                   NOT FOR PUBLICATION WITHOUT THE
                  APPROVAL OF THE APPELLATE DIVISION

                                          SUPERIOR COURT OF NEW JERSEY
                                          APPELLATE DIVISION
                                          DOCKET NO. A-5273-13T3

JOSEPH A. BERKOWITZ,
                                              APPROVED FOR PUBLICATION
     Plaintiff-Respondent,
                                                   January 20, 2016
v.
                                                   APPELLATE DIVISION
SUSAN J. SOPER,

     Defendant-Appellant.
____________________________________

            Submitted September 30, 2015 – Decided January 20, 2016

            Before Judges Fuentes, Koblitz and Gilson.

            On appeal from Superior Court of New Jersey,
            Law Division, Middlesex County, Docket No.
            L-7521-11.

            Rudolph & Kayal, attorneys for appellant
            (Stephen A. Rudolph, on the brief).

            Martin Kane & Kuper,         LLC, attorneys          for
            respondent (Brian E.         Yesalonis, on           the
            brief.

     The opinion of the court was delivered by

FUENTES, P.J.A.D.

     Defendant    Susan   J.    Soper   was   involved     in   an    automobile

accident with plaintiff Joseph A. Berkowitz on November 9, 2009.

Plaintiff   described     the   collision     as   "a   tremendous      hit   from

behind."     Because defendant was hospitalized at the time of
trial, the jury did not hear her countervailing description of

the force of the impact.

       Plaintiff brought suit against defendant in October 2011,

only a month before the expiration of the two-year statute of

limitation.          N.J.S.A.       2A:14-2(a).            Plaintiff's     damages      were

based    on   his    account        of   the   severity      of   his     back   pain   and

diagnostic tests that showed disc compression and bulges in the

lumbar region of his spine.                 Plaintiff testified he is able to

perform the activities of daily living, albeit with a certain

degree of pain and some assistance from his wife.                           His mobility

is also restricted as a consequence of the pain.                          He was treated

with physical therapy and epidural steroid injections in the

lumbar region of the spine.1

       This was plaintiff's third automobile accident over a nine-

year    period      that    involved      injury      to    his   back.      Plaintiff's

expert    witness          opined    that      this    accident      exacerbated        the

preexisting injuries caused by the two previous accidents and

found plaintiff had radiculopathy consisting of pain radiating

down from the lumbar region of his spine to his right leg.

Other than taking prescription pain medication, plaintiff had

1
  Plaintiff's automobile insurance policy contained a verbal
threshold provision requiring him to prove he sustained a
permanent injury to a "body part or organ, or both, [that] has
not healed to function normally and will not heal to function
normally with further medical treatment." N.J.S.A. 39:6A-8(a).



                                               2                                  A-5273-13T3
stopped receiving any form of treatment for his injuries nearly

two years before the start of trial in May 2014.

    The case proceeded through discovery and mandatory, non-

binding arbitration.       The arbitrator ruled in plaintiff's favor

on liability, finding defendant one hundred percent liable for

the accident.        The arbitrator also found plaintiff's injuries

were sufficient to overcome the verbal threshold restrictions in

his auto policy and awarded him $40,000 in compensatory damages.

Because plaintiff's injuries did not prevent him from performing

his work-related activities as a salesperson, the arbitrator did

not award any economic damages.

    Although the record before us does not disclose which party

sought a trial de novo pursuant to Rule 4:21A-6(c), the matter

was eventually listed for trial on July 29, 2013.                   The trial

date was adjourned thereafter five times before the case was

finally tried before a jury over a three-day period, starting on

May 5, 2014.     The factual testimony presented to the jury came

entirely from plaintiff, his wife, and a man who identified

himself   as   plaintiff's      friend   and    customer.      All    of    the

physicians     who    treated   plaintiff      related   to   the    injuries

allegedly caused by this accident declined to testify at trial.

    At the conclusion of plaintiff's direct presentation to the

jury, the trial judge granted plaintiff's motion for a directed




                                     3                                A-5273-13T3
verdict on liability pursuant to Rule 4:37-2(b).                        Thereafter,

defendant     called     only   one    witness,          a    physician   who     was

prequalified as an expert witness.                His testimony was presented

to the jury in the form of a de bene esse videotaped deposition.

      The jury began deliberating at 9:46 a.m. and reported its

verdict     at   11:22    a.m.,      awarding      plaintiff        $2,000,000     in

compensatory damages for pain and suffering.                       The trial court

denied defendant's motions for a new trial and for remittitur.

The court also granted plaintiff's motion for counsel fees and

costs, pursuant to Rule 4:58-2, based on defendant's failure to

accept an Offer of Judgment filed by plaintiff on April 21,

2014, pursuant to Rule 4:58-1, indicating his willingness to

accept a judgment against defendant for $30,000.

      In this appeal, defendant argues the trial judge committed

multiple reversible errors in the course of deciding a series of

evidential issues that arose during the trial, but primarily

during plaintiff's direct testimony.               Defendant also argues she

was   particularly      prejudiced    by    the    trial      judge's   refusal    to

adjourn the trial date to accommodate a serious and unforeseen

medical     emergency    that     caused    her     to       be   hospitalized    two

business days before the scheduled trial date.                        This medical

condition prevented her from appearing at trial or arranging to

present her testimony via a de bene esse deposition.




                                        4                                  A-5273-13T3
      Independent         of   these      issues,       defendant       argues      the     trial

judge erred when he denied her motion for a new trial or to

remit      the    jury    verdict.          Defendant         argues        the    amount       of

compensatory           damages      awarded        by     the      jury        under        these

circumstances is shockingly excessive, against the weight of the

evidence presented at trial, and constitutes a clear miscarriage

of justice.

      We    agree       with     defendant's       arguments          and    reverse.            We

conclude     the       trial     judge    abused        his   discretion          in     denying

defendant's request to adjourn the trial without considering or

applying the standards codified by the Supreme Court in Rule

4:36-3(b).            The record further shows: (1) plaintiff and his

counsel      made        multiple        comments       to      the      jury      concerning

plaintiff's       need     for    surgery,        despite     a    lack     of     any     expert

testimony        to    support    this     medical       conclusion;         (2)       plaintiff

testified        about    having     suicidal       ideations           connected        to    the

injuries he allegedly sustained in this accident, without expert

testimony to support any psychiatric or psychological harm; and

(3) plaintiff and his wife both made comments as part of their

direct testimony that specifically and improperly referred to

the quantum or adequacy of a potential monetary damage award.

The   cumulative         effect     of    these     errors        had    the      capacity      to

inflame the jury's passion thereby depriving defendant of her




                                              5                                          A-5273-13T3
right to a fair trial.               Finally, reviewing the totality of the

evidence    presented        at     trial    in    the   light    most      favorable     to

plaintiff,       the    jury's       award    of    $2,000,000         in    compensatory

damages shocks our collective judicial conscience because it is

grossly disproportionate to the injuries plaintiff sustained as

a proximate cause of this automobile accident.                         Jastram ex rel.

Jastram v. Kruse, 197 N.J. 216, 228 (2008). A new trial as to

both liability and damages is the only way to counteract this

clear miscarriage of justice.

                                              I

       Plaintiff was thirty-five years old at the time the 2002

Toyota     Camry       he   was     driving       was    rear-ended         by   the    2000

Oldsmobile driven by defendant.                   Plaintiff described the impact

as "a sudden, boom, I get this tremendous hit from behind."

When     asked    whether      he     stepped      out    of     his    car,     plaintiff

responded: "I was a bit shaken up in the immediate aftermath.

My . . . glasses had gone flying, everything in the car was in

total disarray."            Although he eventually stepped out "and went

around the car to check if there [was] any damage[,]" he did not

describe whether the car in fact sustained any damage.

       Plaintiff did not remember at trial whether he received any

medical attention at the scene.                    As a means of refreshing his

recollection,      plaintiff's         counsel      showed     him     a    copy   of    the




                                              6                                    A-5273-13T3
police report of the accident that indicated he was evaluated at

the scene by emergency medical personnel who found he did not

require medical attention.                 As described in the report prepared

by the police officer who responded to the scene, plaintiff's

car was stopped in traffic at a red light when the car driven by

defendant    "bumped"         into    his    vehicle       from      behind.     Although

neither    car     sustained         any    damage,      the    police    report      noted

plaintiff's      car     had     preexisting          damage      unrelated      to   this

accident.

      Plaintiff drove away from the scene of the accident and

continued     his      activities          for     the     remainder      of    the   day.

Plaintiff was at the time employed as a wine salesperson.                                He

emphasized he had an important business meeting that day related

to the upcoming holidays in October through December.                            He drove

to   and   attended      the    meeting          without    experiencing        any   pain.

However,    he      described         his        condition      as     "disjointed"       or

"disoriented."          He felt some pain as he drove home and became

worried     that       this     latest       accident          could     have    "further

exacerbated" injuries he sustained in two previous automobile

accidents in 2002 and in 2005.

      Plaintiff decided to go to Kimball Medical Center (KMC)

later that evening.            The clinical examination conducted by the

medical staff and the x-rays of his back taken at KMC did not




                                              7                                   A-5273-13T3
reveal any injuries.             Plaintiff was discharged from KMC that

same   night.         He   was   told    to       consult    with    his   physician     as

needed, and was given pain medication.                        Because his back pain

did not subside, plaintiff consulted with a number of physicians

to explore treatment options.                 He received physical therapy for

a period of time and was treated by physicians in a medical

group who specialized in pain management.                            They administered

epidural steroid injections in the lumbar region of the spine.

He     was     ultimately        diagnosed          as      suffering      from     lumbar

radiculopathy.

       In     the   course       of     his       direct     examination,       plaintiff

repeatedly described the treatment he received in a manner that

went beyond his status as a lay witness.                      As examples, plaintiff

characterized the fourth epidural injection he received as "very

unusual" and said his only medical option after the epidural

injections      was    surgery.          These      comments        triggered     repeated

objections by defense counsel, which were sustained by the trial

judge.       At one point, the judge addressed plaintiff directly and

gave him the following admonition in the presence of the jury:

              [Y]ou can't keep going on about what - - the
              questions are what were done to you, not why
              was it done, not what the medical literature
              is, none of that. You can't do that because
              you're not a doctor.




                                              8                                   A-5273-13T3
Immediately after the trial judge gave these instructions to

plaintiff, his attorney asked him: "Did you consider surgery

after   it   was   recommended   by   Dr.     Dubois?"     This    prompted    an

immediate objection by defense counsel.                The following exchange

occurred at a sidebar conference:

             THE COURT: [Addressing plaintiff's counsel]
             What about [Dr.] Becan, what does Becan - -
             because he's your witness, what does Becan
             say about the surgery?

             PLAINTIFF'S    ATTORNEY:         He     doesn't      say
             anything.

             DEFENSE ATTORNEY: I don't think he says - -

             THE COURT:    Well,      let's     stay     away   from
             surgery - -

             PLAINTIFF'S ATTORNEY: Okay.

             THE COURT: - - [B]ecause . . . anything that
             [Dr.] Dubois says . . . it has no value just
             to prove that Dubois said it.    It only has
             value if it's a valid - - you know, that it
             was   recommended   because  he   needs  it,
             potentially needs it, which then . . . you
             got to bring Dubois.

             DEFENSE ATTORNEY: Here to say that.

             THE COURT:   Yeah, Dubois either has to say
             it or another doctor has to say it that's
             here testifying.

             [(emphasis added).]

    Plaintiff had physical therapy "quite a few times" as a

means of "trying to stretch me out."               He felt pain in his lower

back that radiated into his right leg.                   He testified he had



                                       9                                A-5273-13T3
"developed significant what's called drop foot because the pain

was going straight down my leg."2

     Plaintiff testified that the physical therapy he received

at the pain management center resolved his neck pain "pretty

quickly."           Without objection from defense counsel, plaintiff

testified      he       was    told    the    results      of    a   magnetic    resonance

imaging (MRI) study of the lumbar spine performed shortly after

the accident revealed he had "bulging discs, maybe a couple of

them at that point, and [he] was told that one of them was . . .

pressing against the nerve."                   Counsel also asked plaintiff the

results   of        a    second       MRI    study    performed      in    October      2010.

Plaintiff testified his treating physicians ordered a second MRI

because   he    "was          still    in    significant        pain."     Again     without

objection,     plaintiff          speculated         and   expanded       on   the   medical

reasons for the second MRI:

            I think the doctors really wanted to get a
            clearer picture of . . . what was going on
            in there, you know, maybe get a better idea
            of what type of physical therapy might be
            able to help me . . . .




2
  Plaintiff's expert did not address plaintiff's gait or manner
of ambulation in his testimony before the jury.       The expert
noted in his report that plaintiff walked "with an antalgic gait
pattern" and had "mild weakness of toe walking on the right as
compared to the left."      This report was not admitted into
evidence or made available to the jury.



                                               10                                    A-5273-13T3
    Although plaintiff did not stop working at any time after

the accident, he testified he was "literally confined to [his]

house."   Furthermore, despite the absence of any psychiatric

evidence, history of mental illness, or evidence he sought a

more aggressive pain management approach, plaintiff testified,

without objection, as follows:

          I   was  in   the  most  excruciating  pain
          imaginable.    I - - I wanted to commit
          suicide a couple of times.   I told my wife
          it was that bad.

          And we did a lot of research on what could
          possibly be done in a situation like this.
          And what we came up with was that it was one
          of two things.    It was either injections,
          epidural injections right into the spine, or
          it was go for surgery.   And I - - I didn't
          want to go for surgery, and never did. So I
          ended up having my dad - - I couldn't drive.
          I couldn't even get behind the wheel of a
          car. I could barely - - I couldn't walk.

          My dad came from New York to pick me up and
          drive me to Dr. Dubois for those injections.

          Q. The pains you were having in that time,
          during the summer and fall of 2009 - - I'm
          sorry, 2010, had you ever had that type of
          pain prior to the November 2009 accident?

          A. No.

              . . . .

          I didn't   even   know   pain   like   that   could
          exist.

          Q. And what did Dr. Dubois do for you?




                                   11                           A-5273-13T3
           A. Well, Dr. Dubois did what Dr. Dubois
           does, and that is he gave me epidural
           injections right into the spine.    There was
           supposed to be a series of three injections.
           Ultimately, he ended up doing the fourth,
           which is - - which is highly unusual.

           I got some relief after the first couple,
           not much after - - after the third at all.
           And the fourth did nothing.  And at - - at
           which he told me that my only option is to
           go to surgery.

           Q. And    did     you   consider   surgery   at   that
           time?

           DEFENSE COUNSEL: I'd like to object to this
           line of questioning.    There's no - - Mr.
           Berkowitz is not an expert as to surgery or
           - -

           THE COURT: Well, yeah. It's a little late
           in the game. But, yeah, you can't keep - -
           he can't keep - -

                . . . .

           Yeah.   He can't keep - - you can't keep
           going on about what - - the questions are
           what were done to you, not why was it done,
           not what medical literature is, none of
           that. You can't do that because you're not
           a doctor.

           [(emphasis added).]

       The trial judge's comments and directions went unheeded.

In response to his attorney's questions, plaintiff continued to

refer to statements and advice he received from other physicians

whom    allegedly   opined    he    should    have   surgery.       Plaintiff

completed his direct testimony by describing the pain associated




                                      12                             A-5273-13T3
with engaging in his daily life activities.                     He testified that

his   job   as   a    wine   salesperson      requires    him    to   stand    around

liquor stores.         He has cutback and outright stopped many job-

related promotional activities such as wine tastings.                    He cannot

sit or stand for extended periods of time without experiencing

severe pain.         By the time he arrives home at the end of his work

day, his pain level "is pretty bad."                 He is hesitant to play

with his children and feels pain when he does so.

      Defense counsel's cross-examination consisted primarily of

retracing plaintiff's experiences and injuries related to the

two previous automobile accidents.              Defense counsel also focused

on    the   course      of   treatment     plaintiff      followed     after       this

accident, which consisted of physical therapy at a place called

"Hands On Physical Therapy."             Records showed plaintiff stopped

receiving physical therapy in the middle of January 2010.                          This

was approximately a week before plaintiff had his first MRI.

Plaintiff also did not have any other form of treatment, other

than opiate-based prescription pain medication, since January 6,

2012.       Thus, plaintiff did not have any treatment during the

twenty-eight     months      preceding    the   trial     that    started     in    May

2014.

      Plaintiff's        wife   Shaindy       Berkowitz     testified         on    her

husband's behalf.            She did not have a per quod claim.                     She




                                         13                                   A-5273-13T3
corroborated plaintiff's testimony and described the physical

limitations       caused      by     his    back     pain.         According      to     Mrs.

Berkowitz, during the period of time plaintiff was "homebound,"

in addition to being a wife and mother, she became "a nurse, a

psychologist, [and] a doctor."                 Finally, without objection from

defense      counsel,       Mrs.   Berkowitz        testified      that    she    knew    her

husband "would have easily given up at the time ten million

dollars just to not have that kind of - - of pain."

       Before the start of trial, but long after the end of the

discovery period, the trial court granted plaintiff's motion to

call       Dr.   Arthur      Becan     as     an     expert       witness,       overruling

defendant's objection.             Although he used to practice orthopedic

surgery with subspecialties in sports medicine and the spine,

Dr.    Becan     is   not    board    certified       in    any   specialty       field    of

medicine,        including     orthopedics.            He     also    no     longer      sees

patients.        In the five years preceding the start of this trial

in 2014, Dr. Becan has exclusively dedicated himself to serving

as an expert witness in personal injury cases.

       Dr. Becan examined plaintiff for one hour, reviewed his

medical history, and opined the accident caused an aggravation

of     a   preexisting       "lumbar        spine    pathology"       related      to     two

previous automobile accidents.                He diagnosed plaintiff as having

a bulging disc at L2—3 that was not "present" in a previous MRI




                                              14                                   A-5273-13T3
study conducted before the November                      2009 accident.            He also

opined       that    plaintiff        suffers     from       an    acute     right     side

radiculopathy that causes radiating pain from his lower back

down to his right leg.

        Defendant called Dr. Francis Deluca as an expert.                                 Dr.

Deluca       is    board    certified     as     an    orthopedic      surgeon       and    a

diplomat      of    the    American     Board    of     Orthopaedic        Surgery    since

1977.    He has been practicing medicine as an orthopedic surgeon

for thirty-five years.              His professional time is equally divided

between seeing patients, which includes performing surgery, and

testifying as an expert witness on behalf of defense attorneys

in     personal      injury     cases.      This       also       includes     conducting

independent medical examinations of plaintiffs or claimants.

       As we previously noted, defendant presented Dr. Deluca's

testimony to the jury in the form of a videotaped de bene esse

deposition.          Dr.     Deluca     testified       he    examined     plaintiff       on

August 9, 2012.            At his request, plaintiff described his medical

history, which included a car accident in 2001 for which he

received      physical       therapy.      Dr.    Deluca      described       plaintiff's

gait    as    "normal."        He    testified        that   plaintiff       was   able    to

partially dress and partially disrobe without difficulty, and

get on and off the examination table without any problems.                                 In




                                            15                                     A-5273-13T3
short, Dr. Deluca found plaintiff was able to perform all of the

normally anticipated life activities without any difficulty.

      Dr. Deluca physically examined plaintiff's lower back, also

known as the lumbar region of the spine, and found he "had a

normal curve in his back."           There were no indications of muscle

spasms.      Dr. Deluca opined that plaintiff did not sustain a

permanent injury related to this accident.                  He found plaintiff

suffers from "a degenerative, worn out spine."

                                         II

      We start our legal analysis by first addressing the trial

court's failure to grant defense counsel's request to adjourn

the   trial       to   accommodate       defendant's     unforeseen        medical

emergency.     The case was originally scheduled for trial on July

29, 2013.     It was thereafter adjourned to September 30, 2013, by

the Civil Division Manager's Office.                 On September 9, 2013,

plaintiff moved to submit an expert report after the discovery

period had long ended.          Defendant filed opposition to the motion

on September 20, 2013.          For reasons not disclosed in the record,

the trial date was adjourned pending the outcome of plaintiff's

motion.      By    order   dated   October    11,   2013,    the   court    denied

plaintiff's       motion   to   submit   an   untimely   expert    report,       and

scheduled the case for trial on November 12, 2013.




                                         16                                A-5273-13T3
     On November 8, 2013, plaintiff moved for reconsideration of

the order denying his motion to submit the untimely expert's

report.    The court heard oral argument and granted plaintiff's

motion for reconsideration on November 22, 2013.                  This order

contains a handwritten notation indicating that "counsel will

speak to [the Presiding Judge of the Civil Division] to extend

trial    date."    The    trial   date    was   thereafter   rescheduled     to

December    16,   2013.     Again,       without   explanation,   the   Civil

Division Manager's Office rescheduled the trial to February 10,

2014.

     By letter dated February 26, 2014,3 addressed to the Civil

Presiding Judge, plaintiff requested a second adjournment of the

trial.    As explained by plaintiff's counsel:

            In preparing my client for trial yesterday,
            he advised me that he is beginning a new job
            on that date [March 3, 2014]. I advised him
            about the importance of the trial and his
            need   to  make   himself   available.    He
            attempted to speak with the new employer and
            was told if he could not be there next week,
            then he would lose his job.

            Given this unfortunate circumstance, I am
            respectfully requesting that the matter be
            adjourned and be given a new preference
            trial date of May 5, 2014.


3
  Plaintiff's counsel noted in this letter that the case was then
scheduled for trial on Monday, March 3, 2014. The record before
us does not contain any explanation documenting how the February
10, 2014 trial date was rescheduled to March 3, 2014.



                                     17                              A-5273-13T3
Defense counsel consented to plaintiff's request to adjourn the

trial     date,       evidencing    the     type     of     professional        courtesy

customarily extended to a fellow member of the Bar.

    On     May     5,   2014,     defense      counsel    appeared    in   court,       as

directed,       and     requested     an       adjournment     of    the    trial      to

accommodate his client's unforeseen medical emergency.                           Defense

counsel     informed       the     court       and   plaintiff's      counsel         that

defendant had been hospitalized the previous Thursday, May 1,

2014, "for a heart issue."                Under these circumstances, defense

counsel requested "a brief adjournment to allow her to testify,

and at least be here on her own behalf."                       Because plaintiff's

counsel had not deposed defendant, defense counsel informed the

court that her version of how the accident occurred, including

the severity of the impact, had not been memorialized.

    Defense        counsel       informed      the   court    that   based       on   her

answers    to     interrogatories,        he     expected    defendant     to   testify

that plaintiff abruptly and unnecessarily stopped short, causing

her to collide with his car.               Consistent with his duty of candor

to the court, plaintiff's counsel corroborated defense counsel's

representations in this respect.                  Defense counsel also informed

the court he needed defendant to identify and authenticate a

number of photographs depicting the lack of damage to her car.




                                            18                                  A-5273-13T3
    Despite the facially legitimate reasons offered by defense

counsel in support of his application to adjourn the trial, the

record shows the judge believed only the Presiding Judge of the

Civil Division had the legal authority to adjourn the case.

         THE COURT: Well, look, the problem is if you
         found out last week . . . the only person at
         that juncture [who] has the authority to
         grant an adjournment up until and including
         right now is the presiding judge. . . . I
         have no authority to grant it.

              . . . .

         The motion is denied.    It's too late now.
         It's too late now. . . . [T]he time to deal
         with this was on Friday, and maybe she could
         have been - - her testimony de bene esse
         could have been taken before she went into
         the hospital if it was that critical.

         I'm not finding fault with anybody, because
         in the real world I don't envision liability
         being a serious issue in the case.    And if
         the defendant really felt that it was, then
         they would have taken the steps necessary in
         a timely fashion.

    A judge deciding whether to grant or deny an application to

adjourn a civil trial must apply the standards established by

the Supreme Court in Rule 4:36-3(b):

         An initial request for an adjournment for a
         reasonable period of time to accommodate a
         scheduling conflict or the unavailability of
         an attorney, a party, or a witness shall be
         granted if made timely in accordance with
         this rule.    The request shall be made in
         writing stating the reason for the request
         and that all parties have consented thereto.
         The written adjournment request, which shall



                               19                        A-5273-13T3
            be submitted to the civil division manager,
            shall also include a proposed trial date,
            agreed upon by all parties, to occur as soon
            as possible after the problem requiring the
            adjournment is resolved.   If consent cannot
            be obtained or if a second request is made,
            the court shall determine the matter by
            conference call with all parties.    Requests
            for adjournment should be made as soon as
            the need is known but in no event, absent
            exceptional   circumstances,    shall    such
            request be made later than the close of
            business on the Wednesday preceding the
            Monday of the trial week.    No adjournments
            shall be granted to accommodate dispositive
            motions returnable on or after the scheduled
            trial date.

            [(emphasis added).]

    Here,       the   judge     denied       defendant's      request    for    an

adjournment under the mistaken belief that only the Presiding

Judge of the Civil Division had the authority to decide the

application.      The plain language in Rule 4:36-3(b) does not

confer    the   authority     to   adjourn        cases   exclusively    to    the

Presiding Judge of the Civil Division.               Indeed, when the Supreme

Court     intended     to      confer        a     specific     case-management

responsibility to the Presiding Judge of a Division, it did so

using    straightforward      unambiguous        language.    Cf.   R.   3:9-3(g)

("After the pretrial conference has been conducted and a trial

date set, the court shall not accept negotiated pleas absent the

approval of the Criminal Presiding Judge based on a material

change of circumstance, or the need to avoid a protracted trial




                                        20                               A-5273-13T3
or   a    manifest    injustice.")          (emphasis     added).        The   customary

practices        developed     in    any    particular        vicinage    cannot     take

precedent over a Supreme Court rule.

         When   the   controversial         case    management       reforms   known    as

"Best Practices" were implemented more than fifteen years ago,

there     were    many   members       of   our     State's    legal     community     who

questioned whether strict enforcement of procedural rules would

undermine the judiciary's commitment to fairness and flexibility

to respond to unforeseen events.                     Our distinguished colleague

Judge     Pressler,      one    of    the   key     figures    who    supported    these

reforms, never lost sight of the fundamental principles that

must always guide judicial decisions.

                The Best Practices rules were designed to
                improve the efficiency and expedition of the
                civil litigation process and to restore
                state-wide uniformity in implementing and
                enforcing discovery and trial practices.
                They were not designed to do away with
                substantial justice on the merits or to
                preclude rule relaxation when necessary to
                secure a just determination.

                [Tucci v. Tropicana Casino & Resort, Inc.,
                364 N.J. Super. 48, 53 (App. Div. 2003)
                (internal citations omitted).]

         Here, the denial of defense counsel's application for "a

brief     adjournment"         of    the    trial    to   accommodate      defendant's




                                             21                                 A-5273-13T3
medical      condition4      that    occurred      two     court     days     before      the

scheduled trial date constituted reversible error because it was

predicated on an erroneous understanding by the trial judge of

his   authority       under       Rule   4:36-3(b).         Most     importantly,         the

denial      of     the     adjournment         under     these     circumstances          was

inconsistent        with    the     fundamental        principles     of    justice       and

fairness      that    must    guide      all    judicial        decisions.         We   also

disagree with the trial judge's assessment of the prejudice to

defendant by her inability to attend the trial.                            Defendant was

the   only       witness    who    could    have       provided    the     jury    with    an

alternative        account    of     what      caused     the     accident,       and   more

particularly, the severity of the impact.

      The     appellate       record       includes       four     color     photographs

depicting the condition of defendant's car after the accident.

Defendant provided these photographs to plaintiff in the course

of discovery.            These photographs show defendant's car did not


4
  The appellate record includes a letter dated May 12, 2014,
written and signed by Dr. Andras Peter, addressed "to whom it
may concern," in which Dr. Peter states that defendant was under
his medical care. She was hospitalized from May 1, 2014 to May
5, 2014, and treated for "congestive heart failure." Dr. Peter
requested to "[p]lease excuse her absence from court."     We are
compelled to highlight that the letter is dated six days after
the trial ended, and was thus not available to the trial judge
at the time he denied defense counsel's request to adjourn the
trial.   That being said, the judge should have granted defense
counsel's request because defendant's unavailability satisfied
the "exceptional circumstances" standard under Rule 4:36-3(b).



                                            22                                     A-5273-13T3
sustain        any    visible      damage,      thus     corroborating        her

characterization       of the impact as being nothing more than a

relatively minor bump.          However, defense counsel was not able to

introduce these photographs into evidence because defendant was

not available to authenticate them and testify as to when they

were taken.

    Given the excessiveness of the jury's compensatory damages

award,    it    is   reasonable   to   conclude    the   jury   may   have   been

unduly influenced by the one-sided account of the severity of

the collision.         Had defendant been permitted to testify, her

account may have provided the balance necessary for the jury to

produce a reasonably sustainable verdict.

                                       III

    Plaintiff's counsel's misrepresentations to the jury in his

opening    statement     exacerbated     this     prejudice     and   improperly

capitalized on defendant's involuntary absence from the trial.

Specifically, plaintiff's counsel made the following comments in

the course of his opening statement:

               The defendant, if she testifies, will admit
               that she did indeed hit my client in the
               rear.   So by her own testimony she's going
               to admit to you that she failed to meet her
               responsibility, that's how this accident
               happened. And as a result of that collision
               my client suffered injuries.




                                        23                              A-5273-13T3
       At the time he made these representations to the jury,

plaintiff's counsel knew defendant was not testifying at trial

due to her medical condition.       Furthermore, because he did not

take   defendant's   deposition,   the   only   version   of   defendant's

account of the accident plaintiff's counsel had was in the form

of her responses to plaintiff's interrogatories.          Defendant gave

the following response when asked "to describe in detail [her]

version of the accident":

           I was on Route 18 North and I had stopped at
           a red light. The light turned green and the
           car in front of mine began to proceed
           forward. That car then stopped suddenly and
           I impacted the rear of the vehicle.

       Pursuant to Rule 1:7-1(a), a "plaintiff in a civil action,

unless otherwise provided in the pretrial order, shall make an

opening statement."      (Emphasis added).       Thus, as our Supreme

Court has made clear, "[o]pening statements are mandatory . . .,

unless the pretrial order provides otherwise."            Passaic Valley

Sewerage Comm'rs v. Geo. M. Brewster & Son, Inc., 32 N.J. 595,

605 (1960).     The Court has also made clear the ethical and

evidential parameters that limit what an attorney can say to a

jury in an opening statement:

           The fundamental purpose thereof is a most
           important factor in considering a question
           of legal adequacy. That purpose is to do no
           more than inform the jury in a general way
           of the nature of the action and the basic
           factual hypothesis projected, so that they



                                   24                             A-5273-13T3
            may be better prepared to understand the
            evidence.   The judge already knows what the
            case is all about from the pretrial order.
            Counsel   must  be   summary  and   succinct.
            Proposed evidence should not be detailed and
            it will be little more than an outline,
            quite frequently a fairly indefinite one by
            reason of the nature of the case. In no
            sense can it be argumentative or have any of
            the attributes of a summation. Nothing must
            be said which the lawyer knows cannot in
            fact be proved or is legally inadmissible.

            [Ibid. (emphasis added) (internal citations
            omitted).]

      Here, plaintiff's counsel's opening statements violated the

Court's clear injunction in Passaic Valley.                   By using the phrase

"if   she   testifies"      to    refer    to    defendant's        possible    trial

testimony, counsel implied defendant was in fact available to

testify,    a   prospect    he    knew     as    a   matter    of    fact   was     not

possible.         Furthermore,            counsel's       characterization           of

defendant's     version     of    the     accident     was    not    supported      by

defendant's     certified    answers       to    plaintiff's     interrogatories,

the only evidence counsel had of defendant's account of the

accident.

      In the course of his opening statement, plaintiff's counsel

also made repeated references to plaintiff's need for surgery as

opined by plaintiff's treating physicians, despite knowing, with

absolute    certainty,     that    none     of    these   physicians        would    be

testifying at trial.        Counsel told the jury that in an effort to




                                          25                                 A-5273-13T3
find   some    relief    for    his    back       pain   and   the     pain   caused   by

radiculopathy, plaintiff:

              Went to a doctor in New York, a Dr. Michael
              Dubois, at the NYU Pain Management Center.
              And that doctor did something for Joseph
              that no one had ever done before, something
              that no one even recommended to have done
              before, that's give him in - - epidural
              steroid injections.

                  . . . .

              So he actually did work for a period of
              time.   He actually had four injections in
              his back by Dr. Dubois.     Each one of the
              first three seemed to help.    Unfortunately,
              with the last one he got to a point where it
              wasn't helping anymore. So Dr. Dubois said,
              well, at this point your options are surgery
              or physical therapy to try to go on with
              where you are.    He chose physical therapy.
              He'll tell you why he didn't choose the
              surgery on his back, which I think you'll
              understand why.      So he had some more
              physical therapy.

              [(emphasis added).]

       When plaintiff's counsel made this representation to the

jury as part of his opening statement, he knew Dr. Dubois was

not going to testify at trial.                    Counsel also knew his expert

witness, Dr. Becan, would not testify or opine about surgery as

an option to treat plaintiff's back pain.

       Plaintiff's      counsel       also    mentioned        the   medical    opinion

concerning      surgery        allegedly          made    by     Dr.     Schenker,       a

neurologist, whom counsel claimed "found that [plaintiff] had a




                                             26                                 A-5273-13T3
severe acute right-sided L-5 radiculopathy."          Finally, as an

example of the most egregious form of improper comment in an

opening statement, plaintiff's counsel informed the jury:

         Here, Mr. Berkowitz, because that's exactly
         what he was having, he was having lower back
         pain radiating right into his right leg. So
         exactly what he was complaining about is
         what the neurologist told him, confirmed for
         him is what his problem was.

         The only problem was no one could do
         anything for him except surgery. And he had
         a choice to make then.    It's you have the
         surgery, or try to live with it. And that's
         what he's tried to do since. He's tried to
         deal with it. It affected him at home; it's
         affected him at work.

         [(emphasis added).]

    At the time plaintiff's counsel represented to jury that

plaintiff had been told by a neurologist that his only options

were to live with lower back pain or have surgery, counsel knew

he would not present any competent expert testimony to support

this claim.   Such a deliberate misrepresentation of the evidence

he expected to produce at trial constitutes a violation of the

duty of candor an attorney is bound to follow in an opening

statement.    The   Supreme    Court   expected   nothing   less   than

absolute adherence to this duty when it emphatically proclaimed

nearly fifty-six years ago in Passaic Valley, supra: "Nothing

must be said which the lawyer knows cannot in fact be proved or

is legally inadmissible."     32 N.J. at 605; see also Szczecina v.



                                  27                          A-5273-13T3
PV Holding Corp., 414 N.J. Super. 173, 178 (App. Div. 2010).

The     prejudice        caused     by     plaintiff's        counsel's     material

misrepresentations         to     the     jury     in   his    opening     statement

compounded the inadmissible, opinion-based testimony the jury

heard numerous times from plaintiff in the course of his direct

testimony.

                                           IV

      Finally,      we    address       defendant's     argument    attacking      the

validity of the jury's verdict awarding compensatory damages of

two million dollars as excessive.                 Although we agree the jury's

verdict is excessive and therefore invalid, we are bound to

describe the analytical principles that have lead us to this

conclusion.

      The fundamental purpose of tort law                     is to ensure "that

wronged persons should be compensated for their injuries and

that those responsible for the wrong should bear the cost of

their    tortious    conduct."           People    Express     Airlines,    Inc.    v.

Consol.   Rail   Corp.,      100    N.J.    246,    255   (1985).     Our    State's

Constitution and our principles of common law also guarantee a

party injured by the tortious conduct of another the "right to

have a jury decide the merits and worth of her [or his] case."

Johnson v. Scaccetti, 192 N.J. 256, 279 (2007).                       Indeed, our




                                           28                               A-5273-13T3
State's Constitution provides that: "The right of trial by jury

shall remain inviolate. . . ."   N.J. Const. art. I, ¶ 9.

    In Johnson, supra, Justice Albin explained how our system

of civil justice provides monetary compensation to those who

have been injured by the negligence of others.

         Our civil system of justice places trust in
         ordinary    men     and    women    of    varying
         experiences and backgrounds, who serve as
         jurors,   to    render    judgments    concerning
         liability and damages.         Determining just
         compensation     for    an    accident    victim,
         particularly    when    the   damages   are   not
         susceptible to scientific precision, as in
         the case of pain and suffering damages,
         necessarily   requires     a   high   degree   of
         discretion. That is so because there is no
         neat   formula    for    translating   pain   and
         suffering into monetary compensation.

         [192 N.J. at 279-80.]

    As the trial judge did in this case, judges instruct jurors

in a civil case using standardized language that emphasizes the

imprecise nature of a process that seeks to quantify human "pain

and suffering" in monetary terms.

         The law does not provide you with any table,
         schedule or formula by which a person's pain
         and suffering disability, loss of enjoyment
         of life may be measured in terms of money.
         The amount is left to your sound discretion.
         . . .      You each know from your common
         experience the nature of pain and suffering,
         disability, impairment and loss of enjoyment
         of life and you also know the nature and
         function of money. The task of equating the
         two so as to arrive at a fair and reasonable
         award of damages requires a high order of



                                 29                          A-5273-13T3
            human judgment.  For this reason, the law
            can provide no better yardstick for your
            guidance than your own impartial judgment
            and experience.

            [Id. at 280 (quoting Model Jury Charge
            (Civil) 8.11E "Disability, Impairment and
            Loss of the Enjoyment of Life, Pain and
            Suffering" (December 1996)).]

    We thus approach any challenge to the decision reached by a

jury in the area of monetizing human "pain and suffering" with

great    trepidation   and     deference.        As   judges,   we    are    not   at

liberty to substitute our judgment for that of the jury merely

because we would have reached a different outcome.                         Baxter v.

Fairmont Food Co., 74 N.J. 588, 598 (1977).                 Neither the trial

judge nor us as appellate judges are legally entitled to assume

the role of "a thirteenth and decisive juror."                    Ibid. (quoting

Dolson v. Anastasia, 55 N.J. 2, 6 (1969)).                Indeed, our role as

appellate judges is further circumscribed by the deference we

owe to the trial judge's "'feel of the case,' given that, on

appeal, review is confined to            'the cold record.'"                Johnson,

supra, 192 N.J. at 282 (quoting Baxter, supra, 74 N.J. at 600).

    In He v. Miller, 207 N.J. 230, 251 (2011), the Supreme

Court used the trial court's decision to grant the defendant's

motion for remittitur as an opportunity "to explain in more

detail    both   the   basis    on   which   a    trial   court      may    rely   in

ordering remittitur and the level of detail that the court must




                                       30                                   A-5273-13T3
include in its explanation of the reasons for its decision to

grant   that    remedy."       Here,     because       the   trial     judge    denied

defendant's motion for remittitur, we will limit our review to

determining whether the judge's decision to uphold the jury's

damage award is supported by the evidence presented at trial as

well as the relevant legal principles governing the exercise of

the court's authority.

      The Court in He directed trial courts to afford the parties

the   opportunity   to     educate      the    judge     about   the    reasons      why

remittitur, or alternatively upholding the jury's verdict, is a

legally   sustainable        outcome.         Id.   at   254.     This    education

consists primarily of providing the judge with a representative

sample of jury awards involving similar cases.                   This information

is intended to provide the trial judge with a basis for gauging

whether the award in the case is so wide of the mark it renders

its   enforceability     a    miscarriage       of     justice   under    the      law.

Ibid.     See also Mickens v. Misdom, 438 N.J. Super. 531, 538-59

(App. Div.), certif. denied, 221 N.J. 287 (2015).

      Here, the record shows the trial judge did not follow this

approach.      The judge candidly admitted he did not know "any of

the cases or the people involved in them that were cited by

either party . . . in terms of the [He] analysis [.]"                                The

record shows the judge based his decision to uphold the jury's




                                         31                                    A-5273-13T3
$2,000,000    award    on    two    principal     factors:   plaintiff's        life

expectancy (39.2 years) and his socioeconomic status.

    Despite the absence of a claim for economic damages, the

judge found that when considered in the context of plaintiff's

"lifestyle," an award of $2,000,000 was "not an absurd amount."

In reaching this conclusion, the judge considered plaintiff's

testimony     describing      how    his     injury     interfered    with       his

religious practices5 and his activity and responsibility as a

parent and spouse as factors the jury could have considered in

determining    the     reasonableness        of   the   compensatory       damages

award.        In     light    of     these      considerations,      the      judge

characterized the award as "generous," but ultimately found that

"[i]t doesn't shock [his] conscience."

    In order to overturn a jury's verdict or remit an award of

compensatory damages, a reviewing court must give "due regard to

the opportunity of the jury to pass upon the credibility of the


5
  As part of his analysis denying defendant's motion for a new
trial, the judge noted plaintiff

            sat here with a Kippah, and yamaka on.     I
            mean he is clearly orthodox . . . [I]t's an
            orthodox   family.     [I]t  would  not   be
            surprising for a jury to recognize that
            having to have dinner in a bedroom over
            Passover, even though it's not the Seder, is
            indicative of something . . . somebody being
            in bad shape and that that has a ring of
            truth to it.



                                        32                                 A-5273-13T3
witnesses." R. 4:49-1(a); see also Johnson, supra, 192 N.J. at

281.     The judge must be "'clearly and convincingly' persuaded

that    it    would      be   manifestly         unjust       to     sustain     the     award."

Johnson, supra, 192 N.J. at 281.                      "The verdict must be 'wide of

the    mark'    and      pervaded     by    a    sense        of    'wrongness.'"           Ibid.

(internal citations omitted).                    We must conclude, by clear and

convincing         evidence,         that       the      verdict         "is      so     clearly

disproportionate to the injury and its sequela (here plaintiff's

pain and suffering and loss of enjoyment of life) that it may be

said to shock the judicial conscience."                        Ibid.

       Applying these high standards to the evidence presented in

this    case,       we      are     satisfied         that         the   jury's        award     of

compensatory damages cannot stand.                      The record we have described

at    length    shows       this    trial       was    saturated         with   incompetent,

inadmissible opinion testimony from plaintiff that irreparably

tainted      the    jury's        ability   to        reach    a     sustainable        verdict.

Defendant's involuntary absence from the trial compounded this

prejudice by leaving the jury without a countervailing account

of the severity of the accident.

       We reach this conclusion mindful that "we repose enormous

faith in the ability of juries to equate damages with dollars to

'make the plaintiff whole, so far as money can do.'"                               He, supra,

207    N.J.    at     248     (quoting      Model       Jury        Charge     (Civil)      8.11E




                                                33                                       A-5273-13T3
"Disability, Impairment and Loss of the Enjoyment of Life, Pain

and Suffering" (December 1996)).              We also reaffirm our duty to

respect and whenever possible defer to the trial judge's "feel

of the case" because "trial judges see much that juries do not."

Mickens, supra, 438 N.J. Super. at 538-539 (quoting He, supra,

207   N.J.   at   254).      Most    of       all,   we   acknowledge    our   own

shortcomings      as   reflected    in    the    timeless    wisdom     of   Chief

Justice Hughes's admonition in Baxter, supra, 74 N.J. at 596-97:

             While sometimes difficult of application to
             a given factual base, these rules recognize
             that all judges, whether trial or appellate,
             are human and that the judgment of each is
             inevitably affected by subjective prejudices
             or predispositions relating to properties or
             specific tendencies of the individual mind,
             as distinguished from general or universal
             experience.       These   natural   subjective
             inclinations derive from the particular
             background or experience of the individual
             judge, whether from tenure on the bench in
             examining or recalling other cases, from
             previous activity in law practice in diverse
             fields or, for that matter, from any human
             experience, such as a youthful background of
             poverty or wealth or the like.            Such
             individuality of approach extends of course
             to the field of admeasuring damages flowing
             from injuries caused by negligence, as in
             the present case, or other wrong.        It is
             for the merging of such individualized
             propensities of mind into an amalgam of
             common judicial experience related to the
             doing of justice that judges are admonished
             to   resist   the    natural   temptation   to
             substitute their judgment for that of the
             jury.

             [(footnote omitted).]



                                         34                              A-5273-13T3
    Viewing the competent evidence presented at trial in the

light most favorable to plaintiff, we are thoroughly convinced

that allowing the jury's damage award to stand would constitute

a clear miscarriage justice.     Furthermore, because defendant was

wrongly denied her day in court, we also vacate the judge's

directed verdict on liability.

    Reversed and remanded for a new trial on both liability and

damages.




                                 35                        A-5273-13T3
