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Brady v. Pulgar


August 27, 2009


On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Docket No. L-1855-05.

Per curiam.


Argued December 9, 2008

Before Judges Winkelstein, Gilroy and Chambers.

In this personal injury negligence action, plaintiff Michael G. Brady filed a complaint alleging that defendants Miguel A. Pulgar, Multi-Care Ambulance, Inc., and Rural/Metro Corp. (collectively, the defendants)*fn1 exacerbated his pre-existing chronic pain syndrome of Reflex Sympathetic Dystrophy (RSD).*fn2

Plaintiff Judith M. Seaver, Michael's wife, sued per quod.*fn3

Following a multi-day trial, a jury awarded plaintiff $12,000,000 ($5,000,000 for pain and suffering and $7,000,000 for future medical expenses); it also awarded plaintiff's wife $2,500,000 on her per quod claim. In addition, the jury determined plaintiff 20% negligent and defendants 80% negligent.

On April 7, 2007, the court molded the verdict based on the jury's determination of comparative negligence and awarded prejudgment interest. An order of the same day entered judgment in favor of plaintiff in the amount of $9,600,000, together with $310,000 pre-judgment interest, and in favor of his wife in the amount of $2,000,000, together with $155,000 pre-judgment interest.

Defendants moved for a new trial on damages, or in the alternative, for a remittitur. Plaintiffs cross-moved for a judgment notwithstanding the verdict (JNOV) on the jury's determination of comparative negligence. On May 11, 2007, the trial court entered an order denying both motions. Defendants appeal, challenging several pre-trial and trial rulings, and the denial of their motion for a new trial, or in the alternative, for a remittitur. Plaintiffs cross-appeal, contending that the court erred in charging comparative negligence and in denying their motion for JNOV on the jury's determination of comparative negligence. For reasons that follow, we affirm.


On April 7, 2005, plaintiffs filed their complaint against defendants. In January 2007, plaintiffs moved in limine to bar the testimony of defendants' expert neurologist, Dr. Eric Fremed. On February 27, 2007, the court entered an order denying the motion, but imposing several limitations on the doctor's trial testimony. The matter was tried to a jury over diverse dates in March and April 2007. The court entered an order of judgment on April 17, 2007. On May 11, 2007, the court entered an order denying defendants' motion for a new trial for damages, or in the alternative, for a remittitur; and denying plaintiffs' cross-motion for JNOV on the jury's finding of comparative negligence.


A. Medical History - 1999 Work Related Accident

On May 12, 1999, plaintiff, then thirty years old and recently married, sold water purifiers for a third-party company. During the course of his employment on that day, plaintiff stepped off a subway train and injured his right foot. Plaintiff's right foot was placed in a cast for several weeks, during which time, instead of healing, he experienced "burning pain" and loss of movement. As a result, plaintiff filed a workers' compensation claim. The Workers' Compensation Division declared plaintiff totally disabled, as did the Social Security Administration (SSA).

Meanwhile, plaintiff visited several physicians, some of whom diagnosed him as suffering from RSD, and others who did not. In December 1999, plaintiff began treatment with Dr. Robert Knobler, a board certified neurologist who specializes in the treatment of RSD, who diagnosed plaintiff as suffering from that disability.

Knobler explained that RSD is a "consequence of improper healing of nerve fibers." It is "a pain disorder typically initiated by some form of trauma," and "is characterized by pain that is out of proportion to the precipitating event." "A minor strain or sprain can lead to the development of this disorder." The nerve damage "tends to occur at nerve endings in the joint spaces following a sprain or strain." According to the doctor, the pain associated with RSD is generally intractable and so severe that some individuals suffering from the disorder commit suicide.

Also according to Knobler, RSD can spread from the affected area by virtue of the sympathetic nervous system, a branch of the automatic nervous system. He explained that the major function of the sympathetic nervous system is to help maintain a person's core body temperature. The doctor testified that once RSD gets under way through alterations in sensation, the central relay station of the sympathetic nervous system is involved, and that in fact allows the anatomical basis for spread[ing] in a mirror image type fashion and to extremities along the line. That is, if the lower extremity's involved, it may spread to the upper. If the upper extremity is involved, it may spread to the lower, and this is based on the anatomy of the sympathetic nervous system.

Knobler found that plaintiff had many classic symptoms of RSD, including: increasingly severe burning pain; swelling, color and temperature changes of the affected foot; changes in the distribution of hair on his right leg; functional impairments causing limitation of movement; tremors; headaches; and difficulty sleeping. In making that diagnosis, the doctor measured plaintiff's skin temperature and found that, consistent with RSD, his skin temperature was colder at his extremities, and he had a "purple red mottling" of his skin.

Knobler explained that "[t]he worsening of pain by movement leads to less movement of the affected body part, and less movement leads to progression of the [RSD] disorder, so the goal of treatment . . . is to reduce the pain to the level in which the individual can then participate in physical movement." As a result, he prescribed several pain medications, including OxyContin and Roxicodone, and prescribed Klonopin and Namenda for nerve dysfunction. He also directed plaintiff to attend aqua therapy sessions to sustain muscle tone. Aquatic therapy is the "mainstay of treatment of RSD" because it allows for movement with far less pain. Knobler opined that patients who participate in aquatic therapy have less muscle atrophy.

In the years following the 1999 accident, plaintiff's condition worsened, with the RSD spreading to his left lower extremity and into his upper extremities. Plaintiff initially walked with the aid of traditional crutches, but developed a "bilateral brachial plexus traction injury," and switched to Lofstrand or forearm crutches. He used a three-wheeled motorized scooter to travel longer distances, but was "supposed to [use] the crutches as much as possible to keep moving."

By 2002, plaintiff's condition had plateaued or stabilized to the point where he "knew what to expect," and could follow "basic routines." During that same year, Knobler recommended that plaintiff, who frequently fell because of "postural instability" caused by an injury from using the traditional crutches, use a wheelchair on days when he could not walk with the Lofstrand crutches. In August 2002, the workers' compensation carrier provided plaintiff with an electric wheelchair. Plaintiff used the wheelchair on days when he was too tired to walk with crutches.

Meanwhile, in April 2002, at the direction of the compensation carrier, Barrett Kolton, a wheelchair accessibility consultant, evaluated plaintiffs' home to determine whether it could be made wheelchair accessible. Kolton concluded that it could not.

In October 2002, plaintiff filed an application in the workers' compensation action, seeking a minivan equipped with an automatic ramp to transport his wheelchair, and monetary assistance in relocating to a wheelchair accessible home. In support of that application plaintiff certified that he developed RSD as a result of his fall in 1999, which had "a devastating effect on every aspect of [his] life." Plaintiff stated he suffered a "constant burning sensation in [his] feet, knees, hips and left arm from the hand to [his armpit]. The constant pain never goes away[;] it just fluctuates in severity." The RSD also caused him to be hypersensitive to changes in barometric pressure, sound vibrations, and touch.

For example, plaintiff said that "when a sheet touche[d] [his] ankle it fe[lt] like a hot knife cutting into [him]." As a result, plaintiff could not wear heavy or rough-textured socks or clothing. Plaintiff stated he had "fallen to the ground" when the wind blew dust onto his legs because it felt like "a thousand grains of fire hitting [him]." Related to his RSD, plaintiff asserted that he also suffered from insomnia, memory loss, ringing in his ears, and gastrointestinal, vision, and sinus problems. Further, plaintiff claimed that on "a good day" he could "only get around on crutches [for] about 100 yards" before falling, and on some days he could not "stand up at all." As a result of these falls, plaintiff suffered injuries to his back, wrist, and head, and missed more than twenty therapy sessions in 2002.

Lastly, plaintiff's 2002 certification addressed his inability to move within his home. Plaintiff certified that his duplex apartment, which was not wheelchair accessible, presented difficulties for me on the most basic levels. I have been trampled both inside and outside of my home on countless occasions. I've been forced to crawl on the ground like an animal to use my bathroom. I live in constant fear of falling and the risk that my condition will get worse as a result of one of these numerous falls.

The entrance to the home posed a particular problem because plaintiff could not use his wheelchair on the stairs leading to the front door and thus had, on occasion, especially when the stairs were icy, been "trapped outside" the house. Plaintiff could not use the downstairs bathroom because he could not fit a wheelchair through the door, and as a result, "soiled himself" when he fell trying to get to the toilet.

In another certification dated June 20, 2003, also filed in the workers' compensation action, plaintiff again requested a minivan with an automatic ramp to transport his wheelchair or scooter. Plaintiff certified that, "[o]n most days [he] need[ed] the aid of a wheelchair and/or scooter in order to get around." He explained that he used the scooter or the wheelchair to travel distances outside, but did not use the devices in the house because he could not get them through his front door. As a result, in February 2004, the compensation carrier offered plaintiffs a $125,000 loan to purchase a wheelchair accessible residence.

At trial, plaintiff acknowledged that his life before his second accident in 2004 "was not easy" but could not compare with what was in store for him. He admitted he had previously fallen at times, but claimed he was always able to get back up to a standing position. Despite his disability, plaintiff asserted he could function independently, and drove "[a] little bit," exercised, prepared dinner, did chores, painted, participated in family events, albeit at a "slower pace," and was able to attend art and music festivals in Hoboken where he lived. Plaintiff's father, Michael Brady, Sr., described his son as a "scooter maniac," driving all over the streets of Hoboken trying to make "the best of a very bad situation."

Seaver, who had been married to plaintiff for less than one month before his 1999 accident, testified that initially it had been difficult to adjust to marriage and to her husband's illness. However, by 2002, they had developed a workable regimen, which allowed her to work full-time and to accompany plaintiff to therapy sessions and doctors' appointments. Despite plaintiff's illness, the couple not only visited museums, restaurants, family functions and art exhibits, but also often entertained people in their home with plaintiff doing the cooking. By 2002, Seaver began to feel as if she had her life back because she was successful at a job she enjoyed and often socialized with co-workers.

B. The 2004 Accident

The only persons to testify to the happening of the accident were plaintiff and Pulgar. Plaintiff testified that on March 2, 2004, at approximately 10:15 a.m., he walked with the aid of crutches up his steep driveway to the sidewalk in front of his home to wait for defendants' medical transport to take him to his aquatherapy appointment at Hackensack University Hospital. When plaintiff reached the sidewalk, he saw defendants' automobile, operated by Pulgar, parked down the street from his home. Plaintiff began walking in the direction of the parked vehicle, but stopped when he saw Pulgar driving toward him. Upon reaching plaintiff, Pulgar opened the driver's side door of the vehicle and said something to him. The car door struck plaintiff's arm and his crutch, causing him to fall down the steep driveway into his garage door.

Contrary to plaintiff's testimony, Pulgar testified that, upon arriving at plaintiff's home, he knocked on the door and plaintiff came "out screaming" that he "was too early." Pulgar returned to his vehicle to wait. About ten or twenty minutes later, plaintiff, who was using crutches, approached the parked vehicle and stood about two or three feet from the passenger's side door. Pulgar opened the passenger's door into plaintiff's crutch. Pulgar described the incident as the door "barely tapp[ing]" the crutch, and denied that the door struck the crutch hard enough to cause plaintiff to fall. According to Pulgar, after the door tapped plaintiff's crutch, plaintiff "stood there . . . for a couple of seconds," and then turned and "started running and screaming with [the] crutches." Pulgar exited the vehicle and attempted to "grab" plaintiff, but plaintiff walked down the driveway on his crutches, still "screaming." Once plaintiff reached the bottom of the driveway he "let go of the crutches and . . . slammed himself against the door."

After the accident plaintiff was taken by ambulance to St. Mary's Hospital, where he was treated in the emergency room and released. The radiologist who read x-rays of plaintiff's right foot and ankle, the same foot injured in the 1999 accident, reported that plaintiff had an "ill-defined cortical undisplaced fracture of the base of the fifth metatarsal that should be clinically correlated."

Knobler examined plaintiff on March 3, 2004, and reviewed the x-rays. He initially found there "was evidence" that plaintiff had broken his foot in the fall, but later said the findings on the x-rays were "negative." Knobler placed plaintiff on full bed rest for five months to limit plaintiff's movement as much as possible. A March 8, 2004 MRI of plaintiff's right foot showed "intact oscial structures without edema of the fifth metatarsal bone."

Plaintiff testified that he felt "stunned" after the accident. His pain increased "[d]ramatically" and "was like nothing that [he] had ever thought could happen." The burning pain in his right foot "felt like . . . the gas was turned on high," and his hips, left hand and arm began to burn. He experienced increased sensitivity to temperature and noise, and could only wear very soft clothing. He underwent several physical changes, including excessive hair growth on his foot, his toes turned purple, his leg swelled, his foot turned in, and his hands curved inward in a "clawlike" fashion. During trial, the jury viewed plaintiff's right foot.

Plaintiff's father testified that after the accident "[a] very bad situation got devastatingly worse," in that plaintiff could no longer use the scooter and crutches for mobility. In order for his son to leave his home, several men had to lift him in and out of his wheelchair; and as a result his son only left his home to attend doctors' appointments. The father stated that his son's transportation to and from the appointments was a "nightmare." The father recalled that on one occasion, his son had to undergo an MRI that lasted four to five hours, and then ride in the car for an hour to get home. Plaintiff's father said his son "cried and sobbed" from pain the entire ride.

Sometime after the accident, Knobler recommended that plaintiff obtain a motorized heavyweight wheelchair. The new wheelchair was larger with a more powerful motor, and the seat inclined so plaintiff could elevate his legs. Thereafter, plaintiffs borrowed money from the compensation carrier for a down payment on a house, and moved to a wheelchair accessible home.

C. Expert Testimony

Knobler opined that the March 2, 2004 accident exacerbated plaintiff's RSD. Knobler concluded that these injuries were permanent and that plaintiff's condition would not improve. He explained that plaintiff's injury was "so severe" that he had "lost function in central nervous system tissue," a function "essential" for recovery.

According to Knobler, prior to the 2004 accident, plaintiff, despite the RSD, could walk as far as a city block and could function independently. After the 2004 accident, plaintiff could no longer walk or stand, and became "incapacitated and dependent on others." Plaintiff also suffered a dramatic worsening of his tremors and dystonic posture (his foot turned inwards). Plaintiff's cognitive abilities suffered as a result of sleep deprivation. Additionally, because plaintiff's pain worsened and spread throughout his body, Knobler increased his dosage of OxyContin and Roxicodone.

Knobler concluded that, although plaintiff's quality of life had been impaired as a result of his RSD, after the 2004 accident it was greatly diminished and became a terrible, terrible existence . . . in the sense that he is affected by total body pain. There's no position that he can get comfortable in, and he really tries as best as possible with the medication . . . to function. Increasing the pain medication is limited because of side effects that will affect bladder and bowel as well as cognitive function, and so there is just so far that you can go in terms of the amount of medication that you [can] give . . . [without] creat[ing] serious problem[s] for him. Without being able to provide adequate pain relief, his ability to participate in physical activities on a day-to-day basis is more severely limited.

Additionally, as a result of the 2004 accident, travel had become extremely painful for plaintiff, so Knobler scheduled plaintiff's examinations four times a year, instead of once a month. Knobler recommended that plaintiff see a physiatrist for rehabilitation, a psychiatrist for depression, and a podiatrist for issues associated with changes to his skin and toenails. He recommended that plaintiff have a home health aide, because plaintiff was "dependent entirely on his wife." Knobler also recommended that plaintiff continue "aquatic and physical therapy and massage," increased to five times a week, to "provide relief," and to allow movement and improve function.

Conversely, defendants' expert, Dr. Fremed, opined that plaintiff was not suffering from RSD based on "[t]he lack of reliable objective findings to confirm that diagnosis." He explained that there are no objective medical tests to determine whether a patient has RSD. The classic symptoms of the syndrome include swollen limbs, hypersensitivity, changes in skin, hair, and nail growth, tremors, and contracted joints. During his examination of plaintiff on July 21, 2006, Fremed found no indication that plaintiff had developed any of these symptoms, although he noted that plaintiff's feet were turned slightly inward. Additionally, although some RSD patients, including plaintiff, have reported that RSD spreads, Fremed found those reports "suspect," because there was "no organic . . . or biological plausible explanation for it."

Fremed found no objective confirmation of plaintiff's complaints of pain. The doctor noted that plaintiff reported "significant pain during any physical contact with his limbs," and during movement. However, Fremed observed that the muscles in plaintiff's legs had not atrophied, and thus he concluded that plaintiff "must have been moving his legs, even though he told [Fremed] it was too painful to do so." And, it was a "convenient coincidence" that plaintiff appeared to develop a tremor while talking about taking medication for tremors.

According to Fremed, plaintiff's hypersensitivity to touch was worse on his right leg and left arm, was non-neuroanatomic, or inconsistent with "nerve distributions," and thus there was "no biologically plausible explanation" for the pattern of plaintiff's reported hypersensitivity. Moreover, although plaintiff claimed that his legs were too sensitive to touch, Fremed noted that plaintiff wore trousers.

Fremed found these findings inconsistent with a diagnosis of RSD. Furthermore, if plaintiff had RSD since 1999, he would have reached the later stages of the disease where he would have developed permanent changes in his skin, toenails, and the hair on his legs, changes not observed by Fremed during his examination. Thus, Fremed concluded that, at the time he examined plaintiff in July 2006, plaintiff did not have RSD. Instead, Fremed found that plaintiff had "a chronic pain syndrome based purely on his self[-]reported pain," explaining: "That's not to say he's faking . . . . [or] lying. We can't tell just based on his own pain complaints whether they're real or what's causing them." Nevertheless, Fremed concluded that even if plaintiff suffered from RSD, his condition was not aggravated or exacerbated by the 2004 accident. He explained that there were no "objective neurological findings" to support plaintiff's self-reported continued deterioration.

D. Damages

Plaintiff testified that after the 2004 accident he could no longer dress or groom himself, shower, or use the toilet without assistance. Although he used to perform such activities as shopping, laundry, cooking, vacuuming, exercising, painting, visiting friends and relatives and driving, he could no longer do so. Plaintiff could use the computer on a limited basis, but was unable to sustain any other type of activity for any duration. He had difficulty sleeping because of the pain, and had to tent his sheets over his body because of his hypersensitivity.

According to plaintiff, before the 2004 accident, he was "limited, but . . . independent," and felt as though he "was a part of society" because he could attend art and music festivals, and could socialize with friends. After the accident, he could no longer walk with the aid of crutches, becoming entirely dependent on his motorized wheelchair for mobility. Plaintiff stated that the exacerbation of his RSD also affected his relationship with his wife. For example, plaintiff said his wife had recently complained that he treated her more like a "home health aide" than a wife. The level of pain also affected their physical relationship.

Seaver testified to the progression of plaintiff's illness and its dramatic effect on their lives. Initially, after the 2004 accident, they hired home health aides to assist plaintiff so Seaver could continue working. Under the terms of the workers' compensation policy they were not able to interview or screen the health aides, and as a result they experienced problems and had to fire several of them for theft, and problems with safety and cleanliness. Unhappy with the quality of care provided to her husband, Seaver left her job to care for him full time.

After the 2004 accident plaintiff became completely dependent on Seaver, who assisted her husband in every facet of his day-to-day activities, including getting dressed, showering, brushing his teeth, washing his face, using the bathroom, and eating. Initially, some of these tasks had proven harder than she expected. For example, Seaver was physically unable to assist her husband in taking showers, so she built a ramp to enable him to get his wheelchair into the shower.

In addition to assisting her husband, Seaver performed many of the chores that he used to do including cooking, food shopping, ironing, laundry, managing money, and vacuuming. She described her quality of life post-accident, as having been changed in every sort of way. Every way, socially, going to work, I have to think about [plaintiff] first. I don't think about myself really at all anymore. And it's . . . very mentally draining for me. I feel I have totally lost my identity. I feel -- I am only a health care provider in a sense. . . . I'm stressed, I'm depressed. It's hard sometimes . . . to get through the day. . . .

With regard to her husband's physical condition, Seaver testified that he suffered much more fatigue and pain after the 2004 accident. She described the intense pain her husband felt when he tried to take a shower, when she hit a bump while driving him to therapy, or when dust blew against his legs. She lamented that why "anybody in the world should have to experience pain like this is mind blowing." Most notably, before the 2004 accident, Seaver said that her husband could walk with "[m]inimal assistance," but afterwards, he could not walk at all. According to Seaver, he was also much more sensitive to temperature and touch.

Seaver described her husband's post-accident sleep patterns as "[h]orrible." She explained that he often cannot get to sleep until 7:30 or 8:00 a.m., when his "body just gives out on him," making her "life harder" because she tries not to make any noise while her husband is sleeping. According to Seaver, her husband's sleep patterns have affected her own.

With regard to their relationship, Seaver testified that after the 2004 accident, her husband became frequently "quiet" and "short tempered," and that "it's hard -- it's very difficult to deal with and to remember that it's the RSD talking, it's not him talking to me." They rarely socialized because it was so difficult, tiring, and painful for her husband to leave the house. Thus, she was rarely able to leave the confines of the house on her own because of her husband's dependency on her.

Barbara Scheffel, a registered nurse and plaintiff's life care planning expert, testified as to plaintiff's future medical and living needs. In preparing a life care plan for plaintiff, she separated the care required after the 1999 accident from the care required as a result of the 2004 accident. In making those determinations, she compared plaintiff's functional abilities. For example, she found that before 2004, although plaintiff needed minimal assistance with walking and driving, he could perform many functions independently, including dressing, using the toilet, eating, and housework. However, Scheffel found that after the 2004 accident, plaintiff's life changed dramatically and she found he needed maximum assistance with almost all of the functions he used to be able to perform independently, and was not able to walk.

Scheffel created a chart comparing the health care provided before the 2004 accident to the care required after that accident, and listed the differences in cost. For example, she concluded that after the 1999 accident plaintiff needed a home health aide eight hours a day, while after the 2004 accident he needed an aide on a twenty-four hour basis. Matityahu Marcus, plaintiff's expert economist, concluded that the total cost of Scheffel's health care plan, based on plaintiff's life expectancy, and discounted to present value, totaled $7,820,336.

Defendants presented no expert witnesses regarding the cost of care. Rather, they defended the case contending that plaintiff's 2004 injury did not exacerbate his pre-existing condition. In so doing, defendants offered the testimony of Kathleen Wiese, a registered nurse and plaintiff's workers' compensation caseworker. Wiese testified that she had met with plaintiff on a monthly basis and accompanied him to most of his physician office visits. Wiese testified that after plaintiff was diagnosed with RSD following the 1999 accident, he used an electric scooter for traveling long distances and crutches for assistance in walking inside his home. According to Wiese, plaintiff had reported frequent episodes of falling. For example, in February 2002, plaintiff told her that he had fallen down thirteen steps while trying to get to his first-floor bathroom. As a result of his frequent falls before 2004, Wiese recommended that plaintiff be provided with a motorized wheelchair "to protect his safety" and to "possibly avoid some falls." He received the wheelchair in July 2002.

Wiese offered other examples of plaintiff's falls prior to the 2004 accident. In August 2002, plaintiff fell and hurt his hand, and on December 13, 2002, he fell four or five times. Later that month, during an appointment with Knobler, Wiese observed that plaintiff's right leg "gave out and he seemed to collapse to the floor." Wiese said plaintiff "appeared" to be "struggling severely trying to get up" because "his face became very red and shivering and quivering."

On January 20, 2003, plaintiff told Wiese that he had fallen down the steps in his home and become entangled in the railing, where he remained for about an hour until his wife got home and could "free him." Plaintiff told Wiese that as a result of that fall, he missed his therapy session, and that "his legs were more painful and swollen than ever." Wiese noted a marked change in plaintiff's functional abilities and a decline in his quality of life after the 2004 accident.

According to Wiese, plaintiff now needs "[m]aximum assistance" in performing daily tasks.

III. - A.

Defendants first argue that the trial court erred in limiting the scope of Dr. Fremed's testimony. Defendants contend that the court improperly barred Fremed from referring to the opinions of several non-testifying physicians who had concluded that plaintiff was "malingering"; applied an unduly restrictive application of N.J.R.E. 703; and failed to conduct an N.J.R.E. 104 hearing. Defendants further assert that the court erred in limiting Fremed's testimony as to whether plaintiff suffered from RSD and whether plaintiff had fractured his foot in the 2004 accident. We reject these arguments.

Plaintiffs moved in limine to bar Fremed from testifying that plaintiff was malingering, contending that Fremed had not previously rendered that diagnosis and was not qualified to do so. Plaintiffs also sought to bar Fremed from referring to reports of non-testifying physicians who had rendered that diagnosis.

In support of that motion, plaintiffs cited to the following portion of Fremed's deposition testimony:

PLAINTIFFS' COUNSEL: Did you think [plaintiff] was malingering on the pain?

DR. FREMED: I have no way of knowing. Again, he may have truly believed he was in pain. . . .

PLAINTIFFS' COUNSEL: So you made no determination whether he was malingering, whether [it] was real, whether it was somatic?

DR. FREMED: I was only able to . . . say what I could objectively observe.

PLAINTIFFS' COUNSEL: So the answer is no, you made no determination?

DR. FREMED: No way I could.

Plaintiffs also referenced Fremed's report of July 21, 2006, wherein he stated:

Concerns in the records reviewed as to malingering or magnification of symptoms, as well as Dr. Knobler's diagnosis of somatoform disorder [physical symptoms not supported by objective testing] with embellishment, are noted. If further confirmation of this is necessary, you may elect to have [plaintiff] evaluated by Dr.

David Masur, a neuropsychologist associated with our office, who would also be in a position to perform formal validity testing which certainly would be useful in this case given these concerns.

Although Fremed did not diagnose plaintiff as malingering, he did state in his July 2006 report that other non-testifying physicians had either diagnosed or, in turn, referenced it. Fremed said he had taken "into account" those and many other reports in reaching his opinion. For example, Fremed cited to Dr. Sharon Worosilo's progress notes, in which she concluded, based on a March 23, 2000 evaluation, that plaintiff was suffering from RSD but "also displayed signs of overt malingering." Fremed quoted from Worosilo's report, wherein she explained:

[A]fter the interview, and while I was speaking with his wife, the [plaintiff] walked in front of me in an extreme antalgic lazy fashion and was unable to bear weight with his walker. The patient also could not get out of the waiting room chair when being called in for the interview. However, when unobserved, the patient walked with a faster gait, and was observed to bear weight fully on both of his feet. In addition, as observed by myself and office workers, when he was outside of the office he threw a cigarette on the ground, and quickly bent over and picked it up, and walked away. Therefore, I think we are dealing with many secondary gain issues, and these need to be addressed by [an] appropriate examiner.

Next, Fremed cited to a July 26, 2001 report by Dr. Arthur Canario, Director of Orthopedics at Beth Israel Medical Center, who diagnosed plaintiff as suffering from the early stages of RSD, but questioned whether plaintiff was "manipulating" his symptoms. In his report, Fremed maintained that Canario had referred to a report by Dr. Charles who thought that the diagnosis of [RSD] was plausible, but nonetheless questioned the validity of the [plaintiff's] symptoms. The [plaintiff] told Dr. Charles that he would not allow his foot to be touched, yet the [plaintiff] was able to put on his shoe without difficulty. Should Dr. Charles's report become available I would be happy to review it and issue a supplemental report if indicated. Dr. Canario said that the later stage of RSD was simply not present in this patient at the time of his evaluation. He said that the bone scan, which one would have expected to be positive for [RSD] . . . was read as normal. [Canario] said "this disability has become the center of [plaintiff's] life, and I feel that he is unquestionably manipulating his symptoms for reasons of secondary gain." [Canario] added, "therefore, we have some objective findings and a large degree of symptom manipulation."

Fremed also quoted from Dr. Kenneth Kutner's March 29, 2001 report, in which Kutner concluded that an analysis of plaintiff's neuropsychological test results revealed a "clear pattern of symptom embellishment." Additionally, Fremed referenced an October 1, 2003 report by Dr. David Conyack of the Center for Pain Medicine, who stated it was "extremely, extremely rare" for RSD to spread throughout the body. Finally, Fremed referred to a November 28, 2003 report by Dr. Charles Effron who had concluded that plaintiff's "subjective complaints were significantly out of proportion to objective findings" and that plaintiff had a "remarkable preservation of muscle bulk in his limbs despite his alleged severity of pain and inability to use the muscles." In his July 2006 report, Fremed ultimately opined:

[B]ased on the history provided, records reviewed thus far, and today's evaluation, . . . there is no objective evidence of worsening of his condition as a result of the fall in question. His alleged dependency on the wheelchair is suspect and is unexplained by any new focal neurological deficits suffered as a direct result of the fall in question.

The pre-trial judge found that Fremed had not relied on the non-testifying physicians' reports in diagnosing plaintiff, and granted plaintiffs' motion in part. The judge expressed "concern[]" about the admission of the reports given that plaintiff suffered from "an aggravation of a very amorphous diagnosis." Accordingly, the judge ruled that, "if the defense wants to . . . demonstrate the malingering issue they've got to bring in one of their experts to do that. The doctor cannot simply incorporate or testify to the malingering simply because the issue was raised in the reports that he read." In the confirming order of February 27, 2007, the judge added: "Because Dr. Fremed did not rely on the diagnosis of malingering made by other doctors in this case, [he] cannot testify as to the opinions of non-testifying experts about malingering unless evidence produced at trial affords a basis for him to comment upon these findings."

During trial, defendants did not present any other experts to testify about malingering. Therefore, in accordance with the pre-trial ruling, plaintiffs moved to limit Fremed's testimony to the contents of his report and deposition testimony, and to bar him from commenting on the non-testifying physicians' diagnoses. Defendants countered that the in limine ruling did not preclude them from asking Fremed about "his own examination and findings where he calls into question malingering." Plaintiffs requested an N.J.R.E. 104 hearing, their counsel arguing that "I think this is a minefield and I think Dr. Fremed is gonna [sic] have to be instructed where he can go and where he can't go." Defendants objected, responding that plaintiffs could object when necessary.

In granting plaintiffs' motion, the court cited to the pre-trial judge's determinations and ruled that Fremed was precluded from testifying as to the diagnosis of malingering made by other non-testifying physicians. The court explained that Fremed could "testify as to what objective testing he did and subjective complaints the plaintiff gave him, but he can't . . . give[] an opinion that he finds . . . malingering. That's the law of the case." Additionally, the court ruled that Fremed could also testify "as to what these [non-testifying physicians] who examined the plaintiff may have found without getting into what their opinions were."

Defendants did not question Fremed about the findings of the non-testifying physicians, as permitted under the trial court's ruling. Instead, defendants asked:

DEFENSE COUNSEL: What . . . kind of condition, in your opinion, does Mr. Brady have at the present time?

DR. FREMED: He has a chronic pain syndrome based purely on his self[-]reported pain. That's not to say he's faking.

That's not to say he's lying. We can't tell just based on his own pain complaints whether they're real or what's causing them.

We don't have a pain meter. We don't have that kind of technology. What we do have is a fundamental knowledge from which we can generate a differential diagnosis. What could possibly be causing these pain complaints, and in this case, you can first make a distinction whether there is malingering or somatization.

Plaintiffs objected and asked for a cautionary instruction. The court sustained the objection and instructed the jury that the "term malingering[] was not part of the opinion that was presented by the [d]octor."

In denying defendants' motion for a new trial, the court indicated that Fremed had been barred from referring to reports by non-testifying physicians because he had not diagnosed plaintiff as malingering and had not relied on those reports in forming his diagnosis. Moreover, the court had allowed Fremed to testify at trial as "to the facts from which the jury could have concluded that [plaintiff] was not telling the truth about his condition," including the fact that Fremed observed no atrophy of plaintiff's affected leg muscles.

A trial court's evidentiary rulings are subject to deference and are reviewed under the abuse of discretion standard. Brenman v. Demello, 191 N.J. 18, 31 (2007). On appeal, the decision should stand unless it is "so wide off the mark that a manifest denial of justice resulted." Ibid. (quoting Green v. N.J. Mfrs. Ins. Co., 160 N.J. 480, 492 (1999)).

In her in limine ruling, the judge did not bar Fremed from referring to the non-testifying physicians' diagnoses of malingering, but rather left that issue open pending trial. However, defendants did not adduce evidence at trial which would have afforded the doctor a basis on which to comment on the non-testifying physicians' diagnoses. Thus, given the failure of defendants to present any basis upon which Fremed could comment on the diagnoses, the court did not abuse its discretion when it limited his testimony in accordance with the prior order.

The non-testifying physicians' reports constituted hearsay. N.J.R.E. 801. N.J.R.E. 703 does not provide an independent basis for the admission of otherwise inadmissible hearsay. Agha v. Feiner, 198 N.J. 50, 63-64 (2009); Day v. Lorenc, 296 N.J. Super. 262, 267 (App. Div. 1996). Nonetheless, hearsay statements relied upon by an expert are ordinarily admissible for the limited purpose of apprising the jury of the basis of the expert's opinion, provided they are of a type reasonably relied upon by experts in the field. Agha, supra, 198 N.J. at 62; In re Civil Commitment of J.M.B., 395 N.J. Super. 69, 93 (App. Div. 2007), aff'd, 197 N.J. 563 (2009). Reports prepared by other physicians are generally of a type reasonably relied on by medical experts. Agha, supra, 198 N.J. at 63; Day, supra, 296 N.J. Super. at 267.

"[A]n expert may testify as to the opinion of a non-testifying expert on which the testifying expert relied in reaching his or her conclusion." Macaluso v. Pleskin, 329 N.J. Super. 346, 355 (App. Div.), certif. denied, 165 N.J. 138 (2000). And, "[a]n expert can legitimately use hearsay evidence to confirm an opinion reached by independent means." J.M.B., supra, 395 N.J. Super. at 93.

However, N.J.R.E. 703 "should not be used as a subterfuge to allow an expert to bolster [his or her] expert testimony by reference to other opinions of experts not testifying." Biunno, Current N.J. Rules of Evidence, comment 7 on N.J.R.E. 703 (2009). Expert testimony should not be used as "'a vehicle for the wholesale [introduction] of otherwise inadmissible evidence.'" Agha, supra, 198 N.J. at 63 (quoting State v. Vandeweaghe, 351 N.J. Super. 467, 480-81 (App. Div. 2002), aff'd, 177 N.J. 229 (2003)) (quotation omitted). And, "[a]n expert witness should not be allowed to relate the opinions of a non[-]testifying expert merely because those opinions are congruent with the ones he has reached." Krohn v. N.J. Full Ins. Underwriters Ass'n, 316 N.J. Super. 477, 486 (App. Div. 1998), certif. denied, 158 N.J. 74 (1999).

Although Fremed cited to the non-testifying physicians' reports, he did not rely on their diagnoses. In fact, the doctor admitted during his deposition that he could not make a determination that plaintiff was malingering as to pain, and that he had neither "accepted nor rejected" the malingering diagnosis. Rather, in his report, Fremed suggested that defendants retain a neuropsychologist to confirm whether the concerns that plaintiff was malingering were valid. Defendants did not do so.

Fremed's diagnosis was different from the non-testifying physicians' diagnoses, further indicating a lack of reliance. He did not diagnose plaintiff as malingering, a fact conceded by defendants at trial. Instead, he found that in 2006, plaintiff was not suffering from RSD, and "no objective evidence of worsening" existed. At most, Fremed set forth in his report that plaintiff's "alleged dependency on the wheelchair is suspect," thereby questioning plaintiff's inability to walk.

However, he did not translate that conclusion to a diagnosis of malingering.

Furthermore, Fremed testified at trial that, even though no objective test was available to assess the degree of plaintiff's "self reported pain," that did not mean plaintiff was "faking" or "lying." Thus, although Fremed quoted from the non-testifying physicians' reports, he never indicated that he relied on those diagnoses, diagnoses that he admittedly was not qualified to make, and had not made.

Similarly unpersuasive is defendants' argument that the court applied an unduly restrictive interpretation of N.J.R.E. 703. Defendants contend that Fremed should have been permitted to refer to the non-testifying physicians' opinions because their diagnoses bolstered and confirmed his diagnosis. Not so.

Here, Fremed and the non-testifying physicians reached different conclusions. Thus, to the extent the doctor may have relied on the non-testifying physicians' observations to confirm his opinion that plaintiff's reliance on the wheelchair "was suspect," the court appropriately allowed reference to those findings. The court only barred Fremed from testifying to the malingering diagnosis, and broadly allowed him to testify about the non-testifying physicians' findings or observations. Under that ruling, Fremed could have testified about Worosilo's observation that plaintiff walked with a faster gait when unobserved, and had on one occasion quickly bent to pick up a cigarette.

Defendants also assert that "at the very least" the court should have conducted an N.J.R.E. 104 hearing to address the issue of whether Fremed had relied on the non-testifying physicians' opinions. We disagree.

The need for an N.J.R.E. 104 hearing is generally remitted to the trial court's sound discretion. Id. at 432. Here, defendants objected to plaintiffs' request for an N.J.R.E. 104 hearing. Accordingly, on the doctrine of invited error, we reject defendants' argument. Brett v. Great Am. Rec., 144 N.J. 479, 503 (1996). Additionally, even if Fremed had relied on the non-testifying physicians' diagnoses, we conclude the hearsay statements were otherwise properly excluded. See Brun v. Cardoso, 390 N.J. Super. 409, 421 (App. Div. 2006) (affirming the trial court's decision barring a testifying physician from referring to a non-testifying radiologist's report because of the complexity of MRI interpretations); see also Nowacki v. Community Medical Center, 279 N.J. Super. 276, 284 (App. Div.) (affirming the trial court's decision in excluding portions of hospital records containing non-testifying physicians' opinions concerning plaintiff's fractures because the records contained "a complex diagnosis involving the critical issue in dispute, as opposed to an uncontested diagnosis or insignificant issue"), certif. denied, 141 N.J. 95 (1995).

Here, as in Brun and Nowacki, the diagnosis of malingering by the non-testifying physicians was a complex medical diagnosis, one which Fremed admitted to not having been qualified to make. Thus, the court did not abuse its discretion in barring admission of this hearsay evidence.

Finally, defendants argue the court unduly restricted them from presenting as a defense the fact that plaintiff's RSD was not exacerbated by the 2004 accident. This is not so. Fremed proffered that expert opinion at trial.

III. - B.

Defendants argue next that the trial court erroneously prohibited Fremed from testifying that other non-testifying physicians had concluded plaintiff was suffering from RSD; and that the condition had not worsened. This argument is meritless.

In his report, Fremed wrote that "[t]he only objective finding[] on today's examination to support the diagnosis of RSD is the mild discoloration of [plaintiff's] lower extremities." During his deposition, the doctor had testified that, although plaintiff may have had RSD "in the past," plaintiff was not suffering from RSD when he examined plaintiff in July 2006. However, he noted that some non-testifying physicians had found at different times that plaintiff's symptoms were consistent with RSD. Fremed explained that RSD can, and often does, resolve itself.

Plaintiffs moved to limit Fremed's testimony to the contents of his report and deposition testimony, thereby barring him from "changing his testimony" as to whether plaintiff had RSD. The court granted the motion. At trial, Fremed testified without objection as follows:

DEFENSE COUNSEL: Did . . . other practitioners [find that plaintiff had] . . . any of the classic RSD signs that you have mentioned that may have been absent on the date of your examination?

DR. FREMED: No, there were some examiners who either reported, based on what [plaintiff] told them, of color changes, or actually saw color changes or swelling, other classic signs of [RSD].

DEFENSE COUNSEL: [B]ased upon your examination and review of the material, did [plaintiff] have RSD and its symptoms on the date of your examination?

DR. FREMED: He did not.

DEFENSE COUNSEL: Based upon your review of the records in this case, may he have had it in the past?


DEFENSE COUNSEL: And what do you base that upon?

DR. FREMED: Well, previous doctors have documented rather classic objective findings and, in fact, even before this accident, other doctors have talked about spread of those findings to other limbs.

Defendants contend that the court's ruling was unnecessary because Fremed had not changed his opinion regarding whether plaintiff suffered from RSD. Defendants assert that the ruling had the "effect of once again precluding Fremed from referring to the opinions of other medical professionals on the issue of the validity or extent of [plaintiff's] RSD condition and whether it was exacerbated by the March 2004 [a]ccident." To the contrary, as stated, the court admitted the evidence.


Defendants argue that the trial court erred in prohibiting Fremed from testifying that plaintiff had not sustained a fracture in 2004. Defendants contend that the court erroneously concluded that the statements contained in Fremed's report were admissible under the adopted admission exception to the hearsay rule. Although we agree that the trial court erred, we conclude that the error was harmless. R. 2:10-2.

Trial courts have the discretion to preclude a party's expert from testifying to opinions beyond the subject matter of the expert's report or other discovery. Mauro v. Raymark Indus., Inc., 116 N.J. 126, 145 (1989); Ratner v. General Motors Corp., 241 N.J. Super. 197, 202 (App. Div. 1990). N.J.R.E. 803(b)(2) provides for the admissibility, as an exception to the hearsay rule, of "a statement whose content the party has adopted by word or conduct or in whose truth the party has manifested belief." If a party adopts statements or reports of others by relying on them specifically in order to answer interrogatories and incorporating them as responses to factual inquiries, they will be deemed adoptive admissions. Skibinski v. Smith, 206 N.J. Super. 349, 353-54 (App. Div. 1985).

In his report, Fremed wrote that the radiologist who read the March 2, 2004 x-ray of plaintiff's right foot and ankle found plaintiff had an "ill[-]defined cortical undisplaced fracture at the base of the fifth metatarsal" that should be clinically correlated. And, Fremed wrote that an MRI conducted of plaintiff's right foot on April 9, 2004 was interpreted as "consistent with a bone contusion, with or without associated occult fracture." But, he admitted that "interpretation of MRI films" was "outside [his] area of neurologic expertise." Nonetheless, during depositions and in discussing another physician's conclusion, Fremed testified that plaintiff had fractured his right foot as a result of the March 2004 accident.

At trial, plaintiffs moved to limit Fremed's testimony to the contents of his report and his deposition, thereby barring him from testifying that plaintiff had not sustained a fracture. The court granted the motion, finding the statements in the report were admissible as adoptive admissions. Plaintiffs then proceeded to cross-examine the doctor on the contents of his report.

A review of the interrogatories and the relevant transmittal correspondence discloses that defendants simply furnished Fremed's report in discovery and did not rely on the report as a response to a factual inquiry. Thus, the court erred in ruling that the statements in the report were admissible under the adoptive admission exception to the hearsay rule. However, we conclude that the error does not constitute grounds for reversal as it was not "clearly capable of producing an unjust result." R. 2:10-2.

Defendants contend that the court "improperly limited Dr. Fremed's testimony on the fractured foot issue to the contents of his report and prohibited him from any discussion of the significance of the lack of a fracture and its effect on his conclusion." Defendants assert this error "was especially prejudicial in light of the jurors' clear confusion" as evidenced by the jurors' questions. We disagree.

At the conclusion of plaintiff's testimony, the jurors submitted the following questions: 1) "When was it clear that you did, indeed, sustain a break in your foot from the fall in question?"; and 2) "[W]as it the right foot broken in the accident of 2004 or was it the same foot as the first accident?" Defendants objected, arguing that the questions could only be answered by a medical expert. Plaintiffs responded that Knobler had addressed the questions in his deposition. The court sustained the objection, explaining "we'll leave that for Dr. Knobler." Following plaintiff's testimony, the court played a tape of Knobler's deposition for the jury. Knobler testified that "there was evidence" that plaintiff had fractured his foot during the March 2004 accident, but then contradicted that testimony when he said the x-ray findings were negative and the MRI was normal.

Defendants did not ask Fremed any questions regarding whether plaintiff had fractured his foot, or what significance a lesser injury would have had on the alleged aggravation of plaintiff's RSD. However, during cross-examination, Fremed testified that although he believed there had been an interpretation of an x-ray showing a fracture, additional tests and reports questioned it. Fremed also testified that the MRI of plaintiff's foot conducted on March 8, 2004, was interpreted to be "intact," that is "it showed no abnormality." Nonetheless, Fremed admitted he had testified during his deposition that plaintiff had fractured his right foot. Thus, Fremed testified that it was not clear from the tests conducted whether plaintiff had fractured his foot; and the jury did not ask what significance a lack of a fracture would have had in this case. Nor did Fremed address that issue.

We conclude defendants were not prejudiced by the exclusion of the evidence. Fremed opined that plaintiff's condition had not objectively changed after the 2004 fall. He did not opine that plaintiff's RSD could have only been exacerbated by a more severe injury, such as a fracture, and that a minor strain or strain would not have constituted a sufficient injury to result in the aggravation of his RSD.


Defendants argue next that the court erred in precluding Fremed from answering jurors' questions. Not so.

The court decided that the jury would be permitted to submit written questions to the witnesses under Rule 1:8-8(c). The court then charged the jury in accordance with Model Jury Charge (Civil), 1.23 "Preliminary Instructions Regarding Juror's Questions" (September 2002), that "the rules of evidence or other rules of court may prevent me from allowing some of the questions that you would like to ask." The court further cautioned that, "[i]f a question that you submitted is not asked[,] you should not take it personally nor should you attach any significance to my decision not to allow the question." Defendants did not object to the court's ruling or instruction.

The jury submitted questions to most of plaintiffs' witnesses, but not to plaintiff's father; or to Dr. Knobler, whose videotaped testimony was played for the jury. At the close of plaintiffs' case, defense counsel said: "I'm not so sure the jury should be entitled to . . . ask Dr. Fremed questions, and that's based upon the ability to do the same for the plaintiff's expert." Plaintiffs agreed. Defense counsel then said, "I may waive it" if the questions "add something insightful that might help my case."

At the conclusion of Fremed's testimony, the court asked the jurors if they had any questions. The jury submitted five written questions, but before either the court or the parties reviewed them, defense counsel reminded the court that it had decided not to allow questions of Fremed. During a sidebar conference, the court ruled that, "[i]n fairness I'm not going to allow it." Defense counsel asked the court to provide an appropriate explanation to the jury, and the court charged, without objection:

Members of the jury, I apologize. I had made a ruling earlier outside your presence with respect to whether or not we will allow questions by the jury of Dr. Fremed.

Now, you will recall that you saw the testimony of Dr. Knobler's deposition on TV and, so, therefore, you didn't have the opportunity to ask him questions. In fairness to both sides we're going then, and I had said this, that I would not permit jury questions of Dr. Fremed [inasmuch] as both doctors were not . . . available . . . for your questioning. So you've given me a series of questions here. I apologize. I should have explained at the outset that we were not going to permit this based upon what happened earlier in the case. . . .

In denying defendants' motion for a new trial, the court stated it had prohibited the jurors' questions "in the interest of fairness," explaining that:

I recall at the outset saying that [inasmuch] as we . . . could not permit any questions of the plaintiff's expert Dr. Knobler that I would not permit Dr. Fremed to . . . have questions asked by the jury.

I forgot that early decision and after Dr. Fremed's testimony we did hand out the pads to the jury, we did have them write their questions out and it was only at sidebar that the issue came up. And as I recall it, [defense counsel], you were the one that reminded me that I had said that there would not be questioning and I revisited that issue and then instructed the jury that I would not permit the questioning [inasmuch] as Dr. Knobler . . . was not subjected to questioning.

Defendants argue that Rule 1:8-8(c) "does not provide for selective witness questioning but rather mandates an all-or- nothing approach." Defendants contend that the court's "excessive concern about unfairness to plaintiffs caused it to overlook the obvious unfairness to the defense engendered by its decision."

Contrary to defendants' argument, Rule 1:8-8(c) does not mandate an "all-or-nothing" approach. Moreover, defendants had argued that juror questioning of their expert would have been unfair given that Knobler would not have been subjected to questioning. Indeed, it was at defendants' suggestion that the court made its decision not to allow juror questioning of Fremed.


Defendants argue for the first time that plaintiffs' counsel's comments in summation warrant a new trial. Because defendants did not object at trial, we review the argument under the plain error rule. R. 2:10-2.

Closing arguments are permitted pursuant to Rule 1:7-1(b), and attorneys are generally afforded broad latitude in making such statements. Brenman, supra, 191 N.J. at 33; Fertile v. St. Michael's Med. Ctr., 169 N.J. 481, 495 (2001). Thus, "counsel may draw conclusions even if the inferences that the jury is asked to make are improbable, . . . or even absurd . . . ."

Colucci v. Oppenheim, 326 N.J. Super. 166, 177 (App. Div. 1999), certif. denied, 163 N.J. 395 (2000).

But arguments must "be based in truth, and counsel may not 'misstate the evidence nor distort the factual picture.'" Bender v. Adelson, 187 N.J. 411, 431 (2006) (quoting Colucci, supra, 326 N.J. Super. at 177). And, it is "improper to construct a summation that appeals to the emotions and sympathy of the jury." State v. Black, 380 N.J. Super. 581, 594 (App. Div. 2005), certif. denied, 186 N.J. 244 (2006). Counsel may not use disparaging language to discredit an opposing party or witness, or to unfairly attack the opposing party's character or integrity. Rodd v. Raritan Radiologic Assoc., P.A., 373 N.J. Super. 154, 171-72 (App. Div. 2004); Geler v. Akawie, 358 N.J. Super. 437, 470-71 (App. Div.), certif. denied, 177 N.J. 223 (2003).

"[A] clear and firm jury charge may cure any prejudice created by counsel's improper remarks during opening or closing argument." City of Linden v. Benedict Motel Corp., 370 N.J. Super. 372, 398 (App. Div.), certif. denied, 180 N.J. 356 (2004). However, "[w]hen summation commentary transgresses the boundaries of the broad latitude otherwise afforded to counsel, a trial court must grant a party's motion for a new trial if the comments are so prejudicial that 'it clearly and convincingly appears that there was a miscarriage of justice under the law.'" Bender, supra, 187 N.J. at 431 (quoting R. 4:49-1(a)).

Defendants argue that plaintiffs' counsel improperly disparaged defendants' expert by calling him a liar and a prostitute. During summation, plaintiffs' counsel stated:

Out of Dr. Fremed's mouth who was basically a liar on everything else he said, and we'll get to that. X-rays of the right foot and ankle showed an ill[-]defined cortical undisplaced fracture at the base of the fifth metatarsal. Did he say I don't agree?

Or did he say that's what the X-rays showed?

After referring to Knobler as a "world class RSD expert," plaintiffs' counsel commented:

Now, what do we have on the other side? We have Dr. Fremed. Dr. Fremed the hired gun. Dr. Fremed . . . the prostitute who only works for defendants and makes almost $100,000 a year working for defendants. Why? Because you see he can come into court and mesmerize a jury with that -- stuff. He sounds good. But he doesn't know a thing. How many cases of RSD has he seen? Five. How many cases has Dr. Knobler seen? 3,000. And, counsel also stated:

Now how do we know [plaintiff] still has RSD? Well, -- Dr. Fremed, probably didn't know that you looked at [plaintiff's] foot and saw the lack of hair that . . . Dr. Fremed said is there. There was no hair on [plaintiff's] foot. You saw his nail cracked and ridged . . . Dr. Fremed said they're not, they're normal. You saw the . . . skin. He said it's normal. You saw all that and you don't need to be a doctor to recognize hair, to recognize color, to recognize sheen, to recognize abnormal nails. Yet Dr. Fremed came into this courtroom and told you he does not now have RSD. It was a lie. He was paid to say it. He wouldn't know RSD if he fell over it.

Following the closing arguments of counsel, the court instructed the jury that, although it could consider comments of counsel, "nothing that the attorneys say is evidence and their comments are not binding upon you." In addition, the court provided the jury the necessary criteria not only for assessing the credibility of witnesses in general, but also in evaluating expert opinions. Concerning the credibility of witnesses in general, the court instructed the jury in part that they could consider "[t]he witness[es'] interest, if any, in the outcome of the case" together with "[t]he inherent believability of the testimony and the presence of any inconsistent or contradictory statements."

As to evaluating the opinion of experts, the court instructed the jury, among other criteria, that it could consider "the person's reason for testifying, if any" and that "[t]he amount of an expert's fee is a matter that you may consider as possibly affecting the believability of an expert, however, there is nothing improper in an expert witness being paid a reasonable fee for his or her work and for his or her time in attending court." Lastly, the court instructed the jury that "your oath as jurors requires you to decide this case fairly and impartially without sympathy, passion, bias or prejudice. You are to decide this case based solely upon the evidence that you find to be believable and in accordance with the instructions of law which I've just given." The court continued:

No one can be critical of you for feeling some degree of sympathy in this matter. However, that sympathy must play no part in your thinking and the decision you reach[] in the jury room. Similarly[,] your decision must not be based upon bias or prejudice which you may have developed during the trial for or against either party.

Plaintiffs' counsel's comments were improper. However, we conclude that the comments complained of were not so prejudicial as to constitute plain error. R. 2:10-2. Notably, defendants' failure to object deprived the trial court of an opportunity to cure any prejudice created by counsel's improper remarks. City of Linden, supra, 370 N.J. Super. at 398. And that failure may have been a reflection of defendants' then belief that, when stated within the context of the entire summation, the statements were not prejudicial. Ibid. Moreover, the trial court provided the jury with correct jury instructions for it to follow in assessing the credibility of witnesses. See State v. Loftin, 146 N.J. 295, 390 (1996) (providing that juries are generally presumed to understand and follow instructions).

Defendants argue next that plaintiffs' counsel improperly referred to plaintiff's wife as a "saint." Counsel argued that, even if the jury believed that plaintiff had "made all this up[,] there's no way on God's green earth that you should believe that [Seaver] would be a part of it. . . . She's a saint."

We are satisfied that counsel did not use the term "saint" to improperly appeal to the jury's emotions, but rather used the term to counter defendants' argument that plaintiff was less than candor in describing the severity of his disability. And, even if improper, the brief comment was not so prejudicial as to constitute plain error. R. 2:10-2.


Defendants also argue for the first time that plaintiffs' counsel's references to a workers' compensation lien and the court's erroneous jury charge warrant a new trial. We consider these arguments under the plain error rule. R. 2:10-2.

Defendants acknowledge that plaintiff's receipt of workers' compensation benefits was relevant to the extent of the injuries he sustained in the 2004 accident. Nonetheless, defendants contend that plaintiffs incorrectly implied that the entire workers' compensation lien had to be repaid; that the court improperly charged that the jury could not consider plaintiff having been declared totally disabled prior to 2004; and that workers' compensation benefits do not include compensation for pain and suffering. We find no reversible error.

VII. - A. Lien

A workers' compensation insurance carrier is entitled to reimbursement of benefits from an employee's recovery in a third-party action. N.J.S.A. 34:15-40. Generally, references to workers' compensation insurance benefits during a personal injury trial, where it has no relevance to any issue, are improper and prejudicial. Joy v. Barget, 215 N.J. Super. 268, 271 (App. Div. 1987) (defense counsel's unwarranted reference to workers' compensation and the court's inadequate curative instruction required reversal). However, there are occasions when references to workers' compensation proceedings are "pertinent and necessary." Clark v. Piccillo, 75 N.J. Super. 123, 132 (App. Div. 1962); see Mazzuchelli v. Silberberg, 29 N.J. 15, 26 (1959) (finding no error where court admitted evidence that plaintiff obtained workers' compensation because it supported defense of limited remedy).

Here, in opening, plaintiffs' counsel commented, without objection, that plaintiff had received workers' compensation benefits for injuries sustained in the 1999 accident, and that the compensation carrier had paid for his treatments, medication, and motorized wheelchair. Counsel said, however, "you're not going to pay him twice. Because the Judge is going to tell you at the end of the case how worker's compensation fits into this." Defense counsel similarly referred several times in his opening to the compensation carrier's payment of plaintiff's expenses, commenting that, "virtually every dime that the plaintiff has required for his care up [until] today has been paid by Travelers arising out of that work[-]related accident."

During trial, Scheffel testified that in rendering a life care plan she had separated the healthcare plaintiff required after the first accident from the healthcare he required as a result of the second accident, and calculated the differences in cost. Plaintiffs asked whether the compensation carrier should pay for all those costs. Defendants objected on the basis of relevancy. At sidebar, plaintiffs argued the testimony was relevant as to the extent of the workers' compensation lien. The court sustained the objection, finding that the testimony was beyond the subject matter of Scheffel's report. Thereafter, Wiese, a case manager for the insurance carrier, testified for the defendants as to what expenses the carrier had authorized.

In closing, defense counsel referred numerous times to the compensation carrier's payment of medical expenses. Counsel claimed that plaintiffs wanted to impose all costs incurred after March 2, 2004, including pain, suffering, and medical expenses, on defendants, not the compensation carrier. Indeed, defendants' counsel argued that plaintiff's compensation carrier should "continue" to pay all of plaintiff's expenses, noting that "the real injustice is plaintiffs would like you to put this all on the lap of the defendant[s] on the day of this incident." In summation, plaintiffs' counsel commented:

[Y]ou heard a lot about worker[s'] compensation. They paid for this, they paid for that . . . . It doesn't matter in your deliberations. Every penny that workers' comp pays [plaintiff] in the future has to be paid back to worker[s'] comp out of any award you give him . . . . Simple as that. It has no bearing whatsoever on determination of damages in this case.

And, plaintiffs' counsel further stated that the carrier was "paying for most of the stuff that he needs now to make it better. Does Travelers get that money back? You bet." Defendants did not object.

Thereafter, the court instructed the jury that plaintiff's claim for damages "does not include any claims for past medical expenses. Therefore[,] in determining the reasonable amount of damages due to the plaintiff you should not speculate about the medical expenses plaintiff may have had." The court then charged, without objection, that "any workers' compensation benefits received by the plaintiff must be repaid to the worker[s'] compensation insurance carrier so there is no chance of a double recovery in this matter."

It is undisputed that admission of the workers' compensation benefits was necessary to resolution of the issues, and both parties made extensive references at trial to those benefits. To the extent that defendants now argue that the admission of the evidence was erroneous, we reject that argument. We also determine that the trial court properly instructed the jury on the issue. The court instructed the jury that it could not award damages for past medical expenses. And, plaintiff separated his future medical expenses from his past expenses and claimed entitlement to $7.8 million, $800,000 more than the amount ultimately awarded by the jury. Accordingly, we find no plain error. R. 2:10-2.

VII. - B. Definition of Total Disability

Defendants next assert as plain error that the court erred in instructing the jurors that they "were not to consider in their deliberations the fact that [plaintiff] was totally disabled before the 2004 [a]ccident." We disagree.

A proper jury charge is essential to a fair trial. Reynolds v. Gonzalez, 172 N.J. 266, 288 (2002). "Jury instructions should correctly state the applicable law in clear and understandable language." Boryszewski v. Burke, 380 N.J. Super. 361, 374 (App. Div. 2005), certif. denied, 186 N.J. 242 (2006). An appellate court must read the charge as a whole, and should not reverse when the charge "'adequately conveys the law and is unlikely to confuse or mislead the jury,'" even though part of the charge might be incorrect. Wade v. Kessler Inst., 172 N.J. 327, 341 (2002) (quoting Fischer v. Canano, 143 N.J. 235, 254 (1996)). "Courts uphold even erroneous jury instructions when those instructions are incapable of producing an unjust result or prejudicing substantial rights." Fisch v. Bellshot, 135 N.J. 374, 392 (1994).

Prior to trial, plaintiffs argued it would be "unduly prejudicial" to allow defendants to contend that, because plaintiff had been declared totally disabled under the Workers' Compensation and Social Security Acts, his condition could not have become "worse" after the 2004 accident. Plaintiffs asserted that findings of total disability under the Acts were different than the term total disability in "layman's parlance."

The court advised that it would explain to the jury "what total disability means within the context of the Social Security Act and the Workers' Compensation [Act]."

The court instructed the jury that "[d]isability or impairment means worsening, weakening, or loss of faculties, health or ability to participate in activities. The court then charged, without objection:

[Y]ou've heard some reference in this case by both counsel to the fact that the plaintiff was totally disabled at the time or before the time of the accident of March 2004, and you've heard some reference to the fact that total disability was adjudicated both for Social Security purposes and worker[s'] compensation purposes. In your deliberations on damages you are not to use that information for any purpose.

The court then instructed that "these adjudications in Social Security and worker[s'] compensation deal with definitions within both of those bodies of law," and proceeded to define the term disability under those laws.

Taken in context, the court charged that the jury could not consider the fact that plaintiff was "totally disabled," as defined by the Social Security Administration and the Workers' Compensation Act, in deciding whether plaintiff was disabled in the context of being able to function independently. Given defendants' failure to object, we find no plain error.


Defendants also argue that the trial court erred in admitting an x-ray report and a police report into evidence, and in denying their application to admit the certifications plaintiff submitted in the workers' compensation action.

Trial courts are granted broad discretion in determining the relevance of evidence and whether its probative value is substantially outweighed by its prejudicial nature. Verdicchio v. Ricca, 179 N.J. 1, 34 (2004). Relevant evidence is defined as evidence "having a tendency in reason to prove or disprove any fact of consequence to the determination of the action." N.J.R.E. 401. Unless otherwise provided by rule or law, "all relevant evidence is admissible." N.J.R.E. 402. Relevant evidence may be excluded if its probative value is substantially outweighed by the risk of "undue prejudice." N.J.R.E. 403(a). A court's determination under N.J.R.E. 403 "should not be overturned on appeal 'unless it can be shown that the trial court palpably abused its discretion, that is, that its finding was so wide off the mark that a manifest denial of justice resulted.'" Green, supra, 160 N.J. at 492 (quoting State v. Carter, 91 N.J. 86, 106 (1982)).

VIII - A. X-ray Report

At the close of the evidence, plaintiffs moved to admit the x-ray report prepared after the 2004 accident. Defendants objected on the basis that the report was inadmissible hearsay because the radiologist who prepared it was not subject to cross-examination, and because Knobler differed with the radiologist's interpretation that plaintiff had fractured his foot. The court overruled the objection and admitted the report under N.J.R.E. 803(c)(6), the business records exception to the hearsay rule. Defendants then requested that the entire emergency room record be admitted into evidence, and the court granted the application.

Medical reports may be admitted under N.J.R.E. 803(c)(6). Brun, supra, 390 N.J. Super. at 421. However, "'the degree of complexity of the procedures utilized in formulating the conclusions expressed in the [expert's] report' that determines its admissibility under the business records exception." Ibid. (quoting State v. Matulewicz, 101 N.J. 27, 30 (1985)). "[B]efore introducing complex medical reports pursuant to N.J.R.E. 803(c)(6), the ability of the opposing side to cross-examine the author of such a report must be assured." Ibid. In Brun, the court held that "on objection, interpretation of an MRI may be made only by a physician qualified to read such films . . . ." Ibid.

Here, Knobler disagreed with the radiologist's interpretation. Thus, because of the apparent complexity of reading plaintiff's x-ray, the court improperly admitted the xray report. Nonetheless, we conclude defendants were not prejudiced. Knobler testified that the findings on the x-ray were "negative." Additionally, Knobler quoted from the report verbatim, without objection, and thus the jury heard substantial evidence regarding the contents of the report. Under these facts, we do not find reversible error.

VIII - B. Police Report

Defendants argue that the trial court erred in admitting the police report of the 2004 accident that contained Pulgar's statement that the door had struck plaintiff's crutch, causing him "to lose his balance and fall down the driveway . . . striking the driveway door." We find no reversible error.

Police reports may be admitted under the business records exception to the hearsay rule. N.J.R.E. 803(c)(6); In re Registrant C.A., 146 N.J. 71, 98 (1996); Sas v. Strelecki, 110 N.J. Super. 14, 22 (App. Div. 1970). However, they are generally not admissible to prove the contents of statements provided to a police officer investigating an accident. Biunno, Current N.J. Rules of Evidence, comment 4 on N.J.R.E. 803(c)(6). Nevertheless, an otherwise inadmissible statement contained in a police report may be admissible under some other exception to the hearsay rule, such as an admission by a party-opponent, N.J.R.E. 803(b)(1). Ibid; Dalton v. Barone, 310 N.J. Super. 375, 378 (App. Div. 1998). However, the police report should be excluded where the police officer who prepared the report does not testify and the party against whom the report is authored denies the validity of the statements contained in the report. Statham v. Bush, 253 N.J. Super. 607, 615 (App. Div. 1992).

On appeal, defendants do not question whether the police report qualifies as a business record under N.J.R.E. 803(c)(6). Rather, they argue that the report should have been excluded, contending that Pulgar's statement was an unreliable "'citizen['s]' declaration[]." State v. Lungsford, 167 N.J. Super. 296, 310 (App. Div. 1979). That case is distinguishable. There, the State sought to introduce a police investigation report concerning a theft to prove that an automobile had been stolen, the investigation report containing a statement from the owner who did not testify at trial. Id. at 307-10. The owner was not a party-opponent, only a witness to the crime. Id. at 307. Thus, the statement did not qualify as an exception to the hearsay rule.

We are satisfied that the report was properly admitted with Pulgar's statement being admissible as a statement by a party-opponent. N.J.R.E. 803(b)(1). Additionally, even if the report should not have been admitted, we conclude that the error was harmless, the jury having already heard the contents of Pulgar's statement contained in the police report and Pulgar having been cross-examined as to its reliability.

VIII - C. Workers' Compensation Certifications

Defendants argue that the trial court erred by not admitting plaintiff's workers' compensation certifications. During the charge conference, and after the close of all the evidence, defendants moved to re-open the case to admit the two certifications plaintiff had submitted in the workers' compensation proceeding. Plaintiffs objected on the basis of timeliness. The court sustained the objection, and denied defendants' application to re-open the case, finding that there had been "abundant testimony" regarding the contents of the certifications.

A court has the discretion to re-open a trial proceeding for the introduction of additional evidence while the jury is deliberating. State v. Wolf, 44 N.J. 176, 191 (1965). Here, the court did not abuse its discretion in denying defendants' motion because defendants had ample opportunity to move to admit the certifications prior to the close of the evidence. Moreover, even if the court erred, reversal is not warranted; defendants were not substantially prejudiced because defendants extensively cross-examined plaintiff on the contents of the certifications.


Defendants argue next that the court erred in denying their motion for a new trial or, in the alternative, for a remittitur because the damages awarded were excessive. We disagree.

Rule 4:49-1(a) provides that a court shall grant a motion for a new trial "if, 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." On appeal, our standard of review is substantially the same. R. 2:10-1; Jastram v. Kruse, 197 N.J. 216, 230 (2008). Except, however, we "must afford 'due deference' to the trial court's 'feel of the case,' with regard to the assessment of intangibles, such as witness credibility." Ibid. (quoting Feldman v. Lederle Labs., 97 N.J. 429, 463 (1984)).

In Jastram, the Court reviewed the general principles governing personal injury compensatory damages, and the right of a plaintiff to have the issue decided by a jury. Id. at 227-29. In so doing, the Court described the purpose of remittitur as:

Where the jury's verdict regarding liability is supported by the record, but the damages award is excessive, courts are encouraged to invoke remittitur to avoid a new trial. A court utilizing remittitur should remit the award to the highest figure that could be supported by the evidence because the process of remittitur is essentially to lopoff excess verdict amounts, and not to substitute the court's judgment for that of the jury. [Id. at 231 (citations, internal quotations and internal alterations omitted).]

The Court explained the standard of review of the trial court in ruling on a motion for a remittitur and the appellate court's standard of review when reviewing the grant or denial of such a motion. As to the trial court, the Court stated:

In analyzing whether a damages award is excessive, a trial judge's review must be grounded substantially in the totality of the evidence in the record, . . . which is viewed in a light most favorable to the plaintiff. In particular, the judge is to evaluate the nature and extent of the injury, the medical treatment that the plaintiff underwent and may be required to undergo in the future, the impact of the injury on the plaintiff['s] life from the date of injury through the date of trial, and the projected impact of the injury on the plaintiff in the future. The court may look beyond the record to judicial experience with other injury verdicts. However, if it does so, it must give a factual analysis of how the award is different or similar to others to which it is compared.

So analyzed, where an award, even if generous, has reasonable support in the record, the jury's evaluation should be regarded as final. [Id. at 229-30 (citations, internal quotations and internal alterations omitted).]

As to appellate review, the Court stated:

Further, under Rule 2:10-1, an appellate court only can reverse a trial judge's decision to deny a motion for new trial where "it clearly appears that there was a miscarriage of justice under the law." That inquiry requires employing a standard of review substantially similar to that used at the trial level, except that the appellate court must afford "due deference" to the trial court's "'feel of the case,'" with regard to the assessment of intangibles, such as witness credibility. [Feldman, supra, 97 N.J. at 463].

The "feel of the case" is not just an empty shibboleth -- it is the trial judge who sees and hears the witnesses and the attorneys, and who has a first-hand opportunity to assess their believability and their effect on the jury. It is the judge who sees the jurors wince, weep, snicker, avert their eyes, or shake their heads in disbelief. Those personal observations of all of the players is "the feel of the case" to which an appellate court defers. Obviously, insofar as the trial judge's decision rests on "'determination[s] as to worth, plausibility, consistency or other tangible considerations apparent from the face of the record,'" an appellate court need not defer. Caldwell[ v. Haynes], 136 N.J. 442, 432 (1994) (quoting Dolson v. Anastasia, 55 N.J. 2, 7 (1969)). [Id. at 230-31.]

Here, the jury awarded plaintiffs $14.5 million in total damages ($5 million (pain and suffering), $7 million (future medical expenses), and $2.5 million (per quod)). In denying defendants' motion for a new trial, the judge found that the verdict was not excessive, explaining that the jury awarded plaintiff $7 million of the $7.8 million in undisputed projected medical expenses, as testified to by plaintiffs' expert, and that the $5 million in pain and suffering damages was amply supported by the testimony and the "demeanor" of the witnesses at trial. Additionally, the judge stated:

I have not seen a more compelling or meritorious [per quod] claim in the three years that I've sat as a civil judge. Ms.

Seaver did not puff or exaggerate her situation. She came off as a very sincere person and her suffering and her loss was there for everyone to see.

Defendants argue the $7 million award for future medical expenses was excessive given that plaintiff had suffered an aggravation of a "totally debilitating pre-existing injury." We disagree. Scheffel carefully differentiated the care provided before the 2004 accident from the care required after the accident, and listed the differences in cost. For example, she concluded that after the accident in 1999, plaintiff needed a home health aide eight hours a day, and after the 2004 accident, he needed an aide on a twenty-four hour basis. Marcus, plaintiff's expert economist, concluded that the total cost of Scheffel's health care plan, based on plaintiff's life expectancy, and discounted to present value, was $7,820,336. Defendants presented no witnesses to contest the reasonableness of this estimate. Moreover, the symptoms experienced by plaintiff, notably, his complete dependence on a caregiver, amply supported these costs.

Defendants argue next that the pain and suffering award was grossly excessive given that plaintiff was disabled prior to the 2004 accident. Viewing the evidence in the light most favorable to plaintiffs, they presented ample and compelling testimony as to the extent of plaintiff's considerable increased pain, suffering, and disability.

Most notably, before the 2004 accident, plaintiff was able to walk with the aid of crutches, and despite his disability could function independently. He drove occasionally, exercised, prepared dinner, did chores, painted, participated in family functions, and was able to go out to dinner and attend arts and music festivals. After the 2004 accident, plaintiff's pain increased "dramatically," and he could no longer function independently. He could no longer walk, not even with the aid of crutches, and was entirely dependent on a motorized wheelchair for mobility. He also could not dress or groom himself, shower, eat, or use the toilet without assistance. Plaintiff had great difficulty sleeping as a result of the pain, his relationship with his wife suffered, and he was much more sensitive to temperature and touch. Moreover, Seaver and plaintiff's father also presented compelling testimony as to the progression of plaintiff's illness, and its dramatic effect on plaintiffs.

This is undoubtedly an unusual case. However, given the extent of exacerbation of the illness, the increased pain, and the fact that plaintiff went from being disabled but partially independent to completely dependent, we conclude that the trial judge correctly refrained for interfering with the verdict.

Defendants also argue the $2.5 million per quod award was excessive. Defendants claim the size of the award supports their argument that the jury was compensating Seaver for her loss of income. We disagree.

The court charged the jury substantially in accordance with Model Jury Charge (Civil), 8.30B "Loss Of Spouse's Services, Society And Consortium) (1996). The court instructed the jury that compensable services included "loss of impairment of his or her spousal services, society or consortium." The court did not charge the jury that they could award Seaver lost income damages.

There is no indication in this record that the award was based on Seaver's lost income. She presented no evidence at trial as to her salary prior to the 2004 accident. Moreover, she presented ample evidence as to the extent of the loss of plaintiff's services, and the effect plaintiff's illness has on their relationship. There was nothing remotely excessive about the award, which the trial judge described as the most compelling and meritorious per quod claim he had seen.


Plaintiffs argue on their cross-appeal that the court erred in denying their motion for a JNOV and in charging comparative negligence. We find no error, much less reversible error.

Rule 4:40-1 provides that a motion for judgment may be made "either at the close of all the evidence or at the close of the evidence offered by an opponent." Rule 4:40-2(b) provides that, "[i]f a motion for judgment is denied and the case submitted to the jury, the motion may be renewed . . . ." In deciding both a motion for judgment under Rule 4:40-1 and a motion for JNOV under Rule 4:40-2(b), the court must accept as true all evidence that supports the position of the non-moving party, according him or her the benefit of all legitimate inferences, and if reasonable minds could differ, the motion must be denied. Zive v. Stanley Roberts, Inc., 182 N.J. 436, 441 (2005); Verdicchio, supra, 179 N.J. at 30. "The purpose of the test is to ensure that the jury resolves disputed factual matters." Lewis v. Am. Cyanamid Co., 155 N.J. 544, 567 (1998). This court applies the same standard on appeal. Verdicchio, supra, 179 N.J. at 30.

"'New Jersey law favors the apportionment of fault among responsible parties.'" Verni ex rel. Burstein v. Harry M. Stevens, Inc., 387 N.J. Super. 160, 206 (2006) (quoting Boryszewski, supra, 380 N.J. Super. at 374), certif. denied, 189 N.J. 429 (2007). The Comparative Negligence Act, N.J.S.A. 2A:15-5.1 to -5.4, "mandates the apportionment of fault where 'the question of liability is in dispute.'" Boryszewski, supra, 380 N.J. Super. at 374-75 (quoting N.J.S.A. 2A:15-5.2a).

The evidence must support a legitimate inference that the plaintiff's conduct was negligent in fact, and that his or her negligence was a cause of the injury. La Morgese v. Kern-O-Mix, Inc., 82 N.J. Super. 581, 586 (App. Div. 1964). It is improper to submit to the jury the issue of a plaintiff's negligence based on no more than "[b]ald assumption," speculation, or a scintilla of evidence. Ibid. "Unless public policy requires otherwise, if a plaintiff's action contributes to an injury negligently caused by a defendant, 'the plaintiff's comparative fault should be submitted to the fact-finder for determination.'" Zepf v. Hilton Hotel & Casino, 346 N.J. Super. 6, 24 (App. Div. 2001) (quoting Del Tufo v. Borough of Old Bridge, 147 N.J. 90, 111 (1996)).

Here, at the charge conference, the court overruled plaintiffs' objection to the comparative negligence charge, finding that, given the number of times plaintiff had fallen prior to the 2004 accident, there was some evidence from which the jury could conclude that on the day of the accident plaintiff was negligent in not using "something other than crutches." The jury returned a verdict against defendants, assessing 80% of the fault to defendants and 20% to plaintiff.

In denying plaintiffs' motion for a JNOV, the court found:

Here[,] there was a duty in my opinion on the part of the plaintiff to exercise reasonable care. There was testimony that he had multiple falls prior to the fall of March of 2004. Based on that the jury could have some question as to whether the use of the crutches by plaintiff was sufficient to satisfy his duty to exercise reasonable care. Perhaps he should have considered something in addition to that such as perhaps his wife assisting him. I'm not going to speculate. But in any event whether or not he exercised reasonable care I think was an appropriate issue for the jury to determine.

Additionally, there were different versions of how the accident happened, thus, based on the aforementioned standard, that is according the defendant[s] the benefit of all legitimate inferences reasonable minds could differ on the issue of the plaintiff's comparative negligence . . . .

Plaintiffs contend that the defense of comparative negligence was not available under the "public policy" exception, which precludes a defendant from benefiting from a violation of its duty to protect a plaintiff from his or her own harm, citing Cowan v. Doering, 111 N.J. 451, 460 (1988). We determine Cowan distinguishable.

In Cowan, the Court held that a health-care professional could not assert contributory negligence as a defense to a suicidal patient's claim of neglect, when the professional's duty included exercise of reasonable care to prevent the patient from committing self-damaging conduct. Id. at 468. Thus, the plaintiff in Cowan was excused from exercising reasonable self-care because her "duty [was] itself encompassed by the duty of care owed by the defendant to the plaintiff." Id. at 460; see also Tobia v. Cooper Hospital Univ. Med. Center, 136 N.J. 335, 338 (1994) (holding that a health care professional may not assert comparative negligence as a defense when the professional's duty included the exercise of reasonable care to prevent the patient from trying to get down from an unlocked stretcher).

In this case, plaintiff suffered from postural instability, causing him to fall frequently, and for which Knobler and Wiese recommended that he be provided with a wheelchair "to protect his safety" and to avoid falls. Thus, the jury could consider whether plaintiff's decision to walk to the curb with crutches, instead of using a wheelchair or scooter, when he knew he frequently fell, constituted a failure on his part to care for his safety as a prudent person in similar circumstances would. In fact, plaintiff admitted in a certification submitted to the workers' compensation carrier that on "a good day" he could "only get around on crutches about 100 yards before falling" and on some days he could not "stand up at all." And, he admitted that he "live[d] in constant fear of falling and the risk that [his] condition will get worse as a result of one of these numerous falls."

Based on these facts, we determine that the public policy exception is not applicable. See Eden v. Conrail, 87 N.J. 467, 473 (1981) (defense of comparative negligence should have been submitted to jury where plaintiff, who knew he had epilepsy and could become unconscious, fell onto the tracks); Zepf, supra, 346 N.J. Super. at 24 (providing that the jury could consider whether a plaintiff's decision not to use shuttle service constituted failure on her part to care for her safety as a prudent person in similar circumstances would).

Plaintiffs contend that even if the policy exception is not applicable, plaintiff could not have been found comparatively negligent because he was following his physician's advice. In support of that argument plaintiffs cite to Ostrowski v. Azzara, 111 N.J. 429 (1988), a medical malpractice case. In that case the Court held:

[O]nce the patient comes under the physician's care, the law can justly expect the patient to cooperate with the health care provider in their mutual interests. Thus, it is not unfair to expect a patient to help avoid the consequences of the condition for which the physician is treating her. [Id. at 445.]

In that regard, the Court held that the patient's post-treatment conduct or health habits are relevant to the issue of damages, not the question of liability, and is considered under the doctrine of avoidable consequences. Id. at 446.

Ostrowski is distinguishable because this is not a medical malpractice case, and thus plaintiff's post-treatment conduct is not at issue. Nonetheless, by analogy, an argument can be made that if plaintiff's physician had told him never to use a wheelchair outside the home, as he argues, then plaintiff could not be considered comparatively negligent for following that advice. But to the contrary, Knobler and Wiese recommended that plaintiff be provided with and use a wheelchair "to protect his safety." There was evidence that plaintiff had fallen on many occasions. There was also evidence that plaintiff had used a wheelchair and a scooter outdoors. Therefore, although plaintiff had been told to try to use his crutches as much as possible to "keep moving," he also was prescribed a wheelchair to protect him from falling. Accordingly, we conclude that the trial court correctly determined that the facts were sufficient to submit the issue of plaintiff's comparative fault to the jury.


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