                                NOT FOR PUBLICATION WITHOUT THE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-2810-18T3

JENNIFER THOMPSON
and JOHN THOMPSON,

          Plaintiffs-Appellants,

v.

LIBERTY MUTUAL
INSURANCE COMPANY,

          Defendant,

and

ALLSTATE INSURANCE
COMPANY,

     Defendant-Respondent.
________________________

                    Submitted March 31, 2020 – Decided July 1, 2020

                    Before Judges Hoffman and Firko.

                    On appeal from the Superior Court of New Jersey, Law
                    Division, Ocean County, Docket No. L-1727-16.
             Maggs, McDermott & Dicicco, LLC, attorneys for
             appellant (James A. Maggs, of counsel; Victoria J.
             Adornetto, on the briefs).

             Hoagland Longo Moran Dunst & Doukas, attorneys for
             respondent (Richard J. Mirra, on the brief).

PER CURIAM

       On December 14, 2012, an Acura MDX driven by Jonathan Judson

collided with a Mercury Grand Marquis driven by plaintiffs' daughter. As a

result of the collision, plaintiff 1 – a belted front-seat passenger in her daughter's

vehicle – sustained injury. After settling with Judson for the policy limits of the

insurance covering the MDX, plaintiffs presented a claim for underinsured

motorist (UIM) compensation to their auto insurance carrier, Allstate Insurance

Company (Allstate). Pursuant to the Automobile Insurance Cost Reduction

Act,2 Allstate's policy contained a provision requiring plaintiff to show she

suffered a permanent 3 injury in order to recover noneconomic damages.


1
  In this opinion, we refer to Jennifer Thompson individually as plaintiff, and
Jennifer and John Thompson collectively as plaintiffs. Plaintiff's husband sues
per quod.
2
    N.J.S.A. 39:6A-1.1 to -35.
3
 As defined in N.J.S.A. 39:6A-8(a), "An injury shall be considered permanent
when the body part or organ, or both, has not healed to function normally and
will not heal to function normally with further medical treatment."


                                                                              A-2810-18T3
                                          2
      Unable to resolve their UIM claim, plaintiffs filed suit against Allstate. 4

After Allstate stipulated liability, the matter proceeded to trial before a jury on

the issues of proximate cause and damages.           On January 17, 2019, at the

conclusion of a three-day trial, the jury returned a unanimous verdict, finding

plaintiffs did not prove that plaintiff sustained a permanent injury that was

proximately caused by the December 14, 2012 accident. Based on the jury's

verdict, the trial judge entered a "no cause" order of dismissal. This appeal

followed, with plaintiffs contending that erroneous evidentiary rulings resulted

in harmful error. We agree, and therefore reverse the dismissal order, reinstate

plaintiffs' complaint, and remand for a new trial.

                                        I.

      We derive the following facts from the trial record. We first address the

happening of the accident and then plaintiff's injuries.

      A. The Accident.

      The accident occurred when the Grand Marquis driven by plaintiffs'

daughter stopped for a red light in the westbound lane of Route 70, at its



4
  Plaintiffs also asserted a UIM claim against Liberty Mutual Insurance
Company, the insurer of the Grand Marquis. The trial court granted Liberty
Mutual's motion to dismiss in lieu of a responsive pleading.


                                                                           A-2810-18T3
                                        3
intersection with Lake Ridge Boulevard, in Toms River. According to plaintiff,

after her daughter brought the vehicle to a complete stop for the red light, the

MDX struck them from behind; as a result of the impact, the Grand Marquis

"jolted forward."

      Plaintiff recounted that after Judson "exchanged words" with her

daughter, he "[got] in his car, [went] around us[,] and [left] the scene." Plaintiff

and her daughter then pulled off into a nearby parking lot and called the police.

      According to Judson, the Grand Marquis "made a complete stop at a

yellow light and [he] didn't have time to react." He tried to swerve around it,

but "end[ed] up clipping her bumper just enough where it tapped her car . . . ."

Judson estimated his speed at the point of impact at "[n]o more than ten miles

an hour, no more than ten." 5 Judson testified that, after the collision, he and

plaintiff's daughter got out of their vehicles and exchanged words. He claimed

he provided his name to plaintiff's daughter but lost sight of her car after it pulled

away. Instead of searching for her car, Judson continued to his destination.

      Patrolman Sean Smith of the Toms River Police Department responded to

the scene, where he spoke with plaintiff and her daughter. He recorded his



5
  At his deposition, Judson estimated his speed at the time of impact "[p]robably
like [fifteen] to [twenty] miles an hour if that."
                                                                              A-2810-18T3
                                          4
observations in a written police report, noting, "Rear end damage was observed

to [the Grand Marquis].        No injuries were reported by the driver or

passenger . . . ." Patrolman Smith offered to call an ambulance for plaintiff, but

she declined.

      Provided with the license plate number of the MDX, the next day

Patrolman Smith proceeded to an address in Lakewood, where he found the

Acura involved in the accident. He observed "[m]inor damage . . . to the front

of the vehicle." He testified that "minor damage" usually indicates "cosmetic

damage" or "non-disabling" damage.

      Patrolman Smith spoke to the owner of the MDX, who told him that

Judson drove the Acura the day before. After phoning Judson and hearing his

version of events, Patrolman Smith issued traffic citations charging him with

leaving the scene of an accident, N.J.S.A. 39:4-129(b), and careless driving,

N.J.S.A. 39:4-97.

      Plaintiff's husband testified that his daughter called him and informed him

of the accident. He came to the scene and drove plaintiff home, with their

daughter following in her car. Shortly after arriving home, plaintiff's husband

drove her to the Ocean Medical Center emergency room.




                                                                          A-2810-18T3
                                        5
      After answering questions about his wife's injuries, plaintiff's husband

testified that he took the Grand Marquis to a body shop and personally monitored

the repairs. At that point, Allstate's attorney asked to be heard at sidebar, where

the following exchange occurred:

            [ALLSTATE'S ATTORNEY]: I'm not quite sure where
            this is going. The vehicle was repaired by . . . Atlantic
            Auto Body. There is no witness named from Atlantic
            Auto Body that's coming here. I don't know if
            [plaintiff's attorney] intends to get into with this witness
            what repairs were done but there needs to be some type
            of expert to say, here is what repairs were done related
            to any damage cause by this accident. This witness can
            testify what his observations are, but he's not an expert
            witness.

            [PLAINTIFFS' ATTORNEY]: He can talk about his
            observations of the car and the damage he observed
            while at the body shop.

            [ALLSTATE'S ATTORNEY]: No he can't.

                   ....

            [PLAINTIFFS' ATTORNEY]: I don't have to call [an]
            expert. [Plaintiff's husband] went to the site, he saw the
            bumper removed, he saw the undercarriage damage, he
            saw the damage to the frame . . . . They were repairing
            the frame, they repaired the trunk. If [Allstate is] going
            to put in pictures of just the bumper, then it's highly
            prejudicial to leave out the fact that there is damage
            completely behind [the bumper] –

            [THE COURT]: But you need an expert.


                                                                           A-2810-18T3
                                         6
                  ....

            [PLAINTIFFS' ATTORNEY]:             He can discuss his
            personal observations.

            [THE COURT]: But it's too speculative as to what
            caused it. He's saying, they opened up the bumper and
            I saw this. How does he know what caused it?

                  ....

            [PLAINTIFFS' ATTORNEY]: . . . . [Allstate] wants to
            put in pictures of the bumper and say it was a tap and
            minimal damage. It's highly prejudicial if you [keep]
            out the rest of the – the remainder of the pictures that
            show that that was not the extent [of the damage].

                  ....

            [THE COURT]: . . . . No. [He] can't testify. He's not
            an expert to testify to that and you had ample
            opportunity . . . to get an expert for that. It would have
            been so easy for you to get an expert for that. I'm not
            going to do this, no way. In the 12th hour [you] put him
            on to say they took off the bumper and I saw this
            cracked. It's too speculative. Sorry.

After the sidebar ended, the judge then announced, "I'm sustaining the

objection." He did not provide the jury with any explanation or instruction

regarding his ruling.

      Based upon the court's ruling, plaintiffs' attorney did not question

plaintiff's husband any further about the observations he made when the bumper

was removed from the Grand Marquis, nor did she attempt to have him identify

                                                                         A-2810-18T3
                                        7
photos he took during the process. Consequently, the jury did not hear the

observations made by plaintiff's husband6 at the body shop nor did they get to

view photographs of the damage behind the rear bumper.

      After plaintiffs rested, Allstate called Judson as a witness and he provided

the previously described testimony that he "tapped" plaintiffs' car and that the

impact and damage were minor. Over objection,7 the trial judge allowed Judson


6
  After convincing the judge to preclude testimony regarding the monitored
repairs of the Grand Marquis, Allstate's attorney then brought out, on cross -
examination, that plaintiff's husband had been employed by Plymouth Rock
Insurance Company for the previous fourteen years. He described his position
as an administrator for the company's Direct Repair Program, meaning "I'm
responsible for our repair facilities."
7
   In her objection, plaintiffs' attorney argued it would be "highly prejudicial"
for the court to allow Allstate to allow Judson to identify and discuss
photographs relating to the post-accident damage to the Grand Marquis, after
precluding plaintiff's husband from testifying regarding the observations he
made at the body shop; in addition, she cited the absence of any photographs
depicting the damage to the Acura. The judge overruled the objection without
explanation. He then asked plaintiff's attorney if she wanted him to charge the
jury, at that point, in accordance with Model Civil Jury Charge 5.34 (Property
Damage In Motor Vehicle Accidents). She responded yes and the judge advised
the jury:

                  In some accidents resulting in extensive
                  vehicle damage[,] the occupants may suffer
                  minor injuries or no injuries at all. In other
                  accidents where there is no or little
                  apparent vehicle damage[,] the occupants
                  may suffer serious injuries.


                                                                          A-2810-18T3
                                        8
to authenticate multiple photographs of the Grand Marquis with the rear bumper

still intact and testify that he only caused a "scratch" to the right side of the

vehicle's bumper. While the photographs apparently also showed damage to the

left rear brake light and misalignment of the trunk, Judson testified that this

other damage "had to [have] been [pre-existing], unless I hit the car at [forty]

miles an hour."

      B. Plaintiff's Injuries.

      At the emergency room, plaintiff presented with complaints involving her

neck, back and right wrist. According to plaintiff, "They took x-rays of my right

wrist. . . . They gave me a brace and a sling. They also took x-rays of my neck,

as I told them I was in a prior accident and had hardware. They wanted to make

sure the hardware was not affected . . . ."       Plaintiff was released with a

recommendation for follow-up care.




                   In reaching your decision in this matter[,]
                   you are to give the photographs whatever
                   weight you deem to be appropriate. [They
                   are] but one fact to be considered, along
                   with all other evidence[,] in determining
                   whether the plaintiff sustained injuries as a
                   result of the accident.




                                                                         A-2810-18T3
                                        9
      Six days later, plaintiff went for follow-up care with Dr. Hoan-Vu

Nguyen, M.D.,8 a board certified orthopedic surgeon with a sub-specialty in

spinal surgery. According to Dr. Nguyen, plaintiff reported complaints relating

to her "neck, her right wrist, her upper back and her lower back." Initially, he

prescribed conservative treatment in the form of physical therapy and a wrist

splint. When plaintiff's symptoms persisted, Dr. Nguyen sent her for an MRI of

her lumbar spine in April 2013, approximately four months after the accident.

He read the MRI as showing "a [disc] herniation at L5-S1 . . . a central herniation

with associated annular tear."      Dr. Nguyen also sent plaintiff to another

physician in his practice, Dr. Meyers, who performed epidural injections, facet

injections, and radiofrequency ablation at L4-L5 and L5-S1.

      Dr. Nguyen sent plaintiff for a second MRI of her lumbar spine in

September 2014. He interpreted the MRI as showing "more compression on the

nerve root . . . at L4-L5." He stated that plaintiff continued to receive pain

management treatment from Dr. Meyers, at that time.




8
  Dr. Nguyen previously treated plaintiff for injuries she sustained in an April
25, 2008 motor vehicle accident. Dr. Nguyen performed cervical fusion
surgeries on plaintiff in December 2009 and June 2011. Plaintiffs settled their
case arising out of the 2008 accident five days before the accident under review.


                                                                           A-2810-18T3
                                       10
      Dr. Nguyen testified that plaintiff was hospitalized in May 2015, after she

"developed severe worsening of her pain . . . and weakness in her right leg." He

said the weakness proceeded to the point that plaintiff experienced "foot drop."

Another MRI was completed at the hospital. Dr. Nguyen interpreted the MRI

as showing that the herniation "has gotten even bigger and there's almost no

room for this nerve root." He explained that plaintiff required surgery to remove

"the compression on the nerve," and allow it to heal; otherwise, without surgery

her "foot drop would be permanent."

      On July 2, 2016, after plaintiff's symptoms failed to improve, Dr. Nguyen

performed    an   L4-L5     decompression,     laminectomy,      and   fusion    with

instrumentation. He explained the surgery involved removal of the disc and then

the insertion of rods and screws, "or else [her] back would fall apart." While

the surgery did not resolve all of plaintiff's lumbar problems, Dr. Nguyen said

it did improve her foot drop condition.

      Plaintiff testified she spent four to five days in the hospital for the surgery.

She described the first day after her surgery as "terrible," recalling "[t]he pain

. . . once everything [wore] off . . . ." She needed to use a walker for several

months after the surgery, and then a cane for several months after that. She also

received physical therapy for six months after her surgery. That therapy brought


                                                                              A-2810-18T3
                                        11
stability to her legs, eventually permitting her to walk again without a walker or

cane; however, at the time of trial, she still had "pain that goes down [her] leg."

As a result, she continued to receive active pain management treatment.

      Dr. Nguyen opined that plaintiff's lower back will never return to its pre-

accident state. He further stated that the accident caused plaintiff to sustain

trauma to her cervical spine, resulting in a contusion of the spinal cord, as

confirmed by an MRI. He also described this as a permanent injury.

      On the last day of trial, Allstate presented the testimony of its defense

medical expert, Lance Markbreiter, M.D., a board-certified orthopedic surgeon.

Dr. Markbreiter testified, "I don't do major spine surgery. I don't do fusions

such as [plaintiff] had . . . . By 1998, I stopped doing major spinal surgery." He

explained that he now performs mostly outpatient surgeries, "a lot of knees, a

lot of shoulders."

      After examining plaintiff and reviewing her medical records – including

multiple MRIs – Dr. Markbreiter issued a written report on May 29, 2017. He

opined that plaintiff's lumbar spine condition was degenerative, and that none

of the MRIs showed any disc herniations.           While he acknowledged that

plaintiff's MRIs showed "progressive pathology at the L4-L5 level," he testified

that the 2012 accident caused plaintiff to sustain only "a minor sprain to her


                                                                           A-2810-18T3
                                       12
back." He explained that the initial conservative treatment plaintiff received

and the results of her MRIs both supported his opinion that plaintiff did not

sustain any permanent injuries as a result of the 2012 accident.

      Dr. Markbreiter further testified that based upon the police report, the

accident impact "was very minor."          Notwithstanding the fact that Dr.

Markbreiter was recognized as an expert witness in the field of orthopedic

surgery, and not as an expert in accident reconstruction or biomechanical

engineering, defense counsel next elicited testimony that the severity of the

impact is "very important. The mechanism of injury, a small tap, it's almost

unheard of that one will cause a disc herniation." Apparently emboldened by

the absence of an objection to this testimony, and notwithstanding the fact that

Dr. Markbreiter did not view any accident photographs prior to issuing his

report, counsel elicited the following testimony:

            Q:    Dr. Markbreiter the jury is going to have
            photographs which they're going to be able to take into
            the jury room. I'm going to represent to you that these
            have been identified showing the rear of the Thompson
            vehicle. You just gave an opinion that you had based
            upon the collision report and the history that you had in
            terms of the minor nature of the impact. Do those
            photographs corroborate that opinion?

            A:    Yes.



                                                                        A-2810-18T3
                                      13
At this point, plaintiffs' attorney finally objected. The trial judge sustained the

objection, after noting there was not

            enough of a basis for [Dr. Markbreiter] to give an
            opinion based upon the pictures he's seeing now for the
            first time, especially with the limited amount of
            information he sees. For example, was it to the right
            side, to the left side, or to the middle, or where was
            [plaintiff] seated in the car? All of these things are a
            factor in what we call impact. I don't think he knows
            [anything] about the impact . . . just from looking at
            these pictures, are they consistent with a minor
            [impact]? Well, the jury can make that decision.

                   ....

            That's a factual question that the jury can say, but it's
            not one that he can really testify to.
            ....

            I'm going to . . . sustain the objection.

      At this point, the trial transcript indicates "sidebar ends." Inexplicably,

the judge did not inform the jury he had sustained plaintiff's objection nor did

he instruct the jury to disregard the last question and answer. Instead, Allstate's

attorney continued with his direct examination of Dr. Markbreiter.

                                        II.

      We review a trial court's decisions to admit or exclude evidence under an

abuse of discretion standard. Estate of Hanges v. Metro. Prop. & Cas. Ins. Co.,

202 N.J. 369, 383-84 (2010) (citing Green v. New Jersey Mfrs. Ins. Co., 160

                                                                           A-2810-18T3
                                        14
N.J. 480, 492 (1999)). In doing so, we grant "substantial deference to the

evidentiary rulings of a trial judge." Fitzgerald v. Stanley Roberts, Inc., 186

N.J. 286, 319 (2006) (citing DeVito v. Sheeran, 165 N.J. 167, 198 (2000)).

Accordingly, absent a showing the trial court abused its discretion, we will not

reverse a decision concerning the admission or exclusion of evidence unless we

conclude it was so wide of the mark as to bring about a manifest injustice. E &

H Steel Corp. v. PSEG Fossil, LLC, 455 N.J. Super. 12, 24-25 (App. Div. 2018)

(citing Griffin v. City of E. Orange, 225 N.J. 400, 413 (2016)).

      Under New Jersey's Rules of Evidence, all relevant evidence is

presumptively admissible. N.J.R.E. 402. Evidence is relevant if it has "a

tendency in reason to prove or disprove any fact of consequence to the

determination of the action." N.J.R.E. 401. To determine whether evidence is

relevant, courts look at "the logical connection between the proffered evidence

and a fact in issue." Verdicchio v. Ricca, 179 N.J. 1, 33 (2004) (quoting State

v. Hutchins, 241 N.J. Super. 353, 358 (App. Div. 1990)). Courts determine

"whether the evidence proffered 'renders the desired inference more probable

than it would be without the evidence.'" Ibid. (quoting State v. Davis, 96 N.J.

611, 619 (1984)).




                                                                        A-2810-18T3
                                      15
      N.J.R.E. 901 states that "[t]he requirement of authentication or

identification as a condition precedent to admissibility is satisfied by evidence

sufficient to support a finding that the matter is what its proponent claims." As

pointed out by the court in Kalola v. Eisenberg,

             [N.J.R.E.] 901 does not erect a particularly high hurdle.
             The proponent of the evidence is not required to rule
             out all possibilities inconsistent with authenticity, or to
             prove beyond any doubt that the evidence is what it
             purports to be.

                   ....

             The requirement under [N.J.R.E.] 901 is satisfied if
             sufficient proof has been introduced so that a
             reasonable juror could find that the matter in question
             is what its proponent claims.

             [344 N.J. Super. 198, 205-06 (Law Div. 2001) (internal
             citations and quotations omitted).]

      Accordingly, all that is needed to admit photographs is witness testimony

that the photograph is a fair and accurate depiction of what the exhibit purports

to show. See Brenman v. Demello, 191 N.J. 18, 21 (2007) ("The admissibility

of any relevant photograph rests on whether the photograph fairly and accurately

depicts what it purports to represent . . . ."); State v. Joseph, 426 N.J. Super. 204,

220 (App. Div. 2012) ("The authentication of photographic evidence requires a

witness to verify that it accurately reflects its subject, and to identify or state


                                                                              A-2810-18T3
                                         16
what the photograph shows.") (citing State v. Wilson, 135 N.J. 4, 14 (1994)).

However, a court may exclude otherwise admissible evidence "if its probative

value is substantially outweighed by the risk of [] undue prejudice, confusion of

issues, or misleading the jury . . . ." N.J.R.E. 403.

                                         III.

      On appeal, plaintiffs contend the trial judge erred in making his

evidentiary rulings concerning the photographs of the Grand Marquis. Plaintiffs

assert the trial judge should have allowed plaintiff's husband to testify and

introduce photographs of further damage which he observed to the car at the

repair shop. They contend this error was magnified when the judge permitted

Allstate to introduce photographs of the car following the accident, and failed

to properly instruct the jury after sustaining plaintiff's objection to Dr.

Markbreiter's improper testimony commenting on the rear bumper photograph.

      A. Evidence of Additional Damage to the Grand Marquis.

      Our review is somewhat hindered by the fact that the proposed testimony

of plaintiff's husband and any relevant photographs were not preserved , pursuant

to Rule 1:7-3. Nevertheless, it appears clear from the record what counsel

sought to elicit from plaintiff's husband. See N.J. Sports & Exposition Auth. v.

Koziol, 172 N.J. Super. 219, 221 (App. Div. 1980).


                                                                         A-2810-18T3
                                        17
      Although the parties did not request a Rule 104 hearing, we hold that it

was plain error for the trial court not to conduct an evidentiary hearing in order

to determine the admissibility of the testimony and photographs of the additional

damage that was revealed upon removal of the damaged rear bumper. See Kemp

v. State, 174 N.J. 412, 432-33 (2002). Our adversarial process assumes the court

will give the parties an adequate opportunity to be heard; if it does not, it cannot

find facts reliably. Ibid. "[T]he detailed factual record requirement, firmly

entrenched in our jurisprudence, requires adequate process at the evidentiary

stage . . . ." Ibid. In a case where causation was the central issue, evidence of

the severity of the impact to the Grand Marquis clearly had the capacity to

determine the outcome of the case.

      The record does not indicate the trial judge reviewed the deposition

testimony of plaintiff's husband or any photographs taken at the body shop.

Without reviewing this critical evidence, we are convinced the judge erred by

telling plaintiff she needed an expert and the challenged evidence was "too

speculative." While it remains possible that the outcome of a Rule 104 hearing

may produce valid reasons for excluding the challenged evidence, such an

outcome is far from certain. We note that an expert would not be required if a

jury, based on its common knowledge and experience, could determine whether


                                                                            A-2810-18T3
                                        18
there was any damage to the frame and, if so, whether it was causally related to

the accident.

      Expert testimony is not required when the subject can be readily

understood by jurors utilizing their common knowledge and experience,

provided it is not beyond the "ken of the average juror." State v. Harvey, 121

N.J. 407, 426-27 (1990). A topic is beyond the ken of the jury and requires

expert testimony to support the claim only "when the subject matter to be dealt

with 'is so esoteric that jurors of common judgment and experience cannot form

a valid judgment as to whether the conduct of the party was reasonable.'" Rocco

v. N.J. Transit Rail Operations, Inc., 330 N.J. Super. 320, 34 (App. Div. 2000)

(quoting Butler v. Acme Mkts., Inc., 89 N.J. 270, 283 (1982)). Several cases

provide examples of when expert testimony is not needed. See State v. Harvey,

121 N.J. 407, 427 (1990) (finding that neither comparison between shoe print

and proffered shoe, nor proposition that "shorter people tend to have smaller

feet" required expert testimony); Boland v. Dolan, 140 N.J. 174, 189 (1995) ("an

instrument of 'common knowledge' like an ordinary magnifying glass, generally

requires no expert testimony").




                                                                        A-2810-18T3
                                      19
      B. Dr. Markbreiter's Improper Testimony.

      We next address plaintiffs' argument that the trial judge erred in not

providing a curative instruction after sustaining plaintiff's objection. Since

plaintiffs failed to request a curative instruction at trial, plaintiffs would

normally face the burden of showing "that the failure to give such an instruction

sua sponte constitutes an error 'clearly capable of producing an unjust result.'"

State v. Mays, 321 N.J. Super. 619, 633 (App. Div. 1999) (quoting State v.

Loftin, 287 N.J. Super. 76, 97 (App. Div. 1996)). Regardless of the judge's

failure to provide a curative instruction or plaintiffs' error in not requesting one,

the plain error here was the judge's failure to announce his ruling and inform the

jury that he had sustained plaintiff's objection. As a result, the jury was allowed

to consider Dr. Markbreiter's improper testimony commenting on the rear

bumper photograph to support his opinions on causation.

      Dr. Markbreiter is not a biomechanical expert qualified to comment on

physical forces. The record contains no evidence that Dr. Markbreiter has any

background, training, or experience in biomechanics or accident reconstruction,

nor did defendant offer him as expert in these fields. Moreover, as the judge

noted in sustaining plaintiffs' objection concerning the photograph of the rear

bumper, the record lacks relevant details of the accident, including exact


                                                                             A-2810-18T3
                                        20
information regarding the damage to each vehicle, the size of each vehicle, the

speed of each vehicle, as well as information regarding the interior of plaintiff's

vehicle.

      The judge properly sustained plaintiffs' objection to Dr. Markbreiter's

testimony commenting on the extent of damage depicted in the photo of the rear

bumper of the Grand Marquis. Dr. Markbreiter did not rely upon the photo when

he prepared his report setting forth his opinions in this case, nor does the record

reflect that he possesses any expertise in biomechanics or accident

reconstruction.

      The heart of the dispute in this case was not whether plaintiff sustained a

serious injury, but rather what caused it. In that context, it was plain error for

the jury not to hear that the judge had sustained plaintiffs' objection to Dr.

Markbreiter citing the rear bumper photo as corroborating his opinion as to the

minor nature of the impact and the unlikelihood that such an impact could have

caused serious injury to plaintiff's spine.

      The jury likely accepted Dr. Markbreiter's conclusions regarding

mechanism of injury because they came from a medical expert. We therefore

conclude the failure of the trial court to sustain plaintiffs' objection on the trial




                                                                             A-2810-18T3
                                        21
record resulted in clear prejudice to plaintiffs and was "clearly capable of

producing an unjust result." R. 2:10-2.

      Because the trial court mistakenly denied plaintiff's the opportunity to

provide critical evidence regarding damage sustained by the Grand Marquis

without basis, and because of the real prospect that Dr. Markbreiter's improper

opinion testimony had an impact on the critical causation issue in the case, a

new trial is required. We therefore reverse the no cause judgment and remand

for a new trial.

      In light of the comments made by the trial judge regarding the testimony

and evidence concerning what plaintiff's husband observed at the body shop

where the Grand Marquis was repaired, which comments went considerably

beyond what was necessary to address the issue at hand and indicated he may

have prejudged the issue, we direct that the case proceed to trial before a

different judge on remand. See P.T. v. M.S., 325 N.J. Super. 193, 220-21 (App.

Div. 1999).

      Reversed and remanded. We do not retain jurisdiction.




                                                                       A-2810-18T3
                                     22
