JUSTO LOPEZ, JR. VS. MICHAEL A. TETI (L-953-12, CUMBERLAND COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court."
Although it is posted on the internet, this opinion is binding only on the
parties in the case and its use in other cases is limited. R.1:36-3.

SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-4914-14T1

JUSTO LOPEZ, JR. and
EVELYN LOPEZ, h/w,

Plaintiffs-Appellants,

v.

MICHAEL A. TETI,

Defendant-Respondent,

and

VINCENT TETI,

Defendant.
_____________________________________

Argued April 26, 2017 – Decided June 5, 2017

Before Judges Alvarez, Accurso and Manahan.

On appeal from Superior Court of New Jersey,
Law Division, Cumberland County, Docket No.
L-953-12.

Edward J. Tucker argued the cause for
appellants (Rosner & Tucker, PC, attorneys;
Tariq H. Chaudhri, on the brief).

Anthony Young argued the cause for
respondent (Parker, Young & Antinoff, LLC,
attorneys; Mr. Young, on the brief).

PER CURIAM
 In this verbal threshold case, plaintiff Justo Lopez, Jr.

and his wife Evelyn Lopez appeal from a defense verdict and the

denial of their motion for a new trial following a trial on

damages. They contend evidentiary errors relating to disclosure

of prior legal applications and actions by both plaintiffs, as

well as defense counsel's improper remarks in summation,

resulted in a miscarriage of justice. Because our review of the

record convinces us the errors complained of, either singly or

in combination, did not deprive plaintiffs of a fair trial, we

affirm.

Plaintiffs were rear-ended by a car driven by defendant

Michael A. Teti in November 2010. Liability was stipulated and

the case went to trial on damages only. Both plaintiffs claimed

a permanent injury stemming from the accident, and that it

aggravated pre-existing degenerative changes in their necks,

shoulders and backs.

The medical experts for both sides agreed that both

plaintiffs had degenerative conditions and that both credibly

reported suffering pain after the accident. Plaintiffs' experts

were of the opinion the pain resulted from the permanent

injuries they suffered in the accident and the aggravation of

their previously asymptomatic degenerative conditions.

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 Defendant's expert was of the view that neither plaintiff

suffered a permanent injury in the accident and that there was

no indication in their diagnostic studies of any post-traumatic

cause of their pain. As to Mr. Lopez, defendant's expert

conceded the epidural injections and radio frequency procedures

he had to manage his pain following the accident were

appropriate treatments for someone suffering significant pain,

and that none of the treatment Mr. Lopez had was unreasonable.

The expert also conceded there was no indication in Mr. Lopez's

medical records that he was suffering any pain prior to this

accident. Similarly, the expert conceded there was no

indication that Mrs. Lopez was having pain or problems in her

neck or shoulder prior to this accident.

There was nothing in the record to suggest that either

plaintiff had suffered any prior injury to the parts of their

bodies they claim were injured in this accident. Instead, the

significance of their prior injuries, especially as to Mr.

Lopez, was in the effect plaintiffs had previously claimed those

injuries had on their lives and activities. Defendant used what

plaintiffs had said about the effect of Mr. Lopez's prior

accidents on their lives to argue their accounts of how this

accident affected them were not credible.

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 Both sides were aware of the potential that plaintiffs'

prior claims could become relevant in this action. Plaintiffs

made an in limine motion to bar defendant from referring to Mr.

Lopez's Post Traumatic Stress Disorder (PTSD), Lyme's disease or

prior knee injury because the defense was without any medical

testimony linking those conditions to their current complaints.

See Allendorf v. Kaiserman Enters., 266 N.J. Super. 662, 672-73

(1993). Judge Geiger ruled that he would address any such

objection on an ad hoc basis because he would "need to know the

context before [he could] render a [r]uling." He warned,

however, that "if the claim is that as a result of this

accident" plaintiffs are not able to do things they would have

been doing but for the accident, they could "be opening up a

door as to whether these conditions that [they] already suffered

from limit [their] abilities in that regard as opposed to this

accident."

At trial, one of plaintiffs' experts acknowledged on cross-

examination that she was aware Mr. Lopez received disability

benefits and was not employed. Mr. Lopez subsequently confirmed

he suffered from PTSD and was "on disability." He told the jury

he was a "house-husband" responsible for the cooking, cleaning

and yard work, which he performs "with pain," except when his

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pain was so severe that it prevented him from completing his

chores. He testified his cousin helped him occasionally with

the yard, but when his cousin was not available, he did the work

and "live[d] with the pain."

Defendant also testified he had "always been athletic" and

played softball, handball, basketball and lifted weights before

the accident. After the accident he claimed he could not do

those things. He also claimed he and his wife "used to go out

dancing all the time" and to "dinners, shows [and] plays."

After his "whole life changed" on the day of the accident,

plaintiff claimed they no longer went out dancing or to parties

with their friends because he was "in pain a lot."

On cross-examination, defense counsel showed defendant his

application for Social Security disability benefits completed

several years before the accident. Counsel had defendant read

from that document the activities he claimed he no longer

participated in because of his PTSD, including, "play[ing] ball,

fish[ing], camp[ing], go[ing] to the mall and just hang[ing] out

with the wife." Defendant also claimed in that document that

before his traumatic event, he "always had a job[,] . . . was a

people person[,] . . . [and his wife and he] were always invited

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to people's homes." He wrote "[n]ow it's different" as he no

longer enjoyed "being around people."

Defense counsel also questioned Mr. Lopez about a prior

knee injury, and whether it had impaired his ability to "do

outside chores." After Mr. Lopez denied it, defense counsel

confronted him with his answers to interrogatories in a slip and

fall action related to that injury, in which he claimed he paid

for lawn care he could no longer perform himself. The court

overruled plaintiffs' counsel's objections to the use of Mr.

Lopez's application to Social Security or his interrogatory

answers on cross-examination.

Mrs. Lopez testified to her injuries and the effect they

had on her ability to "run a quarter million dollar department"

at a local hospital. She claimed that before the accident "it

was nothing for [her] to work from 7:00 in the morning until

7:00, 8:00, 9:00, 10:00, 11:00 o'clock. [Go] home, go back in

3:00, 4:00, 5:00 o'clock in the morning and do another eight,

ten hour day." Following the accident, her physical limitations

had led her to conclude she could no longer do the job.

On cross-examination, Mrs. Lopez admitted she worked forty

to sixty hour weeks without restriction after the accident and

never took any time off on account of her injuries. Defense

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counsel similarly confronted her with her certified answers to

interrogatories in the prior action. After the court overruled

plaintiffs' objection to use of the document, defense counsel

succeeded in having Mrs. Lopez acknowledge she had previously

sought compensation for the same loss of household chores and

personal relationship with her husband she sought in this

action.

Defense counsel also sought to inquire as to whether Mrs.

Lopez had complained to her family physician of pain in her

neck, shoulder or back after the accident, using the doctor's

records. The court sustained plaintiffs' objection to the use

of the records in that manner. Defense counsel cured the

objection by asking Mrs. Lopez whether she recalled complaining

to her doctor about such pain. When she said she could not

recall, defense counsel had her review the records to see if

they might refresh her recollection. She did so. Counsel then

asked the question again. Mrs. Lopez answered, "I don't see

anything listed." Defense counsel then wrote on an easel "PCP,

17 pages post-MVA, nothing listed. No complaint." Plaintiffs

objected and the court responded the note was "not in evidence"

and directed counsel to "[m]ove on."

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 In his closing argument to the jury, defense counsel's main

theme was plaintiffs' lack of credibility. In making his

argument, he referred to the statements Mr. Lopez made in his

application for Social Security disability benefits and to the

answers Mrs. Lopez gave to interrogatories submitted in the

action to recover for Mr. Lopez's knee injury. He also focused

on the reports of pain in plaintiffs' medical records. The

court overruled plaintiffs' objection to defense counsel's

rhetorical questions, "Why this pain? Well, pain is a

subjective response and why this pain? Is it real pain or is it

litigation pain? Because, see, is there an incentive for pain?"

Following the no cause verdict, plaintiffs moved for a new

trial claiming defense counsel's repeated reference on cross-

examination to Mr. Lopez's "unrelated diagnosis" of PTSD and his

receipt of Social Security disability benefits and to Mrs.

Lopez's prior loss of consortium claim violated the court's

prior order; that defense counsel "published the contents of

inadmissible medical records" to the jury in violation of the

court's ruling "issued only moments earlier;" and impermissibly

accused plaintiffs in summation of suffering from "'litigation

pain,' despite the testimony of the defense medical expert in

which it was already established that both [p]laintiffs were

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found to be credible and that the dispute was as to causation

and permanency of the alleged injuries only."

After hearing argument, Judge Geiger denied the motion. In

a brief but comprehensive opinion from the bench, the judge

summarized the testimony and addressed plaintiffs' claims. He

explained that "the credibility of the plaintiffs" was "one of

the central issues raised by the defense." The judge recounted

that after Mr. Lopez told the jury about his "inability to

socialize and . . . loss of enjoyment of life, and [inability]

to recreate and do social activities" as before the accident,

during cross-examination it's brought to
light, that as part of his own filings, in
the form of his Application for Social
Security Disability, based on . . . claimed
Post-Traumatic Stress Disorder, that he
suffered from the very types of loss of
enjoyment of life that he was testifying
resulted from this motor vehicle accident.

The judge found plaintiffs had "to expect that if the defense

learns of that Social Security Disability Application, that it's

going to be a primary focus during a trial."

Judge Geiger further found devastating that the jury

"learn[ed] this for the first time on cross-examination, because

it wasn't broached, it wasn't discussed, it wasn't raised during

direct examination." The judge opined that it was "[p]otent

cross-examination, goes to the very heart of his credibility,

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with regard to damages. I can't think of a more direct,

effective attack than that. It just completely undermines a

large portion of his claim for non-economic damages." The judge

found that testimony "[c]ouple[d] . . . with the testimony

during cross of plaintiff wife, Evelyn Lopez, who also claimed

to have suffered permanent injuries [in] the accident" but still

managed to run a large department at the hospital, working forty

to sixty hours a week, "undermined the [direct] testimony as to

damages and disability resulting from this accident."

Regarding defense counsel's comment in summation regarding

"litigation pain," the judge found it not "inappropriate in a

case with these facts." The judge elaborated:

You know, this is not a case where
somebody gets involved in an auto accident
and they have no prior history, and the
issue is, well, is it degenerative versus
traumatic[.] Here's a claim where the very
types of most of the damages that he's
claiming, or a significant portion of the
damages, were the basis for his Social
Security Disability.

It's fair game for defense counsel
under those circumstances to refer to it as
being litigation pain. And, any reference
to the Social Security Application process
was really part and parcel of his . . .
cross-examination. These were documents . .
. that this plaintiff had signed
certif[ying] that these items were true when
he was applying for Social Security

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 Disability. So, again, I don't think that's
inappropriate.

Noting that the "test for a new trial is very strict," and that

jury verdicts should be set aside "only in cases of clear

injustice," Judge Geiger concluded by finding "I don't think

we're close to that in this case."

Plaintiffs appeal, reprising the same arguments made in

their post-trial motion to Judge Geiger.

Our Supreme Court has instructed "that a motion for a new

trial should be granted only after 'having given due regard to

the opportunity of the jury to pass upon the credibility of the

witnesses, it clearly and convincingly appears that there was a

miscarriage of justice under the law.'" Risko v. Thompson

Muller Auto. Grp., Inc., 206 N.J. 506, 521 (2011) (quoting

R. 4:49-1(a)). In reviewing the grant or denial of such a

motion, an appellate court applies essentially the same

standard, but affords "due deference" to the trial court's "feel

of the case," regarding its assessment of such intangibles as

witness credibility. Jastram v. Kruse, 197 N.J. 216, 230

(2008).

Applying that standard here, and having read the trial

record, we are entirely satisfied that the jury's verdict should

stand. We find no error, much less reversible error, in the

11 A-4914-14T1
trial court's rulings regarding defendant's use, on cross-

examination, of plaintiffs' prior sworn answers to

interrogatories and application to the Social Security

Administration. We acknowledge the caution that should be

employed in making use of such documents to avoid "eliciting and

stressing" prior legal claims irrelevant to the issue at hand.

See Krug v. Wanner, 28 N.J. 174, 185 (1958). But here, as Judge

Geiger noted, the prior claims, and what they said about

plaintiffs' credibility, were the precise issue at hand. No

Rule, principle of law, or court order barred defendant from

attempting to establish that the changes plaintiffs claimed

occurred in their lives following this accident were ones they

had previously said were the result of other accidents.

As for the reference to litigation pain, we distinguish

this case from our recent opinion prohibiting expert opinion

testimony on "malingering" or "symptom magnification" in

personal injury cases. See Rodriguez v. Wal-Mart Stores, Inc.,

No. A-4137-14 (App. Div. Apr. 27, 2017) (slip op. at 2). Here,

there was no testimony by defendant's expert that plaintiffs

were malingering or magnifying their symptoms. Indeed, Judge

Geiger, anticipating our ruling in Rodriguez, disallowed

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defendant from soliciting any such testimony from his expert on

plaintiffs' application in limine.

Accordingly, we are satisfied that Judge Geiger was

appropriately sensitive to the prejudice such comments might

engender and defer to his assessment that defense counsel did

not transgress the bounds of fair advocacy in his closing.

Plaintiffs' claim that defense counsel "published the contents

of inadmissible medical records" to the jury by his cryptic note

scribbled on a pad on the easel in the courtroom is without

sufficient merit to warrant discussion here. See R. 2:11-

3(e)(1)(E).

The few small and inconsequential errors which occurred

during the course of this trial do not amount to cumulative

error justifying overturning the jury's verdict. See Pellicer

v. St. Barnabas Hosp., 200 N.J. 22, 51 (2009).

Affirmed.

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