JENNIFER THOMPSON VS. LIBERTY MUTUAL INSURANCE COMPANY (L-1727-16, OCEAN COUNTY AND STATEWIDE) ( 2020 )

NOT FOR PUBLICATION WITHOUT THE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-2810-18T3
JENNIFER THOMPSON
and JOHN THOMPSON,
Plaintiffs-Appellants,
v.
LIBERTY MUTUAL
INSURANCE COMPANY,
Defendant,
and
ALLSTATE INSURANCE
COMPANY,
Defendant-Respondent.
________________________
Submitted March 31, 2020 – Decided July 1, 2020
Before Judges Hoffman and Firko.
On appeal from the Superior Court of New Jersey, Law
Division, Ocean County, Docket No. L-1727-16.
Maggs, McDermott & Dicicco, LLC, attorneys for
appellant (James A. Maggs, of counsel; Victoria J.
Adornetto, on the briefs).
Hoagland Longo Moran Dunst & Doukas, attorneys for
respondent (Richard J. Mirra, on the brief).
PER CURIAM
On December 14, 2012, an Acura MDX driven by Jonathan Judson
collided with a Mercury Grand Marquis driven by plaintiffs' daughter. As a
result of the collision, plaintiff 1 – a belted front-seat passenger in her daughter's
vehicle – sustained injury. After settling with Judson for the policy limits of the
insurance covering the MDX, plaintiffs presented a claim for underinsured
motorist (UIM) compensation to their auto insurance carrier, Allstate Insurance
Company (Allstate). Pursuant to the Automobile Insurance Cost Reduction
Act,2 Allstate's policy contained a provision requiring plaintiff to show she
suffered a permanent 3 injury in order to recover noneconomic damages.
1
In this opinion, we refer to Jennifer Thompson individually as plaintiff, and
Jennifer and John Thompson collectively as plaintiffs. Plaintiff's husband sues
per quod.
2
N.J.S.A. 39:6A-1.1 to -35.
3
As defined in N.J.S.A. 39:6A-8(a), "An injury shall be considered permanent
when the body part or organ, or both, has not healed to function normally and
will not heal to function normally with further medical treatment."
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2
Unable to resolve their UIM claim, plaintiffs filed suit against Allstate. 4
After Allstate stipulated liability, the matter proceeded to trial before a jury on
the issues of proximate cause and damages. On January 17, 2019, at the
conclusion of a three-day trial, the jury returned a unanimous verdict, finding
plaintiffs did not prove that plaintiff sustained a permanent injury that was
proximately caused by the December 14, 2012 accident. Based on the jury's
verdict, the trial judge entered a "no cause" order of dismissal. This appeal
followed, with plaintiffs contending that erroneous evidentiary rulings resulted
in harmful error. We agree, and therefore reverse the dismissal order, reinstate
plaintiffs' complaint, and remand for a new trial.
I.
We derive the following facts from the trial record. We first address the
happening of the accident and then plaintiff's injuries.
A. The Accident.
The accident occurred when the Grand Marquis driven by plaintiffs'
daughter stopped for a red light in the westbound lane of Route 70, at its
4
Plaintiffs also asserted a UIM claim against Liberty Mutual Insurance
Company, the insurer of the Grand Marquis. The trial court granted Liberty
Mutual's motion to dismiss in lieu of a responsive pleading.
A-2810-18T3
3
intersection with Lake Ridge Boulevard, in Toms River. According to plaintiff,
after her daughter brought the vehicle to a complete stop for the red light, the
MDX struck them from behind; as a result of the impact, the Grand Marquis
"jolted forward."
Plaintiff recounted that after Judson "exchanged words" with her
daughter, he "[got] in his car, [went] around us[,] and [left] the scene." Plaintiff
and her daughter then pulled off into a nearby parking lot and called the police.
According to Judson, the Grand Marquis "made a complete stop at a
yellow light and [he] didn't have time to react." He tried to swerve around it,
but "end[ed] up clipping her bumper just enough where it tapped her car . . . ."
Judson estimated his speed at the point of impact at "[n]o more than ten miles
an hour, no more than ten." 5 Judson testified that, after the collision, he and
plaintiff's daughter got out of their vehicles and exchanged words. He claimed
he provided his name to plaintiff's daughter but lost sight of her car after it pulled
away. Instead of searching for her car, Judson continued to his destination.
Patrolman Sean Smith of the Toms River Police Department responded to
the scene, where he spoke with plaintiff and her daughter. He recorded his
5
At his deposition, Judson estimated his speed at the time of impact "[p]robably
like [fifteen] to [twenty] miles an hour if that."
A-2810-18T3
4
observations in a written police report, noting, "Rear end damage was observed
to [the Grand Marquis]. No injuries were reported by the driver or
passenger . . . ." Patrolman Smith offered to call an ambulance for plaintiff, but
she declined.
Provided with the license plate number of the MDX, the next day
Patrolman Smith proceeded to an address in Lakewood, where he found the
Acura involved in the accident. He observed "[m]inor damage . . . to the front
of the vehicle." He testified that "minor damage" usually indicates "cosmetic
damage" or "non-disabling" damage.
Patrolman Smith spoke to the owner of the MDX, who told him that
Judson drove the Acura the day before. After phoning Judson and hearing his
version of events, Patrolman Smith issued traffic citations charging him with
leaving the scene of an accident, N.J.S.A. 39:4-129(b), and careless driving,
N.J.S.A. 39:4-97.
Plaintiff's husband testified that his daughter called him and informed him
of the accident. He came to the scene and drove plaintiff home, with their
daughter following in her car. Shortly after arriving home, plaintiff's husband
drove her to the Ocean Medical Center emergency room.
A-2810-18T3
5
After answering questions about his wife's injuries, plaintiff's husband
testified that he took the Grand Marquis to a body shop and personally monitored
the repairs. At that point, Allstate's attorney asked to be heard at sidebar, where
the following exchange occurred:
[ALLSTATE'S ATTORNEY]: I'm not quite sure where
this is going. The vehicle was repaired by . . . Atlantic
Auto Body. There is no witness named from Atlantic
Auto Body that's coming here. I don't know if
[plaintiff's attorney] intends to get into with this witness
what repairs were done but there needs to be some type
of expert to say, here is what repairs were done related
to any damage cause by this accident. This witness can
testify what his observations are, but he's not an expert
witness.
[PLAINTIFFS' ATTORNEY]: He can talk about his
observations of the car and the damage he observed
while at the body shop.
[ALLSTATE'S ATTORNEY]: No he can't.
....
[PLAINTIFFS' ATTORNEY]: I don't have to call [an]
expert. [Plaintiff's husband] went to the site, he saw the
bumper removed, he saw the undercarriage damage, he
saw the damage to the frame . . . . They were repairing
the frame, they repaired the trunk. If [Allstate is] going
to put in pictures of just the bumper, then it's highly
prejudicial to leave out the fact that there is damage
completely behind [the bumper] –
[THE COURT]: But you need an expert.
A-2810-18T3
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....
[PLAINTIFFS' ATTORNEY]: He can discuss his
personal observations.
[THE COURT]: But it's too speculative as to what
caused it. He's saying, they opened up the bumper and
I saw this. How does he know what caused it?
....
[PLAINTIFFS' ATTORNEY]: . . . . [Allstate] wants to
put in pictures of the bumper and say it was a tap and
minimal damage. It's highly prejudicial if you [keep]
out the rest of the – the remainder of the pictures that
show that that was not the extent [of the damage].
....
[THE COURT]: . . . . No. [He] can't testify. He's not
an expert to testify to that and you had ample
opportunity . . . to get an expert for that. It would have
been so easy for you to get an expert for that. I'm not
going to do this, no way. In the 12th hour [you] put him
on to say they took off the bumper and I saw this
cracked. It's too speculative. Sorry.
After the sidebar ended, the judge then announced, "I'm sustaining the
objection." He did not provide the jury with any explanation or instruction
regarding his ruling.
Based upon the court's ruling, plaintiffs' attorney did not question
plaintiff's husband any further about the observations he made when the bumper
was removed from the Grand Marquis, nor did she attempt to have him identify
A-2810-18T3
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photos he took during the process. Consequently, the jury did not hear the
observations made by plaintiff's husband6 at the body shop nor did they get to
view photographs of the damage behind the rear bumper.
After plaintiffs rested, Allstate called Judson as a witness and he provided
the previously described testimony that he "tapped" plaintiffs' car and that the
impact and damage were minor. Over objection,7 the trial judge allowed Judson
6
After convincing the judge to preclude testimony regarding the monitored
repairs of the Grand Marquis, Allstate's attorney then brought out, on cross -
examination, that plaintiff's husband had been employed by Plymouth Rock
Insurance Company for the previous fourteen years. He described his position
as an administrator for the company's Direct Repair Program, meaning "I'm
responsible for our repair facilities."
7
In her objection, plaintiffs' attorney argued it would be "highly prejudicial"
for the court to allow Allstate to allow Judson to identify and discuss
photographs relating to the post-accident damage to the Grand Marquis, after
precluding plaintiff's husband from testifying regarding the observations he
made at the body shop; in addition, she cited the absence of any photographs
depicting the damage to the Acura. The judge overruled the objection without
explanation. He then asked plaintiff's attorney if she wanted him to charge the
jury, at that point, in accordance with Model Civil Jury Charge 5.34 (Property
Damage In Motor Vehicle Accidents). She responded yes and the judge advised
the jury:
In some accidents resulting in extensive
vehicle damage[,] the occupants may suffer
minor injuries or no injuries at all. In other
accidents where there is no or little
apparent vehicle damage[,] the occupants
may suffer serious injuries.
A-2810-18T3
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to authenticate multiple photographs of the Grand Marquis with the rear bumper
still intact and testify that he only caused a "scratch" to the right side of the
vehicle's bumper. While the photographs apparently also showed damage to the
left rear brake light and misalignment of the trunk, Judson testified that this
other damage "had to [have] been [pre-existing], unless I hit the car at [forty]
miles an hour."
B. Plaintiff's Injuries.
At the emergency room, plaintiff presented with complaints involving her
neck, back and right wrist. According to plaintiff, "They took x-rays of my right
wrist. . . . They gave me a brace and a sling. They also took x-rays of my neck,
as I told them I was in a prior accident and had hardware. They wanted to make
sure the hardware was not affected . . . ." Plaintiff was released with a
recommendation for follow-up care.
In reaching your decision in this matter[,]
you are to give the photographs whatever
weight you deem to be appropriate. [They
are] but one fact to be considered, along
with all other evidence[,] in determining
whether the plaintiff sustained injuries as a
result of the accident.
A-2810-18T3
9
Six days later, plaintiff went for follow-up care with Dr. Hoan-Vu
Nguyen, M.D.,8 a board certified orthopedic surgeon with a sub-specialty in
spinal surgery. According to Dr. Nguyen, plaintiff reported complaints relating
to her "neck, her right wrist, her upper back and her lower back." Initially, he
prescribed conservative treatment in the form of physical therapy and a wrist
splint. When plaintiff's symptoms persisted, Dr. Nguyen sent her for an MRI of
her lumbar spine in April 2013, approximately four months after the accident.
He read the MRI as showing "a [disc] herniation at L5-S1 . . . a central herniation
with associated annular tear." Dr. Nguyen also sent plaintiff to another
physician in his practice, Dr. Meyers, who performed epidural injections, facet
injections, and radiofrequency ablation at L4-L5 and L5-S1.
Dr. Nguyen sent plaintiff for a second MRI of her lumbar spine in
September 2014. He interpreted the MRI as showing "more compression on the
nerve root . . . at L4-L5." He stated that plaintiff continued to receive pain
management treatment from Dr. Meyers, at that time.
8
Dr. Nguyen previously treated plaintiff for injuries she sustained in an April
25, 2008 motor vehicle accident. Dr. Nguyen performed cervical fusion
surgeries on plaintiff in December 2009 and June 2011. Plaintiffs settled their
case arising out of the 2008 accident five days before the accident under review.
A-2810-18T3
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Dr. Nguyen testified that plaintiff was hospitalized in May 2015, after she
"developed severe worsening of her pain . . . and weakness in her right leg." He
said the weakness proceeded to the point that plaintiff experienced "foot drop."
Another MRI was completed at the hospital. Dr. Nguyen interpreted the MRI
as showing that the herniation "has gotten even bigger and there's almost no
room for this nerve root." He explained that plaintiff required surgery to remove
"the compression on the nerve," and allow it to heal; otherwise, without surgery
her "foot drop would be permanent."
On July 2, 2016, after plaintiff's symptoms failed to improve, Dr. Nguyen
performed an L4-L5 decompression, laminectomy, and fusion with
instrumentation. He explained the surgery involved removal of the disc and then
the insertion of rods and screws, "or else [her] back would fall apart." While
the surgery did not resolve all of plaintiff's lumbar problems, Dr. Nguyen said
it did improve her foot drop condition.
Plaintiff testified she spent four to five days in the hospital for the surgery.
She described the first day after her surgery as "terrible," recalling "[t]he pain
. . . once everything [wore] off . . . ." She needed to use a walker for several
months after the surgery, and then a cane for several months after that. She also
received physical therapy for six months after her surgery. That therapy brought
A-2810-18T3
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stability to her legs, eventually permitting her to walk again without a walker or
cane; however, at the time of trial, she still had "pain that goes down [her] leg."
As a result, she continued to receive active pain management treatment.
Dr. Nguyen opined that plaintiff's lower back will never return to its pre-
accident state. He further stated that the accident caused plaintiff to sustain
trauma to her cervical spine, resulting in a contusion of the spinal cord, as
confirmed by an MRI. He also described this as a permanent injury.
On the last day of trial, Allstate presented the testimony of its defense
medical expert, Lance Markbreiter, M.D., a board-certified orthopedic surgeon.
Dr. Markbreiter testified, "I don't do major spine surgery. I don't do fusions
such as [plaintiff] had . . . . By 1998, I stopped doing major spinal surgery." He
explained that he now performs mostly outpatient surgeries, "a lot of knees, a
lot of shoulders."
After examining plaintiff and reviewing her medical records – including
multiple MRIs – Dr. Markbreiter issued a written report on May 29, 2017. He
opined that plaintiff's lumbar spine condition was degenerative, and that none
of the MRIs showed any disc herniations. While he acknowledged that
plaintiff's MRIs showed "progressive pathology at the L4-L5 level," he testified
that the 2012 accident caused plaintiff to sustain only "a minor sprain to her
A-2810-18T3
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back." He explained that the initial conservative treatment plaintiff received
and the results of her MRIs both supported his opinion that plaintiff did not
sustain any permanent injuries as a result of the 2012 accident.
Dr. Markbreiter further testified that based upon the police report, the
accident impact "was very minor." Notwithstanding the fact that Dr.
Markbreiter was recognized as an expert witness in the field of orthopedic
surgery, and not as an expert in accident reconstruction or biomechanical
engineering, defense counsel next elicited testimony that the severity of the
impact is "very important. The mechanism of injury, a small tap, it's almost
unheard of that one will cause a disc herniation." Apparently emboldened by
the absence of an objection to this testimony, and notwithstanding the fact that
Dr. Markbreiter did not view any accident photographs prior to issuing his
report, counsel elicited the following testimony:
Q: Dr. Markbreiter the jury is going to have
photographs which they're going to be able to take into
the jury room. I'm going to represent to you that these
have been identified showing the rear of the Thompson
vehicle. You just gave an opinion that you had based
upon the collision report and the history that you had in
terms of the minor nature of the impact. Do those
photographs corroborate that opinion?
A: Yes.
A-2810-18T3
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At this point, plaintiffs' attorney finally objected. The trial judge sustained the
objection, after noting there was not
enough of a basis for [Dr. Markbreiter] to give an
opinion based upon the pictures he's seeing now for the
first time, especially with the limited amount of
information he sees. For example, was it to the right
side, to the left side, or to the middle, or where was
[plaintiff] seated in the car? All of these things are a
factor in what we call impact. I don't think he knows
[anything] about the impact . . . just from looking at
these pictures, are they consistent with a minor
[impact]? Well, the jury can make that decision.
....
That's a factual question that the jury can say, but it's
not one that he can really testify to.
....
I'm going to . . . sustain the objection.
At this point, the trial transcript indicates "sidebar ends." Inexplicably,
the judge did not inform the jury he had sustained plaintiff's objection nor did
he instruct the jury to disregard the last question and answer. Instead, Allstate's
attorney continued with his direct examination of Dr. Markbreiter.
II.
We review a trial court's decisions to admit or exclude evidence under an
abuse of discretion standard. Estate of Hanges v. Metro. Prop. & Cas. Ins. Co.,
202 N.J. 369, 383-84 (2010) (citing Green v. New Jersey Mfrs. Ins. Co., 160
A-2810-18T3
14
N.J. 480, 492 (1999)). In doing so, we grant "substantial deference to the
evidentiary rulings of a trial judge." Fitzgerald v. Stanley Roberts, Inc., 186
N.J. 286, 319 (2006) (citing DeVito v. Sheeran, 165 N.J. 167, 198 (2000)).
Accordingly, absent a showing the trial court abused its discretion, we will not
reverse a decision concerning the admission or exclusion of evidence unless we
conclude it was so wide of the mark as to bring about a manifest injustice. E &
H Steel Corp. v. PSEG Fossil, LLC, 455 N.J. Super. 12, 24-25 (App. Div. 2018)
(citing Griffin v. City of E. Orange, 225 N.J. 400, 413 (2016)).
Under New Jersey's Rules of Evidence, all relevant evidence is
presumptively admissible. N.J.R.E. 402. Evidence is relevant if it has "a
tendency in reason to prove or disprove any fact of consequence to the
determination of the action." N.J.R.E. 401. To determine whether evidence is
relevant, courts look at "the logical connection between the proffered evidence
and a fact in issue." Verdicchio v. Ricca, 179 N.J. 1, 33 (2004) (quoting State
v. Hutchins, 241 N.J. Super. 353, 358 (App. Div. 1990)). Courts determine
"whether the evidence proffered 'renders the desired inference more probable
than it would be without the evidence.'" Ibid. (quoting State v. Davis, 96 N.J.
611, 619 (1984)).
A-2810-18T3
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N.J.R.E. 901 states that "[t]he requirement of authentication or
identification as a condition precedent to admissibility is satisfied by evidence
sufficient to support a finding that the matter is what its proponent claims." As
pointed out by the court in Kalola v. Eisenberg,
[N.J.R.E.] 901 does not erect a particularly high hurdle.
The proponent of the evidence is not required to rule
out all possibilities inconsistent with authenticity, or to
prove beyond any doubt that the evidence is what it
purports to be.
....
The requirement under [N.J.R.E.] 901 is satisfied if
sufficient proof has been introduced so that a
reasonable juror could find that the matter in question
is what its proponent claims.
[344 N.J. Super. 198, 205-06 (Law Div. 2001) (internal
citations and quotations omitted).]
Accordingly, all that is needed to admit photographs is witness testimony
that the photograph is a fair and accurate depiction of what the exhibit purports
to show. See Brenman v. Demello, 191 N.J. 18, 21 (2007) ("The admissibility
of any relevant photograph rests on whether the photograph fairly and accurately
depicts what it purports to represent . . . ."); State v. Joseph, 426 N.J. Super. 204,
220 (App. Div. 2012) ("The authentication of photographic evidence requires a
witness to verify that it accurately reflects its subject, and to identify or state
A-2810-18T3
16
what the photograph shows.") (citing State v. Wilson, 135 N.J. 4, 14 (1994)).
However, a court may exclude otherwise admissible evidence "if its probative
value is substantially outweighed by the risk of [] undue prejudice, confusion of
issues, or misleading the jury . . . ." N.J.R.E. 403.
III.
On appeal, plaintiffs contend the trial judge erred in making his
evidentiary rulings concerning the photographs of the Grand Marquis. Plaintiffs
assert the trial judge should have allowed plaintiff's husband to testify and
introduce photographs of further damage which he observed to the car at the
repair shop. They contend this error was magnified when the judge permitted
Allstate to introduce photographs of the car following the accident, and failed
to properly instruct the jury after sustaining plaintiff's objection to Dr.
Markbreiter's improper testimony commenting on the rear bumper photograph.
A. Evidence of Additional Damage to the Grand Marquis.
Our review is somewhat hindered by the fact that the proposed testimony
of plaintiff's husband and any relevant photographs were not preserved , pursuant
to Rule 1:7-3. Nevertheless, it appears clear from the record what counsel
sought to elicit from plaintiff's husband. See N.J. Sports & Exposition Auth. v.
Koziol, 172 N.J. Super. 219, 221 (App. Div. 1980).
A-2810-18T3
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Although the parties did not request a Rule 104 hearing, we hold that it
was plain error for the trial court not to conduct an evidentiary hearing in order
to determine the admissibility of the testimony and photographs of the additional
damage that was revealed upon removal of the damaged rear bumper. See Kemp
v. State, 174 N.J. 412, 432-33 (2002). Our adversarial process assumes the court
will give the parties an adequate opportunity to be heard; if it does not, it cannot
find facts reliably. Ibid. "[T]he detailed factual record requirement, firmly
entrenched in our jurisprudence, requires adequate process at the evidentiary
stage . . . ." Ibid. In a case where causation was the central issue, evidence of
the severity of the impact to the Grand Marquis clearly had the capacity to
determine the outcome of the case.
The record does not indicate the trial judge reviewed the deposition
testimony of plaintiff's husband or any photographs taken at the body shop.
Without reviewing this critical evidence, we are convinced the judge erred by
telling plaintiff she needed an expert and the challenged evidence was "too
speculative." While it remains possible that the outcome of a Rule 104 hearing
may produce valid reasons for excluding the challenged evidence, such an
outcome is far from certain. We note that an expert would not be required if a
jury, based on its common knowledge and experience, could determine whether
A-2810-18T3
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there was any damage to the frame and, if so, whether it was causally related to
the accident.
Expert testimony is not required when the subject can be readily
understood by jurors utilizing their common knowledge and experience,
provided it is not beyond the "ken of the average juror." State v. Harvey, 121
N.J. 407, 426-27 (1990). A topic is beyond the ken of the jury and requires
expert testimony to support the claim only "when the subject matter to be dealt
with 'is so esoteric that jurors of common judgment and experience cannot form
a valid judgment as to whether the conduct of the party was reasonable.'" Rocco
v. N.J. Transit Rail Operations, Inc., 330 N.J. Super. 320, 34 (App. Div. 2000)
(quoting Butler v. Acme Mkts., Inc., 89 N.J. 270, 283 (1982)). Several cases
provide examples of when expert testimony is not needed. See State v. Harvey,
121 N.J. 407, 427 (1990) (finding that neither comparison between shoe print
and proffered shoe, nor proposition that "shorter people tend to have smaller
feet" required expert testimony); Boland v. Dolan, 140 N.J. 174, 189 (1995) ("an
instrument of 'common knowledge' like an ordinary magnifying glass, generally
requires no expert testimony").
A-2810-18T3
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B. Dr. Markbreiter's Improper Testimony.
We next address plaintiffs' argument that the trial judge erred in not
providing a curative instruction after sustaining plaintiff's objection. Since
plaintiffs failed to request a curative instruction at trial, plaintiffs would
normally face the burden of showing "that the failure to give such an instruction
sua sponte constitutes an error 'clearly capable of producing an unjust result.'"
State v. Mays, 321 N.J. Super. 619, 633 (App. Div. 1999) (quoting State v.
Loftin, 287 N.J. Super. 76, 97 (App. Div. 1996)). Regardless of the judge's
failure to provide a curative instruction or plaintiffs' error in not requesting one,
the plain error here was the judge's failure to announce his ruling and inform the
jury that he had sustained plaintiff's objection. As a result, the jury was allowed
to consider Dr. Markbreiter's improper testimony commenting on the rear
bumper photograph to support his opinions on causation.
Dr. Markbreiter is not a biomechanical expert qualified to comment on
physical forces. The record contains no evidence that Dr. Markbreiter has any
background, training, or experience in biomechanics or accident reconstruction,
nor did defendant offer him as expert in these fields. Moreover, as the judge
noted in sustaining plaintiffs' objection concerning the photograph of the rear
bumper, the record lacks relevant details of the accident, including exact
A-2810-18T3
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information regarding the damage to each vehicle, the size of each vehicle, the
speed of each vehicle, as well as information regarding the interior of plaintiff's
vehicle.
The judge properly sustained plaintiffs' objection to Dr. Markbreiter's
testimony commenting on the extent of damage depicted in the photo of the rear
bumper of the Grand Marquis. Dr. Markbreiter did not rely upon the photo when
he prepared his report setting forth his opinions in this case, nor does the record
reflect that he possesses any expertise in biomechanics or accident
reconstruction.
The heart of the dispute in this case was not whether plaintiff sustained a
serious injury, but rather what caused it. In that context, it was plain error for
the jury not to hear that the judge had sustained plaintiffs' objection to Dr.
Markbreiter citing the rear bumper photo as corroborating his opinion as to the
minor nature of the impact and the unlikelihood that such an impact could have
caused serious injury to plaintiff's spine.
The jury likely accepted Dr. Markbreiter's conclusions regarding
mechanism of injury because they came from a medical expert. We therefore
conclude the failure of the trial court to sustain plaintiffs' objection on the trial
A-2810-18T3
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record resulted in clear prejudice to plaintiffs and was "clearly capable of
producing an unjust result." R. 2:10-2.
Because the trial court mistakenly denied plaintiff's the opportunity to
provide critical evidence regarding damage sustained by the Grand Marquis
without basis, and because of the real prospect that Dr. Markbreiter's improper
opinion testimony had an impact on the critical causation issue in the case, a
new trial is required. We therefore reverse the no cause judgment and remand
for a new trial.
In light of the comments made by the trial judge regarding the testimony
and evidence concerning what plaintiff's husband observed at the body shop
where the Grand Marquis was repaired, which comments went considerably
beyond what was necessary to address the issue at hand and indicated he may
have prejudged the issue, we direct that the case proceed to trial before a
different judge on remand. See P.T. v. M.S., 325 N.J. Super. 193, 220-21 (App.
Div. 1999).
Reversed and remanded. We do not retain jurisdiction.
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