                                NOT FOR PUBLICATION WITHOUT THE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-1177-17T2

LORETA ORBEA,

          Plaintiff-Appellant,

v.

ROGER B. BUTLER, and
PERFORMANCE LOGISTICS,
LLC,

     Defendants-Respondents.
_______________________________

                    Submitted October 22, 2018 – Decided April 1, 2019

                    Before Judges Sabatino and Mitterhoff.

                    On appeal from Superior Court of New Jersey, Law
                    Division, Hudson County, Docket No. L-1398-14.

                    Hegge & Confusione, LLC attorneys for appellant
                    (Michael J. Confusione, of counsel and on the brief).

                    Thompkins, McGuire, Wachenfeld & Barry, LLP,
                    attorneys for respondents (Joseph K. Cobuzio, of
                    counsel and on the brief; Kimberly D. McDougal, on
                    the brief).

PER CURIAM
      This matter arises from a jury verdict after the trial of plaintiff Loreta

Orbea's personal injury lawsuit in which she sought damages for injuries she

sustained in an August 28, 2013 motor vehicle accident. Although the jury

found in her favor, plaintiff contends that the jury's award of $27,500 was

inadequate to compensate her for her injuries and resulting pain and suffering.

In that regard, plaintiff asserts that the pretrial judge erred in denying an

extension of discovery and concluding that her significant ongoing treatment did

not constitute exceptional circumstances as defined by Vitti v. Brown, 359 N.J.

Super. 40 (Law Div. 2003). Relatedly, plaintiff asserts that the trial judge erred

in excluding all evidence of treatment for back injuries after the 2013 accident,

including evidence that she had recently undergone a two-level lumbar fusion.

      We find that the effect of these two rulings deprived the jury of an

opportunity to assess the full extent of plaintiff's alleged injuries and render its

own determination as to the etiology of plaintiff's complaints and her need for

surgery. Because the evidence was essential to a full and fair presentation of

plaintiff's case, its exclusion was clearly capable of producing an unjust result.

Accordingly, we reverse and remand for a new trial.




                                                                            A-1177-17T2
                                         2
                                        I.

      On August 28, 2013, plaintiff's car was stopped at a stop sign in a Target

parking lot when a tractor-trailer driven by defendant Roger Butler, an employee

of defendant Performance Logistics LLC, struck her vehicle.            The impact

allegedly pushed plaintiff's vehicle to the curb.      In the year following the

accident, plaintiff's complaints centered on her right shoulder, for which she

ultimately received surgery to correct a rotator cuff tear on June 26, 2014.

      Significant to the issues in this appeal, plaintiff was involved in an earlier

2009 car accident in which she sustained injuries. In 2012, plaintiff had a

lumbar fusion surgery related to the 2009 accident performed by Dr. Frank

Moore. Although she did not immediately experience complaints related to her

lumbar spine after the 2013 accident, plaintiff testified at her deposition that

sometime in or around 2014 she returned to Dr. Moore complaining of a

recurrence of back pain. Dr. Moore ordered follow up radiological studies and

prescribed pain medication.      In December 2015, plaintiff saw Dr. Louis

Quartaroro of New Jersey Spine Institute, again complaining of severe lower

back pain and swelling.

      During plaintiff's March 2016 deposition, she testified that:

            I started feeling my lower back pain again. My back
            started getting swollen. A year after I had the fusion I

                                                                            A-1177-17T2
                                         3
            was able to get up to see or if I was watching TV I was
            able to get up like normal. A year after I had this then
            the pain came back. I wasn't able to get up like I used
            to. The pain gets down my butt and then my leg and I
            feel like something is rubbing like two bones rubbing
            to each other.

On June 16, 2016, plaintiff consulted Dr. Steven P. Waldman, M.D., a board

certified pain management doctor, to address her worsening lumbar complaints.

Dr. Waldman concluded that in addition to the rotator cuff tear, plaintiff

sustained an exacerbation of her prior disc injuries as a result of the August 28,

2013 accident.

      As a result of her worsening lumbar complaints, Plaintiff filed a motion

to reopen discovery returnable June 10, 2016. While the motion was pending,

the June 1, 2016 discovery end date expired. On June 8, 2016, the parties

attended a case management conference with the presiding judge of the civil

division, in which plaintiff's counsel alerted the court that plaintiff was now

considered a potential candidate for spinal surgery. Counsel advised that a

motion returnable June 10, 2016 was pending, which sought to reopen and

extend discovery to address plaintiff's ongoing treatment. On June 10, 2016,

nine days after the discovery period had expired, the presiding civil judge denied

plaintiff's motion, noting on the order that



                                                                          A-1177-17T2
                                         4
              Motion is untimely filed under R. 4:24-2. Information
              on joint fusion surgery is too vague and of dubious
              causal connection to this accident. Lack of exceptional
              circumstances. Removed from arbitration.

      The judge did not categorically rule out that discovery might be extended

if plaintiff actually had the surgery, having noted two days before at the June 8,

2016 case management conference that "[I] typically don't grant motions like

this when someone has a recommendation for surgery but not an actual date

scheduled."

      Thereafter, the trial was adjourned three times, once by plaintiff, once by

defendant, and once due to court error. In an April 24, 2017, letter plaintiff's

counsel advised the judge and defense counsel that plaintiff had undergone a

two-level lumbar fusion on March 31, 2017 and requested an opportunity to

reopen and extend discovery. In an April 26, 2017 telephonic case management

conference, defense counsel strenuously objected to this last-minute request,

asserting he had reasonably relied on the court's June 10, 2016 order denying an

extension of discovery, and in particular the court's finding in June 2016 that

there was a dubious causal relationship between plaintiff's lumbar condition and

the 2013 accident. In response, the judge responded that defense counsel was

"reading too much into my order." The judge stated:



                                                                          A-1177-17T2
                                        5
                [Plaintiff's counsel is] right to point out that the June
                2016 order merely denied an extension of discovery. It
                didn't bar any claims or proofs, it just – I didn't see
                enough at that time to extend things and reopen it. So
                there isn't an appellate panel in this State that would
                countenance me telling you, too bad, see you next
                Tuesday, try your case and she doesn't get to talk about
                her surgery. It's just not going to happen, nor should it.
                It wouldn't be fair.

                [(Emphasis added).]

          The court adjourned the trial and directed plaintiff's counsel to make a

formal motion to reopen discovery.

          On June 7, 2017, plaintiff's counsel filed a motion to reopen and extend

the discovery end date. In support of the motion, plaintiff's attorney certified

that plaintiff had undergone a two-level lumbar fusion on March 31, 2017. The

certification attached as exhibits medical records of consultations and testing in

the five months prior to the surgery, as well as the operative report of the surgery

itself.     Counsel certified that this significant ongoing treatment was an

exceptional circumstance that warranted relief reopening and extending

discovery. By order dated June 23, 2017, the court denied the motion for failure

to attach a copy of the prior order as required by Rule 4:24-1(c). Plaintiff's

counsel did not rectify this failure by supplying the court with the missing order

or otherwise seeking reconsideration at any time prior to the new trial date.


                                                                             A-1177-17T2
                                            6
      Trial was then scheduled for September 25, 2017. The trial judge granted

defendants' motion in limine to exclude all testimony regarding plaintiff's back

injury at trial. The trial judge observed that he did not have much discretion

because of the presiding judge's June 23, 2017 ruling. The ruling in limine

excluded any and all references to complaints or treatment related to plaintiff's

back. Plaintiff indicated that she would respect the judge's ruling, but

commented, with the court's permission and without objection, that

                   If I cannot mention the surgery because I had the
             surgery too late when I found a good doctor, it is okay.
             I am willing not to mention that.
                   But I don’t think it is fair that I cannot say all the
             pain that I have gone through because of this accident
             including my back which is the main problem I have as
             of right now.
                   I have a shoulder problem, yes, but my back, it is
             incredible that I cannot say what happened to me in that
             accident, and just because I have a pre-existing
             condition, yes, I did have a fusion before, but that
             accident, because of that accident I had another
             fusion…[.]

      The trial judge, however, adhered to his ruling that "the back is not part

of this case" and "essentially this is a torn rotator cuff case."

      Defendant conceded liability in opening statements and the trial

proceeded on the issue of damages and proximate causation. Plaintiff testified

about the happening of the accident and her treatment for her right shoulder


                                                                            A-1177-17T2
                                          7
injury, which included physical therapy, medication and arthroscopic surgery.

Consistent with the court's ruling in limine, plaintiff did not testify about her

recent back surgery or any back complaints or limitations after the 2013

accident.

        On cross-examination, defense counsel selectively took advantage of the

limitation imposed by the court by impeaching plaintiff's credibility using

records from her 2009 accident related to shoulder and back complaints, while

deliberately omitting any reference to plaintiff's recent treatment related to her

back.

             Q:    Ms. Orbea, I want to focus on before this
             accident. August—before August 28, 2013.
             I want to focus on the accident where you were
             involved where you were hit by a drunk driver in 2009. 1
             A:    Yes.
             Q:    And the accident was a rear end hit, pushed you
             into another vehicle, and you sustained injury, is that
             correct?
             A:    Yes, I did.
             Q:    And we are referring to it for this trial as other
             problems, the injuries you sustained in that accident.
             That is what your testimony was, the other problems,
             correct?
             A:    Could you repeat that question?


1
     Although there was no objection to the repeated reference of a drunk driver
in the 2009 accident, we observe that the driver's alleged intoxication was
irrelevant and is ordinarily inadmissible. See Gustavson v. Gaynor, 206 N.J.
Super. 540, 545 (App. Div. 1985).
                                                                          A-1177-17T2
                                        8
            Q:      Yes. You have used twice, one where you were
            describing the Vicodin that you are taking, that you also
            take it for other problems.
            A:      Yes.
            Q:      Do we have an understanding?
            A:      I don't have an understanding.
            Q:      The injuries you sustained in the drunk driver that
            you sustained in 2009 we are referring to as "other
            problems" in this trial, is that correct?
            A:      Do I have to say the truth?
            Q:      Correct, yes or no?
            A:      Don't—
            Q:      Don't get caught?
                 ....
            Q:      I will repeat the question, Ms. Orbea. The
            injuries you sustained in 2009 as a result of being
            rearended by a drunk driver we are calling for today's
            trial the "other problems," is that your testimony?
            A:      No, that is not my testimony.

      The jury then heard testimony from plaintiff's treating doctor Fred Lee,

M.D., and the defense examiner, Thomas Edward Helbig, M.D. Both physicians

testified about their physical examinations, review of MRI films and x-rays, Dr.

Lee's treatment and their respective opinions about diagnosis, causal relation,

and prognosis for plaintiff – all carefully limited to the right-shoulder injury in

accordance with the trial court's ruling.

      After trial, the jury returned a verdict in favor of the plaintiff, finding by

a vote of six to zero that plaintiff sustained an injury that was proximately caused




                                                                            A-1177-17T2
                                         9
by the accident, and fixing damages, again by a vote of six to zero, at $27,500.

This appeal followed.

                                        II.

      Denial of motion to reopen discovery

      On appeal, plaintiff first contends that the trial court erred in denying her

June 23, 2017 motion to reopen discovery. The decision whether to reopen or

extend the period of discovery is reviewed for abuse of discretion. Leitner v.

Toms River Reg'l Sch., 392 N.J. Super. 80, 87 (App. Div. 2007). "Our standard

of review is limited to a determination of whether the trial court mistakenly

exercised its discretion in denying plaintiff's motion for an extension of the

discovery period under R. 4:24-1(c)." Huszar v. Greate Bay Hotel & Casino,

Inc., 375 N.J. Super. 463, 471-72 (App. Div.), certif. granted and remanded, 185

N.J. 290 (2005).

      Our system of justice favors the fair disposition of cases on their merits.

See Viviano v. CBS, Inc., 101 N.J. 538, 547 (1986); Stanley v. Great Gorge

Country Club, 353 N.J. Super. 475, 486 (Law Div. 2002). On the other hand,

the system also strives to make litigation "expeditious and efficient." Leitner,

392 N.J. Super. at 91. The Rules of Court are designed to achieve, among other

goals, certainty in trial dates.    Ibid.     As we have recognized, however,


                                                                           A-1177-17T2
                                       10
exceptional circumstances can arise, where trial dates or other litigation

deadlines should be extended in the interests of justice and to avoid punishing

litigants unfairly. Id. at 91-94. The fair balance between fairness and trial-date

certainty is reflected in Rule 4:24-1(c) governing extensions of discovery, which

provides in pertinent part:

            The parties may consent to extend the time for
            discovery for an additional 60 days by stipulation filed
            with the court or by submission of a writing signed by
            one party and copied to all parties, representing that all
            parties have consented to the extension. If the parties
            do not agree or a longer extension is sought, a motion
            for relief shall be filed . . . and made returnable prior to
            the conclusion of the applicable discovery period. . . .
            [I]f good cause is otherwise shown, the court shall enter
            an order extending discovery. . . . No extension of the
            discovery period may be permitted after an arbitration
            or trial date is fixed, unless exceptional circumstances
            are shown.

            [(Emphasis added).]

       Because the Rule does not define "exceptional circumstances," in Vitti,

the court set forth a four-part test that must be satisfied in order to establish

"exceptional circumstances." 359 N.J. Super. at 51. Specifically, a party must

show

            (1) why discovery has not been completed within time
            and counsel's diligence in pursuing discovery during
            that time; (2) the additional discovery or disclosure
            sought is essential; (3) an explanation for counsel's

                                                                           A-1177-17T2
                                       11
             failure to request an extension of the time for discovery
             within the original time period; and (4) the
             circumstances presented were clearly beyond the
             control of the attorney and litigant seeking the
             extension of time.

             [Rivers v. LSC P'ship, 378 N.J. Super. 68, 79 (App.
             Div. 2005) (citing Vitti, 359 N.J. Super. at 51).]

Plaintiff must provide "[a] precise explanation that details the cause of delay

and what actions were taken during the elapsed time[.]" Bender v. Adelson, 187

N.J. 411, 426 (2006).

      In Vitti, the defendants made a motion to extend discovery "more than six

weeks after the discovery end date." 359 N.J. Super. at 42. The defendants,

believing the plaintiff would release them after settling with the codefendant,

did not depose the plaintiff or obtain its own independent medical examination.

Id. at 43.   The court found that the plaintiff never indicated that he was

abandoning his claims against Brown and that defense counsel's miscalculation

of the risk that the plaintiff would proceed against his client after settling with

the codefendant did not rise to exceptional circumstances under the rule. See

id. at 52-53. The court found that although deposing the plaintiff and obtaining

an independent medical examination would be "helpful" to the defendant's case,

the sought-after additional discovery was not essential, and the defendant



                                                                           A-1177-17T2
                                       12
offered no explanation for his failure to pursue any discovery whatsoever in the

time provided. Ibid.

      The Vitti court contrasted the facts in that case with cases involving

significant ongoing medical treatment after a trial or arbitration date is fixed.

            There may be any number of situations in which one
            may be able to establish exceptional circumstances
            relatively simply.       There is one problem often
            encountered in personal injury litigation that illustrates
            that point. It is not unusual for a personal injury
            claimant to be involved in ongoing medical treatment
            or diagnosis, as litigation is proceeding through
            discovery, which might result in some sudden and
            unexpected change in the claimant's condition.
            Typically, a claimant may be presented with the need
            for surgery which had not been anticipated. To the
            extent those developments were reasonably anticipated
            during the discovery period, one would expect an
            application to extend the time for discovery to be filed
            before discovery ends.        Assuming the additional
            treatment or new diagnosis truly requires discovery or
            disclosure, good cause could easily be established.
            Similarly, it would not be difficult to establish
            exceptional circumstances, if the treatment or diagnosis
            could not have been anticipated during the discovery
            period. In that circumstance, it could presumably be
            established that the attorney and litigant had no control
            over the situation. The failure to complete the
            discovery at issue within the original discovery period
            and the failure to file the motion to extend within that
            time could be easily explained.

            [Id. at 52 (emphasis added).]



                                                                            A-1177-17T2
                                       13
      This case presents the factual scenario envisioned by the court in Vitti.

Plaintiff's back complaints were evolving throughout the litigation, and she was

receiving ongoing treatment for her back. That treatment unexpectedly

culminated in plaintiff's undergoing a two-level lumbar fusion in March 2017.

Although plaintiff had been deemed a potential candidate for surgery in June

2016, the court at that time denied the motion to extend, noting the uncertainty

of when if ever plaintiff would actually undergo the procedure, and the

perceived insufficiency of proof that the 2013 accident was a causal factor of

plaintiff's back complaints.

      In the interim, plaintiff repeatedly amended her interrogatories with new

information regarding her medical treatment accompanied by the appropriate

certification pursuant to Rule 4:17-7, which provides:

            Except as otherwise provided by R. 4:17-4(e), if a party
            who has furnished answers to interrogatories thereafter
            obtains information that renders such answers
            incomplete or inaccurate, amended answers shall be
            served not later than 20 days prior to the end of the
            discovery period, as fixed by the track assignment or
            subsequent order. Amendments may be allowed
            thereafter only if the party seeking to amend certifies
            therein that the information requiring the amendment
            was not reasonably available or discoverable by the
            exercise of due diligence prior to the discovery end
            date. In the absence of said certification, the late
            amendment shall be disregarded by the court and
            adverse parties. Any challenge to the certification of

                                                                        A-1177-17T2
                                      14
            due diligence will be deemed waived unless brought by
            way of motion on notice filed and served within 20 days
            after service of the amendment. Objections made
            thereafter shall not be entertained by the court. All
            amendments to answers to interrogatories shall be
            binding on the party submitting them. A certification
            of the amendments shall be furnished promptly to any
            other party so requesting.

            [(Emphasis added).]

Defendants never formally objected to the amendments, based on their intention

to move to bar the materials at trial in reliance on the court's June 10, 2016 and

June 23, 2017 orders.

      When plaintiff underwent the surgery on March 31, 2017, plaintiff's

counsel promptly moved to reopen discovery. As noted, the motion was denied

based on a procedural deficiency- the failure to attach the prior order extending

discovery as required by Rule 4:24-1(c). It would have been preferable for

plaintiff's counsel to cure the deficiency by supplying the omitted order or

otherwise moving for reconsideration, and his failure to do so undoubtedly

contributed to the trial court's having never addressed the substantive issue as to

whether exceptional circumstances existed to warrant reopening discovery. In

light of the magnitude of the impact in this particular case of disallowing post -

surgery discovery, however, we will address the issue whether plaintiff had



                                                                           A-1177-17T2
                                       15
shown exceptional circumstances to extend discovery, the denial of which

warrants a new trial.2

      Here, addressing the four prongs of the exceptional circumstances test, it

is clear that the reason discovery was not completed within the initial discovery

period was because most of plaintiff's significant treatment occurred after the

discovery end date had expired; indeed, the lumbar surgery occurred only a

couple of months before the final motion to reopen discovery was filed. Plaintiff

was reasonably diligent throughout the litigation in obtaining reports and

serving medical discovery as it became available. Cf. Rivers, 378 N.J. Super.

at 80-81 (exceptional circumstances not established where plaintiff's counsel

failed to pursue discovery from defendant and obtain an expert report in a timely

manner). Plaintiff cooperated by appearing at depositions and defense exams as

requested. The timing of the surgery was beyond the control of the litigant, and

the evidence was essential to a fair and complete presentation of her injuries to

the jury.   Unfortunately, because the court denied the motion based on a

procedural deficiency, the court never analyzed whether or not plaintiff had met



2
   Our decision should not be read as supporting a proposition that any post -
discovery treatment would constitute exceptional circumstances; to the contrary,
as defined by Vitti, it is only significant ongoing treatment that warrants an
extension beyond that contemplated by the Rules of Court.
                                                                         A-1177-17T2
                                      16
the exceptional circumstances standard, a standard the court preliminarily

suggested would be met at the April 26, 2107 telephonic conference.

Nonetheless, on the specific facts of this case, we find that the motion should

have been granted as there were exceptional circumstances as defined by Vitti

warranting a brief extension of discovery. The denial of such relief was a rare

misapplication of discretion, albeit aided by plaintiff's failure to attach prior

orders to the motion papers.

      The court's order in limine barring introduction of any evidence of
      plaintiff's back complaints or treatment

      For the same reasons, the trial court's reliance on the June 23, 2017 order

to bar any mention of complaints or treatment to the back deprived plaintiff of

a fair and just adjudication of the merits of her claims.

      With respect to the trial court's evidentiary rulings, we generally will not

set them aside unless the court has abused its discretion, including with respect

to issues of the admissibility of expert opinion. Hisenaj v. Kuehner, 194 N.J. 6,

16 (2008); see also Dinter v. Sears, Roebuck & Co., 252 N.J. Super. 84, 92 (App.

Div. 1991). Trial errors that were brought to the attention of the court are

reviewed for harmful error. "Any error or omission shall be disregarded by the

appellate court unless it is of such a nature as to have been clearly capable of

producing an unjust result [.]" R. 2:10-2. Thus, if a trial court is found to have

                                                                          A-1177-17T2
                                       17
abused its discretion, or otherwise erred, we must then determine whether that

error amounted to harmful error. State v. Prall, 231 N.J. 567, 581 (2018).

      Allowing the introduction of the back surgery evidence may have

significantly changed the calculus of the trial. At the outset, the court's in limine

ruling prevented plaintiff from explaining, in response to questions on cross -

examination, that some of her current complaints and need for medication were

related to her recent lumbar fusion, while defense counsel remained free to

suggest, unchallenged, that all of plaintiff's "other problems" stemmed from the

2009 accident. Moreover, while it is uncertain what credence the jury would

have given the excluded evidence, barring all of the evidence was clearly

capable of creating an unjust result. As plaintiff's back complaints were severe

enough to require surgery prior to trial, the jury should have been able to

consider plaintiff's back injuries and make its own determination whether those

injuries were causally related to the accident. In that regard, we cannot say with

any degree of confidence that the jury award reflected a complete assessment by

the jury of plaintiff's condition. That is particularly so in a case where defendant

conceded liability and the jury unanimously found that plaintiff suffered injuries

proximately caused by the accident and unanimously awarded her damages.




                                                                             A-1177-17T2
                                        18
      We are sensitive to the trial court's desire and obligation to expeditiously

move cases. See R. 1:33-6(b) ("[T]he Presiding Judge of each functional unit

within the vicinage shall be responsible for the expeditious processing to

disposition of all matters filed within that unit."); see also R. 4:5B-2 (noting trial

court's authority to conduct case management conference to "promote the

orderly and expeditious progress of the case."). Moreover, we recognize that in

this case, plaintiff's counsel's failure to seek reconsideration of the order

contributed to the trial court's having never addressed the substantive issu e

whether exceptional circumstances existed to warrant reopening discovery.

      However, as we have previously stated:

             [W]e are satisfied that the rules remain equipped to
             allow a trial judge to render substantial justice in all
             cases and that where the court system is not in a
             position to schedule a meaningful arbitration or trial
             date, a sanction that results in a deprivation of a
             litigant's day in court on the merits is anathema to the
             fair and efficient administration of justice. We are
             reminded of Justice Clifford's apt comment that "[o]ur
             rules of procedure are not simply a minuet scored for
             lawyers to prance through on pain of losing the dance
             contest should they trip." Stone v. Old Bridge Tp., 111
             N.J. 110, 125 (1988) (dissenting opinion). The rules do
             not exist for their own benefit. The rules, instead, are
             only a framework for the fair and uniform adjudication
             of cases brought into our system. Ragusa v. Lau, 119
             N.J. 276, 283-84 (1990) (the rules "should be
             subordinated to their true role, i.e., simply a means to
             the end of obtaining just and expeditious

                                                                              A-1177-17T2
                                         19
             determinations between the parties on the ultimate
             merits.").

             [Ponden v. Ponden, 374 N.J. Super. 1, 10-11 (App. Div. 2004).]

      Thus, we conclude that under the particular facts of this case, the

exclusion of the evidence regarding plaintiff's lumbar fusion deprived plaintiff

of a fair adjudication of her case on the merits. Because the omission of this

evidence was clearly capable of producing an unjust result, R. 2:10-2, we are

constrained to reverse and remand for a new trial.

      Defense cross-examination based on prior specific statements to her
      employer

      Finally, Plaintiff argues that the verdict should be overturned based on

defense counsel's cross-examination of plaintiff about her decision to not tell

her employer, the North Bergen Board of Education, that she moved from North

Bergen to Fairview. Plaintiff testified that she did not tell the Board about this

move because there was a requirement that teachers live in North Bergen and

she was concerned about losing her job. Defendants used this testimony to argue

at closing that plaintiff is untruthful and that the jury should not trust her

testimony.    Because there was no objection to this aspect of the cross-

examination or defense counsel's comments in summation, we must consider




                                                                          A-1177-17T2
                                       20
under a plain error standard whether admitting the evidence gave rise to a

manifest justice requiring reversal. R. 2:10-2.

      In State v. Scott, the Supreme Court reemphasized that N.J.R.E. 405 and

608 "preclude the use of specific instances of conduct to attack the credibility

of a witness." 229 N.J. 469, 481 (2017). Rule 405 states "[s]pecific instances

of conduct not the subject of a conviction of a crime shall be inadmissible" but

specific instances may also be admitted "[w]hen character or a trait of character

of a person is an essential element of a charge, claim, or defense." N.J.R.E. 405.

Rule 608 provides that "a trait of character cannot be proved by specific

instances of conduct" unless "otherwise provided by Rule 609 [Impeachment by

Evidence of Conviction of Crime]" or attacking credibility of a witness based

on "a prior false accusation against any person of a crime similar to the crime

with which defendant is charged." N.J.R.E. 608. In Scott, the Court stated that

"Rule 608 explicitly excludes specific instances of conduct as a means of

proving a character for untruthfulness, permitting only opinion or reputational

evidence." 229 N.J. at 483. Plaintiff also points out that evidence may be

omitted when "its probative value is substantially outweighed by the risk . . . of

undue prejudice." N.J.R.E. 403.




                                                                          A-1177-17T2
                                       21
      Defendants argue that they were entitled to impeach plaintiff, and that

plaintiff opened herself up to this line of questioning because on direct she

testified that she lived in Fairview. As defendants note, Rule 607 allows parties

to "examine the witness and introduce extrinsic evidence relevant to the issue of

credibility." N.J.R.E. 607. However, that rule is by its terms subject to the

limitation in Rules 405 and 608.

      Here, defendants' questions on cross-examination did not go to the

truthfulness of plaintiff's testimony that she lives in Fairview. Cf. Allendorf v.

Kaiserman Enters., 266 N.J. Super. 662, 674 (App. Div. 1993) ("[T]he evidence

that plaintiff had episodes of passing out prior to the accident was admissible

for the purpose of impeaching the credibility of her testimony that she was 'in

perfect health' and had never had 'any problem with blacking out' prior to the

accident."). Rather, the questions sought to elicit testimony that on some prior

occasion plaintiff allegedly lied about living in North Bergen. Thus, rather than

impeaching plaintiff's testimony at trial, defendants sought to introduce a

specific instance of conduct to show plaintiff's general character for

untruthfulness. Pursuant to Rules 405 and 608, as interpreted by Scott, this was

clearly impermissible.




                                                                          A-1177-17T2
                                       22
        Nonetheless, "if an issue was not raised below by a party's trial counsel,

relief is not warranted unless that party demonstrates plain error by showing on

appeal the error was 'clearly capable of producing an unjust result.'" Jacobs v.

Jersey Cent. Power & Light Co., 452 N.J. Super. 494, 502 (App. Div. 2017)

(quoting R. 2:10-2). Guided by the plain error standard, we do not find that the

admission of the prohibited evidence was sufficient to warrant reversal in this

case.

        At the outset, "the '[f]ailure to make a timely objection indicates that

[plaintiff's] counsel did not believe the remarks were prejudicial at the time they

were made,' and it 'also deprives the court of the opportunity to take curative

action.'" Risko v. Thompson Muller Auto. Grp., Inc., 206 N.J. 506, 523 (2011)

(quoting Jackowitz v. Lang, 408 N.J. Super. 495, 505 (App. Div. 2009)).

Moreover, defendants did not rely solely on the prohibited evidence to further

their argument that plaintiff was untruthful. Rather, counsel cited to several

other contradictions and/or inconsistencies between her statements to medical

providers and her testimony at trial to show that plaintiff has a tendency to lie.

Finally, and perhaps most tellingly, the jury returned a reward of $27,500 for a

case that centered on a torn rotator cuff, which suggests the jury rejected defense

counsel's argument that plaintiff could not be believed. Therefore, we decline


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to reverse the verdict based on the Rule 608 violation, which we presume will

not be repeated at any retrial.

                                       III.

      For the reasons expressed above, we conclude that plaintiff is entitled to

a new trial based on the trial court's denial of an extension of discovery and

ruling in limine excluding all evidence of plaintiff's treatment for back injuries

after the 2013 accident.

      Reversed and remanded for a new trial. We do not retain jurisdiction.




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