PATRICIA A. CZMYR VS. DARLENE S. ALDEROTYÂ (L-4731-14, MIDDLESEX COUNTY AND STATEWIDE) ( 2017 )

NOT FOR PUBLICATION WITHOUT THE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
DOCKET NO. A-1091-16T4
PATRICIA A. CZMYR,
Plaintiff-Respondent,
v.
DARLENE S. ALDEROTY,
Defendant-Appellant.
——————————————————————————————————
Argued May 10, 2017 – Decided July 28, 2017
Before Judges Lihotz, Hoffman and Whipple.
On appeal from Superior Court of New Jersey,
Law Division, Middlesex County, Docket No. L-
4731-14.
Lisa R. Marshall argued the cause for
appellant (Law Offices of Viscomi & Lyons,
attorneys; Ms. Marshall, on the brief).
Charles F. Kenny argued the cause for
respondent (LoPiano Kenny & Stinson,
attorneys; Mr. Kenny of counsel and on the
brief; Caitlin Rizzo, on the brief).
PER CURIAM
Defendant Darlene S. Alderoty appeals from a Law Division
order granting plaintiff Patricia A. Czmyr a new trial. During
her cross-examination of plaintiff, defense counsel repeatedly
asked her, despite repeated objections, whether she remembered
complaining to her doctor about neck, back, and shoulder pain on
numerous occasions before the underlying accident. When plaintiff
said no, defense counsel told the jury she was showing plaintiff
her medical records to try to refresh her memory. Defense counsel
never admitted the records under an exception to inadmissible
hearsay. After the trial court issued a curative instruction, the
jury returned a $3200 verdict in favor of plaintiff. Plaintiff
moved for a new trial on damages, which the trial court granted,
finding the $3200 award "grossly inadequate" and concluding
defense counsel's inappropriate cross-examination "improperly
influenced" the jury. We affirm.
I.
We discern these facts from the trial record. On October 11,
2012, plaintiff stopped her car for a red light and then "was hit
from behind . . . and jolted . . . back and forth." Defendant
operated the rear-ending car. According to plaintiff, when she
got out of her car, "I just did not feel right, especially in my
head. . . . [I]t was very fuzzy, just a nauseous type of feeling,
very tight and tense, especially through the lower back up through
my neck." Plaintiff did not "feel there was a need to" call an
ambulance, so she drove to her original destination, her eye
doctor. When plaintiff's pain increased in the days following the
2 A-1091-16T4
accident, she scheduled an appointment to see Edward Magaziner,
M.D., a pain management doctor who previously treated her following
motor vehicle accidents in 1992 and 2000. At her first
appointment, plaintiff presented complaints regarding her neck,
lower back, center back, shoulder, and right elbow.
Dr. Magaziner saw plaintiff eight times over the course of
the next year. He recommended plaintiff undergo two courses of
physical therapy, which she completed from November 2012 through
March 2013, and from June 2013 through July 17, 2013. Dr.
Magaziner also referred plaintiff for chiropractic treatment,
which she received between August 2013 and April 2014. For
plaintiff's left shoulder injury, she received treatment from an
orthopedist, including three injections into her left shoulder.
Plaintiff testified the injections did not improve her
functioning, but did provide minimal pain relief. Plaintiff said
she declined her doctor's recommendation of shoulder replacement
surgery, but planned to receive another injection.
Plaintiff also testified regarding prior injuries she
sustained, including: a 1992 motor vehicle accident, when she
incurred neck, back, and left knee injuries; a 1995 work-related
accident, when she sustained a left elbow injury; and a 2000 motor
vehicle accident, when she sustained neck, back, left shoulder,
right hand, and right thumb injuries. Plaintiff stated that prior
3 A-1091-16T4
to the subject accident, she felt pain in her neck, back, or left
shoulder on some days, and other days she would feel no pain. She
described this pain as "frustrating," but said it did not interfere
with her functioning or activities of daily living. Plaintiff
described her left shoulder pain before the subject accident as
"intermittent," and "a seven" on a one–to-ten scale when she felt
pain; however, since the accident, she experiences "constant"
shoulder pain, which she rated "[a]bout a nine." Plaintiff said
the injuries to her left shoulder represent her biggest complaint.
Plaintiff testified she currently takes over-the-counter
medications to alleviate her pain, explaining she does not want
to take narcotics. Plaintiff said she currently encounters
difficulty performing various activities of daily living, such as
dressing, bathing, and shaving, due to her neck, back, and left
shoulder pain and other limitations, particularly if the activity
involves reaching with her left arm. Plaintiff also described
difficulty performing yardwork and caring for her elderly rescue
dog, a golden retriever. Plaintiff stated she received no
treatment for her neck, back, or shoulder for approximately two
years before the subject accident.
Plaintiff also presented the videotaped de bene esse
deposition of Dr. Magaziner, who testified plaintiff sustained the
following injuries as a result of the subject accident: L5-S1 disc
4 A-1091-16T4
herniation; left supraspinatus rotator cuff tear; additional
ligament injury to the cervical, thoracic and lumbar spine, which
will not heal to function normally; and right elbow epicondylitis,
which resolved.
Dr. Magaziner acknowledged plaintiff's previous medical
issues, noting she
did have some arthritis in the shoulder. She
did have arthritis in the neck and
degenerative disc disease in the neck. She
did have arthritis in the lower back and some
disc bulges in her lower back and some
degeneration in her lower back. She did have
a history of what we call carpal tunnel
syndrome and tarsal tunnel syndrome . . . .
On cross-examination, Dr. Magaziner acknowledged treating
plaintiff for neck, shoulder, lower back, and forearm injuries
after an automobile accident in 2000. He treated her every year
from 2003 to 2010. On July 28, 2010, he noted plaintiff was
"having a flare-up of pain in her left neck, left wrist, lumbar
back[,] and left shoulder. . . . [S]he has [a] known diagnosis of
cervical sprain superimposed on degenerative joint disc disease,
left shoulder tendonitis, tendonitis of the left wrist
superimposed on a degenerative process[,] and lumbar
sprain . . . ."
Dr. Magaziner ultimately concluded plaintiff
had an exacerbation of some previous injuries
with the sprains to the neck, mid and lower
back which now became chronic muscle spasms
5 A-1091-16T4
and [a] chronic pain situation. The shoulder
injury[,] although she did have pre-existing
degeneration in the shoulder, it was in this
accident with the seatbelt holding yourself
back and with the forces that occur with that,
and we see all the time, it caused that rotator
cuff . . . to tear[,] and . . . she developed
a further sprain to that shoulder in terms of
the AC joint that we discussed about before,
and if I didn't mention it, the L5-1 disc
herniation . . . .
Defendant briefly testified about the accident, which she
described as "just a tap, that my bumper just tapped hers."
Defendant stated her vehicle sustained "no damage," and she did
not see any damage to plaintiff's car, only "a few scuff marks on
the bumper."
Defendant then presented the videotaped de bene esse
deposition of her medical expert, Steven Hausmann, M.D., an
orthopedic surgeon. Dr. Hausmann reviewed plaintiff's MRIs from
two months before the accident1 and compared them with plaintiff's
MRIs from after the accident. He concluded all of plaintiff's
back and shoulder issues were degenerative, not traumatic, both
before and after the accident. He found no "objective evidence
that [plaintiff] sustained a permanent injury as a result of th[e]
accident." He did note, however, that she had "an exacerbation
1
The record indicates plaintiff's cardiologist ordered the MRIs
in August 2012 as part of an initial cardiology workup.
6 A-1091-16T4
of her degenerative disease, which means a temporary worsening due
to the impact from the accident."
The focus of this appeal occurred during the cross-
examination of plaintiff, when defense counsel asked her four
times about various medical visits with her primary care doctor.
Defense counsel posed these questions even though she did not
intend to call the primary care doctor or any employee of his
office to introduce any of the doctor's office records.
Nevertheless, defense counsel proceeded with the following cross-
examination:
Q: Do you recall going on October 19th of 2012
to see your doctor for a follow up? It was a
seven-month follow-up visit?
A: Which doctor is that?
Q: This is your primary care doctor . . . .
Who is your primary care doctor?
A: Is it Friedman?
Q: Dr. Friedman. Yes.
A: It was probably an appointment I had for
months. Yes. I do follow up with him.
Q: And do you remember complaining at that
time of back and neck pain but no complaint
of shoulder pain?
A: That, I don't recall.
[Defense counsel]: Okay. Your Honor, may I
approach the witness?
[The court]: Sure.
7 A-1091-16T4
[Plaintiff's counsel]: Your Honor, I object.
[The court]: To her approaching the witness?
[Plaintiff's counsel]: Well, I'm anticipating
the next question. I'm just trying to avoid
a –
[The court]: Well, let's hear what the
question is.
[Plaintiff's counsel]: Okay.
[Defense counsel]: Thank you. . . . I'll mark
this as D-3.
[The court]: Okay. What is it?
[Defense counsel]: . . . . It's the medical
record.
. . . .
[The court]: D-3 is, you say, her records?
[Defense counsel]: Yes.
[The court]: Okay.
[Defense counsel]: This is the medical record.
Q: And, at that time, your primary care doctor
said that you –
. . . .
[The court]: That's objectionable. That's
hearsay.
[Defense counsel]: Let me . . . refer you to
that.
[Plaintiff's counsel]: Well, there's no
question pending, right?
8 A-1091-16T4
[The court]: I know. She's just . . . having
her look at it to refresh her recollection.
[Plaintiff]: Okay.
Q: After reviewing this note, do you remember
going to see your primary care doctor?
A: No. I really don't.
Q: Okay. Do you remember your doctor
referring you to Dr. Magaziner?
A: I know at one point when I was at his
office, we discussed things like that, but I
don't remember when that was.
Q: You don't remember anything about that?
A: No.
Q: Do you remember making other complaints of
back and neck pain to your primary care doctor
in between that time period that you were just
asked about the year before the accident, a
year or two before, between 2010 and 2012? Do
you remember making any complaints?
A: Just general discussion.
Q: What do you mean by "general discussion?"
A: If he – like when you go to any doctor's
office, they ask, oh, if you have a pain or
what's been going on, that type of thing.
Q: Do you remember going on March 19th of 2010
and complaining about back pain?
A: No.
[Plaintiff's counsel]: Your Honor, . . . I
object for the same reason.
[The court]: Again, what are . . . you
asking if she remembers?
9 A-1091-16T4
[Defense counsel]: Well, I can refresh her
recollection.
[The court]: No. You can't. It's not her
document. So the question is, what are you
asking her to recollect? If she doesn't
remember, she doesn't remember.
[Defense counsel]: I'm asking if she recalls
going and I thought I would have an
opportunity for her to look at the notes to
refresh her recollection.
[The court]: You can show her that to refresh
any recollection she may have, so you can go
through the same exercise again. We'll mark
it as D-4.
[Defense counsel]: Okay.
[The court]: And then you can ask the witness
if she remembers it.
. . . .
[The court]: Just take a look at it and tell
us if you recall that visit to that doctor.
A: My name is on here. I guess I was there.
[The court]: The question is, do you recall
being at that visit?
A: No. I don't.
[The court]: Okay. Next?
Q: Do you remember making a complaint to the
doctor August 25th of 2010 that you were
having neck and back pain here and there?
[Plaintiff's counsel]: Your Honor, –
[The court]: Again, – again, let's go to
sidebar.
10 A-1091-16T4
[Defense counsel]: Okay.
(Off-the-record discussion at side bar)
[The court]: Ladies and gentlemen of the jury,
just so you understand and I am instructing
you that these records are not authenticated,
not to be held by a witness, so they're
basically hearsay documents, which we don't
know how genuine they are or not. So,
therefore, that's why [h]e objected . . . [,]
and the objection is appropriate because
that's why they cannot even be read to the
witness at this time. So I'm going to ask
that [defense counsel] just continue the line
of questioning[,] and we'll continue from
there.
Q: Do you remember going to your doctor about
January 18th of 2011 because you had injured
your back while shoveling snow?
A: No. I don't.
[Plaintiff's counsel]: Your Honor, –
[The court]: Again, – well, –
[Plaintiff's counsel]: The same objection.
[Defense counsel]: Well, –
[The court]: Well, no. . . . [T]hat has
nothing to do with anything other than whether
or not she remembers having ever done that.
The answer is, no. The question is not
evidence. It's just the answer. So the answer
is no, she doesn't remember any such thing.
[Defense counsel]: May –
[The court]: You may continue.
11 A-1091-16T4
[Defense counsel]: May I show the witness a
document just to see if it will refresh her
recollection?
[The court]: No. It's not her document. None
of her documents are here.
Q: And at the time of the . . . accident in
2012, . . . do you remember if you were still
feeling some pain in your neck and back around
that time? You don't remember whether or not
you were, correct?
A: No. I don't remember that.
Q: And . . . you can't say whether or not you
were feeling pain in your left shoulder at the
time of the 2012 accident either. Is that
right?
A: That's correct.
By the end of plaintiff's testimony, the court realized that
defense counsel's cross-examination improperly presented plaintiff
with inadmissible documents in front of the jury.2 Recognizing
the need for a curative instruction, the next morning, before
summations, the judge gave the jury the following instruction:
I . . . want to talk to you . . . before
we get started about the defense [c]ounsel's
2
At the new trial motion hearing, the judge offered the following
explanation for what occurred during the cross-examination of
plaintiff:
I just think that it was unfortunate that
these were records that were not
authenticated. I, frankly, when they first
started, I thought they were authenticated
records. I thought there was no question
about them being – you know, being identified
and put into evidence and they weren't.
12 A-1091-16T4
cross-examination of plaintiff and several
questions you asked regarding statements
allegedly made to a doctor.
I want to remind you that the questions
were, in fact, improper. You have to
disregard the questions and any answers that
may have been given. Just because there's
been no evidence presented in this case
indicating that plaintiff complained to any
doctor regarding any pain or injury, other
than as testified to by Dr. Magaziner. What
he testified to is obviously evidence in this
case. You can disregard any assertion to the
contrary.
While defense [c]ounsel may have been
reading from some document, those documents
have not been offered or admitted as evidence
in this case[,] and, therefore, they're
unauthenticated, unreliable, and inadmissible
under our rules of court[,] and as I explained
to you earlier when I gave you preliminary
instructions, the questions the attorneys ask
are not evidence. Only the answers are[,]
and . . . if I exclude something from evidence,
don't speculate or guess what it might even
say. And so only the answers given by the
witness are evidence. So you can at this point
disregard the line of questioning from the
defense [c]ounsel and the implications made
from those questions.
I also want to remind you or instruct you
that plaintiff's [c]ounsel's objections were
proper[,] and that's to protect the jury from
unreliable and inadmissible evidence. So he
was obligated to make those instructions,
those objections. I wanted to make sure that
you understand that the plaintiff's [c]ounsel
could not be considered to have making any
objections to prevent you from hearing any
evidence or hiding anything from you. Any
evidence that's admissible will go to the
jury, just so you understand.
13 A-1091-16T4
After the defense rested, plaintiff moved for a directed
verdict on liability, citing Dolson v. Anastasia, 55 N.J. 2 (1959),
which the trial court granted. After the jury awarded damages of
only $3200, plaintiff filed a motion for a new trial or additur.
At the beginning of oral argument, the court said, "[C]learly,
it's a fairly low damage award. The question is why. I mean,
that's really the issue and is there anything about that
questioning, which, you know, pretty much makes the jury suspicious
of her[,] and that's really the issue." The court added:
There's no question that there is evidence to
support a jury verdict that she did not
sustain significant long-term injuries
. . . . But the problem is, to what extent
is the jury verdict a reflection of that
nagging credibility issue. That's the . . .
crux of what [plaintiff's] argument is and,
frankly, . . . at the time, . . . I thought
there was a request for a mistrial, if I
recall. And I . . . was willing to let the
jury hear it and hope . . . maybe they would
rehabilitate it[,] or he would be able to
rehabilitate it. . . . [T]o me, the verdict
is exceedingly low. There's no question about
it.
In response to defendant's argument that defense counsel's
cross-examination could not shock the jury because they knew
plaintiff had neck, back, and shoulder pain before the accident,
the court said, "I appreciate that, but the test is not
whether . . . the jury was shocked by it. The question is whether
it shocks my conscience that they came up with a number, which I
14 A-1091-16T4
think is just grossly inadequate to even pain and suffering,
frankly."
At the conclusion of oral argument, the court granted
plaintiff a new trial. The court explained,
. . . I heard the whole trial[,] and . . . I
can see the jury's reaction[,] and that, to
me, is a significant issue[,] and I was
concerned about it[,] and . . . I said on the
record or at side bar . . . we'll see what the
jury does with it[,] and I think the jury was
influenced by it[,] and I think they were
improperly influenced by it[,] and I think
[plaintiff's counsel] characterized my
curative instruction as valiant, which is
nice, but it just seemed ineffective[,] and
that's what it comes down to.
Defendant then filed this appeal.
II.
A jury verdict is entitled to considerable deference, Risko
v. Thompson Muller Auto. Grp. Inc., 206 N.J. 506, 521 (2011), and
should not be set aside by a trial court unless, "after canvassing
the record and weighing the evidence, . . . the continued viability
of the judgment would constitute a manifest denial of justice."
Baxter v. Fairmont Food Co., 74 N.J. 588, 597-98 (1977); see Risko,
supra, 206 N.J. at 521 ("[A] motion for a new trial should be
granted only after 'having given due regard to the opportunity of
the jury to pass upon the credibility of the witnesses, it clearly
and convincingly appears that there was a miscarriage of justice
under the law.'" (quoting R. 4:49-1(a)). Trial courts must refrain
15 A-1091-16T4
from substituting their own conclusions for that of the jury
"merely because he [or she] would have reached the opposite
conclusion." Ibid. (alteration in original) (quoting Dolson,
supra, 55 N.J. at 6).
Appellate review is guided by a similar standard. This court
reverses the grant or denial of a motion for a new trial only when
"it clearly appears that there was a miscarriage of justice under
the law." R. 2:10-1; see Bender v. Adelson, 187 N.J. 411, 431
(2006).
A "miscarriage of justice" has been described
as a "pervading sense of 'wrongness' needed
to justify [an] appellate or trial judge
undoing of a jury verdict . . . [which] can
arise . . . from [the] manifest lack of
inherently credible evidence to support the
finding, obvious overlooking or under-
valuation of crucial evidence, [or] a clearly
unjust result. . . .'"
[Risko, supra, 206 N.J. at 521 (alterations
in original) (quoting Lindenmuth v. Holden,
296 N.J. Super. 42, 48 (App. Div. 1996),
certif. denied, 149 N.J. 34 (1997)).]
"[A] civil plaintiff has a constitutional right to have a
jury decide the merits and worth of [his or] her case." Johnson
v. Scaccetti, 192 N.J. 256, 279 (2007) (citing N.J. Const. art.
I, ¶ 9). Our Supreme Court has long held:
The decision on whether inadmissible evidence
is of such a nature as to be susceptible of
being cured by a cautionary or limiting
instruction, or instead requires the more
severe response of a mistrial, is one that is
16 A-1091-16T4
peculiarly within the competence of the trial
judge, who has the feel of the case and is
best equipped to gauge the effect of a
prejudicial comment on the jury in the overall
setting.
[State v. Winter, 96 N.J. 640, 646-47 (1984).]
The same is true in civil cases, Khan v. Singh, 397 N.J. Super.
184, 202 (App. Div. 2007), aff'd, 200 N.J. 82 (2009), and for
comments by counsel, State v. Yough, 208 N.J. 385, 397 (2011).
"The determination of whether the appropriate response is a
curative instruction, as well as the language and detail of the
instruction, is within the discretion of the trial judge[.]" State
v. Wakefield, 190 N.J. 397, 486 (2007) (quoting State v. Loftin
(I), 146 N.J. 295, 365-66 (1996)), cert. denied, 552 U.S. 1146,
128 S. Ct. 1074, 169 L. Ed. 2d 817 (2008).
N.J.R.E. 612 allows the use of a writing, such as a medical
record, to refresh a witness's recollection. However, when a
writing is used for this purpose, "[t]he admissible evidence is
the recollection of the witness, and not the extrinsic paper."
State v. Carter, 91 N.J. 86, 123 (1982). Therefore, a trial court
has an obligation to prevent a witness or party "from putting into
the record the contents of an otherwise inadmissible writing under
the guise of refreshing recollection." State v. Caraballo, 330
N.J. Super. 545, 557 (App. Div. 2000). Notably, defendant does
not argue for the application of any hearsay exceptions commonly
17 A-1091-16T4
used to introduce prior treatment records. See, e.g., N.J.R.E.
803(c)(6) (the exception for records of regularly conducted
activity); N.J.R.E. 803(c)(5) (the exception for recorded
recollection); N.J.R.E. 803(c)(4) (the exception for statements
for purposes of medical treatment or diagnosis). As noted, defense
counsel had no plan to call the primary care doctor or any employee
of his office to introduce any of the doctor's office records.
"It is improper 'under the guise of "artful cross-
examination," to tell the jury the substance of inadmissible
evidence.'" United States v. Sanchez, 176 F.3d 1214, 1222 (9th
Cir. 1999) (quoting United States v. Hall, 989 F.2d 711, 716 (4th
Cir. 1993)). "The reason for this rule is that the question of
the cross-examiner is not evidence and yet suggests the existence
of evidence . . . which is not properly before the jury." State
v. Spencer, 319 N.J. Super. 284, 305 (App. Div. 1999).
Nevertheless, defendant argues, "[b]ased on the evidence at
trial it was logical that a jury would find [plaintiff] sustained
only a temporary strain and award damages accordingly." To support
her argument, defendant cites Cuevas v. Wentworth, 226 N.J. 480,
486 (2016), in which our Supreme Court stated a trial judge may
not rely "on personal knowledge of other verdicts and on
purportedly comparable verdicts presented by the parties in
deciding whether to remit a pain-and-suffering damages award."
18 A-1091-16T4
Because the trial court declined to grant plaintiff's motion for
additur and based its decision of the jury's reaction to defense
counsel's improper cross-examination of plaintiff, we conclude
Cuevas has no application here.
Defendant next argues, "[t]he curative instruction in this
case was thorough in addressing any possible harm caused by [her
counsel's] cross-examan[ination] of [plaintiff]," and "[t]here is
no basis for finding that the jury did not follow the court's
instruction in this case." We disagree. Defense counsel asked
specific questions about three separate doctor's visits, and
defense counsel strongly implied she had medical records that
affirmatively answered those questions.
First, defense counsel asked whether plaintiff had complained
of neck, back, or shoulder pain to her primary care physician
after the accident but before seeing Dr. Magaziner. When plaintiff
said she did not, defense counsel told the jury she had plaintiff's
medical records and then asked whether they helped her remember.
Plaintiff said no, but defense counsel effectively informed the
jury that she had complained of neck, back, and shoulder pain,
especially after she asked, "Do you remember your doctor referring
you to Dr. Magaziner?"
Second, defense counsel asked whether plaintiff remembered
complaining to her primary care physician during the two years
19 A-1091-16T4
prior to the accident. When plaintiff said she only recalled
general discussions, defense counsel asked whether she remembered
going to her primary care doctor on March 19, 2010, and complaining
about back pain. When plaintiff said no, defense counsel presented
her with medical notes, strongly implying they proved plaintiff
went to the doctor on March 19, 2010, and complained of back pain.
Third, defense counsel asked plaintiff if she complained
about neck and back pain to her doctor on August 25, 2010. Once
again, when plaintiff said no, defense counsel asked the court for
permission to show another document to try to refresh plaintiff's
memory. Although the court denied defense counsel's request, this
exchange clearly informed the jury she had more medical records
supporting her questions.
A trial court has an obligation to prevent a witness or party
"from putting into the record the contents of an otherwise
inadmissible writing under the guise of refreshing recollection."
Caraballo, supra, 330 N.J. Super. at 557. These medical records
were all inadmissible. Under the hearsay exception for records
of regularly conducted activity, N.J.R.E. 803(c)(6), defense
counsel failed to present any evidence concerning the method of
preparation of the records. Defense counsel never presented proof
of when the records were prepared, who prepared them, or what they
meant. Under the hearsay exception for recorded recollection,
20 A-1091-16T4
N.J.R.E. 803(c)(5), the records do not contain plaintiff's
statements. Instead, they contain only statements from
plaintiff's primary care physician or another medical provider.
These statements may have shown the doctor's understanding of
statements made to him by plaintiff, but the record does not
contain any evidence supporting this conclusion.
Under the hearsay exception for statements for the purposes
of medical treatment, N.J.R.E. 803(c)(4), the medical records do
not contain any statements from plaintiff, only statements from
her primary care physician. In the absence of testimony from the
doctor who wrote the records, defense counsel failed to establish
their admissibility under any hearsay exception.
This court defers to a trial court's competence when the
trial court assesses whether "inadmissible evidence is of such a
nature as to be susceptible of being cured by a cautionary or
limiting instructor, or instead requires the more severe response
of a mistrial." Winter, supra, 96 N.J. 646-47. The trial court
"was concerned" after it "heard the whole trial" and saw "the
jury's reaction" to defense counsel's inappropriate cross-
examination. It found defense counsel's gamesmanship "improperly
influenced" the jury, and its "curative instruction . . . just
seemed ineffective." We defer to its factual findings and affirm
its order for a new trial on plaintiff's damages.
21 A-1091-16T4
Affirmed.
22 A-1091-16T4