                            NOT FOR PUBLICATION WITHOUT THE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-2866-16T2

HELEN R. GODDARD and MALCOLM S.
GODDARD, husband and wife,

       Plaintiffs-Appellants,

v.

JOSEPH I. FINK, JR. and ATLANTIC CITY
ELECTRIC COMPANY, d/b/a ATLANTIC
CITY ELECTRIC, a PHI Company,
a New Jersey Corporation,

     Defendants-Respondents.
__________________________________________

                Argued September 24, 2018 – Decided October 4, 2018

                Before Judges Sabatino and Mitterhoff.

                On appeal from Superior Court of New Jersey, Law
                Division, Atlantic County, Docket No. L-0865-14.

                Evan S. Goddard argued the cause for appellants.

                Ethan A. Hougah argued the cause for respondents
                (Montgomery, McCracken, Walker & Rhoads, LLP,
                attorneys; Gerald J. Corcoran and Ethan A. Hougah, on
                the brief).
PER CURIAM

      After a trial in this personal injury case, a jury found defendant Joseph I.

Fink, Jr., fully liable for causing the collision of his employer's truck with

plaintiff Helen R. Goddard's car and awarded her $3,000 in damages. One of

the key disputed issues at trial was the severity and duration of the bodily

injuries plaintiff 1 allegedly sustained as a result of the collision. Plaintiff's

medical experts opined that she sustained right shoulder and mild traumatic

brain injuries in the accident. Conversely, defendants and their medical expert,

orthopedic surgeon Dr. Brian Zell, attributed any lingering complaints to

plaintiff's age and pre-existing arthritis and other conditions. Following the

verdict, plaintiff moved for additur or, alternatively, a new trial, which the trial

court denied.

      On appeal, plaintiff argues she was unfairly surprised at Dr. Zell's de bene

esse deposition when he was then shown, for the first time, surveillance

photographs of plaintiff, and modified his opinions from his earlier expert report

about plaintiff's condition and whether she would benefit from surgery. Plaintiff



1
   The jury found plaintiff's spouse Malcolm S. Goddard was not entitled to
recovery on his per quod claim. For ease of discussion, the references to
"plaintiff" in this opinion shall mean Helen R. Goddard, unless otherwise
indicated by the context.
                                                                            A-2866-16T2
                                         2
argues the defense expert's change of opinion – without first issuing a

supplemental expert report – was material and unduly prejudicial. She asserts

the trial court erred in allowing the jury to hear those modified opinions.

      Plaintiff further argues the trial court erred in its references during the jury

charge to concepts of permanency, since defendant drove a commercial vehicle

and her claims therefore are not subject to the lawsuit limitation threshold

pursuant to N.J.S.A. 39:6A-8(a). Lastly, plaintiff contends the jury's award

severely undercompensated her for her injuries and should be either enhanced

by additur, or at least set aside pending a new trial on damages.

      As elaborated in this opinion, we conclude the defense acted improperly

in eliciting opinions from Dr. Zell at his de bene esse deposition concerning the

medical significance of the surveillance footage without providing advance

notice of those opinions during the discovery period. We reject defendant's

argument that the new opinions elicited from Dr. Zell were properly admitted

pursuant to N.J.R.E. 703, regardless of any violation of the Court Rules. The

defense should have alerted plaintiff to the new opinions before the defense

expert's de bene esse deposition. Even so, we discern no reversible error arising

from the lack of such advance notice because plaintiff was well equipped to

counter Dr. Zell's views with the testimony from plaintiff's two testifying


                                                                              A-2866-16T2
                                          3
medical experts opining on the surveillance evidence, and in light of the

vigorous cross-examination of Dr. Zell conducted by plaintiff's counsel. In

addition, plaintiff has not demonstrated the error was harmful in light of the

record as a whole.

      We reject plaintiff's claims of error respecting the references to

permanency in the jury instructions.         The concept of permanency was

appropriately included in the instructions in light of plaintiff's allegations and

medical proofs that her injuries were unremitting and expected to continue after

trial. Moreover, we are satisfied the curative instruction issued by the court, to

which plaintiff did not object, sufficiently clarified the durational concepts for

the jurors.

      Finally, we decline to set aside the jury's assessment of damages, in light

of the great deference owed to the jurors' valuation and the principles of Cuevas

v. Wentworth Grp., 226 N.J. 480, 501 (2016). No new trial was warranted.

                                        I.

      The motor vehicle accident that is the subject of this appeal occurred on

the afternoon of March 8, 2012 in Pomona, at the uncontrolled intersection of

White Horse Pike and Genoa Avenue.             Plaintiff was driving a yellow

Volkswagen Beetle sedan. Fink was driving a white pick-up truck for his


                                                                          A-2866-16T2
                                        4
employer, co-defendant Atlantic City Electric Company. Plaintiff had just been

with a real estate broker showing the broker a property that plaintiff and her

husband wished to place on the market for sale. Fink was returning home from

his work shift.

      According to plaintiff's version of the accident, she was driving about

thirty to thirty-five miles per hour in the right lane of White Horse Pike, heading

eastbound. Fink's truck was approaching on White Horse Pike westbound from

the opposite direction. Fink made a left hand turn across plaintiff's lane of

travel, attempting to turn onto Genoa Avenue. The two vehicles collided,

damaging the right front of plaintiff's Volkswagen and the right rear of Fink's

truck. The airbag in plaintiff's car did not deploy.

      According to Fink, he had proceeded to make his left turn because a large

tank truck in the left eastbound lane of White Horse Pike had been turning left

at the same time across the intersection. Fink claimed the large truck impeded

his ability to see plaintiff's sedan in the next lane.

      Plaintiff did not lose consciousness from the collision. She felt chest pain,

dizziness, and pains on the right side of her body. She was taken by ambulance

to a local hospital, where she was admitted for three days. Plaintiff, who was

age seventy at the time of the accident, was concerned about the collision


                                                                           A-2866-16T2
                                          5
impairing her heart function because she had aortic valve surgery several years

earlier.

      After plaintiff was discharged from the hospital, she began treatment with

Dr. David M. Anapolle, an orthopedic physician who had been recommended

by her primary care physician. Dr. Anapolle initially diagnosed plaintiff with

various contusions and a sprain of her cervical spine. He prescribed physical

therapy.

      After plaintiff's symptoms persisted, particularly in her right shoulder, Dr.

Anapolle ordered an MRI study, which revealed arthritis in her right shoulder

and a rotator cuff tear. Dr. Anapolle administered cortisone injections, which

provided some temporary improvement but did not eliminate plaintiff's

symptoms. He determined that arthroscopic surgery on the shoulder would

provide plaintiff with her "best chance" of resolving her shoulder problems, but

deferred to plaintiff's concern that she did not want to assume the risks of surgery

in light of her heart condition.

      Dr. Anapolle concluded the motor vehicle accident caused plaintiff's

shoulder injury, and that the condition would continue into the future. He

particularly noted plaintiff's decreased range of motion in her right shoulder.

Plaintiff discontinued treatment with Dr. Anapolle after August 2013.


                                                                            A-2866-16T2
                                         6
      Plaintiff also received treatment from Dr. Jeffrey R. Boxman, a

neurologist who she had seen before the accident for unrelated neurological

ailments. Following the accident, Dr. Boxman examined plaintiff and conducted

neurological testing. He concluded that plaintiff had sustained a concussion in

the accident and recommended rehabilitation therapy to improve her balance.

Dr. Boxman continued to see plaintiff for several visits until June 2014, and

noted the therapy appeared to aid her balance and ability to walk. He opined

that the accident had caused neurological injury to plaintiff, that the injury was

permanent, and that she is at increased risk of falls and injuries.

      Defendants retained as their medical expert Dr. Zell, an orthopedic

surgeon, who examined plaintiff on a single occasion in April 2015 after she

filed the present lawsuit. During his examination, Dr. Zell noted that plaintiff's

range of motion in her left shoulder was normal for a person her age. However,

plaintiff's range of motion in her right shoulder appeared to be restricted. In

particular, with respect to forward flexion, she showed an inability to raise her

right arm more than ninety degrees (i.e., a horizontal position) because she

claimed it was too painful to raise it any further, as opposed to a normal range

of about 170 degrees for a person her age. When testing the strength in plaintiff's




                                                                           A-2866-16T2
                                         7
hands, Dr. Zell noted that they dropped as soon as he applied pressure on them,

a reaction which he described in his written report as a "volitional giveaway."

      Dr. Zell rendered the following expert opinions in the concluding portion

of his report:

                    It is the opinion of this examining physician to a
             reasonable degree of medical certainty on the basis of
             the history obtained, the physical examination
             performed and the medical records reviewed, that the
             patient sustained a strain of the right shoulder at the
             time of the automobile collision in question. On the
             basis of patient's attestation that she had no
             symptomatology in the shoulder predating the collision
             in question and has persistent symptomatology since
             the collision in question, the automobile collision is
             considered an exacerbating event of her preexisting
             arthritis including calcific tendonitis in the right
             shoulder. The automobile collision in question is not
             the proximate cause of the osteoarthritis of the AC
             joint, of the inferior osteophytes off the clavicle of the
             acromion, or of the partial thickness tear in the
             shoulder.

                   This patient has apparently undergone short-lived
             benefit from the subacromial injection. Her level of
             comfort and symptomatology may show some benefit
             from debridement of the calcific deposit and
             subacromial decompression. It is not anticipated on the
             basis of the MRI report that the patient had nor does she
             have a rotator cuff tear necessitating surgical repair.

             [(Emphasis added).]




                                                                          A-2866-16T2
                                         8
      Following Dr. Zell's report, the defense arranged for a company to conduct

surveillance of plaintiff and film her taking part in activities in public places.

The surveillance was performed on July 3 and 4, 2015. A composite video,

approximately a half hour long, was created from the filming, and was ultimately

played for the jury at trial. The video shows plaintiff pulling weeds outside of

her house, shopping alone in a supermarket pushing a cart and reaching for items

on the shelves, and bringing grocery bags into and out of her car. During the

course of these filmed activities, plaintiff is shown raising her right arm more

than ninety degrees. The video shows plaintiff walking with a slow gait and

short steps, but maintaining her balance.

      The defense turned over the surveillance video to plaintiff's counsel in

discovery. Plaintiff's two medical experts, Dr. Boxman and Dr. Anapolle, each

issued a short supplemental report, stating they had reviewed the video and that

it did not change their opinions concerning plaintiff's condition. Dr. Boxman

stated the video depicts plaintiff as having gait ataxia, noting her short steps.

He also noted that when plaintiff bends forward on the video she uses a wide

base stance and holds on with one arm to the ground or her thigh for stability.

Dr. Anapolle, meanwhile, stated the video did not show plaintiff participating

in any activities inconsistent with his previous opinions concerning her


                                                                          A-2866-16T2
                                        9
orthopedic limitations. He noted the video shows that, as plaintiff leaned down

to pull weeds, she used her left arm to support her weight and did not place

significant force on her right arm. Dr. Anapolle also noted that plaintiff's actions

in carrying small shopping bags placed only a small amount of stress on her

right shoulder.

      The defense did not ask Dr. Zell to provide a supplemental expert report

after the surveillance. Instead, the defense waited about six months, by which

point discovery had concluded, to show the video (or photos of plaintiff

extracted from it) to Dr. Zell for the first time at his de bene esse deposition in

February 2016. When Dr. Zell was asked about the video on direct examination

by defense counsel, plaintiff's counsel objected, claiming unfair surprise. The

objection was preserved for the trial court's consideration. Defense counsel then

proceeded to ask Dr. Zell about the significance of the surveillance to his own

opinions. Among other things, Dr. Zell provided these responses:

                 Q.     Doctor, would you engage the computer so
            we can see that surveillance?

                   A.    Sure.

                  Q.    And then I'm going to get to a point where
            I'm going to ask you to stop. Stop it right there.

                  A.      My timing isn't as good as yours so I'll back
            this up just a little bit I think is what you wanted me to

                                                                            A-2866-16T2
                                        10
do. Shoot. I can't get it. Now, I think that's the one
you want.

     Q.     Now, in the picture [photo or video] let's
assume that's Mrs. Goddard.

      A.     Okay.

      Q.     Does that demonstrate forward flexion?

      A.     Yes, it does.

     Q.     And can you estimate what degree of
forward flexion that is?

      A.     160 to 165 degrees.

     Q.     And, in your opinion, what is normal
forward flexion for a 72-year-old?

      A.     165 to 170 degrees.

      Q.   So in that picture it appears that she has full
range of motion.

      A.     She has full forward flexion.

     Q.     And, again -- why don't we close that.
And, again, just remind the jury of the amount of
forward flexion that she demonstrated to you during her
examination.

      A.    She permitted and she stopped herself at 90
degrees, right here (indicating). I'll turn sideways.
Right here (indicating).

      ....


                                                             A-2866-16T2
                             11
      Q.    If her forward flexion had been 160
degrees instead of 90 degrees, would it have changed
your opinion --

     [PLAINTIFF'S        COUNSEL]:           Objection.
Leading.

       Q.     -- would it have changed your opinion
relative to the need for surgery?

      A.    Yes, actually.

      Q.    How would it have changed it?

       A.   I would have been less inclined to suggest
that she needs surgery.

      Q.    Why?

       A.    Because the -- my thought process is the
rationale for her as a potential surgical candidate was
based on her limitation of motion which she proffered
was a result of pain in the forward flex position. The
consideration for surgery was also knowing that she has
a calcium deposit on her rotator cuff and that she has
spurs that hang down from the undersurface of the
acromion and the clavicle and that those spurs do have
an impinging effect or a rubbing effect on her rotator
cuff. So if her motion was far better, I would have been
less inclined to suggest that she need surgery.

      [DEFENSE COUNSEL]: Thank you. That's all
I have.

[(Emphasis added).]




                                                           A-2866-16T2
                          12
      Before the trial began, plaintiff moved in limine to exclude the portions

of Dr. Zell's videotaped deposition that referred to the surveillance video and

his related opinions. Plaintiff also moved to exclude other portions of the

deposition that are not raised as an issue on this appeal. The trial court denied

the motion in limine, recognizing the surveillance video had been turned over to

plaintiff in discovery and concluding that the defense expert was permitted to

comment about the significance of that evidence.

      The trial proceeded, with plaintiff and defendant each presenting several

witnesses on liability and damages. The expert testimony of Dr. Boxman and

Dr. Anapolle for plaintiff and Dr. Zell for the defense was presented to the jury

on video through their recorded de bene esse depositions. The trial testimony

of those experts was substantially consistent with their respective reports, apart

from Dr. Zell's additional findings regarding the significance of the surveillance

evidence. During her trial testimony, plaintiff attempted to explain that the

surveillance video was not a fair indication of her condition because it was

filmed on days without precipitation when her symptoms tend to be less

pronounced. She also noted the hatchback door on her car is light and does not

require much strength to pull down.




                                                                          A-2866-16T2
                                       13
      The jury returned a verdict finding that defendant Fink was one hundred

percent at fault in causing the accident. The jury also found that plaintiff had

proven she was injured as a proximate cause of the accident. The jury awarded

plaintiff $3,000 in damages for her claimed pain and suffering, awarding no

damages on her spouse's per quod claims. No economic damages were claimed

or awarded.

      Following the verdict, plaintiff moved for a new trial or, in the alternative,

additur of the damages award. The trial court denied that motion in an oral

opinion, and this appeal ensued.

      On appeal, plaintiff contends that the trial court erred in: (1) admitting Dr.

Zell's opinions concerning the surveillance video; (2) referring several times to

the term "permanency" in the jury instructions; and (3) denying the motion for

a new trial on damages or additur. Defendants have not cross-appealed, thereby

leaving the adverse liability verdict intact.

                                         II.

      The primary issue on appeal concerns Dr. Zell's videotaped testimony

commenting on the surveillance evidence. This issue implicates both the Rule s

of Court and the Rules of Evidence. In considering plaintiff's claim of error, we

recognize the substantial deference we generally afford to trial judges in


                                                                            A-2866-16T2
                                        14
applying the civil pretrial and discovery rules, see, e.g., Pomerantz Paper Corp.

v. New Cmty. Corp., 207 N.J. 344, 371 (2001) (generally applying an abuse of

discretion standard relating to matters of discovery), and admissibility rulings

concerning trial evidence, see, e.g., In re Accutane Litig., ___ N.J. ___, ___

(2018) (slip op. at 71) (reaffirming the abuse of discretion standard for reviewing

evidentiary rulings on expert testimony). If an abuse of discretion is shown, the

appellant must also generally demonstrate the error was harmful and "clearly

capable of producing an unjust result." R. 2:10-2; see also Pellicer ex rel.

Pellicer v. St. Barnabas Hosp., 200 N.J. 22, 55 (2009) (recognizing that "even a

large number of errors, if inconsequential, may not operate to create an injustice"

and require a civil judgment to be set aside).

      The Rules of Court dictate the appropriate procedures for the pretrial

disclosure of expert opinions. Rule 4:10-2(d)(1) authorizes a party to obtain

discovery of the credentials and opinions of an opposing party's expert through

service of an interrogatory requesting that information. There is no dispute that

plaintiff made such a routine request in this case. Rule 4:17-4(e) specifies that

the answering party must supply "an exact copy of the entire report or reports

rendered by the expert or physician."       Among other things, Rule 4:17-4(e)

requires the report to "contain a complete statement of that person's opinions


                                                                           A-2866-16T2
                                       15
and the basis therefor," as well as "the facts or data considered in forming the

opinions." (Emphasis added). Except as may be otherwise provided by Rule

4:17-4(e), if a party who has supplied interrogatory responses "thereafter obtains

information that renders such answers incomplete or inaccurate, amended

answers shall be served not later than 20 days prior to the end of the discovery

period[.]" R. 4:17-7. "Amendments may be allowed thereafter only if the party

seeking to amend certifies therein that the information requiring the amendment

was not reasonably available or discoverable by the excuse of due diligence prior

to the discovery end date." Ibid. This continuing obligation to disclose or

update material changes in discovery responses is well established and not

refuted by defendants. See, e.g., McKenney v. Jersey City Med. Ctr., 167 N.J.

359, 370-72 (2001); Amaru v. Stratton, 209 N.J. Super. 1, 11 (App. Div. 1985).

      It is also well established that, as a general matter, "[a]n expert's testimony

at trial may be confined to matters of opinion contained within the expert's

report." Mauro v. Owens-Corning Fiberglass Corp., 225 N.J. Super. 196, 206

(App. Div. 1988), aff'd, 116 N.J. 126 (1989). The court is empowered to impose

sanctions for such non-disclosure, including the exclusion of the expert's

undisclosed opinions at trial. Id. at 206-07 (upholding the exclusion of facts,

data, and related opinions plaintiff's expert had not revealed until the time of


                                                                             A-2866-16T2
                                        16
trial). In calibrating the appropriate sanctions for a proven violation, courts are

to consider such factors as whether there is: "(1) the absence of a design to

mislead, (2) [the] absence of the element of surprise if the evidence is admitted,

and (3) [the] absence of prejudice which would result from the admission of the

evidence." Westphal v. Guarino, 163 N.J. Super. 139, 146 (App. Div.), aff'd

o.b., 78 N.J. 308 (1978); see also Amaru, 209 N.J. Super. at 11 (reiterating these

factors). With respect to the "hallmark" element of surprise, "[a] party cannot

claim surprise . . . when the testimony of the expert contains 'the logical

predicates for and conclusions from statements made in the report[.]'"

Velazquez ex rel. Velazquez v. Portadin, 321 N.J. Super. 558, 576 (App. Div.

1999) (quoting McCalla v. Harnischfeger Corp., 215 N.J. Super. 160, 171 (App.

Div. 1987)), rev'd on other grounds, 163 N.J. 677 (2000).

      Defendants argue they had a right to present Dr. Zell's opinions at trial

concerning the surveillance evidence pursuant to N.J.R.E. 703, which provides

that "[t]he facts or data in the particular case upon which an expert bases an

opinion or inference may be those perceived by or made known to the expert at

or before the hearing." (Emphasis added). Defendants contend the surveillance

video was such evidence "made known to" Dr. Zell "at" his de bene esse

deposition, and thus admissible. Moreover, they persuaded the trial court that


                                                                           A-2866-16T2
                                       17
the surveillance-related opinions elicited from Dr. Zell were akin to testimony

in response to hypothetical questions. We reject these legal contentions.

      As this court held long ago in Mauro, 225 N.J. Super. at 207, the

predecessor to N.J.R.E. 703, former Evidence Rule 57, which allowed an expert

to refer at trial to certain facts or data not previously disclosed, did not authorize

a party to use that evidence provision to circumvent an expert's pretrial

disclosure obligations under the Rules of Court. To read the rules of evidence

in that fashion is improper, because it "essentially nullifies the purpose of R.

4:10-2(d)(1), which requires disclosure . . . of the 'substance of the facts and

opinions' to which the expert is expected to testify, as well as the expert's written

report." Ibid.

      The evidence rule cannot nullify the Rules of Court in this fashion.

Logically construed, N.J.R.E. 703 appears to be designed to allow the parties'

experts to react to unanticipated evidence that emerges for the first time at trial,

and to adjust their expert opinions accordingly, such as when a fact witness at

trial revises his or her estimate of a vehicle's speed or the distances involved.

That is not the situation here.

      Moreover, we disagree with the defense's effort to characterize Dr. Zell's

opinions concerning the significance of the surveillance evidence as mere


                                                                              A-2866-16T2
                                         18
responses to hypothetical questions. The surveillance evidence was real and not

hypothetical in nature. The defense expert's assessment of that new evidence

should have been disclosed long before his de bene esse deposition was taken,

just as plaintiff responsibly had each of his two medical experts issue

supplemental reports commenting on the surveillance proof before their own

trial testimony was videotaped. The trial court misapplied its discretion in

condoning defendants' manner of handling the situation. At oral argument on

the appeal, defense counsel asserted that his office waited to provide the

surveillance evidence to Dr. Zell until the day of his videotaped testimony for

strategic reasons. Although the lack of earlier notice to plaintiff may well have

given the defense a degree of strategic advantage, that advantage was unearned

and unjustified.

      That said, we must also consider the extent to which the defense's belated

revelation of Dr. Zell's revised findings was likely to cause any actual prejudice

to plaintiff. This involves a focus on the extent to which Dr. Zell's updated

views materially diverged from his original report, and whether those views

could not have been reasonably foreseen by astute plaintiff's counsel. A fair

reading of the record reflects that Dr. Zell's testimony about the surveillance

evidence differed from his earlier report in two material respects. First, the


                                                                          A-2866-16T2
                                       19
doctor found that plaintiff's arm movements on the video showed right forward

flexion of as much as 165 degrees, in contrast to the ninety-degree limited range

she exhibited during his office examination. That is a material difference.

Second, as the deposition passages quoted above reflect, Dr. Zell explicitly

changed his opinion about whether plaintiff could benefit from right shoulder

surgery, noting that her unrestricted arm movements on the video made him "less

inclined to suggest that she need[s] surgery." This change of opinion is also

material, albeit to a lesser extent than the range-of-motion flexion percentages.

      Even so, we are unpersuaded that these discrete changes in Dr. Zell's

assessment of plaintiff comprised a sufficiently prejudicial and unfair surprise

to warrant a new trial. As the trial court correctly recognized, the underlying

facts and data from the surveillance were duly turned over to plaintiff's counsel

during the discovery period, which ended in October 2015. Plaintiff does not

argue that the surveillance proof itself was improperly procured. Once plaintiff's

counsel reviewed the video proof, it could reasonably be expected that proof

would only fortify Dr. Zell's "bottom-line" conclusion that plaintiff suffered

only limited orthopedic problems from the accident and that her complaints were

objectively more attributable to other factors such as her age and degeneration.

As he phrased it, the new evidence made Dr. Zell "less inclined" to discern a


                                                                          A-2866-16T2
                                       20
need for surgery. That modification of his original opinion was reasonably

predictable, particularly given plaintiff's theme that the expert was generally

biased in favor of the defense's interests.

      Plaintiff has not demonstrated that she was without effective means to

counter Dr. Zell's surveillance-related commentary. For one thing, plaintiff had

already procured supplemental opinions from her two medical experts

explaining why the surveillance evidence did not affect their own assessments.

Plaintiff's own trial testimony provided an explanation of why on the particular

days she was filmed she was feeling better than she would have felt in inclement

weather. Plaintiff's attorney also skillfully cross-examined Dr. Zell at length in

an effort to undercut the credibility and weight of the doctor's assertions.

Moreover, plaintiff did not make any application to the trial court to extend the

discovery period in light of Dr. Zell's revised opinions, or to have her own

experts' reports further supplemented. We also note plaintiff's two experts were

not video recorded until after Dr. Zell's deposition, thereby affording them the

opportunity to take his testimony into account beforehand. That diminishes the

asserted harmfulness of Dr. Zell's brief discussion of that evidence.

      Further, the trial judge reasonably found in his denial of plaintiff's post-

trial motion, that the surveillance evidence itself – a form of factual proof – was


                                                                           A-2866-16T2
                                        21
particularly devastating to plaintiff's case. With their own eyes, the jurors could

evaluate plaintiff's movements while weeding, shopping, and lifting groceries,

and assess directly whether those activities were consistent with plaintiff's

claims of injury.

      In sum, despite our disapproval of the defense's discourteous and

inappropriate non-disclosure, we conclude that plaintiff has not demonstrated

error that was sufficiently harmful to mandate a new trial on that basis. Nicosia

v. Wakefern Food Corp., 136 N.J. 401, 412 (1994) (declining to order a new

trial in a civil case where the claimed errors were not also shown to be

sufficiently harmful). Even so, we urge counsel in future cases to eschew the

course of action followed here. Specifically, counsel should not deliberately

hold back from providing their medical experts with surveillance evidence in

their possession until the day of the expert's post-discovery de bene esse

videotaping session.

                                       III.

      Plaintiff next contends she was severely prejudiced by the fact that the

trial court mentioned the term "permanency" several times during the jury

instructions. We discern no reversible error from these inadvertent references.

For one thing, plaintiff was clearly seeking in this case damages for both past


                                                                           A-2866-16T2
                                       22
and future pain and suffering. Although permanency was not required to be

proven in order for plaintiff to recover an award for past damages, the concept

logically was an ingredient of the case. Indeed, both of plaintiff's medical

experts testified they expected plaintiff's post-accident injuries to continue into

the future.

      We also note that the trial court issued a curative instruction to the jurors,

accurately clarifying that plaintiff had no obligation to prove permanency and

that she was entitled to recover for both proximately-caused past and future

injury. Plaintiff did not object to that curative instruction after it was issued.

The law presumes that jurors are capable of following curative instructions.

Williams v. James, 113 N.J. 619, 632 (1989); see also State v. Burns, 192 N.J.

312, 335 (2007) (recognizing this presumption as to jury instructions in general).

The clarifying instruction issued by the court here was presumptively obeyed.

The fact that the jurors awarded some damages, albeit a small amount, provides

some indication that they did not misunderstand the law. If they erroneously

thought plaintiff had to prove permanent injury to recover anything in this case,

and failed to meet such a burden, they would have awarded no damages at all.




                                                                            A-2866-16T2
                                       23
                                        IV.

      Finally, we address plaintiff's argument that she was entitled to a new trial

or, alternatively, additur of the monetary award. Recently, in Cuevas, 226 N.J.

at 501, the Supreme Court underscored the deference owed to juries as the triers

of fact in calibrating non-economic damages. "[A] permissible award may fall

within a wide spectrum of acceptable outcomes." Id. at 500. In Cuevas, 226

N.J. at 503, the Court retracted its previous approach in He v. Miller, 207 N.J.

230, 251-56 (2011), which called for a more exacting post-trial review of jury

awards with the use of comparative verdict data. The principles justifying such

deference equally apply to a plaintiff's post-trial motion for additur as they do

to a defendant's post-trial motion for remittitur.

      A motion for a new trial based upon a claim the verdict is against the

weight of the evidence generally rests upon the sound discretion of the trial

judge. Baumann v. Marinaro, 95 N.J. 380, 389 (1984). We are not convinced

the trial court misapplied its discretion here in leaving the jury's verdict intact.

Among other things, plaintiff's cessation of treatment, her age, her previous

medical problems, her lack of wage loss or other economic damages, and her

activities depicted on the surveillance film all provide a rational explanation for

the modest damages figure the jurors agreed upon.


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      Ultimately, the jurors apparently found plaintiff and her experts to be less

credible about her injuries than had been anticipated from her perspective.

Guided by Cuevas, we have no reason to second-guess the jurors' decision. The

award, while no doubt disappointing to plaintiff, does not "shock the judicial

conscience." Cuevas, 226 N.J. at 503.

      The balance of plaintiff's contentions, including her argument that the trial

judge did not pay sufficient attention to any reactions of the jurors as they heard

the videotaped testimony, lack sufficient merit to warrant discussion. R. 2:11-

3(e)(1)(E). The judge's prompt and thoughtful rulings on various objections

posed during the trial, and his references to the substance of the evidence ,

evinces a strong familiarity with the proofs and his overall attentiveness to the

case as it unfolded.

      Affirmed.




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