GERARDINA GOMEZ VS. ALLISON M. FRITCHE (L-3014-16, MIDDLESEX COUNTY AND STATEWIDE)

G
                                NOT FOR PUBLICATION WITHOUT THE
                               APPROVAL OF THE APPELLATE DIVISION
        This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the
     internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.




                                                         SUPERIOR COURT OF NEW JERSEY
                                                         APPELLATE DIVISION
                                                         DOCKET NO. A-3420-19

GERARDINA GOMEZ 1 and
JUAN GOMEZ, her husband,

          Plaintiff-Appellants,

v.

ALLISON M. FRITCHE,

     Defendant-Respondent.
_________________________

                    Submitted May 4, 2021 – Decided May 21, 2021

                    Before Judges Yannotti and Mawla.

                    On appeal from the Superior Court of New Jersey, Law
                    Division, Middlesex County, Docket No. L-3014-16.

                    Shamy & Shamy, LLC, attorneys for appellants (T.K.
                    Shamy, on the brief).

                    Law Offices of Viscomi & Lyons, attorneys for
                    respondent (Mario C. Colitti, on the brief).

PER CURIAM


1
    Improperly listed on documents as Geraldina or Geraldine.
        Plaintiffs Gerardina and Juan Gomez appeal from a March 17, 2020

judgment entered in favor of Gerardina2 involving an automobile accident with

defendant Allison Fritsche, and awarding Gerardina compensatory damages. 3

Plaintiffs also appeal from a March 27, 2020 order denying their motion for a

new trial. We affirm.

        The facts of this matter arise from a December 8, 2014 accident, which

we discussed in a previous appeal. Gomez v. Fritsche, No. A-3977-17 (App.

Div. Sept. 12, 2019), slip op. at 2-11. In that appeal, we summarized the parties'

arguments as follows:

                    On appeal, defendant argues the trial court
              committed the following errors: prohibited her from
              impeaching [Gerardina] on her prior accidents and
              treatment; permitted the investigating officer to give an
              opinion on fault; prohibited her from objecting to
              [Gerardina's] closing argument; and permitted
              [Gerardina] to make improper remarks during her
              closing argument. Defendant contends that separately
              or cumulatively, the errors require reversal. She
              contends for these reasons, the trial court erroneously
              denied her motion for a new trial.

                    [Gerardina] responds that the court properly
              exercised its discretion when it precluded [defendant]
              from examining either of the medical experts about her

2
  We utilize plaintiffs' first names because they share a common surname. We
intend no disrespect.
3
    The jury awarded Juan no damages for loss of consortium.
                                                                            A-3420-19
                                         2
            previous accidents and injuries. She emphasizes that
            the investigating police officer never used the word
            "fault" when he explained to the jury the conclusions he
            drew from his investigation. Rather, he did little more
            than summarize the statement made to him by
            defendant. [Gerardina] insists her closing statement to
            the jury does not warrant a new trial on either liability
            or damages.

            [Id. at 11-12.]

      We reversed and remanded for a new trial because we concluded the court

erred when it: admitted the officer's opinion testimony; barred defense counsel

from objecting during plaintiffs' summation; permitted plaintiffs' counsel to

disparage defense counsel; and permitted plaintiffs' counsel to "ask[] the jurors

to award what they would want as compensation, . . . [and] improperly suggest[]

that they should decide [Gerardina's] credibility by considering . . . what their

motivation would be for undergoing certain medical treatment in similar

circumstances." 

Id. at 22, 24, 26

. We concluded the cumulative effect of these

errors warranted a new trial. 

Id. at 26-27

.

      In addressing defendant's challenge to the court's ruling prohibiting her

from presenting evidence of Gerardina's prior permanent injuries, namely, a

medical doctor's report from 1999, we noted such evidence would constitute

inadmissible hearsay. 

Id. at 14

. However, we stated: "[W]e have not been

asked to review the use for impeachment purposes of statements in the old report

                                                                           A-3420-19
                                        3
attributable to plaintiff. That was not an issue argued to, or addressed by, the

trial court." 

Id. at 15

. We further stated:

            Nor have we been asked to address whether the trial
            court erred in ruling defendant could not impeach
            [Gerardina] with evidence of the prior accident even if
            [Gerardina] testified she had never previously been
            injured. Such a ruling would appear to impede a search
            for the truth. We fail to discern, for example, why if,
            hypothetically, [Gerardina] denied prior accidents or
            injuries, defendant could not question her about events
            such as the time and location of the previous accident
            and whether she received certain treatment, without
            placing the content of a medical report before the jury.
            In any event, the record before us is not entirely clear
            on this point. If the trial court intended to bar defendant
            from commenting on these issues in her opening
            statement, so that—upon defendant's application out of
            the jury's presence—the court could rule on the specific
            issue in the context in which it unfolded at trial, then
            there was nothing inappropriate about the court's
            ruling.

            [Id. at 15 n.2.]

We concluded defendant could not utilize the medical opinion contained in the

old medical report to impeach Gerardina's testimony and could not use the report

to cross-examine her treating physician where that doctor "did not rely upon the

facts and data in the old report to form his opinion in the present case." 

Id. at

17

.




                                                                           A-3420-19
                                        4
      Prior to the second trial, plaintiffs filed an in limine motion requesting

defendant be barred from eliciting evidence of two prior automobile accidents

involving Gerardina, which occurred in April 1994 and 2000, and whether she

suffered any injuries. Plaintiffs argued the evidence should be barred because

defendant's medical expert did not review the medical records related to the

accidents, and Gerardina's prior injuries were irrelevant to the injuries she

suffered in the December 2014 accident and unduly prejudicial. Plaintiffs filed

a second in limine motion to bar defendant from mentioning the prior accidents

during opening or summation, and argued the trial court's ruling from the prior

trial and our decision in the initial appeal were law of the case.

      The matter was assigned to a different trial judge who held a pre-trial

conference to address the in limine motions.         However, the judge noted

"[c]ounsel had indicated to the [c]ourt on the record that [a conference] was in

fact not necessary [and t]hat they understood the objections and were ready to

follow through with respect to the in limine applications without any further

argument or comment by the [c]ourt."

      Trial commenced and during his opening statement, defense counsel

stated: "The plaintiff was involved in two prior motor vehicle accidents."

Plaintiffs' counsel objected and moved for a mistrial arguing defense counsel


                                                                          A-3420-19
                                         5
violated the in limine ruling. Following a lengthy colloquy with the court, the

trial judge concluded defendant could not adduce evidence of the prior accidents

on grounds of relevancy, but if Gerardina testified regarding the prior accidents

and the injuries she suffered from them, the defense could use this evidence to

impeach her.

      Because plaintiff had yet to testify, the judge drafted a curative

instruction, reviewed it with counsel, and asked "anything you want to say

relative to the curative instruction just so that it is preserved for our record, have

at it." Plaintiffs' counsel acquiesced to the instruction and stated: "I suspect it's

going to be adequate." The judge then read the following to the jury:

             [I]n my preliminary charge to you before we started the
             trial[,] I had told you that the [c]ourt may have to make
             certain rulings and give you instructions throughout the
             course of the trial. This is going to be one of those
             instructions, okay.

                   So you have heard a statement from defendant's
             attorney . . . regarding plaintiff's involvement in prior
             motor vehicle accidents. The [c]ourt had conclusively
             determined that those motor accidents had absolutely
             no relevance to the issues you will decide in this case.

                   You were not to hear discussion of it because it
             has no bearing upon the issues in this case. No medical
             expert that's going to be offered by either plaintiff or
             defendant in this case in any way relates the prior
             accidents to plaintiff's present medical condition and as
             a result it was not to be heard, right.

                                                                                A-3420-19
                                          6
                   I appreciate that you are human beings, I cannot
            ask you not to hear what has been said in your presence
            and that you heard, but I know I can ask you, and I know
            you will follow my instruction that you are to disregard
            that information, to not use it for any purpose in your
            deliberations in this case as it plays no role to the issues
            you're going to be asked to make a determination on,
            okay.

      Gerardina, Juan, and Gerardina's treating orthopedic doctor who also

served as her expert, testified on plaintiffs' behalf. Defendant and an expert in

orthopedic surgery testified on defendant's behalf.

      During Gerardina's direct examination, she testified she was taken to the

hospital following the accident and felt pain on her head, left shoulder, and back.

The next day, she saw her primary care physician who told her "the only thing

[she] could do was to take medicine like Advil, Motrin or Tylenol, and that if

[she] was still feeling pain . . . to go see a specialist." Gerardina was treated by

her orthopedic doctor for approximately fourteen months. She testified she was

out of work for approximately four to five weeks and went to physical therapy

for over six months. She then got "some injections, some needles to see if the

pain would go away." The injections eased the pain, but it returned after a few

weeks and her doctor told her "to just learn to live with the pain" and gave her

tips on how to manage it. Gerardina testified she still experienced pain in her


                                                                              A-3420-19
                                         7
neck, lower back, and left shoulder area. Counsel then asked her about the time

period preceding the accident as follows: "How about [ten] years prior to the

happening of this automobile accident, 2004, . . . were you having any problems

with your neck, your lower back or your left shoulder?" Gerardina responded:

"No, sir."

      On cross-examination, defense counsel confronted Gerardina with the

emergency room records from the accident with defendant, which stated:

"[P]atient denies neck pain, headaches or head trauma." The following colloquy

occurred regarding the time period prior to the accident:

             [Defendant's counsel:] Final question. [Your counsel]
             asked you if whether you had prior low back complaints
             or problems since 2004. Do you remember [your
             counsel] asking you that specific question?

             [Gerardina:] Correct.

             [Defendant's counsel:] Did you complain of low back
             to . . . your primary care physician, specifically on April
             13, 2011? Do you remember that?

             [Gerardina:] Correct.

      On re-direct and then re-cross examination the following colloquy ensued:

             [Plaintiffs' counsel]:    Ms. Gomez, do you ever
             remember going to . . . your family doctor, back in 2011
             saying that you had back spasms or lower back spasm
             or pain?


                                                                           A-3420-19
                                         8
            [Gerardina]: I don't remember. It was a long time. It
            was a long time ago.

            [Plaintiffs' counsel]:   Thank you, I have no further
            questions.

            [Defendant's counsel]: One question in response to that
            . . . . Didn't you answer the question when I asked you
            earlier . . . , didn't you complain of low back pain to
            [your doctor] specifically on April 13, 2011, and you
            said yes. Is that accurate, what you told the [j]ury
            [earlier]?

            [Gerardina]: I don't remember.

            [Defendant's counsel]: So now you don't remember?

            [Gerardina]: I don't remember.

      Plaintiffs' expert opined Gerardina's injuries were sustained as a result of

the accident and described her diagnosis and the treatment he provided.

Defendant's expert testified there was no indication or need for any operation

for Gerardina's condition and she received "excellent treatment."

      During his summation, defense counsel highlighted the impeachment

evidence for the jury and Gerardina's inconsistent statements. Relevant to the

issues raised on this appeal, the defense offered the jury the following:

            [Gerardina] testified you may recall during cross
            examination, [stating:] I had no prior low back
            complaints since 2004. In fact [plaintiffs' attorney]
            asked his client that question directly.


                                                                            A-3420-19
                                        9
                  And then on cross examination you may recall I
            said, wait a minute, what about your family doctor[?]
            You actually did complain of low back pain on [April
            13, ]2011. And when I asked her that question, she said
            yes, she admitted it.

                   But you may recall on redirect from [plaintiffs'
            counsel], she said well you know what, I really don't
            remember that now. I'm not quite sure if I did or I
            didn't. I'm really hazy on that. Ladies and gentlemen
            that's akin to locking the barnyard door after the horse
            has already escaped.

      The jury found Gerardina forty percent and defendant sixty percent

comparatively at fault and awarded Gerardina $8,500 in compensatory damages.

The trial judge issued the final order of judgment reducing the award to

$5,639.79, conforming it to the parties' comparative share of liability and adding

pre-judgment interest.

      Plaintiffs moved for a new trial. Plaintiffs' counsel certified a new trial

was warranted because defense counsel's statement during the opening violated

the prior judge's ruling, which counsel asserted we affirmed, "barring testimony

or eliciting any evidence or having the [d]efendant mention in opening or closing

statements [Gerardina's] prior automobile accidents which are no[w] almost

more than [twenty] years old." In opposition, defense counsel certified he

understood he could use the prior injury evidence for impeachment purposes.

Defense counsel noted he used the evidence to impeach Gerardina because she

                                                                            A-3420-19
                                       10
"testified on direct that she never treated or complained about her head, neck,

back or left shoulder pain 'since 2004.'" Defense counsel also noted "plaintiff[s']

counsel opened the door widely [because] on cross, [Gerardina] admitted she

actually treated with [her doctor] on April 13, 2011[,] for low back pain" and

"recanted that testimony" on re-direct.

      The trial judge denied the motion for a new trial and found as follows:

                   [H]aving evaluated all of the very thorough
            written submissions [to] the [c]ourt and as well as the
            trial record, and looking to the very high standard
            which is employed pursuant to the rules, and again
            appropriately employed in that it asks the [c]ourt to set
            aside the full consideration and deliberation of the jury
            that has heard the entire matter and that should not be
            done lightly. And I think that's reflected in the standard
            that is explicitly set forth in the applicable rule.

                  Here, the [c]ourt finds that the jury had the
            opportunity to evaluate the credibility of [Gerardina]
            and all the testifying witnesses. That the facts in the
            record bear out with respect to what occurred on cross
            examination. That the jury was within its discretion to
            accept or rely on about their ultimate determination
            with respect to apportionment, liability[,] and damages.

                  Further, for the reasons that the [c]ourt had
            previously stated at the time that the motion for a
            mistrial was made, the [c]ourt does not feel that the
            statement itself warranted a mistrial, in that the timely
            and strong curative [instruction] by the [c]ourt could
            remedy any potential prejudice to the plaintiff[s]. And
            as the [c]ourt believes now, as I did then, that the
            instruction was appropriate, and that movant has not

                                                                             A-3420-19
                                       11
            demonstrated through clear and convincing evidence
            that to permit this jury award to stand would result in a
            miscarriage of justice under the law, the [c]ourt is going
            to deny the request for a new trial at this time.

                                        I.

      Plaintiffs argue the verdict was tainted by defense counsel's reference to

the prior accidents during his opening statement and the improper comments

contributed to the jury's comparative negligence finding. Plaintiffs assert the

curative instruction did not remedy the prejudice and the judge should have

granted a mistrial.

      Where a party seeks a mistrial because of comments made by opposing

counsel during opening statements and the trial court denies the request "[s]uch

rulings . . . are discretionary with the trial judge and should not be disturbed

absent a showing of an abuse of discretion. . . . In an action involving the

misconduct of counsel, a mistrial should not be granted absent a clear showing

of prejudice to the opposing party." Amaru v. Stratton, 

209 N.J. Super. 1

, 15

(App. Div. 1985) (citations omitted).

      Furthermore,

            [t]he exercise of judicial discretion in a ruling on a
            motion for mistrial requires:

                      the appraisal by the trial court of the
                      probable effect of the objectionable

                                                                          A-3420-19
                                        12
                  utterance on a fair trial. It is undesirable
                  that a trial be aborted and that the parties
                  be required to incur the expense attendant
                  upon retrial. By the same token expedition
                  should not be served at the expense of
                  crippling the cause of one party or the other
                  by permitting the intrusion of evidence
                  which will serve to confuse the jury or
                  cause it to reach its verdict by emotion
                  rather than by reason. [Runnacles v.
                  Doddrell, 

59 N.J. Super. 363

, 367 (App.
                  Div. 1960).]

            [Amaru, 

209 N.J. Super. at 15

.]

      Our Supreme Court has stated:

            The decision on whether inadmissible evidence is of
            such a nature as to be susceptible of being cured by a
            cautionary or limiting instruction, or instead requires
            the more severe response of a mistrial, is one that is
            peculiarly within the competence of the trial judge, who
            has the feel of the case and is best equipped to gauge
            the effect of a prejudicial comment on the jury in the
            overall setting.

            [State v. Winter, 

96 N.J. 640

, 646-47 (1984).]

      We have noted a court contemplating a curative instruction should

consider three factors: "the nature of the inadmissible evidence the jury heard,

and its prejudicial effect[;]" how "an instruction's timing and substance affect

its likelihood of success[;]" and whether the jury will be unable to comply with

the court's instructions. State v. Herbert, 

457 N.J. Super. 490

, 505, 507 (App.


                                                                          A-3420-19
                                      13
Div. 2019). The Supreme Court "has consistently stressed the importance of

immediacy and specificity when trial judges provide curative instructions to

alleviate potential prejudice to a defendant from inadmissible evidence that has

seeped into a trial." State v. Vallejo, 

198 N.J. 122

, 135 (2009).

      Here, the judge issued a swift and specific curative instruction identifying

the offending statement by defendant's counsel and instructing the jury to ignore

it. Moreover, prior to opening statements, the trial judge charged the jury as

follows: "During the course of the trial, you will hear from the attorneys on

numerous occasions. Always bear in mind that the attorneys are not witnesses

and what they say is not evidence in the case . . . ." Considering the jury had

yet to hear any evidence when defense counsel made his opening remarks and

the substantial evidence presented by both parties, we are unconvinced the jury

abandoned the evidence and instead focused on the fleeting comment by

counsel.

      "The jury is deemed capable of following a curative instruction to ignore

prejudicial matter." Williams v. James, 

113 N.J. 619

, 632 (1989). The record

does not support plaintiffs' contention the jury did not heed the judge's curative

instruction, or that it was clear the judge should have aborted the trial because




                                                                            A-3420-19
                                       14
counsel's comments confused the jury, caused it to reach an improper result, or

clearly prejudiced plaintiffs' case.

                                       II.

      Plaintiffs assert defense counsel's mention of Gerardina's prior accidents

during his opening disregarded the first trial judge's ruling and our decision in

the prior appeal, which were law of the case. We disagree.

      The law of the case doctrine "is a non-binding rule intended to 'prevent

relitigation of a previously resolved issue.'" Lombardi v. Masso, 

207 N.J. 517

,

538 (2011) (quoting In re Est. of Stockdale, 

196 N.J. 275

, 311 (2008)). As we

noted, we did not bar outright defendant's ability to rely upon evidence from the

prior accident. We held the defense could not cross-examine Gerardina with the

medical report of a non-testifying doctor and could not confront her expert with

a medical report he did not consider. However, we expressly noted evidence of

plaintiff's prior accident and injuries could be used for impeachment purposes.

The trial judge recognized this in her colloquy with counsel after plaint iffs'

counsel objected during opening statements prior to denying the motion for a

mistrial. For these reasons, the law of the case doctrine did not apply.




                                                                           A-3420-19
                                       15
                                       III.

      Plaintiffs assert the difference in the award amounts of the first and second

verdicts was the result of defense counsel's opening remark. Plaintiffs argue the

award is unjust and warrants a new trial.

      Rule 4:49-1(a) states: "The trial judge shall grant the motion [for a new

trial] if, having given due regard to the opportunity of the jury to pass upon the

credibility of the witnesses, it clearly and convincingly appears that there was a

miscarriage of justice under the law." We apply the same standard as the trial

court in our review. R. 2:10-1.

      As the factfinder, a jury is free to accept or reject as much or as little of

the evidence presented in reaching it determination. State v. Diferdinando, 

345

N.J. Super. 382

, 399 (App. Div. 2001). As a result, a jury's damages award

should not be overturned unless it "shock[s] the judicial conscien ce." Johnson

v. Scaccetti, 

192 N.J. 256

, 281 (2007). "The judgment of the initial factfinder

. . . is entitled to very considerable respect." Baxter v. Fairmont Food Co., 

74

N.J. 588

, 597 (1977). "It should not be overthrown except upon the basis of a

carefully reasoned and factually supported (and articulated) determination, after

canvassing the record and weighing the evidence, that the continued viability of

the judgment would constitute a manifest denial of justice." 

Id. at 597-98

.


                                                                             A-3420-19
                                       16
      Here, plaintiffs presented fact and expert testimony regarding Gerardina's

injuries and damages. Gerardina testified she had no problems with her neck,

back, or left shoulder in the ten years preceding the accident in this case. The

defense cross-examined Gerardina, challenging her credibility regarding the

source of her injuries, their effects on her, and whether she treated for pain to

her neck, back, and shoulder before the 2014 accident. The defense also offered

expert testimony and presented evidence, including MRI imaging studies, which

showed Gerardina's injuries to her neck, back, and left shoulder were preexisting

conditions and the injuries she sustained in the 2014 accident were temporary,

soft-tissue injuries.

      Following summations, the judge gave the jury detailed instructions

reminding them the arguments of counsel was not evidence and their decision

"must be based solely on the evidence presented and on [her] instructions on the

law." The judge instructed the jury on direct and circumstantial evidence, and

how to determine credibility. She instructed the jury regarding determining fault

and damages based on the evidence presented during trial. The jury apportioned

liability and awarded damages as instructed.

      The only basis plaintiffs present to support their argument for a new trial

is the damages awarded were much less than the initial jury award of $115,000.


                                                                           A-3420-19
                                      17
However, the jury here was not required to reach the same result as the first jury.

There is no suggestion the jury failed to follow its instructions. Our review of

the record does not support the conclusion the jury ignored the evidence and

instead based its decision counsel's opening argument. For these reasons, we

are unconvinced there was a miscarriage of justice warranting a new trial.

      Affirmed.




                                                                             A-3420-19
                                       18

Add comment

By

Recent Posts

Recent Comments