NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-3336-18
AHMED HASSAN and SALWA HASSAN,
Plaintiffs-Appellants,
v.
ROLAND WILLIAMS and ABF FREIGHT SYSTEM INCORPORATED,
Defendants-Respondents. ___________________________
Argued May 26, 2020 – Decided April 13, 2021
Before Judges Messano, Ostrer, and Vernoia.
On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Docket No. L-0213-16.
Paul M. Brandenburg argued the cause for appellants (Rebenack, Aronow & Mascolo, LLP, attorneys; Edward J. Rebenack, of counsel and on the briefs; Tyler J. Hall and Paul M. Brandenburg, on the briefs).
Jerald F. Oleske argued the cause for respondents (Oleske & Oleske, LLP, attorneys; Jerald F. Oleske, on the brief).
The opinion of the court was delivered by
OSTRER, J.A.D. Plaintiff Ahmed Hassan appeals from a no-cause judgment in his motor
vehicle negligence suit. 1 Defendant Roland Williams rear-ended Hassan.
Hassan was driving a FedEx tractor-trailer, and Williams was driving a tractor-
trailer for defendant ABF Freight System. The jury found both drivers
negligent, but Hassan slightly more so. Hassan principally contends the court
erroneously excluded statements by ABF officials that Williams could have
prevented the accident, he drove recklessly, and he violated ABF safety
protocols. We agree those statements should have been admitted into
evidence. We therefore reverse and remand for a new trial.
I.
The truckers collided on Route 78 near Clinton. It was around 4:00 a.m.
on a June morning. As he had for three years, Hassan was driving his normal
route from Newark Airport to Allentown, Pennsylvania. Suddenly, he felt
himself "on the ramp, on the side of the road, and hitting like I don't know if it
was trees, brushes, whatever." Hassan could not remember how fast he was
going, or other pre-crash details. A police report stated that the FedEx truck
1 Mr. Hassan's wife, Salwa Hassan, is also a plaintiff-appellant. But, for convenience, we use the singular "plaintiff" and attribute appellants' arguments to him.
A-3336-18 2 snapped a light pole, not a tree, and blocked westbound traffic when it came to
rest.
Williams said his truck was on cruise control, and set at the truck's pre-
set top speed of 62 m.p.h. Williams said, "[A]ll of a sudden, out of nowhere I
come up on this Fed-Ex truck." As he rapidly approached Hassan's truck,
Williams's instinct was to change lanes. But, he looked in his side mirror, and
saw a car. He then looked ahead, and slammed on his brakes before striking
Hassan's tractor trailer in the rear. Williams was not sure of Hassan's speed.
He saw the taillights on Hassan's truck, but no flashers or brake lights.
Once Hassan's truck came to a stop, he exited, and at first felt "fine."
But, shortly after, while still at the scene, Hassan said he collapsed to the
ground. Emergency medical staff told him he needed to go the hospital. Once
there, Hassan began feeling pain in his "neck, [] shoulders, [] upper back."
From the hospital, Hassan was driven back to his car in Allentown, and he
drove himself home.
In the subsequent complaint, Hassan alleged that Williams and ABF
were negligent and negligent per se, and ABF was vicariously and strictly
liable for Williams's acts. Hassan requested compensatory and punitive
damages. His wife asserted a per quod claim. Hassan alleged the collision
caused a traumatic brain injury, and shoulder and wrist injuries; and
A-3336-18 3 exacerbated a back condition. He alleged cognitive loss, depression, and other
neurological problems.
Although both parties initially viewed the collision as an uncomplicated
"rear-end hit," defendants vigorously contested liability after producing an
expert's opinion that Hassan caused the accident. Relying on skid marks, fuel
spills, and various calculations, the expert asserted that Hassan cut in front of
Williams at a slow speed from the entrance lane. Hassan's expert disagreed in
a pre-trial report, but he did not testify at trial.
Defendants also challenged Hassan's damages claim. Defendants argued
he exaggerated his ailments; and, to the extent they were real, the accident did
not cause them. Of particular importance on appeal, defendants suggested that
either Hassan's soccer playing, family history of Alzheimer's, or "white matter
disease" was responsible.
The parties' pre-trial motion practice gives rise to the principal issues on
appeal. Hassan filed a motion to compel discovery from ABF. Among other
requests, Hassan demanded that defendants produce "[c]opies of all records of
Roland Williams for the 7 days prior to the collision" including "weight/scale
tickets," "on-board computer records," and "overweight/oversize reports and
citations." Hassan contended that federal motor carrier safety regulations
required ABF "to maintain driver record of duty status logs and all supporting
A-3336-18 4 documents," and that the documents related to his contention that ABF failed
to assure safe truck operation. Hassan also demanded that defendants produce
"[c]opies of all satellite communications and email for the day of the collision
and seven days prior" as well as other electronic information on Williams's
truck, including the truck's "vehicle speed limit," its "maximum vehicle speed
recorded" and the "number of hard brake incidents."
Defendants objected, arguing that the information would not lead to
admissible evidence, and the categories of documents lacked definition. In a
letter brief opposing Hassan's motion, defendants added that the first group of
requested documents were "not remotely relevant to this simple motor vehicle
accident," and the second group was "not directed to any issue that may exist
with reference to this claim." Defendants asserted that the accident was
"rather straight forward" and "involve[d] no unique or perplexing liability
issues." Notably, defendants did not argue that production of the requested
documents would be unduly burdensome, nor present competent evidence to
support such an argument. Defendants had not yet produced their expert
opinion on liability.
The court denied Hassan's motion to compel production of those
documents "for the reasons cited by [d]efendant in response."
A-3336-18 5 Hassan also filed motions in limine to establish the admissibility of
statements by Williams and two other ABF employees, and the inadmissibility
of evidence pertaining to aspects of Hassan's health. Hassan sought to
introduce Williams's deposition testimony that Williams did not question why
ABF considered disciplining him after the accident. Williams explained, "I
had hit this FedEx truck in the rear. It automatically makes you wrong when
you hit someone in the rear. I don't care what the circumstances [are]."
Hassan also wanted to introduce into evidence ABF's post-accident letter
firing Williams. ABF's Manager of Line Operations, Chuck Witter, wrote to
Williams, stating, "The Safety Department in Fort Smith, AR has determined
that your accident . . . has been judged preventable. This is to advise you that
you are hereby discharged due to your recklessness resulting in a serious
preventable accident while on duty." Evidently referring to a collective
bargaining agreement, the letter continued, "In accordance with Article 44 of
the Central Pennsylvania Over-the-Road and Local Cartage Supplemental
Agreement, this discharge is for recklessness resulting in a serious preventable
accident." Copies were sent to a Teamsters local and union steward.
And Hassan wanted to introduce excerpts from the deposition testimony
of Sam Cates, who worked in ABF's safety department in Arkansas, and was
ABF's corporate representative on "issues dealing with safety." Hassan
A-3336-18 6 proposed to offer the following interchange, to establish that Williams
deviated from ABF safety training and procedures:
Q. As the director of safety, are there any circumstances where ABF finds that it is allowable for its road driver to run into the back of another car?
A. No sir.
....
Q. As the director of safety, as you read Mr. Williams' statement about the incident, did ABF require Mr. Williams to already know whether he could change lanes?
A. He should have known.
Q. According to his statement, would you agree with me that he stated that he did not know?
A. He's saying he looked to see if he could change lanes, so I would have to say he didn't look prior to approaching the FedEx vehicle.
Q. As the director of safety for ABF, based upon the statement by Roland Williams, would you agree that he violated ABF's rules and regulations for road drivers?
A. I would say he failed to maintain proper lookout of what was ahead of him and didn't allow himself an out. He should have been able to stop or change lanes.
A-3336-18 7 Q. Would you agree that that is a violation of ABF's rules and regulations for its road drivers?
A. No, I wouldn't know that I [would] say it's a violation. I would say it's contrary to what we train in.
Cates also shed light on the "preventability determination" that Witter
mentioned in the termination letter. Cates testified that ABF concluded the
accident was "preventable." He explained that Witter's letter stating that
conclusion was based on the accident preventability analysis that Cates's
department conducted. Cates also explained that he would not have called
Williams reckless, as Witter did, which he defined to mean "not exercising due
care and caution when operating a vehicle." Cates said he would have called
Williams "inattentive."
At the motion-in-limine hearing, the court ruled Cates could describe
ABF's rules and regulations for truck drivers, but he could not say if, in ABF's
opinion, Williams violated them. The court barred Williams's statement
discussing his own fault or how ABF viewed a rear-end collision. And, the
court also barred Witter's letter in its entirety. Hassan argued the letter was an
admission against interest, but the court disagreed, stating the letter was a
determination of fault that was ultimately within the province of the jury. The
court stated, "It's inappropriate to have somebody come in and offer an opinion
A-3336-18 8 on the ultimate issue in the case," which is the "jury's determination." The
court also noted that both Witter and Cates lacked personal knowledge of the
accident. Evidently referring to Witter, the court said he was "[s]omeone who
wasn't there . . . didn't see it, and . . . who's relying on the opinion of someone
a thousand miles away [Cates]" without knowing the basis for that opinion.
Hassan also filed a motion to prevent defendants from questioning his
medical expert on the possibility that Hassan suffers from Alzehimer's disease.
Defendants indicated they intended to have their expert testify that Hassan
suffered from Alzheimer's, since he was taking a drug that was FDA-approved
to treat the disease, and he had a family history of it. The court ruled
defendants were not allowed to have their own expert opine that Hassan could
be suffering from Alzheimer's, since it was "too inflammatory" and no witness
was prepared to say Hassan in fact was suffering from the disease. However,
defendants could question Hassan's medical expert on cross-examination
whether he believed Alzheimer's or white matter disease contributed to the
crash. Also, although defendants could not elicit testimony that Hassan may
A-3336-18 9 have been a malingerer, they could present testimony that his physical injuries
were psychogenic. 2
After the close of testimony and summation, the jury of eight found
Hassan and Williams were both negligent, and allocated fifty-one percent of
fault to Hassan. The trial court entered a judgment of no cause. Hassan then
filed a motion for a new trial, which the court denied.
On appeal, Hassan contends the court erred by (1) barring Witter's letter
and Cates's and Williams's statements; (2) denying his motion to compel
discovery; and (3) permitting prejudicial questioning and comment by defense
counsel about Alzheimer's and other subjects.
II.
We consider first the court's exclusion of Witter's discharge letter,
Cates's deposition excerpts, and Williams's statement about ABF's approach to
rear-end hits. "Although we may not simply substitute our judgment for the
trial court's, we shall not affirm an evidentiary ruling that represents 'a clear
error of judgment.'" State v. Vargas, 463 N.J. Super. 598, 613 (App. Div.
2020) (quoting State v. Perry, 225 N.J. 222, 233 (2016)).
2 Psychogenic is defined as "originating in the mind or in mental or emotional conflict." Merriam-Webster Online Dictionary, https://www.merriam- webster.com/dictionary/psychogenic (last visited February 10, 2021).
A-3336-18 10 On the other hand, we are obliged to affirm an evidentiary decision if it
reached "the proper conclusion . . . based on the wrong reasoning." Hayes v.
Delamotte, 231 N.J. 373, 387 (2018). In holding the statements were
inadmissible, the court wrongly concluded they would usurp the function of
the jury by addressing an "ultimate issue." However, ABF's decision to
discharge Williams was properly excluded because it was a subsequent
remedial measure. N.J.R.E. 407. The balance of the discharge letter and
Cates's and Williams's statements should have been analyzed as statements of
a party opponent, N.J.R.E. 803(b). As such, they were admissible.
A. Ultimate Issue
The trial court erred in reasoning that the Cates deposition excerpts and
the statements in the discharge letter usurped the jury's function by addressing
an "ultimate issue." First, the court mischaracterized the evidence. Second,
statements may not be excluded solely because they may embrace an ultimate
issue. Third, while ultimate issue evidence may be excluded for other reasons,
those reasons do not apply or were not applied in this case.
Our Evidence Rules abolished the so-called "ultimate issue rule."
"Testimony in the form of an opinion or inference otherwise admissible is not
objectionable because it embraces an ultimate issue to be decided by the trier
of fact." N.J.R.E. 704. The rule does not define "ultimate issue." But our
A-3336-18 11 cases make clear that a witness may testify that a defendant deviated from a
standard of care. See, e.g, Jacober v. St. Peter's Med. Ctr., 128 N.J. 475, 497
(1992) (stating that expert could testify that a certain catheter "[wa]s the
appropriate size" to use on the plaintiff-infant, not the one the defendant used).
Even before the Rules of Evidence were adopted, we held "opinion testimony
of experts relating to the ultimate issue, i.e., the propriety and safety of a
condition or appliance is allowed." Shutka v. Pa. R. Co., 74 N.J. Super. 381,
401 (App. Div. 1962).
That does not mean that ultimate issue testimony may never be excluded.
The rule refers to evidence "otherwise admissible." N.J.R.E. 704. So, a court
may still bar a witness from telling a jury what result to reach in a case (for
example, that a criminal defendant is guilty), or from offering a purely legal
conclusion. A court may do so, but not because such statements do not
embrace an ultimate issue. Rather, a court may bar ultimate issue opinions,
among other reasons, if they are unhelpful. See, e.g., State v. Cain, 224 N.J.
410, 427 (2016) (noting that "an expert is no better qualified than a juror to
determine the defendant's state of mind," an "ultimate issue," after the expert
has tutored the jury on "the peculiar characteristics of drug distribution"). Or,
they are unreliable. See, e.g., Jacober, 128 N.J. at 497 (stating an expert may
"offer reliable opinion testimony about the ultimate issue at trial").
A-3336-18 12 Or, they are unduly prejudicial, as with opinions about guilt or essential
elements of crimes. See, e.g., Cain, 224 N.J. at 427-28 (noting that expert's
testimony on ultimate issue state-of-mind causes "prejudice and potential
confusion . . . [that] outweighs any probative value it may possess"); State v.
Sowell, 213 N.J. 89, 100 (2013) (stating that expert testimony embracing an
ultimate issue "can be excluded if 'the risk of . . . undue prejudice, conf usion
of issues, or misleading the jury' substantially outweighs its probative value")
(quoting N.J.R.E. 403); State v. McLean, 205 N.J. 438, 454 (2011) (stating the
"risk of undue prejudice" is "'significant'" if an expert investigating officer
"'offers an opinion on an ultimate issue in the case'") (quoting State v. Berry,
140 N.J. 280, 301 (1995)); State v. Landeros, 20 N.J. 69, 74-75 (1955)
(reversing conviction because of police officer's prejudicial testimony
regarding the defendant's guilt).
As the Federal Advisory Committee observed:
The abolition of the ultimate issue rule does not lower the bars so as to admit all opinions. Under Rules 701 and 702, opinions must be helpful to the trier of fact, and Rule 403 provides for exclusion of evidence which wastes time. These provisions afford ample assurances against the admission of opinions which would merely tell the jury what result to reach, somewhat in the manner of the oath-helpers of an earlier day. They also stand ready to exclude opinions phrased in terms of inadequately explored legal criteria. Thus the question, "Did T have capacity to make a will?" would be excluded, while the question,
A-3336-18 13 "Did T have sufficient mental capacity to know the nature and extent of his property and the natural objects of his bounty and to formulate a rational scheme of distribution?" would be allowed.
[Advisory Committee Note to Fed. R. Evid. 704, 56 F.R.D. 183, 285 (1972).] Here, the trial court mischaracterized the statements as "ultimate issue"
evidence. Neither Cates nor Witter said how the case should be decided, nor
did they offer a legal conclusion, let alone an "inadequately explored" one, that
Williams acted negligently. Rather, Cates testified, as a factual matter, that
Williams deviated from ABF's training and protocols. Cates also concluded,
in his safety evaluation, that the accident was "preventable." That opinion was
repeated in Witter's letter. But, "preventable" evidently is not the same as
negligent.3 Also, although Witter said Williams drove "reckless[ly]," he did
not define the term. Perhaps, it was defined in the apparent collective
3 Cates did not disclose ABF's definition of "preventable" in the record before us. Williams testified he understood it to mean the "driver could have d[one] something to keep the accident from happening. Basically [it] is saying the driver [is] at fault." We note that the Motor Carrier Safety Regulations include at least two definitions. See 49 C.F.R. § 385.3 (defining a "[p]reventable accident on the part of a motor carrier [to] mean[] an accident (1) that involved a commercial motor vehicle, and (2) that could have been averted but for an act, or failure to act, by the motor carrier or the driver"); 49 C.F.R. Pt. 385, App A (stating that "[i]f a driver, who exercises normal judgment and foresight, could have foreseen the possibility of the accident that in fact occurred, and avoided it by taking steps within his/her control which would not have risked causing another kind of mishap, the accident was preventable").
A-3336-18 14 bargaining agreement that he referenced in his letter; or he used the word in its
common, everyday meaning. However, there is no reason to believe he had in
mind the term's legal meaning under our tort law.
Furthermore, even if the statements were deemed to embrace the
ultimate issue, they may not be barred on that basis. N.J.R.E. 704. We
acknowledge that N.J.R.E. 701 and 702 may generally provide grounds to bar
an ultimate issue opinion — because, for example, it was an expert's net
opinion, or a lay opinion unsupported by personal knowledge. But, as we
discuss below, those rules do not bar the introduction of a statement of a party
opponent. Finally, the trial court engaged in no N.J.R.E. 403 balancing. In
sum, the trial court erred in characterizing Cates's and Witter's statements as
embracing the ultimate issue, and then excluding them on that basis.
B. Hearsay
We also reject defendants' argument that the statements of Cates, Witter,
and Williams were excludable hearsay. They were admissible as statements of
a party opponent. N.J.R.E. 803(b).
Witter wrote his letter, and Cates made his statements, in their respective
capacities as representatives of defendant ABF. The statements were "offered
against a party-opponent" — ABF. N.J.R.E. 803(b). And, in each case, the
statement was made "by a person authorized by the party-opponent to make a
A-3336-18 15 statement concerning the subject." N.J.R.E. 803(b)(3). ABF presented Cates
in discovery as its corporate representative on safety issues. Defendants do not
challenge Witter's authority to write the discharge letter as he did.4
In any event, Witter wrote the letter while he was an "agent or servant"
of ABF, "concerning a matter within the scope of the agency or employment,
made during the existence of the relationship." N.J.R.E. 803(b)(4). The
statement itself — for example, Witter's statement that Williams was reckless
— need not fall within the scope of the agency or employment. The statement
need only "concern[] a matter within the scope of the agency or employment"
— in this case, Witter's firing authority. See 5 Weinstein's Federal Evidence §
801.33[1] (2021) (making that distinction).
Williams's statement was admissible against him, because it was his
"own statement, made either in an individual or in a representative capacity."
N.J.R.E. 803(b)(1). It is unclear if Williams's statement would be admissible
against ABF as a statement of ABF, because Williams may have been retired
when he made the statement. See Matter of Opinion 668 of Advisory Comm.
4 We recognize that the Safety Department's determination that the accident was preventable was hearsay within the hearsay of Witter's letter. However, "[h]earsay within hearsay is not excluded by the rule against hearsay if each part of the combined statements conforms with an exception to the rule." N.J.R.E. 805. The Safety Department's determination — which Cates confirmed in his deposition — was also a statement of a party-opponent.
A-3336-18 16 on Pro. Ethics, 134 N.J. 294, 300 (1993) (stating, referring to N.J.R.E.
803(b)(4), that "[f]ormer employees are not, strictly speaking, covered by the
[e]vidence [r]ule").
Although defendants reiterate the trial court's concern that both Witter
and Cates lacked personal knowledge about the collision, that lack of
knowledge is no reason to exclude their statements. Their statements still
qualify as those of a party-opponent under the rule, because personal
knowledge is not required. See Parker v. Poole, 440 N.J. Super. 7, 19 (App.
Div. 2015) (noting that "courts have specifically exempted statements under
F.R.E. 801(d)(2)(A) from the personal-knowledge requirement for testimony");
2 McCormick on Evidence § 254 (8 th ed. 2020) (noting that the party who
makes a statement of a party-opponent "is not required to have firsthand
knowledge of the matter declared").
Nor must the proponent demonstrate that the party-opponent's statement
has an "indicia of reliability," as defendants argue. "[S]tatements by a party -
opponent are not subject to trustworthiness considerations." Parker, 440 N.J.
Super. at 19. The proponent also need not establish, as defendants contend,
that the declarants "possessed the expertise necessary" to offer their opinions.
Just as a party-opponent's statement of opinion need not satisfy the personal
knowledge requirement of the lay opinion rule, N.J.R.E. 701, see Parker, 440
A-3336-18 17 N.J. Super. at 20, a party-opponent statement of opinion need not satisfy the
expertise requirement of the expert opinion rule, N.J.R.E. 702, see Advisory
Committee Note to Fed. R. Evid. 801(d)(2)(A), 56 F.R.D. at 297 (referring to
"[t]he freedom which admissions have enjoyed . . . from the restrictive
influences of the opinion rule and the rule requiring firsthand knowledge").
And, for purposes of admitting a statement of a party-opponent, it does
not matter if, as defendants contend, Hassan "offered no proof" that Witter's
letter was "a statement against ABF's interest." "A statement admitted under
N.J.R.E. 803(b)(1) does not have to be contrary to the party's interest when
made." See, e.g., State v. Covell, 157 N.J. 554, 572 (1999). That is required
to admit statements under N.J.R.E. 803(c)(25).
Since Cates's and Witter's statements are admissible as statements of a
party opponent only against ABF, and Williams's statement is admissible as a
statement of a party opponent only against Williams, the trial court on remand
will need to determine whether the limited use of the statements can be
adequately addressed through jury instructions.
Alternatively, on remand, Hassan may try to offer some of the
statements as statements against interest. N.J.R.E. 803(c)(25). If so
admissible, they could be offered against all defendants. Hassan would need
to establish that Cates's or Witter's statements were "so far contrary to . . .
A-3336-18 18 [ABF's] pecuniary, proprietary, or social interest, or so far tended to subject
[ABF] to civil . . . liability . . . that a reasonable person in . . . [Cates's or
Witter's] position would not have made the statement unless . . . [Cates or
Witter] believed it to be true." N.J.R.E. 803(c)(25). 5 Hassan would also need
to establish that Williams's discussion of ABF's policy in rear-end collisions
was also "so far contrary" to his pecuniary interests or would "so far tend[] to
subject" him to civil liability. We do not reach the issue whether any of the
statements would be admissible under N.J.R.E. 803(c)(25), because Hassan on
appeal confines his argument to N.J.R.E. 803(b) and caselaw interpreting that
rule (notwithstanding that he mistakenly described the rule as pertaining to
statements against interest).
C. Subsequent Remedial Measure
As noted, if the trial court reached the right result for the wrong reason,
we are obliged to affirm. We do so regarding the order excluding Witter's
statement discharging Williams. However, for reasons we discuss below, the
discharge statement should be redacted from the rest of the letter.
5 Evidently, federal regulators rate the safety of interstate motor carriers, 49 C.F.R. § 385.5, and among the factors considered are "indicators of preventable accidents" and "whether . . . preventable accident indicators have increased or declined over time," 49 C.F.R. § 385.7(f). Conceivably, a statement that an accident was "preventable" may be "so far contrary" to ABF's "pecuniary, proprietary, or social interest" by undermining ABF's standing with federal regulators.
A-3336-18 19 Although evidence of Williams’s discharge was not excludable as
hearsay, otherwise "admissible hearsay must avoid the exclusions found in
Article IV of our Rules of Evidence." Vargas, 463 N.J. Super. at 610. The
statement discharging Williams was properly excluded because his discharge
was a post-event "remedial measure." N.J.R.E 407. Once fired, he could not
get into more accidents. And Hassan offered the firing to "prove that the event
was caused by [Williams's] negligence or culpable conduct." Ibid.
Under the common law, "evidence of remedial measures is excluded not
because it lacks relevancy, but because the court, to refrain from discouraging
such measures, declares it incompetent." Hansson v. Catalytic Constr. Co., 43
N.J. Super. 23, 29 (App. Div. 1956); but see Brown v. Brown, 86 N.J. 565,
580-81 (1981) (stating that the rule excluding subsequent remedial measures is
also based "on the unreliability of any inference of an admission of culpability
by the defendant").
Before adoption of our Rules of Evidence, the Court of Errors and
Appeals held, in a case involving a bus colliding into a truck, that "[e]vidence
that a driver ha[d] been discharged soon after an accident is not competent as
an implied admission that the driver had been careless." Rynar v. Lincoln
Transit Co., 129 N.J.L. 525, 530 (E. & A. 1943). Although we have found no
New Jersey case deeming a responsible employee's discharge a subsequent
A-3336-18 20 remedial measure under our Rules of Evidence, we have no doubt that N.J.R.E.
407 applies, as did its predecessor, Evid. R. 51. See Judson F. Falknor,
Extrinsic Policies Affecting Admissibility, 10 Rutgers L. Rev. 574, 591 (1956)
(stating that Uniform Rule of Evidence Rule 51 "finds its most common
application in respect . . . of . . . the discharge of an employee charged with
causing an injury" among other measures, and stating that the rule "appears
broad enough to cover any situation which, by existing law, is within the
sweep of the exclusionary principle"). 6
N.J.R.E. 407 "follows the principle stated by . . . Fed. R. Evid. 407."
1991 Supreme Court Committee Comment to N.J.R.E. 407. Therefore, we
may look to federal cases for guidance. Parker, 440 N.J. Super. at 19. Courts
applying Fed. R. Evid. 407 have found discharging a responsible employee to
be a subsequent remedial measure. See, e.g. Nolan v. Memphis City Schools,
589 F.3d 257, 274 (6th Cir. 2009) (stating that "[e]vidence that an employer
subsequently discharged an employee accused of causing a plaintiff's injury
6 Evid. R. 51 stated, "When after the occurrence of an event remedial or precautionary measures are taken, which, if taken previously would have tended to make the event less likely to occur, evidence of such subsequent measures is not admissible to prove negligence or culpable conduct in connection with the event." N.J.R.E. 407 states, "Evidence of remedial measures taken after an event is not admissible to prove that the event was caused by negligence or culpable conduct. However, evidence of such subsequent remedial conduct may be admitted as to other issues."
A-3336-18 21 may be properly excluded as a subsequent remedial measure under Rule 407");
Mahnke v. Wash. Metro. Area Transit Auth., 821 F. Supp. 2d 125, 152
(D.D.C. 2011) (stating that Fed. R. Evid. 407 barred evidence of bus driver's
discharge). See also 2 Weinstein's Federal Evidence § 407App.01 (2021)
(quoting Advisory Committee Notes acknowledging that the rule covers
discharge of responsible employees). 7
However, N.J.R.E. 407 does not bar admissibility of a post-accident
investigation, even if it prompted the discharge. We again look to other
persuasive sources absent controlling New Jersey authority. Evidence of post -
accident investigations lies outside the rule because the investigations "are
conducted or prepared for the purpose of investigating the cause of the
accident, and can rarely be characterized as 'measures' which, if conducted
previously, would have reduced the likelihood of the accident." 2 Weinstein's
Federal Evidence § 407.06 (2021). Put another way, safety is only furthered
when measures are taken as a result of the investigation. Ibid.
7 Fed. R. Evid. 407 originally stated, "When, after an event, measures are taken which, if taken previously, would have made the event less likely to occur, evidence of the subsequent measures is not admissible to prove negligence or culpable conduct in connection with the event." Pub. L. 93 -595 (Jan. 2, 1975). The rule was remodeled to state: "When measures are taken that would have made an earlier injury or harm less likely to occur, evidence of the subsequent measures is not admissible to prove: negligence; culpable conduct; a defect in a product or its design; or a need for a warning or instruction." Fed. R. Evid. 407.
A-3336-18 22 Thus, courts have excluded evidence of subsequent remedial measures
under Rule 407, but not the investigation that preceded them. See, e.g., Rocky
Mtn. Helicopters, Inc. v. Bell Helicopters Textron, 805 F.2d 907 (10 th Cir.
1986) (affirming trial court decision to exclude evidence of helicopter
redesign, but not a post-accident study about the prior design); Fox v. Kramer,
994 P.2d 343 (Cal. 2000) (stating that California analog to Rule 407 "would
appear to include only subsequent actions taken to repair or correct a problem
identified by an investigation — not the factual inquiries undertaken to
determine whether such repair or correction was necessary"). "[T]he policy
considerations that underlie Rule 407, such as encouraging remedial measures,
are not as vigorously implicated where investigative tests and reports are
concerned." Rocky Mtn. Helicopters, 805 F.2d at 918. And, "[t]o the extent
that such policy concerns are implicated, they are outweighed by . . . the
danger of depriving 'injured claimants of one of the best and most accurate
sources of evidence and information.'" Id. at 918-19 (quoting Westmoreland v.
CBS, Inc., 601 F. Supp. 66, 68 (S.D.N.Y. 1984)).
In particular, courts have distinguished between evidence of a discharge,
and the investigatory report that may have prompted it. In J.B. Hunt
Transport, Inc. v. Guardianship of Zak, 58 N.E.3d 956, 963 (Ind. Ct. App.
2016), a case involving an automobile-truck collision, the trial court excluded
A-3336-18 23 evidence of the driver's firing as a subsequent remedial measure, but not
reports of the trucking company's internal review process. On the trucking
company's appeal, the Indiana appellate court affirmed, holding that "evidence
of post-accident investigations are not automatically excluded as subsequent
remedial measures." Id. at 967. See also J.M. v. City of Milwaukee, 249 F.
Supp. 3d 920, 931-32 (E.D. Wisc. 2017) (distinguishing between evidence of
police officer's firing, which was inadmissible under Rule 407, and "the
investigation leading to that act, namely the determination in the Discharge
Proceedings that his search was unreasonable"); Aranda v. City of
McMinnville, 942 F. Supp. 2d 1096, 1104 (D. Or. 2013) (noting the
"distinction . . . between the actual disciplining of officers for their conduct,
which could constitute a remedial measure, and the investigation that precedes
a disciplinary process"); Bullock v. BNSF Ry. Co., 399 P.3d 148, 158-59
(Kan. 2017) (affirming appellate court's distinction between evidence of
discipline and evidence of investigative conclusion). 8 Where investigative
conclusions and discipline are found in the same document, appropriate
8 We find unpersuasive the view that if an employee's discharge is barred as a subsequent remedial measure, so is the internal investigation that led to the discharge. But see Mahnke, 821 F. Supp. 2d at 152 (excluding investigation leading to discharge of bus driver involved in collision); Martel v. Mass. Bay Transp. Auth., 525 N.E.2d 662, 664 (Mass. 1988) (same).
A-3336-18 24 redactions should be made, rather than excluding the entire document. Id. at
158.
In sum, N.J.R.E. 407 excludes evidence of Williams's discharge. But the
rule does not exclude evidence of ABF's investigation, including Cates's
finding that Williams violated ABF safety protocols, and the collision was
preventable; and Witter's opinion that Williams acted "reckless[ly]." 9
However, that does not complete the analysis.
D. N.J.R.E. 403
We turn, finally, to whether the probative value of the statements by
Cates and Williams, and the redacted letter of Witter, would be "substantially
outweighed by the risk of (a) [u]ndue prejudice, confusion of issues, or
misleading the jury; or (b) [u]ndue delay, waste of time, or needless
presentation of cumulative evidence." N.J.R.E. 403. Had the court engaged in
9 We recognize that in "certain rare circumstances," a court may shield statements in a "self-critical analysis," where "confidentiality concerns . . . outweigh the need for disclosure." Payton v. N.J. Tpk. Auth., 148 N.J. 524, 546 (1997). However, defendants do not argue that ABF's preventability analysis amounts to a "self-critical analysis." Furthermore, "[i]t is not so clear that disclosure inevitably will discourage candid self-criticism." Id. at 547. In particular, "when a deliberating body is required by law to prepare an honest report, replete with self-evaluation, we do not assume that that body will shirk its responsibilities in order to hide the truth." Ibid. In this case, one may question whether evidentiary exclusions would affect a motor carrier's preventability investigations, especially if they are responsive to federal regulations. See 49 C.F.R. § 385.5; 49 C.F.R. § 385.7(f).
A-3336-18 25 that balancing, it would command our deference. See Covell, 157 N.J. at 569
(stating that a court may overturn an N.J.R.E. 403 determination "[o]nly where
there has been a 'clear error of judgment'" (quoting State v. Koedatich, 112
N.J. 225, 313 (1988), cert. denied, 488 U.S. 1017 (1989))). "Yet, where the
trial court fails to apply the proper legal standard in evaluating the
admissibility of evidence, we review the evidentiary ruling de novo." State v.
Trinidad, 241 N.J. 425, 448 (2020). In Trinidad, the trial court failed to
conduct an N.J.R.E. 403 analysis. So, the Supreme Court conducted one itself.
Ibid.
So shall we. We conclude that the excluded statements had significant
probative value. Cates stated that Williams did not adhere to the safety
protocols that he was taught and "he failed to maintain proper lookout of what
was ahead of him," he "didn't allow himself an out" and "[h]e should have
been able to stop or change lanes." Those statements were relevant to the
jury's determination whether Williams exercised reasonable care, including, as
the judge instructed the jury, whether Williams "use[d] reasonable care in the
control, management, and operation of his machine," and whether he made
"such observations for traffic and road conditions and to exercise such
judgment as to avoid collision or injury to others upon the highway as a
A-3336-18 26 reasonably prudent person would have done under those circumstances." 10
Cates's Safety Department conclusion that the collision was preventable, which
Witter restated in his discharge letter, pertains to the same question. ABF had
determined that Williams had it in his power to avoid the collision.
Likewise, Witter's statement that Williams drove recklessly also had
significant probative value. Although Witter did not define the term in his
letter, it conveyed to the jury that Williams's own boss believed he acted
without sufficient care.
Lastly, Williams's own acknowledgement that ABF blamed any driver
who struck another vehicle in the rear was probative. We are not convinced by
Hassan's argument that Williams's statement admitted fault. Rather, it
described how ABF viewed his actions. Still, it was highly probative, since
ABF was denying fault at trial.
The probative value of these statements was not outweighed, let alone
"substantially outweighed" by "[u]ndue prejudice, confusion of issues, or
misleading the jury." N.J.R.E. 403(a). The evidence would not "divert jurors
'from a reasonable and fair evaluation'" of the issues before them. See State v.
Moore, 122 N.J. 420, 467 (1991) (quoting State v. Sanchez, 224 N.J. Super.
10 The court's instruction followed virtually verbatim the Model Jury Charges (Civil), 5.30A "General Duty Owing" (approved Aug. 1999).
A-3336-18 27 231, 249-50 (App. Div.) certif. denied, 111 N.J. 653 (1988)). Furthermore,
appropriate jury instructions — for example, distinguishing between
"preventability" and "negligence" — would manage any risk the jury would be
confused or misled by the witnesses' statements. 11
E. Rule 2:10-2
Finally, we conclude that the court's order excluding Witter's letter, and
Cates's and Williams's statements, were "clearly capable of producing an
unjust result," R. 2:10-2, compelling a new trial. The jury found both Hassan
and Williams negligent, and found Hassan only two percent more at fault than
Williams. The excluded evidence was clearly capable of convincing the jury
to assign slightly more responsibility to Williams and slightly less to Hassan.
In short, the excluded statements could have been "the deciding factor in
[Hassan's] favor." Parker, 440 N.J. Super. at 23. Therefore, Hassan (and his
wife) are entitled to a new trial.
11 Cf. Tyson v. Old Dominion Freight Line, Inc., 608 S.E.2d 266, 270 (Ga. Ct. App. 2004) (holding that the trial court did not abuse its discretion in finding that the prejudicial effect of admitting a motor carrier's finding that the accident was "preventable" outweighed its probative value because the carrier's "definition of preventable is different from the standard of liability"). Notably, we are not reviewing the trial court's discretionary balancing. Instead, we review the issue de novo.
A-3336-18 28 III.
A.
Hassan argues that the court erred in denying his motion to compel
responses to his discovery requests. We "are not to intervene but instead will
defer to a trial judge's discovery rulings absent an abuse of discretion or a
judge's misunderstanding or misapplication of the law." Capital Health Sys.,
Inc. v. Horizon Healthcare Servs., Inc., 230 N.J. 73, 79–80 (2017) (citing
Pomerantz Paper Corp. v. New Cmty. Corp., 207 N.J. 344, 371 (2011)).
Although mindful of the high bar appellants face, we agree the motion judge
erred in denying the discovery request for documents.
"[A]ppellate courts must start from the premise that discovery rules 'are
to be construed liberally in favor of broad pretrial discovery.'" Horizon
Healthcare, 230 N.J. at 80 (quoting Payton v. N.J. Tpk. Auth., 148 N.J. 524,
535 (1997)). "Our court system has long been committed to the view that
essential justice is better achieved when there has been full disclosure so that
the parties are conversant with all the available facts." Jenkins v. Rainner, 69
N.J. 50, 56 (1976). "To determine whether the materials sought by [Hassan]
are discoverable, their potential relevance is the initial inquiry. In deciding
whether evidence is relevant the focus is on the 'logical connection between
the proffered evidence and a fact in issue[.]'" In re Liquidation of Integrity
A-3336-18 29 Ins. Co., 165 N.J. 75, 82 (2000) (alteration in original) (quoting State v.
Hutchins, 241 N.J. Super. 353, 358 (App. Div. 1990)). "N.J.R.E. 401 defines
relevant evidence as 'evidence having a tendency in reason to prove or
disprove any fact of consequence to the determination of the action.'" Ibid.
The motion judge denied Hassan's request for the documents we have
described, evidently agreeing with defendants that the complex documents
were not relevant to liability issues in what seemed to be a "straight forward"
accident case. As a threshold matter, there is no competent evidence in the
record demonstrating that these documents were so complex. More
importantly, complexity and relevance are not mutually exclusive. In a case
that may seem simple, complex documents can add support to a party's
arguments. That is true here. The requested documents, including satellite
and "black box" data, concern such matters as the speed the truck was
traveling, what it was carrying, how the brakes were used, and the condition of
the driver. Such information was relevant to understanding how the accident
occurred.
We reject defendants' newly minted argument that Hassan's discovery
demand was "onerous." Defendants did not resist the discovery request on that
ground before the trial court, let alone provide any competent evidence to
support such a claim. See Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234
A-3336-18 30 (1973) (stating that "appellate courts will decline to consider questions or
issues not properly presented to the trial court when an opportunity for such
presentation was available 'unless the questions so raised on appeal go to the
jurisdiction of the trial court or concern matters of great public interest'"
(quoting Reynolds Offset Co., Inc. v. Summer, 58 N.J. Super. 542, 548 (App.
Div.) certif. denied, 31 N.J. 554 (1960))).
We also are unpersuaded by defendants' contention Hassan was obliged
to revive his request for the information, evidently through a motion to
reconsider, after defendants served their expert report. We disagree. Our
court rules place a "continuing obligation" on a party responding to a "r equest
to produce" to update its response throughout the pre-trial litigation as needed.
See R. 4:18-1(b)(3). Once defendants concededly "radically shifted" "[t]he
complexion" of the case with their experts' opinion, defendants bore the
responsibility to reassess their response, and disclose what they withheld based
on their prior characterization of the case.
Without the benefit of the discovery itself, and perhaps an expert
analysis of its significance, we cannot decide that withholding it led to an
unjust result, requiring a new trial. R. 2:10-2. However, we need not reach
the question, as we reverse based on the exclusion of Cates's and Williams's
statements and Witter's letter with the discharge portion redacted.
A-3336-18 31 B.
Hassan contends the court erred in allowing defendants to elicit
testimony concerning the possibility he was suffering from Alzheimer's
disease. He also contends the court erred in allowing defense counsel to cross -
examine his expert on aspects of his medical history.
The court barred defendants from eliciting testimony from their own
medical expert that Hassan might suffer from Alzheimer's disease, as there was
no competent evidence from a medical professional that Hassan actually did.
However, the court allowed defendant to cross-examine Hassan's treating
neurologist and medical expert witness, who asserted that the collision caused
Hassan neurological injury, whether he considered pre-existing "white matter
disease" or "anxiety."
At trial, defense counsel asked the expert witness whether he considered
Hassan's family medical history, particularly that his father had dementia. The
expert testified he noted the family history of dementia in his report. Defense
counsel then asked whether people with dementia "drive real slow." Hassan's
counsel objected. The judge directed defense counsel to "move on,"
interrupted defense counsel's attempt to argue the point, and then asked the
expert, "Doctor, you don't have any medical evaluation of driving patterns with
A-3336-18 32 people with dementia; do you?" The witness answered no, and the judge
responded, "All right."
Defense counsel's questioning was improper. Instead of probing the
basis of the medical expert's damages-related opinion, defense counsel
evidently suggested that Hassan may have driven slowly — as defendants'
accident reconstruction expert asserted — because he had incipient dementia.
Although the court did not expressly sustain the objection, nor provide a
curative instruction, the court minimized any harm by establishing that the
doctor had no evidence that people with dementia drive slowly. Defense
counsel did not attempt to make the connection again in closing. We therefore
conclude that the fleeting remark, by itself, was not capable of producing an
unjust result.
C.
We reach the same conclusion with respect to questioning about a 2002
medical record indicating Hassan had suffered a wrist injury. The court agreed
to bar such inquiry, as defense counsel had not questioned any of the medical
experts during their depositions. Nonetheless, defense counsel cross-examined
Hassan on whether he recalled this injury. After Hassan reviewed the record
to refresh his memory, he stated he did not remember the injury. However, the
jury never reached the issue of damages. So, the error was harmless.
A-3336-18 33 Hassan's remaining arguments lack sufficient merit to warrant discussion
in a written opinion. R. 2:11-3(e)(1)(E).
Reversed and remanded for a new trial. We do not retain jurisdiction.
A-3336-18 34