Evidence

Plaintiff Ahmed Hassan was injured in a motor vehicle accident in which he was rear-ended by defendant Roland Williams who was driving a tractor-trailer for defendant ABF Freight System.  The case was tried before a jury and the jury found both drivers negligent but the Plaintiff slightly more so, which resulted in a no-cause judgment in favor of the defendant.  The issue in the published decision in Hassan v. Williams, 467 N.J. Super. 190 (App. Div. 2021) was whether the trial court erroneously excluded statements by ABF officials that Williams could have prevented the accident, he drove recklessly, and he violated ABF safety protocols.

Plaintiff Hassan appealed from the no-cause judgment, arguing that the trial court made a mistake in excluding those statements from being admitted into evidence.

The accident happened on Route 78 at 4:00 in the morning.  Plaintiff Hassan was driving a FedEx tractor trailer when he suddenly felt himself on the ramp, on the side of the road and hitting trees or brushes or whatever.  Defendant Williams said that his vehicle was on cruise control and set at the truck’s pre-set top speed of 62 miles per hour and that all of a sudden the FedEx truck appeared and, while Williams’ instinct was to change lanes, there was a vehicle in the other lane.  Thus, he slammed on his brakes before striking Hassan’s tractor trailer in the rear.

Hassan sued Williams and ABF, claiming that they were negligent and that ABF was vicariously and strictly liable for Williams’ acts.  Hassan claimed that the collision caused a traumatic brain injury, shoulder and wrist injuries, exacerbated a back condition and also alleged cognitive loss, depression and other neurological problems.

Both parties initially viewed the collision as an uncomplicated rear-end hit.  However, then the defendants vigorously contested liability and produced an expert opinion that Hassan caused the accident by cutting in front of Williams at a slow speed from the entrance lane.

Prior to trial, Hassan filed motions in limine to establish the admissibility of statements made by Williams and two other ABF employees.  Hassan sought to introduce Williams’s deposition testimony that Williams did not question why ABM considered disciplining him after the accident.  Hassan also wanted to introduce into evidence ABF’s post-accident letter (from Chuck Witter) firing Williams which stated that “the Safety Department in Fort Smith, AR has determined that your accident . . . has been judged preventable.  This is to advise you that you are hereby discharged due to your recklessness resulting in a serious preventable accident while on duty.” 

Hassan wanted to introduce certain testimony from Mr. Cates, who working in ABF’s safety department, to establish that Williams’ conduct in causing the accident violated ABF’s rules and regulations for its road drivers.  Among other testimony, Cates testified that ABF had concluded that the accident was “preventable.”

At the in limine hearing, the trial court ruled that Cates could describe ABF’s rules and regulations for truck drivers but barred any testimony that in ABF’s opinion, Williams violated these rules.  The court also barred Williams’ statement discussing his own fault or how ABF viewed a rear end collision.  Further, the court barred the letter sent by ABF to Williams, advising of the basis for his termination.  The court found that it was inappropriate to have somebody come in and offer an opinion on the ultimate issue in the case, which is the jury’s determination.

At the end of the trial, the jury found that both Hassan and Williams were negligent and allocated 51% of fault to Hassan.  Because Hassan was found more than 50% negligent, the trial court entered a judgment of no-cause in favor of the defendant.  Hassan then filed a motion for a new trial, which the court denied.  Thereafter, this appeal ensued. 

The Appellate Division reviewed the evidence that the trial court excluded, i.e. Witter’s Discharge Letter, Cate’s deposition excerpts and Williams’ statement about ABF’s approach to rear-end hits.  The Appellate Division found that ABF’s decision to discharge Williams was properly excluded because it was a subsequent remedial measure.  However, the balance of the discharge letter and Cate’s and Williams’ statements should have been analyzed as statements of a party opponent and, as such, they were admissible.

The Appellate Division found that the trial court erred in concluding that the Cate’s deposition excerpts and statements in the discharge letter usurped the jury’s function by addressing an “ultimate issue.”  The Court pointed out the testimony in the form of an opinion or inference otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact.

The Appellate Division found that the trial court mischaracterized the statements as “ultimate issue” evidence because neither Cates nor Witter said how the case should be decided, nor did they offer the legal conclusion that Williams acted negligently.  Rather, Cates testified as to facts that Williams deviated from ABF’s training and protocols and concluded that in his safety evaluation, the accident was “preventable.”  The Appellate Division pointed out that “preventable” did not mean the same as “negligent.”

Further, the Court noted that even if the statements were deemed to embrace the ultimate issue, other rules of evidence do permit the introduction of a statement of a party opponent.  The trial court should have considered their admissibility on that basis.  Further, the statement that Williams made was admissible because it was his own statement as a party opponent.

Since the Appellate Division found that Cate’s and Witter’s statements were admissible, as well as William’s statement, the matter was remanded back to the trial court to determine whether the limited use of the statements can be adequately addressed in jury instructions.  The Appellate Division concluded that the excluded statements had significant value and were relevant to the jury’s determination whether Williams exercised reasonable care under the circumstances.

Finally, the Appellate Division concluded that the trial court’s order barring this evidence was “clearly capable of producing an unjust result,” which compelled a new trial.  The excluded evidence may have convinced the jury to assign slightly more responsibility to Williams and slightly less to Hassan, which may have resulted in a verdict in Hassan’s favor.  Thus, the Appellate Division found that Hassan was entitled to a new trial and reversed and remanded for a new trial.

Plaintiff Peter Slomkowski had been involved in a rear end motor vehicle accident involving an underinsured motorist and sued New Jersey Manufacturers Insurance Co. (“NJM”) to recover benefits for his injuries. The key disputed issue at the trial of this matter was whether Plaintiff suffered a permanent injury as a result of the accident. In Slomkowski v. New Jersey Manufacturers, 2020 N.J. Super. Unpub. LEXIS 164 (App. Div. Jan. 24, 2020), the issue on appeal was whether the trial court judge correctly ruled that the plaintiff’s counsel was prohibited from telling the jury that the defense had retained an expert medical witness and elected not to call him to testify at trial. The plaintiff sought to overturn a no cause jury verdict on the basis of this ruling, as well as some other evidentiary rulings that had been decided against plaintiff by the trial court judge.

During discovery, NJM retained a medical expert, Dr. Richard Sacks, to perform an independent medical (“IME”) exam. He issued a report in which he concluded that the motor vehicle accident did cause the plaintiff to suffer a permanent injury. Because his report was unfavorable, the defense decided not to call him as a witness at trial.

The defendant had filed an in limine motion (a pre-trial motion which can be used to obtain a ruling to bar evidence) before the trial started, seeking to bar the plaintiff’s counsel from advising the jury that it was the defendant that had retained Dr. Sacks to examine Mr. Slomkowski. The defense did not object to the jury being told that the defendant did not present an expert to counter plaintiff’s medical expert. The defendant also did not object to having Dr. Sacks appear at trial as a witness on behalf of plaintiff. The defense only objected to the jury being told that the defendant had retained Dr. Sacks to conduct an IME on its behalf.

The trial court judge granted the defendant’s in limine motion. After the no cause jury verdict was reached in the defendant’s favor, the plaintiff filed an appeal challenging this ruling, as well as some additional evidentiary rulings made during the trial.

The Appellate Division noted that New Jersey law affords attorneys “broad latitude in summation.” However, the summation must be based upon the truth and counsel cannot misstate evidence or draw an inference without evidentiary support. Trial courts are given discretion to decide “whether failure to call a witness raises an inference or an unfavorable one and whether any reference in the summation or a charge [to the jury] is warranted.”

Plaintiff’s counsel wanted to be able to tell the jury that not only was his medical expert testimony unrebutted but that the defense had its own doctor who had examined the plaintiff and chose not to have him testify. The inference would have been that the defense doctor’s opinion was adverse to the defense and that the defense was trying to conceal Dr. Sack’s opinion from them.

The Appellate Division agreed with the trial court’s ruling that “it would have been inappropriate to allow plaintiff’s counsel to argue in summation that the defense had retained Dr. Sacks.”  To merit such an inference, the witness would have to be in the exclusive control of defense counsel. Here, the Court noted that, to the contrary, the plaintiff could have subpoenaed Dr. Sacks to testify at trial. Further, the plaintiff was free to point out to the jury that the defense did not call an expert to refute the plaintiff’s medical expert’s opinion.

Thus, the Appellate Division found that the trial court acted “well within its discretion” in precluding plaintiff’s counsel from “going one step further” by being able to tell the jury that “in essence that the defense had chosen to withhold unfavorable evidence from them.”

There were other evidentiary rulings upon which Plaintiff appealed as well. The Appellate Division found that none presented a sufficient legal justification to set aside the jury verdict. Thus, the verdict in favor of the defendant was affirmed.

Plaintiff Maria Napolitano was in a motor vehicle accident when the vehicle in which she was a passenger was struck in the rear by a truck driven by defendant Tony Hudson and owned by MSS Vending Inc.  As the time of the accident, she was insured under an automobile insurance policy that included a $50,000 limit for personal injury protection (PIP) benefits.  She sought more than $765,000 in medical expenses that exceeded her policy limits.  One of the issues in Napolitano v. MSS Vending Inc., 2019 N.J. Super. Unpub. LEXIS 2278 (App. Div. November 7, 2019) was whether her treating doctors could testify as to whether their medical charges were fair and reasonable or whether the plaintiff was required to provide an opinion of someone with expertise in billing practices or approved insurance rates of payment.

While this case was pending, the Supreme Court decided Haines v. Taft, 237 N.J. 271 2019, which found that uncompensated expenses included medical bills which were between the insured’s PIP policy limit and the $250,000 PIP statutory ceiling.  Additionally, the Napolitano Court noted that the New Jersey statute which was decided in response to the Court’s decision in Haines did not apply to this case.

However, nevertheless, the defense argued that the doctor’s testimony concerning their respective medical bills were inadmissible net opinions and the PIP fee schedule adopted by the Department of Banking and Insurance (“DOBI”) )should be applied to all medical bills and any recovery should be limited to the fee schedule amounts for services provided.

The Appellate Division rejected the defendant’s contention that the DOBI fee schedule contained presumptively reasonable amounts for medical services and that plaintiff’s claim was therefore limited to those amounts.  Because the accident occurred prior to August 1, 2019, under the new statute, the DOBI fee schedules did not apply to claims for medical expenses in excess of those paid under plaintiff’s PIP coverage.

The Court pointed out that all of the plaintiff’s testifying doctors were asked to examine the medical bills and state whether the treatments provided were necessary and the costs associated with those treatments reasonable.  The Appellate Division rejected the defendant’s argument that “whether medical charges reflect a fair and reasonable value of services rendered” requires “the opinion of someone with expertise in billing practices or approved insurance rates of payment.”  The Court noted that it has recognized that health care providers and health agencies themselves define what are usual, reasonable and customary charges for medical services.

In this case, all of the medical experts testified regarding the billings and the basis for the reasonableness of the charges.  The defendant had the opportunity and vigorously challenged the reasonableness of the bills, “both by noting that doctors who were frequently paid less by insurance companies and lack of personable knowledge of the billing procedures of associated providers.”  The Appellate Division concluded that the medical providers were competent witnesses who did not provide net opinions regarding the reasonable costs of the medical treatments and procedures they provided to the plaintiff.            

Hence, the Appellate Division affirmed the trial court’s decision in permitting the treating providers to testify as to whether their treatments provided were necessary and the costs associated with those bills were reasonable and necessary.