NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-1781-24
TAYLOR M. CUNHA,
Plaintiff-Appellant,
v.
DENA M. TROISI and JOHN TROISI,
Defendants-Respondents,
and
ALLSTATE NEW JERSEY PROPERTY & CASUALTY INSURANCE COMPANY,
Defendant. ___________________________
Submitted March 10, 2026 – Decided July 9, 2026
Before Judges Sumners and Susswein.
On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Docket No. L-2995-21.
Karim Arzadi, attorneys for appellant (Ernest Blair, on the briefs). John C. Prindiville PA, attorney for respondent (John C. Prindiville, on the brief).
PER CURIAM
In a damages-only trial arising from an auto accident, the jury returned a
no-cause verdict. The jury determined that plaintiff Taylor M. Cunha was not
entitled to pain and suffering damages because she failed to prove a permanent
injury resulting from the accident. The jury was unable to consider plaintiff's
claim for unreimbursed medical expenses because the trial court granted
defendant Dena M. Troisi's motion in limine to exclude the testimony of
plaintiff's surgeon regarding her unreimbursed medical bills.
Plaintiff appeals the trial court's granting of defendant's motion in limine
and overruling of plaintiff's objection to defendant's summation remarks, which
she contended were unduly harsh and disparaging. We affirm.
I.
In 2021, plaintiff sued defendant 1 for pain and suffering and medical bills
arising from a 2019 car accident in which defendant's vehicle collided with
1 Plaintiff also sued John Troisi, the vehicle's owner, and Allstate New Jersey Property and Casualty Insurance Company. However, the trial court granted Troisi's unopposed motion for summary judgment, and the claims against Allstate were dismissed with prejudice under stipulation.
A-1781-24 2 plaintiff's vehicle. Plaintiff underwent medical treatment for lower back pain
which she attributed to the accident. She received "physical therapy,
chiropractic intervention, [and] medical management." She received three
steroid injections, followed by a posterior lumbar foraminotomy with
discectomy. In March 2024, Dr. Edward H. Scheid, Jr. performed a
transforaminal lumbar interbody fusion on plaintiff to resolve her continuing
pain.
In anticipation of a January 2025 trial, Dr. Scheid prepared a May 6, 2024
narrative report opining that plaintiff's back injury and the subsequent medical
treatment was caused by the accident with defendant. He amended his report on
September 13, 2024, after reviewing defendant's independent medical
examination report disclosing that plaintiff's 2015 MRI exam revealed a disk
protrusion in her lower back, and plaintiff's history of chiropractic treatment
dating from 2014 through 2019. Dr. Scheid's new opinion attributed "30% of
. . . [plaintiff's] lumbar symptomatology pathology to pre-existing conditions
with 70% attributed to the subject motor vehicle accident dated [December 18,
2019]." He had previously opined that plaintiff's back ailment was entirely
caused by the accident.
A-1781-24 3 A week prior to the trial, defendant moved in limine to bar plaintiff "from
introducing evidence of medical expenses incurred following plaintiff's
exhaustion of her $15,000 [personal injury protection (PIP)] coverage."
Defendant argued that her $904,000 medical bills were inadmissible because
they did not comply with the PIP fee schedule as required by N.J.S.A. 39:6A-
12.
In deciding the motion during the trial, the court stated that, about four
months earlier, a different trial court advised plaintiff––then represented by
different counsel––that if she was going to have the $904,000 medical bills
introduced into evidence, she needed "to address the [PIP] fee schedule." The
court also noted that plaintiff never responded to defendant's letter to plaintiff
asking for that information. The court limited plaintiff's claim to Dr. Scheid's
bill of $459,599 because there was no "testimony regarding the [remaining] . . .
outstanding bills."
The trial court first cited Jignyasa Desai, D.O., LLC v. N.J. Mfrs. Ins. Co.,
for the proposition that "the amount that the insurer pays for the [medical]
service is determined by whether the service is similar to one already on the
[PIP] fee schedule as required by N.J.A.C. 11:3-29.4(e)." 473 N.J. Super. 582,
585 (App. Div. 2022). The court ruled that Dr. Scheid's fees could be reduced
A-1781-24 4 by the PIP fee schedule as it contained services that were similar to those he
provided plaintiff thereby rejecting plaintiff's contention that she had no such
obligation to comply with the fee schedule. The court held that Dr. Scheid's
billing testimony should be excluded, in part, because "nothing in any of [his]
reports . . . addresses his medical bills." It relied on Congiusti v. Ingersoll-Rand
Co, Inc., where this court held that "a trial judge may in his or her discretion
preclude expert testimony on a subject not covered in the written reports." 306
N.J. Super. 126, 131 (App. Div. 1997).
The court, however, did not explicitly bar plaintiff's entire claim for
unreimbursed medical expenses. The court stated the verdict sheet would
require the jury to decide if Dr. Scheid's surgery was related to injuries sustained
in the auto accident, but it would not decide if his unreimbursed bills would be
paid. The court reasoned that, if the jury decided the surgery was not related,
its exclusion of Dr. Scheid's billing testimony would not be an appealable issue.
Yet, for reasons that are not clear in the record, the court did not follow
through on its remarks by instructing the jury to decide if the doctor's services
were attributable to the accident. The court's jury instructions, which were not
objected to, made no reference to reimbursement for medical expenses. The
verdict sheet only asked the jury: "Has plaintiff . . . proven by a preponderance
A-1781-24 5 of the objective credible medical evidence that she sustained a permanent injury
that was proximately caused by the motor vehicle accident of 12/18/19?" If the
jury decided "no," its duty was finished. If the jury decided "yes," it would then
decide the "amount of money [that] would fairly and reasonably compensate
. . . plaintiff . . . for her pain and suffering, disability, impairment, and loss of
enjoyment of life proximately caused by the motor vehicle accident of
12/18/19?"
During closing arguments, plaintiff objected to defense counsel's remarks
that:
It was painful to sit there and read this deposition transcript and for plaintiff to have to admit that she lied on seven different occasions about her prior medical history.
And you have to ask yourself what's the purpose of that?
....
There's only one purpose for that. We call it secondary gain here . . . but she wanted to make her case look better. . . . What she did was try to hide from us . . . .
Plaintiff contended the statements were "way beyond [the] evidence" and
to "say she's doing it for monetary damage[s] is not appropriate here."
Defendant disagreed. The court overruled the objection, reasoning that
A-1781-24 6 plaintiff's deposition testimony "was untrue," which allowed defendant "to draw
that inference and ask the jury" to do the same.
The jury decided that plaintiff did not sustain a permanent injury that was
proximately caused by the accident with defendant. Consequently, it did not
have to determine if she was entitled to any non-economic damages.
This appeal followed.
II.
To determine the issues raised in this appeal, we first discuss the relevant
provisions of the No-Fault Act (Act), N.J.S.A. 39:6A-1 to -35, and its 2019
amendments.
In 1972, the Act, N.J.S.A. 39:6A-1 to -35, was enacted to ensure "prompt
reparation to accident victims," contain costs for automobile insurance, make
insurance more available, and to ease the judicial caseload. In re Adoption of
N.J.A.C. 11:3-29, 410 N.J. Super. 6, 14 (App. Div. 2009). "To meet the
objectives, N.J.S.A. 39:6A-4 mandated that every standard automobile liability
insurance policy contain PIP benefits for the payment of medical benefits,
without regard to negligence, liability or fault to the named insured . . . who
sustained bodily injury as the result of" a collision. Ibid.
A-1781-24 7 Under the Act, economic loss from an automobile accident is the
"uncompensated loss of income or property . . . including, but not limited to,
medical expenses," N.J.S.A. 39:6A-2(k), that are recoverable against the
tortfeasor, N.J.S.A. 39:6A-12. After our Supreme Court in Haines v Taft
interpreted the Act to not allow an injured party to recover medical costs in
excess of their PIP limits, 237 N.J. 271, 292 (2019), our Legislature amended
the Act. L. 2019, c. 244 § 2 (Chapter 244). The amendment was meant to
"ensure that low-income drivers who must settle for lesser PIP coverage options
. . . will not be denied the ability to recover their unreimbursed medical expenses
from those who caused their injuries." Governor's Signing Statement to S. 2432
& S. 3963 (Aug. 15, 2019). Consequently, N.J.S.A. 39:6A-12 was amended
with the addition of the following underlined language:
Nothing in this section shall be construed to limit the right of recovery, against the tortfeasor, of uncompensated economic loss as defined by . . . [N.J.S.A. 39:6A-2(k)], including all uncompensated medical expenses not covered by the personal injury protection limits applicable to the injured party and sustained by the injured party. All medical expenses that exceed, or are unpaid or uncovered by any injured party's medical expense benefits personal injury protection limits, regardless of any health insurance coverage, are claimable by any injured party as against all liable parties, including any self-funded health care plans that assert valid liens.
A-1781-24 8 A month later, the Legislature further amended N.J.S.A 39:6A-12 to read:
Nothing in this section shall be construed to limit the right of recovery, against the tortfeasor, of uncompensated economic loss as defined by . . . [N.J.S.A. 39:6A-2(k)], including all unreimbursed medical expenses not covered by the [PIP] limits applicable to the injured party and sustained by the injured party, including the value of any deductibles and copayments incurred through a driver's secondary insurance coverage and medical liens asserted by a health insurance company related to the treatment of injuries sustained in the accident. Medical expenses shall be subject to the current automobile medical fee schedules established pursuant to section 10 of []L. 1988, c. 119 (C.39:6A-4.6). In any case in which the recovery is for medical expenses only, a prevailing claimant shall be entitled to reasonable and necessary attorneys' fees incurred by the prevailing claimant in the collection of such medical expenses.
[L. 2019, c. 245 (Chapter 245).]
Additionally, Chapter 245 amended N.J.S.A. 39:6A-4.6, by adding the
following underlined language:
a. The Commissioner of Banking and Insurance shall . . . promulgate medical fee schedules on a regional basis for the reimbursement of health care providers providing services or equipment for medical expense benefits for which payment is to be made by an automobile insurer under [PIP] coverage . . . by an insurer under medical expense benefits coverage pursuant to . . . [N.J.S.A. 39:6A-12], or for payment of unreimbursed medical expenses that are admissible as uncompensated economic loss pursuant to . . . [N.J.S.A. 39:6A-12].
A-1781-24 9 ....
c. No health care provider may demand or request any payment from any person in excess of those permitted by the medical fee schedules established pursuant to this section, nor shall any person be liable to any health care provider for any amount of money which results from the charging of fees in excess of those permitted by the medical fee schedules established pursuant to this section. This section shall apply to unreimbursed medical expenses that are subject to the medical fee schedules and admissible as uncompensated economic loss pursuant to . . . [N.J.S.A. 39:6A-12].
III.
With these governing statutes in mind, we first determine whether it was
the trial court's responsibility to decide if defendant was obligated to pay Dr.
Scheid's fees. Plaintiff, citing Cuevas v. Wentworth Grp., 226 N.J. 480, 499
(2016), contends the trial court erred in not giving the jury the opportunity to
discharge its constitutional duty to decide the merits of plaintiff's claim for
damages.
We disagree with plaintiff, finding guidance from our opinion almost fifty
years ago in Fitzgerald v. Wright, 155 N.J. Super. 494 (App. Div. 1978). There,
we determined the "propriety" of a trial court's involuntary dismissal of a
plaintiff's claim where no evidence was presented satisfying the statutory
monetary minimum of medical expenses needed to recover under the Act. Id. at
A-1781-24 10 496. We held that "[w]here a fact dispute must be determined as an element of
that decisional process it is more appropriate, efficient and less confusing for
the judge to decide that dispute as well." Id. at 504. Citing Lopez v. Swyer, 62
N.J. 267, 274 (1973), we reasoned "that factual and legal issues relating to the
application of the discovery rule to the defense of the statute of limitations 'can
be better done by a judge than by a jury'".
In a case where the plaintiff seeks to comply with the PIP fee schedule
requirement or attempts to prove that a provider's fees are usual and customary,
they may have to introduce evidence showing the amounts paid by an insurer.
However, N.J.S.A. 39:6A-12, bars the introduction of "evidence of amounts
collectible or paid as [PIP] benefits." Id. at 501. Thus, evidence of what a health
provider has already received from an insurance company to cover a party's
medical expenses is not admissible. For example, here, if Dr. Scheid had
received payment of some of the $459,559 from defendant's insurance company
but plaintiff was trying to recover the balance, to establish Dr. Scheid's usual
and customary amount, bills showing the total amount charged minus what he
received from the insurance company would be necessary but inadmissible
under N.J.S.A. 39:6A-12. To avoid such evidentiary issues, we hold that
A-1781-24 11 questions involving compliance with the PIP fee schedule requirements must be
resolved by the trial court.
IV.
We next address plaintiff's challenge to the trial court's granting of
defendant's in limine motion barring Dr. Scheid from testifying that she incurred
billing of $459,599 for the surgery he performed. Plaintiff does not appeal the
remaining unpaid bills by other medical providers.
Plaintiff contends a retrial is necessary because in granting the in limine
motion, the trial court "intruded upon the function of the jury to determine the
credibility, weight, and probative value of Dr. Schied's expert[] testimony" by
excluding the billing portion of his testimony because his bills did not conform
with the PIP fee schedule. Plaintiff essentially argues the PIP fee schedule
requirement in N.J.S.A. 39:6A-12 does not require plaintiff to provide a medical
billing expert's report or testimony even if the payment sought is for services that
allegedly do not appear on the PIP fee schedule. And even if Dr. Scheid's billing
is "subject to the PIP fee schedule," she argues, quoting N.J.A.C. 11:3-29.4(e),
the jury must determine "'a reasonable amount considering the fee schedule
amount for similar services or equipment in the region where the service or
equipment was provided.'" Plaintiff emphasizes that defendant has cited no case
A-1781-24 12 law that a plaintiff must provide "expert proof from a 'billing expert' or 'coding
expert' in order to prevail on a claim for unreimbursed medical expenses."
Defendant argues that the trial court correctly granted her motion in limine
to bar evidence of Dr. Schied's bills because N.J.S.A. 39:6A-12 requires the
medical expenses to be subject to the PIP fee schedule "not what Dr. Scheid
believes is reasonable and customary." Stressing that plaintiff failed to present
"billing expertise" to show Dr. Schied's fees were reasonable and necessary
under the PIP fee schedule, defendant asserts the trial court properly declined to
allow the jury to consider Dr. Schied's fees as plaintiff's economic damages.
Defendant further avers that plaintiff's failure to provide medical billing expert
testimony, despite opportunities to do so, was reason enough to support the
court's decision to exclude evidence of plaintiff's medical expenses. Defendant
maintains that because the motion in limine was heard on the third day of trial,
after plaintiff took Dr. Schied's de bene esse deposition the day before, plaintiff
gave defendant "no opportunity to understand the argument . . . made by
plaintiff"—namely, that Dr. Scheid's services and Current Procedural
Terminology (CPT) codes were not found in the fee schedule. Moreover,
defendant asserts that Dr. Sheid's report did not reference his billing or produce
any evidence to show his billing was usual and customary, nor did he or plaintiff
A-1781-24 13 put the defense on notice that his CPT codes were not in the PIP fee schedule
and therefore he would charge what was usual and customary.
We side with defendant's position. The statutory tenor of the Act leads us
to conclude that the trial court properly exercised its discretion in excluding Dr.
Scheid's billing testimony. See Griffin v. City of East Orange, 225 N.J. 400,
413 (2016) (alteration in original) (quoting State v. Brown, 170 N.J. 138, 147,
(2001)) ("When a trial court admits or excludes evidence, its determination is
'entitled to deference absent a showing of an abuse of discretion, i.e., [that] there
has been a clear error of judgment.'"). Claims for unreimbursed medical
expenses "shall be subject to the" PIP fee schedule. N.J.S.A. 39:6A-12.
Likewise, a tortfeasor is not liable for unreimbursed medical expenses "which
results from the charging of fees in excess of those permitted by the medical fee
schedules." N.J.S.A 39:6A-4.6(c). It is common that a health provider's CPT
code is not found in the fee schedule. See Jignyasa Desai, 473 N.J. Super. at
585 (explaining that "CPT codes and the fee schedules may sometimes be out of
synch" because the codes are promulgated by the American Medical Association
while the fee schedules are promulgated by the Commissioner of the Department
of Banking & Insurance (DOBI)).
A-1781-24 14 However, the PIP fee schedule detailing CPT codes does not explicitly
apply to non-insurers, such as the parties in this matter, which involves claims
against a tortfeasor driver for unreimbursed medical expenses. See N.J.S.A.
39:6A-12. Even though the trial court and the parties cite N.J.A.C. 11:3-29.4(e)
for guidance regarding Dr. Scheid's service fees they do not address this
apparent conflict. Nevertheless, we agree with the trial court that Dr. Scheid's
bills should not have been considered by the jury.
The DOBI Commissioner has the responsibility to promulgate medical fee
schedules for "automobile insurer[s]" and motor vehicle insurance, to be applied
to "payment[s] of unreimbursed medical expenses." N.J.S.A. 39:6A-4.6.
Accordingly, N.J.A.C. 11:3-29.4(e) provides "the insurer's limit of liability for
any medical expense benefit for any service or equipment not set forth in or not
covered by the fee schedules shall be a reasonable amount considering the fee
schedule amount for similar services." N.J.A.C. 11:3-29.4(e)(1) further
provides that the
determination of the usual, reasonable and customary fee means that the provider submits to the insurer his or her usual and customary fee by means of explanations of benefits from payors showing the provider's billed and paid fee(s). The insurer determines the reasonableness of the provider's fee by comparison of its experience with that provider and with other providers in the region.
A-1781-24 15 Although DOBI's "[p]urpose and scope" provision of Subchapter 29
(N.J.A.C. 11:3-29.1 to -29.6) does not explicitly state that it applies to payments
of unreimbursed medical expenses, it follows that, since the Legislature
intended the fee schedules to apply to such payments, the related regulations
explaining how to apply the fee schedules should apply.
Based on this statutory and regulatory scheme, we conclude that N.J.S.A.
39:6A-12's requirement that claims for unreimbursed medical expenses in
excess of PIP limits be subject to the medical fee schedule should not foreclose
recovery of fees not listed in the schedule. The procedures in N.J.A.C. 11:3 -
29.4(e) should determine whether a health provider's services are subject to the
fee schedule and how to proceed if they are not.
With this in mind, we now address the parties' respective burdens
regarding claims for unreimbursed medical bills for services that are not on the
PIP fee schedule. Again, we look to Fitzgerald.
In Fitzgerald, this court noted that the Act "does not contain any provision
relating to when, how, or by whom the question of compliance with the
[monetary minimum] threshold requirement should be decided." 155 N.J.
Super. at 501. In recognizing the "troublesome procedural problems relating to
the burden of going forward and the burden of persuasion on the issue of
A-1781-24 16 applicability," id. at 497, we held that "[f]airness and efficiency dictate that
plaintiff should have the burden of proving compliance with that threshold in
order to establish a prima facie case," id. at 499. The plaintiff had the "requisite
information" needed to establish compliance and since the "plaintiff cannot
recover in the absence of evidence of compliance with the threshold
requirement, he should have the burden of proof on this issue." Id. at 499-500.
"If [the] defendant contests the reasonableness or necessity of these expenses, it
should be [the defendant's] burden to come forth with evidence in support of
[this] contention subject to any countervailing evidence by [the] plaintiff." Id.
at 500. The plaintiff, however, still had "to prove by a preponderance of the
evidence that the medical expense and its reasonableness and necessity
conforms with the statutory requirement." Id. at 501.
The reasoning applied in Fitzgerald should apply here as well. Efficiency
supports the burden be placed on plaintiff, as she is in a better position to know
what services resulted in her unreimbursed medical expenses. In the typical PIP
reimbursement context between health care providers and insurers "[t]he burden
of establishing entitlement is on the plaintiff." Langley v. Allstate Ins. Co., 206
N.J. Super. 365, 368 (App. Div. 1985). It follows that the preponderance of the
evidence burden applies at trial for a plaintiff's claims for unreimbursed bills for
A-1781-24 17 services not set forth in the fee schedule. Once a plaintiff makes a prima facie
showing that their claims either comply with the fee schedule requirement or are
not subject to it, and the defendant contests the claims, the burden shifts to the
defendant "to come forth with evidence in support of [their] contention[,] subject
to any countervailing evidence by plaintiff." Fitzgerald, 155 N.J. Super. at 500.
Applying this procedure, we are convinced that the evidence of plaintiff's
unreimbursed medical bills was correctly barred. However, we take a different
route than the trial court in reaching this decision.
In barring Dr. Scheid's billing testimony, the trial court determined that
his reports did not address his billing. This is incorrect. His May 6, 2024 report
explicitly states that "[a]ll billing related to this treatment following this
accident for both physicians and all facilities [was] usual and customary and
related to the accident dated 12/18/2019." Therefore, exclusion of Dr. Scheid's
testimony on this ground was improper. See McCalla v. Harnischfeger Corp.,
215 N.J. Super. 160, 171 (App. Div. 1987) ("[T]he logical predicates for and
conclusions from statements made in the [expert's] report are not foreclosed"
from testimony). It was, however, proper to bar his billing testimony because
plaintiff failed to make a prima facie showing that his service fees complied with
the fee schedule requirement under N.J.S.A. 39:6A-12. Given that plaintiff
A-1781-24 18 failed to establish the PIP fee schedule requirement, it is not necessary to address
her assertion that the court erroneously decided that Dr. Scheid's CPT codes
were similar to others listed on the fee schedule and should be reduced to match
the schedule.
Dr. Scheid's billing testimony was also excludable because there was no
explanation of benefits demonstrating other payors had paid his alleged usual,
customary and reasonable (UCR) fee, nor was there any testimony indicating
whether any of Dr. Scheid's CPT codes were similar to a listed code or whether
an updated CPT code should be cross-referenced to the old code—a process
known as cross walking. See Jignyasa Desai, 473 N.J. Super. at 586. We are
convinced the doctor's invoice statement falls short of what is required to
establish by a preponderance of the evidence that his fee was his UCR fee and
not subject to the fee schedule. The trial court was thus correct to exclude
evidence of Dr. Scheid's unreimbursed medical expenses.
Given our holding that the trial court correctly excluded Dr. Scheid's
billing testimony, there is no merit to plaintiff's contention that reversible error
occurred when the court failed to instruct the jury on her economic damages
claim and direct it to decide if she was entitled to those damages. Plaintiff did
A-1781-24 19 not object to the court's omission. Plaintiff's economic damages—the
unreimbursed medical bills—did not require a jury finding that the bills were
related to a permanent injury sustained by plaintiff from the accident. See
Miskelly v. Lorence, 380 N.J. Super. 574, 578 (App. Div. 2005) (quoting Martin
v. Chhabra, 374 N.J. Super. 387, 394-95 (App. Div. 2005) (alteration in original)
("[P]ersons who fail to surmount the verbal threshold are precluded from
recovering only noneconomic losses.")).
Plaintiff's only claim for economic damages was for Dr. Scheid's surgery
bills. There is no indication in the record that plaintiff attempted to introduce
any other evidence to support her claim for economic damages other than Dr.
Scheid's billing testimony. The lack of evidence demonstrating the amount of
plaintiff's medical expenses to the jury means that any award would have been
speculative and impermissible. See Kelly v. Berlin, 300 N.J. Super. 256, 268
(App. Div. 1997) (quoting Lane v. Oil Delivery, Inc., 216 N.J. Super. 413, 420
(App. Div. 1987)) ("[A] plaintiff must 'prove damages with such certainty as the
nature of the case may permit, laying a foundation which will enable the trier of
the facts to make a fair and reasonable estimate.'"). Accordingly, even though
the court erred by failing to instruct the jury on economic damages, or include
further questions on the jury verdict sheet, it was not plain error because it "'was
A-1781-24 20 unlikely to prejudice the [plaintiff's] case.'" State v. Montalvo, 229 N.J. 300,
320 (2017) (quoting State v. Singleton, 211 N.J. 157, 182 (2012)).
VI.
Finally, we address plaintiff's contention that the trial court erred in
overruling her objection to defendant's improper and prejudicial summation
remarks. Plaintiff points to defendant's allegations that she lied on "seven
different occasions about her prior medical history" to refute her claims. Citing
Rodd v. Raritan Radiologic Assocs., PA, 373 N.J. Super. 154, 171 (App. Div.
2004), she argues these remarks are beyond the "broad latitude" afforded to
summations because a party may not "use disparaging language to discredit the
opposing party."
A party is given broad latitude in summation but must "'not misstate the
evidence nor distort the factual picture.'" Geler v. Akawie, 358 N.J. Super. 437,
467 (App. Div. 2003) (quoting Diakamopoulos v. Monmouth Med.
Ctr., 312 N.J. Super. 20, 32 (App. Div. 1998)). Arguments are permitted based
on the evidence, and "any conclusion which the jury is free to reach." Colucci
v. Oppenheim, 326 N.J. Super. 166, 177 (App. Div. 1999). Thus, a summation
"may draw conclusions even if the inferences . . . are improbable, perhaps
illogical, erroneous, or even absurd, unless they are couched in language
A-1781-24 21 transcending the bounds of legitimate argument, or there are no grounds for them
in the evidence." Ibid.
A reviewing court evaluates challenged remarks not in isolation but in the
context of summation as a whole. State v. Atwater, 400 N.J. Super. 319, 335
(App. Div. 2008) (citing State v. Carter, 91 N.J. 86, 105 (1982)). The challenged
remarks are to be "viewed in the context of the entire record." State v. Bey, 129
N.J. 557, 622 (1992). Furthermore, summation remarks do not warrant a new
trial unless they "are so prejudicial that 'it clearly and convincingly appears that
there was a miscarriage of justice under the law.'" Bender v. Adelson, 187 N.J.
411, 431 (2006) (quoting R. 4:49-1(a)).
Having considered plaintiff's and defendant's contentions in light of these
principles, we conclude that her arguments are without sufficient merit to
warrant extensive discussion in a written opinion. R. 2:11-3(e)(1)(E). Simply
put, defendant's summation remarks do not rise to the level of being unduly
harsh or disparaging. Defendant was merely asking the jury to make an
inference based on undisputed inconsistencies in plaintiff's testimony regarding
plaintiff's motive to misrepresent her prior medical history.
A-1781-24 22 To the extent we have not addressed any of plaintiff's contentions, it is
because they lack sufficient merit to be discussed in a written opinion. R. 2:11-
3(e)(1)(E).
Affirmed.
A-1781-24 23