                                NOT FOR PUBLICATION WITHOUT THE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-0228-17T4

JOSEPH GARGUILO,

          Plaintiff-Respondent,

v.

TRI-STATE CLASSIC CAR
RESTORATION,

          Defendant/Third-Party
          Plaintiff-Appellant,

v.

SINE-TRU TOOL CO., INC.,

     Third-Party Defendant-Respondent.
_______________________________________

                    Argued November 28, 2018 – Decided December 11, 2018

                    Before Judges Nugent and Mawla.

                    On appeal from Superior Court of New Jersey, Law
                    Division, Monmouth County, Docket No. DC-008812-
                    16.

                    Christina Vassiliou Harvey argued the cause for
                    appellant (Lomurro, Munson, Comer, Brown &
                    Schottland, LLC, attorneys; Donald M. Lomurro and
            Christina Vassiliou Harvey, of counsel and on the
            briefs).

            James J. Kinneally, III argued the cause for respondent
            Joseph Garguilo (Marriott Callahan & Blair, PC,
            attorneys; James J. Kinneally, III, of counsel and on the
            brief).

PER CURIAM

      Defendant Tri-State Classic Car Restoration (Tri-State) appeals from an

August 2, 2017 judgment, entered in favor of plaintiff Joseph Garguilo, finding

Tri-State violated the Consumer Fraud Act (CFA) by concealing damage to a

vehicle defendant repaired for plaintiff. We affirm.

      The following facts are taken from the record. Defendant is a classic car

restoration shop owned by Eugene Chillemi. In July 2013, plaintiff purchased

a 1971 Z/28 Camaro from Eugene's 1 father, Michael Chillemi. Plaintiff drove

the vehicle for approximately two weeks until an engine fire damaged it.

Plaintiff had the car towed to defendant and inspected by plaintiff's insurance

company, which covered the costs for defendant to make the necessary repairs.

      After the repairs were completed, defendant discovered a noise coming

from inside the motor.    With approval from plaintiff's insurance company,



1
 We utilize Eugene Chillemi's first name to differentiate him from his father.
We mean no disrespect.
                                                                        A-0228-17T4
                                       2
defendant inspected the vehicle and concluded it required an engine rebuild.

Defendant obtained an estimate for the work from a third-party, Sine-Tru

Company (Sine-Tru). Defendant provided the estimate to plaintiff's insurer,

which approved the engine rebuild.

      Defendant removed the engine from the vehicle and delivered it to Sine-

Tru, which stripped and power washed the engine, and performed the rebuild to

plaintiff's specifications. Pertinent to this appeal, Kenny Klewan, the owner of

Sine-Tru, testified there was no crack in the engine block when he inspected it

after it was power washed.

      After the rebuild, Sine-Tru returned the engine to defendant to be

reassembled and installed in the vehicle. According to Eugene's testimony,

defendant "put the carburetor on, . . . primed the motor, checked the oil pressure

in the motor, and . . . put the motor in the car." Defendant then put the alternator

and spark plugs back on the vehicle, set up the car's wiring and the radiator, and

tuned the engine once it was running.

      Importantly, plaintiff and Eugene corresponded regarding the progress of

the vehicle's reassembly while it was in defendant's possession. On one such

occasion, Eugene sent plaintiff a picture of the vehicle's freshly painted tailshaft

depicting a roll of blue painter's tape covering the end of the tailshaft.


                                                                             A-0228-17T4
                                         3
      After defendant completed the work on the vehicle it was returned to

plaintiff in March 2014. In September 2014, plaintiff noted a noise in the motor

and brought the vehicle back to defendant. The car was then transported to Sine-

Tru, which performed work on the engine, including the crankshaft. Sine-Tru

also installed a new clutch and painted the transmission.       Defendant then

performed a five-hundred mile break-in procedure before the vehicle was

returned to plaintiff.

      Plaintiff continued to experience problems with the vehicle after it was

returned to him. He noted the presence of metal flakes in the oil during an oil

change. He sent pictures of the metallic flakes to defendant, who assured him it

was not unusual. Plaintiff noted the smell of engine coolant, and when he

examined the engine he noticed a "bubble in the paint on the engine block,"

which deposited coolant when he put pressure on it.

      Plaintiff brought the vehicle to A&W Performance (A&W), which

inspected it and discovered a crack in the engine block. A&W removed the paint

on the engine and discovered evidence someone had applied an epoxy-like

substance in the area of the crack in an attempt to repair it. A&W replaced the

entire engine because the crack in the engine block could not be repaired. A&W




                                                                        A-0228-17T4
                                       4
also discovered the tailshaft was cracked. The tailshaft also showed signs of

attempted repairs with an epoxy-like substance and a hoseclamp.

      At trial, Eugene, on behalf of Tri-State, and Klewan, on behalf of Sine-

Tru, claimed to be unaware of the crack in the engine block. Eugene denied the

roll of painter's tape covering a portion of the tailshaft in the picture sent to

plaintiff was intended to conceal the crack and the hoseclamp. Plaintiff claimed

otherwise.

      Plaintiff presented expert testimony from Jason Phillips. According to his

testimony, Phillips has owned an auto appraisal business, Auto Appraise,

Incorporated, since 1991. Phillips became an ASE-certified mechanic in 1981

and had experience rebuilding engines. Phillips testified he currently employs

approximately three-hundred subcontractors who perform inspections, mostly

on classic cars, nationwide. He testified he is currently employed "full-time [to]

inspect, appraise, and work for public and insurance companies doing a variety

of tasks as they would relate primarily to classic cars." With respect to his

business, Phillips testified:

                    I have four employees, five including myself, that
             manage the . . . [three-hundred] plus or minus collective
             inspectors we have at any given time, and we go out
             onsite and do inspections on vehicles. Those inspectors
             in the field take photos and notes much like the industry
             of insurance works, like State Farm for example, who

                                                                          A-0228-17T4
                                        5
             sends out a field inspector that assesses . . . the damage
             onsite, sends that back to headquarters. Headquarters
             . . . puts that report together, makes a decision to total
             the car or not, warranty companies to repair the car or
             not. And so we basically operate under the same work
             process as a warranty company or an insurance
             company.

                    ....

                    It started out as [one hundred] percent [classic
             cars], and as the market has changed and gravitated
             over the years, more and more we do late model total
             loss work, diminishment of value cases, estate work, et
             cetera.     So you know, classic cars probably is
             somewhere between [fifty] and [seventy] percent of
             what we do now.

Phillips testified he had been qualified as an expert in the field of classic cars

on several prior occasions. The trial judge qualified Phillips as an expert in the

field of classic cars.

      Phillips testified extensively regarding the damage to the vehicle and the

attempted repairs involving the epoxy-like substance.           He explained the

difference in value between a vehicle whose parts bore the same serial number

and those which did not, such as plaintiff's vehicle, which now had a new engine

installed. He also opined as to the cause of the damage to the vehicle. Phillips

explained he reviewed the photographs of the engine and tailshaft, and examined

the components in person to form his opinion.


                                                                          A-0228-17T4
                                         6
      Following a three day bench trial, the trial judge rendered an oral opinion

and signed a judgment in favor of plaintiff on the second count of his complaint,

which alleged defendant "violated [the CFA,] N.J.S.A. 56:8-2[,] by the omission

of material facts when dealing with [p]laintiff concerning the subject vehicle."

The second count also alleged "[d]efendant misrepresented and/or omitted

material   facts   with    the   intent       that   [p]laintiff   rely   on      such

misrepresentation/omission." The judge found defendant had violated the CFA

by concealing the cracks in the engine block and tailshaft.

      The judge found plaintiff's testimony credible, and that his use of the

vehicle did not cause the damage to the engine block or the tailshaft. The judge

concluded the cracks in the engine block and in the tailshaft were likely caused

by defendant. More importantly, the judge rejected Eugene's testimony as not

credible and found defendant had affirmatively acted to conceal the cracks in

the engine and the tailshaft by performing inadequate repairs with an epoxy-like

substance and paint.

      The judge emphasized the most damaging piece of evidence was the

photograph defendant sent to plaintiff showing the freshly painted transmission

and a roll of painter's tape covering the damaged tailshaft. The judge noted the

picture showed the tailshaft was held together by epoxy and a hoseclamp.


                                                                               A-0228-17T4
                                          7
Therefore, the judge concluded the placement of the painter's tape was not

coincidental, but instead, demonstrated defendant was aware of the crack and

acted to conceal it by using the tape to obscure a view of the damage.

      The judge entered a judgment for $10,118.10, representing the cost to

have A&W replace the engine. This sum was trebled pursuant to the CFA and

then reduced to $15,000, representing the maximum award amount within the

jurisdiction of the Special Civil Part. Following the submission of a certification

of service by plaintiff's counsel, the judge also awarded $10,800 in counsel fees

pursuant to the CFA. This appeal followed.

                                          I.

      The gravamen of this appeal challenges the trial judge's evidential rulings

concerning the admission of expert testimony and reliance on photographic

evidence. "[I]n reviewing a trial court's evidential ruling, an appellate court is

limited to examining the decision for abuse of discretion[.]" Estate of Hanges

v. Metro. Prop. & Cas. Ins. Co., 202 N.J. 369, 382 (2010) (quoting Hisenaj v.

Kuehner, 194 N.J. 6, 12 (2008)).          Courts have uniformly endorsed this

proposition. Ibid. (citations omitted).

      The Supreme Court has stated:

                  Evidentiary decisions are reviewed under the
            abuse of discretion standard because, from its genesis,

                                                                           A-0228-17T4
                                          8
            the decision to admit or exclude evidence is one firmly
            entrusted to the trial court's discretion. . . . Stated
            differently, then, the admissibility of evidence — one
            that is entrusted to the exercise of sound discretion —
            requires that appellate review, in equal measures,
            generously sustain that decision, provided it is
            supported by credible evidence in the record.

            [Id. at 383-84.]

      "[W]e apply the same deferential approach to a trial court's decision to

admit expert testimony, reviewing it against an abuse of discretion standard."

Pomerante Paper Corp. v. New Cmty. Corp., 207 N.J. 344, 371-72 (2011) (citing

Kuehn v. Pub Zone, 364 N.J. Super. 301, 319-21 (App. Div. 2003)).             We

"generally defer to a trial court's disposition of discovery matters unless the

court has abused its discretion or its determination is based on a mistaken

understanding of the applicable law." Rivers v. LSC P'ship, 378 N.J. Super. 68,

80 (App. Div. 2005) (citing Payton v. N.J. Tpk. Auth., 148 N.J. 524, 559 (1997)).

An abuse of discretion "arises when a decision is 'made without a rational

explanation, inexplicably departed from established policies, or rested on an

impermissible basis.'" Flagg v. Essex Cty. Prosecutor, 171 N.J. 561, 571 (2002)

(quoting Achacoso-Sanchez v. Immigration & Naturalization Serv., 779 F.2d

1260, 1265 (7th Cir. 1985)).




                                                                         A-0228-17T4
                                       9
                                        A.

      Defendant argues the trial judge erred when he denied defendant's in

limine motion to bar Phillips from testifying. It asserts the judge abused his

discretion when he considered the expert's testimony regarding the cause of

damage to the vehicle because it was a net opinion. Defendant argues Phillips

was not qualified to offer an expert opinion on this issue, because his curricul um

vitae (CV) did not indicate experience in "automotive repair reconstruction."

Defendant asserts "[e]xperience with automotive appraisals does not

automatically give a party sufficient expertise to testify as to reconstructing

damage to the automotive parts."

      At trial, defendant's counsel moved in limine to bar Phillips from

testifying on the grounds Phillips failed to state the basis of his opinions or the

materials he reviewed to create the report. Counsel further argued the report did

not include authoritative support and only referred "generally to authorities of

industry standards, including ASE, ISO, or I-CAR."

      Counsel argued Phillips offered no explanation to support his claims the

repairs to the engine and tailshaft were amateurish, or evidence to demonstrate

defendant had damaged the vehicle as opposed to the vehicle having been

damaged before the car was purchased in "as is condition." Counsel argued the


                                                                           A-0228-17T4
                                       10
report did not prove defendant had "ever [seen] those parts, ever repaired those

parts," and did not prove defendant had performed the repairs. Counsel also

challenged Phillips' valuation methodology, arguing his report contained no

market analysis to support his opinion on value.

      The trial judge made extensive findings regarding Phillips' credibility and

qualifications as an expert witness when he denied defendant's motion. The

judge stated:

            I have a copy of . . . Phillips' report. It's dated
            December 28th, 2016. And it references in the report
            at — right on the first page, inspection of the original
            numbers-matching engine revealed amateur repairs
            were attempted and concealed to an irreparable engine
            block. So it would appear at first glance from looking
            at the report that he actually inspected the engine. It
            doesn't reference any photographs or anything to the
            like. It appears as if he inspected the engine. So, . . . it
            — certainly . . . could be flushed out on cross-
            examination, but that's what it says in his report. So
            one could — taking his report on face value suggests
            that . . . Phillips inspected the engine up close where he
            was able to reach that conclusion.

                   As far as his [CV] is concerned, . . . Phillips does
            list that he was certified by the state of Michigan as a
            mechanic in 1981; has a BA with honors in business;
            fixed and sold cars while studying for the BA; is a
            member of numerous car organizations such as Classic
            Car Club of America; NADA, which the [c]ourt knows
            to be a pricing evaluation guide for determining prices
            of automobiles; a member of the Buick Club and others;
            started Auto Appraise, Inc., in 1991; is the sole owner

                                                                           A-0228-17T4
                                       11
of Auto Appraise; has worked for Hagerty Classic
Insurance.     [The] [c]ourt knows Hagerty Classic
Insurance to be [an] insurance company which
specializes in the field of insuring antique automobiles,
including muscle cars.

      So it would appear that, based on his
qualifications, that he has some knowledge beyond that
of the average layperson in the area of auto appraisals.
Testimony by an expert witness is governed by N.J.R.E.
702, which states if scientific, technical, or other
specialized knowledge will assist the trier of fact to
understand the evidence or to determine a fact in issue,
a witness qualified as an expert by knowledge, skill,
experience, training, or education may testify thereto in
the form of an opinion or otherwise.

       It would appear that based on the [CV] of . . .
Phillips that he certainly has something to bring to the
table by way of testimony. I find that his CV suggests
that he is qualified to be an expert.

        Now, as far as the net opinion is concerned, . . .
counsel raises the issues involving . . . Phillips, that
there is not a lot to suggest as to . . . whether he saw
this car up close or whether he saw it through
photographs, nothing was necessarily flushed out by
way of discovery according to counsel for the plaintiff.
However, . . . Phillips' opinion appears to be
sufficiently supported with facts. He relies on the
industry standard from ASE, ISO, and I-CAR in or —
he was able to render an opinion accordingly. While,
. . . he references those industry standards, it certainly
could be brought out on cross-examination. That's what
he relies on. I think the Rule is general enough that
Phillips'[] appraisal . . . doesn't fall in the category of a
net opinion, so I'm going to permit him to testify.


                                                                A-0228-17T4
                            12
      At trial, Phillips testified to his extensive experience related to classic

cars. The judge qualified him as an expert in the field of classic cars, and made

the following additional findings:

            [Phillips] testified that he's [been] in the business for
            [thirty]-plus years, a mechanic since 1981. [He]
            [s]tarted the business in 1989. This particular business
            since 1991. . . . [H]as four employees and . . . manages
            [three-hundred] inspectors, essentially nationwide.

                   He's in the business of appraising vehicles.
            Originally, the business was for evaluation and
            appraisals of classic cars, mostly [one-hundred] percent
            of that work, but it's since gravitated towards about
            [fifty] to [seventy] percent of the work. He's testified
            that he is experienced in rebuilding motors. He has
            done so far too many times to count, and in fact is in
            process of rebuilding a motor, a 327 engine in a '66
            Corvette.

                   I find that he is qualified to testify as an expert in
            the field of classic cars.

      Expert testimony is governed by Rule 702, which states:

            If scientific, technical, or other specialized knowledge
            will assist the trier of fact to understand the evidence or
            to determine a fact in issue, a witness qualified as an
            expert by knowledge, skill, experience, training, or
            education may testify thereto in the form of an opinion
            or otherwise.

            [N.J.R.E. 702.]




                                                                            A-0228-17T4
                                        13
      The Supreme Court has stated, an expert "must 'be suitably qualified and

possessed of sufficient specialized knowledge to be able to express [an expert

opinion] and to explain the basis of that opinion.'" Agha v. Feiner, 198 N.J. 50,

62 (2009) (quoting State v. Moore, 122 N.J. 420, 458-59 (1991)). The expertise

of a witness may be derived strictly from his occupational experience. Correa

v. Maggiore, 196 N.J. Super. 273, 282 (App. Div. 1984). The Supreme Court

has also stated "an expert may be qualified by study without practice or practice

without study[.]" State v. Smith, 21 N.J. 326, 334 (1956); see also Koseoglu v.

Wry, 431 N.J. Super. 140, 159 (App. Div. 2013).

      A net opinion is one rendered with only "an expert's bare conclusions,

unsupported by factual evidence[.]" Buckelew v. Grossbard, 87 N.J. 512, 524

(1981). "In essence, the net opinion rule requires an expert witness to give the

why and wherefore of his expert opinion, not just a mere conclusion." Vitrano

by Vitrano v. Schiffman, 305 N.J. Super. 572, 577 (App. Div. 1997) (quoting

Jimenez v. GNOC, Corp., 286 N.J. Super. 533, 540 (App. Div. 1996)). The net

opinion rule "frequently focuses . . . on the failure of the expert to explain a

causal connection between the act or incident complained of and the injury or

damage allegedly resulting therefrom." Buckelew, 87 N.J. at 524 (citations

omitted). "Where . . . an expert offers an opinion without providing specific


                                                                         A-0228-17T4
                                      14
underlying reasons for the alleged malfunction, he ceases to assist the trier of

fact and becomes nothing more tha[n] an additional juror." Vitrano, 305 N.J.

Super. at 577 (alterations in original) (quoting Jimenez, 286 N.J. Super. at 540).

      "An expert's conclusion 'is excluded if it is "based merely on unfounded

speculation and unquantified possibilities."'" Townsend v. Pierre, 221 N.J. 36,

55 (2015) (quoting Grzanka v. Pfeifer, 301 N.J. Super. 563, 580 (App. Div.

1997)). "A party's burden of proof on an element of a claim may not be satisfied

by an expert opinion that is unsupported by the factual record or by an expert's

speculation that contradicts [the] record." Ibid. "[E]xpert testimony must relate

to generally accepted . . . standards, not merely to standards personal to the

witness." Fernandez v. Baruch, 52 N.J. 127, 131 (1968) (citing Carbone v.

Warburton, 11 N.J. 418, 425 (1953)). "A standard which is personal to the

expert is equivalent to a net opinion." Taylor v. DeLosso, 319 N.J. Super. 174,

180 (App. Div. 1999) (citing Crespo v. McCartin, 244 N.J. Super. 413, 422-23

(App. Div. 1990)). "In other words, plaintiff must produce expert testimony

upon which the jury could find that the consensus of the particular profession

involved recognized the existence of the standard defined by the expert." Ibid.

(citing Fernandez, 52 N.J. at 131).




                                                                          A-0228-17T4
                                       15
      We are unpersuaded the trial judge abused his discretion when he

permitted Phillips to testify.   The judge made thorough findings regarding

Phillips' qualifications to render an expert opinion when he adjudicated the in

limine motion, and when he qualified Phillips during the trial. The judge also

addressed the basis of Phillip's report and concluded it was not a net opinion.

The judge noted Phillips had extensive experience appraising damage to classic

cars, rebuilding engines, and generally conducting business around classic cars.

The judge found Phillips was not only qualified to render his opinion, he had

provided the underlying standards to support his findings. We are satisfied the

decision to admit the expert testimony was based on credible evidence in the

record and should not be disturbed.

      We add that it is immaterial whether the trial judge considered Phillips'

opinion regarding causation because the judge's findings were not based on

causation, but rather defendant's role in the concealment of the damage to the

engine and tailshaft. Phillips' testimony, and the judge's findings, regarding

causation are irrelevant to our consideration of whether a CFA violation could

be determined based on the grounds of the concealment from the evidence

presented. Similarly, Phillips' testimony regarding valuation does not render his




                                                                         A-0228-17T4
                                      16
opinion concerning the concealment invalid because the judge did not rely upon

Phillips' opinion of diminution in value to the vehicle to determine damages.

                                       B.

      We next address defendant's argument the trial judge erred when he

admitted color photographs of the engine block and tailshaft into evidence.

During the trial, defendant objected to the color photographs plaintiff sought to

enter into evidence on grounds it was only provided black and white photographs

during discovery.     On appeal, defendant argues Phillips had the color

photographs, which he utilized to render his opinion, whereas defendant had

only black and white photographs. Defendant argues the color photographs were

"vital proofs that [d]efendant had not been provided until the trial" because

"[t]he trial court found certain color photographs supported [p]laintiff's theory

that epoxy was used on the engine[,]" specifically the photo depicting the roll of

painter's tape atop the tailshaft. Defendant claims it was prejudiced because if

it had the color photographs it would have retained an expert to rebut plaintiff's

evidence. Defendant argues Rule 1002 required plaintiff to produce the original

color photographs, and "[t]he failure to disclose the color photographs meant

that [d]efendant did not truly understand the proofs that would be presented

regarding the claim of consumer fraud."


                                                                          A-0228-17T4
                                       17
      "[I]n reviewing a trial court's evidential ruling, an appellate court is

limited to examining the decision for abuse of discretion[.]" Estate of Hanges,

202 N.J. at 382 (quoting Hisenaj, 194 N.J. at 12). Rule 1002 states "[t]o prove

the content of a writing or photograph, the original writing or photograph is

required except as otherwise provided in these rules or by statute." N.J.R.E.

1002. Rule 901 provides "[t]he requirement of authentication or identification

as a condition precedent to admissibility is satisfied by evidence sufficient to

support a finding that the matter is what its proponent claims." N.J.R.E. 901.

Authentication of a photograph requires testimony establishing

            (1) the photograph is an accurate reproduction of what
            it purports to represent; and (2) the reproduction is of
            the scene at the time of the incident in question, or, in
            the alternative, the scene has not changed between the
            time of the incident in question and the time of the
            taking of the photograph.

            [State v. Wilson, 135 N.J. 4, 15 (1994) (citing Garafola
            v. Rosecliff Realty Co., Inc., 24 N.J. Super. 28, 42
            (App. Div. 1952)).]

      Here, the trial judge overruled defendant's objection to the entry of the

color photographs into evidence, stating:

            [W]hile [defendant] raises the issue that the photos that
            were provided were black and white and [it]
            specifically asked for color, . . . I don't see any specific
            objection being made to anything which is more


                                                                           A-0228-17T4
                                        18
             prevalent or more highlighted as a result of it being
             color.

                      I . . . understand the argument raised by
             [plaintiff's counsel] that they don't have a color copier
             . . . at his office[.] . . . But be that as it may, . . . I still
             don't see the prejudice to the defense by now allowing
             the color copies to be admitted into evidence. It would
             certainly be an aid to the [c]ourt. It wasn't really an
             objection to the contents in the photograph, other than
             the fact that they are color copied.                So, over
             [defendant's] objection, . . . I'll permit it.

      We agree with the judge's assessment. Defendant's only argument on the

objection was not to contest the difference in the content between the color and

black and white photographs, but to complain the former had not been provided

during discovery. An abuse of discretion requires defendant to show a greater

prejudice.

      Indeed, this is because the testimony throughout the trial did not turn on

whether the photographs were in color. The photographs were not offered to

prove defendant had caused the damage, but rather, that an epoxy-like substance

was utilized during repair of the engine, which was visible in both sets of

photographs. Additionally, Phillips did not rely solely on the photographs in

forming the opinions because he testified he inspected the engine in person.

Moreover, the judge's findings were that the most damaging piece of evidence

in the claim relating to the concealment of the damage was a photograph

                                                                                 A-0228-17T4
                                           19
depicting the tailshaft with a roll of painter's tape hanging on it, which was

evident regardless of whether the photographs were in color. Most importantly,

the color photograph of the tailshaft used at trial was not a surprise because

Eugene had taken the photograph and sent it to plaintiff while the vehicle was

in defendant's possession.

      When the judge reviewed the color photographs at trial, he essentially

performed an authentication procedure before admitting the photographs under

Rule 901 as an exception to Rule 1002. For these reasons, the admission of the

color photographs was not an abuse of discretion.

                                      II.

      Defendant argues the trial judge permitted Phillips testimony to exceed

his report, which "created an unfair advantage where not only was the case

different than defendant thought, but defendant had no opportunity to obtain a

new rebuttal witness." Defendant cites to State v. Cain, 224 N.J. 410 (2016),

and notes the Supreme Court applied the plain error rule to the admissibility of

an expert's opinion where a party raised no objection, and the testimony went to

the ultimate issue in the case. Defendant also relies upon McKenny v. Jersey

City Med. Ctr., 167 N.J. 359, 371-72 (2001) for the proposition that there is an




                                                                        A-0228-17T4
                                      20
undue prejudice when an expert is permitted to testify beyond the scope of a

report. We find these arguments unpersuasive.

      At the outset, we note:

             [I]t is a well-settled principle that our appellate courts
             will decline to consider questions or issues not properly
             presented to the trial court when an opportunity for such
             a presentation is available unless the questions so raised
             on appeal go to the jurisdiction of the trial court or
             concern matters of great public interest.

             [State v. Robinson, 200 N.J. 1, 20 (2009) (quoting
             Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234
             (1973)).]

"[A]ppellate courts are empowered, even in the absence of an objection, to

acknowledge and address trial error if it is 'of such a nature as to have been

clearly capable of producing an unjust result[.]'"         Ibid. (quoting R. 1:7-5).

"Further, our appellate courts retain the inherent authority to 'notice plain error

not brought to the attention of the trial court[,]' provided it is 'in the interests of

justice' to do so." Ibid. (alteration in original) (quoting R. 2:10-2).

      In Cain, the Supreme Court reversed a trial court's decision to permit an

expert to testify to a defendant's state of mind in a drug distribution case because

it was unduly prejudicial. 224 N.J. at 413-14. The Court noted that permitting

the expert to opine on "that ultimate issue of fact was not necessary to assist the

jury." Id. at 414. The Court held

                                                                               A-0228-17T4
                                         21
            the expert's testimony—following the lengthy and
            intricate hypothetical question—exceeded appropriate
            bounds and encroached on the jury's exclusive domain
            as finder of fact. The hypothetical not only resembled
            a mid-trial summation encapsulating every minor detail
            of the case, but also permitted the expert to opine on the
            defendant's state of mind—whether he intended to
            distribute drugs. . . . The jurors were perfectly capable
            of deciding that issue on their own.

            [Ibid.]

      In McKenny, which was a medical malpractice action, the issue was not

whether the experts' trial testimony exceeded the scope of their report. 167 N.J.

at 373-75. Rather, the experts completely changed their testimony regarding the

essential facts of the case, namely, dates, parties involved, and material facts

relating to the plaintiff's medical malpractice claim, the night before they were

scheduled to testify. Ibid.

      Here, neither Cain nor McKenny are applicable. Defendant was provided

Phillips' report before the trial and was on notice as to the subject matter of his

testimony. As we noted, the trial judge qualified Phillips as an expert in the

field of classic cars after detailing his CV and occupational experience. Phillips

testified extensively at trial regarding the damage to the vehicle and the

attempted repairs involving the epoxy-like substance. He also testified about

the difference in value between a numbers matching car and the various other


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forms of classic cars, including date matching and period matching cars. He

also testified as to what may have caused the damage in the car. Phillips testified

he reviewed photographs of the engine and tailshaft, and examined the

components in person to form his opinion. Phillips' testimony was well within

the purview of his expertise, and unlike McKenny, was not materially different

from the content of his report.

      Also, unlike Cain, the testimony here was an aid to the trial judge and did

not encroach upon or confuse the fact finding process. This is demonstrated by

the judge's rejection of Phillip's testimony relating to causation and damages.

Therefore, notwithstanding defendant's failure to object to the expert testimony

during the trial, the arguments now asserted on appeal do not demonstrate a plain

error or an unjust result.

      Affirmed.




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