                                 NOT FOR PUBLICATION WITHOUT THE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-3977-17T3

GERARDINA GOMEZ and
JUAN GOMEZ, her husband,

           Plaintiffs-Respondents,

v.

ALLISON M. FRITSCHE and
JACLYNN FRISCHE,

     Defendants-Appellants.
____________________________

                    Submitted February 27, 2019 – Decided September 12, 2019

                    Before Judges Nugent and Mawla.

                    On appeal from the Superior Court of New Jersey, Law
                    Division, Middlesex County, Docket No. L-3014-16.

                    Law Offices of Viscomi & Lyons, attorneys for
                    appellants (Brittany Sadé Hale, on the brief).

                    Shamy & Shamy, LLC, attorneys for respondents (T.K.
                    Shamy, on the brief).

PER CURIAM
         This is an automobile negligence action. A jury found defendant, Allison

M. Fritsche, 100% negligent for causing an intersectional collision and awarded

plaintiff, Gerardina Gomez, $115,000. 1 Defendant appeals the denial of her

motion for a new trial. She argues the cumulative prejudice from several

errors—the trial court barring evidence plaintiff had previously sustained

permanent injuries, the investigating police officer opining on fault, the trial

court prohibiting defense counsel from objecting during plaintiff 's summation,

and plaintiff's improper closing remarks to the jury—deprived her of a fair trial.

We agree. We vacate the order entered on the verdict, and remand for a new

trial.

                                         I.

         The accident occurred on December 8, 2014, at approximately 4:42 p.m.,

in Franklin Township. Plaintiff was driving a Toyota Highlander on Easton

Avenue toward New Brunswick. Defendant, who was driving a Kia Sportage,

turned right from Castleton Avenue onto Easton Avenue toward New




1
  The trial court dismissed the complaint against Jaclynn Fritsche on summary
judgment. The jury found Juan Gomez had not proven his claim for loss of
services, society, and consortium from his wife, Gerardina Gomez. For these
reasons, we refer to Gerardina Gomez as plaintiff and to Allison M. Fritsche as
defendant.
                                                                          A-3977-17T3
                                         2
Brunswick. The vehicles collided. Neither weather nor lighting conditions

contributed to the accident. The parties disputed liability.

      Easton Avenue had two traveling lanes in each direction.             Plaintiff

testified at trial that after leaving work in Somerset, she drove on Easton Avenue

toward her New Brunswick residence for approximately twenty minutes before

the accident, all the time staying in the right-hand, curb lane. She explained:

"Yes, I was going on the right lane, straight. And this lady, I didn't see, I didn't

see her because it was very fast and she hit me." Plaintiff added: "So then I right

away took control of the car and that's why I swerved immediately to the right

because I was trying to avoid hitting the cars on the left side. And that's why I

got up on the curb."

      In contrast, defendant testified that after turning right from Castleton

Avenue onto the curb lane of Easton Avenue, the Toyota driven by plaintiff

veered quickly from the left lane, closest to the centerline, into the right lane,

catching defendant's front bumper, which was ripped off during the accident.

She explained to the jury:

            So while I was at the stop at Castleton going onto
            Easton Avenue, there were a few cars that were going
            by so I had let them go. And then from that stop, I had
            made with my signal on, had made a right onto Easton
            Avenue, with a clearance in the right lane, the left lane
            still had a few cars in it, but the right lane was clear for

                                                                            A-3977-17T3
                                         3
             me to pull through. I made a right from the stop onto
             Easton Avenue and as I was accelerating forward onto
             Easton, I had a car come across me, and impacted the
             front left of my car and ended up in front of me, up near
             the curb.

      Plaintiff called the investigating police officer as a witness.          Over

defendant's objection, the officer testified not only about what plaintiff and

defendant said at the scene, as written in his report, but also about the

conclusions he reached. He quoted plaintiff as saying "that as she traveled south

on Easton Avenue, [the vehicle driven by defendant] suddenly came out of

Castleton Ave. and crashed into her car.        [Plaintiff] indicated [defendant]

appeared to just come out into the roadway without stopping." The officer

quoted defendant as saying "that she thought it was clear to enter the roadway

and didn't see [plaintiff's vehicle]."

      The court permitted plaintiff to elicit this opinion from the officer:

             Q.    Now, as a result of your accident investigation
             and the preparation of your report, did you reach a
             conclusion relative to your investigation?

             A.    Yes.

             Q.    Okay. Can you tell us what that conclusion is?

             A.    I'll read my conclusion. The investigation
             revealed that [defendant] failed to yield to [plaintiff's
             vehicle] and was inattentive by not ensuring that the
             roadway was clear prior to entering.

                                                                           A-3977-17T3
                                         4
      On cross-examination, when confronted with the statement attributed to

her in the police report, defendant acknowledged she did not see plaintiff 's

vehicle before impact but reiterated plaintiff's vehicle came from her left.

      The parties also disputed the nature and extent of plaintiff's injuries.

Plaintiff had filed a motion in limine to preclude defendant from mentioning in

her opening statement or during her cross-examination of plaintiff anything

about two previous accidents plaintiff had been involved in, one that occurred

in 1994, and the other in 2000. Plaintiff had injured her neck and back in the

1994 accident. A doctor had written in a report that plaintiff had suf fered

permanent injuries to her neck and back and would have ongoing pain and

difficulty with both.

      The court granted plaintiff's motion.     The court determined that any

probative impeachment value of the evidence—plaintiff had previously

sustained permanent injuries to the same body parts for which she was presently

seeking compensation for permanent injuries—was substantially outweighed by

the risk of undue prejudice, "its remoteness in time, its confusion of the issues,

and it would mislead the jury."      In response to defense counsel's specific

question, the court ruled that even if plaintiff testified she never had any




                                                                          A-3977-17T3
                                        5
problems with her neck, back, or shoulder, defendant could not impeach her with

evidence of the allegedly permanent injuries she previously sustained.

      Plaintiff and her treating physician testified about plaintiff's injuries and

her course of treatment. Plaintiff testified that in the days, months, and years

leading up to the accident, she had no pain in her neck, shoulder, or back.

Plaintiff was taken by ambulance from the accident scene to a hospital

emergency room where a CT scan of her head was unremarkable. She was

treated and released. Four days later, she came under the care of Dr. David

Weiss, who is board certified in orthopedics and in performing independent

medical examinations.

      Dr. Weiss had x-rays taken of plaintiff's cervical spine, lumbar spine, and

left shoulder. They were normal. The doctor treated plaintiff for ongoing

problems involving her neck or cervical spine, her low back or lumbar spine,

and her left shoulder.    The doctor diagnosed plaintiff with post-traumatic

headaches, cervical and lumbar sprain and strain patterns, and impingement

syndrome of the left rotator cuff.

      Plaintiff's treatment initially consisted of medication and physical

therapy. Plaintiff had physical therapy through August of the following year,

2015, but during the interim, when her symptoms did not resolve, Dr. Weiss had


                                                                           A-3977-17T3
                                        6
her undergo additional diagnostic testing. December 2014 magnetic resonance

imaging (MRI) studies of plaintiff's left shoulder were negative. May 2015

MRIs of plaintiff's cervical and lumbar spine were the subject of disputed expert

testimony. Dr. Weiss testified the cervical MRIs showed herniated discs at C5-

6 and C7-T1, and the lumbar MRI showed a herniated disc at L5-S1.

      In view of the MRI findings, and because plaintiff's symptoms did not

resolve, Dr. Weiss referred her to a pain management specialist. The specialist

gave her an injection—an epidural block—in her lower cervical spine. During

Dr. Weiss's testimony, he identified a spinal needle similar to the one used for

the injection.

      Plaintiff testified she got some relief —for a few weeks—from her neck

pain from the epidural injection, but the pain eventually returned to its pre-

injection level. When she last saw Dr. Weiss in February 2016, she was still

experiencing pain in her neck, left shoulder, and her back. She continued to

experience these symptoms through the time of her trial. Due to her ongoing

problems, she had stopped lifting heavy objects at work.        In addition, she

curtailed her household and social activities. She could no longer mop or carry

groceries. She could no longer move furniture and could no longer cook as long

as she had cooked before the accident. Plaintiff had enjoyed dancing, but with


                                                                         A-3977-17T3
                                       7
her pain, if she danced once or twice at family outings, she had to sit down and

could dance no longer.

      Plaintiff also had difficulty sleeping. She said she had nightmares about

the accident. She also said that when she slept, her left arm would go numb, her

left shoulder would hurt, and her neck and the lower part of her back would also

hurt. Sometimes she would get headaches. Her intimacy with her husband was

not the same.

      Dr. Weiss testified that his final diagnosis was strain and sprain patterns

to plaintiff's neck and lower back; herniated discs in the neck at C5-6 and C7-

T1, and a herniated disc at L5-S1; radiculitis—the complaint of radiating pain

going down one's arm or leg—in both the cervical and lumbar spine; and a labral

tear to the left shoulder, as well as subacromial bursitis to the left shoulder. In

the doctor's opinion, these injuries were permanent.        Although Dr. Weiss

believed plaintiff would continue to experience episodes of neck pain, lower

back pain, and left shoulder pain, and would have some restrictions of activities

of daily living and working, he did not believe she was a surgical candidate.

      Defendant's expert, Dr. Kevin Egan, an orthopedic surgeon, had opinions

quite different from those held by Dr. Weiss. Dr. Egan examined plaintiff and

reviewed plaintiff's medical records, including the MRI studies. He did not see


                                                                           A-3977-17T3
                                        8
evidence of herniated discs on the cervical MRI studies. He did see evidence of

bulging discs. He saw no evidence of a cervical sprain or strain when he

examined plaintiff on March 7, 2017. According to Dr. Egan, the lumbar MRI

studies showed "some minimal, age-related degenerative processes at multiple

levels, particularly at L4/5." These changes were not caused by trauma.

      Dr. Egan told the jury that the treatment plaintiff received was "a normal

treatment program for a temporary soft tissue injury."       The injuries were

temporary, meaning they were treated for a while, and they resolved.            He

explained that at the conclusion of plaintiff's treatment, she became

asymptomatic and needed no additional treatment. She had excellent mobility

in her neck and back when he examined her, with no evidence of pain or

discomfort "on any of the examination components[.]"              He saw no

musculoskeletal dysfunction.    In short, there was no evidence during his

examination or in any of the medical records he reviewed to support a claim of

permanent injury.

      During plaintiff's closing argument, her attorney made several statements

defense counsel thought were objectionable.      The first time she objected,

however, the court instructed her not to object during her adversary's closing




                                                                          A-3977-17T3
                                       9
argument. The record reveals the following, beginning with the comments that

prompted the objection.

           [Plaintiff's Counsel]: Now, we talk about harm, we talk
           about responsibility for the harm. I'm just going to
           mention briefly, I, the defendant came here, she
           testified about her story and then she left. She's not here
           to see this through, ladies and gentlemen, not like the
           plaintiff, Gerardina Gomez.

           [Defense Counsel]: Objection, Your Honor.

           [Plaintiff's Counsel]: She's not.

           [Defense Counsel]: Sidebar, please.

           [Plaintiff's Counsel]: With me?

     Counsel proceeded to sidebar, where the following exchange occurred:

           [Defense Counsel]: Your Honor, I'm going to object
           during plaintiff counsel's closing however to assume
           that she is not here for any reason, you know, or to have
           them assume that she's, hasn't, she won't be because she
           doesn't want to –

                  THE COURT: First of all let me, let me lay the
           ground rules down. I should have mentioned this
           earlier, there's no objections in closing argument. Now
           that you've done it, I suggest it's, it's closing argument.
           He's entitled to argue and if he wants to put that
           inference out there and draw an inference it's fair game.
           I don't know why she's here, she's not here, but, you
           know, I don't understand the objection and it's
           overruled.



                                                                         A-3977-17T3
                                      10
      Defense counsel heeded the court's admonition. In doing so, she did not

immediately object when plaintiff's counsel suggested through a rhetorical

question that the jurors place themselves in plaintiff's situation:

            And one of the things that Dr. Weiss did for her was to
            send her for her neck pain to a pain management doctor.
            And Dr. Weiss testified for you about that procedure.

                  Do you think, [l]adies and gentlemen, people go
            to doctors to have needles like this put in their spine if
            they're not experiencing pain? Would you submit to
            having a needle of this nature put in your spine if you
            weren't having neck pain? I submit to you, ladies and
            gentlemen, you wouldn't do that. You do that because
            you're having pain, you want relief, that's the whole
            point. You don't do this just because you want to have
            somebody stick a needle in your back when you could
            potentially have a problem as a result of the procedure.
            Dr. Egan said, oh, this is an office procedure. I think
            the plaintiff and Dr. Weiss testified, it's a surgical
            procedure, this is serious stuff.

      Following the verdict, defendant filed a motion for a new trial, which the

trial court denied. This appeal followed.

                                        II.

                                        A.

      On appeal, defendant argues the trial court committed the following

errors: prohibited her from impeaching plaintiff on her prior accidents and

treatment; permitted the investigating officer to give an opinion on fault;


                                                                         A-3977-17T3
                                       11
prohibited her from objecting to plaintiff's closing argument; and permitted

plaintiff to make improper remarks during her closing argument. Defendant

contends that separately or cumulatively, the errors require reversal.         She

contends for these reasons, the trial court erroneously denied her motion f or a

new trial.

      Plaintiff responds that the court properly exercised its discretion when it

precluded plaintiff from examining either of the medical experts about her

previous accidents and injuries. She emphasizes that the investigating police

officer never used the word "fault" when he explained to the jury the conclusions

he drew from his investigation. Rather, he did little more than summarize the

statement made to him by defendant. Plaintiff insists her closing statement to

the jury does not warrant a new trial on either liability or damages.

                                       III.

      We begin by reviewing two of the trial court's rulings: the first prohibiting

defendant from presenting evidence of plaintiff's prior permanent injuries, the

second permitting plaintiff to present the opinion testimony of the police officer.

As a general matter, trial courts have considerable discretion in determining

whether proffered evidence is relevant, and if so, whether it should be excluded

under N.J.R.E. 403 because its probative value is substantially outweighed by


                                                                           A-3977-17T3
                                       12
other considerations such as the risk of undue prejudice, confusion of issues, or

misleading the jury. Wymbs v. Twp. of Wayne, 163 N.J. 523, 537 (2000). We

thus review such decisions for abuse of discretion. Estate of Hanges v. Metro.

Prop. & Cas. Ins. Co., 202 N.J. 369, 383-84 (2010). Abuse of discretion occurs

when a trial court's ruling results in "manifest error or injustice," Hisenaj v.

Kuehner, 194 N.J. 6, 20 (2008) (quoting State v. Torres, 183 N.J. 554, 572

(2005)), or when "there has been a clear error of judgment," State v. Brown, 170

N.J. 138, 147 (2001) (quoting State v. Marrero, 148 N.J. 469, 484 (1997)).

                                       A.

      We first consider under our standard of review the trial court's in limine

ruling that precluded defendant from using the contents of an old medical report

to impeach plaintiff. Defendant represented to the court that during discovery

she received a doctor's narrative report in which the doctor opined plaintiff had

"sustained a permanent injury and would have ongoing pain and difficulty with

both her neck and back" as a result of a previous accident. Defendant noted

plaintiff had testified at her deposition she was involved in only one previous

accident and the only injuries she sustained were to her right arm. Defendant

insisted she had the right not only to impeach plaintiff with extrinsic evidence,

but also to examine Dr. Weiss about plaintiff's previous accident because "Dr.


                                                                         A-3977-17T3
                                      13
Weiss note[d] [plaintiff] was involved in a prior motor vehicle accident in April,

1999."

      The introduction of such evidence presents many issues. As a threshold

matter, the report concerning injuries plaintiff sustained in a prior accident was

hearsay. Hearsay is inadmissible except as provided in our Rules of Evidence.

N.J.R.E. 802.

      There is no blanket cross-examination exception to N.J.R.E. 802. To the

contrary, "[h]earsay . . . not admissible in chief, may not be elicited by cross-

examination." State v. De Paola, 5 N.J. 1, 13 (1950). For that reason, it would

have been improper for defendant to place before the jury—through cross-

examination of plaintiff—an extrinsic, decades-old expert's opinion. Experts'

reports are statements, "but, unlike answers to interrogatories, are not statements

of a party and therefore cannot be treated as an admission simply because a party

furnished them in discovery." Corcoran v. Sears Roebuck & Co., 312 N.J.

Super. 117, 126 (App. Div. 1998) (citing Skibinski v. Smith, 206 N.J. Super.

349, 353 (App. Div.1985)). Additionally, it is improper to cross-examine a

plaintiff, who is not a medical expert, about the opinion of a medical expert. We

note that we have not been asked to review the use for impeachment purposes




                                                                           A-3977-17T3
                                       14
of statements in the old report attributable to plaintiff. That was not an issue

argued to, or addressed by, the trial court. 2

      Defendant also argued that Dr. Weiss "note[d] that [plaintiff] was

involved in a prior motor vehicle accident in April, 1999." Defendant asserted

that "because that's in his report we have every right to ask him about that." The

evident deficiency in such a conclusory assertion is its invocation of no authority

other than a self-proclaimed right.

      There is a difference between experts reviewing material on one hand, and

relying on material to form opinions on the other. Excluding examination at

trial under N.J.R.E. 403 would more likely occur in the former instance. That

is so because N.J.R.E. 703 provides that the facts or data upon which an expert

bases an opinion "need not be admissible in evidence" if such facts are "of a


2
   Nor have we been asked to address whether the trial court erred in ruling
defendant could not impeach plaintiff with evidence of the prior accident even
if plaintiff testified she had never previously been injured. Such a ruling would
appear to impede a search for the truth. We fail to discern, for example, why if,
hypothetically, plaintiff denied prior accidents or injuries, defendant could not
question her about events such as the time and location of the previous accident
and whether she received certain treatment, without placing the content of a
medical report before the jury. In any event, the record before us is not entirely
clear on this point. If the trial court intended to bar defendant from commenting
on these issues in her opening statement, so that—upon defendant's application
out of the jury's presence—the court could rule on the specific issue in the
context in which it unfolded at trial, then there was nothing inappropriat e about
the court's ruling.
                                                                           A-3977-17T3
                                        15
type reasonably relied upon by experts in the particular field in forming opinions

or inferences upon the subject[.]" If an expert has relied upon such facts or data,

the expert may be cross-examined about them. N.J.R.E. 703 may not, however,

be used as "a vehicle for the wholesale [introduction] of otherwise inadmissible

evidence." State v. Vandeweaghe, 351 N.J. Super. 467, 481 (App. Div. 2002)

(alteration in original) (quoting State v. Farthing, 331 N.J. Super. 58, 79 (App.

Div. 2000)). That would occur if an expert were permitted to be examined or

cross-examined about every document the expert reviewed, even if the expert

did not rely upon facts or data in the document to form an opinion. This presents

an issue that falls within a trial court's discretion.

      Here, exposing the old report's contents to the jury presented other

potential problems, particularly because we do not know the circumstances

under which the doctor wrote it. If plaintiff requested the report to prove she

sustained permanent injuries for which she sought compensation in a lawsuit,

the report was relevant.      After all, how many times should a plaintiff be

permitted to recover damages for the same permanent injuries to the same body

parts? Yet, if there had been a lawsuit, and if plaintiff had been examined by a

defense doctor who concluded she had not sustained permanent injuries, could

plaintiff have utilized the defense doctor's report to show there was a difference


                                                                           A-3977-17T3
                                         16
of opinion about whether she sustained a permanent injury, and thus bolstered

her testimony in the current case?

       Defendant did not intend to call as a witness the doctor who wrote the

decades-old report. She did not explain the circumstances under which the old

report had been written.      She apparently intended to impeach plaintiff by

demonstrating the medical opinion contained in the old report was inconsistent

with plaintiff's deposition testimony, and by questioning plaintiff's treating

physician about the old report, even though the treating physician did not rely

upon the facts and data in the old report to form his opinion in the present case.

       Considering all the foregoing circumstances, the trial court acted well

within its broad discretion when it prohibited defendant from utilizing the old

report at trial.

                                       B.

       We reach a different conclusion concerning the police officer's opinion.

It should not have been admitted, and the trial court misapplied both the law and

its discretion in doing so.

       In general, "a police report is admissible as a record of a regularly

conducted activity, commonly known as a business record, N.J.R.E. 803(c)(6),

and as a public record, N.J.R.E. 803(c)(8)." Manata v. Pereira, 436 N.J. Super.


                                                                          A-3977-17T3
                                       17
330, 345 (App. Div. 2014). If properly authenticated, police reports may be

admissible to show, for example, a person spoke to an officer, ibid., or that a

report of a crime was made and the time of the report, State v. Lungsford, 167

N.J. Super. 296, 310 (App. Div. 1979).

      If a proponent seeks to admit the report—or the officer's testimony to its

content—to prove the truth of a person's statement contained in the report, the

person's statement is embedded hearsay and requires a separate hearsay

exception. N.J.R.E. 805; Manata, 436 N.J. Super. at 345; Konop v. Rosen, 425

N.J. Super. 391, 402 (App. Div. 2012). Thus, a party involved in an automobile

accident cannot elicit at trial through the testimony of the investigating police

officer the statement he or she gave to the officer at the time of the accident,

absent a separate hearsay exception. Neno v. Clinton, 167 N.J. 573, 585 (2001);

Rice v. Miller, 455 N.J. Super. 90, 107 (App. Div. 2018) (noting "[i]n Neno, 167

N.J. at 585, the Supreme Court clearly prohibited the use of testimony by a

police officer as such a conduit of hearsay by other declarants").

      Our appellate courts have also proscribed the admission of police

testimony—lay or expert—on the issue of who was at fault in an automobile

accident. As a threshold matter, to present a police officer as an expert, the

officer must qualify as such under N.J.R.E. 702.         Equally important, the


                                                                         A-3977-17T3
                                      18
proponent of a police officer's expert testimony must provide proper notice of

the intent to present the officer as an expert:

                    The pretrial rules of our civil courts have specific
             requirements for parties to designate expert witnesses
             during the course of discovery. See generally R. 4:17–
             4(e) (requiring litigants to furnish opposing parties with
             the names and reports of experts and treating physicians
             who are involved in the matter); R. 4:17–7 (imposing
             an obligation for parties to amend their interrogatory
             answers "not later than [twenty] days prior to the end
             of the discovery period"). The obvious purpose of these
             disclosure requirements for anticipated experts is to
             promote fair advocacy and to discourage
             gamesmanship or unfair surprise at trial.

             [Rice, 455 N.J. Super. at 105.]

      A police officer may be permitted to express a lay opinion. Lay opinion

testimony is admissible "if it (a) is rationally based on the perception of the

witness and (b) will assist in understanding the witness' testimony or in

determining a fact in issue." N.J.R.E. 701. "The central purpose of N.J.R.E.

701 is to ensure that lay opinion is based on a sufficient foundation, and not

inadmissible hearsay." Rice, 455 N.J. Super. at 104 (citing Biunno, Weissbard

& Zegas, Current N.J. Rules of Evidence, cmt. 1 on N.J.R.E. 701 (2018)). Thus,

"lay opinion testimony is limited to what was directly perceived by the witness

and may not rest on otherwise inadmissible hearsay." State v. McLean, 205 N.J.

438, 460 (2011). For that reason, we have held that a law enforcement officer

                                                                           A-3977-17T3
                                        19
went "clearly beyond the scope of lay opinion admissible under N.J.R.E. 701"

when he expressed an opinion concerning fault for an auto-pedestrian accident

though he "had no personal observation or recollection of the accident."

Gonzales v. Hugelmeyer, 441 N.J. Super. 451, 460 (App. Div. 2015).

      It is thus settled that "a police officer cannot provide an opinion at trial

when that opinion is based primarily on the statements of eyewitnesses." Ibid.

(quoting Neno, 167 N.J. at 585). Any other conclusion . . . would allow an

officer to subvert the hearsay prohibition[.] Id. at 460-61 (quoting Neno, 167

N.J. at 585); accord, Rice, 455 N.J. Super. at 106.

      That is what happened here. Plaintiff argues that the officer never used

the word "fault." We reject this argument. Although couched in terms of his

"conclusions," the questions and answers leading up to the officer's opinion, the

question that elicited the opinion, and the officer's response, all made clear that

the officer was expressing his opinion that defendant was at fault for causing the

accident.

      Plaintiff's attorney compounded the error when he not only emphasized

the point in summation, but also suggested to the jury that defendant did not

want the jurors to hear the officer's testimony:

                   But it goes, it goes further. Police Officer Bird
            testified, counsel has a problem with Of[ficer] Bird.

                                                                           A-3977-17T3
                                       20
            You know, the plaintiff subpoenaed Of[ficer] Bird to
            come here, to tell you about his accident investigation.
            The defendant didn't want him here, the defense didn't
            want him to come and, and tell you, ladies and
            gentlemen, about how the accident happened according
            to his investigation. He came, this guy has no interest
            in this case. He's an officer, a sworn police officer
            doing his job, he doesn't . . . have any bias one way or
            another. He conducted an investigation and sure, he's
            done hundreds of reports, of course he doesn't
            remember this accident, ladies and gentlemen. If he
            did, he'd be a pretty special police officer but he doesn't
            remember and rightfully so. He reviewed his police
            report as he sat here before you and told you the results
            of his police investigation. And not only told you that
            but told you what he was told by the drivers of the
            vehicle on that particular day.

                  And you're going to have this report in evidence
            and you can see it along with his diagram of what he
            believes happened. He has in here clearly, I do not have
            my glasses but I – [defendant] stated that she thought it
            was clear to enter the roadway and didn't see vehicle
            one.

      Defense counsel "ha[d] a problem" with the officer's testimony because

the officer expressed an improper lay opinion; not because, as plaintiff's counsel

suggested, she did not want the jury to hear competent testimony concerning the

material issues in the case. The police report with the officer's opinion as to

fault, his diagram of the accident based on hearsay, and all the report's other

embedded hearsay was admitted in evidence for the jury's consideration.



                                                                          A-3977-17T3
                                       21
Defendant should indeed have objected to this evidence, which was improperly

admitted for the jury's consideration.

      Plaintiff argues the photographic evidence was compelling as to fault. If

she is suggesting that in view of other evidence the officer's improper testimony

and the improper admission in evidence of the police report were harmless, we

disagree. The parties were the only eyewitnesses to the accident. As plaintiff's

counsel suggested in summation, the officer was a neutral witness with no stake

in the case.   For that reason, and for the other reasons plaintiff 's counsel

emphasized the officer's testimony in summation, we cannot conclude the

improper admission of the officer's testimony and report were not clearly

capable of producing an unjust result. This is especially so in this case, where

the jury's assessment of even ten percent comparative negligence against

plaintiff would have reduced damages by more than $10,000.

                                         IV.

      We turn now to defendant's argument concerning plaintiff's summation.

                                         A.

      Defendant first contends the court erred by prohibiting her from objecting

during plaintiff's closing remarks to the jury.     There is precedent for the

proposition that challenging an adversarial attorney's improper closing remarks


                                                                         A-3977-17T3
                                         22
following the closing, rather than during it, timely alerts the court to the

improprieties and provides the court with an opportunity to cure them. State v.

Farrell, 61 N.J. 99, 106 (1972); State v. Bauman, 298 N.J. Super. 176, 207 (App.

Div. 1997).

      Nonetheless, a party may be precluded from claiming prejudice absent a

timely objection to improper remarks made during a closing argument. Farrell,

61 N.J. at 106. "Absence of contemporaneous objection may lead to a fair

inference that 'in the context of the trial the error was actually of no moment.'"

State v. McGuire, 419 N.J. Super. 88, 149-50 (App. Div. 2011) (quoting State

v. Nelson, 173 N.J. 417, 471 (2002)). In McGuire, in response to defendant's

claim that the judge discouraged objections during closing arguments, we noted,

"[t]o preserve a proper record, a trial judge should not admonish counsel against

making appropriate objections." Id. at 150 n.7. Moreover, the promptness of a

curative instruction is one gauge of its effectiveness. See State v. Wakefield,

190 N.J. 397, 440 (2007). A prohibition against contemporaneous objections

could result in an attorney making an unchecked string of improper and

prejudicial remarks during a closing argument.

      Although most precedent on the issue appears in the context of criminal

cases, the precedential underpinnings apply to civil cases as well.            We


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understand the concern that some attorneys might be tempted to abuse the

process by making meritless or even frivolous objections to disrupt the flow of

an adversary's closing remarks. We have confidence that our trial courts can

swiftly deal with any such abuses. We thus reiterate that a trial judge should

not admonish counsel against making appropriate contemporaneous objections.

                                       B.

      We next address defendant's objections to specific remarks plaintiff's

counsel made during closing argument.         They include the statement that

defendant did not return after testifying because unlike plaintiff, defendant did

not want to see the case through, and defense counsel's suggestion about why

the jurors would or would not have an epidural injection. As previously noted,

plaintiff's counsel also disparaged defense counsel by suggesting she had a

problem with, and did not want the jury to hear, the police officer's conclusion

about the accident.

      A common theme runs through our cases concerning closing arguments.

It is the same theme that underlies the Rules of Court and the Rules of Evidence:

cases are to be decided "upon real merits of the causes and not upon the skill

and maneuvering of counsel." Abtrax Pharm., Inc. v. Elkins–Sinn, Inc., 139 N.J.

499, 512 (1995) (quoting Oliverio v. Porter Hayden, Co., 241 N.J. Super. 381,


                                                                         A-3977-17T3
                                      24
387 (App. Div. 1990)).         Thus, "counsel is allowed broad latitude in

summation[.]" Bender v. Adelson, 187 N.J. 411, 431 (2006). Yet, though

"arguments are expected to be passionate," they may not include unfair and

prejudicial appeals to emotion. Jackowitz v. Lang, 408 N.J. Super. 495, 504-05

(App. Div. 2009).

      Arguments must be based in truth, and "[c]ounsel may not 'misstate the

evidence nor distort the factual picture.'" Condella v. Cumberland Farms, Inc.,

298 N.J. Super. 531, 534 (Law Div. 1996) (quoting Matthews v. Nelson, 57 N.J.

Super. 515, 521 (App. Div. 1959)). "Although attorneys are given broad latitude

in summation, they may not use disparaging language to discredit the opposing

party, or witness, or accuse a party's attorney of wanting the jury to evaluate the

evidence unfairly, of trying to deceive the jury, or of deliberately distorting the

evidence." Rodd v. Raritan Radiologic Assocs., P.A., 373 N.J. Super. 154, 171

(App. Div. 2004) (citations omitted).

      It is also improper to invoke the "golden rule," that is, to ask the jury to

assess what they would want as compensation as if they had suffered the injuries

or to decide the value of the case based upon what the pain and suffering would

be worth to them. Botta v. Brunner, 26 N.J. 82, 94 (1958).




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      Here, plaintiff's counsel disparaged defense counsel by suggesting she did

not want the jury to hear evidence—evidence that should not have been

admitted. Plaintiff's counsel also disparaged defendant by suggesting she did

not want to see the case through. Although plaintiff's counsel did not invoke the

"golden rule" by asking the jurors to award what they would want as

compensation, he improperly suggested that they should decide plaintiff's

credibility by considering, among other things, what their motivation would be

for undergoing certain medical treatment in similar circumstances. All of these

comments were improper. Arguably, they could have been cured following a

contemporaneous objection. Not only had the trial court prohibited that course

of action, but the court took no corrective action at all, and overlooked its error

when defendant filed her post-verdict motion.

                                        V.

      "[W]e have recognized that the cumulative effect of small errors may be

so great as to work prejudice, and we have not hesitated to afford the party

suffering that prejudice relief where it has been warranted." Pellicer ex rel.

Pellicer v. St. Barnabas Hosp., 200 N.J. 22, 53 (2009) (citations omitted). Here,

with the possible exception of the police officer's improper opinion testimony,

none of the improprieties alone would warrant a new trial. Cumulatively, they


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do. The trial court misapplied its discretion by denying defendant's motion for

a new trial. Accordingly, we vacate the order of judgment and remand for a new

trial.

         Vacated and remanded. We do not retain jurisdiction.




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