HERRERA v. MURPHY et al

Filing 46

OPINION & ORDER that Defendant's 35 Motion is DENIED WITHOUT PREJUDICE; Defendant's 36 Motion is GRANTED IN PART and DENIED IN PART; Defendant's 37 Motion is DENIED. Signed by Judge Stanley R. Chesler on 11/18/2020. (ams, )

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NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

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JOSE A. HERRERA,
Plaintiff,
v.
QUINLAN L. MURPHY, et al.,
Defendants.

Civil Action No. 17-4293 (SRC)
OPINION & ORDER

CHESLER, District Judge
Defendant Quinnlyn Murphy (“Defendant” or “Ms. Murphy”) 1 has brought three
motions in limine before the Court: (1) a motion to bar Plaintiff’s property damage claim [ECF
35]; (2) a motion to bar Plaintiff’s wage loss claim [ECF 36]; and (3) a motion to bar Plaintiff’s
expert Dr. Vijaykumar Kulkarni from testifying about disc herniations [ECF 37]. 2 Plaintiff Jose
Herrera (“Plaintiff” or “Mr. Herrera”) has opposed all three motions. The Court will address each
one in turn.
Before proceeding with its analysis, the Court states that it will not reject Defendant’s
motions on the grounds of untimeliness. Plaintiff has argued that all three motions should be
denied for failure to comply with the Final Pretrial Order, which required that all pretrial motions
be filed no later than thirty days from the date of the Order, entered on August 13, 2020. As the

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Ms. Murphy is identified as “Quinlan Murphy” in the Complaint.

At the time they were filed, the motions were also brought on behalf of Defendant Steven
Murphy. The claims against Mr. Murphy have since been disposed of on summary judgment.
Thus, the Court refers only to “Defendant” or “Ms. Murphy” throughout the Opinion.
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thirtieth day thereafter fell on a weekend, the deadline for filing the motions was Monday,
September 14, 2020. Fed. R. Civ. P. 6(a)(1)(C). Defendant’s motions in limine were filed two
days later, on September 16, 2020. “It is always within the discretion of a court or an
administrative agency to relax or modify its procedural rules adopted for the orderly transaction
of business before it when in a given case the ends of justice require it. The action of either in
such a case is not reviewable except upon a showing of substantial prejudice to the complaining
party.” Am. Farm Lines v. Black Ball Freight Svc., 397 U.S. 532, 539 (1970) (quotation
omitted). Plaintiff does not argue, much less demonstrate, that the two-day delay in filing the
motions at bar caused him any prejudice at all. The Court, in its discretion, will relax the
deadline set forth in the Final Pretrial Order and consider the motions in limine on their merits.
1. Motion To Bar Property Damage Claim
Plaintiff claims that as a result of the subject motor vehicle accident, his 2004 Ford
Explorer (the “Explorer”) sustained $21,431.69 in damage. He basis this claimed loss on the
estimated cost to repair the Explorer, as set forth in the August 28, 2015 report of Masterson
Appraisal Service. Defendant contends that Plaintiff should be barred from pursuing this
property damage claim because Plaintiff has not set forth evidence of the Explorer’s market
value and therefore cannot substantiate the claimed loss.
Defendant argues that Plaintiff cannot establish the property damage amount at trial
because he is only entitled to repair cost damages if the Explorer can be repaired at a cost less
than the difference between its market value before the accident and market value after the
damage. See Parisi v. Friedman, 134 N.J.L. 273, 274-75 (1946) (holding that “the cost of repairs
must not exceed the diminution in market value due to the injury” and that “the cost of repairs
must not exceed the market value of the automobile immediately before the injury”); see also

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Nixon v. Lawhon, 32 N.J. Super. 351, 354 (App. Div 1954) (“It is axiomatic that the measure of
damages is the difference between the value of the automobile before and its value after the
accident.”). Defendant further argues that Plaintiff’s request that the Court take judicial notice of
the Explorer’s market value according to the Kelley Blue Book should not be countenanced as
such a valuation would constitute inadmissible hearsay evidence. In response, Plaintiff maintains
that the Kelley Blue Book valuation is admissible under Federal Rule of Evidence 803(17), the
hearsay rule exception for market reports and similar commercial publications. Rule 803(17)
provides that “[m]arket quotations, lists, directories, or other compilations that are generally
relied on by the public or by persons in particular occupations” are not excluded by the rule
against hearsay. Fed. R. Evid. 803(17).
In light of the foregoing, Defendant’s motion will be denied without prejudice. The Court
finds that, if Plaintiff can establish the predicate to admit evidence under Rule 803(17), he may
present at trial the Kelley Blue Book valuation as evidence of the Explorer’s market value. In
other words, the Court will not categorically bar such evidence, but Plaintiff cannot introduce it
unless he demonstrates that the Kelley Blue Book is generally relied on by persons in the vehicle
appraisal trade. Moreover, the Court notes that although Plaintiff has expressed an intent to rely
on this valuation evidence, he has not, to date, disclosed the Kelley Blue Book value of the
Explorer to Plaintiff. Thus, even if the evidence were admitted at trial as a hearsay exception, the
Court expresses no opinion on whether Plaintiff can, in fact, prove he is entitled to a monetary
recovery for damage to the Explorer.
2. Motion To Bar Wage Loss Claim
Mr. Herrera seeks to recover both past and future wages allegedly lost as a result of the
injuries he sustained in the subject motor vehicle accident. He contends that the injuries caused

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him to remain out of work for six weeks for recuperation and then, going forward, curtailed his
ability to work and maintain the schedule he had prior to the accident. In all, Plaintiff makes a
lost wage claim in the amount of $517,000. The claim is based on the analysis and calculations
of Donald Welsch, Plaintiff’s labor economist expert, as set forth in his May 31, 2019 report (the
“Welsch report”). Defendant argues that Plaintiff’s wage claim and the Welsch report lack a
factual predicate and should therefore be barred. In particular, Defendant maintains that Plaintiff
has proffered no competent evidence, that is, no opinion by a medical or vocational expert,
stating that the injuries Plaintiff allegedly sustained in the accident impeded or prevented
Plaintiff from working.
The Welsch report “summarizes the economic and financial losses suffered by Jose
Herrera, as a result of the injury he sustained on July 3, 2015.” (Welsch report at 1, ECF 39.) The
report notes that, at the time of the accident, Mr. Herrera was 59 years old and employed fulltime at the Waldorf-Astoria Hotel (the “Hotel”) as a dishwasher. It further notes that Mr. Herrera
returned to his dishwasher position and remained employed by the Hotel through March 1, 2017.
The Welsch report then states as follows: “You have asked us to assume that, due to his injuries,
he has remained unemployed and will remain unable to return to the workforce for the remainder
of worklife expectancy.” (Id. at 2.) The report proceeds to calculate Mr. Herrera’s lost wages
from the time of the injury onward through an expected retirement age of 67, based on the
assumption that he would have remained employed at the Hotel as a dishwasher.
Nowhere in the Welsch report, however, does it state that the lost wage calculation is
based on any facts or expert opinions concerning the link between the injuries Mr. Herrera
allegedly sustained in the accident and his ability to maintain gainful employment. The sole
predicate for the lost wage claim appears to be Plaintiff’s own, unsupported input: the Welsch

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report makes clear that Plaintiff asked the economist to assume that Mr. Herrera became and
would remain unemployed due to the injuries he sustained in the July 2015 motor vehicle
accident on which this case is based. Moreover, the facts in the record belie the information
supplied to the economist. The Welsch report presumes that Plaintiff lost his dishwasher job and
remained out of work due to his injuries, but Mr. Herrera himself admits that his employment at
the Hotel terminated because the Hotel closed. He further admits that, after his Hotel
employment concluded, he began working as a driver for Uber.
The only record evidence concerning Plaintiff’s limited ability to work due to the injuries
allegedly sustained in the subject accident consists of the June 20, 2018 report of Plaintiff’s
medical expert Dr. Kulkarni (“Kulkarni report”). Although the Kulkarni report is not among the
referenced bases for the Welsch report’s lost wage analysis, Plaintiff argues that Dr. Kulkarni’s
opinions establish a sufficient predicate for the lost wage claim. Plaintiff asserts that Dr.
Kulkarni opines that (1) “Plaintiff was unable to work for 6 weeks due to the injuries sustained in
the accident and due to economic necessity he returned to work but a reduced level of
performance and with pain” and (2) it is medically probable that the physical limitations Plaintiff
identified will have a substantial impact on his ability to perform daily life activities, which
include working and driving to work. (Pl. Br. at 3, ECF 39.)
Contrary to Plaintiff’s characterization, the Kulkarni report is largely unavailing as a
basis for his lost wage claim. While it does opine that the injuries are permanent and the
prognosis poor, the Kulkarni report offers no opinion regarding the effect of the injuries on
Plaintiff’s ability to work, except for the following: “As a result of the injuries suffered, this
patient was unable to work for 6 weeks. Because of economic necessity he returned to work but
at a reduced level of performance and with pain.” (Kulkarni Report at 6, ECF 39.)

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The Court acknowledges Defendant’s observation that this opinion concerning lost
work time simply re-states information Dr. Kulkarni received from Mr. Herrera. Nevertheless,
the Court finds that the Kulkarni opinion as to the six weeks Herrera was unable to work will
suffice as a basis for a portion of his lost wage claim. The remainder of the lost wage claim,
however, lacks a factual basis, for the reasons discussed above. Herrera’s lost wage claim is
therefore limited to the losses he sustained for the six weeks he was unable to work at his Hotel
dishwasher job allegedly as a result of his injuries.
Accordingly, Defendant’s motion to bar Plaintiff’s lost wage claim and the Welsch report
will be granted in part and denied in part.
3. Motion to Bar Dr. Kulkarni’s Testimony Regarding Disc Herniations
Defendant moves to bar Dr. Kulkarni from testifying as to disc herniations Plaintiff
allegedly sustained as a result of the July 3, 2015 motor vehicle accident on the grounds that such
evidence constitutes inadmissible hearsay. The Court disagrees. The relevant background is as
follows:
Plaintiff was involved in a 2012 motor vehicle accident. He underwent an MRI in August
2012 which showed that he sustained back and neck injuries. After the subject accident, Mr.
Herrera underwent an MRI in July 2015. Based on his review of radiology reports of the 2012
films and 2015 films, respectively, Dr. Kulkarni concluded that the subject accident had
aggravated Plaintiff’s pre-existing back and neck injuries and resulted in “a new disc herniation
L1-L2, L2-L3 status post medial branch block with residual posttraumatic fibromyositis with
loss of range of motion.” (Kulkarni report at 5, ECF 39.) Dr. Kulkarni did not review and
compare the MRI films but rather relied on a radiologist’s interpretation of the films to form his
opinion.

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Defendant maintains that Dr. Kulkarni’s testimony as to the disc herniation is based on
another declarant’s finding and thus constitutes inadmissible hearsay evidence. However, under
Federal Rule of Evidence 703, an expert witness is permitted to rely on hearsay evidence if it is
the kind of data on which experts in his or her field would reasonably rely to form an opinion on
the subject. Fed. R. Evid. 703. The rule provides:
An expert may base an opinion on facts or data in the case that the expert
has been made aware of or personally observed. If experts in the particular
field would reasonably rely on those kinds of facts or data in forming an
opinion on the subject, they need not be admissible for the opinion to be
admitted. But if the facts or data would otherwise be inadmissible, the
proponent of the opinion may disclose them to the jury only if their
probative value in helping the jury evaluate the opinion substantially
outweighs their prejudicial effect.
Fed. R. Evid. 703. Rule 703’s advisory committee notes expressly recognize that “a physician in
his own practice bases his diagnosis on information from numerous sources and of considerable
variety, including statements by patients and relatives, reports and opinions from nurses,
technicians and other doctors, hospital records, and X rays.” Id., advisory committee’s note to
proposed rules.
In this case, Dr. Kulkarni relied on the reports of radiologists interpreting the 2012 and
2015 MRIs to form his opinion about the injuries Plaintiff sustained in the subject motor vehicle
accident. The reports of another physician, and in particular a radiologist’s interpretation of
MRIs, is the type of evidence on which a surgeon like Dr. Kulkarni would reasonably rely.
Therefore, contrary to Defendant’s argument, it is not improper for Dr. Kulkarni to base his
opinion regarding Plaintiff’s disc herniations on those reports. Plaintiff argues that the evidence
is not hearsay because the radiologist who interpreted Plaintiff’s 2015 MRI films and wrote the
report on which Dr. Kulkarni relied has been identified as a witness who will be called at trial.
However, the Court notes that the Kulkarni report also relies on the 2012 MRI report, authored
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by a different physician. Nevertheless, even if the radiology reports constitute hearsay, Dr.
Kulkarni’s expert testimony may rely on such information. Moreover, the Court finds that the
radiology reports’ probative value in assisting the jury to weigh the Dr. Kulkarni’s opinion
substantially outweighs any risk of prejudicial effect.
Defendant’s motion to bar Dr. Kulkarni from testifying as to disc herniations will
therefore be denied.
Accordingly, for the reasons discussed above,
IT IS on this 18th day of November 2020,
ORDERED that Defendant’s motion to bar Plaintiff’s property damage claim [ECF 35]
is DENIED WITHOUT PREJUDICE; and it is further
ORDERED that Defendant’s motion to bar Plaintiff’s wage loss claim [ECF 36] is
GRANTED IN PART and DENIED IN PART; and it is further
ORDERED that Defendant’s motion to bar Plaintiff’s expert Dr. Vijaykumar Kulkarni
from testifying about disc herniations [ECF 37] is DENIED.

s/ Stanley R. Chesler
STANLEY R. CHESLER
United States District Judge

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