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Plaintiff’s Counsel Barred from Asking Plaintiff at Trial Whether Passenger in His Vehicle Suffered an Injury

By on March 1, 2019 in Civil Lawsuits with 0 Comments

Plaintiff Haroon Rashid claimed to have suffered an injury while working as a jitney driver when his vehicle was struck on the passenger side by defendant’s vehicle shortly after plaintiff picked up passengers from a local casino. One of the passengers was thrown from her seat, injured, and taken to the hospital by ambulance. In a Law Division case, recently approved for publication, Rashid v. Reed, 2018 N.J. Super. LEXIS 184 (Law Div. July 31, 2018), the issue arose as to whether the plaintiff’s counsel can question his client at trial as to whether a passenger in plaintiff’s vehicle suffered an injury to help establish that the plaintiff was injured in the accident.

Liability was stipulated in this case and, hence, the only issue at trial was damages. The plaintiff was subject to the lawsuit threshold and the jury needed to decide whether he had suffered a permanent injury so as to satisfy this threshold and obtain a damages award for his claimed pain and suffering.

During the trial, plaintiff’s counsel asked the plaintiff what happened to one of the passengers in the jitney at the time of the impact and defense counsel objected to this question. The lawyers spoke to the judge at sidebar and the plaintiff’s counsel represented to the judge that the plaintiff was prepared to testify that one of the passengers on the jitney was thrown from her seat, injured, and went to the hospital by ambulance.

Defense counsel objected to this testimony, arguing that it was irrelevant to the plaintiff’s injury whether one of the plaintiff’s passengers was thrown from the jitney and suffered an injury. Plaintiff’s counsel, however, argued that it would be relevant to the severity of the impact but also that, if the passenger was injured, it was likely the plaintiff was injured.

The trial court judge noted that this issue comes up frequently in automobile negligence cases. However, typically, it is defense counsel who tries to introduce evidence that plaintiff could not have been seriously injured because other passengers were not injured. In this case, plaintiff’s counsel wanted to make the flip argument to show that if another passenger was injured, it was more likely than not that the plaintiff was injured.

The trial court judge ruled that whether a passenger was thrown from her seat from the jitney would be relevant to show the seriousness of the impact. It would show the significance of the accident and demonstrate how hard the defendant’s vehicle struck the jitney. Thus, the court permitted the plaintiff to testify about the passenger on the jitney being thrown from her seat as evidence regarding the extent of the impact. However, the court found it was improper for the plaintiff to testify about the passenger being injured due to the impact.

The court noted that only evidence that is relevant is admissible at trial. Whether another individual in the accident suffered an injury would “not necessarily have a tendency to prove (or disprove) whether plaintiff sustained a permanent injury in the subject accident.”  Hence, the trial court judge found that “whether another individual was injured in the same accident as plaintiff is not relevant as to whether plaintiff sustained a permanent injury.”

The judge pointed out that one could be in a catastrophic accident in which someone dies and someone else walks away with no injury and, further, noted that there are many variables that could factor in why a person suffers an injury in an automobile accident, such as being frail. Or, depending on their positioning, one individual could suffer the brunt of the impact.

Thus, the trial court ruled that neither plaintiff, nor the defense would be permitted to introduce into evidence whether a passenger was or was not injured for the purposes of proving or disproving the plaintiff’s alleged injuries. However, the court did not foreclose the admission of testimony regarding another passenger’s injuries in certain limited circumstances. (The court did not elaborate on what those circumstances might be.) But, regardless, this testimony would remain inadmissible as to whether the plaintiff suffered a permanent injury.

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Betsy G. Ramos

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.

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