Profile of the performer Oswaldo Montenegro: Oswaldo Viveiros Montenegro (Rio de Janeiro, March 15, 1956) is a Brazilian musician. In addition to being a singer, Montenegro has composed soundtracks for plays, ballets, film and television and were married to actress Paloma Duarte. It has one of the stronger partnerships MPB beside Madalena Salles, accompanying with their flutes.
Born in the neighborhood of Grajau, Oswaldo is an exceptional case of early music. Having never studied music regularly, from early childhood began to be influenced by it. First, in his parent's home in Rio de Janeiro: her mother and her parents played piano, his father played guitar and sang.
The second influence was stronger. At age eight, he moved with his parents to São João del Rei, a mining town and bohemian poetry, where the serenades happened every night and people joined friends at home to spend the nights playing and singing. At the same time Oswald was attracted to the music of the baroque churches. At this time, he had guitar lessons with one of the city serenaders and composed his first song, Lenheiro, name of the river that runs São João del Rei. He won a music festival with just 13, in Rio de Janeiro, where he returned to live.
The decision to become a professional musician came with the move to Brasilia in 1971. In the federal capital, began to make contact with festivals and theater groups and dance student. He made his first concert at age 17 and a decision to live music has become final. He moved back to Rio, but had already adopted Brazil as the land of his heart and constant theme of his work. Also preferred partners were friends he made there, as José Alexandre, Mongol and Madalena Salles, among others.
It was also in Brasilia who came into contact with classical music concerts in the Teatro Nacional. Do not just watch the concert with his musician friends, including the Maestro Octavio Maul and Prista Tavares family, but enters the nights talking about musical technique and theory. Autodidact, devouring books on music history.
From there, living in Rio, but with eyes and heart put into Brasilia, his career took off. Music has ranked in the final of the Festival da Canção of Rede Globo, the first national impact that participates (1972), wrote and staged his first musical (1974-1975), released three albums in three years (1975-78) and wins TV Tupi Festival with his first blockbuster, Bandolins (1979).
In 1980, participates in and wins, the MPB 80 Festival of the Globo Television Network with the song "Agonia", from his childhood friend Mongol. Even with so much success, decides to return to Brasilia to set up in 1982, another musical show, "Veja Você, Brasilia", with local artists. Participate in this show the unknown Cassia Eller and Zelia Duncan. After this, would other parts of musical theater, a particularly well marked in the trajectory of a Brazilian musician and rescues an abandoned way of distributing music in the first half of the 20th century. More than 14 musical pieces, all public record and some, like "Noturno", "A Dança dos Signos" and "Aldeia dos Ventos", are on display for over 15 years and assemblies throughout the country.
In 1985 he participated in the Festival dos Festivals, also by Rede Globo, with the music "O Condor" with the accompaniment of a choir of 25 black singers. By 2006, they are 34 records. Their compositions are interpreted by Ney Matogrosso, Sandra de Sá, Paulinho Moska, Zé Ramalho, Alceu Valença, Zizi Possi, Zelia Duncan, Jorge Vercilo, Altemar Dutra, Gonzaguinha, Sivuca, Tania Maya, among others. Even the actress Gloria Pires sang in a special appearance on his record (1985).
In 1994, Oswaldo released his first book - O Vale Encantado - a children's book, the same year appointed by the MEC, through the University of Brasilia, to be adopted in schools for a degree. In 1997, adapting the book to video.
In 1995 released the CD "Aos Filhos dos Hippies" featuring Carlos Vereza and Geraldo Azevedo.
In 1997, Oswaldo finds Roberto Menescal. During the conversation, there is the theme of "MPB lyrics are true poems." Hence the idea of the CD "Letras Brasileiras". Menescal produces the CD, which is released the same year, and participates in the tour of the show. 97 Also in the video recording and releasing "O Vale Encantado" which tells the cast with the participation of Zico, Roberto Menescal, Fafy Smith, Luisa Parente, Maya and Tanya Salles Magdalene. It has also launched a CD of the same name. Spear, also in that same year, the CD of the show "Noturno" by Tai Human Talent Consultancy and Quality.
In 1998 he received the title of honorary citizen of Brasilia, awarded by the Legislative Assembly of Federal District. That same year, Oswaldo back to theatrical productions. Reassembles "Leo E Bia", a version more mature and consistent with the position that he currently has that story. Records self-titled CD, also with Menescal. Mounts, even with a cast of Brasilia, the 2nd version of "Aldeia dos Ventos".
In 1999, presents three shows at the Arena Theatre in Rio de Janeiro: "Leo E Bia," "A Dança dos Signos" and the upcoming "A Lista" with the participation of actress Barbara Borges and the singer Rafael Greyck, casting, this season, the last 2 CDs.
In 2000, celebrates the 20-year career with the show "20 Anos de Histórias" and the CD "Letras Brasileiras Ao Vivo" and "Escondido No Tempo". It is dedicated also to the series "Só Para Colecionadores" by independent CDs of very limited edition, sold only via Internet. This year fans create their first virtual fan club, the OMOL (Oswaldo Montenegro Online), where admirers of his work through a Web site and later in ORKUT, get together to chat and interact on his work and the work artists who worked with him. In Florianópolis rides the musical legends of the island with over 50 local artists including Paulinho Dias and Cleiton Profeta do Circus Musicalis.
In 2001 SP rides on the play "A Lista" with the participation of Bruno Di Tullio and Mayara Magri in the cast.
In 2002 launched the CD "Estrada Nova" tour which hit a record attendance. This cd is recorded new songs together with Mongol.
In 2003 rewrites the trail of a new "Aldeia dos Ventos".
In 2005 released a CD and DVD "Oswaldo Montenegro - 25 Anos de História" that span, both the mark of 100 000 copies.
In 2006 launches on Canal Brasil, in partnership with Roberto Menescal, the "Letras Brasileiras" presented by both. The program was inspired by the CD and the show that Oswaldo Menescal presented in 1997 and throughout the country. Mounts in Rio de Janeiro to play "Tipos" and amounts of the Aldeia dos Ventos, featuring the actress Camila Rodrigues, with "Cia Aqui Entre Nós".
In 2007, launches the CD and DVD "A Partir de Agora", recording new songs with guests such as Alceu Valença, Zé Ramalho, Eduardo Costa, Diogo Guanabara and Mariana Rios. On TV, starts the second season of "Letras Brasileiras" alongside Roberto Menescal on Canal Brasil. In the theater, in partnership with his brother Detoo Montenegro, assembles the show "Tipos" along with the Oficina dos Menestréis de São Paulo.
In 2008 releases, the label Som Livre, a new DVD and CD called "Intimacy". They bring 16 well-known songs with a new arrangement prepared by the Montenegro, by Sergio Chiavazzoli and Alexandre Meu Rei "Lume de Estrelas" which was only written to disk "Asa de Luz" in 1981. On TV, starts the third season of "Letras Brasileiras" which features Roberto Menescal on Canal Brasil. In the theater, rides in Rio de Janeiro the show "Eu Não Moro, Comemoro" featuring Caio Ruas Miranda and Émile Dantas and "Projeto Canjas" which makes room for young talent to perform alongside established artists. At the end of the year, has some of his greatest hits compilation released in a 3-cds (BOX 3) by Warner Music.
In 2009 engaged in the formation of a group of musical montages combining singers, musicians, actors and actresses like Veronica Bonfim, Leo Pine, Sestri Rodrigo, Emilio Dantas, Cibelle Hespanhol, Louise Pitta, Renato Luciano, Larissa Landim and Shirlene Paixão, and premiere musical "Filhos do Brasil" at the Teatro do Jockey (RJ). St. Paul writes to his third DVD, "Quebra-Cabeça Elétrico" released in October.
In 2010 Festival do Recife premiere of his film "Leo e Bia" and released the CD "Canções de Amor".
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Healite® The First Life StoneTM is a piece of the Earth from The Cradle of Life in South Africa. This ancient land was the home of the First Life on this planet, a bacteria, and is called the Cradle of Life by the scientific community. The 'cradle' is situated between Pretoria and Barberton in South Africa, and is near "the Cradle of Mankind" where the most ancient human remains have been found (read more about this on our page The First Life Stone).
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text:
Orbea v. Butler
UNPUBLISHED OPINION. CHECK COURT RULES BEFORE CITING.
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.
Superior Court of New Jersey, Appellate Division.
LORETA ORBEA, Plaintiff-Appellant,
ROGER B. BUTLER, and PERFORMANCE LOGISTICS, LLC, Defendants-Respondents.
DOCKET NO. A-1177-17T2
Submitted October 22, 2018
Decided April 1, 2019
On appeal from Superior Court of New Jersey, Law Division, Hudson County, Docket No. L-1398-14.
Hegge & Confusione, LLC attorneys for appellant (Michael J. Confusione, of counsel and on the brief).
Thompkins, McGuire, Wachenfeld & Barry, LLP, attorneys for respondents (Joseph K. Cobuzio, of counsel and on the brief; Kimberly D. McDougal, on the brief).
Before Judges Sabatino and Mitterhoff.
*1 This matter arises from a jury verdict after the trial of plaintiff Loreta Orbea's personal injury lawsuit in which she sought damages for injuries she sustained in an August 28, 2013 motor vehicle accident. Although the jury found in her favor, plaintiff contends that the jury's award of $27,500 was inadequate to compensate her for her injuries and resulting pain and suffering. In that regard, plaintiff asserts that the pretrial judge erred in denying an extension of discovery and concluding that her significant ongoing treatment did not constitute exceptional circumstances as defined by Vitti v. Brown, 359 N.J. Super. 40 (Law Div. 2003). Relatedly, plaintiff asserts that the trial judge erred in excluding all evidence of treatment for back injuries after the 2013 accident, including evidence that she had recently undergone a two-level lumbar fusion.
We find that the effect of these two rulings deprived the jury of an opportunity to assess the full extent of plaintiff's alleged injuries and render its own determination as to the etiology of plaintiff's complaints and her need for surgery. Because the evidence was essential to a full and fair presentation of plaintiff's case, its exclusion was clearly capable of producing an unjust result. Accordingly, we reverse and remand for a new trial.
On August 28, 2013, plaintiff's car was stopped at a stop sign in a Target parking lot when a tractor-trailer driven by defendant Roger Butler, an employee of defendant Performance Logistics LLC, struck her vehicle. The impact allegedly pushed plaintiff's vehicle to the curb. In the year following the accident, plaintiff's complaints centered on her right shoulder, for which she ultimately received surgery to correct a rotator cuff tear on June 26, 2014.
Significant to the issues in this appeal, plaintiff was involved in an earlier 2009 car accident in which she sustained injuries. In 2012, plaintiff had a lumbar fusion surgery related to the 2009 accident performed by Dr. Frank Moore. Although she did not immediately experience complaints related to her lumbar spine after the 2013 accident, plaintiff testified at her deposition that sometime in or around 2014 she returned to Dr. Moore complaining of a recurrence of back pain. Dr. Moore ordered follow up radiological studies and prescribed pain medication. In December 2015, plaintiff saw Dr. Louis Quartaroro of New Jersey Spine Institute, again complaining of severe lower back pain and swelling.
During plaintiff's March 2016 deposition, she testified that:
I started feeling my lower back pain again. My back started getting swollen. A year after I had the fusion I was able to get up to see or if I was watching TV I was able to get up like normal. A year after I had this then the pain came back. I wasn't able to get up like I used to. The pain gets down my butt and then my leg and I feel like something is rubbing like two bones rubbing to each other.
On June 16, 2016, plaintiff consulted Dr. Steven P. Waldman, M.D., a board certified pain management doctor, to address her worsening lumbar complaints. Dr. Waldman concluded that in addition to the rotator cuff tear, plaintiff sustained an exacerbation of her prior disc injuries as a result of the August 28, 2013 accident.
*2 As a result of her worsening lumbar complaints, Plaintiff filed a motion to reopen discovery returnable June 10, 2016. While the motion was pending, the June 1, 2016 discovery end date expired. On June 8, 2016, the parties attended a case management conference with the presiding judge of the civil division, in which plaintiff's counsel alerted the court that plaintiff was now considered a potential candidate for spinal surgery. Counsel advised that a motion returnable June 10, 2016 was pending, which sought to reopen and extend discovery to address plaintiff's ongoing treatment. On June 10, 2016, nine days after the discovery period had expired, the presiding civil judge denied plaintiff's motion, noting on the order that
Motion is untimely filed under R. 4:24-2. Information on joint fusion surgery is too vague and of dubious causal connection to this accident. Lack of exceptional circumstances. Removed from arbitration.
The judge did not categorically rule out that discovery might be extended if plaintiff actually had the surgery, having noted two days before at the June 8, 2016 case management conference that "[I] typically don't grant motions like this when someone has a recommendation for surgery but not an actual date scheduled."
Thereafter, the trial was adjourned three times, once by plaintiff, once by defendant, and once due to court error. In an April 24, 2017, letter plaintiff's counsel advised the judge and defense counsel that plaintiff had undergone a two-level lumbar fusion on March 31, 2017 and requested an opportunity to reopen and extend discovery. In an April 26, 2017 telephonic case management conference, defense counsel strenuously objected to this last-minute request, asserting he had reasonably relied on the court's June 10, 2016 order denying an extension of discovery, and in particular the court's finding in June 2016 that there was a dubious causal relationship between plaintiff's lumbar condition and the 2013 accident. In response, the judge responded that defense counsel was "reading too much into my order." The judge stated:
[Plaintiff's counsel is] right to point out that the June 2016 order merely denied an extension of discovery. It didn't bar any claims or proofs, it just – I didn't see enough at that time to extend things and reopen it. So there isn't an appellate panel in this State that would countenance me telling you, too bad, see you next Tuesday, try your case and she doesn't get to talk about her surgery. It's just not going to happen, nor should it. It wouldn't be fair.
[ (Emphasis added).]
The court adjourned the trial and directed plaintiff's counsel to make a formal motion to reopen discovery.
On June 7, 2017, plaintiff's counsel filed a motion to reopen and extend the discovery end date. In support of the motion, plaintiff's attorney certified that plaintiff had undergone a two-level lumbar fusion on March 31, 2017. The certification attached as exhibits medical records of consultations and testing in the five months prior to the surgery, as well as the operative report of the surgery itself. Counsel certified that this significant ongoing treatment was an exceptional circumstance that warranted relief reopening and extending discovery. By order dated June 23, 2017, the court denied the motion for failure to attach a copy of the prior order as required by Rule 4:24-1(c). Plaintiff's counsel did not rectify this failure by supplying the court with the missing order or otherwise seeking reconsideration at any time prior to the new trial date.
Trial was then scheduled for September 25, 2017. The trial judge granted defendants' motion in limine to exclude all testimony regarding plaintiff's back injury at trial. The trial judge observed that he did not have much discretion because of the presiding judge's June 23, 2017 ruling. The ruling in limine excluded any and all references to complaints or treatment related to plaintiff's back. Plaintiff indicated that she would respect the judge's ruling, but commented, with the court's permission and without objection, that
*3 If I cannot mention the surgery because I had the surgery too late when I found a good doctor, it is okay. I am willing not to mention that.
But I don't think it is fair that I cannot say all the pain that I have gone through because of this accident including my back which is the main problem I have as of right now.
I have a shoulder problem, yes, but my back, it is incredible that I cannot say what happened to me in that accident, and just because I have a pre-existing condition, yes, I did have a fusion before, but that accident, because of that accident I had another fusion…[.]
The trial judge, however, adhered to his ruling that "the back is not part of this case" and "essentially this is a torn rotator cuff case."
Defendant conceded liability in opening statements and the trial proceeded on the issue of damages and proximate causation. Plaintiff testified about the happening of the accident and her treatment for her right shoulder injury, which included physical therapy, medication and arthroscopic surgery. Consistent with the court's ruling in limine, plaintiff did not testify about her recent back surgery or any back complaints or limitations after the 2013 accident.
On cross-examination, defense counsel selectively took advantage of the limitation imposed by the court by impeaching plaintiff's credibility using records from her 2009 accident related to shoulder and back complaints, while deliberately omitting any reference to plaintiff's recent treatment related to her back.
Q: Ms. Orbea, I want to focus on before this accident. August—before August 28, 2013. I want to focus on the accident where you were involved where you were hit by a drunk driver in 2009.1
Q: And the accident was a rear end hit, pushed you into another vehicle, and you sustained injury, is that correct?
A: Yes, I did.
Q: And we are referring to it for this trial as other problems, the injuries you sustained in that accident. That is what your testimony was, the other problems, correct?
A: Could you repeat that question?
Q: Yes. You have used twice, one where you were describing the Vicodin that you are taking, that you also take it for other problems.
Q: Do we have an understanding?
A: I don't have an understanding.
Q: The injuries you sustained in the drunk driver that you sustained in 2009 we are referring to as "other problems" in this trial, is that correct?
A: Do I have to say the truth?
Q: Correct, yes or no?
A: Don't—
Q: Don't get caught?
Q: I will repeat the question, Ms. Orbea. The injuries you sustained in 2009 as a result of being rearended by a drunk driver we are calling for today's trial the "other problems," is that your testimony?
A: No, that is not my testimony.
The jury then heard testimony from plaintiff's treating doctor Fred Lee, M.D., and the defense examiner, Thomas Edward Helbig, M.D. Both physicians testified about their physical examinations, review of MRI films and x-rays, Dr. Lee's treatment and their respective opinions about diagnosis, causal relation, and prognosis for plaintiff – all carefully limited to the right-shoulder injury in accordance with the trial court's ruling.
*4 After trial, the jury returned a verdict in favor of the plaintiff, finding by a vote of six to zero that plaintiff sustained an injury that was proximately caused by the accident, and fixing damages, again by a vote of six to zero, at $27,500. This appeal followed.
Denial of motion to reopen discovery
On appeal, plaintiff first contends that the trial court erred in denying her June 23, 2017 motion to reopen discovery. The decision whether to reopen or extend the period of discovery is reviewed for abuse of discretion. Leitner v. Toms River Reg'l Sch., 392 N.J. Super. 80, 87 (App. Div. 2007). "Our standard of review is limited to a determination of whether the trial court mistakenly exercised its discretion in denying plaintiff's motion for an extension of the discovery period under R. 4:24-1(c)." Huszar v. Greate Bay Hotel & Casino, Inc., 375 N.J. Super. 463, 471-72 (App. Div.), certif. granted and remanded, 185 N.J. 290 (2005).
Our system of justice favors the fair disposition of cases on their merits. See Viviano v. CBS, Inc., 101 N.J. 538, 547 (1986); Stanley v. Great Gorge Country Club, 353 N.J. Super. 475, 486 (Law Div. 2002). On the other hand, the system also strives to make litigation "expeditious and efficient." Leitner, 392 N.J. Super. at 91. The Rules of Court are designed to achieve, among other goals, certainty in trial dates. Ibid. As we have recognized, however, exceptional circumstances can arise, where trial dates or other litigation deadlines should be extended in the interests of justice and to avoid punishing litigants unfairly. Id. at 91-94. The fair balance between fairness and trial-date certainty is reflected in Rule 4:24-1(c) governing extensions of discovery, which provides in pertinent part:
The parties may consent to extend the time for discovery for an additional 60 days by stipulation filed with the court or by submission of a writing signed by one party and copied to all parties, representing that all parties have consented to the extension. If the parties do not agree or a longer extension is sought, a motion for relief shall be filed … and made returnable prior to the conclusion of the applicable discovery period. … [I]f good cause is otherwise shown, the court shall enter an order extending discovery. … No extension of the discovery period may be permitted after an arbitration or trial date is fixed, unless exceptional circumstances are shown.
Because the Rule does not define "exceptional circumstances," in Vitti, the court set forth a four-part test that must be satisfied in order to establish "exceptional circumstances." 359 N.J. Super. at 51. Specifically, a party must show
(1) why discovery has not been completed within time and counsel's diligence in pursuing discovery during that time; (2) the additional discovery or disclosure sought is essential; (3) an explanation for counsel's failure to request an extension of the time for discovery within the original time period; and (4) the circumstances presented were clearly beyond the control of the attorney and litigant seeking the extension of time.
[Rivers v. LSC P'ship, 378 N.J. Super. 68, 79 (App. Div. 2005) (citing Vitti, 359 N.J. Super. at 51).]
Plaintiff must provide "[a] precise explanation that details the cause of delay and what actions were taken during the elapsed time[.]" Bender v. Adelson, 187 N.J. 411, 426 (2006).
*5 In Vitti, the defendants made a motion to extend discovery "more than six weeks after the discovery end date." 359 N.J. Super. at 42. The defendants, believing the plaintiff would release them after settling with the codefendant, did not depose the plaintiff or obtain its own independent medical examination. Id. at 43. The court found that the plaintiff never indicated that he was abandoning his claims against Brown and that defense counsel's miscalculation of the risk that the plaintiff would proceed against his client after settling with the codefendant did not rise to exceptional circumstances under the rule. See id. at 52-53. The court found that although deposing the plaintiff and obtaining an independent medical examination would be "helpful" to the defendant's case, the sought-after additional discovery was not essential, and the defendant offered no explanation for his failure to pursue any discovery whatsoever in the time provided. Ibid.
The Vitti court contrasted the facts in that case with cases involving significant ongoing medical treatment after a trial or arbitration date is fixed.
There may be any number of situations in which one may be able to establish exceptional circumstances relatively simply. There is one problem often encountered in personal injury litigation that illustrates that point. It is not unusual for a personal injury claimant to be involved in ongoing medical treatment or diagnosis, as litigation is proceeding through discovery, which might result in some sudden and unexpected change in the claimant's condition. Typically, a claimant may be presented with the need for surgery which had not been anticipated. To the extent those developments were reasonably anticipated during the discovery period, one would expect an application to extend the time for discovery to be filed before discovery ends. Assuming the additional treatment or new diagnosis truly requires discovery or disclosure, good cause could easily be established. Similarly, it would not be difficult to establish exceptional circumstances, if the treatment or diagnosis could not have been anticipated during the discovery period. In that circumstance, it could presumably be established that the attorney and litigant had no control over the situation. The failure to complete the discovery at issue within the original discovery period and the failure to file the motion to extend within that time could be easily explained.
[Id. at 52 (emphasis added).]
This case presents the factual scenario envisioned by the court in Vitti. Plaintiff's back complaints were evolving throughout the litigation, and she was receiving ongoing treatment for her back. That treatment unexpectedly culminated in plaintiff's undergoing a two-level lumbar fusion in March 2017. Although plaintiff had been deemed a potential candidate for surgery in June 2016, the court at that time denied the motion to extend, noting the uncertainty of when if ever plaintiff would actually undergo the procedure, and the perceived insufficiency of proof that the 2013 accident was a causal factor of plaintiff's back complaints.
In the interim, plaintiff repeatedly amended her interrogatories with new information regarding her medical treatment accompanied by the appropriate certification pursuant to Rule 4:17-7, which provides:
Except as otherwise provided by R. 4:17-4(e), if a party who has furnished answers to interrogatories thereafter obtains information that renders such answers incomplete or inaccurate, amended answers shall be served not later than 20 days prior to the end of the discovery period, as fixed by the track assignment or subsequent order. Amendments may be allowed thereafter only if the party seeking to amend certifies therein that the information requiring the amendment was not reasonably available or discoverable by the exercise of due diligence prior to the discovery end date. In the absence of said certification, the late amendment shall be disregarded by the court and adverse parties. Any challenge to the certification of due diligence will be deemed waived unless brought by way of motion on notice filed and served within 20 days after service of the amendment. Objections made thereafter shall not be entertained by the court. All amendments to answers to interrogatories shall be binding on the party submitting them. A certification of the amendments shall be furnished promptly to any other party so requesting.
*6 [ (Emphasis added).]
Defendants never formally objected to the amendments, based on their intention to move to bar the materials at trial in reliance on the court's June 10, 2016 and June 23, 2017 orders.
When plaintiff underwent the surgery on March 31, 2017, plaintiff's counsel promptly moved to reopen discovery. As noted, the motion was denied based on a procedural deficiency- the failure to attach the prior order extending discovery as required by Rule 4:24-1(c). It would have been preferable for plaintiff's counsel to cure the deficiency by supplying the omitted order or otherwise moving for reconsideration, and his failure to do so undoubtedly contributed to the trial court's having never addressed the substantive issue as to whether exceptional circumstances existed to warrant reopening discovery. In light of the magnitude of the impact in this particular case of disallowing post-surgery discovery, however, we will address the issue whether plaintiff had shown exceptional circumstances to extend discovery, the denial of which warrants a new trial.2
Here, addressing the four prongs of the exceptional circumstances test, it is clear that the reason discovery was not completed within the initial discovery period was because most of plaintiff's significant treatment occurred after the discovery end date had expired; indeed, the lumbar surgery occurred only a couple of months before the final motion to reopen discovery was filed. Plaintiff was reasonably diligent throughout the litigation in obtaining reports and serving medical discovery as it became available. Cf. Rivers, 378 N.J. Super. at 80-81 (exceptional circumstances not established where plaintiff's counsel failed to pursue discovery from defendant and obtain an expert report in a timely manner). Plaintiff cooperated by appearing at depositions and defense exams as requested. The timing of the surgery was beyond the control of the litigant, and the evidence was essential to a fair and complete presentation of her injuries to the jury. Unfortunately, because the court denied the motion based on a procedural deficiency, the court never analyzed whether or not plaintiff had met the exceptional circumstances standard, a standard the court preliminarily suggested would be met at the April 26, 2107 telephonic conference. Nonetheless, on the specific facts of this case, we find that the motion should have been granted as there were exceptional circumstances as defined by Vitti warranting a brief extension of discovery. The denial of such relief was a rare misapplication of discretion, albeit aided by plaintiff's failure to attach prior orders to the motion papers.
The court's order in limine barring introduction of any evidence of plaintiff's back complaints or treatment
*7 For the same reasons, the trial court's reliance on the June 23, 2017 order to bar any mention of complaints or treatment to the back deprived plaintiff of a fair and just adjudication of the merits of her claims.
With respect to the trial court's evidentiary rulings, we generally will not set them aside unless the court has abused its discretion, including with respect to issues of the admissibility of expert opinion. Hisenaj v. Kuehner, 194 N.J. 6, 16 (2008); see also Dinter v. Sears, Roebuck & Co., 252 N.J. Super. 84, 92 (App. Div. 1991). Trial errors that were brought to the attention of the court are reviewed for harmful error. "Any error or omission shall be disregarded by the appellate court unless it is of such a nature as to have been clearly capable of producing an unjust result [.]" R. 2:10-2. Thus, if a trial court is found to have abused its discretion, or otherwise erred, we must then determine whether that error amounted to harmful error. State v. Prall, 231 N.J. 567, 581 (2018).
Allowing the introduction of the back surgery evidence may have significantly changed the calculus of the trial. At the outset, the court's in limine ruling prevented plaintiff from explaining, in response to questions on cross-examination, that some of her current complaints and need for medication were related to her recent lumbar fusion, while defense counsel remained free to suggest, unchallenged, that all of plaintiff's "other problems" stemmed from the 2009 accident. Moreover, while it is uncertain what credence the jury would have given the excluded evidence, barring all of the evidence was clearly capable of creating an unjust result. As plaintiff's back complaints were severe enough to require surgery prior to trial, the jury should have been able to consider plaintiff's back injuries and make its own determination whether those injuries were causally related to the accident. In that regard, we cannot say with any degree of confidence that the jury award reflected a complete assessment by the jury of plaintiff's condition. That is particularly so in a case where defendant conceded liability and the jury unanimously found that plaintiff suffered injuries proximately caused by the accident and unanimously awarded her damages.
We are sensitive to the trial court's desire and obligation to expeditiously move cases. See R. 1:33-6(b) ("[T]he Presiding Judge of each functional unit within the vicinage shall be responsible for the expeditious processing to disposition of all matters filed within that unit."); see also R. 4:5B-2 (noting trial court's authority to conduct case management conference to "promote the orderly and expeditious progress of the case."). Moreover, we recognize that in this case, plaintiff's counsel's failure to seek reconsideration of the order contributed to the trial court's having never addressed the substantive issue whether exceptional circumstances existed to warrant reopening discovery.
However, as we have previously stated:
[W]e are satisfied that the rules remain equipped to allow a trial judge to render substantial justice in all cases and that where the court system is not in a position to schedule a meaningful arbitration or trial date, a sanction that results in a deprivation of a litigant's day in court on the merits is anathema to the fair and efficient administration of justice. We are reminded of Justice Clifford's apt comment that "[o]ur rules of procedure are not simply a minuet scored for lawyers to prance through on pain of losing the dance contest should they trip." Stone v. Old Bridge Tp., 111 N.J. 110, 125 (1988) (dissenting opinion). The rules do not exist for their own benefit. The rules, instead, are only a framework for the fair and uniform adjudication of cases brought into our system. Ragusa v. Lau, 119 N.J. 276, 283-84 (1990) (the rules "should be subordinated to their true role, i.e., simply a means to the end of obtaining just and expeditious determinations between the parties on the ultimate merits.").
*8 [Ponden v. Ponden, 374 N.J. Super. 1, 10-11 (App. Div. 2004).]
Thus, we conclude that under the particular facts of this case, the exclusion of the evidence regarding plaintiff's lumbar fusion deprived plaintiff of a fair adjudication of her case on the merits. Because the omission of this evidence was clearly capable of producing an unjust result, R. 2:10-2, we are constrained to reverse and remand for a new trial.
Defense cross-examination based on prior specific statements to her employer
Finally, Plaintiff argues that the verdict should be overturned based on defense counsel's cross-examination of plaintiff about her decision to not tell her employer, the North Bergen Board of Education, that she moved from North Bergen to Fairview. Plaintiff testified that she did not tell the Board about this move because there was a requirement that teachers live in North Bergen and she was concerned about losing her job. Defendants used this testimony to argue at closing that plaintiff is untruthful and that the jury should not trust her testimony. Because there was no objection to this aspect of the cross-examination or defense counsel's comments in summation, we must consider under a plain error standard whether admitting the evidence gave rise to a manifest justice requiring reversal. R. 2:10-2.
In State v. Scott, the Supreme Court reemphasized that N.J.R.E. 405 and 608 "preclude the use of specific instances of conduct to attack the credibility of a witness." 229 N.J. 469, 481 (2017). Rule 405 states "[s]pecific instances of conduct not the subject of a conviction of a crime shall be inadmissible" but specific instances may also be admitted "[w]hen character or a trait of character of a person is an essential element of a charge, claim, or defense." N.J.R.E. 405. Rule 608 provides that "a trait of character cannot be proved by specific instances of conduct" unless "otherwise provided by Rule 609 [Impeachment by Evidence of Conviction of Crime]" or attacking credibility of a witness based on "a prior false accusation against any person of a crime similar to the crime with which defendant is charged." N.J.R.E. 608. In Scott, the Court stated that "Rule 608 explicitly excludes specific instances of conduct as a means of proving a character for untruthfulness, permitting only opinion or reputational evidence." 229 N.J. at 483. Plaintiff also points out that evidence may be omitted when "its probative value is substantially outweighed by the risk … of undue prejudice." N.J.R.E. 403.
Defendants argue that they were entitled to impeach plaintiff, and that plaintiff opened herself up to this line of questioning because on direct she testified that she lived in Fairview. As defendants note, Rule 607 allows parties to "examine the witness and introduce extrinsic evidence relevant to the issue of credibility." N.J.R.E. 607. However, that rule is by its terms subject to the limitation in Rules 405 and 608.
Here, defendants' questions on cross-examination did not go to the truthfulness of plaintiff's testimony that she lives in Fairview. Cf. Allendorf v. Kaiserman Enters., 266 N.J. Super. 662, 674 (App. Div. 1993) ("[T]he evidence that plaintiff had episodes of passing out prior to the accident was admissible for the purpose of impeaching the credibility of her testimony that she was 'in perfect health' and had never had 'any problem with blacking out' prior to the accident."). Rather, the questions sought to elicit testimony that on some prior occasion plaintiff allegedly lied about living in North Bergen. Thus, rather than impeaching plaintiff's testimony at trial, defendants sought to introduce a specific instance of conduct to show plaintiff's general character for untruthfulness. Pursuant to Rules 405 and 608, as interpreted by Scott, this was clearly impermissible.
*9 Nonetheless, "if an issue was not raised below by a party's trial counsel, relief is not warranted unless that party demonstrates plain error by showing on appeal the error was 'clearly capable of producing an unjust result.'" Jacobs v. Jersey Cent. Power & Light Co., 452 N.J. Super. 494, 502 (App. Div. 2017) (quoting R. 2:10-2). Guided by the plain error standard, we do not find that the admission of the prohibited evidence was sufficient to warrant reversal in this case.
At the outset, "the '[f]ailure to make a timely objection indicates that [plaintiff's] counsel did not believe the remarks were prejudicial at the time they were made,' and it 'also deprives the court of the opportunity to take curative action.'" Risko v. Thompson Muller Auto. Grp., Inc., 206 N.J. 506, 523 (2011) (quoting Jackowitz v. Lang, 408 N.J. Super. 495, 505 (App. Div. 2009)). Moreover, defendants did not rely solely on the prohibited evidence to further their argument that plaintiff was untruthful. Rather, counsel cited to several other contradictions and/or inconsistencies between her statements to medical providers and her testimony at trial to show that plaintiff has a tendency to lie. Finally, and perhaps most tellingly, the jury returned a reward of $27,500 for a case that centered on a torn rotator cuff, which suggests the jury rejected defense counsel's argument that plaintiff could not be believed. Therefore, we decline to reverse the verdict based on the Rule 608 violation, which we presume will not be repeated at any retrial.
For the reasons expressed above, we conclude that plaintiff is entitled to a new trial based on the trial court's denial of an extension of discovery and ruling in limine excluding all evidence of plaintiff's treatment for back injuries after the 2013 accident.
Reversed and remanded for a new trial. We do not retain jurisdiction.
Not Reported in Atl. Rptr., 2019 WL 1452702
Although there was no objection to the repeated reference of a drunk driver in the 2009 accident, we observe that the driver's alleged intoxication was irrelevant and is ordinarily inadmissible. See Gustavson v. Gaynor, 206 N.J. Super. 540, 545 (App. Div. 1985).
Our decision should not be read as supporting a proposition that any post-discovery treatment would constitute exceptional circumstances; to the contrary, as defined by Vitti, it is only significant ongoing treatment that warrants an extension beyond that contemplated by the Rules of Court.
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#DesertStorm30 – Leading with Airpower
Ross in Air Power History, Article, Cold War, First Gulf War February 7, 2021 February 7, 2021 4,326 Words
By General John Michael Loh, USAF (Ret.)
Editorial Note: 2021 marks the 30th anniversary of Operation DESERT STORM. To mark this anniversary, during 2021, From Balloons to Drones will be publishing a series of articles that examine various aspects of DESERT STORM's air campaign. We will be publishing pieces throughout 2021, and if you would like to contribute to the series, please contact our Editor-in-Chief, Dr Ross Mahoney, at airpowerstudies@gmail.com or via our contact page here. The official call for submissions can be found here.
Over the coming weeks, From Balloons to Drones is pleased to be working in conjunction with the Mitchell Institute for Aerospace Studies to publish a series of articles on various aspects of the DESERT STORM air campaign. These articles were initially published as part of a Mitchell Institute of Aerospace Studies special report, Desert Storm: 30 Years Later – Lessons from the 1991 Air Campaign in the Persian Gulf War. You can download the report here.
In this latest instalment, we are pleased to present a piece by General John Michael Loh, USAF (Ret.). In this article, General Loh discusses some of the debates and decisions that took place in Washington in the months leading up to the start of the DESERT STORM air campaign as well as some of what he viewed as the lessons learnt from the campaign.
Desert Storm was the only major war since World War II that ended in victory, with all objectives met; a war dominated by airpower and remarkable for its brief duration—only 43 days. Airpower played the dominant role in Desert Storm. But Desert Storm did not start with airpower in the lead. The air campaign plan had many detractors. The decision to lead with airpower, before and independent of a ground invasion, was a war in itself. I am going to take you through the debates and decisions in Washington that put and kept airpower in the lead in the five months preceding the start of the war, and give you my version of lessons learned from Desert Storm.
The War of the Pentagon
Four battles characterized what I call 'The War of the Pentagon.'
The first was a phone call from General Norman Schwarzkopf, the commander of U.S. Central Command and the Joint Force Commander for Desert Storm, to me on Wednesday, August 8, asking for help in expanding the existing war plan for a Middle East regional war.
The second was the meeting of our Air Staff team, called Checkmate, with General Powell and the Joint staff that Saturday, seeking the Chairman's agreement to proceed with our air campaign planning activity.
The third were the frequent skirmishes in the Tank between me and the other three service chiefs who wanted their service to take the lead and be the dominant player in Desert Storm. I called them the counterattacks.
And the fourth was the meeting at the White House on October 11 with President George H. W. Bush, the Commander in Chief, seeking his approval to proceed with the air campaign plan.
I will briefly describe each of those four 'battles' in the 'war of the Pentagon.'
Request from General Schwarzkopf
I received a call from General Schwarzkopf on the morning of August 8. It surprised me because I only knew Schwarzkopf professionally, but not personally. Here's what he said:
Mike, I need your help in expanding our war plan to include a more robust air campaign that includes strikes against strategic targets as well as tactical targets. The air operations plans here are traditional air/land battle scenarios in collaboration with, and tethered to, ground forces, but very little independent air operations that destroy strategic targets around Baghdad and other parts of the country.
I could hardly believe what I was hearing. Here was an Army commander talking like an airpower advocate. General Schwarzkopf was an airpower champion in a green suit.
Fortunately, our Checkmate planning cell on the air staff was already putting together a strategic-level air campaign concept. Checkmate was formed to think ahead about the application of airpower in several scenarios. Checkmate's leader was Colonel John Warden, a bright conceptual thinker, who was already designing an air campaign for the Iraq war.
I told General Schwarzkopf:
We have the concept of the air campaign you want. I will take the lead in fleshing it out as best we can and bring it to you ASAP. I need a day or two to make sure it works your problem, and I will bring it to you ASAP. "He said, "Thanks. Please hurry!
I then called our Ops Deputy, and told him to get John Warden and his Checkmate team here immediately. I gave Warden strong marching orders and told him:
Get with Intel, turn your generic plan into one that begins to address the strategic target set in Iraq, and be prepared to brief General Powell later this week.
I also called General Bob Russ, commander of Tactical Air Command, and General Jack Chain, commander of Strategic Air Command, telling them of Schwarzkopf's call and asking them to send a few of their air planners to the Pentagon to assist Checkmate. They did.
Briefing to General Powell
The second battle was our meeting with General Powell and the Joint Staff directors on that Saturday, three days after the call from Schwarzkopf. The Joint Staff was dominated by Army officers, not just Powell, but particularly the influence of the J-3, an Army general steeped in land warfare and dismissive of airpower.
A stormy session ensued. Colonel Warden briefed and I chimed in from time to time for reinforcement. We emphasized the independent application of airpower against the Iraqi centers of gravity, and our confidence in waging both an air campaign in the greater Baghdad Theater and also tactical-level attacks in the Kuwaiti Theater.
General Powell listened for the most part, but let his J-3 argue against a pre-invasion air campaign. His arguments centered on his experiences in Vietnam, and those of others present. They claimed that airpower could not defeat an enemy and could not even interdict effectively. He even cited the World War II air armadas against Germany, claiming they were ineffective. And on and on. Others piled on.
I listened patiently for a while, but after listening to these false claims, I spoke up forcefully with logical arguments countering accusations about airpower, but, mostly, I argued about the renaissance in airpower in the 20 years since Vietnam. I gave a full-throated defense of our plan based on this rebirth of airpower in the Air Force. I challenged them with information of which they were unaware regarding a new generation of combat aircraft and weapons and training since Vietnam that changed the nature of air warfare, which made possible the innovative plan for Desert Storm. Stealth, precision weapons with lasers, night attack with FLIRs and Red Flag force-on-force training, the real 2nd offset strategy in my opinion, gave us confidence for a dominant air campaign plan.
Ground crews service F-117A aircraft of the 37th Tactical Fighter Wing on the flight line in 1990 as the Wingprepared to deploy to Saudi Arabia for Operation Desert Shield. (Source: USAF)
At the end of this meeting, General Colin Powell, under great pressure from SecDef Cheney and President Bush to devise a winning plan quickly, agreed to let us continue our planning as we briefed it. His only objection was not to the two-theater air campaign and its strategic nature, but that he wanted us to destroy the Republican Guard Armies as part of the strategic plan. And he insisted we make it a joint campaign, not just Air Force. So, I agreed to include Navy and Marine air where it fit. General Powell said he would tell General Schwarzkopf that he approved.
We briefed Schwarzkopf. He approved and told the team to take it to General Chuck Horner and the operational air planners in Riyadh.
Skirmishes in the Tank
The third battle was a series of skirmishes in the Tank, the room where the Joint Chiefs of Staff meet in the Pentagon. While Air Force planners—Lt. General Chuck Horner, Brig. General Buster Glosson, and the Checkmate guys, Colonel John Warden and Lt. Colonel Dave Deptula—went to Riyadh to plan the specifics of the air campaign, I continued to fight for, and defend, the air campaign as the leading edge of the upcoming war.
The Pentagon is the temple of parochialism. Now don't get me wrong. We fight as a joint team. Jointness works beautifully on the battlefield. But it doesn't work as well in the wars of the Pentagon where each service wants to show how vital it is, and, therefore, how it must be in the vanguard of any major military action, particularly a major regional war.
I vigorously defended our leadership role in the Tank during September and October when the other chiefs realized the Air Force was dominating the plan. Each of the other service chiefs—Army, Navy, and Marine—had his own ideas for taking the lead.
The Navy wanted to divide the airspace into route packages the way it was done in Vietnam, which, incidentally, was not an efficient way to allocate airpower. The Navy wanted to control all air action in the east from carriers in the Persian Gulf, and in the west from carriers in the Red Sea. The Navy's plan would leave only the middle for the Air force working with Army forces. We won those skirmishes handily.
The Marine Commandant argued forcibly that the Marines take the lead with an amphibious landing from the Persian Gulf and then attack through Kuwait. After all, amphibious operations are the Marines' primary competence. But his proposal was shot down over time.
Now, the Army Chief did not like the idea of the Air Force operating independently. The Army preferred a simultaneous, dual invasion, with the bulk of air sorties tethered to the Army supporting the ground war. Their chief had two motives: position the Army, not the Air Force, as the leading force in the war, and keep most of the air sorties under the air/land scenario doing close air support and shallow interdiction.
In the end, General Powell sided with our air campaign plan because it made good sense.
President Bush Gives his Approval
The final battle was the meeting with President Bush on October 11. General Schwarzkopf sent Brigadier General Buster Glosson to brief President Bush on the air campaign plan. The evening before, Secretary Cheney, General Powell, and the Joint Chiefs previewed both the air and ground plans in the Pentagon. Glosson gave a powerful briefing with detailed information about the air campaign and his confidence in its successful execution. On the other hand, the Army general presented a ground campaign that was unimaginative, lacked detail, and was not a confidence-builder. General Powell was displeased with the Army plan, but also wary of the confidence Glosson displayed in his briefing.
After the meeting, General Powell stopped Glosson after I had already departed for my office. He told Glosson to tone down his confidence level, that the briefing and the air campaign were too optimistic. Glosson hastened to my office and asked what to do. I told him to not change anything in his briefing, but to invoke General Schwarzkopf's name several times during the briefing.
Buster, remember this is not your plan, it is not General Horner's plan, it is not an Air Force plan, it is the Joint Force Commander's air plan. So, let the President and all present know you are speaking for General Schwarzkopf and he has approved the essence of the air campaign plan.
General Glosson gave his briefing superbly. President Bush, to his credit, knew the value of airpower and was excited about our plan. After hearing the briefing by Buster Glosson, he wanted to begin the war right then. But General Powell dissuaded him arguing that ground operations were necessary to ensure victory. He wanted to deploy the VII Corps from Germany to Saudi. President Bush approved. That took more than two months. We won that battle and the air campaign concept spawned in the Pentagon became the vanguard force in Desert Storm.
Then the war began on the morning of January 17 with a massive air attack against strategic targets around Baghdad led by the stealthy F-117, and continued for the next 42 days, followed by a 4-day ground invasion before the Iraqis surrendered. We won Desert Storm quickly, decisively, with overwhelming force and few casualties, leading with airpower.
Airpower lessons learned
So, what are the lessons learned? There are many. Let me give you three macro, 'big picture' lessons that I took from Desert Storm and are still applicable today. One: airpower is consistently underestimated and not well understood, even in the Air Force. Two: computer models and 'experts' always over-estimate air attrition. And three: strong, decisive leadership and trust from the top down are essential for success.
Let's look at each one more closely.
F-15E Eagle fighter aircraft from the 4th Tactical Fighter Wing is parked on a desert airfield during Operation Desert Shield. (Source: USAF)
Airpower disparaged
Recognize that others do not share your enthusiasm about the effectiveness of airpower. Just before Desert Storm the other military services did not recognize the 'Rebirth of Airpower' from 1970 to 1990 in the Air Force. In my opinion, the 2nd offset strategy for the Air Force was the investment in three technologies: stealth, precision weapons, and forward looking infrared (FLIR) sensors to take away the sanctuary of night the enemy had enjoyed in Vietnam. We fielded systems that exploited all three technologies: the stealthy F-117 Nighthawk with its FLIR and laser designator; the laser-guided bombs employed by many fighters, and laser designators on the F-11F and F-15E, and going from flares to FLIRs to attack at night. These systems were ready for Desert Storm but most war planners did not appreciate their significance.
Currently, the Army's zeal to get 'boots on the ground' in the war against ISIS has had the unintended effect of disparaging airpower as ineffective in that fight, giving airpower an undeserved bad reputation. The real problem with air attacks against ISIS is the misapplication of airpower, dribbling it out piecemeal, six sorties per day (in Syria, the locus of ISIS) rather than over a thousand strikes a day as in Desert Storm.
In the recent past, our Air Force leaders, seeking to be team players in the joint arena, have promoted airpower tethered to the ground battle rather than having a component of the air campaign in which airpower is employed independent of the ground battle. They have forgotten this valuable lesson of Desert Storm.
And, some seek to promote their own service at the expense of the contribution of air. The Army teaches and preaches Desert Storm as the '100-Hour War.' They deliberately forget that it took only 100 hours to 'mop up' after 1000 hours of airpower put Iraq in shambles and rendered the Iraqi army virtually ineffective as a fighting force.
So, we need to continually learn, then educate. Now, don't get me wrong: airpower can't do everything. We must have 'boots on the ground' to force total victory and surrender. But the right formula should be the Desert Storm formula: lead with relentless, overwhelming airpower, then follow with a massive ground invasion.
Models overestimate air attrition
Computer models and 'experts' always over-predict air attrition. Historically, a mismatch exists between the forecasts versus actual attrition experienced in air campaigns. Models have always erred on the pessimistic side. They predict higher loss rates. This was true for Desert Storm and other major air campaigns.
Why is this so? Well, models cannot replicate the complexity of large-scale air battles. Models are good for evaluating the relative impact of changing one or two parameters of threats or air defense systems, but not for predicting the absolute outcomes of large air battles. Modelers also invariably assume the adversary is 'ten feet tall,' with systems working at peak performance and 100 percent reliability.
A brief look at past air campaigns, including Desert Storm, will prove my point and warn you to be wary of attrition analysts.
In December 1972, in operation Linebacker II, B-52 raids over heavily defended Hanoi, Vietnam, were successful in destroying the state-of-the art IADS and other military targets in North Vietnam. This led to the successful negotiation of our exit from Vietnam and the return of our prisoners of war.
Analysts and 'experts' predicted we would lose one B-52 out of every three B-52 sorties flown. In the 11-day operation, we lost 15 B-52s in 729 B-52 sorties flown into the teeth of the air defense system—an attrition rate of 2%, not 33%.
In the June 1982 Bekaa Valley campaign, the Israeli Air Force mounted a mass operation against a modern Soviet-supplied air defense system fielded by Syria in Lebanon. Analysts predicted an attrition rate of 15%. In 1,100 fighter sorties, the IAF lost no aircraft—zero percent attrition, not 15%.
How about Desert Storm? In the first five days, the experts, even Air Force leaders, predicted a loss of 70 or so aircraft before total air dominance was achieved. Analysts' models predicted much higher attrition. After all, the IADS around Baghdad was the state-of-the-art French Kari system. Coalition forces flew more than 5,000 combat sorties in those five days and lost 27 fixed-wing aircraft, an attrition rate of less than 0.4%—less than half of Air Force estimates, and way below analysts' predictions.
Why are forecasts of air attrition consistently higher than actual results, and why is this important today? Models lose their fidelity when they try to simulate large-scale air campaigns like Desert Storm because they cannot faithfully replicate their enormous complexity. They just cannot account for the countermeasures, both electronic and kinematic, the decoys, on-scene decisions by pilots, changes of tactics as the campaign progresses, or the sheer quantity and swarming tactics air battles. Many models merely extrapolate from a one-versus-one single-engagement to many-versus-many scenarios.
That is grossly faulty modeling.
Why is this mismatch important today? Well, today we again hear the predictions of the analysts that manned aircraft cannot penetrate modern 'anti-access/area denial' systems in development by Russia, China, and Iran. They tout results of their models to show that air losses would be unacceptable. I have been hearing that argument for more than 50 years! Manned fighters and bombers can negate sophisticated air defense systems and successfully attack heavily defended targets with the same success enjoyed in these three campaigns with a combination of standoff and penetrating aircraft, decoys, drones, and smart tactics.
The lesson is to challenge assumptions of the models, examine the algorithms critically, and use models only where they apply: for limited, relative changes, not absolute outcomes in large air campaigns. Be skeptical and critical of attrition models.
Leadership from the top down
The third lesson: Strong, decisive leadership from the top is necessary for success. President Bush 41 provided that leadership. He set clear military objectives and let his military leaders plan the campaign without interference from the White House. He gained the support of both the Congress and the U.N. for the war. He skillfully knitted together a large coalition of international partners in the Middle East, Europe, and Asia from Congress and the U.N. He placed heavy demands on General Colin Powell to put together a winning war plan with force sufficient to win quickly. He recognized the problems of a long war without an exit strategy. In short, he wanted to get in, win, and get out after meeting his military objectives.
President Bush 41 was under enormous pressure politically and from the whole U.S. population to not invade. Instead, political leaders of both parties advised him strongly to allow economic sanctions to continue for another year, hoping that would force Saddam Hussein to withdraw his forces from Kuwait. The pressure against the war was intense. Various studies concluded upwards of 10,000 American lives would be lost. The airwaves and newspapers were replete with comments like "8,000 body bags are being shipped to Saudi." One hundred forty-eight American lives were lost in Desert Storm—148 lives, not eight or ten thousand.
Eight of the nine living former chairmen of the Joint Chiefs of Staff, including one Air Force chairman, wrote a letter and testified before Congress that we should not go to war, but rather let sanctions continue. Senator Sam Nunn, the chairman of the Senate Armed Services Committee, argued and voted against the war. This doomed his plans to run for president in the 1992 election. The fierce opposition underscored the lack of understanding of the impact of airpower in 1990, and the advances in airpower since Vietnam.
But, throughout it all, President Bush was steadfast and resolute. He displayed undaunted courage, and he placed unprecedented trust in his military leaders. That trust pervaded all the way down the chain of command to the troops engaged in Desert Storm. Trust was the coin of the realm at every level of command from the commander-in-chief to the aircrews and troops on the ground. And trust went both ways: down the chain and back up the chain. The pilots and troops trusted their leaders. They knew their leaders had their back and that confidence allowed them to perform knowing their leaders would support them even if they made an occasional honest mistake in the heat of battle.
Desert Storm compared to the War against ISIS
The contrast between Desert Storm and the current war against ISIS could not be sharper. President Bush 41 gave the military clear objectives, gained approval of Congress and the U.N., formed a strong coalition that participated willingly and actively, and won quickly and decisively with few casualties on both sides. None of these principles defining a justified war are present against the Islamic State.
The trust, so prevalent in Desert Storm, is weak in the ISIS war. Rules of engagement for pilots are so restrictive that the pilots are fearful of retribution and thus too risk averse in combat. Instead of clear military objectives and a defined end state for combat action, attrition of ISIS members appears to be the measure of success. Vietnam taught us the folly of using body count as a measure of success. How soon we forget.
Since Desert Storm, airpower seems to have stepped backward. Current conflicts do not unleash airpower like Desert Storm. Today, critics disparage airpower, but only because it is misapplied against ISIS. That must change.
Closing Observations and lessons
At the start of Desert Storm, airpower was not the leading force. Airpower had to fight its way to take the lead. We had to convince our critics that a rebirth of airpower took place after Vietnam, emphasizing the asymmetric application of stealth, precision weapons, and night attacks. That took away the sanctuary of night the enemy enjoyed previously. The battles in the Pentagon were waged and won that positioned airpower as the dominant force with compelling arguments and forceful logic.
President Bush 41 let the military plan both the air and ground campaigns without interference, approved the air campaign plan, and never wavered from his support.
The air campaign became the vanguard force in Desert Storm. Generals Horner and Glosson broadened the conceptual work done in the Pentagon, put together detailed force packages to take down the air defenses, and matched air forces against targets in both the Baghdad and Kuwait theaters. The six-week air campaign allowed the ground forces to complete the victory in just four days.
Three broad lessons emerged. First, we have already forgotten the lesson of Desert Storm that airpower can be applied independent of a ground campaign and in close support of ground forces at the same time. Airpower continues to be misunderstood and misapplied in the War against ISIS.
Second, air attrition is always over-predicted because computer models and 'experts' do not understand how airpower is applied in an overwhelming way. The examples of Desert Storm, Linebacker II, and the Bekaa Valley campaign prove the point. Modelers do not understand and account for the many complex variables in air campaigns that allow for changes in tactics and on-scene decisions. Over-predicting air attrition is happening in models today to declare that manned fighters and bombers cannot penetrate A2AD air defense systems of Russia, China, and Iran. Airpower advocates need to challenge the assumptions and methodology of air attrition models.
And third, President Bush 41 placed enormous trust in his military leaders to plan and wage a decisive two-theater campaign that allowed the coalition to win, quickly, decisively, with overwhelming force, and few casualties. That trust flowed down to the pilots and troops in the cockpits and on the ground. In turn, the pilots and troops trusted that their commanders would support them in the heat of the battle. That mutual trust is not as strong today as it was in Desert Storm.
The lessons of Desert Storm, from inception of the air campaign through its execution that led to victory, must not be forgotten. Rather, as we look forward to future enforcement of deterrence and plans for wars across the spectrum of conflict, airpower should be the leading force, the vanguard to pave the way for the successful conduct of campaigns and victory.
General John Michael Loh, USAF (Ret.) graduated from the USAF Academy in 1960. His final command was as Commander, Air Combat Command from June 1992 to July 1995. During Operation DESERT STORM he served was the Vice Chief of Staff of the Air Force. He served as Commander, Tactical Air Command from March 1991 to June 1992. Loh has a master's degree in aeronautical engineering from Massachusetts Institute of Technology. He commanded the Aeronautical Systems Division, Air Force Systems Command. He was a command pilot with more than 4,300 flying hours, primarily in fighter aircraft, and flew 204 combat missions in Vietnam. Loh retired from the USAF in 1995.
First Gulf War
General John Loh
Mitchell Institute for Aerospace Studies
Operation DESERT SHIELD
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#DesertStorm30 – Desert Storm: A View from the Front
4 thoughts on "#DesertStorm30 – Leading with Airpower"
ralphhitchens says:
That Army general was wrong. Airpower CAN win wars and had done so, less than 20 years earlier. When North Vietnam launched the last major offensive of its "American War, " the 1972 Easter Offensive, all US ground forces had been withdrawn (except for a single brigade, deployed defensively around Da Nang Airfield). US airpower, massively applied in close air support, saved the ARVN in the South, while the LINEBACKER air campaigns applied enough selective pressure on North Vietnam to force Hanoi to negotiate seriously for the first time. Historian Ronald Spector concluded that the Politburo realized that they "had to get the Americans out of the war at any cost." Hence, our "Peace with Honor," brought about by US airpower.
As John Adams observed. "Facts are stubborn things."
lwtruxal says:
There are a number of problems with the example that you use. First, strategically as you point out the Linebacker operations only achieved a peace where the United States could withdraw from the conflict and let North Vietnam finish off South Vietnam alone. The United States still lost the war and air power was unable to eliminate North Vietnamese ground forces or their will to continue fighting. Operationally, you seem to dismiss the fighting done by the ARVN. The ARVN have a very mixed record with some units performing quite well and others poorly. I'd encourage you to read Andrew Wiest's book "Vietnam's Forgotten Army" and some of James Willbanks writings. The ARVN played just as an important role as American air power in turning back the Easter Offensive despite their uneven combat record. Also, no amount of air power could solve the political problems facing South Vietnam and the leadership vacuum that existed in its government due to the frequent coups. Finally, you seem to be confusing operational success with strategic victory. The Easter Offensive was another operational success by US forces and ARVN that failed to change the strategic picture. I'd encourage you to also read Mark Clodfelter's "The Limits of Air Power." His book can provide more information than I can about the inability of American air power to win the war in Vietnam.
The best argument for air power as a decisive war winning platform is the use of the atomic bombs on Hiroshima and Nagasaki. But that gets us into a murky debate about whether or not Japan surrendered due to the bomb or other factors such as the destruction of their forces in Manchuria by the Red Army. Also the if it weren't for the island hopping campaigns, US bombers would not have been in range to deploy the atomic bomb. So even the best argument that air power can win wars is flawed.
If you are looking for more reading material Balloons to Drones has some reading lists posted and I can do my best to recommend any books for you to do some follow up reading on this topic. Here is the book list posted by Balloons to Drones: https://balloonstodrones.com/air-power-reading-list/.
"Peace with Honor" was, as you say, an imperfect and temporary solution for the USA. Still, President Nixon famously promised the president of South Vietnam that he would reengage with US airpower if Hanoi violated the Paris Accords. He was, of course unable to keep that promise, thanks to the Watergate debacle. But North Vietnam did not undertake its final campaign against the South until after Nixon had resigned in disgrace. Had it not been for the alertness of a security guard in the Watergate garage, "Peace with Honor" might have lasted until 1977.
I appreciate your comments and the sense of history contained therein. But I do think that too many senior officers in the Army are unduly dismissive of what airpower can do. And also, from my perspective as someone who worked on the Air Staff during Desert Shield & Desert Storm, I deeply regret that our Chief of Staff, Gen. Mike Dugan, was way too bombastic (in the presence of a reporter) about what a well-executed air campaign could accomplish, and got fired as a result.
Thank you for your reply. I'll admit that I've met some in the military community who are dismissive of air power and those who are fierce proponents of it. The effectiveness of air power has been a hotly debated topic in American military discussions since Billy Mitchell opened his mouth. I should point out for the record that I'm a civilian and have had no military experience. So you've most likely interacted more within the military community than I have.
My stance on air power is that it can't win wars on its own but if used in conjunction with ground forces it can play a decisive role operationally. I see air power as both flying artillery and cavalry of the modern military. It can bombard front line troops as artillery. As cavalry it acts as the eyes of the military, the pursuit force, and cut lines of communication. Desert Storm is a good example of air power fulfilling all of these roles in recon, bombardment, and pursuit.


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Home » Where We Stand: LaRouchePAC Statement on the Flynn Plea
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Where We Stand: LaRouchePAC Statement on the Flynn Plea
20171202-flynn.pdf
As the media and their supporters have gone into their usual fevered frenzy, slobbering over the potential of taking down the President of the United States, it is important to situate, for our supporters, exactly what the Flynn plea means. It represents Mueller's counter-punch to growing momentum from the House Intelligence Committee and the Courts to fully reveal the British hand in this coup, centered in the phony Steele dossier and its adoption by Obama and his criminal co-conspirators as the instrument to destroy the Trump presidency. It occurs in the wake of the President's enormously successful visit to China and conversations with President Putin. It occurs as the House Intelligence Committee is contemplating contempt proceedings against the FBI and the Department of Justice for failure to disclose how the Steele dossier was used to instigate the illegal investigation of the Trump campaign by the FBI. In a hearing on Thursday before U.S. District Judge Richard Leon, the Judge had also indicated that he thought most of Fusion GPS's claimed rights to protect bank records regarding payments related to the Steele dossier were bogus. The bank records are sought by the House Intelligence Committee.
Michael Flynn was fired by President Trump for providing a false account of his conversations with Russian Ambassador Kislyak to Vice President Pence, among others in the Trump Administration. The immediate sequence of incidents leading to his firing arose when his name was illegally unmasked by Obama Administration officials as a result of NSA surveillance. Flynn, however, was already a target, having been fired for dissing Obama when Flynn was head of the DIA and drawing the attention of the British for his attendance at a banquet for RT and his calls for collaboration with the Russians in the war on terror, particularly in Syria.
After unmasking Flynn's conversations with Kislyak, holdover Obama Deputy Attorney General Sally Yates raced over to the White House to claim that since Flynn had lied about his conversations with Kisylak, and since the Russians knew what was actually said, the Russians had completely compromised Trump's National Security Adviser. Yates's insane demand that Flynn be fired on this basis, was leaked to the news media, and in this atmosphere of media hysteria, Flynn agreed to an interview with the FBI in the White House on January 24, 2017. No lawyer was present. A perfect setup. Since that time, Flynn and his son have been investigated to death by Mueller in an effort to concoct criminal offenses. Among them is the bizarre claim by the satanic neo-con James Woolsey that Flynn and company were conspiring to kidnap Fethullah Gulen, and return him to Turkey for a million-dollar fee. Flynn has incurred huge legal fees from the hoity-toity Washington firm Covington and Burling. His lead lawyer, Robert Kelner, publicly joined the Never Trump movement and hates the President. Various articles about the deal point out that Flynn was deeply dismayed by the prospect of his son spending years in prison and about his family being bankrupted by his enormous legal fees.
According to his plea agreement, Flynn lied to the FBI in his interview on January 24, 2017 about conversations he had with Kislyak about the Russian response to Obama's December 28, 2016, imposition of sanctions for alleged Russian interference in the 2016 elections. In reality, according to the plea agreement, Kislyak contacted Flynn on the day the sanctions were imposed, and Flynn asked the Russians not to escalate the situation. Kislyak reported back to Flynn that the Russians would follow Flynn's advice. Flynn discussed these conversations about Obama's sanctions with senior members of the Trump transition team.
A second alleged false statement in the same FBI interview concerned Flynn's conversations with the Russians, among other nations, concerning a December 21, 2016, vote in the U.N. about Israeli settlements. Flynn asked the Russians, among others, to delay the vote or delay the resolution. It is to be emphasized that there was nothing illegal in any of these contacts. Flynn was charged with lying or omitting material facts when he spoke to the FBI about them.
It is also obviously relevant that the entire premise for Obama's sanctions was fake, since we now know that there was no Russian hacking of the election.
Finally, Flynn pled to making false statements in his Foreign Agents Registration Act statement about his lobbying activities on behalf of Turkey. This is Mueller's new favorite toy, stretching the use of a vague statute formerly famous for voluntary civil compliance only. Our robot Torquemada, Robert Mueller, has decided to turn the Foreign Agents Registration Act into a criminal bludgeon.
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Thus, as we said in the Mueller dossier, we face the criminalization of political policy differences and crimes manufactured as the result of lies told under incredible duress. Sounds like a banana republic, doesn't it? As Alan Dershowitz said in reaction to the news that Flynn was cooperating with Mueller, now it is highly probable that General Flynn will lie like crazy, to realize the no-jail-time promise of his plea agreement. Rule of law? Give me a break. The population should be up in arms about this. Mueller must be stopped.
Further Reading: The Scalp-Taking of Gen. Flynn, by Robert Parry
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Petertide Ordinations to take place
The Diocese of Truro will be welcoming two new Deacons and seven new Priests during its Petertide services this year.
Taking place at Truro Cathedral on Friday, June 30 at 6.30pm and Saturday, July 1 at 10.30am, the services will also see the Rt Revd Tim Thornton, leading what will be his last ordinations as Bishop of Truro.
On Friday evening, Rachel Monie and Ian Gulland will be ordained as Deacons. This will be followed on the Saturday morning with a service to ordain last year's Deacons as Priests.
Being made a Deacon on June 30 will fulfill a decade long journey for Rachel Monie. Lea ving school, Rachel was determined never to set foot in a church again. She pursued a job in the NHS and had a family. Church was not part of her life again until 2006 when her mother suddenly passed away.
"It was in the midst of my grief for her that I felt God reach out to me through some very unexpected words of comfort and hope spoken to me by my then three-year-old daughter Victoria. My life changed in that moment."
Rachel has just finished her studies at Cambridge and the whole family are now preparing for their arrival in Cornwall in time for ordination. Rachel will then take up a post in the Diocese of Truro.
Among those being ordained as Priest this year is Revd Arwen Folkes. Arwen was one of seven who were ordained as Deacons at last year's Petertide service and since then has spent her first year as Assistant Curate in the Benefice of St Just in Roseland and St Mawes.
Reflecting on her first year, Arwen said: "It has been a year of many firsts, many stories, and many opportunities. I have learnt so much about my community, myself, and God.
"I have really loved being a Deacon, there is something so special about this ministry; it has been a time set apart for reaching out, having conversations, and listening carefully. I have found that I am now both a hearer and teller of stories. I have also found that every single person I meet is extraordinary and fascinating. It has been a year of real privilege and I am humbled by the trust people place in the office I now carry."
Arwen, who is well known in Cornwall as the founder of the Real Baby Milk initiative, had spent three years studying in Cambridge before she and her family returned to Cornwall for her ordination.
Another of those looking forward to being ordained as a Priest is Revd Amanda Evans who has spent her year as Assistant Curate based in Mabe and Ponsanooth. Reflecting on the last 12 months, Amanda said: "It has been a real privilege and joy to serve both the congregations and villages of Mabe and Ponsanooth and wider afield within the Deanery in and around Falmouth. Because of the nature of my Deanery curacy I have been blessed to lead and take part in worship in both a rural setting at the two beautiful churches in Mabe Parish and also in a town context with a strong choral tradition at King Charles the Martyr Church in Falmouth, where I was also based for six weeks.
"One of the very interesting aspects of my curacy has been to explore what a Deanery curacy might look like and it has at times been a challenge to shape this! But I am also very excited by this next year when I hope to spend time with the parishes and communities of Mylor and Flushing. In the meanwhile, I am looking forward very much to my priesting, to serving God in new and interesting ways in the Deanery and to enjoying the summer in Falmouth with my family and dogs!"
The services are open to the public and all are welcome to come and support those being ordained as they make their vows.
Full list of those being ordained Priest on July 1, 10.30am:
Revd Amanda Evans, Revd Arwen Folkes, Revd Kirsten Norfolk, Revd Teresa Folland, Revd Linda Whetter, Revd Annabel King, Revd Nikki Thornhill
Those being ordained Deacon on June 30, 6.30pm:
Rachel Monie, Ian Gulland
You may enjoy these other news stories
Presidential Address – Synod November 2017
Parish Nurse? What a fantastic idea!


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Beating all odds, J&K boy secures 98.06% in Class 10, thanks admn for free study material – Times of India
By Sarkarii Result | July 4, 2021
UDHAMPUR: If you want to be successful you must dream, yearn, want and, most importantly, you must consistently be in pursuit, said a Class 10 student from Udhampur who has beaten all the odds and topped the district with 98.06 per cent in Jammu and Kashmir State Board of School Education (JKBOSE) examination 2021.
Mandeep attributes his success to the Jammu and Kashmir administration and the Government of India (GOI) as they provided free books and study material to the students, ensuring that Covid-induced lockdown and restrictions do not hamper their studies.
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Speaking to ANI, he said: "During the lockdown, my brother, who is pursuing BSc Agriculture from Sher-e-Kashmir University of Agricultural Sciences and Technology of Jammu (SKUAST), helped me in my studies. Despite inadequate power supply and other facilities in my village Amroh, I managed to study well. When Covid-19 lockdown was implemented students were worried about getting proper education. However, the administration and Centre kept supporting us and we were provided with free books and study material."
Mandeep, who wants to become a doctor, said: "After Class 10, I want to clear National Eligibility cum Entrance Test (NEET) and become a doctor. I request the government to keep supporting students in need and assist them in achieving their dreams. Besides studies, I also work in the field to help my parents with household chores."
When asked about online classes amid the pandemic, he said, "I do not have any device for online classes. Teachers provided me with free books to study at home."
He thanked Prime Minister Narendra Modi and the Lieutenant General of Jammu and Kashmir Manoj Sinha for providing free study material to the students. "The government took lots of efforts to promote education in the far-flung areas and rural areas of the Union Territory," he said.
Hopeful of receiving a scholarship for his higher education, Mandeep appealed to the government to keep supporting students to help them achieve their dreams. "Besides studies, I also work in the field and help my parents in household chores," he said.
He concluded with an Urdu couplet, "miTa de apni hasti ko agar kuchh martaba chahe, ki daana khaak men mil kar gul-o-gulzar hota hai" (Success is about grinding for what you want)."
Sham Singh, the proud father of Mandeep, is delighted with his son's result and urged families of rural India to educate their children while stressing that education is the most powerful tool for human beings.
Students from Nagpur's slum find it difficult to study due to lack of smartphones, internet – Times of India Law school curriculum should be redesigned: Study – Times of India Maharashtra announces evaluation criteria for Class 12 state board students – Times of India DK admin vows hassle-free SSLC exam for Kerala students – Times of India
Category: Education News Tags: Narendra Modi, NEET, Udhampur, Union territory
← Delhi boy seeks sponsorship to live his dream – Times of India Sonu Sood says the 'biggest charity' today is to give jobs – Times of India →


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Fissidens obtusifolius är en bladmossart som beskrevs av William M. Wilson 1845. Fissidens obtusifolius ingår i släktet fickmossor, och familjen Fissidentaceae. Inga underarter finns listade i Catalogue of Life.

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Externa länkar

Fickmossor
obtusifolius

redpajama_set_name: RedPajamaWikipedia


Lauren Skurla's art, entitled "Destined to Assist," won second place in a national art competition.
Lauren Skurla, a Nursing major at Neumann University, has won second place in a national art contest sponsored by the Franciscan Action Network. She will receive a $250 prize and her art will be displayed at the Franciscan Monastery of the Holy Land in Washington, D.C., from Jan. 11-27.
Submissions had to reflect a theme related to Saints Francis or Clare of Assisi and be no larger than 27 by 39 inches. There were 56 entries from across the country.
The story of St. Francis and the leper begins with the detail that, in his youth, Francis was terrified of lepers. As a young man, he used to run away from them at the mere tinkling of the bell they were forced to ring as they walked down the street.
Shortly after his conversion, however, he heard the bell that announced the coming of a leper, and instead of running away, he walked up to the leper, embraced him, and kissed him. In that moment, he found that the object of his fear was not a monster, but a man.
Tori's Time: Festive Holidays? Not So Fast!