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Tuesday, July 31, 2012

Jung Kyung v. Neiman Marcus Group Inc.

                                                                                 SUPERIOR COURT OF NEW JERSEY
                                                                                APPELLATE DIVISION
                                                                                DOCKET NO. A-3485-10T1


July 13, 2012

Submitted March 6, 2012 – Decided

Before Judges Payne, Reisner and Hayden.

On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-0843-09.

Psak & Associates, attorneys for appellant (George L. Psak and Andrew S. Turkish, on the brief).

Respondent has not filed a brief.


Based on a slip and fall injury that occurred on September 24, 2008, a jury returned a verdict of $75,000 in favor of plaintiff Jung Kyung, and apportioned fifty-one percent of the liability to defendant Neiman Marcus Group. Defendant appeals from the February 10, 2011 final judgment and from several pre-trial orders entered in the case. For the reasons that follow, we affirm.
This was the most pertinent trial evidence. Plaintiff testified that on September 24, 2008, sometime between 4:00 p.m. and 4:30 p.m., she was shopping in Neiman Marcus at the Garden State Plaza in Paramus. She recalled at the time she was wearing "white leather" sneaker-type shoes. According to plaintiff, she went into the Dior handbag section of the store, where she tripped on an uneven section of carpet and was injured1:
My friend wanted to purchase a handbag, so we were just looking around to see what was there and it’s during that time between 4:30 p.m. and 5:00 p.m. . . . I tripped on a carpet. And . . . I didn’t want to fall so I was making fast steps not to lose balance and I noticed that there was a showcase that had legs and it was made of metal. I struck my knee . . . against the leg of that showcase and I tried to keep my balance and I used my left arm.

Plaintiff testified that at first she did not realize she was seriously injured, and she walked around for a few more minutes and did more shopping. At some point, however, she realized that her knee was becoming painfully swollen and she needed to sit down.
On cross-examination, plaintiff testified that she "actually fell to the ground." She said she "felt disoriented" and was in "a lot of pain." Plaintiff recalled "[o]ne of the employees came over to me and helped" her up. Plaintiff testified the employee who initially helped her up was a "young, Caucasian woman" with "light colored hair," possibly "blonde." She testified that "someone told me to sit down" in a chair that was brought to her. According to plaintiff, she observed that the carpet area where she tripped "had a different feel . . . it was flusher" and caused her to lose her balance.
After the fall, plaintiff did not leave the handbag department until she reported the incident to the store’s security guard, a "Hispanic" man named "Josh" who offered to call her an ambulance, which she declined. She testified that, at the time, she did not realize her "condition was so severe." Plaintiff made out a report and left the store with the help of a friend.
Dolores Dunnigan, a former Neiman Marcus employee whom defendant subpoenaed to testify at the trial, recalled that on the late afternoon of September 24, 2008, she was working in the accessory department, and she sold plaintiff a hat. She identified herself and plaintiff in a segment of the store's security video dated September 24 at 5:07 p.m. Notably, Dunnigan identified a woman named "Alex" who was working in the same area. She later confirmed that the woman's full name was Alexandra.
Dunnigan testified that she left the accessory department at some point and was gone until 5:23 p.m. while she went to the alterations department, probably looking for a box for the hat plaintiff had purchased. Looking at the video, Dunnigan recalled that when she returned with some boxes, she noticed that "something was wrong" with plaintiff. She "remember[ed] clearly" seeing that plaintiff "had a bump on her knee." Dunnigan recalled seeing plaintiff's injury, "because I had fallen the week before and gotten the same kind of bump on my leg" but recovered completely. Plaintiff told Dunnigan that she hit her knee on the metal leg of a table next to the cash register. Plaintiff did not mention falling, but Dunnigan explained that in the video, she can be seen comforting plaintiff and "probably just telling her how that had happened to me and . . . probably you don't need to be concerned."
Dunnigan asked the other sales woman, "Alex," to call security. Watching the video as she testified, Dunnigan recalled that "Josh" from security arrived in response to Alex's phone call and he spoke to plaintiff and Alex. She identified Josh in the video, "asking Alex what happened." According to Dunnigan, Alex was a more senior salesperson who "was training" her.
Joshua Luis, a Neiman Marcus loss prevention officer, testified that he received a telephone call on September 24, 2008, "that someone injured themselves and they needed someone to come out and . . . see if they need any help." He testified that "the first thing I did was . . . focus the [security] cameras into the general area where they called and said the injury had happened, and then located the person that had been injured, and then responded by coming out to the call." When he arrived, he saw plaintiff sitting on "a little step stool in the corner."
According to Luis, plaintiff said "she tripped over the counter and hit her leg." He gave her an "ice pack for her knee" and interviewed her about what happened. He observed that plaintiff had a baseball-sized "bump" on her knee. She declined his offer to call an ambulance, and he gave her "an ice pack for her knee." After providing plaintiff with the ice pack, he returned to his office to review the store's surveillance video to find the point when plaintiff entered the handbag area where she allegedly fell.
Luis testified that the store's policy required that as soon as an accident was reported, security staff was to find and preserve the store's security video of "the person . . . entering the department that they were injured in, the actual[] injury itself occurring, and then [the person] leaving the department." According to Luis, he re-wound the security video "from the time that I left the area to the point where I have her visibly entering the . . . Dior department." He testified that the video started with plaintiff "walking from the accessory department into the Dior department." At that point, the trial judge allowed defendant to admit the video into evidence and to play it for the jury. As it was shown, Luis explained that the video began at 5:07 p.m. According to Luis, when staff reviewed security videos, they could record "different segments of the video . . . and burn them onto a CD [to] save them." After three months, any un-saved videos would be over-written, thus destroying the original content. He admitted he did not preserve any of the videotapes from prior to 5:07 p.m., including any tape of plaintiff entering the accessories area. He also admitted that he did not check all of the store's video cameras to see if there was any additional footage of plaintiff.
In the video, Luis identified the store employee named Alexandra, whom he testified no longer worked there. She was the employee who actually called in the report of plaintiff's injury. Luis admitted that although he had previously answered interrogatories asking for the names of persons with knowledge about the case, he had never previously revealed Alexandra's name or her connection to the case.
Plaintiff called an expert engineer, Michael Natoli, who testified that the floor of the Dior handbag section was covered with three different levels of carpeting, going from a flat Berber carpet to a much more plush carpet, and that the difference in height between the types of carpeting created a tripping hazard. Over defense objection, the court permitted Natoli to testify that he measured the difference in the height between one area of carpeting and another, and found a difference of more than a quarter inch. He also testified that several different construction codes required flooring to be flush, providing a flat-plane walking surface.
On cross-examination, Natoli explained that when he examined the carpet, he made measurements, which were reflected in his notes but not in his report. However, he insisted that the photographs he took of the carpet illustrated the height differences that he measured. Defense counsel questioned Natoli at length about his testimony that he measured the carpet but did not include the measurements in his report.
Much of this appeal turns on evidentiary rulings. We review those decisions for abuse of discretion. Hisenaj v. Kuehner, 194 N.J. 6, 10 (2008); Benevenga v. Digregorio, 325 N.J. Super. 27, 32 (App. Div. 1999), certif. denied 163 N.J. 79 (2000). We will reverse a trial court's evidentiary findings when they are "so wide of the mark that [they result] in a manifest denial of justice." Bitsko v. Main Pharmacy, Inc., 289 N.J.Super. 267, 284 (App. Div. 1996).
In Points I and II, defendant argues that the judge who handled pre-trial motions in the case erred in granting plaintiff's spoliation motion, and a second judge (the trial judge) should not have followed that ruling. Point III contends that the trial judge erred in giving the jury aClawans2 charge concerning drawing an adverse inference from defendant's failure to call a witness. In Point IV, defendant argues that Natoli should not have been permitted to testify about his measurements of the carpet or to refer to photographs of areas of the carpet other than the area where plaintiff claimed she fell. Defendant also argues that its counsel should have been permitted to use the security video to cross-examine plaintiff, and that plaintiff's counsel improperly "injecte[d] the issue of insurance into the case." Finally defendant argues that "the sanctity of the jury deliberations was violated."
Having thoroughly reviewed the record, including the entire trial transcript, we find no abuse of discretion in the judges' evidentiary rulings and we find no other errors in the conduct of the trial. Without exception, defendant's appellate arguments are entirely without merit, and, except as discussed below, they do not warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).
We begin by considering the expert testimony. Defendant contends that Natoli should not have been permitted to give testimony about carpet measurements that were not in his report, or to refer to photographs that were barred in pre-trial rulings. We disagree.
In extensive argument before the trial judge on December 20, 2010, it became clear that some of the barred photographs depicted Natoli using a ruler to measure the carpet. Although the photos showed torn carpet in an area where plaintiff did not fall, and hence they could not be shown to the jury, the judge found they lent credibility to Natoli's testimony that he also measured the carpet in the area where plaintiff fell. He rejected the argument that the defense was surprised by Natoli's testimony about taking measurements, because the photos put counsel on notice that Natoli measured the carpet during his inspection. He also ruled that it was for the jury to evaluate Natoli's testimony concerning his observations of the height of the carpet where plaintiff fell.
Later in the trial, on January 3, 2011, the judge denied defendant's motion for a directed verdict, concluding that Natoli had not rendered a net opinion. We find no abuse of discretion or other error in these rulings and we affirm substantially for the reasons stated by the trial judge.
We turn next to the spoliation issue. In response to a motion made before the trial, a previous judge (not the trial judge) had ruled that the defense could use the security video to establish that plaintiff was not injured by her fall. But he also ruled that if the defense claimed that plaintiff did not actually fall inside the store, then plaintiff was entitled to a spoliation charge, telling the jury that defendant destroyed a portion of the video. That was consistent with plaintiff's contention that the portion of the video that the defense produced in discovery did not include the time when plaintiff claimed she fell and, as importantly, did not show her entering the area of the store where she claimed she fell.
The trial judge followed and reaffirmed the ruling of the first judge. During oral argument on December 20, 2010, the trial judge viewed the security videotape, which showed plaintiff sitting and walking in the handbag department, apparently after she was injured. After listening to further comments from counsel, the judge was not persuaded by defense counsel's argument that earlier video footage of plaintiff simply did not exist. He found no reason at that point to revisit the first judge's ruling on the spoliation issue.
As the trial judge observed during further argument on January 3, 2011, "[y]ou don't have to be genius to know that's not a complete video . . . it just starts at a certain point and ends at a certain point. There might be video before, might be video after." The judge ruled, however, that he would allow Luis to testify about the video and would decide thereafter what instruction to give the jury about it.
On January 5, 2011, before charging the jury, the judge entertained additional argument about the spoliation issue. He determined to follow the prior judge's ruling as the law of the case, that if the defense chose to introduce the video in evidence to challenge whether plaintiff fell in the area depicted by the video, plaintiff would be entitled to a spoliation charge. In making his ruling, the trial judge noted for the record that he did not find Luis to be a credible witness on the issues of how he produced the security video, how he investigated plaintiff's allegations, and what security videos were available. In other words, having heard the testimony about the creation of the video the defense produced, the trial judge found no basis to second-guess the first judge's decision.
In further discussing the jury charge, the trial judge embellished his findings on the spoliation issue:
[T]his court agrees with [the first judge] that it was not a complete tape. [Luis] picked what he wanted, and he showed what he wanted. [Plaintiff] had to get in the store, she had to be there, she had to be assisted by Dunnigan before. Dunnigan said, I assisted with the hat. None of that appears. So he did pick and choose what he wanted.

The trial judge therefore reaffirmed that he would give a spoliation charge that "this evidence was intentionally destroyed as alleged by the plaintiff." However, he did not preclude defense counsel from addressing the issue in his summation.
Having reviewed the record, we are satisfied that the trial judge duly considered the first judge's decision on the spoliation issue, but also made his own independent findings on the issue for reasons he cogently stated on the record.3 We find no abuse of the trial judge's discretion in giving the spoliation charge. See Aetna Life and Cas. Co. v. Imet Mason Contractors, 309 N.J. Super. 358, 365 (App. Div. 1998) (we review for abuse of discretion a judge's decision to impose sanctions for spoliation).
Spoliation "is the term that is used to describe the hiding or destroying of litigation evidence, generally by an adverse party." Rosenblit v.Zimmerman166 N.J. 391, 400-01 (2001). A traditional remedy for spoliation is an adverse inference charge, which "essentially allows a jury in the underlying case to presume that the evidence the spoliator destroyed or otherwise concealed would have been unfavorable to him or her."Id. at 401-02. As in this case, "where an adversary has intentionally hidden or destroyed (spoliated) evidence necessary to a party's cause of action and that misdeed is uncovered in time for trial, plaintiff is entitled to a spoliation inference that the missing evidence would be unfavorable to the wrongdoer." Id. at 411.
"A second and more traditional remedy generally available against a party who destroys evidence is the discovery sanction," which may include limiting or precluding the wrongdoer's ability to use evidence at trial. Id. at 402. Precluding defendant from using the video to cross-examine plaintiff, subject to defendant's right to re-call plaintiff after the judge further considered the spoliation issue, was an example of this type of sanction.
The record before the trial judge gave rise to a reasonable inference that Luis selectively chose which portions of the security video to keep and that he excluded and allowed the store to destroy (over-record) portions covering the time period when plaintiff fell. There was no need to hold a separate evidentiary hearing on the spoliation issue; the trial judge heard and evaluated Luis's testimony during the trial, and found it not credible. See Hirsch v. Gen. Motors Corp., 266 N.J. Super. 222, 262-63 (Law Div. 1993).
Defendant's argument that it "was never asked to preserve the surveillance footage from the date of the accident" is disingenuous. Luis knew immediately after the incident that plaintiff claimed she fell and was injured on defendant's premises; the obvious purpose of saving the security videos was to address possible future litigation. Clearly defendant had a duty to preserve this critical evidence. Aetnasupra, 309 N.J. Super. at 368; Hirschsupra, 266 N.J. Super. at 249.
It is also clear from this record that defendant wrongfully failed to disclose to plaintiff the identity of Alexandra, the blonde saleswoman who reported the incident to Luis. Further, although the defense called Dunnigan, a former employee, to testify, defendant did not call Alexandra as a witness. According to Dunnigan's testimony, Alexandra was in a position to see how plaintiff was injured, and Dunnigan stated that Alexandra was the employee who told Luis what happened to plaintiff. Luis confirmed that Alexandra was the employee who reported the accident; yet he admitted that in answering plaintiff's interrogatories, he never mentioned her. Defendant provided no explanation for the failure to call Alexandra as a witness, apart from an unconvincing argument that she would not know anything about the incident. We find no error in the trial judge's decision to give a Clawans charge. See Wild v. Roman, 91 N.J. Super. 410, 415 (App. Div. 1966).
Defendant's remaining arguments - concerning plaintiff's cross-examination; a brief reference to the fact that one of the defense experts gave seminars to two insurance companies; and a claim that the jury deliberations were conducted in informal fashion - are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). We add the following comment. On cross-examination, the defense medical expert was discredited with evidence that he essentially gave the same formulaic opinions in many cases and made $800,000 a year testifying as a defense expert. The question about his giving seminars to insurance companies was a passing reference in a very long cross-examination. The judge gave the jury an appropriate curative instruction concerning insurance. On this record, there is no possibility that a brief reference to insurance company seminars, designed only to elicit the expert's possible bias, could have produced a miscarriage of justice. R. 2:10-2.

1 Each side presented expert medical testimony concerning plaintiff's injuries and prognosis, but we need not address that testimony here because the quantum of damages is not in issue.

2 State v. Clawans38 N.J. 162, 171 (1962).
3 As a result, the first judge's failure to issue a statement of reasons for the spoliation order is a non-issue, and defendant's argument concerning application of the law-of-the-case doctrine is without merit.