                                NOT FOR PUBLICATION WITHOUT THE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-3994-17T1

BALDWIN L. DON, a/k/a
BALDWIN DON, and
SHIRLEY DON, his spouse,

          Plaintiffs-Respondents,

v.

EDISON CAR COMPANY,
INC., d/b/a VOLVO OF
EDISON, a/k/a EDISON
CAR CO., INC., RICHARD
BRATEMAN, GEORGE
LYNK, BONDED OIL
COMPANY, LLC, a/k/a
BONDED OIL CO. LLC,
DAVID A. SOEL, and NEW
JERSEY MANUFACTURERS
INSURANCE COMPANY,

          Defendants,

and

CELE BRATEMAN,

     Defendant-Appellant.
_____________________________
            Submitted February 11, 2019 – Decided May 9, 2019

            Before Judges Haas and Mitterhoff.

            On appeal from Superior Court of New Jersey, Law
            Division, Middlesex County, Docket No. L-0680-15.

            Connell Foley LLP, attorneys for appellant (Kathleen
            S. Murphy, of counsel and on the brief).

            Davis, Saperstein & Salomon, PC, attorneys for
            respondents (Christopher T. Karounos, of counsel and
            on the brief).

PER CURIAM

      Defendant Cele Brateman appeals the trial court's April 27, 2018 order

denying her motion for a new trial. The case arises from an August 2013 car

accident in which plaintiff Baldwin L. Don sustained personal injuries.

Defendant asserts that the jury verdict awarding $355,000 in damages to plaintiff

and $45,000 to his wife was excessive, and that the jury was unduly influenced

by the erroneous admission of hearsay testimony regarding a recommendation

for surgery by a non-testifying medical expert. That error, defendant claims,

was compounded by comments made by plaintiff's attorney in opening and

closing statements referring to the surgery. Having reviewed the record and the

governing legal authorities, we conclude that the trial court's evidentiary rulings

allowing plaintiff to testify about a treatment recommendation and his reasons


                                                                           A-3994-17T1
                                        2
for not pursuing certain courses of treatment based on a hearsay exception was

not an abuse of discretion. In addition, we find that the hypothetical question

posed to the defense medical expert did not violate the rule against the admission

of hearsay opinions as delineated in in James v. Ruiz, 440 N.J. Super. 45 (App.

Div. 2015).    Finally, to the extent that counsel's comments in summation

exceeded the purpose for which the evidence was allowed, those comments were

not clearly capable of producing an unjust result, and the verdict was otherwise

supported by the evidence. Accordingly, as more fully explained below, we

affirm.

                                        I.

      We glean the following facts from the record.         On August 7, 2013,

defendant's vehicle rear-ended a vehicle that then struck plaintiff's vehicle from

the rear. Plaintiff's personal injury action against defendant proceeded to trial

on February 20, 2018. 1 After defendant stipulated liability for the three-car rear

end collision, the matter was tried on the issues of proximate causation and

damages.


1
   Although plaintiff's complaint originally named as additional defendants
Edison Car Company Inc. d/b/a Volvo of Edison, Richard Brateman, George
Lynk, Bonded Oil Company LLC, and David A. Soel, the claims against the
foregoing defendants were disposed of on motion. Accordingly, at the time of
trial, Cele Brateman was the only remaining defendant.
                                                                           A-3994-17T1
                                        3
      During his opening statement, plaintiff's counsel commented on certain

evidence the jury could be expected to hear:

            [Plaintiff] will testify, as will the doctors, the pain
            symptoms he experiences. He will tell you that from
            August 2013 till now, the chiro [sic] didn't work, the
            PT didn't work. He had an epidural injection by Dr.
            Ragukonis, who is a certified--- Board certified pain
            management specialist. That helped a little bit, it wore
            off. Okay. He wanted to get more, there was approval
            issues. He wants to get surgery. He's scared of the
            surgery, he'll tell you. He wants to get the surgery. He
            can't get the surgery right now and hasn't been able to
            for a couple of years because of treatment that he is
            undergoing for a completely unrelated illness, nothing
            caused by the accident, but he' taking hormone therapy
            and different treatments for a cancer that he is suffering
            from. He still can't get the surgery until that's done.
            And, even then, the surgery will not – …remove the
            syrinx.

      Defense counsel objected to counsel's reference to surgery, noting that

none of plaintiff's three testifying medical experts had recommended or even

mentioned surgery.    In that regard, plaintiff's three medical witnesses had

already testified in de bene esse depositions, and none of the videotaped

testimony made any reference to surgery. Plaintiff's counsel contended that such

testimony was not hearsay as it was not offered for the truth of the matter but

"goes to [plaintiff's] state of mind and his pain and suffering" because after

discussing surgery with his doctors it "weighed on his mind" and "goes to the


                                                                         A-3994-17T1
                                        4
loss of enjoyment of life." The court sustained the objection but refrained from

instructing the jury to ignore the reference to surgery, believing it would only

serve to highlight the objected-to remarks. The court directed that plaintiff's

counsel should not comment further on the need for surgery further during his

opening statement, but reserved ruling on whether plaintiff himself could testify

about treatment options he was offered but did not pursue.

        Opening statements then continued without incident, focusing on the

primary issues in dispute: (1) whether a syrinx 2 shown on plaintiff's MRI was

caused by the accident and (2) whether plaintiff sustained a permanent injury as

a result of the accident. With regard to the second issue, defense counsel argued

that:

             In reference to his claim of permanency, I submit to
             you, ladies and gentlemen, that Mr. Don's treatment for
             this claimed injuries [sic] do not warrant a finding of
             permanent injury. Again, he treated chiropractically for
             a number of months, received one epidural for the
             complaints of pain he had. And that is the extent of any
             treatment that Mr. Don has. He has not had any
             treatment since July if 2017. And that was only three
             treatments in that year by a chiropractor.



2
  A syrinx is defined as "[a] pathologic tubular cavity in the brain or spinal cord
with a gliotic lining." Stedmans Medical Dictionary 892430 (Updated Nov.
2014). At trial, Dr. Ragukonis testified that a syrinx is "a fluid filled
abnormality within the spinal cord itself."
                                                                           A-3994-17T1
                                        5
      Due to scheduling issues, the defense medical expert, Dr. Joseph Dryer,

was taken out of turn resulting in his being the first expert to testify at trial.

Prior to his testimony, on plaintiff's voir dire of Dr. Dryer concerning his

qualifications, Dr. Dryer conceded that he was not a neurosurgeon, that only

neurosurgeons perform surgery on syrinxes, and that he had never operated on

a syrinx.   He also admitted that in his forensic work for Examworks he

performed 500 medical evaluations a year on behalf of defendants, earning a

quarter million dollars for that work.

      After the trial court nonetheless qualified Dr. Dryer as an expert, Dr. Dryer

testified as to his medical evaluation of plaintiff and his review of the medical

records. Dr. Dryer concluded that plaintiff's neurological and orthopedic

examinations were both normal, and that there was no evidence of a spinal cord

injury. Dr. Dryer did not discover any evidence of acute trauma or injury after

reviewing plaintiff's MRI.

      Dr. Dryer conceded that plaintiff's MRI revealed a syrinx in his cervical

spine. He opined that the accident did not cause the syrinx and instead, the

syrinx pre-dated the accident. Underlying this conclusion was the fact that he

found no evidence of a spinal cord injury or spinal cord compression – two

known causes of a syrinx. He also noted that a syrinx generally takes six months


                                                                           A-3994-17T1
                                         6
after an accident to develop, and "it would be very unusual" to see a syrinx

develop two months after the accident as plaintiff alleged. Ultimately, Dr. Dryer

concluded that "the syrinx has been here for his whole life and it was here before

the accident." For that reason, Dr. Dryer opined that plaintiff did not have a

permanent injury from the car accident.

      During cross-examination, plaintiff's counsel asked Dr. Dryer whether he

had reviewed an October 19, 2016 consultation note from Dr. Arginteanu, a

neurosurgeon, to Dr. Ragukonis, plaintiff's pain management doctor. Dr. Dryer

testified that he had. Plaintiff's counsel then began to pose a question which

referenced a recommendation for spinal fusion surgery by Dr. Arginteanu in that

note, which was met by a timely objection by defense counsel. During the

ensuing sidebar, defense counsel argued that the non-testifying expert's

recommendation for surgery was an inadmissible hearsay opinion and that she

would not have the opportunity to cross-examine the declarant.           Plaintiff's

counsel proffered that he would ask Dr. Dryer a hypothetical question if, based

on the position of the syrinx, a three-level spinal fusion surgery would be a

treatment option for plaintiff. The trial judge ruled that plaintiff's counsel would

be permitted to ask this question in that generic, hypothetical form.




                                                                            A-3994-17T1
                                         7
      In accordance with the court's ruling, plaintiff's counsel asked the

following hypothetical question:

            Q: So Doctor, we were talking about a – a three level
            spinal fusion. . . . From an orthopedic standpoint, would
            that be a – a potential surgery that someone with a
            syrinx in that certain area could receive?

Dr. Dryer, unaware of the court's limitation on testimony about Dr. Arginteanu's

note, asked a question in response.

            A: If you can just tell me, I – I looked at the note and
            it – it – he specified posterior versus anterior. Now if
            you said posterior, then I – I would disagree.

            Q: Only [be]cause you're asking Doctor, hang on one
            second. Posterior.

            A: Yeah, so I disagree with that.

      Following Dr. Dryer's testimony, plaintiff presented videotaped de bene esse

depositions of three medical experts:       Dr. Kevin C. Yao, a board-certified

neurosurgeon, Dr. Thomas P. Ragukonis, a board-certified pain management

specialist, and Dr. Marc Daniel, a chiropractor. Dr. Yao testified that he had

performed a medical evaluation of plaintiff. Based on his evaluation, Dr. Yao

found that plaintiff reported "no symptomology with regard to neck or back

pain" prior to the car accident, but experienced "various severe neck pain that

failed to respond to the treatment measures such as pain management and


                                                                          A-3994-17T1
                                        8
chiropractic treatment." After reviewing plaintiff's MRI, Dr. Yao noted that

plaintiff "has discogenic disease in his cervical spine meaning some degree of

disc disease where the discs are not quite normally positioned." Significantly,

Dr. Yao identified a syrinx in plaintiff's spinal cord, which could bring about

symptoms such as severe pain or difficulty moving, and noted that a syrinx could

form as "a direct consequence of having trauma to the spine." Dr. Yao noted

that plaintiff displayed these symptoms.

      Dr. Yao opined that plaintiff's syrinx was traumatically induced, and that

plaintiff's discogenic disease predisposed him to having trauma to his spinal

cord. Specifically, Dr. Yao testified that "[i]t seems within a reasonable degree

of medical certainty that [the] syrinx was caused by the trauma from the car

accident."

      In addition to opining that plaintiff's syrinx was traumatically induced, Dr.

Yao testified that the syrinx was a permanent injury and that there was no

treatment that a board-certified neurosurgeon could perform to restore plaintiff's

spinal cord back to its original state. Typically, according to Dr. Yao, a syrinx

does not disappear and either remains the same or could worsen and cause

further spinal cord dysfunction, resulting in loss of feeling, loss of strength, loss

of bladder and bowel function.


                                                                             A-3994-17T1
                                         9
      Next the jury heard the videotaped testimony of Dr. Daniels, plaintiff's

treating chiropractor. Dr. Daniels testified that plaintiff presented at this office

two days after the accident with complaints of severe pain.             During the

examination, Dr. Daniels observed inflammation in plaintiff's cervical spine, as

well as muscle spasms in his neck and back. He treated plaintiff with ice, gentle

manipulation, heat, electrical muscle stimulation, and flexion distraction

techniques. Dr. Daniels treated plaintiff about three times a week over the next

two months, but plaintiff's pain was not improving with treatment. At that point,

Dr. Daniels decided to refer plaintiff for additional diagnostic tests, including

an MRI, in addition to continuing his treatment protocol.

      After Dr. Daniels read plaintiff's MRI, he recommended that plaintiff visit a

neurologist because he had several concerns about the findings on the MRI. He

explained that plaintiff had "a manifestation of shooting pains" and felt it was

"appropriate to get other opinions." Plaintiff continued to be treated by Dr. Daniels

until July 2017, with visits gradually becoming less frequent. Dr. Daniels treated

plaintiff four or five times in 2015, five times in 2016, and three times in 2017. In

Dr. Daniels' opinion, plaintiff had sustained cervical radiculitis, panniculitis or

inflammation affecting the sacrum, herniated disc, and persistent spasm as a result




                                                                             A-3994-17T1
                                        10
of the August 2013 accident. In Dr. Daniels' opinion, these were permanent injuries.

Moreover, he testified that:

             I don't think anything is really going to dramatically
             improve [plaintiff's] condition. I don't think surgery
             will be clinically helpful or warranted, for that matter.
             And I don't think that any more treatment would really
             be helpful for this individual.

      The videotaped testimony of Dr. Ragukonis, a pain management

physician, was then played for the jury.        Plaintiff saw Dr. Ragukonis in

December 2014, sixteen months after the accident, after he failed to experience

long-lasting results from his other treatments. As part of his initial evaluation,

Dr. Ragukonis reviewed plaintiff's MRI and noted that plaintiff had a syrinx in

his spinal cord. Dr. Ragukonis initially treated plaintiff with a muscle relaxant

and anti-inflammatories, and ultimately with a surgical epidural injection. In

total, Dr. Ragukonis treated plaintiff six times between December 2014 and

December 2016.

      Dr. Ragukonis offered no opinion as to when the syrinx appeared since it

was outside of his area of expertise. He nevertheless concluded that the car

accident was the reason plaintiff developed pain and sought out medical

treatment, and that plaintiff's injuries were permanent.




                                                                            A-3994-17T1
                                        11
      Plaintiff testified about the happening of the accident. He indicated that

his vehicle was at a stop when it was hit from behind with such force that his

vehicle was pushed forward into a median. Plaintiff identified photographs

depicting the damage to his car and the other involved vehicles. Plaintiff

admitted that although he was experiencing pain and stiffness in his back and

neck, he told the police that he did not want to go the hospital. Instead, that

evening, plaintiff attempted to schedule an appointment with Dr. Nichols, his

primary care physician. Plaintiff was unable to schedule an appointment with

Dr. Nichols, so the next day, he saw another doctor at the practice and then went

to see Dr. Daniels, his chiropractor.

      Plaintiff also testified that he was examined by three neurosurgeons, Dr.

Yao, Dr. Roy Vingan, and Dr. Marc Arginteanu. Neither Dr. Vingan nor Dr.

Arginteanu testified at trial. On direct examination of plaintiff, he was asked

about treatment options that were discussed with the non-testifying

neurosurgeons.

            [Plaintiff's counsel]: Okay. And I don't want to know
            the specifics of what you discussed with Dr. [Vingan]
            regarding reading the MRI, but did you discuss
            potential treatments for your condition with Dr.
            [Vingan]?

            [Plaintiff]: Yes.


                                                                         A-3994-17T1
                                        12
            [Defense counsel]: Objection, Your Honor.

                  ....

            [Defense counsel]: He's talking about what a doctor
            told him, Your Honor.

            [The court]: That wasn't the question. It was like did
            you discuss treatment and he didn't ask what he said.
            He said did you discuss.
            [Plaintiff's counsel]: Okay without getting into the
            specifics of your discussion, what was your
            understanding of the type of treatment that you were
            looking for with Dr. [Vingan]?
            [Defense counsel]:      Objection, Your Honor.       It's a
            backdoor.
      At   sidebar,   plaintiff's   counsel   averred   that   the   Dr.   Vingan's

recommendation for surgery was only being offered to show the effect on the

listener – whether plaintiff chose to have surgery based on this recommendation

and his reasoning for his choice. Plaintiff's counsel proffered that plaintiff

would "testify that there was other medical conditions that also made [him]

uncomfortable for getting the surgery, but he is not going to say anything about

what those conditions were or even what treatment he was receiving[.]"

      Defense counsel maintained that plaintiff's "testimony in reference to a

recommendation by a non-testifying [physician], the fact of what his state of

mind was or what he heard somebody said goes right into the non-testifying

expert's opinion as to whether or not surgery was required or recommended."
                                                                            A-3994-17T1
                                        13
Defense counsel stressed that none of plaintiff's three testifying experts opined

that plaintiff required surgery, and that plaintiff was offering these

recommendations from non-testifying doctors to show the truth of the matter

asserted – that plaintiff required surgery.

      The trial court overruled the objection, reasoning:

                   I already made a determination and [plaintiff]
            will be able to testify as to what treatment he underwent
            and that he did not follow one of the treatments and for
            whatever reasons it is and especially because that goes
            in conjunction with the testimony of . . . Dr. Daniel,
            which was the plaintiff's own doctor who indicated that
            he wouldn't even recommend it because he didn't think
            it would help or something like that.
                   So, I mean there has been some information about
            surgery from Dr. Daniel and the impact or lack thereof
            that it would have on [plaintiff] and I believe that
            generic application – the generic application is
            allowable.

      In accordance with this ruling, plaintiff testified that after reviewing

plaintiff's MRI. Dr. Vingan recommended that plaintiff receive surgery on his

cervical spine. Plaintiff did not pursue the surgery "because of the risks that

were entailed and the level of pain that [he] was able to endure." Plaintiff also

testified that Dr. Arginteanu, who worked in the same office as Dr. Yao,

recommended surgery on his neck. Plaintiff wanted to pursue the surgery, but




                                                                         A-3994-17T1
                                       14
did not because he was undergoing treatment for an unrelated medical condition

at that time.

      On cross-examination, plaintiff acknowledged that he had no scheduled

appointments for any treatments or surgery for his injuries.              He also

acknowledged that his treatment since the accident was limited to three months

of chiropractic treatment three times a week, followed by sporadic visits in 2014,

2015 and 2016, when he underwent an epidural injection, followed by additional

chiropractic treatment in 2017.

      On re-direct, plaintiff's counsel asked plaintiff if he wanted to get surgery,

to which plaintiff responded that he did.       Plaintiff's counsel then asked if

plaintiff was going to get surgery once he was able, which was met by a timely

objection by defense counsel. At sidebar, the judge ruled that the question was

permissible, but directed plaintiff not to expand on the question because plaintiff

"already gave a response to why he's not able to get [the surgery] right now. "

Accordingly, when plaintiff's counsel repeated the question after the sidebar,

plaintiff testified that he would have the surgery once he was able, but did not

have a surgery scheduled. Over another objection by defense counsel, plaintiff

also testified that he felt like he needed the surgery based on his symptoms.




                                                                            A-3994-17T1
                                       15
      In addition to detailing his treatment history, plaintiff testified about the

impact the accident had on his life. Plaintiff indicated that "every day [he]

wake[s] up with tension headaches that range in pain from a level two to a level

four." He no longer engaged in certain activities that he formerly enjoyed, such

as biking or playing tennis because of the "risk of throwing [his] neck out."

Plaintiff also testified that he was either limited in being or unable to be intimate

with his wife, and that his pain affected the way he traveled and worked. In

sum, plaintiff stated that the pain he felt and the limitations from the syrinx

would impact his life moving forward.

      Plaintiff's wife testified that plaintiff was a very active person prior to the

accident, but became less active afterwards. She also indicated that plaintiff

was less social and more fatigued from the pain following the accident.

      During summations, defense counsel argued that no doctor had testified

that plaintiff required surgery for his injuries, which was met by an objection by

plaintiff's counsel:

                    You've heard testimony from plaintiff and
             plaintiff's wife that there was a recommendation of
             surgery. I submit to you, ladies and gentlemen that
             none of the doctors that testified here today, Dr. Yao,
             never recommended surgery. Dr. Ragakonis, never
             recommended surgery.           Dr. Daniels, plaintiff's
             chiropractor, in fact, even said here was no surgery that
             he would recommend nor would it benefit [plaintiff].

                                                                             A-3994-17T1
                                        16
                  The only reference you heard from surgery was
            from the plaintiff and the plaintiff's wife themselves.
            You never heard from any such doctor who
            recommended that surgery was to be performed.

            [Plaintiff's attorney]: Objection, Your Honor. I loath
            to object on closing, but we need a sidebar.

      During the ensuing sidebar, plaintiff's counsel argued that defense counsel

misrepresented the record because Dr. Dryer testified that he reviewed Dr.

Arginteanu's letter recommending surgery. The trial court directed defense

counsel to clarify to the jury that no testifying doctor had recommend surgery,

and defense counsel did so when she resumed the summation.

      Likewise, plaintiff's counsel also addressed plaintiff's need for surgery

during his summation:

                  [Plaintiff] spoke to three neurosurgeons. He
            talked to Dr. [Vingan]. . . . He talked to Dr. Arginteanu.
            He talked to the neurosurgeons, discussed what was
            going on, did physical therapy, some vitamins, some
            other meds, okay?
                  Ended up going on some pain killer's all right?
            Had to stop his activities, some normal activities.
            Ended up getting actual pain management and an
            epidural and was confirmed one hundred percent he
            needs surgery.
                  He wants surgery. There was a time he may have
            or may not have been able to do it personally but there
            was [an] issue that stopped it and now for other medical
            issues he can't for the time being.
                  But when everything gets worked out, okay, he
            needs surgery.

                                                                         A-3994-17T1
                                       17
      Defense counsel did not object to these comments.

      At the conclusion of the trial, the jury found that plaintiff sustained a

permanent injury as a result of the car accident and awarded him $75,000 in

damages for past pain and suffering and $280,000 for future pain and suffering .

The jury also awarded Shirley Don $45,000 for the loss of plaintiff's services

and consortium. On March 15, 2018, the trial court entered an order of judgment

in the aggregate amount of $400,000 plus prejudgment interest.

      Defendant moved for a new trial on March 16, 2018, arguing that the trial

court erred in allowing plaintiff and Dr. Dryer to testify about recommendations

for surgery from non-testifying medical experts, as well as allowing plaintiff's

counsel to comment on plaintiff's need for surgery during his opening statement

and summation.      Defendant contended that the testimony and comments

prejudiced the jury, and that the verdict was against the weight of the evidence. 3

      After holding oral argument on April 27, 2018, the trial court denied

defendant's motion for a new trial in an oral decision. With respect to plaintiff's

testimony relating to recommendation for surgery by non-testifying doctors, the


3
  Defendant's motion also alternatively sought remittitur of the damage award.
In response, plaintiff filed a cross-motion for additur. The trial court denied
both of these motions. Neither party challenges the denial of these motions on
appeal.
                                                                           A-3994-17T1
                                       18
trial court reasoned that the testimony was offered to show the effect on the

listener, not the truth of the matter asserted.     Additionally, the trial court

concluded that there was sufficient evidence to support the jury's verdict, and

that the verdict did not shock the judicial conscience.

      This appeal followed.

                                       II.

      On appeal, defendant contends that the trial court "erred in admitting the

finding of a non-testifying medical expert creating reversible error necessitating

the reversal of the jury verdict."      Specifically, defendant challenges the

admission of such testimony during the direct examination of plaintiff and the

cross-examination of Dr. Dryer. Defendant also argues that plaintiff's counsel

improperly commented that plaintiff required surgery for his injuries during his

opening statement and summation. Defendant maintains that the cumulative

effect of the testimony and comments tainted the jury and resulted in a verdict

that potentially included the recommendations for future surgery.

      We review the denial of a motion for a new trial under the same standard

that bound the trial court. Risko v. Thompson Muller Auto. Grp., Inc., 206 N.J.

506, 522 (2011). We will disturb the trial court's ruling only if "it clearly and

convincingly appears that there was a miscarriage of justice under the law." R.


                                                                          A-3994-17T1
                                       19
4:49-1(a); see also Risko, 206 N.J. at 521 ("[A] motion for a new trial should be

granted only where to do otherwise would result in a miscarriage of justice

shocking to the conscience of the court." (internal quotation omitted)).            A

miscarriage of justice may "arise . . . from manifest lack of inherently credible

evidence to support the finding, obvious overlooking or undervaluation of

crucial evidence, [or] a clearly unjust result." Risko, 206 N.J. at 521 (alterations

in original) (quoting Lindemuth v. Holden, 296 N.J. Super. 42, 48 (App. Div.

1996)). "On a motion for a new trial, all evidence supporting the verdict must

be accepted as true, and all reasonable inferences must be drawn in favor of

upholding the verdict." Boryszewski ex rel. Boryszewski v. Burke, 380 N.J.

Super. 361, 391 (App. Div. 2005).

      We also review a trial court's evidentiary rulings under a deferential

standard. "When a trial court admits or excludes evidence, its determination is

'entitled to deference absent a showing of an abuse of discretion, i.e., [that] there

has been a clear error of judgment.'" Griffin v. City of E. Orange, 225 N.J. 400,

413 (2016) (alteration in original) (quoting State v. Brown, 170 N.J. 138, 147

(2001)). "Thus, we will reverse an evidentiary ruling only if it 'was so wide [of]

the mark that a manifest denial of justice resulted.'" Ibid. (quoting Green v. N.J.

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


                                                                             A-3994-17T1
                                        20
                                         A.

      We first turn to defendant's contention that the trial court erred when it

allowed plaintiff to testify that Dr.'s Vingan and Arginteanu had recommended

that plaintiff undergo surgery.      It is well established that hearsay is not

admissible at trial unless an exception applies. N.J.R.E. 802. Hearsay requires

three elements: "(1) a 'statement;' (2) 'other than one made by the declarant

while testifying at the [present] trial or hearing;' and (3) offered in evidence for

its truth, i.e., 'to prove the truth of the matter asserted' in the statement ." James

v. Ruiz, 440 N.J. Super. 45, 59 (App. Div. 2015) (alteration in original) (quoting

N.J.R.E. 801(c)).

      If the statement is not offered for its truth, then by definition it is not

hearsay. State v. Long, 173 N.J. 138, 152 (2002). Thus, out of court statements

can be admissible not for their truthfulness, but to show a statement's effect o n

the listener. See Carmona v. Resorts Int'l Hotel, Inc., 189 N.J. 354, 376 (2007)

("Where statements are offered, not for the truthfulness of their contents, but

only to show that they were in fact made and that the listener took certain action

as a result thereof, the statements are not deemed inadmissible hearsay."

(quoting Russell v. Rutgers Cmty. Health Plan, 280 N.J. Super. 445, 456-57

(App. Div. 1995))).


                                                                              A-3994-17T1
                                         21
      Therefore, some statements are "not objectionable as hearsay . . . [because

they] are offered to explain plaintiff's actions, and not for the truthfulness of

their content." Jugan v. Pollen, 253 N.J. Super. 123, 136-37 (App. Div. 1992)

(holding that statements made to plaintiff regarding the limitations of his activity

were not hearsay when "offered to prove offered to prove that plaintiff limited

his activity based upon advice given to him."). Such an out-of-court statement,

however, "frequently has an impermissible hearsay aspect as well as a

permissible non-hearsay aspect." Spragg v. Shore Care, 293 N.J. Super. 33, 57

(App. Div. 1996). Thus, "the rule generally is to admit such evidence with a

limiting instruction, unless the probative purpose of the statement is

substantially outweighed by the danger of its improper use." Ibid.

      Applying these standards, we conclude that the trial court did not exceed the

bounds of its discretion when it permitted plaintiff to testify about the

recommendations for surgery for the purpose of showing that the statements were in

fact made and that plaintiff took certain actions in response. Even assuming that the

evidence had a hearsay component, when a statement has both an impermissible

hearsay aspect and a permissible non-hearsay aspect, a court should generally "admit

such evidence with a limiting instruction, unless the probative purpose of the

statement is substantially outweighed by the danger of its improper use." Spragg,


                                                                             A-3994-17T1
                                        22
293 N.J. Super. at 57. Here, the MRI scan finding of a syrinx was undisputed

and the statements did not pertain to the central disputed issue of causation.

Rather, plaintiff simply testified that he was provided with a treatment option

and the reasons he did not pursue the treatment at the time. Although this

testimony suggests that plaintiff required surgery for his injuries, it more

directly goes to the effects of the recommendations on plaintiff – namely, that

he had not yet followed through with surgery because of the risks entailed and

the other treatment he was receiving for an unrelated illness, but that he would

consider undergoing surgery in the future. 4 Defense counsel ably countered this

testimony on cross-examination and closing by pointing out that no surgery was

scheduled.

      For these reasons, in the circumstances presented in this case, we find that

the trial court's ruling that plaintiff could testify to the recommendations for

surgery does not amount to "a clear error in judgment" and was not "so wide [of]

the mark that a manifest denial of justice resulted." Griffin, 225 N.J. at 413.

Because we find no abuse of discretion in allowing plaintiff to testify about the

surgical treatment option, plaintiff's counsel's remarks in opening, which



4
  To be sure, the trial court could have issued a limiting instruction during
plaintiff's testimony, but defendant did not request such a limiting instruction.
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accurately set forth the evidence the jury would hear, were permissible pursuant

to the court's evidentiary ruling and are therefore not a basis to reverse the

verdict.

                                     B.

      We next address defendant's contention that the trial court erred in

allowing plaintiff's counsel to elicit testimony from Dr. Dryer about Dr.

Arginteanu's treatment recommendation. Defendant contends that plaintiff's

cross-examination of Dr. Dryer ran afoul of the standards set forth in James v.

Ruiz, 440 N.J. Super. 45, requiring reversal. We disagree.

       In James, we held that an attorney may not "question[ ] an expert witness

at a civil trial, either on direct or cross-examination, about whether that

testifying expert's findings are consistent with those of a non-testifying expert

who issued a report in the course of an injured plaintiff's medical treatment" if

"the manifest purpose of those questions is to have the jury consider for their

truth the absent expert's hearsay opinions about complex and disputed matters."

440 N.J. Super. at 51. The plaintiff's expert in James opined that plaintiff's CT

scan showed a disc bulge, whereas the defendant's expert opined that there was

no disc bulge shown on the CT scan. Id. at 71. The opinion of plaintiff's expert

was consistent with that of the interpreting radiologist, who was not testifying


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                                      24
at trial. Id. at 71-72. We held that the plaintiff could not ask a medical expert

witnesses whether their reading of the CT scan was consistent or inconsistent

with that of a non-testifying radiologist, thereby utilizing the radiologist's report

as a "tie breaker" on the contested issue of whether plaintiff had disc bulges.

See ibid.

      In this case, the question posed to Dr. Dryer did not seek to establish that

his opinion was "consistent" with Dr. Argintineu's opinion; rather it simply

asked whether Dr. Dryer himself felt that a fusion was an appropriate treatment

for a syrinx.    Plaintiff's counsel did not attempt to use Dr. Arginteanu's

recommendation to show that Dr. Dryer disregarded relevant facts or to present

Dr. Arginteanu's treatment recommendation as a "tie breaker" between

competing expert opinions. In that regard, there was no "tie" to break: Dr. Yao

testified he did not believe any future treatment by a neurosurgeon would cure

the syrinx, and Dr. Daniels testified that in his opinion plaintiff would not

benefit from surgery.

      We thus conclude that the cross-examination of Dr. Dryer did not run

afoul of the standards set forth in James. The trial court correctly ruled that the

hypothetical question that was posed to Dr. Dryer was entirely permissible. See

Townsend v. Pierre, 221 N.J. 36, 58 (2015) ("The use of hypothetical questions


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                                        25
in the presentation of expert testimony is permitted by N.J.R.E. 705, provided

that the questions include facts admitted or supported by the evidence." (internal

quotation omitted)).    The oblique reference to Dr. Arginteanu's note was

engendered by Dr. Dryer's failure to respond to the leading hypothetical question

with a simple "no." Instead, Dr. Dryer asked a question in response, whether it

was a posterior or anterior fusion. The doctor then answered no, he did not agree

with that. We find no error in the trial court's evidentiary ruling, and the cursory

and indirect reference to the note by Dr. Dryer is not a basis to overturn the

verdict.

                                             C.

      Finally, we address defendant's contention that plaintiff's counsel

impermissibly argued that plaintiff needed surgery for his injuries during

summation. As detailed above, plaintiff's counsel argued in summation that

plaintiff "one hundred" percent needed surgery for his injuries . Defendant

argues that these comments improperly used the challenged hearsay from non -

testifying doctors to support that plaintiff required surgery.

      Indisputably, these comments exceeded the purpose for which the trial

court ruled the evidence admissible. Defense counsel, however, did not object

during plaintiff's summation. See DiMaria Const., Inc. v. Interarch, 351 N.J.


                                                                            A-3994-17T1
                                        26
Super. 558, 570 (App. Div. 2001) (quoting Bradford v. Kupper Assocs., 283 N.J.

Super. 556, 573-74 (App. Div. 1995)) ("The failure to object suggests that

counsel 'perceived no error or prejudice, and, in any event, prevented the trial

judge from remedying any possible confusion in a timely fashion.'").

Accordingly, we review the trial court's failure to strike these comments during

summation for plain error and will reverse only if this failure was "clearly

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

      At the outset, "[a]s a general matter, 'counsel is allowed broad latitude in

summation [and] counsel may draw conclusions even if the inferences that the

jury is asked to make are improbable, perhaps illogical, erroneous or even

absurd.'" Bender v. Adelson, 187 N.J. 411, 431 (2006) (quoting Colucci v.

Oppenheim, 326 N.J. Super. 166, 177 (App. Div. 1999)); see also Model Jury

Charges (Civil), 1.12(c), "Role of the Attorneys (approved Oct. 2009) ("In their

opening statements and in their summations [the attorneys] have given you their

views of the evidence and their arguments in favor of their client’s position.

While you may consider their comments, nothing that the attorneys say is

evidence and their comments are not binding upon you." (emphasis added)).

      In this case, defense counsel effectively discredited plaintiff's purported

need for surgery by emphasizing in summation that no testifying doctors had


                                                                          A-3994-17T1
                                      27
recommended surgery.        Although plaintiff's counsel implicitly relied on

inadmissible hearsay when arguing that plaintiff did in fact need surgery, he did

not specifically mention Dr. Vingan or Dr. Arginteanu. In other words, plaintiff

did not directly reference any challenged hearsay to refute defense counsel's

argument that only plaintiff testified that he needed surgery. Considering the

wide latitude provided to attorneys to make arguments during summation, and

mindful that defense counsel's failure to object during summation deprived the

trial judge of the opportunity to remedy any error in a timely fashion, we do not

find that plaintiff's counsel comments rise to the level of plain error.

      Moreover, we find that contrary to defense counsel's argument, the

objected-to remarks were not clearly capable of causing the jury to ignore its

duty to render a verdict based on the evidence at trial and not on speculation. In

that regard, with respect to the central disputed issue of causation, the jury had

to resolve the conflicting opinions of Dr. Yao and Dr. Dryer regarding the origin

of plaintiff's syrinx. In summation, plaintiff's counsel emphasized Dr. Yao's

superior qualifications as a board-certified neurosurgeon who is experienced

with performing spinal cord surgeries, and the fact that less than one percent of

his practice was devoted to forensic work. By contrast, Dr. Dryer is a board-

certified orthopedist who is qualified to perform surgeries on the bones around


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the spinal cord but not on the spinal cord itself, and he conducts roughly 500

defense medical examination annually earning a quarter million dollars for that

work. On this basis, the jury could reasonably find Dr. Yao's testimony more

credible than Dr. Dryer's. Furthermore, because neither Dr. Yao nor Dr. Dryer's

testimony focused on whether plaintiff required surgery, the fleeting comments

in summation regarding plaintiff's need for surgery are unlikely to have

influenced the jury's credibility determinations on these competing experts.

      With respect to damages, we likewise find no indication in the record that

the jury impermissibly awarded an excessive damages award based on the fact

the plaintiff was offered surgery for his injuries. In accordance with the model

jury charge, the trial judge instructed the jury: "The plaintiff's claim in this case

does not include any claims for medical expenses. Therefore, in determining

the reasonable amount of damages due to plaintiff, you shall not speculate upon

or include medical expenses as a part of the damages." Model Jury Charges

(Civil), 8.20(c) "Medical Expenses (Auto)" (rev. Jan. 2017). "We presume the

jury followed the court's instructions." State v. Smith, 212 N.J. 365, 409, 54

A.3d 772, 797 (2012) (citing State v. Loftin, 146 N.J. 295, 390 (1996)). Thus,

we presume that the jury did not award damages specifically for future surgical

costs and instead focused on compensating plaintiff for his pain and suffering.


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      In this regard, we uphold the trial judge's finding that the jury's award of

damages does not shock the judicial conscience. The time-unit rule, Rule 1:7-

1(b), permits an attorney to "suggest to the trier of fact, with respect to any

element of damages, that unliquidated damages be calculated on a time -unit

basis without reference to a specific sum."          Accordingly, in summation,

plaintiff's counsel pointed out that plaintiff had a life expectancy of 23.9 years,

or 209,364 hours, and asked the jury to use its "collective wisdom [to] com[e]

up with what is the value of one hour of the pain, suffering, loss of enjoyment

of life and issues that [plaintiff] has faced up until now and will fact for the rest

of his life knowing he has that syrinx." When calculated to an hourly rate, the

jury's award of $75,000 for past pain and suffering amounts to $5.63 per hour

for an eight-hour day, 5 and the jury's award of $280,000 for future pain and

suffering equals only $4.01 per hour for an eight-hour day. 6 Viewing the

evidence in the light most favorably to plaintiff, we see no reason to disturb the




5
  The date of the accident, August 7, 2013, to the last day of trial February 27,
2018, spans 1665 days. $75,000 ÷ 1,665 days = $45.04 per day. $45.04 ÷ 8
hours = $5.63 per hour.
6
  23.9 years life expectancy equals 8,733 days. $280,000 ÷ 8733 days = $32.06
per day. $32.06 ÷ 8 hours = $4.01 per hour.
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                                        30
trial court's finding that the amount of the award did not shock the judicial

conscience.

                                       D.

      In summary, we find no reason to disturb the jury's verdict and affirm the

trial court's denial of defendant's motion for a new trial. To the extent we have

not specifically addressed any remaining arguments raised by defendant, we

conclude they lack sufficient merit to warrant discussion in a written opinion.

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

      Affirmed.




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