BARBARA WEGNER VS. NICHOLAS A. DERRICO (L-1742-15, MIDDLESEX COUNTY AND STATEWIDE) ( 2020 )

NOT FOR PUBLICATION WITHOUT THE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-4910-17T2
BARBARA WEGNER and
RICHARD WEGNER,
Plaintiffs-Appellants,
v.
NICHOLAS A. DERRICO and
J AND J DINA TRUCKING,
Defendants-Respondents.
_____________________________
Argued October 18, 2019 – Decided February 28, 2020
Before Judges Ostrer, Vernoia and Susswein.
On appeal from the Superior Court of New Jersey, Law
Division, Middlesex County, Docket No. L-1742-15.
Craig M. Aronow argued the cause for appellants
(Rebenack, Aronow & Mascolo, LLP, attorneys; Craig
M. Aronow, of counsel and on the briefs; Paul M.
Brandenburg and Rachel E. Holt, on the briefs).
John V. Mallon argued the cause for respondents
(Chasan Lamparello Mallon & Cappuzzo, PC,
attorneys; John V. Mallon, of counsel and on the brief;
Ryan J. Gaffney, on the brief).
PER CURIAM
The key factual issue in this auto accident case was who had the green
light. The accident happened shortly before dawn on November 11, 2014, at the
intersection of U.S. Route 130 and County Route 522 in South Brunswick
Township. Defendant Nicholas Derrico was heading south on Route 130.
Plaintiff Barbara Wegner entered the intersection from eastbound Route 522,
intending to turn north after crossing Route 130's southbound lanes. The two
vehicles collided and Wegner suffered significant injuries.
Each party claimed to have the right of way. But, a major controversy at
trial was whether Wegner's medical condition affected her actions. Wegner
argues the court should have barred evidence of her medical history, because
defendants presented no expert opinion to interpret it, and there was no
competent evidence she actually suffered a medical episode. She contends the
court's error led the jury to find her fifty-percent responsible, and Derrico and
the trucking company that employed him, twenty and thirty percent responsible,
respectively. As a result, her $375,000 in damages were halved. 1 We agree the
trial court erred, and reverse and remand for a new trial on liability. We reject
1
The jury awarded Wegner's husband zero damages on his per quod claim. For
convenience, we used "Wegner" to refer to Barbara Wegner.
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Wegner's argument that she and her husband are entitled to a new trial on
damages.
I.
The jury heard from Wegner and Derrico; their respective accident
reconstruction experts; a motor carrier safety expert; two drivers who
approached the intersection on northbound Route 130; and the responding police
officer. Without reviewing the testimony in detail, it is fair to conclude that the
evidence as to who had a green light, and who had red, was far from clear.
Wegner and Derrico were at odds. She testified she stopped at the intersection
with a red light, and proceeded only after it turned green. Derrico said he had a
green light when he approached the intersection and saw Wegner cross his path.
And each third-party witness's testimony was inconsistent with the other's, and
in some respects, with prior statements.
Complicating the jury's fact-finding, the traffic lights could cycle through
as many as four different phases to accommodate multiple turning lanes; but a
phase could be skipped if no vehicle waited to turn.2 In some phases, one
direction of Route 130 had a red light when the opposite had green. So, one
2
A fifth phase could be triggered by oncoming traffic from the east on Fresh
Ponds Road, but the evidence was that road was closed the morning the accident
occurred.
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could not necessarily conclude that if a northbound witness had a red light,
Derrico did also and not Wegner. The officer opined that Derrico had the right
of way, based in part on a witness's statement that she later clarified. The traffic
reconstruction experts selectively credited witnesses' statements and drew other
inferences from the evidence to reach conclusions that favored their respective
clients. The commercial motor carrier safety expert opined that Derrico and his
employer failed to follow safety and training protocols, including those
pertaining to accident avoidance.
The defense tried to convince the jury that Wegner entered the intersection
against the light because she was suffering a seizure, caused by a medical
condition that she had failed to treat consistently. As disclosed in discovery,
Wegner periodically had stress-induced seizure-like episodes. They were
caused by an assault and head injury she suffered when she was a school bus
driver over fifteen years before the accident. She said it was diagnosed as post-
traumatic stress disorder. During an episode, she experienced "tunnel vision,"
as she called it. She would just stare straight ahead for a minute or two,
restricting her ability to see side to side; she would be unable to concentrate;
and, a pain in the side of her face made it difficult to speak clearly. Her
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neurologist prescribed medicine for it. In deposition, Wegner said her last
episode was in 2010 or 2011, and she never had one while driving a vehicle.
The defense accident reconstruction expert discussed Wegner's medical
history in his report, and postulated that her symptoms described a "focal or
absence seizure." Although he conceded there was no evidence she suffered an
episode before the collision, "with the medical history, it is a factor which must
be considered."
In an in limine motion, Wegner's counsel sought to bar introduction of
Wegner's medical and medication history, and challenged the defense expert's
qualifications to address the matter. The court reserved decision, but barred
mention of the subject in opening statements. 3 The court ultimately ruled on the
motion before Wegner testified near the end of plaintiff's case. The court held
that Wegner's "medical condition and her medications are . . . highly relevant to
this issue of . . . why somebody would pull out in front of a tractor trailer." The
court allowed defendants to inquire not only about her medicine for the seizure-
like condition, but also medicines she took for other conditions. The court held
3
We do not imply that the trial court was obliged to rule on the motion pre -
trial. See State v. Cordero, 438 N.J. Super. 472, 484 (App. Div. 2014)
(disfavoring "in limine rulings on evidence questions," and noting evidence
questions are best addressed in the context of the trial).
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that an expert was not necessary because defendants proposed to use Wegner's
own descriptions of her condition and medications. The court also held that the
defense could, in order to challenge Wegner's credibility, elicit apparent
inconsistencies between Wegner's description of her condition and medication
history in deposition, and records of statements she made to her physician and
in an unrelated municipal court matter.
On direct-examination, Wegner described her history of seizure-like
episodes and her symptoms. She said she was being treated and had not had an
episode in years. On redirect, she explained that the symptoms were triggered
by stress or nervousness; she could feel them coming; and she had no stress or
anxiety the morning of the crash. She also said she had no problems with her
various medications.
On cross-examination, Wegner was confronted with her neurologist's
records, ostensibly to refresh her recollection of statements she made to him.
Although Wegner testified that the documents did not refresh her recollection,
defense counsel – over plaintiff's counsel's objection – repeatedly read aloud
excerpts of the medical records, thereby presenting their content to the jury.
Counsel then asked Wegner about her compliance with her anti-seizure
medicine, as well as her use of other medicines. Defense counsel elicited that
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Wegner had taken two weeks off as sick days during October, a month before
the accident, and she was also out sick on November 10, the day before the
accident, but could not recall why. However, in deposition, she said she had
pneumonia in October. She insisted that she was not sick the morning of the
crash. Defense counsel also elicited that Wegner was arrested multiple times,
and in a municipal court proceeding in 2012, she said that she "zoned out"
because of a traumatic seizure.
Before the start of the defense case, the court emphasized that it had not
yet decided whether the defense expert could testify about Wegner's medical
condition. However, Wegner's counsel stated that, based on the court's decision
to allow questioning on the subject through Wegner, he felt impelled to raise the
subject with the defense expert, to highlight his statement that defendant had no
proof that Wegner's condition caused the accident. On cross-examination,
Wegner's counsel also elicited that the expert had received no education in
medicine or pharmacology, but he did say that he was an emergency medical
technician for nearly twenty years.
To address the suggestion that Wegner had failed to take her medication
as prescribed before the accident, her counsel sought to introduce her pharmacy
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records. He and defense counsel agreed that both the pharmacy records and the
neurologist's records would be introduced into evidence.
Wegner's medical history was the predominant theme of the defense
summation. Using the pharmacy records, counsel noted numerous times during
a multi-year period when Wegner did not timely renew her prescriptions.
Wegner had testified that her physician regularly tested her blood to monitor the
levels of her medicine in her system. Defense counsel noted that Wegner refilled
her prescription twenty days before the accident, but he argued that was more
than ninety days late, based on the previous refill date. Over objection, he
suggested that the twenty days was too soon to build up the medicine in her
system and to achieve its intended effect. The court held that the jury was free
to draw the suggested inference from the evidence.
Defense counsel also highlighted the neurologist's records, which showed
that Wegner went a significant period of time without seeing her neurologist,
although she saw him three times in the year the accident occurred. Defense
counsel also suggested that Wegner's sick days before the accident were
somehow related. He asked the jury, "Why? We don’t know. We don’t know
what's going on, but we do know she had been off the medication for three
months."
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Counsel also noted that one of the records from a visit to the physician ten
months before the accident stated that Wegner feared the onset of symptoms if
she became stressed, and could not calm herself down. Counsel also highlighted
Wegner's statement before the municipal court in 2012. In sum, defense counsel
argued that Wegner ran the red light, and she did so because of her medical
condition and her failure to treat it properly.
II.
We agree with Wegner that the trial court erred in permitting defendants
to reference Wegner's medical history of seizure-like episodes, and her alleged
medication non-compliance. Absent expert opinion, defendants presented
insufficient evidence that she suffered symptoms the morning of the accident,
and such symptoms could have impelled her to run a red light.
We review evidentiary decisions under the abuse of discretion standard.
Estate of Hanges v. Metro. Prop. & Cas. Ins. Co., 202 N.J. 369, 383-84 (2010);
see also State v. Zola, 112 N.J. 384, 414 (1988) (stating "the necessity for . . .
the administration of expert testimony" is within trial court's discretion). "An
abuse of discretion 'arises on demonstration of manifest error or injustice,' . . .
or when there is a 'clear error of judgment.'" Rodriguez v. Wal-Mart Stores,
Inc., 237 N.J. 36, 57 (2019) (quoting Hisenaj v. Kuehner, 194 N.J. 6, 20 (2008)
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and State v. Brown, 170 N.J. 138, 147 (2001)). An improper evidentiary ruling
will warrant reversal if it is "clearly capable of producing an unjust result."
Manata v. Pereira, 436 N.J. Super. 330, 343-44 (App. Div. 2014) (quoting Green
v. N.J. Mfrs. Ins. Co., 160 N.J. 480, 502 (1999)).
We acknowledge that a driver's medical condition may be relevant to
determining whether he or she negligently operated a vehicle. "[I]n a given
situation it may indicate lack of due care for a person to drive on a public
highway when he is suffering from a disease which he knows, or which a
reasonable person should know, . . . may imperil his control of the vehicle."
Kreis v. Owens, 38 N.J. Super. 148, 154 (App. Div. 1955). Furthermore, "it is
not always possible to prove by direct and specific evidence a person's physical
or mental condition at a particular time." Id. at 152-53. However, circumstantial
evidence of the condition must be timely:
[W]hen such a condition is relevant, the law permits it
to be shown circumstantially by proof of the existence
of the condition before the event in question and
thereafter, so long as the offered proof is within such
reasonable time proximity thereof as to permit a
reasonable inference that it existed at the particular
time.
[Id. at 153 (emphasis added).]
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The evidence of Wegner's last episode was not "within such reasonable
time proximity" to warrant suggesting she suffered an episode immediately
before the accident. Wegner conceded that she told a municipal court in 2012
that she "zoned out" as a result of a traumatic seizure. That was two years before
the accident. In her statements to her physician in 2014, which defendants
introduced, she reported that she had not experienced any episodes. Defense
counsel's suggestion that Wegner may have experienced an episode in October
2014, or the day before the accident – because she was out sick – was based on
nothing but speculation. Notably, Wegner testified that she had pneumonia in
October 2014, and could not recall why she did not go to work the day before
the accident. A party may not prove causation based on "mere speculation."
Kulas v. Public Serv. Elec. & Gas Co., 41 N.J. 311, 318 (1964).
There also was no basis in the evidence for the jury to infer, as defense
counsel encouraged, that Wegner was not fully protected by her medicine the
day of the accident. Even assuming she had been non-compliant in the fall of
2014, she refilled her prescription twenty days before the accident and,
presumably, took the medicine during that period of time. The fact that
Wegner's physician monitored her to assure appropriate levels of the medicine
in her system did not warrant a reasonable inference that she was unprotected
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the day of the accident. How long it took to achieve therapeutic absorption of
Wegner's medicine was outside the ken of the jury and required an expert.
Expert testimony is required if the issue is "so esoteric that jurors of common
judgment and experience cannot form a valid judgment." Butler v. Acme
Markets, Inc., 89 N.J. 270, 283 (1982). In particular, expert testimony is
required to prove causation of a medical condition. Allendorf v. Kaiserman
Enters., 266 N.J. Super. 662, 672 (App. Div. 1993).
Without an expert opinion, and absent other relevant evidence, defendants
should not have been permitted to suggest that Wegner was negatively affected
by her alleged medication non-compliance. In Ratner v. General Motors
Corporation 241 N.J. Super. 197, 204 (App. Div. 1990), the defendant suggested
that the side effects of a hypertension medicine caused the driver-plaintiff to
lose control of her vehicle. Defense counsel was permitted to read from the
Physicians Desk Reference (PDR) a litany of potential side effects of the drug.
Ibid. We held, "[W]ithout an expert opinion, [the PDR] should not have been
admitted here." Id. at 205. We noted that the record included no evidence that
the plaintiff experienced any of the listed side effects. Ibid.
Furthermore, even if Wegner suffered from an episode immediately before
the accident, the evidence was insufficient to enable the jury to conclude – as
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the defense suggested – that her episode caused her to enter an intersection
against a red light. She testified that when she had an episode, she stared ahead
and was unable to concentrate. A jury could not infer, without expert opinion,
that those symptoms prevented her from discerning red from green, or propelled
her to enter an intersection against a light. Defendants were obliged to call an
expert witness, familiar with Wegner's condition, to support such an inference.
We reject defendants' argument that Wegner's medical history was
otherwise admissible to impeach her credibility. In Allendorf, we held that
evidence that the plaintiff had episodes of passing out was admissible to impeach
her credibility, after she testified that she was in perfect health and never blacked
out. 266 N.J. Super. at 674. The error in this case was permitting initial inquiry
about Wegner's medication compliance, the frequency of her doctor visits, and
whether her last episode was in 2012, or 2010 or 2011. That was inadmissible
absent expert opinion. Defendants may not, in the guise of impeachment,
bootstrap the introduction of otherwise inadmissible evidence.
We also reject defendants' invited error argument – that Wegner's counsel
consented to the introduction of her physician's records in return for the
agreement to admit her pharmacy records; and her counsel chose to cross-
examine defendants' expert about Wegner's condition. It is abundantly clear that
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Wegner's counsel took those steps as a result of the trial court's initial error in
permitting the introduction of evidence of Wegner's medical condition and
medication history; and the trial court's error in permitting defense counsel to
present the substance of medical records through Wegner, who did not recall
them. The trial court had "a duty to prevent [the] witness from putting into the
record the contents of an otherwise inadmissible writing under the guise of
refreshing recollection." State v. Caraballo, 330 N.J. Super. 545, 557 (App. Div.
2000).
In sum, we are convinced that the introduction of evidence of Wegner's
medical condition and her alleged medication non-compliance was in error, and
capable of producing an unjust result. Inasmuch as the issue of who ran the red
light was hotly disputed, and defense counsel placed great weight on Wegner's
condition, the evidence may have led the jury to allocate a greater share of fault
to Wegner than it would have done otherwise. Therefore, a new trial on liability
is required.
III.
Wegner contends that she is also entitled to a new trial on damages. We
are unpersuaded. "The scope of the new trial depends on the nature of the
injustice." Ogborne v. Mercer Cemetery Corp., 197 N.J. 448, 462 (2009)
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(quoting Fertile v. St. Michael's Med. Ctr., 169 N.J. 481, 490 (2001)). When
the damages award was not "'tainted' by the error in the liability portion of the
case . . . retrial need not include the issue of damages." Ibid. Wegner has not
shown how the trial errors affected the jury's damages verdict. Therefore, a new
trial on damages is not warranted.
Given our resolution of the above issues, we need not address Wegner's
remaining points on appeal.
Reversed as to liability and remanded for a new trial on liability. Affirmed
as to damages. We do not retain jurisdiction.
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