DEFENDANT'S SUMMARY JUDGMENT - MOTOR VEHICLE NEGLIGENCE - REAR END COLLISION - SECOND DEFENDANT STRIKES FIRST DEFENDANT'S VEHICLE AND PUSHES IT INTO REAR OF PLAINTIFF'S VEHICLE - DISC HERNIATION AT C5-6, C6-7, AND C3-4 WITH ANNULAR TEAR; DISC BULGE AT C3-4 - 3 CERVICAL EPIDURAL INJECTIONS; LUMBAR STRAIN/SPRAIN - SHOULDER TEAR.

• Pages: 4-5

The jury found in favor of the plaintiff and against the

defendant by a vote of 6-1 and awarded damages

in the amount of $250,000 in damages together with

$21,653 in prejudgment interest; lost wages of

$4,640; costs of $5,550 and attorney fees of $17,960

for a total award of $299,802.

REFERENCE

Martinez vs. White. Docket no. L-003573-16; Judge

James Hely.

Attorney for plaintiff: Johnathan S. Druckman of

Druckman & Hernandez, P.C. in Elizabeth, NJ.

Attorney for defendant: David Della-Badia of Cooper

Maren Nitsberg Voss & Decoursey in Iselin, NJ.

COMMENTARY

Following the verdict, the defendant moved for a new trial asserting

that the court made 2 errors during trial that prejudiced the jury to

award the plaintiff damages that were not in line with the facts pre-

sented at trial. The defendant argued that the court unilaterally, and

without notice to counsel, undertook to advise the jury that any award

to the plaintiff would not be paid by the defendant, thus clearly sig-

naling to the jury that not only did the defendant have liability insur-

ance, but adequate liability insurance to satisfy even a large verdict –

an assertion that is belied by the procedural post-verdict position in

which the defendant found himself – faced with an excess verdict.

Additionally, during defense counsel’s cross-examination of the

plaintiff, which included authentication of property damage photo-

graphs, the court advised the jury of the jury charge regarding photo-

graphs and without any consultation with counsel, used an analogy

that was egregiously prejudicial to the defense, given the neutral,

non-partisanpositionthetrialcourtissupposedtooccupyandproject

to the jury at any trial. The court advised the jury that everyone is fa-

miliarwiththesituationofan“eggcarton”beingpurchasedata store

in an undamaged state, only to bring the carton home to find that one

of the eggs inside is broken, thereby implying that that was precisely

what happened to the plaintiff as an occupant of his scantly-damaged

autoin the case being tried, indeed, as depicted by the photographs.

Defense counsel argued that the trial court’s assault on the photo-

graphs depicting minimal damage to the plaintiff’s auto continued

during the jury charge, where the court deviated from the written

charge provided to counsel in advance of thecharge, and prefaced the

photograph charge by advising the jury, “here we go again with the

photos,” thus minimizing the photographs and significantly

downplaying their importance to the case.

Finally, immediately prior to defense counsel presenting its defense

expert via video, the court advised the jury that they would be viewing

a “tedious” video. The defense argued, with respect, that this was an

uncalled for swipe at the defense presentation in circumstances where

neutrality by the trial court is fundamentally required. Thus, the de-

fendant moved for a new trial, arguing that the verdict was against

the weight of the evidence, and further demonstrating that certain

comments made throughout the trial were improper, and, particu-

larly when considered together, may cumulatively have led to an un-

just result.

The plaintiff objected to the defendant’s motion for a new trial. The

plaintiff maintained that the defendant did not allege any conduct by

the plaintiff, or plaintiff’s counsel that formed the basis for reversal of

theverdict.Theplaintiffarguedthatthestatementbydefensecounsel

in his opening, suggesting that the defendant was responsible to pay

money to the plaintiff, was improper. Upon appropriate objection by

plaintiff’s counsel, the court correctly instructed the jury that if they

found in favor of the plaintiff, they were not to be concerned from

where the ultimate payment would come.

The defendant argued that the court improperly interjected the issue

of insurance into the case, yet N.J.R.E. 411 does not act as a shield that

permits an attorney to hide behind it after they make improper com-

ments. It was, the plaintiff argued, defense counsel who opened the

door to the issue of who would be responsible for the verdict by mak-

ing the statement that it was “the plaintiff trying to get money from

my client,” as the defendant sat at the counsel table. It was defense

counsel’s improper conduct which required the judge to give a cura-

tive instruction to the jury.

Further,defendant’s counsel claimed the defendant was then exposed

to $150,000 of the verdict, but failed to mention that his insurance

company acted in bad faith by first rejecting a settlement offer well

below the policy limits and then refused to entertain a high/low dis-

cussion that would have capped exposure at the policy limit of

$100,000. The plaintiff maintained that it was only after a verdict was

returned in excess of the insurance policy limit that the defense as-

sembled their list of transgressions, which they alleged yielded a ver-

dict with no relationship to the evidence.

Astothedefendant’s second argument of error by the court, the plain-

tiff refuted defense counsel’s argument that the trial court’s use of the

egg carton analogy was one-sided in favor of the plaintiff. The plain-

tiff put forth that defense counsel made no objection to the jury in-

structionregardingthe photographs put into evidence. Presumably, if

defense counsel believed the statements made by the court regarding

the photos were so prejudicial, he would have objected, thereby giv-

ing the court the opportunity to provide a curative instruction. How-

ever, there was no such objection, presumably because the analogy

was innocuous and, indeed, could cut both ways. An egg carton could

be crushed on the outside and the eggs inside be intact. The plaintiff

argued that it was only with the hindsight of an adverse verdict that

defense counsel found the judge’s analogy to be prejudicial to the

jury.

The court denied the motion for new trial and the verdict stood.

DEFENDANT’S SUMMARY JUDGMENT – MOTOR VEHICLE NEGLIGENCE – REAR END

COLLISION – SECOND DEFENDANT STRIKES FIRST DEFENDANT’S VEHICLE AND

PUSHES IT INTO REAR OF PLAINTIFF’S VEHICLE – DISC HERNIATION AT C5-6, C6-7,

AND C3-4 WITH ANNULAR TEAR; DISC BULGE AT C3-4 – 3 CERVICAL EPIDURAL

INJECTIONS; LUMBAR STRAIN/SPRAIN – SHOULDER TEAR.

Mercer County, NJ

In this motor vehicle negligence case, the plaintiff,

a 47-year-old woman, asserted that the

defendants jointly caused her vehicle to be struck

from behind in a chain reaction collision with such

force that she sustained significant, permanent

injury. Both defendants argued that the plaintiff’s

injuries were degenerative in nature and not

caused by the subject collision as confirmed by

IME.

On November 23, 2016, the plaintiff was traveling in

the center lane of Route 73 southbound in Maple

Shade. The first defendant was traveling directly be-

hind the plaintiff’s vehicle. The second defendant was

traveling behind the first defendant. The plaintiff as-

4FEATURED CASES

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