                        NOT FOR PUBLICATION WITHOUT THE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-2158-15T4

THOMAS CHETNEY,

        Plaintiff-Respondent,

v.

NEW JERSEY MANUFACTURERS
RE-INSURANCE COMPANY,

     Defendant-Appellant.
____________________________

              Argued November 13, 2017 – Decided July 17, 2018

              Before Judges Sabatino, Ostrer and Whipple.

              On appeal from Superior Court of New Jersey,
              Law Division, Middlesex County, Docket No. L-
              7829-13.

              Kevin F. Sheehy argued the cause for appellant
              (Leyden, Capotorto, Ritacco & Corrigan,
              attorneys; Paul J. Capotorto, of counsel;
              Kevin F. Sheehy, on the briefs).

              Michael J. Deem argued the cause for
              respondent (R.C. Shea & Associates, attorneys;
              Michael J. Deem, of counsel and on the brief).

PER CURIAM

        After a damages-only trial, a jury found that plaintiff Thomas

Chetney suffered a permanent injury as a result of a collision
caused    by   an   uninsured    driver,   and    awarded   $1.5   million    in

compensatory damages.           The court molded the award, to reflect

defendant's $500,000 policy limit, and a workers' compensation

lien.     The court thereafter denied a motion for a new trial.

     Chetney's uninsured motorist carrier, defendant New Jersey

Manufacturers       Re-Insurance    Company      (NJMRe),   appeals,   raising

numerous points of evidentiary error.             We reject all but one.      We

agree with NJMRe that the trial court erred in permitting plaintiff

and his wife to testify that he suffered from erectile dysfunction

after the accident, without plaintiff offering an expert opinion

that the injuries from the accident caused that condition.                    On

that sole basis, we reverse and remand for a new trial.

     Chetney was working as a paramedic on February 5, 1998 when

his ambulance was struck by a vehicle operated by an uninsured

driver.     Chetney claimed the accident caused a permanent injury

to his lumbosacral spine.        Although Chetney suffered injuries from

three prior motor vehicle accidents, one prior slip and fall, and

four subsequent non-motor vehicle accidents, he alleged that the

1998 accident was the principal cause of his permanent injury.                He

said he suffered from chronic pain despite spinal fusion surgery

in 2004, physical therapy, and numerous steroid injections.                   At

the time of trial in 2015, he controlled his pain – but did not



                                       2                               A-2158-15T4
eliminate it – with prescription morphine and an implanted device

designed to redirect nerve signals.1

     He and his wife testified that the injury from the 1998

accident caused him to limit various recreational and family-

related activities; and negatively affected his quality of life.

Despite his prior accidents, Chetney and his wife portrayed him

as an active, physically fit young man who participated in sports

and hunting; tumbled with his two toddlers; maintained his lawn

and yard; performed tree and snow work for himself and neighbors;

worked   long    hours;   and   built    furniture      as   a   hobby.      Those

activities      were   eliminated   or       severely   restricted   after      the

accident.

     In particular, Chetney and his wife testified that he suffered

from erectile dysfunction after the 1998 collision.                       His wife

testified that she was pregnant at the time of Chetney's accident,

but had a miscarriage shortly thereafter. As a result of Chetney's

erectile dysfunction, they were unable to conceive a third child

or engage in intimacy.      She also testified that he once threatened




1
  In 2000, plaintiff timely filed his complaint, which included a
per quod claim of his wife.     After voluntarily dismissing the
complaint, he refiled the complaint, absent the per quod claim,
in 2013, pursuant to an agreement with defendant. We surmise that
in the interim, plaintiff pursued a workers' compensation claim.

                                         3                                 A-2158-15T4
to kill himself if his unremitting pain did not abate.                    She told

him to seek help.

       As noted, the most salient point on appeal pertains to the

testimony about erectile dysfunction.               NJMRe filed a pre-trial

motion to bar any testimony about the condition, contending that

(1) plaintiff did not adequately disclose it in discovery; and (2)

expert testimony was required to establish that plaintiff suffered

from the condition, and that the 1998 collision caused it.                         In

particular,       NJMRe   sought    to    redact   portions    of    plaintiff's

orthopedic expert's de bene esse deposition, in which he explained

how    nerve    impingement    in   the   lumbosacral    spine      could    affect

plaintiff's urologic function.

       The     trial   court   granted    the   motion   as   to    the   expert's

testimony, concluding he lacked the expertise to address urologic

conditions, but denied it as to the testimony of plaintiff and his

wife.2   The court reasoned that expert testimony was not necessary

to    establish    what   Chetney   experienced     himself.        Furthermore,

Chetney was free to testify about how the accident affected his

life.    NJMRe renews its arguments before us.

       We consider first the alleged discovery violation.                 We review

the trial court's discovery ruling for an abuse of discretion and


2
  Chetney does not cross-appeal from the order restricting his
expert's testimony.

                                          4                                 A-2158-15T4
shall not disturb the trial court's decision absent a proven

injustice.    Bender v. Adelson, 187 N.J. 411, 428 (2006) (reviewing

for an abuse of discretion a "trial court's decision to bar

defendants' requested amendments to their interrogatory answers

[to add experts] and deny a further discovery extension"); Abtrax

Pharms., Inc. v. Elkins-Sinn, Inc., 139 N.J. 499, 517 (1995)

(stating appellate courts shall review the dismissal of a complaint

with   prejudice     "for   discovery     misconduct"     under    an   abuse    of

discretion standard and shall not interfere "unless an injustice

appears to have been done").            In particular, courts should "seek

to avoid exclusion" of testimony that is "'pivotal'" to the case

of the party offering the evidence.            Wymbs v. Twp. of Wayne, 163

N.J. 523, 544 (2000) (citation omitted).                  Even if there is a

discovery    violation,      in   deciding      whether     to    "suspend      the

imposition of sanctions," a court should consider whether there

was a design to mislead, surprise if the evidence is admitted, and

prejudice from admission of the evidence.               Ibid.

       We discern no abuse of discretion here.              First, we are not

convinced there was a discovery violation.               Although the medical

reports     before     us   did   not     expressly      refer    to    "erectile

dysfunction,"        they   repeatedly       referred     to     urological      or

genitourinary problems that Chetney experienced post-accident.

One report noted that "he has a problem with marital relations."

                                         5                                A-2158-15T4
Asked to describe the "nature, extent and duration" of his injuries

in   interrogatories,    Chetney       did   not   mention   "erectile

dysfunction," but referred to his medical records, his underlying

spinal injury, and stated his injuries "affect all facets of [his]

life including, but not limited to . . . domestic activities both

interior and exterior . . . ."     There is no indication defendant

sought more specific answers.    At plaintiff's deposition, defense

counsel asked him if there was anything he could not do that he

was able to do before the 1998 accident.      Plaintiff explained that

he used to be "a lot more intimate with [his] wife."          Defense

counsel did not follow up.

     In any event, there is no showing that plaintiff had the

design to mislead. Furthermore, given the references to urological

and marital issues, the claim of surprise is unpersuasive.          The

relevant prejudice is not the impact of the evidence itself, but

the complaining party's inability to contest it because of alleged

late disclosure.    See State v. Heisler, 422 N.J. Super. 399, 415

(App. Div. 2011).   Notably, NJMRe fails to establish what measures

it would have undertaken to contest Chetney's and his wife's

factual testimony about their private, intimate relations had

Chetney explicitly disclosed the condition earlier.

     We also discern no harmful error in the court's determination

that Chetney and his wife could testify as to his condition. While

                                   6                           A-2158-15T4
the rule authorizing expert testimony is permissive, see N.J.R.E.

702 (stating that a "witness qualified as an expert . . . may

testify") (emphasis added), an expert's testimony is required when

an average juror lacks the experience and knowledge to form a

conclusion about a matter.      Biunno, Weissbard & Zegas, Current

N.J. Rules of Evidence, cmt. 1 to N.J.R.E. 702 at 731 (2018); see,

e.g., Butler v. Acme Markets, Inc., 89 N.J. 270, 273 (1982)

(requiring expert testimony if the issue is "so esoteric that

jurors of common judgment and experience cannot form a valid

judgment . . . .").

     We    agree   that   the   specific   diagnosis   of   "erectile

dysfunction" is outside the expertise of a lay witness, and should

be presented through a treating physician, see Delvecchio v. Twp.

of Bridgewater, 224 N.J. 559, 577-78 (2016) or an expert, see

Devlin v. Johns-Manville Corp., 202 N.J. Super. 556, 564 (Law Div.

1985).3   However, in general, Chetney and his wife avoided medical

nomenclature and instead described in lay terms what he experienced

and what she observed.    See J.W. v. L.R., 325 N.J. Super. 543, 548


3
  "Erectile dysfunction" is defined as "inability to achieve or
maintain penile tumescence sufficient for sexual intromission or
for achieving orgasm." Stedman's Medical Dictionary, 596 (28th
ed. 2006); see also Ida G. Dox et al., Attorney's Illustrated
Medical Dictionary, D52 (1997) (stating that erectile dysfunction
"is considered part of the overall multifaceted process of male
sexual function").


                                  7                           A-2158-15T4
(App. Div. 1999) (stating that expert testimony is not required

to present subjective symptoms).      They both clearly had personal

knowledge of these facts.    See N.J.R.E. 601.   Plaintiff's counsel

used the medical term "erectile dysfunction" in questioning and

in summation.   But, it is likely the jury simply understood the

term to summarize the condition that the witnesses described.       In

any event, we discern no harmful error as to this aspect of their

testimony.   R. 2:10-2.

     However, we part company with the trial court's determination

that expert testimony was not required to establish causation.

"If plaintiff seeks to prove causation of a current medical or

psychological condition, of course, competent expert testimony

would be required."       J.W., 325 N.J. Super. at 548; see also

Allendorf v. Kaiserman Enters., 266 N.J. Super. 662, 672 (App.

Div. 1993) (stating that the "logical relationship" underlying a

claim of medical causation "generally must be established by

appropriate expert medical opinion"); Kelly v. Borwegen, 95 N.J.

Super. 240, 243-44 (App. Div. 1967); see also Quail v. Shop-Rite

Supermarkets, Inc., ___ N.J. Super. ___, ___ (App. Div. 2018)

(slip op. at 8, 14) (affirming grant of summary judgment where

trial court ruled that plaintiff would be unable to show proximate

cause of death without expert testimony, for which the certificate

of death was not a substitute).

                                  8                          A-2158-15T4
     This case is no different.     Chetney's symptoms could have had

psychological    or   physical   causes    unrelated   to    his   injury.4

Although, as the trial court noted, Chetney did not need an expert

to describe his symptoms, he needed an expert to identify their

medical cause.    Chetney and his wife testified he experienced no

difficulty before the 1998 collision, but coincidence is not

causation.

     Furthermore, the evidence did not clearly establish when the

condition first appeared.        Chetney testified at trial that he

experienced   difficulty   in    marital   relations   for   thirteen     to

fifteen years, which would place the onset of symptoms two to four

years after the accident.        In his deposition, he said, without

pinpointing a date, that he had less intimacy with his wife after

the accident.    His wife testified that difficulties arose within

months of the accident, and progressively worsened, as a result

of which marital relations had ceased for fifteen years.5


4
  See Attorney's Illustrated Medical Dictionary, D52 (1997)
(stating that "causes [of erectile dysfunction] may be organic
(from the nervous or vascular systems) or psychological, but they
most commonly appear to derive from the problems in all three
areas acting in concert . . . .").
5
  Chetney's orthopedic expert provided relevant information about
the connection between his neurologic injury and his ability to
control his urologic functioning.     However, his testimony was
excluded.   Plaintiff contends on appeal some of the expert's
opinion was presented to the jury notwithstanding the court's


                                    9                              A-2158-15T4
     We cannot conclude that this error was harmless.                 We do not

minimize the substantial other evidence in support of Chetney's

claim.      Even   from   the   cold   record,    we   discern     that   Chetney

presented    as    a   sympathetic     witness.    He    was   a   former     Army

paramedic.    At the end of his military service, he continued to

serve the public as a paramedic, often facing hazardous situations.

His expert testified persuasively that the 1998 collision was the

cause of Chetney's spinal injury, which in turn led to a life of

pain, and restricted activities, as Chetney and his wife detailed.

It is apparent from the record that plaintiff's counsel effectively

challenged the defense expert on cross-examination as to his

expertise, the care with which he reviewed Chetney's prior records,

and his conclusion that Chetney suffered no permanent injury as a

result of the 1998 collision.

     Yet, the testimony of Chetney's erectile dysfunction was

emotionally powerful evidence.          His wife testified movingly about

her miscarriage, her inability to have a desired third child, and


ruling. Plaintiff contends that his counsel proposed redactions
after the court ruling which left some of the expert's opinions
intact, and defense counsel did not object.    We note that the
record does not document these redactions, nor does the trial
transcript reflect exactly what was played.   But see R. 1:2-2.
Therefore, we presume that the transcript was redacted in accord
with NJMRe's in limine motion, which would have excluded the
discussion plaintiff now claims was presented to the jury. Any
lingering disputes over such redactions shall be addressed on
remand by the trial court before the retrial.

                                       10                                 A-2158-15T4
the loss of intimacy with her husband.                She described him as a

vigorous    and   physically    fit    young    man    before   the    accident,

notwithstanding      periodic      injuries    and    recoveries.           Chetney

testified that he felt like less of a man, as a result of his

condition.        Plaintiff's   counsel       highlighted   this      aspect       of

Chetney's injuries in both opening and summation.

     In sum, a new trial is warranted at which Chetney would be

obliged    to   present   expert    testimony    to    establish      the    causal

connection between his spinal injury – which his orthopedic expert

connected to the 1998 accident – and his erectile dysfunction.                     We

recognize that, lacking the guidance of this court's present

opinion, no such expert was presented in discovery, except for the

limited opinions of plaintiff's orthopedic expert, which the trial

court excluded.      In advance of a new trial, the court may, in the

exercise of its discretion, reopen discovery as to any changes in

plaintiff's condition.      The court may also revisit the limitations

it imposed on plaintiff's orthopedist and allow plaintiff to amend

prior disclosures to present the required medical expert opinion;

and permit defendant to obtain an independent medical examination,

as well as a responsive opinion.

     We briefly discuss NJMRe's remaining points on appeal, none

of which are persuasive.        NJMRe contends it was reversible error

to permit testimony and argument regarding Chetney's suicidal

                                      11                                    A-2158-15T4
ideation.    The testimony was limited to his wife's reference to a

conversation in which Chetney stated his pain was so intense and

unremitting that he was "going to blow [his] brains out" if he

could not get any relief.        The wife did not contend that Chetney

continued    to   harbor    suicidal    thoughts,     attempted    suicide,      or

otherwise suffered from a related mental illness.               Defense counsel

did not object at the reference to suicidal thoughts in plaintiff's

counsel's opening, or his wife's testimony, nor did NJMRe raise

it in its motion for a new trial.                  Hence, we review NJMRe's

contention for plain error.       R. 2:10-2.

     We perceive none.         We may conclude that defense counsel's

"failure to object signifies that the error belatedly claimed was

actually of no moment."        See State v. Krivacska, 341 N.J. Super.

1, 42-43 (App. Div. 2001). Furthermore, the testimony was relevant

to   establishing     the    extreme        and   unremitting     pain    Chetney

experienced.      Standing alone, it fell short of persuading the jury

that Chetney suffered from mental illness or was actually on the

brink of taking his own life.                At most, NJMRe may have been

entitled to a limiting instruction, but NJMRe did not request one.

     NJMRe    also    contends   that       the   court   erred    in    granting

plaintiff's motion to bar testimony about "gaps in treatment"

shortly after the accident.            Plaintiff's counsel contended that

Chetney was receiving medical care through workers' compensation

                                       12                                 A-2158-15T4
at   the   time,   and   exploration    of   "gaps   in   treatment"     would

necessarily require evidence about how the workers' compensation

system limited Chetney's autonomy in seeking treatment.

      As the trial court recognized, in denying NJMRe's new trial

motion on this point, gaps in treatment could be relevant to

Chetney's credibility, and whether he suffered the injury claimed,

and the consequences of it.      But, citing N.J.R.E. 403, the court

concluded that the probative value of "gaps in treatment" evidence

was outweighed by the risk that it would trigger "the introduction

of an entire slew of worker's compensation issues when both parties

had stipulated they would be barred from trial."                 The court

concluded, "This would pose a huge risk of confusion of the issues

and would certainly increase trial time by an extensive margin."

      We recognize that Chetney has provided no evidence that

treatment delays were caused by the workers' compensation process.6

However, "[d]eterminations pursuant to N.J.R.E. 403 should not be

overturned on appeal 'unless it can be shown that the trial court


6
  NJMRe has provided competent evidence that Chetney sought
treatment with Dr. Patrick Foye the day of collision, February 5,
1998. Chetney attended a follow-up appointment four days later,
but did not attend another appointment until June 1, 1998. Dr.
Foye scheduled Chetney for an EMG within the next week. Chetney
missed the appointment, did not return Dr. Foye's calls, and
attended a re-evaluation on March 3, 2000.       Chetney did not
demonstrate that his workers' compensation carrier denied
treatment during that time period, or that he made any effort to
contest such denial. See N.J.A.C. 12:235-3.2.

                                   13                                  A-2158-15T4
palpably abused its discretion, that is, that its finding was so

wide off the mark that a manifest denial of justice resulted.'"

Green v. N.J. Mfrs. Ins. Co., 160 N.J. 480, 492 (1999) (citing

State v. Carter, 91 N.J. 86, 106 (1982)).        NJMRe has not met that

high threshold to disturb the trial court's broad discretion in

applying N.J.R.E. 403.

     Finally, there was no miscarriage of justice in plaintiff's

counsel's   argument   in   summation   that   the   defense   expert   was

unethical. The court sustained the defense objection and delivered

a curative instruction.     Notably, the curative instruction was the

one that defense counsel proposed, upon the court's invitation,

without amendment.      We presume the jury followed the court's

instruction.   See, e.g., State v. Loftin, 146 N.J. 295, 390 (1996)

("That the jury will follow the instructions given is presumed.").

     NJMRe's remaining points lack sufficient merit to warrant

extended discussion.    See R. 2:11-3(e)(1)(E).

     Reversed and remanded.     We do not retain jurisdiction.




                                  14                               A-2158-15T4
