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Cumulative Error Wipes out $4.5 Verdict (NJ)

June 10, 2016

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In <a href=""><em>Torres v. Pabon and Suburban Disposal, Inc</em>.</a>, New Jersey Supreme Court Justice Patterson, writing for a unanimous court, granted a new trial based upon five cumulative errors in a motor vehicle accident case.  The decision reversed a jury verdict in plaintiff’s favor awarding $4.5 million in damages with 55% of fault (or $2.7 million) allocated to the defendant.
The defendant Pabon, a sanitation driver for Suburban Disposal, inspected the garbage truck before beginning his route. He noticed that some of the truck’s taillights were covered with debris that could not be removed with a cloth.  At approximately 4:30 am, he proceeded with his route anyway.  Presumably, it was dark at that time and the truck’s rear lights were allegedly obstructed.  The garbage truck was forced to merge left when it entered a construction area.  Plaintiff, who was driving behind the garbage truck in a Nissan Altima said, “[S]he saw a dark silhouette … but could not make it out because it was camouflaged with everything around there … [W]hen she realized that the object was a truck, she stomped on her brakes but within one of two seconds, my right side, the driver’s side hit into the back of the truck.”
The five errors included adverse inference charges given with respect to the defense's failure to call the defendant driver and its orthopedic expert, improper admission of plaintiff's untimely requests for admissions, improper admission of damages testimony given by plaintiff, and an incorrect jury charge on liability issues.  The groundwork for the errors began well before trial.
Originally, the defendant driver had left the country and could not be deposed.  Plaintiff’s counsel moved to bar the testimony (and for an extension of the discovery end date).  In the meantime, the truck driver’s deposition was taken.  However, unaware of the development, the Court granted the motion barring the driver’s testimony at trial. At trial, the plaintiff read portions of the driver's testimony to the jury and convinced the judge to give an adverse inference instruction to the jury when the driver did not testify in person. The Supreme Court found that this piling on was improper and that the inference was not warranted in any event - especially since the plaintiff read his testimony to the jury.
Likewise, the Supreme Court found that it was highly improper to allow such an adverse inference charge related to the failure to call the orthopedist holding that generally such an inference is not favored with respect to expert witnesses.
About three weeks before trial, the plaintiff’s counsel served request for admissions regarding opinions expressed by the defendant’s orthopedist expert.  Defense counsel did not answer the requests because they were untimely.  However, the court permitted the plaintiff to read the admissions to the jury.  The Supreme Court held that this was reversible error not only because the demands were untimely, but also because that discovery tool is intended to secure “facts within defendants’ knowledge or attempt to authenticate documents.”  Instead, plaintiff’s counsel sought admissions for selected portions of the defense’s expert report that were read to the jury in an abuse of discretion.
As to damages, the plaintiff’s medical bills were paid entirely by PIP. However, over the defense counsel’s objection plaintiff told the jury, “I have no – no peace of mind, I have no money, I have all these bills, all these hospital bills.  How do they want me to pay for a helicopter ride?  I have no clue.  Hundreds of thousands of dollars.”  This testimony was reversible error pursuant to New Jersey’s 1998 Automobile Insurance Cost Reduction Act (“AICRA) that prohibits speculation about medical expenses. <em>See</em> N.J.S.A. 39:6A-1.1 <em>et seq. </em>
The judge also mistakenly instructed the jury with respect to the duty owed.  Unlike the classic rear-end hit case, the plaintiff had actually rear-ended the defendant.  Thus, when the judge instructed the jury that the defendant had a duty to follow the plaintiff's vehicle at a safe distance,  he “juxtaposed” the vehicles incorrectly placing the burden on the defendant, rather than the plaintiff.   The judge repeated this charge even after defense counsel interrupted the Court to point out the error.
Finally, the Court noted plaintiff’s counsel was allowed to introduce expert testimony despite late service of a report, while at the same time the defense expert's testimony was limited.
Given the cumulative errors that impacted liability and damages issues, the Court remanded the entire case for further proceedings.  This decision is a clear message from New Jersey’s highest court that cumulative errors warrant reversal when those rulings affect a jury’s ability to fairly assess liability and damages.
Thanks to Ann Marie Murzin for her contribution.
For more information, contact Denise Fontana Ricci at <a href=""></a>.


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