A New Jersey appeals court has ordered a new trial in a Bergen County automobile injury case based on cross-examination of the Colombian-born plaintiff during trial about his citizenship, how long he lived in the U.S. and his need for an interpreter.
Questions about the immigration status of plaintiff Juan Morales-Hurtado as well as the cumulative effect of a list of other errors at trial prompted the appeals court to order a new trial.
Morales-Hurtado’s Honda Civic was rear-ended by a jitney bus at an intersection in Fort Lee on Aug. 24, 2011. The bus was driven by Abel Reinoso and owned by New Service Inc. After a trial in December 2015 and January 2016, the jury awarded Morales-Hurtado $71,615 for past medical expenses and $50,000 for pain and suffering, and found the plaintiff bore 20 percent comparative liability, reducing the recovery to $97,292.
The questions about Morales-Hurtado’s immigration status could appeal to juror prejudice, inflame certain jurors and distract them from their proper role as evaluators of evidence, Judges Carmen Alvarez, William Nugent and Richard Geiger said in a published opinion in Morales-Hurtado v. Reinoso.
Kenneth Merber of Gallo, Vitucci & Klar in Hackensack, who represented the defendants on appeal, was also their counsel at the trial court level, according to a press release on that firm’s website.
The panel also cited Merber’s opening statement to the jury about “our litigious society,” defense counsel’s questioning about the ages of passengers in plaintiff’s car at the time of the accident, and whether they sued the defendants. Merber’s questioning of Morales-Hurtado about the air bags in his car not deploying “could have been misleading,” the appeals court said, citing a Law Division judge’s holding in another case that evidence about air bags failing to deploy, Taing v. Braisted, was inadmissible without expert testimony.
“There is no evidence airbags are engineered to deploy in rear-end accidents,” Nugent wrote for the court.
In addition, the appeals court said Merber’s questioning of two Morales-Hurtado treating physicians was improper. Merber questioned anesthesiologist and pain management specialist Gregory Lawler about whether it was his practice to seek approval from his patient’s lawyer of the treatment he was recommending. But such cross-examination of Lawler should be barred on retrial, the judges said, citing a court rule barring discovery of communications between an attorney and expert witness concerning the collaborative process during preparation of reports.
Merber also questioned Marc Arginteanu, a neurosurgeon who operated on Morales-Hurtado, about whether a patient “might have a motive to make complaints because he feels that those complaints might result in his receipt of monetary compensation,” a concept described by Merber as “secondary gain.” But the appeals court said the trial judge erred in permitting that line of questioning.
In a jury setting, there is a great danger that an expert witness who characterizes a plaintiff as a malingerer or magnifier of symptoms will unfairly infect the jury’s assessment of the plaintiff’s overall narrative, the appeals court said. Such testimony at a civil jury trial should be categorically disallowed, the court added.
The trial court also erred by failing to issue a directed verdict, finding the defendant bus driver negligent and ruling that his negligence was a proximate cause of the accident, the appeals court said.
According to the press release from Merber’s firm, the plaintiff was diagnosed with multiple herniated discs. After five epidural injections failed to resolve his pain, the plaintiff underwent laminectomy, discectomy, decompression and interbody fusion surgical procedures, and underwent physical therapy and rehabilitation. The plaintiff’s life care expert projected future medical expenses of more than $4 million. But Merber “convinced the 8 person jury that Plaintiff only suffered minor injuries as a result of the collision and that his spinal conditions were neither caused nor exacerbated by the trauma from the accident,” his firm’s statement said.
Merber did not respond to a reporter’s requests for comment about the case. Martin Cedzidlo of Jae Lee Law in Fort Lee, who represented Morales-Hurtado on appeal, also did not return calls.