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

NOT FOR PUBLICATION WITHOUT THE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.
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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. 
3 A-4914-14T1

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.
4 A-4914-14T1

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 crossexamination 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 
5 A-4914-14T1

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 
6 A-4914-14T1

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 
7 A-4914-14T1

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."
8 A-4914-14T1

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 crossexamination 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 
9 A-4914-14T1

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, 
10 A-4914-14T1

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 
11 A-4914-14T1

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 
12 A-4914-14T1

trial court's rulings regarding defendant's use, on crossexamination, 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 
13 A-4914-14T1

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.