Superior Court of New Jersey,
Appellate Division.
Natalie HUFFIN, Plaintiff–Appellant,
v.
BEAM BROTHERS TRUCKING, INC., and Thomas Hostetter, Defendants–Respondents.
Argued Sept. 10, 2013.
Decided Sept. 19, 2013.
On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L–10382–08.
David S. Rochman argued the cause for appellant.
Daniel S. Jahnsen argued the cause for respondents (Bolan Jahnsen Dacey, attorneys; Mr. Jahnsen, on the brief).
Before Judges FISHER, ESPINOSA and KOBLITZ.
PER CURIAM.
*1 In this personal injury action, plaintiff, then employed by the United States Postal Service at its now closed transfer facility in Carteret, alleged she was struck by a “post-con” FN1 as a result of the negligence of defendant Beam Brothers Trucking’s driver, defendant Thomas Hostetter. Defendants’ position throughout this case and at trial was that the incident never occurred. At the conclusion of an eight-day trial, the jury agreed with defendants. In her appeal, plaintiff contends that defense counsel’s opening and closing statements were improper and that the trial judge erred in admitting a surveillance tape and certain medical and employment records. We find no error and affirm.
FN1. A “post-con” was described as a moveable metal cage with shelves for carrying mail. Witnesses testified differently about the precise size of a post-con. Plaintiff testified they are approximately six feet tall and four feet wide.
Plaintiff’s allegations as to the manner in which plaintiff was injured are not particularly germane to this appeal. It suffices to mention that, on December 15, 2006, plaintiff was working for the postal service as an expediter. An expediter meets incoming trucks and ensures the accuracy and integrity of the sealed incoming and outgoing mail containers. Plaintiff testified that while in the process of signing out a driver, she was struck by a post-con containing mail pushed by Hostetter; she claimed that impact caused her to be violently shoved three to five feet forward. Hostetter testified no such incident ever occurred, and defendants asserted no knowledge of plaintiff’s belief that Hostetter had caused her to be injured until served with the complaint in this action.
In appealing the jury’s defense verdict, plaintiff contends that defense counsel’s arguments to the jury—in both his opening statement and summation—were improper. We turn first to defense counsel’s opening statement.
The fundamental purpose of an opening statement is “to do no more than inform the jury in a general way of the nature of the action and the basic factual hypothesis projected, so that they may be better prepared to understand the evidence.” Farkas v. Board of Chosen Freeholders, 49 N.J.Super. 363, 367–68 (App.Div.1958); see also Passaic Valley Sew. Comm’rs v. Geo. M. Brewster & Son, Inc., 32 N.J. 595, 605 (1960); Szczecina v. PV Holding Corp., 414 N.J.Super. 173, 178 (App.Div.2010). An opening statement should be “summary and succinct” and “[n]othing must be said which the lawyer knows cannot in fact be proved or is legally inadmissible.” Passaic Valley, supra, 32 N.J. at 605. Counsel, of course, must not “make derisive statements about parties, their counsel, or their witnesses.” Szczecina, supra, 414 N.J.Super. at 178. Defense counsel’s opening statement did not offend any of these principles.
In pursuing this aspect of the appeal, plaintiff alludes to defense counsel’s reference to a defense radiology expert, Dr. Douglas Noble. During pretrial discussions regarding a number of evidence issues, the judge directed defense counsel not to make reference to Dr. Noble because it had not been determined whether he would be permitted to testify. Indeed, defense counsel invited that ruling by advising the judge that he was leaning toward not calling the expert to testify. Defense counsel did, however, refer in his opening to Dr. Noble having been retained to interpret MRIs regarding plaintiff’s condition. To be sure, this discussion in the opening was contrary to the trial judge’s direction—and plaintiff objected for that reason—but plaintiff’s counsel opened the door. That is, despite counsel’s earlier consternation that defense counsel might refer to Dr. Noble in his opening statement, and despite successfully convincing the judge that no mention should be made, plaintiff’s counsel made the following argument in his opening:
*2 Now, defense counsel again is not without expert, and they’re not without expert in this realm, they have put us on notice that we may hear from Dr. Noble. I will suggest to you now and if we do hear from Dr. Noble that Dr. Noble has not reviewed the litany of the films, you’re going to hear that Dr. Noble never met Ms. Huffin, never evaluated Ms. Huffin, never saw Ms. Huffin, never examined Ms. Huffin.
In response, defense counsel made the following short comment about Dr. Noble:
Now, with respect to Dr. Noble, counsel is critical of the fact that I have a radiologist, all right. What am I supposed to I—I have no idea, I don’t read the films myself, and if I could read a film I couldn’t put it out there and tell you what it said—what an MRI said. I’m a lawyer, you know I—which means I can’t do math, and I can’t do medicine. Ask me how to multiply and still remainder, I’ve been carrying the one for years and I have no idea why. But I brought in Dr. Noble for one purpose what do these films say, that’s all, and he’ll be able to tell you what they say. But what you haven’t heard is that the MRIs—her MRIs of her lo—her lumbar spine that were taken 1999, years before this incident took place. And I’m not going to suggest to you what they say or even tell you what the doctor said, that’s his job. But why would you ever subject yourself to an MRI if you didn’t have (inaudible). Think about it. You know it’s like it’s not sitting on the beach. You know why would you go through a machine—why would someone write a prescription for you to go through a machine for no problem? And have (inaudible). There’s doctors here, I’m going to get some criticism with respect yes, I hired a radiologist, I don’t know how to read films.
Because plaintiff’s counsel opened the door and advised the jury that defendant might call Dr. Noble to the stand, and then criticized the scope of Dr. Noble’s involvement, defense counsel was thoroughly justified in responding as he did.
Plaintiff also argues that defense counsel exceeded the bounds of proper advocacy in his opening statement in numerous other respects. Specifically, plaintiff refers to defense counsel’s comments that: (1) plaintiff’s concerns about a surveillance videotape are “nonsense”; (2) plaintiff, when seen in the emergency room after the alleged incident, “doesn’t have so much as a bruise, not a single bruise on her body”; (3) the case “snowballs from obviously 2006 to now, it’s four and a half years”; (4) if the incident actually occurred, a driver such as Hostetter would have been required to “fill out” an incident report and no such report was filed; (5) plaintiff had filed prior workers’ compensation claims; (6) Hostetter is “about 5’10” I think, he never had a problem seeing on the other side” of post-cons; (7) defense counsel’s proclivity for catching a red light at a particular intersection as an example of why defendants would not be aware of something that was not out of the ordinary; (8) despite her claims of a significant personal injury, plaintiff “could sit for a day and a half and watch this jury get picked, she could be a jury consultant”; (9) this was “the third time she’s been hit by something in the postal facility, the third time”; (10) Hostetter was “ticked off at this” because the incident “didn’t occur”; (11) defense counsel was not in court “to win” but to see “that justice is done,” suggesting the only just verdict would be one in favor of defendants. We find plaintiff’s arguments regarding these statements—either individually or collectively—to be without merit and require no further discussion. R. 2:11–3(e)(1)(E). It may be arguable that some of these comments may be viewed as a departure from the essential purpose of an opening statement—to succinctly summarize the case so the jury may appreciate the evidence it is about to hear—particularly those comments in which defense counsel referred to his client as being “ticked off” at having to defend against a claim which had no basis in fact. We do not, however, view counsel’s brief comments as having any tendency to interfere with the fairness of the trial. Indeed, the experienced judge, in response to plaintiff’s many objections about defense counsel’s opening statement, immediately reminded the jury that what counsel had said was not evidentiary. Plaintiff was not prejudiced.
*3 Unlike an opening statement, which, as we have noted, is intended to succinctly map for the jury the nature of the allegations and defenses so the jury might better appreciate the evidence about to be presented, attorneys are given “broad latitude in summation,” Rodd v. Raritan Radiologic Assoc., P.A., 373 N.J.Super. 154, 171–72 (App.Div.2004), and “may argue from the evidence any conclusion which a jury is free to arrive at” and “draw conclusions even if the inferences that the jury are asked to make are improbable, perhaps illogical, erroneous or even absurd,” Spedick v. Murphy, 266 N.J.Super. 573, 590–91 (App.Div.), certif. denied, 134 N.J. 567 (1993). In summation, counsel must also refrain from using disparaging language of the parties, attorneys or witnesses. Rodd, supra, 373 N.J.Super. at 171.
Plaintiff’s counsel argues in this appeal—for the first time—that defense counsel was referring directly to plaintiff when in his summation he told the jury that “today … is the day where [defendant] finally got the ‘monkey off his back.’ “ There is not the slightest doubt that counsel was not making a reference to the fact that plaintiff is African–American in making this argument to what plaintiff asserts was an “all white jury.” FN2 Indeed, plaintiff’s counsel’s failure to object at trial or by way of a motion for a new trial demonstrates that plaintiff and her counsel understood that the comment was not intended to be offensive in the manner in which plaintiff now argues. As Chief Justice Weintraub explained for the Court in State v. Macon, 57 N.J. 325, 333 (1971), a failure to object at trial permits an inference that the appellant believed the offending event “was actually of no moment.” It is unimaginable that if the comment was meant to carry or could be understood as carrying the incendiary connotation plaintiff now urges that plaintiff’s counsel would have sat silently by and uttered no complaint or outrage until filing a brief in this court. Clearly, defense counsel was not referring to plaintiff but to this aged lawsuit as the monkey on defendants’ back.
FN2. Because the record provides no information as to the racial make up of the jury, we have only plaintiff’s counsel’s assertion in this regard to support the claim that the jury consisted only of Caucasians.
We lastly consider and find without merit plaintiff’s arguments regarding the admission of a surveillance videotape and certain medical records. The videotape is not contained in the record on appeal but it was thoroughly described by the trial judge after he reviewed it in order to rule on plaintiff’s objection prior to its use during the trial. The surveillance tape FN3 only showed images; there was no accompanying sound.
FN3. The video was created not by defendants but by the postal service, which was apparently suspicious of the legitimacy of plaintiff’s claim because of her many prior claims.
Useful surveillance tapes normally contain depictions of a plaintiff engaging in conduct inconsistent with the claimed injuries. See, e.g., Ostrowski v. Cape Transit Corp., 371 N.J.Super. 499, 503 (App.Div.2004), aff’d o.b., 182 N.J. 585 (2005). That was not the case here. The judge observed that the tape did not show plaintiff doing anything dramatic or inconsistent with her claims about the extent of her injuries, summarizing that the videotape was hardly a “smoking gun” for the defense. In fact, at trial, plaintiff was able to defuse any concerns about the videotape through testimony that plaintiff’s treating physician had recommended she not be sedentary at that time. The judge noted that “the visual images shown in [the] tape do not reflect [plaintiff] at all lifting anything or bending for more than a second or two, almost literally a second or two into … that [car] trunk without removing anything.” In fact, the experienced judge stated that “if I were the defense attorney … I would really have some thoughts about whether or not to use [the videotape], because it doesn’t show anything other than that she had the capacity to stand for a few minutes at a time outside her home…. All we know is that she was standing outside not lifting anything” as apparently others moved furniture or other property out of her home.
*4 Plaintiff argues that the foundation for the admission of this videotape was insufficient because the recording did not meet the requirements of State v. Driver, 38 N.J. 255, 287 (1962). In Driver, the Court reversed a first-degree murder conviction because, among other things, an audio recording of the defendant was admitted even though it “was garbled, full of static and other foreign sounds[,] … unintelligible and inaudible for the most part.” Id. at 288. The Court determined that, as a condition of admissibility, the proponent must show that
(1) the device was capable of taking the conversation or statement, (2) its operator was competent, (3) the recording is authentic and correct, (4) no changes, additions or deletions have been made, and (5) in instances of alleged confessions, that the statements were elicited voluntarily and without any inducement.
[Id. at 287]
Plaintiff argues that these conditions were not met.
It is arguable that a rigorous application of these conditions is not required in light of the advances in technology since 1962 or in light of the fact that the jury in Driver was considering whether defendant was guilty of first-degree murder and here the jury was only considering whether plaintiff’s injuries were as severe as she alleged. We need not, however, contemplate whether some adjustment of Driver may be overdue in light of the passage of time or when applied to a videotape used in a civil case, particularly when, as here, plaintiff did not deny that the videotape accurately depicted her.
Ultimately, we leave evidence determinations to the discretion of the trial judge and review claims of error in this regard through application of the abuse of discretion standard. Estate of Hanges v. Metropolitan Property & Cas. Ins. Co., 202 N.J. 369, 383–84 (2010). The judge viewed the videotape and concluded that it was relevant, not prejudicial and, ultimately, rather inconsequential. We defer to the experienced judge’s exercise of discretion in this case.
Plaintiff lastly argues that the judge erred in admitting one page of an emergency room record regarding plaintiff’s treatment on the date of the alleged incident and one page of a postal ledger with an entry a short time after the incident that appears to memorialize plaintiff’s description of the event in question. The former arguably suggests that plaintiff’s claimed injury was not as severe as she alleged in this case; plaintiff’s concern with the latter was that it referred to prior back injuries. We find insufficient merit in these arguments to warrant discussion in a written opinion. R. 2:11–3(e)(1)(E). We add only, with respect to the former document, that plaintiff made use of the entire emergency record during the examination of her expert witness, Dr. Andres Calderon, and as a result was able to draw out from the emergency record those hearsay statements helpful to her. We, therefore, find no appreciable prejudice to plaintiff in the fact that the defense was able to make use of another portion of the same record; any other ruling would have been fundamentally unfair to defendants. And plaintiff’s concern about the latter document—that it referred to prior injuries—is misguided because the trial judge ordered that the references to the prior injuries be redacted before the document was given to the jury for use in its deliberations.
*5 Affirmed.
