                 NOT FOR PUBLICATION WITHOUT THE
                APPROVAL OF THE APPELLATE DIVISION

                                      SUPERIOR COURT OF NEW JERSEY
                                      APPELLATE DIVISION
                                      DOCKET NO. A-2602-13T4

ANTHONY A. GONZALES,

      Plaintiff-Respondent,             APPROVED FOR PUBLICATION

                                             July 22, 2015
v.
                                          APPELLATE DIVISION
ELLEN I. HUGELMEYER,

      Defendant-Appellant,

and

FREDERICK ADAMS,

     Defendant.
__________________________________

          Argued April 13, 2015   -    Decided July 22, 2015

          Before Judges Sabatino, Guadagno, and Leone.

          On appeal from the Superior Court of New
          Jersey,   Law  Division, Atlantic County,
          Docket No. L-3854-09.

          Stephen A. Rudolph argued the cause for
          appellant (Rudolph & Kayal, attorneys; Mr.
          Rudolph, on the briefs).

          Kathleen F. Beers, argued the cause for
          respondent (Westmoreland Vesper Quattrone &
          Beers, attorneys; Ms. Beers, on the brief).

      The opinion of the court was delivered by

SABATINO, P.J.A.D.
      This automobile negligence case arises out of a rear-end

collision on the Atlantic City Expressway.                             After a six-day

trial, the jury found that defendant Ellen I. Hugelmeyer,1 the

driver of the Mazda sedan that struck plaintiffs' Lexus SUV from

behind,    was      negligent     and     the    sole       proximate    cause    of    the

accident.        The jury awarded $380,000 in damages to plaintiff

Anthony A. Gonzales, the driver of the Lexus, and $810,000 in

damages    to    his    wife     Valerie,       who    was    a   passenger    in    their

vehicle.      The trial court also awarded plaintiffs counsel fees,

costs, and interest pursuant to the Offer of Judgment Rule, R.

4:58-2(a), because the combined damages verdict substantially

exceeded      the    amount      plaintiffs       had        offered    to    accept     in

settlement before trial.

      Defendant        appeals    the    verdict       and    final    judgment     solely

with respect to her liability to Mr. Gonzales,2 as the parties

and   their     insurers       have     settled       all    claims    respecting      Mrs.

Gonzales,       including        her    claims        for     underinsured       motorist

coverage.       Defendant asserts a variety of trial errors regarding

both liability and damages, and further argues that the Offer of

1
  At various points in the record,                           defendant's     surname     is
identified as Hugelmeyer-Green.
2
  For purposes of clarity, we refer to plaintiffs as "Mr.
Gonzales" and "Mrs. Gonzales," intending no disrespect by our
omission of such titles for the other individuals mentioned in
this opinion.



                                            2                                     A-2602-13T4
Judgment Rule is unconstitutional because it allegedly is unfair

to defendants.

    Because of multiple errors that deprived defendant of a

fair trial, we vacate the judgment as to Mr. Gonzales and order

a new trial.

                                       I.

    The evidence shows that at about 5:00 p.m. on April 22,

2008, Mr. Gonzales was driving his Lexus on the Atlantic City

Expressway       when    he   encountered    congested   traffic    due     to   an

accident.        Mr. Gonzales drove from the far-right lane into the

far-left    lane    of    the   three-lane    highway.     According      to     the

testimony of an eyewitness, Stephanie Blount, the Lexus moved

across the center lane in front of Hugelmeyer's car.                         After

Gonzales needed to stop short, Hugelmeyer's Mazda struck his

Lexus from behind, damaging its rear bumper and the Mazda's

front bumper.

    A State Trooper, Vaughn Crouthamel, responded to the scene.

The Trooper interviewed several persons, including Mr. Gonzales

and Hugelmeyer.          According to Hugelmeyer, she "didn't have time

to react" and avoid the collision because Mr. Gonzales had "just

slammed     on    his     brakes"   while     in   traffic.        The    Trooper

nevertheless issued a traffic citation to Hugelmeyer, although

the ticket was eventually dismissed because of the Trooper's




                                        3                                 A-2602-13T4
failure    to   appear    in    municipal        court.        The     ticket   and    its

disposition were not divulged to the jury.

      At   trial,   Mr.    Gonzales        testified        that    the   accident     had

aggravated a pre-existing degenerative disc disease.                            His main

testifying      expert,    Dr.       John       C.    Baker,       a   Board-certified

orthopedic surgeon, testified that he had arthritis dating back

to 1998, and that the accident had greatly worsened his pre-

existing disease, causing permanent spinal damage.                        Mr. Gonzales

also presented testimony from Dr. Ira Greg Warshaw, his family

physician from 2001 to 2008.                Dr. Warshaw testified on direct

examination that Mr. Gonzales had never commented on any back

problems when treated by him.               However, Dr. Warshaw conceded on

cross-examination that he had treated Mr. Gonzales in 2006 for

lower-leg pain and radiating cervical spine or neck pain, and in

2004 for cervical radiculopathy.                     Mr. Gonzales also presented

videotaped testimony from a chiropractor, Dr. Michael Gerber,

who had examined him at the behest of his insurer in connection

with his claims for personal injury protection benefits.                            Based

upon tests Dr. Gerber performed, he opined that the condition of

Mr.   Gonzales's    neck       and   low    back      had    been      "exacerbated     or

aggravated" by the accident.

      The defense presented testimony from Blount and Dr. John

Cristini, a Board-certified orthopedic surgeon who had evaluated




                                            4                                    A-2602-13T4
Mr. Gonzales.        Hugelmeyer did not testify because she was living

in a distant state and seven months pregnant.                 However, portions

of her deposition testimony were read aloud to the jury.

      As we have already noted, the jury found that Hugelmeyer

was   negligent      but   that   Mr.   Gonzales     was     not,   and     awarded

substantial    monetary      damages    to    both   Mr.    Gonzales      and   Mrs.

Gonzales.     The trial judge denied Hugelmeyer's motion for a new

trial or remittitur, and ordered fee-shifting pursuant to Rule

4:58.     The judge declined to address defendant's constitutional

challenge to the Offer of Judgment Rule.

                                        II.

      This appeal ensued, which, as we have noted, is confined to

the judgment obtained by Mr. Gonzales.                Defendant argues that

the trial judge erred in (1) allowing Trooper Crouthamel to

present inadmissible lay opinion asserting that she was at fault

in causing the accident, and also relied on hearsay statements

from an unidentified witness he had interviewed at the accident

scene; (2) excluding Dr. Warshaw's treatment office notes that

would substantiate the severity of Mr. Gonzales's preexisting

condition; (3) allowing the chiropractor, Dr. Gerber, to present

expert opinions on permanency without proper qualifications and

to discuss the hearsay findings of a non-testifying radiologist;

(4)     permitting    this   "verbal     threshold"        case   brought       under




                                         5                                 A-2602-13T4
N.J.S.A.      39:6A-8(a)       to   go    to       the   jury     without     appropriate

objective evidence of aggravated injury; and (5) awarding fees

and other funds to plaintiffs under the Offer of Judgment Rule.

      For     the    reasons    that      follow,        the    first   two     claims     of

prejudicial error are meritorious.                   Singularly and cumulatively,

they warrant a new trial.

                                           A.

      Defendant rightly contends that she was unfairly prejudiced

by two critical aspects of Trooper Crouthamel's testimony, which

plaintiffs' counsel punctuated in his closing argument to the

jury.

      We    first     consider      the    Trooper's            reference     to    hearsay

statements by an unidentified eyewitness he interviewed at the

accident scene.         The Trooper could not recall the accident at

trial with much detail and instead relied substantially on the

accuracy of his written accident report.                         The report reflected

that he had interviewed an eyewitness, who was not a passenger

in   either    the    Mazda    or   the    Lexus.3             Over   defense      counsel's

objection, the Trooper informed the jurors that the eyewitness

had told him that he or she was driving behind defendant's Mazda


3
   Mr. Gonzales's counsel speculates that Blount was the
eyewitness that the Trooper had interviewed, but that was not
confirmed by the Trooper, who did not recognize Blount in the
courtroom.



                                               6                                    A-2602-13T4
and saw plaintiffs' Lexus change lanes, get in front of the

Mazda and stop abruptly "as traffic backed up."                                The Trooper

relied on this observation in formulating his conclusions about

how and why the accident occurred.

       The eyewitness statement, which plaintiffs4 offered for its

truth,      was    hearsay     and     should       not    have   been   admitted.         See

N.J.R.E.      801(c).           Plaintiffs'           counsel      suggested      that     the

statement         was    admissible,      alternatively,            under     the    hearsay

exceptions for present sense impressions, N.J.S.A. 803(c)(1), or

excited utterances, N.J.S.A. 803(c)(2).                           The required elements

of these exceptions are not present.                        The eyewitness's statement

was    not   a    present      sense    impression          because    it   was     not   made

"while or immediately after" the declarant saw the accident.

N.J.R.E. 803(c)(1); State ex rel. J.A., 195 N.J. 324, 338-39

(2008).      The Trooper was not present when the accident occurred,

but    arrived          at   least     "several        minutes"       thereafter.          The

statement was not eligible as an excited utterance because there

was    no    foundation       laid     that     the       declarant   spoke    "under      the

stress of excitement" without "the opportunity to deliberate or

fabricate."         N.J.R.E. 803(c)(2); State v. Branch, 182 N.J. 338,

357-58 (2005).           No other hearsay exceptions apply.




4
    Mr. and Mrs. Gonzales each had separate counsel at trial.



                                                7                                    A-2602-13T4
       An even more troublesome aspect of the Trooper's testimony

is the court's allowance, over objection, of his opinion that

defendant was at fault in causing the accident.              The first time

this    occurred,      plaintiffs'    counsel    elicited    the   Trooper's

opinions by asking him about the "contributing circumstances"

for the collision:

              Q.     Okay. Now, based on your investigation
                     at the scene, you concluded what the
                     contributing circumstances were to this
                     rear-end collision, didn't you?

              A.     Yes.

              Q.     What contributing circumstances were
                     there for Mr. Gonzales?

              A.     None.

              Q.     What were the contributing
                     circumstances for Mrs. Hugelmeyer –
                     Mrs. Hugelmeyer-Green?

              A.     Okay. She was noted as driver
                     inattention was –

              Q.     Mis – thank you.

              A.     I'm sorry.

              [(Emphasis added).]

By opining that Mr. Gonzales had no "contributing circumstances"

and    that        defendant   Hugelmeyer,      by     contrast,   had    the

"contributing        circumstances"     of   "driver     inattention,"    the

Trooper surely conveyed to the jury his personal belief that




                                        8                           A-2602-13T4
defendant     had     not     been        paying   sufficient     attention     and

consequently was responsible for rear-ending the Lexus.

    Later in the Trooper's direct examination, Mr. Gonzales's

counsel     drew    from     him     an    even    more    explicit   opinion   of

defendant's fault:

            Q.      Trooper, Mrs. Hugelmeyer-Green said, "I
                    was told by the officer it was not my
                    fault, the accident."    This is at the
                    scene.   Did you ever say that to Mrs.
                    Hugelmeyer?

            A.      I don't recall what was said.

            Q.      Would you have ever said it was not her
                    fault?

            DEFENSE
            COUNSEL:               Objection.      Speculative.

            THE COURT:             I'll allow the –

            MR. GONZALES'S
            COUNSEL:       Would you.

            THE COURT:             I'll allow the question.

            BY THE WITNESS:

            A.      If it legitimately was not her fault,
                    it would have been indicated on the
                    report –

            Q.      What's indicated on –

            A.      - along with a statement.             If I were to
                    make that statement –

            Q.      Right.

            A.      - it would reflect in the report
                    accurately.



                                            9                            A-2602-13T4
            Q.   Right.

            A.   Which in this case I obviously, based
                 on the evidence and my training and
                 experience at this point, found her at
                 fault.

            MR. GONZALES'S
            COUNSEL: Thank you.         No further questions.

            [(Emphasis added).]

      These opinions of fault were improperly elicited by Mr.

Gonzales's    counsel    from   the    Trooper.5       Although     the    Trooper

testified    that   he    had   over     five    years    of    experience        in

investigating motor vehicle accidents, he was not designated or

qualified by plaintiffs as an expert witness under N.J.R.E. 702.

His prejudicial opinions on the critical jury issue of fault for

the   accident   were    clearly      beyond    the   scope    of   lay    opinion

admissible under N.J.R.E. 701.              In State v. McLean, 205 N.J.

438, 460 (2011), a criminal case, the Supreme Court disapproved

of    the   admission    of   critical      expert    opinions      from    police

officers under the guise of the lay opinion rule.                         The same

principles restricting certain lay opinion from police officers

likewise extend to their testimony in civil cases.



5
  Plaintiff has not argued in his brief that defendant "opened
the door" to the officer's opinions by alleging in her testimony
that the officer told her she was not at fault.     Even if the
officer had made such an oral statement, that subjective hearsay
assertion likewise would have been inadmissible.



                                       10                                  A-2602-13T4
    Moreover,     the    Trooper   had   no   personal    observation     or

recollection of the accident and his opinions thus failed the

foundational requirements of Rule 701.           The Supreme Court has

instructed that "a police officer cannot provide an opinion at

trial when that opinion is based primarily on the statements of

eyewitnesses."    Neno v. Clinton, 167 N.J. 573, 585 (2001).            "Any

other conclusion," the Court cautioned in Neno, "would allow an

officer   to   subvert   the   prohibition    against   hearsay   and   pass

along the essence of those hearsay statements to the jury even

when the officer is not permitted to testify to the substance of

the witness's statements under the hearsay rule."            Id. at 585.

That is exactly what happened here.

    These errors were not harmless.             Mr. Gonzales's counsel

explicitly reminded the jurors of these inadmissible portions of

the testimony during closing argument:

           The problem with [blaming Anthony Gonzales]
           is the trooper got the bottom line.       He
           finds out from [the person he interviewed] –
           here it is.   Here it is.   The witness says
           he changed lanes, nothing about cutting
           anyone off.    Did you hear that testimony
           today from the tiebreaker?    Changed lanes,
           was traveling in front, means he was going a
           while, and then he stopped abruptly.     And
           you heard why now from today, and – because
           traffic backed up, and then she struck him.
           That's what the tiebreaker said at the
           scene.

           [(Emphasis added).]




                                    11                             A-2602-13T4
As we recently held in James v. Ruiz, 440 N.J. Super. 45, 72

(App. Div. 2015), trial counsel may not misuse hearsay or other

inadmissible proof in summation by advocating to jurors that

they treat such proof as a "tiebreaker" to resolve the competing

positions of the parties.

    Counsel apparently intended the term "tiebreaker" to refer

to the unidentified eyewitness that the Trooper interviewed at

the accident scene, who plaintiffs alleged was Blount.               For the

reasons we have already noted, the interviewee's out-of-court

statement    to   the   officer   was    inadmissible   hearsay.      Counsel

should not have made substantive use of that statement in his

summation.    It was likewise improper for counsel to showcase the

Trooper's inadmissible personal conclusion by advocating to the

jurors that the Trooper "got the bottom line."

    We cannot ignore these highly prejudicial circumstances and

conclude with any confidence that the jurors were not swayed by

the Trooper's improper testimony.            A new trial is warranted.

                                        B.

    Defendant is also entitled to a new trial because her trial

attorney was wrongfully foreclosed from admitting into evidence

notes from Mr. Gonzales's medical chart prepared by his regular

family   physician,     Dr.   Warshaw.        The   notes   were   admissible

business records under N.J.R.E. 803(c)(6).              See also Konop v.




                                        12                           A-2602-13T4
Rosen, 425 N.J. Super. 391, 405 (App. Div. 2012) (recognizing

that   "routine"          findings        contained     in     patient       medical      records

generally are admissible hearsay).                       Relevant statements made by

Mr. Gonzales during those visits to his family physician were

admissible statements by a party opponent, N.J.R.E. 803(b)(1),

and also admissible as statements made to a medical provider for

treatment or diagnosis under N.J.R.E. 803(c)(4).                                 The records

were highly relevant to substantiate Mr. Gonzales's pre-existing

spinal injuries and condition.

       In excluding these office notes, the trial judge broadly

asserted they "do not come into evidence . . . [b]ecause the

jury    has     already           heard    [about]       it"      through      the     doctor's

testimony.           The     judge      cited    no     authority       for    this       blanket

proposition, and we have not been made aware of any.                                   Although

the court has the authority to exclude cumulative evidence under

N.J.R.E.       403        where     its    probative         value      is    "substantially

outweighed"          by     countervailing            factors,     no     such       compelling

showing in favor of exclusion is present here.                                   The records

would have provided the jurors with relevant, tangible proof

that    Mr.    Gonzales           had     been     suffering       from      serious       spinal

problems      for     many    years.         The      defense     should      not    have     been

forced to limit its evidence to the doctor's spoken testimony.

The    judge    misapplied          his    discretion        in    excluding        the    notes.




                                                 13                                       A-2602-13T4
Because the degree of Mr. Gonzales's pre-existing condition was

a critical disputed issue, the error was not harmless.                            This

also mandates a new trial.

                                        C.

    We     turn   to   defendant's      additional      contention         that    Dr.

Gerber, the chiropractor, improperly discussed in his testimony

spondylosis, a condition which had been identified by a non-

testifying    radiologist     who      interpreted      MRI     studies     of     Mr.

Gonzales's    spine.      The    chiropractor        was      not   shown    to     be

qualified    to   interpret     those    studies   himself.          Absent       such

expertise, the complex hearsay opinions of a radiologist are not

to be conveyed through a testifying chiropractor acting as a

conduit.     See Agha v. Feiner, 198 N.J. 50 (2009); James, supra,

440 N.J. Super. at 61-70; see also N.J.R.E. 808.

    Mr. Gonzales's orthopedic expert, Dr. Baker, was clearly

qualified to interpret the MRI studies and he commented on them

in his own testimony.         However, the chiropractor, Dr. Gerber,

who was not shown to have such qualifications, should not have

been likewise permitted to testify that his own opinions were

specifically "based on . . . [the absent radiologist's] MRI

findings of spondylosis," if those findings were disputed.                         The

testifying    chiropractor      went    beyond   "the      bare     fact    that    he

considered the absent radiologist's report."                  James, supra, 440




                                        14                                  A-2602-13T4
N.J. Super. at 73 n.17.              Instead, Dr. Gerber passed over that

line    and   "delv[ed]      into"    the    MRI        report's    actual       contents.

Ibid.

       We cannot tell from the record, including the phrasing of

the questioning and testimony of the medical experts, whether

the diagnosis of spondylosis for Mr. Gonzales was, in fact,

disputed.      The prohibition in N.J.R.E. 808 and case law on an

expert's testimony about the complex hearsay opinions of a non-

testifying expert does not apply if the opinion is undisputed.

See N.J.R.E. 808; James, supra, 440 N.J. Super. at 63; see also

Nowacki v. Community Med. Ctr., 279 N.J. Super. 276 (App. Div.),

certif. denied, 141 N.J. 95 (1995).                       Defense counsel did not

object to this portion of Dr. Gerber's testimony at trial, which

suggests      that    the   defense    was       not    disputing    the    spondylosis

diagnosis.       If    there   is     no   such        dispute,    then    Dr.   Gerber's

reference to the hearsay finding was innocuous.                             On retrial,

defense counsel shall clarify whether the MRI finding is indeed

disputed and, if so, Dr. Gerber's videotaped testimony must be

redacted accordingly.

                                           III.

              [At   the  direction   of   the  court,  the
              published version of this opinion omits Part
              III, which briefly addresses the other
              points defendant raised on appeal.]




                                            15                                    A-2602-13T4
                             IV.

    The final judgment is vacated in its entirety, and the case

is remanded for a new trial on liability and damages as to the

claims of Mr. Gonzales.




                              16                       A-2602-13T4
