Litigation Quarterly Newsletter

The Appellate Division on September 12, 2019 rendered an unpublished Opinion on several trial-related issues.  The matter is Gomez v. Fritsche, 2019 WL 4313116.

This matter arose from a motor vehicle accident.  The jury found Defendant 100% negligent for causing an intersectional accident, and awarded Plaintiff the sum of $115,000.00.  Defendant appealed the denial of her Motion for a New Trial, arguing that the cumulative prejudice from several errors – specifically, the Trial Court barring evidence that Plaintiff had previously sustained permanent injuries; allowing the investigating police officer to opine as to fault for the accident; barring defense counsel from objecting during Plaintiff’s counsel’s closing; and Plaintiff’s counsel’s improper remarks during summation, deprived Defendant of a fair trial.  The Appellate Division agreed, in part, vacated the verdict, and remanded for a new trial.

As to the issue of evidence of Plaintiff’s previous permanent injuries, there was evidence that Plaintiff had been involved in prior motor vehicle accidents in 1994 and 2000.  A doctor had written in a report that Plaintiff suffered permanent injuries to her neck and back which would result in ongoing pain and limitation regarding both body parts.  The Trial Court granted a Motion in limine filed by Plaintiff to preclude defense counsel from raising the same, finding that the probative value of this evidence was outweighed by the risk of undue prejudice.  The Trial Court indicated that defense counsel would not be allowed to utilize this evidence even if Plaintiff testified that she never had any prior problems with her neck or back.

As to the issue of the police officer, the officer was allowed to read his conclusion in the police report to the effect that Defendant failed to yield to Plaintiff and was inattentive in not ensuring that the roadway was clear prior to entering the same.

During summation, Plaintiff’s counsel referenced the fact that while Defendant had testified, the Defendant thereafter left and was not present in Court during the closing.  Defense counsel objected, but the Trial Judge advised that “I should’ve mentioned this earlier, there’s no objections in closing argument.  Now that you’ve done it, I suggest it’s… closing argument.  He’s entitled to argue and if he wants to put that inference out there and draw an inference it’s fair game.  I don’t know why she’s here, she’s not here, but you know, I don’t understand the objection and it’s overruled.”

Thereafter, defense counsel apparently heeded the Trial Judge’s admonition not to object during Plaintiff’s closing statement, even when Plaintiff’s counsel then specifically invited the jurors to place themselves in Plaintiff’s situation.

The Appellate Division began by noting that as a general matter, trial courts have considerable discretion in determining whether evidence is relevant, and, if so, whether it should be excluded under N.J.R.E. 403 due to the fact that the probative value of the evidence is substantially outweighed by the risk of undue prejudice, confusion of issues or misleading the jury.  Wymbs v. Twp of Wayne, 163 N.J. 523, 537 (2000).

In this regard, the Appellate Division observed that the prior reports were as a threshold matter hearsay, inadmissible except as provided in N.J.R.E. 802.  Pursuant to Skibinski v. Smith, 206 N.J. Super. 349, 353 (App. Div. 1985), expert reports are not statements of a party and therefore cannot be treated as an admission simply because they have been furnished in discovery by that party.

The Appellate Division noted that the defense did not intend to call as a witness the doctor who wrote the old report. Accordingly, it held that given the foregoing, the Trial Court acted within its broad discretion in prohibiting Defendant from utilizing the same.

However, regarding the Trial Court’s ruling permitting the police officer to render his opinion regarding the fault for the accident, the Appellate Division found otherwise.

While police reports are admissible as a business record and as a public record, if properly authenticated, if a proponent seeks to admit the report or an officer’s trial testimony regarding the same to prove the truth of something contained therein, a separate hearsay exception is required.

Significantly, New Jersey courts have prohibited the admission of police testimony as to the issue of fault.  Indeed, for a party to present a police officer as an expert, that officer must be properly qualified as an expert pursuant to N.J.R.E. 702.

Generally, police officers can present lay opinion testimony, but the same “is limited to what was directly perceived by the witness and may not rest on otherwise inadmissible hearsay.” State v. McLean, 205 N.J. 438, 460 (2011).  Thus, an officer is not permitted to provide opinion testimony at trial when that opinion is based primarily on the statements of others.  Neno v. Clinton, 167 N.J. 573, 585 (2001).

While Plaintiff argued that the officer never use the word “fault,” the Appellate Division indicated that the testimony as a whole made clear that in the opinion of the officer the Defendant was at fault at the time of the accident.

Indeed, Plaintiff’s counsel then “compounded the error” by emphasizing the same during his closing, telling the jury that the Defendant did not want to jurors to hear the police officer’s testimony.

Finally, turning to the issues regarding Plaintiff’s counsel’s closing argument, the Appellate Division cited State v. Farrell, 61 N.J. 99, 106 (1972) and State v. Bauman, 298 N.J. Super. 176, 207 (App. Div. 1997) for the proposition that challenging an adversary’s improper closing remarks after the closing, rather than during it, fails to timely alert the Court to the irregularities and provide the court with an opportunity to address and cure the same.

To the contrary, a party is precluded from claiming that it was harmed absent timely objection during the closing argument.  Farrell, 61 N.J. at 106.

Accordingly, the Appellate Division held that Trial Judges should not admonish counsel against making “appropriate” contemporaneous objections, expressing confidence that the bench can in appropriate circumstances promptly deal with any abusive conduct arising from the ability to object during an adversary’s closing.

Finally, the Appellate Division turned to consideration of specific remarks made by Plaintiff’s counsel during summation.  First, that regarding the Defendant not returning to the courtroom after testifying because Defendant – unlike Plaintiff – did not want to “see the case through.”  Second, the invitation for the jurors to place themselves in Plaintiff’s situation as to why jurors would or would not choose to undergo an epidural injection.  And third, the suggestion that defense counsel did not want the jury to hear the police officer’s conclusion about the accident.

Counsel are generally allowed significant latitude in closing arguments.  Bender v. Adelson, 187 N.J. 411, 431 (2006).  However, arguments may not include unfair and prejudicial appeals to emotion.  Jackowitz v. Lang, 408 N.J. Super. 495, 504-505 (App. Div. 2009).  Further, closing arguments must be based in truth and “counsel may not misstate the evidence nor distort the factual picture.”  Condella v. Cumberland Farms, Inc., 298 N.J. Super. 531, 534 (Law Div. 1996).  Indeed, in Rodd v. Raritan Radiologic Assocs., P.A., 373 N.J. Super. 154, 171 (App. Div. 2004), the Court made clear that counsel may not disparage opposing counsel, or a witness, or suggest an intent to deceive the jury or deliberately distort the evidence.

Indeed, Botta v. Brunner, 26 N.J. 82, 94 (1958) even describes the prohibition against asking jurors what they would expect to receive if they were in a similar position to Plaintiff as the “Golden Rule.”

Accordingly, the Appellate Division found that while these issues may have been capable of being cured had a timely objection been made, since the Trial Judge had banned objections, this was impossible.

Significantly, the Appellate Division noted that the cumulative effect of small errors may collectively be so great as to warrant a new trial.  Pellicer ex rel Pellicer v. St. Barnabas Hospital, 200 N.J. 22, 53 (2009).  With the possible exception of the police officer’s improper opinion testimony, none of the issues addressed above would have warranted a new trial on their own. However, cumulatively, they did.  Accordingly, the Order of Judgment was vacated and the matter remanded for a new trial.

Thus, this Opinion is an instructive reminder from the Appellate Division on several key issues, including when evidence of prior injuries may be admissible, and how; the limits to which a police officer will generally be permitted to testify; and the proper process to be followed by both parties during closing arguments at trial.

The Appellate Division on June 6, 2019 rendered a reported Opinion on the issue of when disclosure of materials prepared or collected prior to the institution of litigation is required.  The matter is Paladino v. Auletto Enterprises, Inc. t/a Auletto Caterers, 2019 WL 2375475.

On October 9, 2015, Plaintiff was a guest at a wedding reception held at Defendant’s catering facility when she fell and injured her left knee, lower back, and right ankle while walking down a staircase.  She immediately reported the accident to Defendant, such that Defendant prepared an accident report that same day, and shortly thereafter gave notice to its insurance company. The insurance company promptly retained an investigator.

Two weeks after the accident, on October 22, 2015, a senior claims examiner spoke with Plaintiff, and sent Plaintiff a letter advising that an investigator was looking into the accident. The investigator was instructed to photograph the accident scene and obtain statements from both Plaintiff and representatives of Defendant.

The claims examiner later certified that the intent in retaining the investigator was to “prepare a defense for [Defendant] in the event that [Plaintiff] filed a lawsuit,” and further certified that as the insurer was not disputing coverage, it did not hire the investigator to look into coverage issues.

The investigator arranged to meet with and take a recorded statement from Plaintiff on October 26, 2015. However, on the appointment date, the investigator was contacted by an attorney who advised that he had been retained by Plaintiff, such that the appointment was canceled. The next day, Plaintiff’s recently retained counsel sent a letter of representation to the insurance carrier.

Therefore, on October 26, 2015, the investigator inspected Defendant’s catering facility.  In the process, the investigator took photographs of the scene and prepared a diagram of the area.  The investigator also obtained recorded oral statements from two of Defendant’s employees, and approximately one week later also obtained a recorded oral statement from a third employee.

On December 3, 2015, Plaintiff’s counsel and a photographer visited Defendant’s premises for a documentary inspection. Thereafter, in January 2016, Defendant’s insurance carrier provided Plaintiff’s counsel with a copy of video surveillance that had actually captured Plaintiff falling on the staircase, as well as a copy of the incident report.

Plaintiff and her husband subsequently filed suit and Defendant filed an Answer.  Thereafter, in Answers to Interrogatories, Defendant disclosed that the investigator had taken photographs of the staircase, had prepared a diagram, and had obtained recorded statements from three of Defendant’s employees, none of whom witnessed Plaintiff’s fall. Significantly, asserting that they were protected by the work-product privilege, Defendant did not produce the photographs, diagram, or statements,

Plaintiff filed a Motion to Compel the production of the photographs and the recorded statements by Defendant’s employees, having withdrawn a prior request for the diagram prepared by the investigator,

Without hearing oral argument, the Trial Court granted Plaintiff’s Motion, relying on Pfender v. Torres, 336 N.J. Super. 379 (App. Div. 2001), on the grounds that because the photographs and statements were obtained by the insurance carrier before litigation, the carrier “may have” had interests apart from protecting its insured’s rights.  Defendant sought leave to appeal the Order compelling the production. The Appellate Division initially denied leave, but the Supreme Court granted leave to appeal and remanded the same to the Appellate Division “to consider [it] on the merits.”

In the appeal, Defendant made two arguments. First, it contended that the Court should reject the rationale of Pfender and, instead, adopt the reasoning set forth in Medford v. Duggan, 323 N.J. Super. 127 (App. Div. 1999). Second, Defendant- applying the standard set forth in Medford– urged that the Appellate Division should reverse because Plaintiff did not satisfy the requirements of Rule 4:10-2(c).

 The Court began by noting that the Work Product Doctrine and Rule 4:10-2(c) should be understood as exceptions to New Jersey’s general policy of “encouraging full and open discovery of all relevant information.” 2019 WL 2375475 at Page 2.  In most situations, parties to litigation have the right to discovery of all relevant information concerning the action. See Rule 4:10-2(a).

One of the recognized privileges that is an exception to that general policy is the Work Product Doctrine. See O’Boyle v. Borough of Longport, 218 N.J. 168, 188 (2014). That doctrine was first recognized by the United States Supreme Court in Hickman v. Taylor, 329 U.S. 495 (1947).

 The Work Product Doctrine is set forth in Rule 4:10-2(c), which states:

“[A] party may obtain discovery of documents, electronically stored information, and tangible things otherwise discoverable under R[ule] 4:10-2(a) and prepared in anticipation of litigation or for trial by or for another party or by or for that other party’s representative (including an attorney, consultant, surety, indemnitor, insurer or agent) only upon a showing that the party seeking discovery has substantial need of the materials in the preparation of the case and is unable without undue hardship to obtain the substantial equivalent of the materials by other means. In ordering discovery of such materials when the required showing has been made, the court shall protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party concerning the litigation.” (Emphasis added.)

Defendant argued that a conflict exists in precedent concerning the scope of the Work Product Doctrine as discussed in Pfender compared to Medford. Defendant argued that Pfender essentially established a “bright line rule” that material obtained by an insurer before litigation is not protected by the Work Product Doctrine. Defendant urged that Medford established a “case-by-case test,” whereby material prepared by or for an insurer can be protected under the Work Product Doctrine if it was prepared in anticipation of litigation and the party seeking the same cannot establish a substantial need for it.

While the Appellate Division indicated that it did not find Pfender and Medford to be irreconcilable, as Defendant asserted, it did indicate that “the rationale and holding of Pfender needs to be clarified and properly understood as consistent with a case-by-case analysis.”  2019 WL 2375475 at Page 4.

 The Appellate Division thus stated that:

“[W]e clarify that there is no per se or presumptive rule that materials prepared or collected before litigation are not prepared in anticipation of litigation. Instead, as set forth in Rule 4:10-2(c), there is a multi-part, fact-specific test. The first inquiry is whether the materials were prepared or collected in anticipation of litigation or trial by another party or that party’s representative. See R. 4:10-2(c). The representative can be an ‘insurer or agent’ of the party. Ibid. If the materials were prepared in anticipation of litigation or trial, to obtain the materials, there is a two-part standard that must then be satisfied. See ibid. The party seeking the materials must (1) show a substantial need for the discovery; and (2) demonstrate that he or she is unable, without undue hardship, to obtain the substantial equivalent of the materials. Ibid. See also Carbis Sales, Inc., 397 N.J. Super. at 82, 935 A.2d 1236 (first citing Medford, 323 N.J. Super. at 133, 732 A.2d 533; then citing Pfender, 336 N.J. Super. at 391, 765 A.2d 208). Moreover, if such work-product materials are compelled to be produced, “the court shall protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party concerning the litigation.” R. 4:10-2(c). 2019 WL 2375475 at Page 5.

Significantly, the Court also noted that:

“The scope of the work-product doctrine has other limitations. It has long been established that the doctrine only protects documents or prepared materials; accordingly, it does not protect facts. See Hickman, 329 U.S. at 513, 67 S.Ct. 385; R. 4:10-2(c); O’Boyle, 218 N.J. at 188-89, 94 A.3d 299. Moreover, in considering statements, the doctrine does not protect statements that are prepared in the normal course of business. See Miller v. J.B. Hunt Transp., Inc., 339 N.J. Super. 144, 148, 770 A.2d 1288 (App. Div. 2001) (quoting Payton v. N.J. Tpk. Auth., 148 N.J. 524, 554, 691 A.2d 321 (1997)). Finally, we have previously clarified that the protection of a statement will usually be lost if the person who gave the statement is later called to testify at trial. See Dinter v. Sears, Roebuck & Co., 252 N.J. Super. 84, 100, 599 A.2d 528 (App. Div. 1991). In Dinter, we held that ‘where a fact witness testifies for an adverse party, the factual statement of that witness must be produced on demand for use in cross-examination as a potential tool for impeachment of credibility.’” 2019 WL 2375475 at Page 5.

Accordingly, the Appellate Division in this matter reversed the Order compelling Defendant to produce the photographs and recorded witness statements, and remanded with a specific instruction to the Trial Court to conduct further proceedings and apply a “case-by-case, fact-specific analysis” to determine whether the photographs and witness statements are within the ambit of the Work Product Doctrine.

Thus, this Opinion is a very helpful elaboration by the Appellate Division on exactly under what circumstances materials secured by an insurance company prior to litigation are subject to disclosure. The specific facts of a given case will accordingly determine whether disclosure is required.