonstrate bias and are thus permissible, the Court also indicated that it was not improper to establish that the doctor knew the Plaintiff was involved in a lawsuit when the doctor wrote a report. However, the Court also indicated that opposing counsel may move to exclude the evidence pursuant to N.J.R.E 403 on the grounds that it is more prejudicial than probative.

The Court then held that defense counsel’s cross-examination of the doctor about the “draft report” should be barred on retrial, citing Rule 4:10-2(d)(1) for the proposition that discovery of communications between an attorney and expert concerning the collaborative process during preparation of reports is precluded.

Thereafter, the Court indicated that defense counsel’s statements made while cross-examining the surgeon as to the issue of “secondary gain” should be disallowed on retrial.  The Court noted that in Rodriguez v. Wal-Mart Stores, 449 N.J. Super. at 596, it explained that “in a jury setting, there is a great danger that an expert witness who characterizes a plaintiff as a ‘malingerer’ or a ‘symptom magnifier,’ or some other negative term in impugning the plaintiff’s believability will unfairly infect the trier of fact’s assessment of the plaintiff’s overall narrative on both liability and injury,” and thus “such testimony at a civil jury trial should be categorically disallowed under N.J.R.E. 403.”  Morales-Hurtado, at *8.

The Appellate Division thereafter addressed several other examples of what it described as “defense counsel’s penchant for making inappropriate comments in front of the jury and usurping the court’s trial role” and “blurting out opinions and demands of his adversary in front of the jury.”

Regarding closing arguments, the Court cited Rodd v. Raritan Radiologic Associates, PA, 373 N.J. Super. 154, 171-172 (App. Div. 2004) for the proposition that although attorneys are given broad latitude in summation, they may not use disparaging language to discredit the opposing party or witness, or to accuse opposing counsel of wanting the jury to evaluate the evidence unfairly, of trying to deceive the jury, or deliberately distorting evidence.

The Court accordingly held that the cumulative effect of multiple errors deprived Plaintiff of a fair trial and of a verdict based on the merits of the party’s claims, entitling Plaintiff to a new trial on issues.

This very recent reported opinion of the Appellate Division should accordingly be reviewed by trial attorneys and adjusters as an indication of how reliance on certain tactics at time of trial may prove problematic in the event of an appeal.  While it appears that many of defense counsel’s tactics and comments as outlined above “went too far,” the Appellate Division’s categorical indication that expert opinion that a Plaintiff is a “malingerer” or exhibiting “symptom magnification,” for example, should certainly guide defense medical expert preparation prior to trial.

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About the Author

About the Author:

Mr. Carlson’s practice concentrates on the defense of New Jersey and Pennsylvania personal injury matters on behalf of insurance companies, self-insured entities and third-party administrators in the fields of premises liability, transportation law, and construction claims. He has also handled commercial, insurance coverage, fire loss, trucking accident, Dram Shop, subrogation and first party “Personal Injury Protection ” (PIP) matters, as well as Hazmat rapid response services to trucking accidents.

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