Prejudicial conduct of a insurance defense attorney requires new trial

Submitted by New Jersey Civil Lawyer, Jeffrey Hark.

JUAN MORALES-HURTADO, Plaintiff-Appellant, v. ABEL V. REINOSO and NEW SERVICE, INC., New jersey Appellate Division December 6, 2018

Issues:  What professional conduct is far wide of the mark to warrant a new trial.  How far can defense counsel  to cross examine the plaintiff and the plaintiff’s doctors without causing undue prejudice? The question becomes what is the proper scope of the questions an attorney is allowed to ask during a trial?  THIS APPELLATE DIVISION DECISION IS A GREAT PRIMER FOR THE RULES PERTAINING TO DIRECT AND CROSS EXAMINATION OF A PLAINTIFF, DOCTORS, COMMENTS IN THE OPENING, AND OTHER CONDUCT ATTORNEY SHOULD BE WARY OF DURING A TRIAL.  THIS APPELLATE PANEL STATED IN A FOOTNOTE THAT THE COURT DID NOT BELIEVE THE ATTORNEY ACTED PURPOSEFULLY IMPROPER, HOWEVER WITH ERROR AFTER ERROR AND ADMONISHMENT AFTER ADMONISHMENT…..I BELIEVE THIS DEFENSE ATTORNEY KNEW EXACTLY WHAT HE WAS DOING!

This is a very unique appellate court decision overturning a trial because of the cumulative effect of improper conduct and questioning on behalf of a insurance defense attorney at the time of trial which were not relevant to the facts of the case and asked entirely to prejudice the plaintiff and wrongfully effect the trial out come.

During the very bringing of the trial, on cross examination of the plaintiff, the line of question went as follows:

Defense counsel began his cross-examination by asking plaintiff his birthdate. He then questioned him about his native country, his citizenship, and his ability to speak English, interjecting a declaratory statement as he did so:

[Defense Counsel]: Sir, you were born in Columbia? [Answer]: Correct.

[Defense Counsel]: And you came to the United States in approximately 2002. Is that correct?

[Answer]: Correct.
[Defense Counsel]: Are you a United States citizen? [Answer]: Correct.

[Defense Counsel]: Have you been living in the United States continuously since 2002 when you came here?

[Answer]: Correct.

[Defense Counsel]: Ok. I am not questioning your right as a citizen or as a witness to use an interpreter but I would just like to ask you briefly about your ability to understand English. Okay sir? You do understand English, right, sir?

[Answer]: A little.

[Defense Counsel]: Okay. And after you came to the United States what – what – I’m sorry, withdrawn. What age were you when you came to the United States?

[Answer]: [Nineteen] years old.

[Defense Counsel]: And you took classes in English when you – after coming to the United States?

[Answer]: Correct.

[Defense Counsel]: And throughout the trial you’ve been communicating with your attorney in English, including yesterday while I was doing my opening statement, correct?

[Answer]: Correct.

[Defense Counsel]: I just – I’m trying to understand do you understand the statements that are being said in this courtroom before they are translated for you?

[Answer]: A little.

[Defense Counsel]: Let’s talk about the accident. . . .
In addition to posing other questions about the accident, defense counsel brought out that the airbags in plaintiff’s car did not deploy upon impact.

The next area defense counsel attempted to create irrelevant prejudice by asking the plaintiff’s orthopedic or neurosugical expert questions about secondary gain (is the plaintiff injured party attempting to play the system for money as opposed to being actually seriously injured. During cross-examination of the doctor, defense counsel inquired about the concept of secondary gain:

 

[Defense Counsel]: Are you familiar with the medical concept of secondary gain?

[Doctor]: Yes. Secondary gain is when a patient has a reason to have symptoms beyond organic reasons, beyond reasons that you could explain with the pathology you have discovered.

[Defense Counsel]: Okay. And you are familiar with the concept of secondary gain as it might relate to patients who are involved in litigation in which they’re seeking monetary compensation for injuries they claimed they suffered, correct?

[Doctor]: Yes.

[Defense Counsel]: And the concept of secondary gain is one that is generally understood and accepted in the medical profession, correct?

[Doctor]: Yes.

[Defense Counsel]: So a doctor such as yourself understands that a patient such as [plaintiff] might have a motive to make complaints because he feels that those complaints might result in his receipt of monetary compensation. Is that correct?

[Doctor]: Yes.

Neither Dr. Arginteanu nor any other doctor testified that plaintiff was exhibiting secondary gain.

Dr. Arginteanu noted in his records that on August 12, 2013, plaintiff’s lumbar spine was “under control.” Following a December 2013 accident, his spine was out of control. Thereafter, plaintiff’s pain began radiating down his left lower extremity with persistent pain, numbness, and weakness. During defense counsel’s cross-examination of Dr. Arginteanu on these points, the following exchange occurred:

1. Did you – withdrawn. Well, you knew that Mr. Morales was a plaintiff in a lawsuit at the time that you treated him, right?
2. No. Not at the time when I first saw him, he was a patient.
3. At the time that you formulated your opinion on causation at plaintiff’s attorney’s request you understood that he was claimant in a lawsuit, right?
4. Yes. ….
5. I’m asking you questions and you’re supposed to be here to answer questions. Objectively we had a whole dispute about being objective versus – –
6. Yes.
7. – subjective. If you’re not here to advocate for Mr. Morales, you’ll just answer my questions and answer whatever they happened to be. And if Mr. Morales’ lawyer who’s actually paid to be his advocate wants to ask questions he’ll do so. And it’s not your job, in my opinion, the jury will make their own assessment, for you to try to just volunteer information or ask other questions. Will you agree with that? That’s not what you’re supposed to be doing.
8. I don’t understand the whole lawyer thing, but me being – as I try to be – an honest person I can’t sit by when you read half a note and then don’t read the end of it.

Plaintiff presented the testimony of two other medical witnesses, Duncan B. Carpenter, a neurosurgeon, and John Michael Athas, a board certified neuroradiologist. Dr. Carpenter had examined plaintiff for the defense, a fact the court barred plaintiff from eliciting during the doctor’s examination.3 Dr. Carpenter opined that the condition of plaintiff’s low back, which necessitated the surgery, was caused by the vehicular accident involving defendant. Dr. Carpenter also testified plaintiff’s post-surgical low back condition was permanent.

Dr. Athas confirmed the October 2011 MRIs showed bilateral spondylolysis at L5/S1, as well as a disc herniation at L4/L5. The cervical MRI revealed a disc herniation at C5/6. Lastly, the February 2012 thoracic MRI disclosed herniations at T8/9 and T9/10, and disc bulges at T6/7 and T7/8. The post-discogram MRI also showed the herniations that had been disclosed on the October 29, 2011 lumbar MRI.

Defendant presented the testimony of two doctors. Dr. Jeffrey Lang, a board certified radiologist, had interpreted flexion-extension x-rays of plaintiff’s lumbar spine on June 26, 2012.4 Dr. Lang interpreted the films as showing a “bilateral spondylolysis with grade one spondylolisthesis at L5.” He explained that the spondylolysis is a type of fracture through part of the vertebrae and a spondylolisthesis “is when one vertebrae slips anterior or posterior.”

Dr. Lang also interpreted an MRI of plaintiff’s lumbar spine on January 29, 2014. Dr. Arginteanu ordered the study. Dr. Lang interpreted the MRI as showing a “[n]ormal postoperative MRI of the lumbosacral spine.”

Dr. Robert Traflet, a board certified diagnostic radiologist, interpreted the cervical, thoracic, and lumbar MRIs at defendant’s request. Notwithstanding plaintiff’s age — twenty-eight at the time of the report — Dr. Traflet opined that the changes throughout plaintiff’s cervical, thoracic, and lumbar spine were all degenerative. Dr. Traflet explained why, in his opinion, the MRI studies revealed a chronic, longstanding process, resulting in plaintiff’s bulging and herniated discs. This was particularly so, according to the doctor, because “every part [of the spine] didn’t just have one abnormality, it had multiple abnormalities.”

Dr. Traflet noted that if a person added the abnormalities throughout plaintiff’s spine, there would be approximately fourteen abnormal levels. This was significant “because if you were going to postulate a traumatic disc herniation, which can happen, that means that whatever the trauma is has to direct all of the force on that disc.” Dr. Traflet explained that discs do not herniate easily, “so if you have multiple things going on and multiple abnormalities over and over and over again it just further supports the degenerative nature” of the condition. Dr. Traflet concluded the herniations and bulges in plaintiff’s spine were caused by a degenerative process and were not related to the accident involving defendant.

Defendant also played video surveillance of plaintiff to the jury. His attorney had mentioned the surveillance in his opening statement in the context of a litigious society.

The jury returned a unanimous verdict on liability, finding defendant 80% responsible for the accident and plaintiff 20% responsible. The jury awarded $50,000 to plaintiff for pain, suffering, disability, impairment and loss of enjoyment of life by a vote of seven to one. The jury unanimously awarded plaintiff $71,615.73 for past medical expenses.

1. The scope of cross examination

We begin our analysis by reiterating that in our system of justice, cross- examination is “the greatest legal engine ever invented for the discovery of truth.” California v. Green, 399 U.S. 149, 158 (1970) (quoting 5 Wigmore on Evidence, §1367 (1940); see also State v. Cope, 224 N.J. 530, 555 (2016)). Nonetheless, neither cross-examination nor zealous advocacy is unbounded. Generally, in trial, a lawyer shall not allude to any matter that the lawyer does not reasonably believe is relevant or that will not be supported by admissible evidence, assert personal knowledge of facts in issue except when testifying as a witness, or state a personal opinion as to the justness of a cause, the credibility of a witness, the culpability of a civil litigant or the guilt or innocence of an accused. Rule of Professional Conduct 3.4(e); see also Matter of Vincenti, 152 N.J. 253 (1998). Fundamental principles also circumscribe the conduct. Attorneys address juries in opening and closing statements. R. 1:7-1(a) and (b). Direct and cross-examination of witnesses generally proceed by way of interrogation, that is, questioning. See N.J.R.E. 611(a). It is improper for an attorney to interject personal assertions or opinions while interrogating witnesses. It is also improper for attorneys to make arguments in front of the jury in the guise of objections, a practice often referred to as “speaking” objections. of trials.

The court, not the attorneys, is empowered to “exercise reasonable control over the mode and order of interrogating witnesses.” Ibid. For this reason, it is improper for an attorney, under the guise of objecting or otherwise, to tell an adversary how to ask a question or to direct arguments and assertions to an adversary rather than to the court. And once the court has ruled on an objection, “counsel must abide by [the court’s] ruling, saving objections for appeal.” Greenberg v. Stanley, 51 N.J. Super. 90, 102 (App. Div. 1958), aff’d in part, rev’d in part, 30 N.J. 485 (1959).

Credibility determinations are to be made by the jury. “The courts of this State have long adhered to the cardinal principle that ‘[i]t is within the sole and exclusive province of the jury to determine the credibility of the testimony of a witness.'” Rodriguez v. Wal-Mart Stores, 449 N.J. Super. 577, 590 (App. Div. 2017) (quoting State v. Vandeweaghe, 351 N.J. Super. 467, 481 (App. Div. 2002), aff’d, 177 N.J. 229 (2003)), certif. granted, 230 N.J. 584 (2017). “[T]he jury is charged with making credibility determinations based on ordinary experiences of life and common knowledge about human nature, as well as upon observations of the demeanor and character of the witness.” Ibid. (citing State v. Jamerson, 153 N.J. 318, 341 (1998)). For these reasons, courts “do not allow one witness to comment upon the veracity of another witness.” Vandeweaghe, 351 N.J. Super. at 481-82. “This prohibition applies even if the witness proffered to render such a credibility opinion is an expert.” Rodriguez, 449 N.J. Super. at 591.

An innocuous violation of any of these principles does not necessarily require a new trial. Taken together, however, numerous small errors can accumulate so as to deprive a party of a fair trial. Torres v. Pabon, 225 N.J. 167, 191 (2016); accord, Pellicer ex rel. Pellicer v. St. Barnabas Hosp., 200 N.J. 22, 53 (2009) (“we have recognized that the cumulative effect of small errors may be so great as to work prejudice, and we have not hesitated to afford the party suffering that prejudice relief where it has been warranted”). We conclude this is such a case.

1. A) Factually, in this case the court examined the defendant’s opening statement as well:

During his opening statement, defense counsel told the jury: “[a]s one might expect, not surprising in our litigious society, defendant, I – – we made arrangements to have an investigator look for the plaintiff to see what’s he doing in his private life. He’s claiming that he’s injured. And you’ll see, it is not a lot of tape, he’s doing what normal people do. . . . ”

The statement was improper.

An opening statement has a narrow purpose and scope. It is to state what evidence will be presented, to make it easier for the jurors to understand what is to follow, and to relate parts of the evidence and testimony to the whole; it is not an occasion for argument. . . . [I]t is fundamentally unfair to an opposing party to allow an attorney, with the standing and prestige inherent in being an officer of the court, to present to the jury statements not susceptible of proof but intended to influence the jury in reaching a verdict. [United States v. Dinitz, 424 U.S. 600, 612 (1976) (Burger, C.J., concurring).] Counsel’s reference to one’s expectations in a litigious society was improper. The remark was not a statement of evidence, and it arguably was an appeal to prejudice.

1. B) Then the defense attorney committed error with his cross examination of the plaintiff. The court ruled:

During the cross-examination, counsel explained he was not “questioning [plaintiff’s] right as a citizen or as a witness to use an interpreter but I would just like to ask you briefly about your ability to understand English.” In State v. Sanchez-Medina, the Supreme Court noted that “today . . . evidence of a defendant’s undocumented immigration status could appeal to prejudice, inflame certain jurors, and distract them from their proper role in the justice system: to evaluate relevant evidence fairly and objectively.” 231 N.J. 452, 463 (2018). Those same considerations apply to questions about a party or witness’s citizenship, length of time in United States, and need for an interpreter. True, plaintiff’s attorney elicited that plaintiff was born in another country. That did not, however, open the door to questions about plaintiff’s citizenship and his need for an interpreter, questions that some might suggest have racial undercurrents. Besides, the court, not a party’s adversary, is charged with the responsibility of providing an interpreter when necessary. And an attorney’s view about a party’s “right as a citizen or as a witness to have an interpreter” is irrelevant.

Even if the latter considerations were relevant – a proposition difficult to discern – their probative value was substantially outweighed by the risk of undue prejudice. See Serrano v. Underground Utils. Corp., 407 N.J. Super. 253, 281 (App. Div. 2009). If defense counsel intends to pose such questions on retrial, he should first make an appropriate proffer to the trial court. However, “[a] generalized invocation of witness ‘credibility’ issues will not suffice.” Ibid. Also irrelevant was defense counsel’s cross-examination of plaintiff about the age of the passengers in his car. Although defense counsel proffered he was asking about the passengers’ ages merely to show they were present at the accident scene, one is hard pressed to comprehend how their ages established their presence.

1. C) The the defense attorney asked questions of the plaintiff regarding his attorney’s pending statement. The court ruled:  Cross-examining a party about his attorney’s opening statement is improper. See State v. Woods, 687 P.2d 1201, 1208-09 (Ariz. 1984). As a court instructs the jury in virtually every case, the attorneys’ statements are not evidence. See Model Jury Charges (Civil), 1.11, “Preliminary Charge” (Approved Nov. 1998, Revised May 2007).

 

1. D) The defense attorney then asked questions regarding why the air bags did not open at the time of the impact: Defense counsel also cross-examined plaintiff about the airbags in plaintiff’s car not deploying upon impact with defendant’s bus. In Taing v. Braisted, ____ N.J. Super. ____ (Law Div. 2017), the trial court held that such evidence was inadmissible absent expert testimony. We agree. Moreover, in the case before us, the evidence might have been misleading. There is no evidence airbags are engineered to deploy in rear-end accidents. See, e.g., Air Bags Quick Facts, gov powered by National Highway Traffic Safety Administration, https://www.safercar.gov/Vehicle%20Shoppers/Air%20Bags/Quick%20Facts (last visited Nov 21, 2018). Evidence concerning airbags deploying or not deploying is inadmissible in the absence of expert testimony. Accordingly, such evidence should be excluded when this case is retried.

 

1. E) The following assertions defense counsel made while cross-examining Dr. Arginteanu should be disallowed on retrial:
2. I’m asking you questions and you’re supposed to be here to answer questions. Objectively we had a whole dispute about being objective versus – –
3. Yes.
4. – subjective. If you’re not here to advocate for Mr. Morales, you’ll just answer my question and answer whatever they happened to be. And if Mr. Morales’ lawyer who’s actually

assessment, for you to try to just volunteer information or ask other questions. Will you agree with that? That’s not what you’re supported to be doing.

These purported questions were assertions, not questions or interrogation. See N.J.R.E. 611. More significantly, they were not-so-veiled opinions by defense counsel that the doctor was being an advocate, not an objective expert, and was therefore not credible. And they usurped the function of the trial court by commenting on how the doctor should answer questions and suggesting how the jury should assess the doctor’s testimony. Ibid.; see also RPC 3.4(e).

We also conclude the trial court erred by denying plaintiff’s in limine motion and permitting defendant to cross-examine Dr. Arginteanu about the concept of secondary gain. In Rodriguez, we explained that “in a jury setting, there is a great danger that an expert witness who characterizes a plaintiff as a ‘malingerer’ or a ‘symptom magnifier,’ or some other negative term impugning the plaintiff’s believability will unfairly infect the trier of fact’s assessment of the plaintiff’s overall narrative on both liability and injury.” Rodriguez, 449 N.J. Super. at 596. We explained that “[s]uch opinion evidence from a doctor inherently has a clear capacity to deprive a plaintiff of a fair jury trial.” Ibid. (quoting R. 2:10-2). We thus held “that such testimony at a civil jury trial should be categorically disallowed under N.J.R.E. 403.”

1. F) Inappropriate defense objections in front of the jury. 

Defense counsel’s penchant for making inappropriate comments in front

of the jury and usurping the court’s trial role was not limited to his cross- examination of plaintiff’s witnesses. He engaged in the same conduct during plaintiff’s cross-examination of defendant. Defendant’s trial testimony that he intended to go straight through the intersection was significant to his comparative negligence defense. The police report suggested defendant was making a right turn, and he expressly said so in a sworn interrogatory answer. He changed his testimony at trial. Plaintiff’s counsel attempted to impeach him by pointing out he did not say at his deposition that he intended to proceed through the intersection. Defense counsel objected on the ground that the question was misleading. When plaintiff attempted to pursue the line of questioning, the following exchange occurred:

[Defense Counsel]: Your Honor, I’m objecting because the question is misleading. If he was never asked the question, he didn’t give the answer because he was asked the question. It’s misleading to tell the jury that he said something or he didn’t.

[Plaintiff’s Counsel]: Judge, the answers to interrogatories say, tell us your version of the accident. He gave one version. At a deposition we said, tell us your version of the accident. And he doesn’t contradict his answers to interrogatories.

[Defense Counsel]: Read him something that’s inconsistent with what he’s testified to. Confront him with the question where he’s asked that question.

[The Court]: . . . overruled.
Contrary to defense counsel’s assertion, the questions

were not misleading. Defendant had sworn in interrogatories that he intended to make a right turn. He did not recant that answer or testify differently at his deposition. Plaintiff’s counsel pursued a proper line of questioning to establish defendant did not change his testimony until trial. In fact, if the change in testimony was

material to the defense of comparative negligence, defense counsel had an obligation to disclose the anticipated change in testimony. McKenney v. Jersey City Med. Ctr., 167 N.J. 359, 371 (2001); T. L. v. Goldberg, 453 N.J. Super. 539, 556-57 (App. Div. 2018), certif. granted, ____ N.J. ____ (2018). Defendant’s argument in front of the jury — in the guise of an objection — and his assertion that plaintiff’s attorney was misleading the jury, were improper, as was his demand that plaintiff’s counsel read something from the deposition. So-called “speaking objections” are prohibited. If an attorney for some reason cannot concisely state an objection in the language of the relevant evidence rule, he or she should request a sidebar, which the court may, in its discretion, grant or deny. “[C]ounsel must abide by [the court’s] ruling, saving [further] objections for appeal.” Greenberg, 51 N.J. Super. at 102.

That is not to say defense counsel could not have elicited whatever he considered significant from his client’s deposition testimony and countered with an alternative argument. But proper procedure required he do so on re- direct examination and in closing argument, not by blurting out opinions and demands of his adversary in front of the jury.