NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-5317-17T4
PETER W. SLOMKOWSKI and DANA SLOMKOWSKI,
Plaintiffs-Appellants,
v.
NEW JERSEY MANUFACTURERS INSURANCE COMPANY,
Defendant-Respondent. ______________________________
Submitted September 16, 2019 – Decided January 24, 2020
Before Judges Messano, Vernoia and Susswein.
On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Docket No. L-3166-15.
Maggs & MC Dermott, attorneys for appellants (James A. Maggs, Michael M. Di Cicco and Tara Marie Parente, on the briefs).
Leyden Capotorto Ritacco Corrigan & Sheehy, attorneys for respondent (Kevin F. Sheehy, on the brief).
PER CURIAM Plaintiffs, Peter W. Slomkowski and Dana Slomkowski, appeal from a no-
cause jury verdict arising from a March 2012 rear-end motor vehicle accident
involving an underinsured motorist. The key disputed issue at trial was whether
Mr. Slomkowski suffered permanent injury as a proximate result of the accident.
Plaintiffs contend that the trial judge made several incorrect evidentiary rulings
and improperly precluded plaintiffs from telling the jury in summation that the
defense had elected not to call the expert medical witness they retained to
examine plaintiff. We affirm the jury verdict substantially for the reasons set
forth in the trial judge's written opinion denying plaintiffs' motion for a new
trial. After reviewing the record, we conclude the plaintiffs' contentions, viewed
individually and cumulatively, do not warrant overturning the jury verdict.
I.
Defendant, New Jersey Manufacturers Insurance Co., retained a medical
expert, Dr. Richard Sacks, to perform an independent medical examination of
Mr. Slomkowski. Dr. Sacks prepared a report where he opined that the March
2012 accident caused a permanent injury. In light of the unfavorable opinion,
the defense chose not to call Dr. Sacks as a trial witness. Defendant also filed a
motion in limine to prohibit plaintiffs from advising the jury that it was the
defense that had retained Dr. Sacks to examine Mr. Slomkowski. Defendant did
A-5317-17T4 2 not object to the jury being told that the defense did not present an expert to
counter plaintiffs' expert. Nor did defendant object to having Dr. Sacks appear
at trial as a witness on behalf of plaintiffs. All the motion in limine sought was
to keep from the jury that Dr. Sacks had been retained by the defense to conduct
an independent medical examination. The trial judge granted defendant's
motion. Plaintiffs contend on this appeal that they should have been permitted
to advise the jury that the defense retained Dr. Sacks.
New Jersey law affords attorneys "broad latitude in summation[s]."
Bender v. Adelson, 187 N.J. 411, 431 (2006) (quoting Colucci v. Oppenheim,
326 N.J. Super 166, 177 (App. Div. 1999)). Counsel may even draw conclusions
that cause the jury to make inferences that are "improbable, perhaps illogical,
erroneous or even absurd." Ibid. (quoting Colucci, 326 N.J. Super at 177).
However, summation commentary must be based on truth and counsel cannot
"misstate the evidence[,] . . . distort the factual picture," nor draw an inference
without evidentiary support. Ibid. (quoting Colucci, 326 N.J. Super. at 177);
see also Colucci, 326 N.J. Super at 177 (finding that summation "comments must
be confined to the facts shown or reasonably suggested by the evidence
introduced during the course of the trial" (citing Condella v. Cumberland Farms,
Inc., 298 N.J. Super. 531, 534 (Law Div. 1996))). With respect to limitations
A-5317-17T4 3 on the inferences that may be argued by counsel during summation, trial courts
are given the discretion to conduct a case-specific analysis to determine whether
a failure to call a witness raises no inference or an unfavorable one, and "whether
any reference in the summation or a charge is warranted." State v. Clawans, 38
N.J. 162, 172 (1962).
In the present case, plaintiffs' counsel wished to inform the jury not only
that his expert testimony was unrebutted, but also that the defense had its own
expert, Dr. Sacks, examine Mr. Slomkowski and chose not to have him testify.
The practical effect of such an argument would convey to the jury both that the
non-testifying expert's opinion would have been adverse to defendant's case and
also that the defense was seeking to conceal Dr. Sack's opinion from them.
We agree with the trial court that it would have been inappropriate to
allow plaintiffs' counsel to argue in summation that the defense had retained Dr.
Sacks. The trial court's ruling is consonant with the principles explained in
Washington v. Perez, which addressed when an adverse inference jury
instruction is warranted in a case where "a party declines to present the
testimony of expert witnesses whose opinions have been disclosed in accordance
with the discovery rules." 219 N.J. 338, 342 (2014). It bears emphasis that Dr.
Sacks was not in the exclusive control of defense counsel. To the contrary, as
A-5317-17T4 4 was made clear during argument on the motion in limine, plaintiffs were free to
subpoena Dr. Sacks to present his testimony at trial, just as plaintiffs ' counsel
was free to point out that the defense did not call an expert to refute the plaintiffs '
expert's opinion. The trial court acted well within its discretion when it
precluded plaintiffs' counsel from going one step further by telling the jury in
essence that the defense had chosen to withhold unfavorable evidence from
them.
II.
Plaintiffs contend that the jury should not have been shown four
photographs that depicted the rear bumper of their car following the accident.
The exact circumstances of the admission and publication of these photographs
are somewhat unclear. The trial court ruled that the photographs had been
properly authenticated and could be shown to the jury on a display board.
However, the court later determined that the photographs could not go into the
jury room, commenting that they could be misleading.
We begin our analysis by noting that when reviewing evidentiary rulings
made by the trial court, we apply an "abuse of discretion" standard. State v.
Nantambu, 221 N.J. 390, 402 (2015) (quoting State v. Harris, 209 N.J. 431, 439
(2012)). An appellate court will reverse an evidentiary ruling only if it "was so
A-5317-17T4 5 wide off the mark that a manifest denial of justice resulted." Griffin v. City of
East Orange, 225 N.J. 400, 413 (2016) (quoting Green v. N.J. Mfrs. Ins. Co.,
160 N.J. 480, 492 (1999)).
N.J.R.E. 901 states that "[t]he requirement of authentication or
identification as a condition precedent to admissibility is satisfied by evidence
sufficient to support a finding that the matter is what its proponent claims." As
pointed out by the court in Kalola v. Eisenberg,
[N.J.R.E.] 901 "does not erect a particularly high hurdle." The proponent of the evidence is not required "to rule out all possibilities inconsistent with authenticity, or to prove beyond any doubt that the evidence is what it purports to be."
....
The requirement under [N.J.R.E.] 901 is satisfied if sufficient proof has been introduced so that a reasonable juror could find that the matter in question is what its proponent claims.
[344 N.J. Super. 198, 205–06 (Law Div. 2001) (internal citations omitted).]
Accordingly, all that is needed to admit photographs is witness testimony that
the photograph is a fair and accurate depiction of what the exhibit purports to
show. See Brenman v. Demello, 191 N.J. 18, 21 (2007) ("The admissibility of
any relevant photograph rests on whether the photograph fairly and accu rately
A-5317-17T4 6 depicts what it purports to represent . . . ."); State v. Joseph, 426 N.J. Super. 204,
220 (App. Div. 2012) ("The authentication of photographic evidence requires a
witness to verify that it accurately reflects its subject, and to identify or state
what the photograph shows." (citing State v. Wilson, 135 N.J. 4, 14 (1994)));
Macaluso v. Pleskin, 329 N.J. Super. 346, 356 (App. Div. 2000) (holding that
computerized images of x-rays were authenticated by testimony from the
treating physician that the images "were a fair and accurate depiction of the x-
rays he had taken").
In the present case, Mr. Slomkowski, during cross-examination, was
shown the same four photographs of his vehicle that had been shown to him
during his deposition. During the deposition, he identified the car in the
photographs as his and was able to identify a crack in the center of the bumper
that the accident caused. At trial, he first testified on cross-examination that the
photographs did not depict the way his vehicle appeared after the accident. He
testified that there was additional damage to the underside of the bumper that
was not visible in the photographs. However, he eventually acknowledged on
cross-examination that the photographs did accurately depict the way his vehicle
looked following the accident, even as he maintained that the photographs did
not present the best angle to show the extent of the damage sustained during the
A-5317-17T4 7 accident. Based on his testimony that the photographs accurately depicted the
way his vehicle appeared following the accident, the trial court found that the
requirements for authentication and admissibility were met.
Later, the court decided to prohibit the photographs from going into the
jury room, but in a sidebar before jury instructions, the judge was clear that the
photographs were evidence the jury could consider. The judge did not instruct
the jury to disregard the photographs, but rather gave the standard "photographic
evidence" model jury charge. Those instructions explain how the jury might
consider photographs that purport to show the extent of vehicle damage so that
it can determine whether the motor vehicle accident involved sufficient force to
cause Mr. Slomkowski to sustain a permanent injury. 1
We conclude from these circumstances that the judge did not reverse his
initial ruling as to the admissibility of the photographs. Nor was there need to
do so. The photographs were properly authenticated as required under N.J.R.E.
901. Mr. Slomkowski's testimony on cross-examination suggesting that there
were other angles to show the full extent of damage to the car does not mean
1 Model Jury Charges (Civil), 5.34, "Property Damage in Motor Vehicle Accidents" (approved 10/2009; rev. 01/2019). This court gave this charge prior to its 2019 update, which changed the name of the charge and revised the charge to include instances where a party alleges vehicle damage, but there is no photographic evidence of damage. A-5317-17T4 8 that the photographs in question should not have been admitted. Nothing in the
record suggests, for example, that the photographs had been altered or distorted.
A photograph may fairly depict what it purports to depict, and thus be
authenticated and admitted into evidence, notwithstanding that other
photographs may provide additional perspectives and thereby present a more
complete understanding of the condition of the item depicted. In our adversarial
trial system, advocates on both sides are permitted to introduce evidence
favorable to their case, and photographs proposed as evidence by one party are
not inadmissible simply because the opposing party might introduce other
photographs that suggest a different conclusion on a disputed question of fact.
It bears emphasis that, in this instance, plaintiffs did not avail themselves of the
option to introduce photographs that depicted damage to the underside of t he
bumper. By the same token, plaintiffs' counsel was free to have his client
reiterate on re-direct examination that the four photographs offered by the
defense did not provide a complete picture of the vehicle damage the accident
caused. Plaintiffs' counsel also was free during summation to highlight his
client's testimony that the vehicle had sustained damage not shown in those four
photographs.
A-5317-17T4 9 In sum, the trial court did not abuse its discretion in admitting the
photographs and allowing them to be shown to the jury on a display board at the
time of Mr. Slomkowski's cross-examination. The court's subsequent decision
to keep the photographs out of the jury room was unnecessary, and to the extent
that decision was in error, it redounded to plaintiffs' benefit and was not capable
of producing an unjust result. See R. 2:10-2.
III.
Plaintiffs next raise an embedded hearsay issue, contending that the
content of pre-accident medical records, in the form of handwritten notes made
by Mr. Slomkowski's primary care physician and rheumatologist, were
improperly presented to the jury during the cross-examinations of Mr.
Slomkowski and of his expert witness. Any irregularities with respect to the use
of the pre-accident medical reports during the cross-examinations of Mr.
Slomkowski and his expert were harmless; the information contained in the
handwritten notes that was revealed to the jury was admissible under two distinct
exceptions to the hearsay rule.
By way of background, records made by Mr. Slomkowski's primary care
physician, Dr. William DiGiacomo, showed that in 2004, plaintiff complained
of neck and shoulder pain with a tingling sensation in his left ring and pinky
A-5317-17T4 10 fingers. Medical records made by Mr. Slomkowski's rheumatologist, Dr.
Rosemarie DeSantis, a year prior to the motor vehicle accident showed that
plaintiff complained of pain and sought treatment and medication related to his
neck, bilateral trapezius, shoulder, and upper arm. Dr. DeSantis' medical
records also memorialized that between March 2011 and March 2014, Mr.
Slomkowski received eleven trigger point injections in his cervical and trapezius
muscles.
It bears repeating that the key disputed issue at trial was whether Mr.
Slomkowski sustained permanent injury as a proximate result of the March 2012
accident. Plaintiffs did not claim that the accident aggravated a preexisting
injury or condition. Furthermore, Mr. Slomkowski testified on direct
examination that his pre-accident treatment with Dr. DeSantis was only for knee
issues. That testimony opened the door to questions concerning the scope and
nature of the pain he had reported to Dr. DeSantis. Accordingly, defense counsel
was permitted to pose questions on cross-examination to show that plaintiff had
sought and received medical treatment for shoulder pain before the 2012 rear -
end collision. It is well-settled in this regard that "[a] plaintiff may be cross-
examined as to prior injuries to show that his present physical condition did not
result solely from defendant's negligent act, but was caused, wholly or partially,
A-5317-17T4 11 by an earlier accident or pre-existing condition." Paxton v. Misiuk, 34 N.J. 453,
460 (1961) (citing Krug v. Warner, 28 N.J. 174, 185 (1958)).
A.
During the cross-examination of Mr. Slomkowski, defense counsel sought
to use the pre-accident medical treatment records to refresh plaintiff's
recollection on whether he had complained of pain in his neck, back, and arm
before the accident. Defense counsel also wanted to use the records to refresh
plaintiff's recollection on whether he received trigger point injections in his
trapezius and not mid-back. However, defense counsel did not lay a proper
foundation for refreshing his recollection under N.J.R.E. 612. The trial record
shows, moreover, that plaintiff did not rely independently on his own
recollection after reviewing the documents but rather deferred to or repeated the
contents of the report as recited in counsel's question. (As it turned out, plaintiff
was unable to decipher the handwriting in these medical records.)
It is inappropriate under N.J.R.E. 612 to have a witness read aloud the
substance of a document without offering independent, refreshed recollection of
the matters at issue. Lauteck Corp. v. Image Bus. Sys. Corp., 276 N.J. Super.
531, 546 (App. Div. 1994). Although the form of defense counsel 's cross-
examination of Mr. Slomkowski was improper under N.J.R.E. 612, the error was
A-5317-17T4 12 harmless. The information in the medical records was presented to the jury by
means of defense counsel's questions to show plaintiff's subjective complaints
of pain, his request for additional pain medication, and the fact that he received
eleven trigger point injections. This information was admissible under N.J.R.E.
803(c)(4) and N.J.R.E. 803(c)(6).
N.J.R.E. 803(c)(4) excepts from the hearsay rule:
Statements made in good faith for purposes of medical diagnosis or treatment which describe medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof to the extent that the statements are reasonably pertinent to diagnosis or treatment.
The rationale for this exception is that these statements are inherently reliable
because "the patient believes that the effectiveness of the treatment he receives
may depend largely upon the accuracy of the information he provides the
physician." R.S. v. Knighton, 125 N.J. 79, 87 (1991) (quoting K. Brown et al.,
McCormick on Evidence, § 292 (3d ed. 1984)). The exception assumes that the
patient is "more interested in obtaining a diagnosis and treatment culminating in
a medical recovery than . . . in obtaining a favorable medical opinion
culmination in a legal recovery." In re Registrant, C.A., 146 N.J. 71, 99 (1996)
(quoting Biunno, Current N.J. Rules of Evidence, cmt. on N.J.R.E. 803(c)(4)
(1994)).
A-5317-17T4 13 The so-called business records exception, N.J.R.E. 803(c)(6), states:
A statement contained in a writing or other record of acts, events, conditions, and, subject to [N.J.R.E.] 808, opinions or diagnoses, made at or near the time of observation by a person with actual knowledge or from information supplied by such a person, if the writing or other record was made in the regular course of business and it was the regular practice of that business to make it, unless the sources of information or the method, purpose or circumstances of preparation indicate that it is not trustworthy.
"The purpose of the business records exception is to 'broaden the area of
admissibility of relevant evidence where there is necessity and sufficient
guarantee of trustworthiness.'" Liptak v. Rite Aid, Inc., 289 N.J. Super. 199,
219 (App. Div. 1996) (quoting State v. Hudes, 128 N.J. Super. 589, 599 (Law
Div. 1974)).
We add that in this instance, the pre-accident medical treatment records at
issue were received directly from plaintiff's medical providers. The
rheumatologist's report was accompanied by a "Certification of Medical
Records" that indicated that the records were "true copies of the original medical
records of Peter W. Slomkowski kept in the regular course of business."
Plaintiff did not object to the authentication or validity of these reports. Those
reports contained subjective statements of pain made by plaintiff. As such, those
portions of the documents were admissible hearsay under N.J.R.E. 803 (c)(4).
A-5317-17T4 14 The report made by the rheumatologist contained not only plaintiff's
complaints of pain admissible under N.J.R.E. 803(c)(4) but also information
regarding treatment procedures that were performed on plaintiff prior to the
motor vehicle accident, that is, the trigger point injections. The rheumatologist's
report is a writing created in the course of regularly conducted business and it
was regular practice for the physician to make it. It was accompanied by a
certification that indicated the records were true copies of the original document.
As a result, the information concerning the trigger point injections elicited
during plaintiff's cross-examination was admissible under N.J.R.E. 803(c)(6).
B.
Defense counsel also sought to elicit the same information from the pre -
accident reports during the cross-examination of plaintiffs' expert, Dr. Nguyen.
Unlike Mr. Slomkowski, Dr. Nguyen was able to read the handwritten notations
in the medical records. We hold that the trial court did not abuse its discretion
in permitting the use of the medical records during the cross-examination of Dr.
Nguyen.
N.J.R.E. 703 permits hearsay statements such as a medical report by a
non-testifying expert to be referred to by a testifying expert. N.J.R.E. 703 states:
The facts or data in the particular case upon which an expert bases an opinion or inference may be those
A-5317-17T4 15 perceived by or made known to the expert at or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence.
Under N.J.R.E. 703, the hearsay fact or data would be permitted only for
the limited purpose of understanding the basis of the testifying expert's opinions,
not for the truth of the matter asserted. See Agha v. Feiner, 198 N.J. 50, 63
(2009). In this instance, no limiting instruction was given. It thus appears that
the facts elicited from the medical records were offered for the truth of the matter
asserted, that is, that plaintiff prior to the March 2012 accident complained of
pain in the shoulder area and had trigger point injections. However, for the same
reasons set forth in the preceding subsection of this opinion with respect to the
cross-examination of Mr. Slomkowski, the information gleaned from the
medical reports during the cross-examination of Dr. Nguyen was admissible
under N.J.R.E. 803(c)(4) and N.J.R.E. 803(c)(6).
Importantly, this is not a situation such as in James v. Ruiz, where a party
was attempting to introduce through the "back door" the opinion of a non -
testifying expert regarding a complex medical diagnosis. 440 N.J. Super. 45, 72
(App. Div. 2015). Rather, as noted above, the facts elicited from the pre-
accident medical records focused on plaintiff's subjective complaints of pain and
A-5317-17T4 16 the fact that plaintiff received trigger point injections on certain points of his
body on certain dates. In these circumstances, the trial court did not abuse its
discretion in permitting the use of plaintiff's prior medical records during the
cross-examination of either plaintiff or Dr. Nguyen.
IV.
For the foregoing reasons, plaintiffs have not presented sufficient legal
justification to set aside the jury verdict.
Affirmed.
A-5317-17T4 17