                                                       SYLLABUS

(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the
convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the
interest of brevity, portions of any opinion may not have been summarized.)

                Sofia T. Torres v. Javier Pabon and Suburban Disposal, Inc. (A-116-13) (074307)

Argued November 10, 2015 -- Decided June 1, 2016

PATTERSON, J., writing for a unanimous Court.

         In this appeal, arising from a judgment in plaintiff’s favor in a motor vehicle negligence case, the Court
considers defendants’ contention that the trial court committed several errors that mandate reversal of the judgment
and a new trial.

          On August 30, 2007, before starting his daily garbage collection route, defendant Javier Pabon (Pabon)
inspected the truck assigned to him by his employer, Suburban Disposal, Inc. (Suburban). Pabon noticed that some
of the truck’s rear lights were covered with debris that could not be removed by wiping with a cloth. At 4:30 a.m.,
Pabon commenced his route on the eastbound lanes of Route 46 in Fairfield. Pabon testified that his truck was
traveling at forty to forty-five miles per hour when he entered a construction area and was directed by a sign to
merge left. He stated that he slowed his vehicle as he merged, but that he was unaware of plaintiff’s vehicle until it
collided with his truck. Plaintiff testified that she was driving her car eastbound on Route 46, at a speed of forty-five
to fifty miles per hour. She stated that as she merged left, she saw a “dark silhouette” of an object ahead and that
she attempted to brake when she realized that the object was a truck, but her car crashed into the back of the truck.

           Plaintiff filed a complaint against Pabon and Suburban. She alleged that defendants were negligent and
sought compensatory damages. Defendants denied plaintiff’s allegations and, pursuant to the Comparative
Negligence Act, asserted plaintiff’s own negligence as an affirmative defense. Defendants’ counsel was informed
that Pabon had left the country and could not be deposed. Plaintiff moved for an order barring Pabon from testifying
at trial and for an extension of the discovery end date. Prior to the return date of that motion, Pabon returned to the
United States and was deposed. Unaware of that development, a motion judge entered an order granting plaintiff’s
motion to bar Pabon from testifying at trial, but denying plaintiff’s request to extend discovery.

         On May 16, 2011, more than a year after the trial court denied an extension of discovery and approximately
two-and-a-half weeks before the trial date, plaintiff served a set of requests for admissions asking that defendants
admit or deny various medical opinions submitted by Thomas E. Helbig, M.D., defendants’ expert orthopedist.
When trial began on June 6, 2011, the thirty-day period for defendants’ response to plaintiff’s requests for
admissions, as prescribed by Rule 4:22-1, had not yet expired. Defendants took the position that the requests for
admissions were untimely, and did not serve responses to those requests.

          In his opening statement, plaintiff’s counsel referred to admissions made by Pabon at his deposition.
Defendants objected, citing the pretrial order barring Pabon from testifying. Pabon did not testify, but the trial court
permitted plaintiff to read portions of his deposition testimony into evidence. Pursuant to State v. Clawans, 38 N.J.
162 (1962), the court instructed the jury to consider drawing an adverse inference against defendants from Pabon’s
failure to testify. Defendants declined to present Dr. Helbig’s testimony. Plaintiff’s counsel, however, asserted that
he had the right to read into the record plaintiff’s requests for admissions. Defendants’ counsel objected. The trial
court permitted plaintiff’s counsel to read those requests to the jury and issued a second Clawans charge authorizing
the jury to draw an adverse inference against defendants because they decided not to call their expert as a witness.

         During her direct examination, plaintiff volunteered that she had significant medical bills and lacked the
resources to pay them. Defendants’ counsel objected. The trial court did not strike the testimony or instruct the jury
to disregard it. In addition, the trial court misidentified defendant as the party who was subject to the duty to follow
another vehicle at a safe distance, despite the undisputed evidence that plaintiff’s vehicle was traveling behind the
truck driven by Pabon.

          The jury returned a verdict in plaintiff’s favor, allocating fifty-five percent of the fault to defendants and
forty-five percent to plaintiff. The jury awarded $4.5 million in damages. The trial court molded the verdict and
entered judgment for plaintiff in the amount of $2,735,455.08. Defendants appealed, claiming that the trial court
erred by issuing adverse interest charges as to Pabon and Dr. Helbig; by allowing plaintiff to read to the jury the
requests for admissions; by failing to instruct the jury that plaintiff was not entitled to medical expenses; and, by
misidentifying defendant as the party who was subject to the duty to follow another vehicle at a safe distance.
          The Appellate Division affirmed, concluding that there was no abuse of discretion and that the errors
defendants complained of were harmless in light of the evidence. The Supreme Court granted defendants’ petition
for certification. 218 N.J. 531 (2014).

HELD: The trial court’s five erroneous determinations, affecting both the issue of liability and the determination of
damages, gave rise to cumulative error warranting a new trial.

1. An adverse inference charge may be warranted when a party’s failure to present evidence “raises a natural
inference that the party so failing fears exposure of those facts would be unfavorable to him.” State v. Clawans,
supra, 38 N.J. at 170. A jury may draw an adverse inference only if it appears “that the person was within the power
of the party to produce and that his testimony would have been superior to that already utilized in respect to the fact
to be proved.” Id. at 171. In State v. Hill, this Court prescribed a four-pronged test for an adverse interest charge.
199 N.J. 545, 561-62 (2009). Given its potentially dispositive impact on the jury’s determination – and prejudicial
impact of an inappropriate adverse inference – the adverse inference charge is only given when all of the Hill factors
are found to warrant the charge. Id. at 561. In this case, had the trial court undertaken the thorough analysis
mandated by Hill, it would have denied plaintiff’s request for the Clawans charge concerning Pabon. (pp. 14-18)

2. Plaintiff’s requests for admissions were untimely and substantively improper, and defendants had no obligation
to respond to them. Plaintiff did not seek admissions from defendants regarding facts within defendants’ knowledge
or attempt to authenticate documents. Instead, she sought defendants’ admissions to selected portions of Dr.
Helbig’s expert report. The requests for admissions did not conform to Rule 4:22-1 and, accordingly, the trial
court’s decision to allow plaintiff to read them to the jury constituted an abuse of discretion. An appropriate
analysis pursuant to Hill, supra, with respect to Dr. Helbig, would have confirmed that no Clawans charge was
warranted. (pp. 18-23)

3. Pursuant to N.J.S.A. 39:4-89, “[t]he driver of a vehicle shall not follow another vehicle more closely than is
reasonable and prudent, having due regard to the speed of the preceding vehicle and the traffic upon, and condition
of, the highway.” In the form set forth in Model Jury Charge (Civil), § 5.30D(2) “Violation of Traffic Act” (August
1999), the instruction to the jury envisions that the driver following behind another driver at the time of a motor
vehicle collision is the defendant, not the plaintiff. Here, however, the driver subject to the duty was plaintiff, not
defendant, and the trial court should have ensured that the Model Jury Charge was tailored to reflect that fact. The
trial court’s charge on this important issue was contradictory and confusing, and constituted error. (pp. 23-25)

4. New Jersey’s 1998 Automobile Insurance Cost Reduction Act (AICRA), N.J.S.A. 39:6A-1.1 to -35, bars juries
from speculating “as to the amount of the medical expense benefits paid or payable by an automobile insurer under
personal injury protection coverage payable under a standard automobile insurance policy...” In this case,
unprompted by her counsel, plaintiff told the jury that she was unable to pay “[h]undreds, thousands of dollars” in
medical bills. The trial court erred when it failed to include the medical expenses charge in its jury instructions,
thereby permitting the jury to mistakenly assume that the medical expenses described by plaintiff constituted an
element of her claim for damages. (pp. 25-30)

5. The trial court’s five erroneous determinations gave rise to cumulative error warranting a new trial. The Clawans
instruction regarding Pabon suggested to the jury that defendants had concealed potentially dispositive information
on defendants’ negligence. By allowing plaintiff to read her requests for admissions to the jury, the trial court
selectively informed the jury about aspects of Dr. Helbig’s opinion that favored plaintiff. In giving a Clawans
charge concerning Dr. Helbig, the court suggested that defendants feared the expert’s disclosure of adverse
evidence. The confusing jury instruction regarding a driver’s duty to follow another driver at a safe distance
suggested that defendant was subject to a finding of negligence because of a purported violation of the traffic statute.
The trial court’s failure to give the required charge regarding medical expenses permitted the jury to consider
plaintiff’s statements about her medical expenses in its calculation of damages. Because of those errors, defendants
were not afforded a fair trial on either liability or damages and are entitled to a new trial. (pp. 27-28)

         The judgment of the Appellate Division is REVERSED and the matter is REMANDED to the trial court
for proceedings consistent with the Court’s opinion.

        CHIEF JUSTICE RABNER; JUSTICES LaVECCHIA, ALBIN, and SOLOMON; and JUDGE
CUFF (temporarily assigned) join in JUSTICE PATTERSON’s opinion. JUSTICE FERNANDEZ-VINA did
not participate.


                                                           2
                                      SUPREME COURT OF NEW JERSEY
                                       A-116 September Term 2013
                                                 074307

SOFIA T. TORRES,

    Plaintiff-Respondent,

         v.

JAVIER PABON and SUBURBAN
DISPOSAL, INC.,

    Defendants-Appellants.


         Argued November 10, 2015 – Decided June 1, 2016

         On certification to the Superior Court,
         Appellate Division.

         Timothy P. Smith argued the cause for
         appellants (Coughlin Duffy, attorneys; James
         P. Lisovicz, of counsel; Mr. Smith, Mr.
         Lisovicz, and Brooks H. Leonard, on the
         briefs).

         Jean A. Amagsila argued the cause for
         respondent.

         Jonathan W. Miller argued the cause for
         amicus curiae New Jersey Association for
         Justice (Locks Law Firm, attorneys; Mr.
         Miller and Michael A. Galpern, on the
         brief).

    JUSTICE PATTERSON delivered the opinion of the Court.

    In this appeal, arising from a judgment in plaintiff’s

favor in a motor vehicle negligence case, we consider

defendants’ contention that the trial court committed several

errors that mandate reversal of the judgment and a new trial.


                                1
       Plaintiff Sofia Torres alleged that she was seriously

injured in a rear-end collision between her car and a garbage

truck owned by defendant Suburban Disposal, Inc. (Suburban) and

operated by defendant Javier Pabon (Pabon).    Plaintiff alleged

that, as a result of defendants’ negligent maintenance of the

truck’s taillights, she was unaware that the truck was ahead of

her.    She contended that Pabon drove negligently, causing the

collision.   Defendants denied plaintiff’s allegations and

asserted that plaintiff’s negligence caused the accident.       The

case was tried before a jury, which found both parties negligent

but allocated fifty-five percent of the fault to defendants, and

awarded a substantial verdict.   The Appellate Division affirmed

the trial court’s judgment.

       We conclude that the trial court committed a series of

errors during the trial.    First, the trial court improperly

issued a jury charge pursuant to State v. Clawans, 38 N.J. 162

(1962), directing the jury to consider drawing an adverse

inference against defendants from Pabon’s failure to testify

after plaintiff presented Pabon’s deposition testimony to the

jury.   Second, the trial court permitted plaintiff to read to

the jury requests for admissions, served by plaintiff

immediately before trial, which improperly sought defendants’

admissions to medical opinions offered by one of their expert

witnesses.   Third, the trial court erroneously issued a second

                                  2
Clawans charge, again authorizing the jury to draw an adverse

inference against defendants because they decided not to call

their expert as a witness.   Fourth, the trial court made

significant errors in its jury instruction regarding the duty of

a driver to maintain a safe distance behind another driver.

Finally, notwithstanding plaintiff’s testimony before the jury

that she had significant medical bills and lacked the resources

to pay them, the trial court failed to instruct the jury that

plaintiff was not entitled to medical expenses as an element of

damages, in accordance with N.J.S.A. 39:6A-12.

    We hold that those five improper rulings, which affected

both the determination of liability and the damages award, gave

rise to cumulative error warranting a new trial.   Accordingly,

we reverse the determination of the Appellate Division and

remand to the trial court for a new trial.

                                I.

    In the early morning of August 30, 2007, at the Fairfield

yard operated by his employer, Suburban, Pabon inspected the

truck assigned to him for his daily garbage collection route.

According to his deposition testimony, Pabon noticed that

although none of the lights on the truck were missing or broken,

some of the lower lights at the rear of the truck were covered

with debris that could not be removed by wiping the lights with

a cloth.

                                3
    At 4:30 a.m., Pabon commenced his route, driving in a

fifty-mile-per-hour zone in one of the eastbound lanes of Route

46 in Fairfield.   Pabon testified that his truck was traveling

at forty to forty-five miles per hour when he entered a

construction area and was directed by a sign to merge to the

left.   He stated that he slowed his vehicle by taking his foot

off the gas pedal, but did not apply his brakes.    According to

Pabon, as his truck merged into the left lane, he did not see

any approaching cars, and he was unaware of plaintiff’s vehicle

until it collided with his truck.

    Plaintiff testified that, immediately before the accident,

she was driving her Nissan Altima eastbound on Route 46, at a

speed of forty-five to fifty miles per hour.     She stated that

she saw the sign directing vehicles to merge from the right lane

into the left lane.     She recalled that, as she merged to the

left, she saw a “dark silhouette” of an object ahead, but could

not “make it out” because it was “camouflage[d] with everything

around there.”   Plaintiff said that when she realized that the

object was a truck, she “stomped on [her] brakes,” but “[w]ithin

one or two seconds, my right side, the driver’s side hit into

the back of the truck.”

    Plaintiff filed a complaint against Pabon and Suburban.

She alleged that defendants were negligent and sought

compensatory damages.     Defendants denied plaintiff’s allegations

                                   4
and asserted plaintiff’s own negligence as an affirmative

defense, pursuant to the Comparative Negligence Act, N.J.S.A.

2A:15-5.1 to -5.17.

    In response to a notice to take Pabon’s deposition,

defendants’ counsel informed plaintiff’s counsel that Pabon had

left the United States and could not be produced for a

deposition.   Several months later, plaintiff moved for an order

barring Pabon from testifying at trial and for an extension of

the discovery end date.   Prior to the return date of that

motion, Pabon returned to the United States.   Plaintiff’s

counsel conducted Pabon’s deposition on November 24, 2009.

Apparently uninformed about that development, a motion judge

entered an order on December 4, 2009, granting plaintiff’s

motion to bar Pabon from testifying at trial, but denying

plaintiff’s request to extend discovery.

    During discovery, defendants designated Thomas E. Helbig,

M.D., as their expert orthopedist.    In his report, Dr. Helbig

opined that plaintiff had sustained several fractures, evidently

as a result of the August 30, 2007 accident, and that although

plaintiff “exhibits excellent alignment of the lower

extremities,” she “does exhibit persistent pain, weakness and

atrophy, particularly in the left leg.”

    Prior to trial, the trial court considered in limine

motions addressing expert opinions.   The trial court granted

                                 5
plaintiff’s pretrial motion to bar portions of the opinion of

defendants’ accident reconstruction expert, John Karpovich,

regarding the speed of the truck at the time of impact.    The

court rejected defendants’ challenge to the accident

reconstruction expert testimony of plaintiff’s expert, Walter

Suhaka.   Before jury selection, the trial court ruled that,

plaintiff’s treating internist, Peter P. Yonclas, M.D., would be

permitted to testify despite plaintiff’s late service of a

supplemental report by the physician, on the grounds that his

report reflected his continued treatment of plaintiff.1

     On May 16, 2011, more than a year after the trial court

denied an extension of discovery and approximately two-and-a-

half weeks before the trial date, plaintiff served a set of

requests for admissions.    The requests for admissions,

designated as a “supplemental demand for admissions,” did not

request that defendants admit or deny factual assertions or

authenticate documents.    Instead, plaintiff asked that

defendants admit or deny various medical opinions that Dr.

Helbig had stated in his expert report.    When trial began on

June 6, 2011, the thirty-day period for defendants’ response to

plaintiff’s requests for admissions, as prescribed by Rule 4:22-


1 In addition to the four expert witnesses who are the subject
of this appeal, plaintiff designated an expert orthopedist and a
treating physician to testify on her behalf, and defendants
designated a neurologist to testify on their behalf.
                                  6
1, had not yet expired.   Defendants took the position that the

requests for admissions were untimely, and did not serve

responses to those requests.

    At the commencement of trial, the trial court and the

parties discussed the potential testimony of defendant Pabon,

whom defendants had designated as a trial witness in their

pretrial submissions.   Plaintiff’s counsel informed the trial

court that defendants were barred by court order from presenting

Pabon’s testimony at trial, on the ground that they had failed

to produce him for a deposition.       Defendants’ counsel informed

the trial court that Pabon had in fact been deposed, and stated

that the pretrial order barring his testimony was an error.       The

trial court declined to rule on the potential testimony of Pabon

prior to trial.

    In his opening statement, plaintiff’s counsel referred to

admissions made by Pabon at his deposition.      Defendants

objected, citing the pretrial order barring Pabon from

testifying.   Defendants informed the trial court that Pabon

would be present at trial, and argued that it would be improper

to admit the transcript of Pabon’s deposition into evidence.

After a colloquy between the trial court and counsel, Pabon’s

status as a potential trial witness remained unresolved.       The

trial court, however, permitted plaintiff to read portions of

Pabon’s deposition testimony into evidence at trial, pursuant to

                                   7
Rule 4:16-1(c).    The court reasoned that the deposition

contained important information about the condition of the truck

at the time of the accident.     Pabon was present during portions

of the trial, but did not testify.

    Plaintiff, who received Personal Injury Protection (PIP)

benefits covering hospital and physicians’ bills, asserted no

claim for medical expenses.     Although her counsel properly

refrained from inquiring about medical expenses in plaintiff’s

direct examination, plaintiff volunteered that she was unable to

pay her medical bills.    She told the jury, “I have no -– no

peace of mind, I have no money, I have all these bills, all

these hospital bills.    How do they want me to pay for a

helicopter ride?    I have no clue.    Hundreds, thousands of

dollars.”     Although defendants’ counsel immediately objected,

the trial court did not strike the testimony or instruct the

jury to disregard it.

    Pursuant to the trial court’s pretrial rulings, plaintiff

was permitted to present her expert testimony without

limitation.    Although he had conducted no analysis to determine

the speed of either vehicle at the time of impact, plaintiff’s

accident reconstruction expert, Suhaka, was permitted to testify

that plaintiff did not have the opportunity to avoid the crash.

Plaintiff’s expert orthopedist, Dr. Hirsch, was permitted to

testify about the impact of plaintiff’s injuries on her mental

                                   8
status and employability.   Plaintiff also presented the

testimony of Dr. Yonclas and another treating physician.

    Defendants called no fact witnesses.       They called two

expert witnesses, their expert neurologist and their accident

reconstruction expert, Karpovich.      The accident reconstruction

expert, barred by the trial court’s ruling from estimating the

speed of plaintiff’s vehicle, testified within the constraints

imposed by the court.   Defendants declined to present the

testimony of their expert orthopedist, Dr. Helbig.

    At the charge conference, plaintiff’s counsel claimed that

defendants had decided not to call Dr. Helbig to the stand

because his report supported opinions stated by plaintiff’s

expert.   Plaintiff’s counsel asserted that he had the right to

read into the record plaintiff’s requests for admissions, which

set forth various opinions stated in Dr. Helbig’s report.

Defendants’ counsel objected, arguing that plaintiff’s requests

for admissions, to which defendants had not responded in light

of their untimely service, could not serve as a substitute for

expert testimony.   Although the trial court initially expressed

concerns about the fairness of plaintiff’s proposed use of her

requests for admissions, it permitted plaintiff’s counsel to

read those requests to the jury.

    Also at the charge conference, the trial court decided to

instruct the jury that it could draw an adverse inference

                                   9
against defendants because they had not presented the testimony

of defendant Pabon or the testimony of their expert, Dr. Helbig.

The court did not engage in an analysis of plaintiff’s request

for the adverse inference charges under Clawans and State v.

Hill, 199 N.J. 545 (2009).   Instead, the court commented that

Pabon was available in court, that defendants had the

opportunity to call him to the stand, and that defendants could

have also called Dr. Helbig as a witness but did not do so.      In

summation, plaintiff’s counsel emphasized the adverse inference

that the jury could draw because defendants had declined to

present Dr. Helbig’s testimony.

    When the trial court gave the jury an instruction based on

Model Jury Charge (Civil), § 5.30D(2) “Violation of Traffic Act”

(August 1999), pursuant to Dolson v. Anastasia, 55 N.J. 2, 10

(1969), it misidentified defendant as the party who was subject

to the duty to follow another vehicle at a safe distance,

despite the undisputed evidence that plaintiff’s vehicle was

traveling behind the truck driven by Pabon before the collision.

Defendants’ counsel interrupted the trial court’s charge to

advise the court of its error.    Although the trial court

promised to “clarify” the charge, it repeated its misstatement

that “defendant” was the motorist subject to the duty to follow

at a safe distance, and then told the jury that if it found

defendant had followed the other vehicle too closely, “the

                                  10
plaintiff is also negligent.”    The trial court then instructed

the jury that it could draw adverse inferences from defendants’

failure to call Pabon and Dr. Helbig to the stand.

    Notwithstanding plaintiff’s testimony regarding her medical

bills, the trial court did not charge the jury that it could not

include in its damages calculation plaintiff’s medical expenses.

Defendants did not request such a charge or object to the trial

court’s failure to address the issue with the jury.

    The jury returned a verdict in plaintiff’s favor.     Pursuant

to N.J.S.A. 2A:15-5.2, the jury allocated fifty-five percent of

the fault to defendants and forty-five percent of the fault to

plaintiff.   The jury awarded $4.5 million in damages.   The trial

court molded the verdict, awarded prejudgment interest and

costs, and entered judgment for plaintiff in the amount of

$2,735,455.08.

    An Appellate Division panel affirmed the trial court’s

judgment.    It held that the trial court’s adverse inference

charge concerning Pabon was not an abuse of discretion.     The

panel concluded that the trial court’s two rulings regarding

defendants’ expert, Dr. Helbig -- its determination that

plaintiff was permitted to read the requests for admissions to

the jury, and its adverse inference charge as to the expert --

constituted harmless error.     The panel acknowledged the trial

court’s confusion of the parties in its jury charge regarding a

                                  11
driver’s duty to follow at a safe distance, but held that the

charge was not harmful error in light of the evidence presented

to the jury regarding the circumstances of the accident.   It

concluded that the trial court’s failure to instruct the jury

not to consider plaintiff’s medical expenses did not give rise

to plain error.   The panel rejected defendants’ contentions that

plaintiff’s experts, Suhaka and Dr. Yonclas, were improperly

permitted to testify, and that the expert testimony of

defendants’ expert, Karpovich, was erroneously restricted.

    We granted defendants’ petition for certification, 218 N.J.

531 (2014), and granted the motion of the New Jersey Association

for Justice (NJAJ) to appear as amicus curiae.

                                 II.

    Defendants urge the Court to reverse the Appellate

Division’s judgment and order a new trial.   They contend that

the trial court’s adverse inference charge as to Pabon was not

only contrary to the principles of Clawans and Hill, but was

fundamentally unfair in light of plaintiff’s use of Pabon’s

deposition testimony at trial.   Defendants argue that the trial

court also erred in allowing plaintiff to read to the jury

untimely and improper requests for admissions regarding the

opinions of their orthopedic expert, Dr. Helbig.   They assert

that the court’s error was compounded by its decision to issue a

Clawans charge as to Dr. Helbig and add that such a charge is

                                 12
rarely warranted when a party fails to call an expert witness.

Defendants contend that the trial court’s mistakes in its charge

to the jury on a driver’s duty to follow at a safe distance,

under Dolson, gave rise to reversible error, and that the

court’s failure to instruct the jury not to consider plaintiff’s

medical expenses in its calculation of damages constituted plain

error.   Defendants assert that the cumulative effect of the

trial court’s errors denied them a fair trial.

    Plaintiff counters that the trial court was fair and even-

handed in its oversight of this case.   She argues that because

her counsel would have consented had defendants sought to call

Pabon as a trial witness, and Pabon was present in court, the

trial court correctly decided to permit the jury to draw an

adverse inference from his failure to testify.    She asserts that

the trial court did not abuse its discretion in admitting her

requests for admissions, and that because of defendants’

unanticipated decision not to call Dr. Helbig to testify on

their behalf, the court properly authorized the jury to draw an

adverse inference from the expert’s absence.     Plaintiff also

argues that the trial court’s mistakes in its jury instruction

on the duty to follow at a safe distance amounted to nothing

more than minor semantic errors that did not affect the outcome.

She notes that defendants declined to request a charge

admonishing the jury not to consider plaintiff’s medical

                                13
expenses in its calculation of damages, and asserts that the

trial court’s failure to give that charge was not plain error.

    Amicus curiae NJAJ urges the Court to remand the matter to

the trial court or the Appellate Division for additional

consideration of the trial court’s Clawans jury instruction

regarding Dr. Helbig.    In the alternative, NJAJ proposes that

the Court affirm the decision of the Appellate Division

regarding the trial court’s issuance of a Clawans charge

concerning Dr. Helbig, on the ground that any error committed by

the trial court was harmless.

                                 III.

                                  A.

    In our review of defendants’ claim that the trial court

committed cumulative error, we first consider the court’s

adverse inference charge regarding the failure of defendant

Pabon to testify at trial.

    An adverse inference charge may be warranted when a party’s

failure to present evidence “raises a natural inference that the

party so failing fears exposure of those facts would be

unfavorable to him.”    Clawans, supra, 38 N.J. at 170.   The jury

is instructed that it may draw an adverse inference against the

party who would be expected to call the witness, but has

declined to do so.     See id. at 170-71; Hill, supra, 199 N.J. at

559-61.

                                  14
    As this Court stated in Hill, supra, however, the adverse

inference instruction “is not invariably available whenever a

party does not call a witness who has knowledge of relevant

facts.”    199 N.J. at 561.   The jury is instructed that it may

draw an adverse inference from a party’s failure to call a

witness only if it appears “that the person was within the power

of the party to produce and that his testimony would have been

superior to that already utilized in respect to the fact to be

proved.”   Clawans, supra, 38 N.J. at 171 (citing Meistrich v.

Casino Arena Attractions, Inc., 54 N.J. Super. 25, 31 (App.

Div.), modified 31 N.J. 44 (1959); O’Neil v. Bilotta, 18 N.J.

Super. 85, 86 (App. Div.), aff’d, 10 N.J. 308 (1952)).       The

adverse inference “is always open to destruction by explanation

of circumstances which make some other hypothesis a more natural

one than the party’s fear of exposure.”       Ibid.

    In Hill, supra, the Court set forth procedures for a trial

court to follow when a party requests an adverse inference

charge or states its intent to address in summation the absence

of a witness.   199 N.J. at 560-62.      The party seeking the charge

“must notify the opposing party and the judge, outside of the

presence of the jury, must state the name of the witness or

witnesses not called, and must set forth the basis for the

belief that the witness or witnesses have superior knowledge of

relevant facts.”    Id. at 560-61.     The trial court must conduct a

                                  15
“dispassionate assessment of the circumstances” of the specific

case.   Id. at 561; see also Washington v. Perez, 219 N.J. 338,

356-57 (2014).   To guide that assessment, the Court in Hill,

supra, prescribed a four-pronged test:

          (1) that the uncalled witness is peculiarly
          within the control or power of only the one
          party, or that there is a special relationship
          between the party and the witness or the party
          has superior knowledge of the identity of the
          witness or of the testimony the witness might
          be expected to give; (2) that the witness is
          available to that party both practically and
          physically; (3) that the testimony of the
          uncalled witness will elucidate relevant and
          critical facts in issue[;] and (4) that such
          testimony appears to be superior to that
          already utilized in respect to the fact to be
          proven.

          [199 N.J. at 561-62 (alteration in original)
          (quoting State v. Hickman, 204 N.J. Super.
          409, 414 (App. Div.), certif. denied, 103
          N.J. 495 (1986)).]

    Because the prejudicial impact of an inappropriate adverse

inference charge may be “severe,” the case-specific assessment

mandated in Hill serves an essential purpose.   Id. at 562.     As

the Court observed, “it is one thing for counsel in his

summation to point to the absence of particular witnesses; it is

quite another when the court puts the weight of its authority

behind such a summation by telling the jury it may draw an

adverse inference from their absence.”   Ibid. (quoting Wild v.

Roman, 91 N.J. Super. 410, 415 (App. Div. 1966)).   Given its

potentially dispositive impact on the jury’s determination, the

                                16
adverse inference charge is only given when all of the Hill

factors are found to warrant the charge.    Id. at 561;

Washington, supra, 219 N.J. at 356.

    Had the trial court undertaken the thorough analysis

mandated by Hill, it could not have found in plaintiff’s favor

on all four of the Hill factors, and would have denied

plaintiff’s request for the Clawans charge concerning Pabon.

The record did not support a finding on the first factor

identified in Hill, supra:    “that the uncalled witness is

peculiarly within the control or power of only the one party, or

that there is a special relationship between the party and the

witness or the party has superior knowledge of the identity of

the witness or of the testimony the witness might be expected to

give[.]”   199 N.J. at 561.   Plaintiff’s counsel could have

secured Pabon’s trial testimony by service of a notice in lieu

of subpoena on his counsel, pursuant to Rule 1:9-1, by court

order, or by consent.   Moreover, plaintiff’s counsel had deposed

Pabon and was fully familiar with his testimony.

    There was a basis for findings by the trial court in

plaintiff’s favor on the second Hill factor, “that the witness

is available to [defendants] both practically and physically,”

and the third Hill factor, “that the testimony of the uncalled

witness will elucidate relevant and critical facts in issue[.]”

199 N.J. at 561.   However, given plaintiff’s affirmative use of

                                 17
Pabon’s detailed deposition testimony in her case, there was no

support for a finding in plaintiff’s favor on the fourth Hill

factor, that Pabon’s testimony “appears to be superior to that

already utilized in respect to the fact to be proven.”    Ibid.

Thus, the circumstances of this case justified findings in

plaintiff’s favor with respect to only two of the Hill factors,

not the mandated four.

    By giving the Clawans charge, the court suggested to the

jury that Pabon’s testimony would have undermined defendants’

case and that defendants had sought to conceal that testimony

from the jury.   Thus, plaintiff not only utilized deposition

testimony by Pabon to support her case, but she also had the

benefit of a potentially determinative jury charge.

    Accordingly, the trial court erred when it gave the jury an

adverse inference charge pursuant to Clawans with respect to

defendants’ decision not to call Pabon to testify at trial.

                                B.

    We next review the trial court’s two determinations

regarding defendants’ orthopedic expert, Dr. Helbig:     the

court’s ruling permitting plaintiff to read to the jury

plaintiff’s late-served requests for admissions stating Dr.

Helbig’s opinions, and its Clawans charge based on defendants’

decision not to call Dr. Helbig as an expert witness at trial.



                                18
    Requests for admissions are intended “to streamline

litigation by ‘weeding out items of fact and proof over which

there is no dispute, but which are often difficult and expensive

to establish by competent evidence[.]’”   Hungerford v. Greate

Bay Casino Corp., 213 N.J. Super. 398, 404 (App. Div. 1986)

(quoting Klimowich v. Klimowich, 86 N.J. Super. 449, 452 (App.

Div. 1965)).   Rule 4:22-1 authorizes service on an opposing

party of “a written request for the admission for purposes of

the pending action only, of the truth of any matters of fact

within the scope of R. 4:10-2 set forth in the request,

including the genuineness of any documents described in the

request.”   The matter set forth in the request is deemed

“admitted unless, within 30 days after service of the request,

or within such shorter or longer time as the court may allow,

the party to whom the request is directed serves . . . a written

answer or objection addressed to the matter, signed by the party

or by the party’s attorney[.]”   Ibid.

    In this case, plaintiff’s requests were served long after

the close of discovery, so close to the trial date that the

thirty-day period to respond did not expire until the trial was

well underway.   There was no application to the court for leave

to serve the requests, much less an order granting such leave.

The requests for admission were therefore untimely, and

defendants had no obligation to respond to them.

                                 19
       The requests for admissions also were substantively

improper.    Plaintiff did not seek admissions from defendants

regarding facts within defendants’ knowledge, or attempt to

authenticate documents.    Instead, she sought defendants’

admissions to selected portions of Dr. Helbig’s expert report.

The requests for admissions did not conform to Rule 4:22-1.

Accordingly, the trial court’s decision to authorize plaintiff

to read to the jury plaintiff’s requests for admissions

constituted an abuse of its discretion.

       The trial court’s error was compounded when it gave the

jury an adverse inference charge regarding defendants’ decision

not to call Dr. Helbig as a witness.    Defendants objected to

plaintiff’s request for a Clawans instruction, noting that

giving that charge after allowing plaintiff to read the requests

for admissions concerning Dr. Helbig’s report would be “piling

on.”    The trial court rejected defendants’ argument.   Consistent

with its approach to the adverse inference issue regarding

Pabon, the court gave the instruction without considering the

Hill factors as they applied to Dr. Helbig.

       Again, had the trial court undertaken an appropriate

analysis pursuant to Hill with respect to Dr. Helbig, that

inquiry would have confirmed that no Clawans charge was

warranted.    The first Hill factor, which focuses on one party’s

exclusive control over, or special relationship with, the

                                 20
witness, weighs against a Clawans charge.    199 N.J. at 561.

Defendants exercised no proprietary right to their expert’s

testimony, and plaintiff could have called Dr. Helbig to the

stand.    Washington, supra, 219 N.J. at 365 (noting defendants

did not have exclusive control over physicians designated as

their experts); Fitzgerald v. Stanley Roberts, Inc., 186 N.J.

286, 302 (2006) (holding party may call adversary’s expert when

expert was designated as adversary’s testifying expert).

    The record is inconclusive with respect to the second Hill

factor, which concerns whether Dr. Helbig was “available to

[defendants] both practically and physically.”    199 N.J. at 561.

The third consideration identified in Hill, whether Dr. Helbig’s

testimony would have “elucidate[d] relevant and critical facts

in issue,” also provides no support for an adverse inference

charge.   Ibid.   There is no indication that Dr. Helbig was

uniquely aware of any facts relevant to this case, in light of

plaintiff’s examination and treatment by her own medical

witnesses, or that he had information that was withheld from the

expert’s report that was served on plaintiff.    Finally, Dr.

Helbig’s testimony was not “superior to [testimony] already

utilized in respect to the fact to be proven,” for purposes of

the fourth Hill factor.    Ibid.   There is no indication that Dr.

Helbig’s testimony would have proven more illuminating than the

opinions of the experts who testified before the jury.     Thus,

                                   21
under a proper Hill analysis, plaintiff’s request for an adverse

inference charge concerning Dr. Helbig’s failure to testify

should have been denied.   Moreover, in accordance with Hill,

supra, the trial court should have barred plaintiff’s counsel

from discussing, in summation, Dr. Helbig’s absence from the

trial.   199 N.J. at 569 n.9.

    Indeed, as this Court held after the trial in this case, “a

Clawans charge will rarely be warranted when the missing witness

is not a fact witness, but an expert.”    Washington, supra, 219

N.J. at 364.   By virtue of the expansive expert discovery

authorized by our court rules, an expert’s opinions and the

factual basis for those opinions are likely to be disclosed to

the opposing party well in advance of trial.     Id. at 361-62.

Moreover, a party’s decision not to call a particular expert

witness may reflect strategic considerations having nothing to

do with that party’s fear of adverse testimony.    Id. at 363-64.

“Thus, when the witness whom a party declines to call at trial

is an expert rather than a fact witness, the factors that may

necessitate an adverse inference charge addressing the absence

of a fact witness are unlikely to be germane.”    Id. at 364.

    Accordingly, the trial court committed two errors in its

response to defendants’ decision not to call Dr. Helbig as their

expert orthopedist at trial:    it permitted plaintiff to read her

untimely and improper requests for admissions to the jury, and

                                 22
it gave the jury an unwarranted and inappropriate Clawans

charge.

                                 C.

       We next consider the trial court’s jury instruction

regarding the duty of a driver to maintain a safe distance while

following another vehicle.    The Legislature codified that duty

in N.J.S.A. 39:4-89:

           The driver of a vehicle shall not follow
           another   vehicle   more  closely   than   is
           reasonable and prudent, having due regard to
           the speed of the preceding vehicle and the
           traffic upon, and condition of, the highway.

       In Dolson, supra, this Court determined that N.J.S.A. 39:4-

89 “merely incorporates the common law standard into the motor

vehicle law to authorize penal sanctions for a violation[,]” and

that a driver’s conduct contravening that standard “is

negligence and a jury should be so instructed.”    55 N.J. at 10

(emphasis in original); see also Eaton v. Eaton, 119 N.J. 628,

642-43 (1990) (holding where “a statute specifically

incorporates a common-law standard of care, a jury finding of a

statutory violation constitutes a finding of negligence”).

Thus, because N.J.S.A. 39:4-89 imposes a statutory duty of care

on a driver following behind another driver, a finding that the

driver violated the duty obviates the need for further proof of

negligence.   Dolson, supra, 55 N.J. at 10 (citing N.J.S.A. 39:4-

89).

                                 23
    The statutory standard, and the common-law principle that

it codifies, are incorporated in Model Jury Charge (Civil), §

5.30D(2) “Violation of Traffic Act” (August 1999):

         In this case, plaintiff argues that defendant
         was negligent because defendant violated a
         provision of the motor vehicle laws.       The
         provision referred to, N.J.S.A. 39:4-89, is as
         follows:   The driver of a vehicle shall not
         follow another vehicle more closely than is
         reasonable and prudent, having due regard to
         the speed of the preceding vehicle and the
         traffic upon, and condition of, the highway.

    In the form set forth in the Model Jury Charge, the

instruction envisions that the driver following behind another

driver at the time of a motor vehicle collision is the

defendant, not the plaintiff.   Like all model charges, however,

the Model Jury Charge must be adjusted, as necessary, to conform

to the particular facts of a given case.   See Komlodi v.

Picciano, 217 N.J. 387, 420 (2014) (noting “[a]s with all jury

instructions, the trial judge should tailor the charge to the

facts and the parties’ arguments”).   Here, the driver subject to

the duty set forth in N.J.S.A. 39:4-89 was plaintiff, not

defendant, and the trial court should have ensured that the

Model Jury Charge was tailored to reflect that fact.

    Instead, the trial court juxtaposed the parties in its

recitation of the charge, instructing the jury that defendant

had the obligation to follow plaintiff’s vehicle at a safe

distance, and repeated the error after being alerted to it by

                                24
defendants’ counsel.   Although the trial court belatedly

mentioned the possibility that plaintiff was negligent, the jury

may have been left with the mistaken impression that defendants’

vehicle followed plaintiff’s vehicle too closely, when

defendants’ vehicle indisputably was ahead of plaintiff’s

vehicle prior to the collision.    The trial court’s charge on

this important issue was contradictory and confusing, and

constituted error.

                                  D.

      Finally, we review the trial court’s failure to instruct

the jury that plaintiff, who collected PIP benefits, was not

entitled to an award for medical expenses as an element of

damages in her civil claim.

      New Jersey’s 1998 Automobile Insurance Cost Reduction Act

(AICRA), N.J.S.A. 39:6A-1.1 to -35, bars the admission, in a

civil action for personal injury damages, of “evidence of the

amounts collectible or paid under a standard automobile

insurance policy pursuant to [N.J.S.A. 39:6A-4, -10] . . .       to

an injured person, including the amounts of any deductibles,

copayments or exclusions, including exclusions pursuant to

[N.J.S.A. 39:6A-4.3], otherwise compensated.”    N.J.S.A. 39:6A-

12.   The statute provides:

          The court shall instruct the jury that, in
          arriving at a verdict as to the amount of the
          damages for noneconomic loss to be recovered

                                  25
         by the injured person, the jury shall not
         speculate as to the amount of the medical
         expense benefits paid or payable by an
         automobile insurer under personal injury
         protection coverage payable under a standard
         automobile insurance policy pursuant to
         [N.J.S.A. 39:6A-4, -10]. . . .

         Nothing in this section shall be construed to
         limit the right of recovery, against the
         tortfeasor, of uncompensated economic loss
         sustained by the injured party.

         [Ibid.]

    Thus, “testimony as to the amount of lost wages and medical

expenses collectible or paid as PIP benefits . . . is not

admissible in evidence.”   Clifford v. Opdyke, 156 N.J. Super.

208, 213 (App. Div. 1978) (citing N.J.S.A. 39:6A-12).     In

accordance with the statute, Model Jury Charge (Civil) § 8.20

“Medical Expenses (Auto)” (December 1996) states, “[t]he

plaintiff’s claim in this case does not include any claims for

medical expenses.   Therefore, in determining the reasonable

amount of damages due to plaintiff, you shall not speculate

about the medical expenses plaintiff may have had.”

    In Espinal v. Arias, the Appellate Division reversed a jury

verdict because the trial court improperly denied defense

counsel’s request for a charge instructing the jury not to

consider the plaintiff’s medical expenses in determining its

verdict for noneconomic damages.     391 N.J. Super. 49, 62 (App.

Div.), certif. denied, 192 N.J. 482 (2007).     There, the


                                26
“[p]laintiff offered no evidence of medical expenses during

trial, but he did testify that he had received medical

treatment.”   Ibid.   The panel noted that “[i]n the absence of

[the model] charge, the jury might speculate about a plaintiff’s

medical expenses in arriving at a damages verdict.”     Id. at 63.

The panel rejected the trial court’s determination that the jury

instruction was unnecessary in light of the absence of any claim

for medical expenses, noting that “it is exactly under those

circumstances when this charge must be given.”    Ibid.

    In this case, plaintiff’s testimony extended beyond the

comments about medical treatment that the Appellate Division

considered in Espinal.   Unprompted by her counsel, plaintiff

told the jury that she was unable to pay “[h]undreds, thousands

of dollars” in medical bills.   Defendants did not ask the trial

court to give the model charge admonishing the jury not to

include medical expenses in its calculation of damages.

Nonetheless, the trial court erred when it failed to include the

medical expenses charge in its jury instructions.     Without the

guidance of that charge, the jury may have mistakenly assumed

that the medical expenses described by plaintiff constituted an

element of her claim for damages.

                                 E.

    An appellate court may reverse a trial court’s judgment if

“the cumulative effect of small errors [is] so great as to work

                                 27
prejudice[.]”    Pellicer v. St. Barnabas Hosp., 200 N.J. 22, 53

(2009).2   In Pellicer, supra, the Court noted that by virtue of

the aggregate effect of a series of errors addressed in that

case, the trial court had not afforded to the defendants a fair

trial:

           Our review of the record convinces us that,
           taken together, these numerous claims of error
           cannot be explained away as harmless.     They
           are not simply a litany of minor or
           inconsequential matters of no substance or
           significance. Rather, they represent real and
           repeated errors that cumulated so as to
           unfairly tilt the balance in favor of
           plaintiffs and to deprive defendants of a fair
           trial.

           [Id. at 56-57.]

     The Court cautioned that a cumulative error analysis does

not “simply entail[] counting mistakes, because even a large

number of errors, if inconsequential, may not operate to create

an injustice.”   Id. at 55.   It commented that it neither invited

nor countenanced “appeals that do no more than point to minutiae

in an effort to create the impression that there was an


2  If an appellate court finds cumulative error, it need not
consider whether each individual error was prejudicial. See,
e.g., State v. Jenewicz, 193 N.J. 440, 473 (2008) (asserting
appellate courts “need not decide whether any of the individual
errors found to have occurred in defendant’s trial would amount
to reversible error”); State v. Koskovich, 168 N.J. 448, 540
(2001) (stating “[b]ecause we find that those instructions
constitute cumulative error warranting reversal of the death
sentence, we do not address whether any of them, standing alone,
would warrant that same result”).


                                 28
atmosphere of unfairness.”     Ibid.   It recognized, however, that

if the combined effect of multiple errors deprives a party of a

fair trial, an appellate court should order a new trial.         Id. at

55-57; see also Jenewicz, supra, 193 N.J. at 473 (noting

cumulative effect of individual errors “can cast sufficient

doubt on a verdict to require reversal”); Barber v. ShopRite of

Englewood & Assocs., Inc., 406 N.J. Super. 32, 52-53 (App. Div.)

(“When ‘legal errors are manifest that might individually not be

of such magnitude to require reversal but which, considered in

their aggregate, have caused [a party] to receive less than a

fair trial,’ a new trial is warranted.” (alteration in original)

(quoting Eden v. Conrail, 175 N.J. Super. 263, 267 (App. Div.

1980), modified by 87 N.J. 467 (1981))), certif. denied, 200

N.J. 210 (2009).     Thus, in our review of defendants’ claim of

cumulative error, we consider the aggregate effect of the trial

court’s errors on the fairness of the trial.      Pellicer, supra,

200 N.J. at 56-57.

    We conclude that the trial court’s five erroneous

determinations gave rise to cumulative error warranting a new

trial.   The court’s rulings affected both the issue of liability

and the determination of damages.      The Clawans instruction

regarding Pabon suggested to the jury that defendants had

concealed potentially dispositive information on defendants’

negligence.   By allowing plaintiff to read her requests for

                                  29
admissions to the jury, the trial court selectively informed the

jury about aspects of Dr. Helbig’s opinion that favored

plaintiff.     In giving a Clawans charge concerning Dr. Helbig,

the court suggested that defendants feared the expert’s

disclosure of adverse evidence.     The confusing jury instruction

regarding a driver’s duty to follow another driver at a safe

distance suggested that defendant was subject to a finding of

negligence because of a purported violation of the traffic

statute.   The trial court’s failure to give the required charge

regarding medical expenses permitted the jury to consider

plaintiff’s statements about her medical expenses in its

calculation of damages.

     Because of those errors, defendants were not afforded a

fair trial on either liability or damages.3    They are entitled to

a new trial.

                                  IV.

     The judgment of the Appellate Division is reversed, and the

matter is remanded to the trial court for proceedings in

accordance with this opinion.




3  We do not reach the issues of whether the trial court
improperly limited the testimony of defendants’ accident
reconstruction expert, Karpovich, improperly denied defendants’
motion in limine regarding the testimony of plaintiff’s accident
reconstruction expert, Suhaka, and improperly permitted
plaintiff’s treating physician, Dr. Yonclas, to testify despite
the late service of his final report.
                                  30
     CHIEF JUSTICE RABNER; JUSTICES LaVECCHIA, ALBIN, and
SOLOMON; and JUDGE CUFF (temporarily assigned) join in JUSTICE
PATTERSON’s opinion. JUSTICE FERNANDEZ-VINA did not
participate.




                               31
                  SUPREME COURT OF NEW JERSEY

NO.       A-116                                  SEPTEMBER TERM 2013

ON CERTIFICATION TO             Appellate Division, Superior Court



SOFIA T. TORRES,

      Plaintiff-Respondent,

              v.

JAVIER PABON and SUBURBAN
DISPOSAL, INC.,

      Defendants-Appellants.




DECIDED                June 1, 2016
                  Chief Justice Rabner                      PRESIDING
OPINION BY            Justice Patterson
CONCURRING/DISSENTING OPINIONS BY
DISSENTING OPINION BY


                                      REVERSE AND
  CHECKLIST
                                         REMAND
  CHIEF JUSTICE RABNER                         X
  JUSTICE LaVECCHIA                            X
  JUSTICE ALBIN                                X
  JUSTICE PATTERSON                            X
  JUSTICE FERNANDEZ-VINA               ------------------
  JUSTICE SOLOMON                              X
  JUDGE CUFF (t/a)                             X
  TOTALS                                       6
