AMY M. CAMPANELLI VS. KUSUM S. PATEL(L-3671-12, MIDDLESEX 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NOT FOR PUBLICATION WITHOUT THE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-1117-15T4

AMY M. CAMPANELLI,

Plaintiff-Respondent,

v.

KUSUM S. PATEL,

Defendant-Appellant,

and

SATISH PATEL,

Defendant.
__________________________________

Submitted January 31, 2017 – Decided October 23, 2017

Before Judges Messano and Suter.

On appeal from Superior Court of New Jersey,
Law Division, Middlesex County, Docket No.
L-3671-12.

Camassa Law Firm, attorneys for appellant
(John A. Camassa, of counsel; Christopher M.
Brady, on the briefs).

Law Office of S.P. DiFazio, attorneys for
respondent (Salvatore P. DiFazio, on the
brief).
 The opinion of the court was delivered by

SUTER, J.A.D.

Defendant Kusum Patel appeals the $336,000 judgment entered

against her in favor of plaintiff Amy Campanelli, following a jury

trial, and the order denying defendant's motion for a new trial

and directed verdict. We affirm. The comments of plaintiff's

counsel made during summation, although improper, were addressed

by the court's curative instruction and did not result in a

miscarriage of justice requiring a new trial.

The underlying personal injury action arose from a motor

vehicle accident in 2010, when defendant's vehicle collided with

plaintiff's at an intersection. The case was tried to a jury in

2015. Plaintiff contended that she had sustained permanent

injuries to her neck and back as a result of the accident. Dr.

Natalio Damien, a radiologist, testified that plaintiff's cervical

and lumbar MRIs showed bulging discs in her neck at C5/6 and in

her lower back at L4/5, both pressing on the thecal sac. Dr.

Patrick M. Collalto, an orthopedic doctor, testified for plaintiff

that the bulging discs constituted a permanent injury and that

they were caused by the accident. Plaintiff's electromyogram

(EMG) showed cervical radiculopathy at the C5/6 level. Plaintiff's

counsel failed to elicit that Dr. Collalto's opinions were given

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within a reasonable degree of medical probability, although the

doctor did use that standard when testifying during his earlier

deposition.

At the close of plaintiff's case, defendant moved for a

directed verdict based on Dr. Collalto's failure to testify about

the standard of reasonable medical probability. The trial judge

denied the motion. In light of that ruling, defendant's counsel

agreed the doctor could submit a supplemental certification

addressing the standard.

The defendant called Dr. Robert J. Bercik, a board certified

orthopedic surgeon, as her defense expert. He testified that

plaintiff suffered sprains from the accident that were not

permanent. He testified that the MRIs showed disc desiccation,

not bulges, attributable to a degenerative process. On direct

examination, defense counsel elicited that twenty percent of Dr.

Bercik's time was spent preparing examination reports and

virtually all of these were for the defense.

Plaintiff's counsel was twice warned on cross-examination to

allow Dr. Bercik to finish the answers to his questions. A number

of questions by plaintiff's counsel were about Dr. Bercik's

interpretation of the MRIs and the time he spent preparing reports.

During summation, defendant's counsel forewarned the jury

that plaintiff's counsel was going to tell them that "[a]ll [Dr.

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Bercik] does is testify for the defense and all he does is find

no injuries . . . ." He told the jury, "[y]ou decide the way he

testified whether he's up here lying to you in order to keep that

work . . . ."

Plaintiff's counsel then made several comments about Dr.

Bercik in his summation which form the subject of this appeal.

One comment implicated Dr. Bercik's credibility.

If you spend 20 percent of your work week
servicing one client and that client[,] the
defense industry in his case, and your client
in your case is who [] you rely on for 20
percent of your income, do you think you're
going to give reports that support the
plaintiff or are you going to bend over
backwards to say what you have to say to
support the defense?

Plaintiff's counsel told the jury that Dr. Bercik "is not a

credible witness although he is smooth as silk." "He just sits

there and butter wouldn't melt in his mouth and every question you

have for him he has an answer." Counsel said Dr. Bercik was a

"pro," a "professional testifier," and a "smoothie." Counsel

stated that defendant's expert was "a defense doctor," was "too

smart" and "too smooth" during testimony, and played a "shell

game" and a "show game." Counsel urged the jury not to "let that

practice fool you," and not to "fall into the trap." Counsel

referred to Dr. Bercik's client as the "defense industry." Counsel

stated that Dr. Bercik's testimony "was there for the sole purpose

4 A-1117-15T4
of protecting his industry in the defense area and protecting the

defendants in order to do that."

The trial judge interrupted plaintiff's counsel, calling both

counsel to sidebar, whereupon defense counsel then objected to the

remarks. Defense counsel asked for "an immediate curative

instruction" suggesting "that those comments were improper and

should not be considered by [the jury] at all." The court then,

and without objection from either counsel, instructed the jury:

Members of the jury, we have certain rules in
terms of fair comment by the attorneys during
the course of their summation and they're
certainly entitled to comment on the
[evidence] that's presented before you and
suggest ways in which you could judge the
credibility of witnesses. But the comments
of [plaintiff's counsel] have gone far beyond
what is acceptable in terms of the comments
related to Dr. Bercik and so disregard any
comments in -- with respect to that testimony
that was perhaps somehow contrived by Dr.
Bercik to protect the defense industry, those
comments were inappropriate and I'm going to
ask you to disregard them.

After deliberations, the jury returned a verdict in favor of

plaintiff on liability and damages.

A few weeks after trial, defendant moved for a new trial or

a verdict directed in her favor. On October 9, 2015, the court

denied defendant's motions. Although the court found that

counsel's statements "clearly went above and beyond . . . the

bounds of acceptable advocacy," it was not "persuaded that [the

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jury's verdict] is against the weight of the credible evidence,

such that the only explanation of the jury's verdict could lie

with the comments of counsel during summation." In rejecting the

motion for a directed verdict, the trial court found that "the

rules certainly don't prohibit the [c]ourt's exercise of its

judicial discretion to conduct the proceedings in the interest of

justice," particularly where the standard of "a reasonable degree

of medical probability" had been applied by the expert during his

deposition.

On appeal, defendant contends because of plaintiff's

counsel's aggressive cross-examination of Dr. Bercik and

inappropriate comments made in summation, that the court erred in

denying her motion for a new trial. Also, she contends the court

erred in denying her motion for a directed verdict because

plaintiff's expert did not state his opinions with a reasonable

degree of medical probability.1 We do not find merit in these

issues.

We review the denial of defendant's motion for a new trial

under the same standard used by the trial court, which is, "whether

there was a miscarriage of justice under the law." Risko v.

Thompson Muller Auto. Grp., Inc., 206 N.J. 506, 522 (2011) (citing

1
Defendant conceded liability on appeal.

6 A-1117-15T4
Bender v. Adelson, 187 N.J. 411, 435 (2006)). We do so giving

"'due deference' to the trial court's 'feel of the case.'" Ibid.

(quoting Jastram v. Kruse, 197 N.J. 216, 230 (2008). "A jury

verdict is entitled to considerable deference and 'should not be

overthrown except upon the basis of a carefully reasoned and

factually supported (and articulated) determination, after

canvassing the record and weighing the evidence, that the continued

viability of the judgment would constitute a manifest denial of

justice.'" Id. at 521 (quoting Baxter v. Fairmont Food Co., 74

N.J. 588, 597-98 (1977)). We must, however, make our own

independent determination of whether a miscarriage of justice

occurred. Carrino v. Novotny, 78 N.J. 355, 360 (1979).

Cross-examination has been termed "the greatest legal engine

ever invented for the discovery of truth." See State v. Benitez,

360 N.J. Super. 101, 125 (App. Div. 2003) (Parker, J., dissenting);

Biunno, Weissbard & Zegas, Current N.J. Rules of Evidence, comment

2 on N.J.R.E. 611 (2017). Plaintiff's counsel extensively cross-

examined the doctor using the MRI films in an attempt to discredit

his opinion that plaintiff did not have bulging discs. There were

two instances where, without objection from defense counsel, the

judge instructed counsel to allow the witness to finish answering

the question. In the context of the entire trial, where

7 A-1117-15T4
credibility was in issue, we are satisfied that the cross-

examination did not cause defendant to be denied a fair trial.

Counsel is generally "allowed broad latitude in summation

[and] counsel may draw conclusions even if the inferences that the

jury is asked to make are improbable, perhaps illogical, erroneous

or even absurd." Bender, supra, 187 N.J. at 431 (2006) (alteration

in original) (quoting Colucci v. Oppenheim, 326 N.J. Super. 166,

177 (App. Div. 1999), certif. denied, 163 N.J. 395 (2000)).

However, counsel "may not use disparaging language tending to

discredit the opposing party, or witness, or accuse a party's

attorney of wanting the jury to evaluate the evidence unfairly,

of trying to deceive the jury, or of deliberately distorting the

evidence." Rodd v. Raritan Radiologic Assocs., 373 N.J. Super.

154, 171 (App. Div. 2004) (citations omitted). The "cumulative

effect" of such comments can result in a miscarriage of justice.

Geler v. Akawie, 358 N.J. Super. 437, 468 (App. Div.), certif.

denied, 177 N.J. 223 (2003). However,"[f]leeting comments, even

if improper, may not warrant a new trial, particularly when the

verdict is fair." Jackowitz v. Lang, 408 N.J. Super. 495, 505

(App. Div. 2009).

Here, the comments in summation were not numerous but implied

that Dr. Bersick's opinions were intended to favor the defense,

were disparaging and implied that he misled the jury. Counsel

8 A-1117-15T4
stated that Dr. Bercik's testimony was to protect the "defense

industry" and "his industry in the defense area." Those comments

could imply that insurance coverage was available contrary to

N.J.R.E. 411 (stating "[e]vidence that a person was or was not

insured against liability is not admissible on the issue of that

person's negligence or other wrongful conduct.").

"[I]n some cases prompt curative instructions by the trial

judge have been found sufficient to ameliorate the effect of

isolated lapses on the part of an attorney in closing argument."

Geler, supra, 358 N.J. Super. at 470. "[W]hen weighing the

effectiveness of curative instructions, a reviewing court should

give equal deference to the determination of the trial court. The

adequacy of a curative instruction necessarily focuses on the

capacity of the offending evidence to lead to a verdict that could

not otherwise be justly reached." State v. Winter, 96 N.J. 640,

647 (1984). The test is whether the error was "clearly capable

of producing an unjust result." State v. Daniels, 182 N.J. 80,

95 (2004) (quoting R. 2:10-2).

The curative instruction here was clear and to the point; the

jury was to disregard the comments. The judge expressly told the

jury the comments were improper. There was no objection from

defense counsel about its content. We are satisfied the trial

9 A-1117-15T4
court did not err in determining that the curative instruction was

sufficient to address counsel's improper comments.

This case is not like Szczecina, where an attorney made

inappropriate comments in the opening and closing that warranted

a new trial. There counsel repeatedly referred to a defense

witness as a "spin doctor" and others as "paid agreers"; defense

counsel was labeled multiple times as a "spokesman"; counsel asked

the jury to "send a message," used the term "game plan" repeatedly,

and accused defense counsel of intentionally muddying the waters

and the medical defense team as a "tag team" and "hired guns."

Szczecina v. PV Holding Corp., 414 N.J. Super. 173, 180 (App. Div.

2010). Defense counsel did not object, nor did the trial court

intervene. Id. at 184-85. That was not the case here. Nor is

it similar to Geler, where the disparaging comments in the closing

were numerous, counsel impermissibly invoked the "golden rule,"

and "misstated material elements of the evidence." Geler, supra,

358 N.J. Super. at 464, 466. Those types of errors are not alleged

in the present case.

Here, the comments were limited to the summation, were not

numerous or pervasive and the trial court stopped the summation

in order to immediately give a curative instruction. The court

also gave the standard instruction to the jury on the credibility

of witnesses and about experts.

10 A-1117-15T4
 We are satisfied that the comments in summation did not

lead to a verdict that could not "otherwise be justly reached."

There was expert testimony for both sides; both parties testified.

The award of damages was reflective of the testimony about the

nature and extent of the permanent injuries. On this record, the

comments, addressed by the curative instruction, did not rise to

the level of manifest injustice.

Defendant moved for a directed verdict at the close of

plaintiff's case and again in her motion for a new trial, arguing

"there's no medical testimony of permanent injury," because Dr.

Collalto failed to state during his trial testimony that his

opinions were rendered within a reasonable degree of medical

probability.

Defendant is critical of the court's decision to allow

plaintiff to supplement Dr. Collalto's testimony by submitting a

certification that the doctor's opinions were given within a

reasonable degree of medical probability. However, the decision

about whether to allow supplemental testimony was based on the

court's soundly exercised discretion. See Bondi v. Pole, 246 N.J.

Super. 236, 239 (App. Div. 1991) (where an expert witness was

recalled to supply testimony that his opinion was within a

reasonable degree of medical probability); Appeal of Dale, 134

11 A-1117-15T4
N.J. Eq. 502, 504 (E. & A. 1944) (permitting recalling of witness

to supplement examination).

In reviewing the denial of defendant's motion for a directed

verdict, we apply the same standard as the trial court. Frugis

v. Bracigliano, 177 N.J. 250, 269 (2003). We are to accept "as

true all the evidence which supports the position of the party

defending against the motion and accord [ ] him the benefit of all

inferences which can reasonably and legitimately be deduced

therefrom . . . ." Verdicchio v. Ricca, 179 N.J. 1, 30 (2004).

The review function is "quite a mechanical one" where the court

determines whether evidence exists "viewed most favorably to the

party opposing the motion." Dolson v. Anastasia, 55 N.J. 2, 5-6

(1969).

In this case, plaintiff, who was thirty-four at the time,

provided proof through her own testimony and the expert testimony

of a radiologist and orthopedist that she was injured in the

accident, that the injuries were permanent and testified about the

effect of those injuries on her life. The court did not err in

denying the motions for directed verdict because there was evidence

to support the jury's verdict.

Affirmed.

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