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Day in the Life Video Excluded at Trial

Plaintiff Tameko Sawyer was in a motor vehicle accident with defendant Randy Lucas in which she claimed to have suffered an injury to her neck, lower back, and shoulder.  Defendant Lucas had been driving a tractor-trailer owned by defendant Hicks Paving, LLC and Hicks Septic & Portable Toilets, LLC on Route 78, when he moved his truck into plaintiff’s lane, striking her car and causing it to slam into the guardrail.  At issue in the case of Sawyer v. Lucas, 2024 N.J. Super. Unpub. LEXIS 53 (App. Div. Jan. 11, 2024) was whether the plaintiff’s Day in the Life video and her recently supplied supplemental medical records should have been barred by the trial court or whether this evidence should have been admitted into evidence and shown to the jury.

A Day in the Life video is a powerful tool of evidence utilized by plaintiffs to show graphically over the course of the day an injured party’s disability and pain and suffering caused by an accident.  This graphic evidence can be more compelling than mere oral testimony describing a person’s medical condition and limitations.

In Sawyer, there was an issue as to the extent of plaintiff’s injuries.  Plaintiff claimed an injury to her neck, lower back, and shoulder.  At the hospital, she was evaluated for head, neck, and back injuries.  Subsequently, she was found to have suffered disc herniations and bulges in her neck and underwent five separate surgeries.  At trial, she did testify about conservative pain management for an older, unrelated back injury.  During the trial, there was disputed testimony about the plaintiff’s back injury and whether it was either caused or exacerbated by the accident.

Prior to trial, the plaintiff had prepared a Day in the Life video.  This video was five minutes long and was recorded about one and a half years after the accident.  However, the video was made just eight days after plaintiff had back surgery, at which time she still required significant assistance with activities of daily living.  Plaintiff contended that the video was relevant “to support her claim for future medical costs and the pain, suffering and loss of enjoyment she endured.”

During trial, the defendants filed a motion to exclude the plaintiff’s Day in the Life video and some recently supplied medical records.  The trial court granted the motions and barred both the video and the recently supplied records from being admissible at trial.

The jury found in favor of the plaintiff. However, Plaintiff was dissatisfied with the amount of the verdict. She moved for a new trial on damages or additur. (Additur is a procedure by which a court may increase the amount of damages awarded by the jury.)  The trial court denied the additur motion, finding that the jury’s verdict did not shock the conscience (which is the standard for increasing or reducing a jury award on damages). 

She then appealed the trial court’s evidentiary rulings and the denial of her motion for a new trial on damages or additur. In reviewing these trial court decisions, the Appellate Division applied the “abuse of discretion” standard in determining if the lower court’s decisions should be upheld.

Upon appeal, the plaintiff argued that the Day in the Life video should have been admitted because it “was necessary to demonstrate her difficulty in day-to-day activities and the inability to present it deprived her the right to show the jury evidence of pain and suffering.” However, the Appellate Division found that the trial court did not abuse its discretion in excluding the videotape. 

The Appellate Division pointed out that the Sawyer video was taken during her recuperation from her back surgery, instead of day-to-day life post-accident.  Hence, it agreed with the trial court that the focus of the video was her recovery from surgery as opposed to her day-to-day life and that it was not an accurate representation of the continued impact of her injuries.  The Court noted that Plaintiff had testified during her trial regarding the extent of her injuries as a result of the accident and the impact of those injuries upon her.

The Appellate Division also upheld the trial court’s ruling in excluding the recently supplied medical records.  The trial court found that there had been plenty of opportunity to produce the records prior to two weeks before trial.  The appeals court found no abuse of discretion in the trial court’s motion to bar these records at trial.

Further, the Appellate Division upheld the trial court’s denial of the motion for a new trial or additur.  The plaintiff had argued that the verdict was against the weight of the evidence such that it constituted “a clear miscarriage of justice.”  Plaintiff argued that based upon her injuries and prolonged treatment, the verdict of $400,000 was “shockingly low.” Plaintiff pointed out that, considering the total medical expenses incurred, more than $600,000, the jury award was disproportionate.

Again, the Appellate Division upheld the trial court’s rulings on the motion for additur and new trial.  It found that there was no abuse of discretion in the denial of either motion.  The Court noted the trial court’s finding that there was contested testimony and that “given the contested testimony, the jury believes some of what each party said.”  The trial court was satisfied that the jury appropriately considered the information and competing arguments and arrived at a “reasoned judgment” based upon the evidence.  Further, the trial court did not find that the damages were so disproportionate “’such to shock the conscience or to be manifestly ‘[u]njust.’” 

Again, the Appellate Division found no abuse of discretion in the trial court’s ruling to deny the motion for additur and a new trial.  Thus, the appeals court affirmed the trial court’s rulings, leaving the jury verdict in place.

Appellate Division Reverses and Remands No-Cause Verdict for Auto Negligence Claim Following Inadmissible Cross-Examination

By: Eric Richwine, Law Clerk
Edited by: Betsy G. Ramos, Esq.

The issue before the New Jersey Appellate Division in Rodriguez v. Cano, No. A-1561-21, 2023 N.J. Super. Unpub. LEXIS 1733 (App. Div. Oct. 12, 2023) was whether plaintiff Lenny Rodriguez (“Rodriguez”) was denied a fair trial following a no-cause verdict in a damages-only auto negligence case in favor of defendant-driver Stephanie Cano.  Plaintiff contended that defense counsel went too far in cross-examining Plaintiff’s treating physician about a fraudulent medical services action pending against the physician.

In the trial court proceedings, Defendant Cano did not contest liability; rather, the sole issue for the jury to determine was the amount of damages to be awarded to Rodriguez. During trial, Rodriguez’s treating physician testified to his injuries following the accident. The defense counsel soon after cross-examined the physician, focusing on the fact that a major insurance company had a pending fraudulent medical services action against him. During this cross-examination, the defense counsel also noted that Mr. Rodriguez’s treatment was explicitly included in the insurance fraud complaint to provide an example of the physician’s fraud. The defense counsel reasoned that this line of questioning was for the purpose of establishing the physician’s credibility.

The trial court judge realized only after the cross-examination that this line of questioning, which ultimately implied that Rodriguez’s treatment was unnecessary (or even fraudulent), was inadmissible, and, as such, the court instructed the jurors to disregard the testimony. The judge also allowed Rodriguez’s counsel to engage in re-direct to provide the physician the opportunity to rebut and elaborate on the defense counsel’s accusations. During re-direct, Rodriguez’s physician became irate and made several allegations against the insurer for false allegations and bad faith.

Plaintiff’s Rodriguez’s counsel moved for a mistrial, which the trial court denied. The jury returned a no-cause verdict. Rodriguez’s counsel then moved for a new trial, which the trial court also denied. The judge reasoned that any errors were “harmless.” The judge further reasoned that the jury surely “didn’t consider the evidence that I told them … to disregard,” citing the amount of time the jury took to deliberate; because the jury “didn’t come back in five minutes,” the judge purported that the jury did not think of Mr. Rodriguez and the physician as “criminals” or “fraudsters.” Plaintiff Rodriguez appealed.

The Appellate Division first addressed the defense’s cross-examination of the physician and the timing of the trial court judge’s instruction to the jury to disregard the testimony. The Court cited Rule 608 of the New Jersey Rules of Evidence, which prohibits the use of specific instances of conduct through cross-examination in a civil action to attack a witness’s character for truthfulness. The Court quickly determined that defense counsel’s line of questioning was “patently improper” per Rule 608 and that the trial court’s verdict “cannot stand.”

The Court found that, despite the defense counsel’s purported reason for its cross-examination questioning, it was inadmissible and ergo the trial court did correctly instruct the jury to disregard the testimony. The Court further noted that, although the trial court was well-intentioned in allowing the physician the opportunity for re-direct following the defense counsel’s ambush, this decision was ultimately misguided and backfired, as evidenced by the physician’s outburst.

Stating that “the prejudice to [Mr. Rodriguez] … cannot be overstated,” the Appellate Division ultimately determined that the trial court’s denial of Mr. Rodriguez’s mistrial motion and motion for a new trial was improper; as such, the Court held that Plaintiff was denied a fair trial and reversed the trial court’s decisions and remanded the matter back to the trial court for further proceedings.

How Is Comparative Negligence Law Applied Under New Jersey Law?

Under New Jersey law, N.J.S.A. 2A:15-5.1 (the Comparative Negligence Act), for a lawsuit based upon negligence claims, juries are allowed to apportion fault for an accident to multiple parties and assign liability in terms of a percentage of fault to each party. What happens if a plaintiff is assessed a percentage of fault for the accident? As long as a plaintiff is not determined to be more than 50% at fault, the plaintiff can recover damages for their injuries but at a reduced amount based upon their percentage of fault.

If the jury determines that both the defendant (or defendants) as well as the plaintiff, are liable for the accident, it must assess each party’s responsibility, which has to add up to 100%. (N.J.S.A. 2A:15-2). If a plaintiff is determined to be no more than 50% at fault, any monetary award made by a jury in favor of the plaintiff would be reduced by that percentage assessed against the plaintiff.  As an example, if the jury found that both the plaintiff and the defendant were each 50% liable and awarded the plaintiff $100,000 in damages, the verdict would be molded so that the plaintiff’s net recovery would be $50,000. Using this same example, however, if the plaintiff is assessed to be 51% negligent, the plaintiff would recover $0 in damages.

So what happens if there is more than one defendant and each defendant is assessed a portion of fault? From whom can the plaintiff collect? Under N.J.S.A. 2A:15-3, a plaintiff can only recover the percent damage award assessed against that defendant – unless the defendant is found to be at least 60% at fault. Using my example above, if there are two defendants (and assuming no comparative negligence is assessed against the plaintiff) and each defendant is found to be 50% responsible for the accident, then the plaintiff can only recover 50% of the award from each defendant ($50,000 each). However, if liability is assessed 60% against one of defendant and 40% against the other defendant, then the plaintiff can proceed to collect the entire $100,000 award against the defendant who was found to be 60% negligent.

There is an exception to this rule for public entities (i.e., municipalities, counties, public boards, and the State). Negligence claims against public entities are governed by the New Jersey Tort Claims Act (N.J.S.A. 59:1, et seq.) According to N.J.S.A. 59:9-3.1, public entities shall be liable for no more than their share of damages equal to the percentage of the negligence attributable to that entity. Hence, regardless of the percentage of liability assessed against a public entity for negligence in causing or contributing to an accident, a plaintiff is limited to collecting only that percentage of fault assessed against that entity.

Now what happens when a plaintiff does collect the whole award from one defendant because one of the defendants is found to be at least 60%? That’s when contribution rights can kick in. With the filing of their answer, defendants can assert a cross-claim for contribution and/or indemnification pursuant to Rule 4:7-5. Actually, defendants have 90 days after service upon the complaint upon them or upon the party against whom the cross-claim is asserted, whichever is later, to file a cross-claim against that defendant. After that time period, the defendant would have to file a motion and ask the court for permission to file the cross-claim. If a defendant does end up paying more than its “share,” it can try to pursue the co-defendant for that defendant’s percentage of fault assessed against the co-defendant.

Provision in Employment Contract Limiting Employee’s Ability to Sue Third Party Found Unenforceable by NJ Court

Plaintiff Philip Vitale was injured while working as a security guard for Allied Barton Security Services, LLC (“Allied Barton”), which contracted with defendant Schering-Plough Corporation to provide security services to its facilities. Plaintiff had signed a disclaimer, waiving his right to sue any of Allied Barton’s customers to which he may be assigned. In the published decision of Vitale v. Schering-Plough Corp., 2016 N.J. Super. LEXIS 114 (App. Div. Aug. 22, 2016), the Appellate Division held that this waiver was unenforceable.

Plaintiff had been working as a security guard with Allied Barton for 4 years before the accident. While he was assigned to many of defendant’s work sites, he was never directly employed by defendant Schering-Plough, which had its own in-house security employees. He had been promoted to the position of field manager, supervising Allied Barton’s security guards who worked at defendant’s sites.

This accident occurred when plaintiff was going down the stairs of the guardhouse basement. Apparently, he tripped over a bag of ice melt and fell down the stairs. Plaintiff claimed to have suffered injuries to his neck, shoulder, and lower back, as well as cognitive difficulties.

The matter was tried before a jury, which awarded $900,000 in damages. Defendant appealed on the basis that the court erred in refusing to grant it summary judgment based upon the contractual waiver to sue signed by the plaintiff at the inception of his employment. The defendant argued that this waiver was valid and enforceable.

When plaintiff began his employment with Allied Barton, he signed a “Worker’s Comp Disclaimer.” Per this disclaimer, the plaintiff acknowledged that state Workers’ Compensation statutes covered his work-related injuries. Further, he agreed that, as a result, and in consideration of Allied Barton offering him employment, he would waive and release any and all rights to make a claim or commence a lawsuit from or against any customer of Allied Barton to which he may be assigned, “arising from or related to injuries which are covered under the Workers’ Compensation statutes.”

The Appellate Division found that enforcement of this waiver would be against public policy, as well as not “congruent” with the intent of the Workers’ Compensation Act for several reasons. First, the plaintiff would have been unaware of the risks he was taking because, when he signed the disclaimer, he did not know the identity of Allied Barton’s clients. Thus, he could not know the working conditions he might encounter while working at the facilities of Allied Barton’s clients

Second, this disclaimer created a disincentive for the defendant Schering-Plough to maintain a safe working condition for contractors working on its premises. Because the defendant would now be insulated from liability due to this disclaimer, it had a reduced incentive to maintain a safe work place for its contractors.

Third, to the extent this waiver would be waiving the plaintiff’s rights to recover for reckless or intentional conduct, the disclaimer is against public policy. The defendant argued that this disclaimer only waived claims covered by the Workers’ Compensation Act (“the Act”) and claims of reckless and intentional misconduct are not covered by the Act. However, the Appellate Division stated that it did not view the Act’s “intentional wrong” exception as broadly as the defendant suggested. Conduct that could be viewed as reckless or intentional under general tort law could result in injuries covered by the Act and, hence, unlawfully waived by the disclaimer.

Last, the Appellate Division pointed out that enforcement of this disclaimer would be contrary to the Act because it would not permit the plaintiff to pursue the defendant as a joint employer, who could be liable to pay him workers’ compensation benefits. New Jersey recognizes that an employee may have two employer, both of which may be liable for workers’ compensation (the “joint employer doctrine”). There is a 3 part test developed to establish such a special-employment relationship with the “joint employer.”

The court pointed out that the type of relationship between Allied Barton and the defendant has been long recognized. Further, the court had previously recognized the concept of joint employment in a similar context where a company hired security guards and supplied them to work guarding other businesses’ sites. Thus, the Appellate Division appeared to implicitly rule that, should this disclaimer be enforceable, the plaintiff would be giving up his right under the Act to pursue a claim against Schering-Plough as a joint employer.

For these reasons, the court found the disclaimer to be unenforceable. It is apparent that the Court’s ruling was intended to protect the injured employee’s interests. Interestingly, although this decision is primarily grounded in workers’ compensation doctrine, it actually provides a civil remedy that would have been not been available to the employee, should the disclaimer have been deemed valid.

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