                                NOT FOR PUBLICATION WITHOUT THE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-5317-17T4

PETER W. SLOMKOWSKI
and DANA SLOMKOWSKI,

          Plaintiffs-Appellants,

v.

NEW JERSEY MANUFACTURERS
INSURANCE COMPANY,

     Defendant-Respondent.
______________________________

                    Submitted September 16, 2019 – Decided January 24, 2020

                    Before Judges Messano, Vernoia and Susswein.

                    On appeal from the Superior Court of New Jersey, Law
                    Division, Ocean County, Docket No. L-3166-15.

                    Maggs & MC Dermott, attorneys for appellants (James
                    A. Maggs, Michael M. Di Cicco and Tara Marie
                    Parente, on the briefs).

                    Leyden Capotorto Ritacco Corrigan & Sheehy,
                    attorneys for respondent (Kevin F. Sheehy, on the
                    brief).

PER CURIAM
      Plaintiffs, Peter W. Slomkowski and Dana Slomkowski, appeal from a no-

cause jury verdict arising from a March 2012 rear-end motor vehicle accident

involving an underinsured motorist. The key disputed issue at trial was whether

Mr. Slomkowski suffered permanent injury as a proximate result of the accident.

Plaintiffs contend that the trial judge made several incorrect evidentiary rulings

and improperly precluded plaintiffs from telling the jury in summation that the

defense had elected not to call the expert medical witness they retained to

examine plaintiff. We affirm the jury verdict substantially for the reasons set

forth in the trial judge's written opinion denying plaintiffs' motion for a new

trial. After reviewing the record, we conclude the plaintiffs' contentions, viewed

individually and cumulatively, do not warrant overturning the jury verdict.

                                       I.

      Defendant, New Jersey Manufacturers Insurance Co., retained a medical

expert, Dr. Richard Sacks, to perform an independent medical examination of

Mr. Slomkowski. Dr. Sacks prepared a report where he opined that the March

2012 accident caused a permanent injury. In light of the unfavorable opinion,

the defense chose not to call Dr. Sacks as a trial witness. Defendant also filed a

motion in limine to prohibit plaintiffs from advising the jury that it was the

defense that had retained Dr. Sacks to examine Mr. Slomkowski. Defendant did


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                                        2
not object to the jury being told that the defense did not present an expert to

counter plaintiffs' expert. Nor did defendant object to having Dr. Sacks appear

at trial as a witness on behalf of plaintiffs. All the motion in limine sought was

to keep from the jury that Dr. Sacks had been retained by the defense to conduct

an independent medical examination.         The trial judge granted defendant's

motion. Plaintiffs contend on this appeal that they should have been permitted

to advise the jury that the defense retained Dr. Sacks.

      New Jersey law affords attorneys "broad latitude in summation[s]."

Bender v. Adelson, 187 N.J. 411, 431 (2006) (quoting Colucci v. Oppenheim,

326 N.J. Super 166, 177 (App. Div. 1999)). Counsel may even draw conclusions

that cause the jury to make inferences that are "improbable, perhaps illogical,

erroneous or even absurd." Ibid. (quoting Colucci, 326 N.J. Super at 177).

However, summation commentary must be based on truth and counsel cannot

"misstate the evidence[,] . . . distort the factual picture," nor draw an inference

without evidentiary support. Ibid. (quoting Colucci, 326 N.J. Super. at 177);

see also Colucci, 326 N.J. Super at 177 (finding that summation "comments must

be confined to the facts shown or reasonably suggested by the evidence

introduced during the course of the trial" (citing Condella v. Cumberland Farms,

Inc., 298 N.J. Super. 531, 534 (Law Div. 1996))). With respect to limitations


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                                        3
on the inferences that may be argued by counsel during summation, trial courts

are given the discretion to conduct a case-specific analysis to determine whether

a failure to call a witness raises no inference or an unfavorable one, and "whether

any reference in the summation or a charge is warranted." State v. Clawans, 38

N.J. 162, 172 (1962).

      In the present case, plaintiffs' counsel wished to inform the jury not only

that his expert testimony was unrebutted, but also that the defense had its own

expert, Dr. Sacks, examine Mr. Slomkowski and chose not to have him testify.

The practical effect of such an argument would convey to the jury both that the

non-testifying expert's opinion would have been adverse to defendant's case and

also that the defense was seeking to conceal Dr. Sack's opinion from them.

      We agree with the trial court that it would have been inappropriate to

allow plaintiffs' counsel to argue in summation that the defense had retained Dr.

Sacks. The trial court's ruling is consonant with the principles explained in

Washington v. Perez, which addressed when an adverse inference jury

instruction is warranted in a case where "a party declines to present the

testimony of expert witnesses whose opinions have been disclosed in accordance

with the discovery rules." 219 N.J. 338, 342 (2014). It bears emphasis that Dr.

Sacks was not in the exclusive control of defense counsel. To the contrary, as


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                                        4
was made clear during argument on the motion in limine, plaintiffs were free to

subpoena Dr. Sacks to present his testimony at trial, just as plaintiffs ' counsel

was free to point out that the defense did not call an expert to refute the plaintiffs '

expert's opinion.    The trial court acted well within its discretion when it

precluded plaintiffs' counsel from going one step further by telling the jury in

essence that the defense had chosen to withhold unfavorable evidence from

them.

                                         II.

        Plaintiffs contend that the jury should not have been shown four

photographs that depicted the rear bumper of their car following the accident.

The exact circumstances of the admission and publication of these photographs

are somewhat unclear. The trial court ruled that the photographs had been

properly authenticated and could be shown to the jury on a display board.

However, the court later determined that the photographs could not go into the

jury room, commenting that they could be misleading.

        We begin our analysis by noting that when reviewing evidentiary rulings

made by the trial court, we apply an "abuse of discretion" standard. State v.

Nantambu, 221 N.J. 390, 402 (2015) (quoting State v. Harris, 209 N.J. 431, 439

(2012)). An appellate court will reverse an evidentiary ruling only if it "was so


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                                           5
wide off the mark that a manifest denial of justice resulted." Griffin v. City of

East Orange, 225 N.J. 400, 413 (2016) (quoting Green v. N.J. Mfrs. Ins. Co.,

160 N.J. 480, 492 (1999)).

      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 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 accu rately


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                                       6
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

what the photograph shows." (citing State v. Wilson, 135 N.J. 4, 14 (1994)));

Macaluso v. Pleskin, 329 N.J. Super. 346, 356 (App. Div. 2000) (holding that

computerized images of x-rays were authenticated by testimony from the

treating physician that the images "were a fair and accurate depiction of the x-

rays he had taken").

      In the present case, Mr. Slomkowski, during cross-examination, was

shown the same four photographs of his vehicle that had been shown to him

during his deposition.     During the deposition, he identified the car in the

photographs as his and was able to identify a crack in the center of the bumper

that the accident caused. At trial, he first testified on cross-examination that the

photographs did not depict the way his vehicle appeared after the accident. He

testified that there was additional damage to the underside of the bumper that

was not visible in the photographs. However, he eventually acknowledged on

cross-examination that the photographs did accurately depict the way his vehicle

looked following the accident, even as he maintained that the photographs did

not present the best angle to show the extent of the damage sustained during the


                                                                              A-5317-17T4
                                          7
accident. Based on his testimony that the photographs accurately depicted the

way his vehicle appeared following the accident, the trial court found that the

requirements for authentication and admissibility were met.

      Later, the court decided to prohibit the photographs from going into the

jury room, but in a sidebar before jury instructions, the judge was clear that the

photographs were evidence the jury could consider. The judge did not instruct

the jury to disregard the photographs, but rather gave the standard "photographic

evidence" model jury charge. Those instructions explain how the jury might

consider photographs that purport to show the extent of vehicle damage so that

it can determine whether the motor vehicle accident involved sufficient force to

cause Mr. Slomkowski to sustain a permanent injury. 1

      We conclude from these circumstances that the judge did not reverse his

initial ruling as to the admissibility of the photographs. Nor was there need to

do so. The photographs were properly authenticated as required under N.J.R.E.

901. Mr. Slomkowski's testimony on cross-examination suggesting that there

were other angles to show the full extent of damage to the car does not mean


1
    Model Jury Charges (Civil), 5.34, "Property Damage in Motor Vehicle
Accidents" (approved 10/2009; rev. 01/2019). This court gave this charge prior
to its 2019 update, which changed the name of the charge and revised the charge
to include instances where a party alleges vehicle damage, but there is no
photographic evidence of damage.
                                                                          A-5317-17T4
                                        8
that the photographs in question should not have been admitted. Nothing in the

record suggests, for example, that the photographs had been altered or distorted.

      A photograph may fairly depict what it purports to depict, and thus be

authenticated and admitted into evidence, notwithstanding that other

photographs may provide additional perspectives and thereby present a more

complete understanding of the condition of the item depicted. In our adversarial

trial system, advocates on both sides are permitted to introduce evidence

favorable to their case, and photographs proposed as evidence by one party are

not inadmissible simply because the opposing party might introduce other

photographs that suggest a different conclusion on a disputed question of fact.

It bears emphasis that, in this instance, plaintiffs did not avail themselves of the

option to introduce photographs that depicted damage to the underside of t he

bumper. By the same token, plaintiffs' counsel was free to have his client

reiterate on re-direct examination that the four photographs offered by the

defense did not provide a complete picture of the vehicle damage the accident

caused. Plaintiffs' counsel also was free during summation to highlight his

client's testimony that the vehicle had sustained damage not shown in those four

photographs.




                                                                            A-5317-17T4
                                         9
      In sum, the trial court did not abuse its discretion in admitting the

photographs and allowing them to be shown to the jury on a display board at the

time of Mr. Slomkowski's cross-examination. The court's subsequent decision

to keep the photographs out of the jury room was unnecessary, and to the extent

that decision was in error, it redounded to plaintiffs' benefit and was not capable

of producing an unjust result. See R. 2:10-2.

                                      III.

      Plaintiffs next raise an embedded hearsay issue, contending that the

content of pre-accident medical records, in the form of handwritten notes made

by Mr. Slomkowski's primary care physician and rheumatologist, were

improperly presented to the jury during the cross-examinations of Mr.

Slomkowski and of his expert witness. Any irregularities with respect to the use

of the pre-accident medical reports during the cross-examinations of Mr.

Slomkowski and his expert were harmless; the information contained in the

handwritten notes that was revealed to the jury was admissible under two distinct

exceptions to the hearsay rule.

      By way of background, records made by Mr. Slomkowski's primary care

physician, Dr. William DiGiacomo, showed that in 2004, plaintiff complained

of neck and shoulder pain with a tingling sensation in his left ring and pinky


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                                       10
fingers.   Medical records made by Mr. Slomkowski's rheumatologist, Dr.

Rosemarie DeSantis, a year prior to the motor vehicle accident showed that

plaintiff complained of pain and sought treatment and medication related to his

neck, bilateral trapezius, shoulder, and upper arm.       Dr. DeSantis' medical

records also memorialized that between March 2011 and March 2014, Mr.

Slomkowski received eleven trigger point injections in his cervical and trapezius

muscles.

      It bears repeating that the key disputed issue at trial was whether Mr.

Slomkowski sustained permanent injury as a proximate result of the March 2012

accident. Plaintiffs did not claim that the accident aggravated a preexisting

injury or condition.     Furthermore, Mr. Slomkowski testified on direct

examination that his pre-accident treatment with Dr. DeSantis was only for knee

issues. That testimony opened the door to questions concerning the scope and

nature of the pain he had reported to Dr. DeSantis. Accordingly, defense counsel

was permitted to pose questions on cross-examination to show that plaintiff had

sought and received medical treatment for shoulder pain before the 2012 rear -

end collision. It is well-settled in this regard that "[a] plaintiff may be cross-

examined as to prior injuries to show that his present physical condition did not

result solely from defendant's negligent act, but was caused, wholly or partially,


                                                                          A-5317-17T4
                                       11
by an earlier accident or pre-existing condition." Paxton v. Misiuk, 34 N.J. 453,

460 (1961) (citing Krug v. Warner, 28 N.J. 174, 185 (1958)).

                                         A.

      During the cross-examination of Mr. Slomkowski, defense counsel sought

to use the pre-accident medical treatment records to refresh plaintiff's

recollection on whether he had complained of pain in his neck, back, and arm

before the accident. Defense counsel also wanted to use the records to refresh

plaintiff's recollection on whether he received trigger point injections in his

trapezius and not mid-back. However, defense counsel did not lay a proper

foundation for refreshing his recollection under N.J.R.E. 612. The trial record

shows, moreover, that plaintiff did not rely independently on his own

recollection after reviewing the documents but rather deferred to or repeated the

contents of the report as recited in counsel's question. (As it turned out, plaintiff

was unable to decipher the handwriting in these medical records.)

      It is inappropriate under N.J.R.E. 612 to have a witness read aloud the

substance of a document without offering independent, refreshed recollection of

the matters at issue. Lauteck Corp. v. Image Bus. Sys. Corp., 276 N.J. Super.

531, 546 (App. Div. 1994). Although the form of defense counsel 's cross-

examination of Mr. Slomkowski was improper under N.J.R.E. 612, the error was


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                                        12
harmless. The information in the medical records was presented to the jury by

means of defense counsel's questions to show plaintiff's subjective complaints

of pain, his request for additional pain medication, and the fact that he received

eleven trigger point injections. This information was admissible under N.J.R.E.

803(c)(4) and N.J.R.E. 803(c)(6).

      N.J.R.E. 803(c)(4) excepts from the hearsay rule:

            Statements made in good faith for purposes of medical
            diagnosis or treatment which describe medical history,
            or past or present symptoms, pain, or sensations, or the
            inception or general character of the cause or external
            source thereof to the extent that the statements are
            reasonably pertinent to diagnosis or treatment.

The rationale for this exception is that these statements are inherently reliable

because "the patient believes that the effectiveness of the treatment he receives

may depend largely upon the accuracy of the information he provides the

physician." R.S. v. Knighton, 125 N.J. 79, 87 (1991) (quoting K. Brown et al.,

McCormick on Evidence, § 292 (3d ed. 1984)). The exception assumes that the

patient is "more interested in obtaining a diagnosis and treatment culminating in

a medical recovery than . . . in obtaining a favorable medical opinion

culmination in a legal recovery." In re Registrant, C.A., 146 N.J. 71, 99 (1996)

(quoting Biunno, Current N.J. Rules of Evidence, cmt. on N.J.R.E. 803(c)(4)

(1994)).

                                                                          A-5317-17T4
                                       13
      The so-called business records exception, N.J.R.E. 803(c)(6), states:

            A statement contained in a writing or other record of
            acts, events, conditions, and, subject to [N.J.R.E.] 808,
            opinions or diagnoses, made at or near the time of
            observation by a person with actual knowledge or from
            information supplied by such a person, if the writing or
            other record was made in the regular course of business
            and it was the regular practice of that business to make
            it, unless the sources of information or the method,
            purpose or circumstances of preparation indicate that it
            is not trustworthy.

"The purpose of the business records exception is to 'broaden the area of

admissibility of relevant evidence where there is necessity and sufficient

guarantee of trustworthiness.'" Liptak v. Rite Aid, Inc., 289 N.J. Super. 199,

219 (App. Div. 1996) (quoting State v. Hudes, 128 N.J. Super. 589, 599 (Law

Div. 1974)).

      We add that in this instance, the pre-accident medical treatment records at

issue were received directly from plaintiff's medical providers.              The

rheumatologist's report was accompanied by a "Certification of Medical

Records" that indicated that the records were "true copies of the original medical

records of Peter W. Slomkowski kept in the regular course of business."

Plaintiff did not object to the authentication or validity of these reports. Those

reports contained subjective statements of pain made by plaintiff. As such, those

portions of the documents were admissible hearsay under N.J.R.E. 803 (c)(4).

                                                                          A-5317-17T4
                                       14
      The report made by the rheumatologist contained not only plaintiff's

complaints of pain admissible under N.J.R.E. 803(c)(4) but also information

regarding treatment procedures that were performed on plaintiff prior to the

motor vehicle accident, that is, the trigger point injections. The rheumatologist's

report is a writing created in the course of regularly conducted business and it

was regular practice for the physician to make it. It was accompanied by a

certification that indicated the records were true copies of the original document.

As a result, the information concerning the trigger point injections elicited

during plaintiff's cross-examination was admissible under N.J.R.E. 803(c)(6).

                                        B.

      Defense counsel also sought to elicit the same information from the pre -

accident reports during the cross-examination of plaintiffs' expert, Dr. Nguyen.

Unlike Mr. Slomkowski, Dr. Nguyen was able to read the handwritten notations

in the medical records. We hold that the trial court did not abuse its discretion

in permitting the use of the medical records during the cross-examination of Dr.

Nguyen.

      N.J.R.E. 703 permits hearsay statements such as a medical report by a

non-testifying expert to be referred to by a testifying expert. N.J.R.E. 703 states:

            The facts or data in the particular case upon which an
            expert bases an opinion or inference may be those

                                                                            A-5317-17T4
                                        15
            perceived by or made known to the expert at or before
            the hearing. If of a type reasonably relied upon by
            experts in the particular field in forming opinions or
            inferences upon the subject, the facts or data need not
            be admissible in evidence.

      Under N.J.R.E. 703, the hearsay fact or data would be permitted only for

the limited purpose of understanding the basis of the testifying expert's opinions,

not for the truth of the matter asserted. See Agha v. Feiner, 198 N.J. 50, 63

(2009). In this instance, no limiting instruction was given. It thus appears that

the facts elicited from the medical records were offered for the truth of the matter

asserted, that is, that plaintiff prior to the March 2012 accident complained of

pain in the shoulder area and had trigger point injections. However, for the same

reasons set forth in the preceding subsection of this opinion with respect to the

cross-examination of Mr. Slomkowski, the information gleaned from the

medical reports during the cross-examination of Dr. Nguyen was admissible

under N.J.R.E. 803(c)(4) and N.J.R.E. 803(c)(6).

      Importantly, this is not a situation such as in James v. Ruiz, where a party

was attempting to introduce through the "back door" the opinion of a non -

testifying expert regarding a complex medical diagnosis. 440 N.J. Super. 45, 72

(App. Div. 2015). Rather, as noted above, the facts elicited from the pre-

accident medical records focused on plaintiff's subjective complaints of pain and


                                                                            A-5317-17T4
                                        16
the fact that plaintiff received trigger point injections on certain points of his

body on certain dates. In these circumstances, the trial court did not abuse its

discretion in permitting the use of plaintiff's prior medical records during the

cross-examination of either plaintiff or Dr. Nguyen.

                                        IV.

      For the foregoing reasons, plaintiffs have not presented sufficient legal

justification to set aside the jury verdict.

      Affirmed.




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                                         17
