The cumulative effect of myriad  errors by defense counsel, including references before the jury to a "litigious society," was prejudicial to the plaintiff and deprived him of a fair trial in a vehicular negligence case, the Supreme Court has ruled.

In Morales-Hurtado v. Reinoso, the court, forgoing a plenary opinion, on Thursday upheld the Appellate Division's reasoning in its 2018 ruling written by Judge William E. Nugent in the case, which centers on a 2011 accident in Fort Lee involving a car and jitney bus.

"We share the Appellate Division's view that 'the cumulative effect of multiple errors and improprieties deprived plaintiff of a fair trial and of a verdict based on the merits of the parties' claims,' and that he is entitled to a new trial," said the unanimous court's nine-page per curiam decision.

The court chronicles a number of errors committed by defense counsel during trial that were deemed improper and prejudicial by the Appellate Division: referencing in opening remarks one's expectations in a "litigious society," and somehow that was the reason behind Morales-Hurtado filing a vehicular negligence claim; cross-examining Morales-Hurtado's arrival and stay in the U.S., citizenship status and need for an interpreter; inquiring about the ages of the passengers in Morales-Hurtado's vehicle and whether they had ever taken legal action against the plaintiff; cross-examining Morales-Hurtado about whether airbags in his car deployed upon impact; and cross-examining two plaintiff medical experts and challenging their credibility.

The justices agreed, finding Morales-Hurtado entitled to a new trial on all issues and upholding reversal of the trial court's decision to bar testimony from the plaintiff's expert witness.

Lockwood Miller III, of Goldberg Segalla in Newark represented the defendant bus driver, Abel Reinoso, and his employer and bus owner, New Service Inc. Martin S. Cedzidlo of Jae Lee Law in Fort Lee represented Hurtado. Neither could be reached for comment on Thursday.

Jonathan H. Lomurro of Lomurro Law in Freehold represented amicus curiae New Jersey Association for Justice. "The most fascinating part is that [the Justices] did a per curiam, which furthered the explanation from the Appellate Division about the ability of the health care planner to rely upon reliable hearsay documents to formulate their opinions," Lomurro said in a phone call on Friday.

"Every once in a while we need the Supreme Court to remind us about the limits of advocacy and the rules of what we can and cannot do in the courtroom. Sometimes we become lax and advocate for more than we should," said Lomurro. "This reminds us that the rules are there to protect the litigants and the process."

The defendants were represented at trial by Kenneth Merber of Gallo Vitucci Klar in Hackensack, according to a prior Law Journal report.

The court in its decision Thursday reviewed Nugent's 2018 opinion and upheld its determinations.

As to defense counsel's referencing "a litigious society" during his opening remarks, Nugent deemed the remark a statement of evidence that was arguably "an impermissible appeal to prejudice."

As to questions pertaining to Morales-Hurtado's citizenship by defense counsel, Nugent determined they too were prejudicial, raising the same concerns expressed in State v. Sanchez-Medina.

The court noted that the 2018 case inferred that "evidence of a defendant's undocumented immigration status could appeal to prejudice, inflame certain jurors, and distract them from their proper role in the justice system."

Nugent also found irrelevant defense counsel's questions about the ages of the passengers in Morales-Hurtado's car and whether any of them had sued him. Nugent said the latter undermined defense counsel's contention that he asked about the passengers' ages to establish their presence.

In addition, Nugent expressed concern that, although the trial court immediately struck the defense counsel's questioning of other suits, the instruction may not have been enough to effectively "blunt the risks" of significant prejudice to plaintiff.

As to defense counsel's airbag deployment question, Nugent concluded that such evidence was inadmissible, absent expert testimony, and might have been misleading because there is no evidence airbags are engineered to deploy in rear-end accidents

Nugent also addressed defense counsel's cross-examination of two plaintiff medical experts, and said that, on remand, assertions by defense counsel about the witnesses' credibility, among other things, should be barred.

Finally, the Appellate Division reversed the trial court's decision to exclude the testimony of Dianne Simmons-Grab, a certified life care planner, regarding future medical expenses that Morales-Hurtado was expected to incur over his lifetime due to his injuries. Simmons-Grab's testimony had been struck on grounds it was unreliable, and the medical experts she relied on to estimate plaintiff's future medical needs lacked proper certification, according to the court..

At trial Simmons-Grab said she premised her opinion on notations she made in medical records and from handwritten responses to questionnaires she submitted to the offices of three of Morales-Hurtado's treating physicians. The Appellate Division held that the trial court's decision to bar Simmons-Grab's testimony constituted error but abstained from ruling on the admissibility of her opinion, leaving that to the trial court.

The justices agreed that Simmons-Grab lacked the authority and expertise to speak on Morales-Hurtado's medical needs.

"Simmons-Grab, who is not a physician or other health care provider, was clearly unqualified to opine on plaintiff's prognosis or to identify any medication, surgery, therapy, or other care necessary to treat his injuries over his lifetime," the Supreme Court said Thursday.

"As in other things, any expert's or treating physician's opinion on which the life care expert relies, 'must be couched in terms of reasonable medical certainty or probability," said the Court.

Nugent ruled in 2018 that Simmons-Grab's entire testimony should not have been excluded. "In appropriate circumstances, an expert witness may rely on the opinion of another expert in a relevant field. That principle, however, does not obviate the need to demonstrate that the treating physician on whom the life care expert relies actually holds the opinion attributed to him or her, which can be accomplished by means of a report by the treating physician, his or her trial testimony, or other competent evidence," Nugent wrote.