NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-2602-13T4
ANTHONY A. GONZALES,
Plaintiff-Respondent, APPROVED FOR PUBLICATION
July 22, 2015
v.
APPELLATE DIVISION
ELLEN I. HUGELMEYER,
Defendant-Appellant,
and
FREDERICK ADAMS,
Defendant.
__________________________________
Argued April 13, 2015 - Decided July 22, 2015
Before Judges Sabatino, Guadagno, and Leone.
On appeal from the Superior Court of New
Jersey, Law Division, Atlantic County,
Docket No. L-3854-09.
Stephen A. Rudolph argued the cause for
appellant (Rudolph & Kayal, attorneys; Mr.
Rudolph, on the briefs).
Kathleen F. Beers, argued the cause for
respondent (Westmoreland Vesper Quattrone &
Beers, attorneys; Ms. Beers, on the brief).
The opinion of the court was delivered by
SABATINO, P.J.A.D.
This automobile negligence case arises out of a rear-end
collision on the Atlantic City Expressway. After a six-day
trial, the jury found that defendant Ellen I. Hugelmeyer,1 the
driver of the Mazda sedan that struck plaintiffs' Lexus SUV from
behind, was negligent and the sole proximate cause of the
accident. The jury awarded $380,000 in damages to plaintiff
Anthony A. Gonzales, the driver of the Lexus, and $810,000 in
damages to his wife Valerie, who was a passenger in their
vehicle. The trial court also awarded plaintiffs counsel fees,
costs, and interest pursuant to the Offer of Judgment Rule, R.
4:58-2(a), because the combined damages verdict substantially
exceeded the amount plaintiffs had offered to accept in
settlement before trial.
Defendant appeals the verdict and final judgment solely
with respect to her liability to Mr. Gonzales,2 as the parties
and their insurers have settled all claims respecting Mrs.
Gonzales, including her claims for underinsured motorist
coverage. Defendant asserts a variety of trial errors regarding
both liability and damages, and further argues that the Offer of
1
At various points in the record, defendant's surname is
identified as Hugelmeyer-Green.
2
For purposes of clarity, we refer to plaintiffs as "Mr.
Gonzales" and "Mrs. Gonzales," intending no disrespect by our
omission of such titles for the other individuals mentioned in
this opinion.
2 A-2602-13T4
Judgment Rule is unconstitutional because it allegedly is unfair
to defendants.
Because of multiple errors that deprived defendant of a
fair trial, we vacate the judgment as to Mr. Gonzales and order
a new trial.
I.
The evidence shows that at about 5:00 p.m. on April 22,
2008, Mr. Gonzales was driving his Lexus on the Atlantic City
Expressway when he encountered congested traffic due to an
accident. Mr. Gonzales drove from the far-right lane into the
far-left lane of the three-lane highway. According to the
testimony of an eyewitness, Stephanie Blount, the Lexus moved
across the center lane in front of Hugelmeyer's car. After
Gonzales needed to stop short, Hugelmeyer's Mazda struck his
Lexus from behind, damaging its rear bumper and the Mazda's
front bumper.
A State Trooper, Vaughn Crouthamel, responded to the scene.
The Trooper interviewed several persons, including Mr. Gonzales
and Hugelmeyer. According to Hugelmeyer, she "didn't have time
to react" and avoid the collision because Mr. Gonzales had "just
slammed on his brakes" while in traffic. The Trooper
nevertheless issued a traffic citation to Hugelmeyer, although
the ticket was eventually dismissed because of the Trooper's
3 A-2602-13T4
failure to appear in municipal court. The ticket and its
disposition were not divulged to the jury.
At trial, Mr. Gonzales testified that the accident had
aggravated a pre-existing degenerative disc disease. His main
testifying expert, Dr. John C. Baker, a Board-certified
orthopedic surgeon, testified that he had arthritis dating back
to 1998, and that the accident had greatly worsened his pre-
existing disease, causing permanent spinal damage. Mr. Gonzales
also presented testimony from Dr. Ira Greg Warshaw, his family
physician from 2001 to 2008. Dr. Warshaw testified on direct
examination that Mr. Gonzales had never commented on any back
problems when treated by him. However, Dr. Warshaw conceded on
cross-examination that he had treated Mr. Gonzales in 2006 for
lower-leg pain and radiating cervical spine or neck pain, and in
2004 for cervical radiculopathy. Mr. Gonzales also presented
videotaped testimony from a chiropractor, Dr. Michael Gerber,
who had examined him at the behest of his insurer in connection
with his claims for personal injury protection benefits. Based
upon tests Dr. Gerber performed, he opined that the condition of
Mr. Gonzales's neck and low back had been "exacerbated or
aggravated" by the accident.
The defense presented testimony from Blount and Dr. John
Cristini, a Board-certified orthopedic surgeon who had evaluated
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Mr. Gonzales. Hugelmeyer did not testify because she was living
in a distant state and seven months pregnant. However, portions
of her deposition testimony were read aloud to the jury.
As we have already noted, the jury found that Hugelmeyer
was negligent but that Mr. Gonzales was not, and awarded
substantial monetary damages to both Mr. Gonzales and Mrs.
Gonzales. The trial judge denied Hugelmeyer's motion for a new
trial or remittitur, and ordered fee-shifting pursuant to Rule
4:58. The judge declined to address defendant's constitutional
challenge to the Offer of Judgment Rule.
II.
This appeal ensued, which, as we have noted, is confined to
the judgment obtained by Mr. Gonzales. Defendant argues that
the trial judge erred in (1) allowing Trooper Crouthamel to
present inadmissible lay opinion asserting that she was at fault
in causing the accident, and also relied on hearsay statements
from an unidentified witness he had interviewed at the accident
scene; (2) excluding Dr. Warshaw's treatment office notes that
would substantiate the severity of Mr. Gonzales's preexisting
condition; (3) allowing the chiropractor, Dr. Gerber, to present
expert opinions on permanency without proper qualifications and
to discuss the hearsay findings of a non-testifying radiologist;
(4) permitting this "verbal threshold" case brought under
5 A-2602-13T4
N.J.S.A. 39:6A-8(a) to go to the jury without appropriate
objective evidence of aggravated injury; and (5) awarding fees
and other funds to plaintiffs under the Offer of Judgment Rule.
For the reasons that follow, the first two claims of
prejudicial error are meritorious. Singularly and cumulatively,
they warrant a new trial.
A.
Defendant rightly contends that she was unfairly prejudiced
by two critical aspects of Trooper Crouthamel's testimony, which
plaintiffs' counsel punctuated in his closing argument to the
jury.
We first consider the Trooper's reference to hearsay
statements by an unidentified eyewitness he interviewed at the
accident scene. The Trooper could not recall the accident at
trial with much detail and instead relied substantially on the
accuracy of his written accident report. The report reflected
that he had interviewed an eyewitness, who was not a passenger
in either the Mazda or the Lexus.3 Over defense counsel's
objection, the Trooper informed the jurors that the eyewitness
had told him that he or she was driving behind defendant's Mazda
3
Mr. Gonzales's counsel speculates that Blount was the
eyewitness that the Trooper had interviewed, but that was not
confirmed by the Trooper, who did not recognize Blount in the
courtroom.
6 A-2602-13T4
and saw plaintiffs' Lexus change lanes, get in front of the
Mazda and stop abruptly "as traffic backed up." The Trooper
relied on this observation in formulating his conclusions about
how and why the accident occurred.
The eyewitness statement, which plaintiffs4 offered for its
truth, was hearsay and should not have been admitted. See
N.J.R.E. 801(c). Plaintiffs' counsel suggested that the
statement was admissible, alternatively, under the hearsay
exceptions for present sense impressions, N.J.S.A. 803(c)(1), or
excited utterances, N.J.S.A. 803(c)(2). The required elements
of these exceptions are not present. The eyewitness's statement
was not a present sense impression because it was not made
"while or immediately after" the declarant saw the accident.
N.J.R.E. 803(c)(1); State ex rel. J.A., 195 N.J. 324, 338-39
(2008). The Trooper was not present when the accident occurred,
but arrived at least "several minutes" thereafter. The
statement was not eligible as an excited utterance because there
was no foundation laid that the declarant spoke "under the
stress of excitement" without "the opportunity to deliberate or
fabricate." N.J.R.E. 803(c)(2); State v. Branch, 182 N.J. 338,
357-58 (2005). No other hearsay exceptions apply.
4
Mr. and Mrs. Gonzales each had separate counsel at trial.
7 A-2602-13T4
An even more troublesome aspect of the Trooper's testimony
is the court's allowance, over objection, of his opinion that
defendant was at fault in causing the accident. The first time
this occurred, plaintiffs' counsel elicited the Trooper's
opinions by asking him about the "contributing circumstances"
for the collision:
Q. Okay. Now, based on your investigation
at the scene, you concluded what the
contributing circumstances were to this
rear-end collision, didn't you?
A. Yes.
Q. What contributing circumstances were
there for Mr. Gonzales?
A. None.
Q. What were the contributing
circumstances for Mrs. Hugelmeyer –
Mrs. Hugelmeyer-Green?
A. Okay. She was noted as driver
inattention was –
Q. Mis – thank you.
A. I'm sorry.
[(Emphasis added).]
By opining that Mr. Gonzales had no "contributing circumstances"
and that defendant Hugelmeyer, by contrast, had the
"contributing circumstances" of "driver inattention," the
Trooper surely conveyed to the jury his personal belief that
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defendant had not been paying sufficient attention and
consequently was responsible for rear-ending the Lexus.
Later in the Trooper's direct examination, Mr. Gonzales's
counsel drew from him an even more explicit opinion of
defendant's fault:
Q. Trooper, Mrs. Hugelmeyer-Green said, "I
was told by the officer it was not my
fault, the accident." This is at the
scene. Did you ever say that to Mrs.
Hugelmeyer?
A. I don't recall what was said.
Q. Would you have ever said it was not her
fault?
DEFENSE
COUNSEL: Objection. Speculative.
THE COURT: I'll allow the –
MR. GONZALES'S
COUNSEL: Would you.
THE COURT: I'll allow the question.
BY THE WITNESS:
A. If it legitimately was not her fault,
it would have been indicated on the
report –
Q. What's indicated on –
A. - along with a statement. If I were to
make that statement –
Q. Right.
A. - it would reflect in the report
accurately.
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Q. Right.
A. Which in this case I obviously, based
on the evidence and my training and
experience at this point, found her at
fault.
MR. GONZALES'S
COUNSEL: Thank you. No further questions.
[(Emphasis added).]
These opinions of fault were improperly elicited by Mr.
Gonzales's counsel from the Trooper.5 Although the Trooper
testified that he had over five years of experience in
investigating motor vehicle accidents, he was not designated or
qualified by plaintiffs as an expert witness under N.J.R.E. 702.
His prejudicial opinions on the critical jury issue of fault for
the accident were clearly beyond the scope of lay opinion
admissible under N.J.R.E. 701. In State v. McLean, 205 N.J.
438, 460 (2011), a criminal case, the Supreme Court disapproved
of the admission of critical expert opinions from police
officers under the guise of the lay opinion rule. The same
principles restricting certain lay opinion from police officers
likewise extend to their testimony in civil cases.
5
Plaintiff has not argued in his brief that defendant "opened
the door" to the officer's opinions by alleging in her testimony
that the officer told her she was not at fault. Even if the
officer had made such an oral statement, that subjective hearsay
assertion likewise would have been inadmissible.
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Moreover, the Trooper had no personal observation or
recollection of the accident and his opinions thus failed the
foundational requirements of Rule 701. The Supreme Court has
instructed that "a police officer cannot provide an opinion at
trial when that opinion is based primarily on the statements of
eyewitnesses." Neno v. Clinton, 167 N.J. 573, 585 (2001). "Any
other conclusion," the Court cautioned in Neno, "would allow an
officer to subvert the prohibition against hearsay and pass
along the essence of those hearsay statements to the jury even
when the officer is not permitted to testify to the substance of
the witness's statements under the hearsay rule." Id. at 585.
That is exactly what happened here.
These errors were not harmless. Mr. Gonzales's counsel
explicitly reminded the jurors of these inadmissible portions of
the testimony during closing argument:
The problem with [blaming Anthony Gonzales]
is the trooper got the bottom line. He
finds out from [the person he interviewed] –
here it is. Here it is. The witness says
he changed lanes, nothing about cutting
anyone off. Did you hear that testimony
today from the tiebreaker? Changed lanes,
was traveling in front, means he was going a
while, and then he stopped abruptly. And
you heard why now from today, and – because
traffic backed up, and then she struck him.
That's what the tiebreaker said at the
scene.
[(Emphasis added).]
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As we recently held in James v. Ruiz, 440 N.J. Super. 45, 72
(App. Div. 2015), trial counsel may not misuse hearsay or other
inadmissible proof in summation by advocating to jurors that
they treat such proof as a "tiebreaker" to resolve the competing
positions of the parties.
Counsel apparently intended the term "tiebreaker" to refer
to the unidentified eyewitness that the Trooper interviewed at
the accident scene, who plaintiffs alleged was Blount. For the
reasons we have already noted, the interviewee's out-of-court
statement to the officer was inadmissible hearsay. Counsel
should not have made substantive use of that statement in his
summation. It was likewise improper for counsel to showcase the
Trooper's inadmissible personal conclusion by advocating to the
jurors that the Trooper "got the bottom line."
We cannot ignore these highly prejudicial circumstances and
conclude with any confidence that the jurors were not swayed by
the Trooper's improper testimony. A new trial is warranted.
B.
Defendant is also entitled to a new trial because her trial
attorney was wrongfully foreclosed from admitting into evidence
notes from Mr. Gonzales's medical chart prepared by his regular
family physician, Dr. Warshaw. The notes were admissible
business records under N.J.R.E. 803(c)(6). See also Konop v.
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Rosen, 425 N.J. Super. 391, 405 (App. Div. 2012) (recognizing
that "routine" findings contained in patient medical records
generally are admissible hearsay). Relevant statements made by
Mr. Gonzales during those visits to his family physician were
admissible statements by a party opponent, N.J.R.E. 803(b)(1),
and also admissible as statements made to a medical provider for
treatment or diagnosis under N.J.R.E. 803(c)(4). The records
were highly relevant to substantiate Mr. Gonzales's pre-existing
spinal injuries and condition.
In excluding these office notes, the trial judge broadly
asserted they "do not come into evidence . . . [b]ecause the
jury has already heard [about] it" through the doctor's
testimony. The judge cited no authority for this blanket
proposition, and we have not been made aware of any. Although
the court has the authority to exclude cumulative evidence under
N.J.R.E. 403 where its probative value is "substantially
outweighed" by countervailing factors, no such compelling
showing in favor of exclusion is present here. The records
would have provided the jurors with relevant, tangible proof
that Mr. Gonzales had been suffering from serious spinal
problems for many years. The defense should not have been
forced to limit its evidence to the doctor's spoken testimony.
The judge misapplied his discretion in excluding the notes.
13 A-2602-13T4
Because the degree of Mr. Gonzales's pre-existing condition was
a critical disputed issue, the error was not harmless. This
also mandates a new trial.
C.
We turn to defendant's additional contention that Dr.
Gerber, the chiropractor, improperly discussed in his testimony
spondylosis, a condition which had been identified by a non-
testifying radiologist who interpreted MRI studies of Mr.
Gonzales's spine. The chiropractor was not shown to be
qualified to interpret those studies himself. Absent such
expertise, the complex hearsay opinions of a radiologist are not
to be conveyed through a testifying chiropractor acting as a
conduit. See Agha v. Feiner, 198 N.J. 50 (2009); James, supra,
440 N.J. Super. at 61-70; see also N.J.R.E. 808.
Mr. Gonzales's orthopedic expert, Dr. Baker, was clearly
qualified to interpret the MRI studies and he commented on them
in his own testimony. However, the chiropractor, Dr. Gerber,
who was not shown to have such qualifications, should not have
been likewise permitted to testify that his own opinions were
specifically "based on . . . [the absent radiologist's] MRI
findings of spondylosis," if those findings were disputed. The
testifying chiropractor went beyond "the bare fact that he
considered the absent radiologist's report." James, supra, 440
14 A-2602-13T4
N.J. Super. at 73 n.17. Instead, Dr. Gerber passed over that
line and "delv[ed] into" the MRI report's actual contents.
Ibid.
We cannot tell from the record, including the phrasing of
the questioning and testimony of the medical experts, whether
the diagnosis of spondylosis for Mr. Gonzales was, in fact,
disputed. The prohibition in N.J.R.E. 808 and case law on an
expert's testimony about the complex hearsay opinions of a non-
testifying expert does not apply if the opinion is undisputed.
See N.J.R.E. 808; James, supra, 440 N.J. Super. at 63; see also
Nowacki v. Community Med. Ctr., 279 N.J. Super. 276 (App. Div.),
certif. denied, 141 N.J. 95 (1995). Defense counsel did not
object to this portion of Dr. Gerber's testimony at trial, which
suggests that the defense was not disputing the spondylosis
diagnosis. If there is no such dispute, then Dr. Gerber's
reference to the hearsay finding was innocuous. On retrial,
defense counsel shall clarify whether the MRI finding is indeed
disputed and, if so, Dr. Gerber's videotaped testimony must be
redacted accordingly.
III.
[At the direction of the court, the
published version of this opinion omits Part
III, which briefly addresses the other
points defendant raised on appeal.]
15 A-2602-13T4
IV.
The final judgment is vacated in its entirety, and the case
is remanded for a new trial on liability and damages as to the
claims of Mr. Gonzales.
16 A-2602-13T4