                        NOT FOR PUBLICATION WITHOUT THE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-3493-15T1

MAXINE A. REID,

        Plaintiff-Respondent,

v.

JOHN J. McKEON and
JOYCE A. McKEON,

     Defendants-Appellants.
_______________________________

              Argued November 14, 2017- Decided August 21, 2018

              Before Judges Leone and Mawla.

              On appeal from Superior Court of New Jersey,
              Law Division, Middlesex County, Docket No. L-
              1845-14.

              Damian A. Scialabba argued the cause for
              appellants (Sponder & Sellitti, attorneys;
              Matthew R. Panas, Douglas J. Nosko, and Lori
              A. Kaniper, on the briefs).

              Paul R. Garelick argued the cause for
              respondent   (Lombardi  and   Lombardi,   PA,
              attorneys; Paul R. Garelick, on the brief).

PER CURIAM

        In this auto accident litigation, a jury awarded plaintiff

Maxine A. Reid $250,000.           Defendants John J. and Joyce A. McKeon
appeal from an April 15, 2016 order denying their motions for a

new trial and remittitur.        We affirm.

                                      I.

       At approximately 8:15 a.m. on May 10, 2012, plaintiff was

driving her vehicle in Edison when it was struck from behind by a

vehicle driven by John McKeon and owned by Joyce McKeon. Plaintiff

sued   defendants.      Prior    to   trial,   defendants      stipulated    to

liability.

       At   trial,   plaintiff   testified     as   follows.     Immediately

following the accident, she experienced numbness in her lower body

and was unable to lift her legs.           She was taken by ambulance to

the emergency room, and spent most of the day there.                When she

left, she felt numbness in her legs, neck, and back.                      That

afternoon, she made an appointment to see an orthopedic doctor at

the Edison Metuchen Orthopedic Group (EMOG). The soonest available

appointment was four days later with Dr. Teresa Vega.

       Plaintiff testified that on May 14, 2012, she told Dr. Vega

that "I had pain in my neck and my lower back was numb and my

legs."      The pain in her neck was throbbing with numbness that

became "stabbing sharp pains."             Dr. Vega recommended physical

therapy.     On July 25, 2012, plaintiff saw Dr. Vega for a follow-

up appointment.



                                      2                               A-3493-15T1
     Plaintiff testified that she had constant leg and neck pain

every day in 2013, and that the pain in her neck increased and

became unbearable at times.    On May 31, 2013, plaintiff saw Dr.

Robert Lombardi at EMOG, who was treating her for a pre-existing

shoulder condition.   On June 28, 2013, plaintiff began to see Dr.

Joseph Lombardi at EMOG, who treated her for pain in her neck and

shoulder.   She completed twelve weeks of physical therapy in 2014.

     In addition to her testimony, plaintiff presented the video

of the trial deposition of Dr. Joseph Lombardi, who opined the

accident caused cervical disc herniation at C4-C5 and C5-C6, and

a bilateral C6 radiculopathy, and aggravated a pre-existing lumbar

disc herniation at L5-S1 and lumbar radiculopathy. Defendants

presented the testimony of expert Dr. David Rubinfeld, who opined

the accident caused only cervical and lumbosacral sprains.

     The jury found by a preponderance of the objective credible

medical evidence that plaintiff sustained a permanent injury as a

proximate result of the accident.    It awarded her $250,000, which

was memorialized in the trial court's January 4, 2016 order of

judgment.   Defendants filed motions for a new trial, to alter or

amend the judgment, and for remittitur.     The trial judge denied

the motions on April 15, 2016.   Defendants appeal.




                                 3                           A-3493-15T1
                                    II.

     Most   of   plaintiff's     claims    challenge    the   admission        or

exclusion of evidence.          "'[T]he decision to admit or exclude

evidence is one firmly entrusted to the trial court's discretion.'"

State v. Prall, 231 N.J. 567, 580 (2018) (quoting Estate of Hanges

v. Metro. Prop. & Cas. Ins. Co., 202 N.J. 369, 383-84 (2010)).

"In light of the broad discretion afforded to trial judges, an

appellate    court      evaluates    a     trial   court's        evidentiary

determinations   with    substantial      deference,"   and   affords       them

"'[c]onsiderable latitude.'"        State v. Cole, 229 N.J. 430, 449

(2017) (citation omitted).          The court's determination will be

affirmed "'absent a showing of an abuse of discretion, i.e., [that]

there has been a clear error of judgment.'"             Griffin v. City of

E. Orange, 225 N.J. 400, 413 (2016) (alteration in original)

(citations omitted).      Thus, an appellate court "will reverse an

evidentiary ruling only if it 'was so wide off the mark that a

manifest denial of justice resulted.'"         Ibid. (citation omitted).

We must hew to that standard of review.

                                     A.

     Cross-examining      Dr.    Joseph    Lombardi     during    the     trial

deposition, defense counsel asked him about Dr. Vega's records of

her lumbar and cervical examinations of plaintiff.               Citing James

v. Ruiz, 440 N.J. Super. 45 (App. Div. 2015), plaintiff's counsel

                                     4                                  A-3493-15T1
objected to the elicitation from Dr. Lombardi of any opinions of

Dr.   Vega.   Later,   the   trial   court,   citing    James,   sustained

plaintiff's objection.

      In James, we held that an attorney may not "question[] an

expert witness at a civil trial, either on direct or cross-

examination, about whether that testifying expert's findings are

consistent [or inconsistent] with those of a non-testifying expert

who issued a report in the course of an injured plaintiff's medical

treatment" if "the manifest purpose of those questions is to have

the jury consider for their truth the absent expert's hearsay

opinions about complex and disputed matters."          440 N.J. Super. at

51.

      Defense counsel's cross-examination of Dr. Joseph Lombardi

about Dr. Vega's findings had the manifest purpose of showing they

were inconsistent with Dr. Lombardi's later findings and to have

the jury consider Dr. Vega's findings for their truth.           The issue

is whether Dr. Vega's findings were "complex and disputed."          Ibid.

      There was no evidence Dr. Vega's findings were disputed.          Dr.

Joseph Lombardi acknowledged that Dr. Vega was his colleague at

EMOG, that her records were in his file, and that she reached

these findings.   He did not question their accuracy.

      Whether Dr. Vega's findings were complex is a more involved

inquiry.   That inquiry derives from the business records exception

                                     5                             A-3493-15T1
under N.J.R.E. 803(c)(6) and N.J.R.E. 808. As Dr. Vega's "findings

are contained in a written report, it is useful to the analysis

to consider whether the report itself would meet [that] hearsay

exception, even though neither party attempted to move the report

into evidence."   James, 440 N.J. Super. at 61.   Moreover, defense

counsel's brief cited those rules to the trial court.

     N.J.R.E. 803 provides that "statements are not excluded by

the hearsay rule" if they are:

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

          [N.J.R.E. 803(c)(6) (emphasis added).]

     Although it is undisputed Dr. Vega's report met the other

requirements spelled out in N.J.R.E. 803(c)(6), the admission of

her "opinions or diagnoses" is "subject to Rule 808."         Ibid.

N.J.R.E. 808 provides:

          Expert opinion which is included in an
          admissible hearsay statement shall be excluded
          if the declarant has not been produced as a
          witness unless the trial judge finds that the

                                 6                          A-3493-15T1
          circumstances involved in rendering the
          opinion, including the motive, duty, and
          interest of the declarant, whether litigation
          was contemplated by the declarant, the
          complexity of the subject matter, and the
          likelihood of accuracy of the opinion, tend
          to establish its trustworthiness.

          [N.J.R.E. 808 (emphasis added).]

     N.J.R.E. 808 "codifies the principles set out in" State v.

Matulewicz, 101 N.J. 27 (1985).       State v. Miller, 170 N.J. 417,

428 n.1 (2002); see James, 440 N.J. Super. at 63.     In Matulewicz,

our Supreme Court cited with approval our cases recognizing that

"'"expert opinion contained in a business record may be excluded

if it relates to diagnoses of complex medical conditions. . . ."

Conversely, routine observations, findings and complaints included

in such a record were termed clearly admissible.'"      101 N.J. at

32 n.1 (citations omitted).

     "The formulation of Rule 808 is intended to include in general

terms all of the specific criteria discussed in Matulewicz,"

including "the complexity or routine nature of the procedures used

in making the analysis, the degree of objectivity and subjectivity

involved, the existence of motive for untrustworthiness, and the

responsibility of the declarant to be accurate and reliable."

Biunno, Weissbard & Zegas, Current N.J. Rules of Evidence, 1991

Supreme Court Committee Comment on N.J.R.E. 808 (2018) (emphasis

added) (quoting Matulewicz, 101 N.J. at 30).

                                  7                          A-3493-15T1
      In following "[t]he Matulewicz holding," the drafters of

N.J.R.E.     808   acknowledged    that   "opinions   derived     from        a

'relatively well-established' test, such as a 'blood-grouping

test, an alcoholism test, or the taking of an x-ray,' and other

'relatively simple' diagnostic tests contained in hospital records

would be admitted in evidence." Ibid. (citing State v. Martorelli,

136 N.J. Super. 449 (App. Div. 1975) (admitting a blood alcohol

result in a hospital record)).        "[T]he admissibility of ordinary

diagnostic findings customarily based on objective data and not

usually presenting more than average difficulty of interpretation

is usually conceded."      Ibid. (quoting McCormick on Evidence § 313

at 732 (Cleary 2d ed. 1972)).        "[T]he distinction" between such

"'ordinary diagnostic findings'" and "the diagnosis of complex

medical conditions" "has continued under the present rule and is

now a settled part of our jurisprudence."           Biunno, Weissbard &

Zegas, Current N.J. Rules of Evidence, cmt. 3 on N.J.R.E. 808

(2018).

      The following evidence in medical business records has been

found to be complex: interpretation of an MRI test, Agha v. Feiner,

198 N.J. 50, 65 n.9 (2009); interpretation of a CT scan, James,

440   N.J.   Super.   at   72;   psychiatric   diagnoses,   In   re     Civil

Commitment of A.E.F., 377 N.J. Super. 473, 492 (App. Div. 2005);

psychological evaluations, N.J. Div. of Child Prot. & Permanency

                                     8                                A-3493-15T1
v. N.T., 445 N.J. Super. 478, 501 (App. Div. 2016); mental state

evaluations, In re Commitment of G.G.N., 372 N.J. Super. 42, 56

(App. Div. 2004); a diagnosis of alcoholism, Clowes v. Terminix

Int'l, Inc., 109 N.J. 575, 597 (1988); a diagnosis and opinions

about infection, McLean v. Liberty Health Sys., 430 N.J. Super.

156,    173   (App.   Div.   2013);   diagnoses   that   fractures   were

"pathologic" or "non-traumatic," Nowacki v. Cmty. Med. Ctr., 279

N.J. Super. 276, 284 (App. Div. 1995); and a Social Security

disability determination, Villanueva v. Zimmer, 431 N.J. Super.

301, 313-14 n.3 (App. Div. 2013).

       On the other hand, courts have found admissible, because they

are not complex, breathalyzer test results, State v. Garthe, 145

N.J. 1, 13 (1996), and blood-alcohol analyses, State v. Michaels,

219 N.J. 1, 36-37 (2014).         Moreover, courts have stated that

N.J.R.E. 808 does not exclude "a straightforward observation of

treating physician," Agha, 198 N.J. at 66, or doctors' "factual

observations."    N.J. Div. of Child Prot. & Permanency v. N.B., 452

N.J. Super. 513, 526 (App. Div. 2017).            Thus, we have ruled

admissible findings that the patient "has tics and was moving too

much at time of procedure," Konop v. Rosen, 425 N.J. Super. 391,

404-05 (App. Div. 2012), and that "'there was no spasm present.'"

Blanks v. Murphy, 268 N.J. Super. 152, 163-64 (App. Div. 1993).



                                      9                          A-3493-15T1
     The trial court excluded Dr. Joseph Lombardi's deposition

testimony that on May 14, 2012, Dr. Vega wrote that: plaintiff

"was neurologically intact"; "examination of the cervical spine

was negative for tenderness"; "negative spasm or trigger points";

"deep tendon reflexes in lower extremities were normal"; and "it

was a completely normal examination as far as the objective

examination part."    The trial court also excluded Dr. Lombardi's

deposition testimony that on July 25, 2012, Dr. Vega wrote that:

plaintiff's "cervical strength is noted as five out of five";

"cervical reflex is normal"; "an examination of the lumber spine

shows strength five out of five"; "deep tendon reflexes were

normal"; and "straight leg raise was negative."

     Dr. Vega's observation that there were no spasms was "a

straightforward observation of a treating physician."      Blanks, 268

N.J. Super. at 164. With the possible exception of "neurologically

intact,"   Dr.   Vega's   other   notations   involved   her   "factual

observations" after reflex testing, strength testing, tenderness

testing, and leg raises.     N.B., 452 N.J. Super. at 526.        Those

would appear to be "'relatively simple' diagnostic tests," Biunno,

Weissbard & Zegas, Current N.J. Rules of Evidence, 1991 Supreme

Court Committee Comment on N.J.R.E. 808 (2018) (citation omitted),

which result in "a straightforward, simple diagnosis based upon

objective criteria or one upon which reasonable professionals

                                  10                            A-3493-15T1
could not differ," N.J. Div. of Youth & Family Servs. v. M.G., 427

N.J. Super. 154, 174 (App. Div. 2012).          Such routine "diagnostic

findings premised upon objective data requiring an average level

of difficulty of interpretation are admissible."          Matulewicz, 101

N.J. at 30.       "To require those who perform tests which are

relatively simple to appear in court and testify would work a

hardship on an already overburdened medical system."          Martorelli,

136 N.J. Super. at 454.

     In excluding Dr. Vega's notations, the trial court stated

that they represented "Dr. Vega's opinion about that based on her

examination," and that "getting in findings and opinions of other

doctors   through   the    testimony     of   another   doctor"   was    "now

completely precluded by James."          When defense counsel promptly

submitted    a   brief    seeking   reconsideration,     citing   N.J.R.E.

803(c)(6), N.J.R.E. 808, and the cases permitting the admission

of routine findings, the trial court reconsidered but declined to

change its ruling:

            I don't think it's routine matters.       When
            they're talking about using the kinds of
            information that [is] routine as opposed to
            opinions and conclusions, they're not talking
            about test results.     Those are subject to
            interpretation based on the medical knowledge,
            training, [and] skill of the examiner.

     Unfortunately, the trial court read James too broadly.             James

did not hold that a doctor could never testify about the opinions

                                    11                              A-3493-15T1
or findings of another doctor.            Nor did we hold that a doctor

could not testify about another doctor's test results from a simple

physical exam.    Rather, in James, we repeatedly made clear that

our holding was limited to testimony about "complex and disputed

matters,"   "complex    and   disputed     opinions,"    and    "complex    and

disputed findings."      Id. at 51, 66; see id. at 56-57, 62-64, 67-

69, 72-73 and n.16.     We reaffirmed that "case law in our State has

traditionally admitted 'routine' findings of experts contained in

medical records that satisfy the business record exception, but

has excluded 'diagnoses of complex medical conditions' within

those records."     Id. at 63 (citing Matulewicz, 101 N.J. at 32

n.1).

     Accordingly,      most   or   all    of   Dr.   Vega's    findings    were

admissible hearsay if properly presented.            Defense counsel tried

to present them by showing that Dr. Joseph Lombardi reviewed Dr.

Vega's records before treating plaintiff on June 28, 2013, and in

preparing his September 14, 2014 narrative report.              However, Dr.

Lombardi's narrative report made no reference to review of prior

records or x-rays, and he testified "[i]f I didn't put it in [my

report], I probably did not" see any records.           Regarding June 28,

he took "a history from the patient," and "reviewed the history

of what she told me about her prior records."

     Defense counsel asked Dr. Joseph Lombardi about June 28:

                                     12                               A-3493-15T1
              Q.   Okay.   At that point, did you have an
              opportunity to read those records when she
              first started treating with [EMOG]?

              A.      I would have had those records, yes.

However, the trial court found "[t]hat doesn't mean he read them,"

just that "they're in the file."                     The court stressed "he didn't

say he used them in any way or relied upon them in any way."                                We

cannot say the court erred in finding Dr. Lombardi did not review

Dr.    Vega's      records    before        treating    her,     or    rely   on    them    in

preparing his report.

       Because Dr. Lombardi did not base his opinion on Dr. Vega's

notations, N.J.R.E. 703 did not apply.                           "[H]earsay statements

relied upon by an expert may be used for the limited purpose of

apprising       the    jury   of   the       basis    of   the    testifying        expert's

opinion," but the "expert may not 'alert[ ] the jury to evidence

it would not otherwise be allowed to hear.'"                       Hayes v. Delamotte,

231 N.J. 373, 392-93 (2018) (citation omitted).

       In any event, defendants ultimately were able to have Dr.

Vega's most favorable notations admitted into evidence another

way.    The trial court allowed defense counsel to elicit from Dr.

Rubinfeld, the defense expert, that he reviewed Dr. Vega's records

from    May     14,     2012.         Dr.    Rubinfeld      described         the    routine

examinations performed by Dr. Vega.                    He testified that Dr. Vega's

"lumbar       examination       was    totally        normal,"        and   her     cervical

                                              13                                     A-3493-15T1
examination   "was   negative      for   focal      tenderness,"      spasms,     and

trigger points, and showed "[a] very normal . . . neck."                 To avoid

being "accused of overlooking anything," Dr. Rubinfeld added that

plaintiff "did have pain in the left paraspinal musculature."

Thus, the trial court admitted evidence that Dr. Vega's examination

of plaintiff's neck and back showed they were normal four days

after the accident, with one complaint of pain.

     Defense counsel did not attempt to ask Dr. Rubinfeld similar

questions about Dr. Vega's July 25 notations, which were less

favorable for defendants.          Dr. Vega's cervical spine examination

showed "[p]ositive tenderness on left paraspinal musculature," and

"[d]iscomfort    with      all    motion."         Dr.     Vega's   lumbar     spine

examination showed "[m]ild tenderness to palpitation in midline

and [perilumbar] region," "[p]ain in the lumbosacral area," and

"[r]ange of motion with difficulty."                That evidence of pain and

other negative symptoms would likely have been brought to the

jury's attention had defense counsel attempted to elicit Dr. Vega's

positive notations about plaintiff's normal cervical and lumber

strength   and   reflexes,       and   her    negative     straight   leg     raise.

Defense    counsel   did    not    try       to   elicit    those   notations       by

questioning Dr. Rubinfeld or offering Dr. Vega's July 25 report

as a business record.



                                        14                                   A-3493-15T1
     Even assuming defense counsel could elicit through Dr. Joseph

Lombardi the notations in Dr. Vega's records which he testified

he never reviewed, any error was harmless.      Defendants were able

to place in evidence the most favorable and telling notations that

four days after the accident Dr. Vega's lumbar examination had

totally normal results and her cervical examination showed a very

normal neck with a complaint of pain.   Dr. Vega's examination four

months later included more evidence of pain that would have

outweighed the positive strength and reflex findings.       Thus, any

error was not "clearly capable of producing an unjust result."        R.

2:10-2.

                                 B.

     Defendants next assert the trial court erred under James in

allowing plaintiff's counsel to cross-examine defendants' expert

about the emergency room records from the day of accident.          The

cross-examination arose from the direct-examination, when defense

counsel showed Dr. Rubinfeld the records and asked: "And in the

emergency room, did Ms. Reid have any complaints of neck pain?"

Dr. Rubinfeld responded: "No.    Not that I see, no."

     On   cross-examination,   plaintiff's   counsel   referenced   the

testimony on direct, showed Dr. Rubinfeld the records, and pointed




                                 15                            A-3493-15T1
to "Diagnosis 2."1 After defense counsel objected, the trial court

ruled plaintiff's counsel could ask if "anything in there . . .

indicates that she complained about pain" in the neck. Plaintiff's

counsel then asked Dr. Rubinfeld: "Does looking at that record

refresh your recollection that my client complained of neck pain?"

He answered, "if you look at the diagnosis, sure." Plaintiff's

counsel directed the doctor to the word "neck," and asked if

"there's a plus in there?" and if the plus meant "that was found;

right?"2    Dr. Rubinfeld answered both questions affirmatively.

Plaintiff's    counsel     asked   if    that     refreshed     the   doctor's

recollection "about paravertebral tenderness complaints by my

client?"      Dr.    Rubinfeld   replied   that    "I   would   say   she   had

tenderness."        Plaintiff's counsel directed the doctor to "the

Emergency Medical Decision Making" section where it said "cervical

spine."3    Defense counsel objected, and the court asked: "Can you

tell from those records that she complained about neck pain or

not?"    Dr. Rubinfeld answered: "Yeah, I think so."




1
    The Diagnosis section included a diagnosis "Neck Strain."
2
  The Physical Examination section included: "Neck: (+) Mild
paravertebral tenderness."
3
 The Emergency Medical Decision Making section included: "Cervical
spine injury."

                                    16                                 A-3493-15T1
      Nothing in James prohibited plaintiff's counsel from asking

if the emergency room records indicated plaintiff complained of

neck pain.     Rather, James stated that where the purpose of cross-

examination "was to show that the defense expert's review of the

patient's records was skewed or incomplete, such a line of inquiry

arguably would amount to simply impeachment of the defense expert's

credibility, an attack that does not hinge upon the actual truth

of the absent declarant's statements."                   440 N.J. Super. at 75.

      Although      plaintiff's      counsel       had    Dr.    Rubinfeld   look     at

portions of the records containing diagnoses, the diagnoses were

not   revealed      to    the   jury,    and     plaintiff's      counsel    told   Dr.

Rubinfeld "I don't want to talk to you about the opinions they

made."      By contrast, the cross-examination in James "was plainly

designed      to    get     before      the     jury     the    substance    of     [the

radiologist's] findings," and "improperly sought to elicit the

contents of [his] opinions for their truth."                      Id. at 77-78; see

id. at 56-57, 75.

      The    questions      about    the      "plus"   and     about   "paravertebral

tenderness"        simply    related       findings      made    after   a   physical

examination.       Defendants agree plaintiff's attorney could ask Dr.

Rubinfeld about those routine findings.                    Thus, unlike in James,

plaintiff's counsel did not elicit "the non-testifying expert's

complex and disputed opinions."                 Id. at 51.

                                           17                                  A-3493-15T1
     Defendants mainly complain they were not allowed to ask Dr.

Joseph Lombardi about similar routine findings from Dr. Vega's

physical examinations.   However, Dr. Lombardi had not reviewed Dr.

Vega's records.    By contrast, Dr. Rubinfeld had reviewed the

emergency room records and Dr. Vega's May 14, 2012 records, and

the trial court allowed the routine findings from those records

to be elicited through Dr. Rubinfeld by plaintiff and defendants

respectively.   As any error in not allowing defendants to elicit

Dr. Vega's findings through Dr. Lombardi was harmless, defendants'

complaint lacks substance.

                                 C.

     Defendants also argue the trial court erred by not allowing

Dr. Rubinfeld to testify about a report by a different EMOG doctor,

Dr. Robert Lombardi.     On cross-examination, plaintiff testified

she went to see Dr. Robert Lombardi and complained about an

unrelated shoulder condition on May 31, 2013.      She said she also

had neck and back pain but did not mention it because "I didn't

go there for that on that day" and "I wasn't seeing Dr. Robert for

that."

      Later, defense counsel asked Dr. Rubinfeld if plaintiff had

"any neck or back pain that's reflected in that report" by Dr.

Robert Lombardi on May 31, 2013.      Plaintiff objected.   The trial

court stated if Dr. Robert Lombardi were testifying and defense

                                18                            A-3493-15T1
counsel asked "did [plaintiff] complain about something and he

said no, that would be ok."    Because he was not a witness, the

court said it did not "have any way to know whether or not Dr.

Robert Lombardi would have said he didn't write down stuff that

was unrelated to my thing or [he] did or it was incomplete."

     We note Dr. Robert Lombardi's May 31, 2013 report discussed

plaintiff's "Chief Complaint," "History of Present Illness," and

"Shoulder Examination," all addressing solely her shoulders.     The

only broader portion of the report stated:

          General Exam:
          Constitutional: Patient is adequately groomed
          with no evidence of malnutrition.
          Skin:   There are no rashes, ulcerations or
          lesions in the regions examined.
          Mental Status:   The patient is oriented to
          time, place and person.   The patient's mood
          and affect are appropriate.

Thus, the report did not indicate that Dr. Lombardi asked plaintiff

if she had pain in areas other than her shoulders.

     Defendants cite plaintiff's testimony that during 2013 she

had severe pain from the accident, and that in 2015 Dr. Robert

Lombardi treated her for pain in her shoulders resulting from her

neck pain.   However, defendants failed to show plaintiff told Dr.

Lombardi she did not have pain in her back or neck on May 31,

2013.   Absent a "statement," N.J.R.E. 803(b)(1) and N.J.R.E.

803(c)(4) are inapplicable.   See N.J.R.E. 801(a).


                                19                          A-3493-15T1
      To the extent defendants were seeking to establish that Dr.

Robert Lombardi did not ask plaintiff, and plaintiff did not

volunteer, whether she had pain in her neck and back, defendants

offered no evidence "to establish that it would be natural for the

witness to have made the omitted statement" to a doctor then

treating her for a different, pre-existing condition.         Manata v.

Pereira, 436 N.J. Super. 330, 345 (App. Div. 2014).           Defendants

did   not   cite   N.J.R.E.   803(c)(7)   or   attempt   to   meet    its

prerequisites.

      In any event, in denying defendants' motion for a new trial,

the trial court found "the fact that Dr. [Robert] Lombardi's report

'was silent' on whether Reid was or was not experiencing pain in

her back or neck, and the reason for the 'silence' is, at best,

completely speculative and lacking probative value, and is, in any

event, precluded by Rule 403." As the trial court noted, "relevant

evidence may be excluded if its probative value is substantially

outweighed by the risk of . . . undue prejudice, confusion of

issues, or misleading the jury."       N.J.R.E. 403.

      "A trial judge retains the authority under . . . N.J.R.E. 403

. . . to guard against unfair use of" silence.         Manata, 436 N.J.

Super. at 344-45.     "'[D]eterminations pursuant to N.J.R.E. 403

should not be overturned on appeal "unless it can be shown that

the trial court palpably abused its discretion, that is, that its

                                  20                             A-3493-15T1
finding was so wide off the mark that a manifest denial of justice

resulted."'"    Brenman v. Demello, 191 N.J. 18, 31 (2007) (citation

omitted).    It was not a palpable abuse of discretion for the trial

court   to   exclude   defendants'       attempt   to   elicit   and    rely    on

plaintiff's    alleged   silence,    which    the   court   could      find    was

confusing, misleading, and prejudicial.

                                     D.

     Defendants' final evidentiary challenge concerns plaintiff's

mentions of insurance to explain her delays in following her EMOG

doctors'     recommendations.       On    direct    examination,       plaintiff

testified without objection:

             it took me quite a while to get into physical
             therapy because I was constantly calling
             [Allstate] and they were telling me they're
             not responsib[le]. . . . I only went three
             weeks because that was the only time
             [Allstate] approved of payment for that.    I
             had to wait until I had the insurance to get
             into other physical therapy.

     On cross-examination, defense counsel asked why plaintiff

made no mention of her neck and back pain when she went back to

EMOG on May 31, 2013, "after a ten-month period." After responding

she "wasn't seeing Dr. Robert for that," she added: "And the 10-

month period was due to insurance not being able to pay for that."

Defense counsel moved to strike, saying "[i]t's not responsive."

The court said "I'm not sure that's not responsive, but just ask


                                     21                                  A-3493-15T1
your next question."        Defense counsel asked questions eliciting

that Dr. Joseph Lombardi later recommended physical therapy, and

then asked:

           Q. And he wanted you to follow up with him
           in four weeks?

           A.    Yes.

           Q. Right? And then you don't go for 12 weeks?

           A.    No.

           Q.    Correct?

           A. Because I needed to have someone pay for
           it and nobody – [Allstate] wasn't paying for
           it. I have to wait for my insurance to approve
           it.

     Defense counsel objected, but the trial court stated "you

opened   the    door."     In   fact,    plaintiff's    interjections   about

insurance were unresponsive to defense counsel's questions about

why she had not complained about neck and back pain on May 31,

2013, and whether she did not go back to EMOG for twelve weeks.

Nonetheless, the court ruled "she's entitled to tell the reason

she didn't go was because she couldn't pay."

     Defendants cite N.J.R.E. 411, which states that "[e]vidence

that a person was or was not insured against liability is not

admissible on the issue of that person's negligence or other

wrongful conduct."       Ibid. (emphasis added).       However, N.J.R.E. 411

addresses the risk "that if jurors know that an insurance company

                                        22                           A-3493-15T1
will be paying a judgment, [then the jurors] might be reckless in

awarding damages to a plaintiff."            Bardis v. First Trenton Ins.

Co., 199 N.J. 265, 275 (2009) (quoting Biunno, Current N.J. Rules

of Evidence, cmt. on N.J.R.E. 411 (2008)).

     That risk was not posed here.           It is undisputed that Allstate

was plaintiff's automobile insurer, not defendants' insurer.                   The

revelation that plaintiff had insurance was not offered or used

to show that defendants were negligent or engaged in culpable

conduct, "'or made the basis at the trial for an appeal to increase

or decrease the damages.'"        Krohn v. N.J. Full Ins. Underwriters

Ass'n,   316    N.J.   Super.   477,   482    (App.    Div.   1998)   (citation

omitted).      Defendants have not shown they were prejudiced.

     Moreover,     "[t]he   exclusionary      aspect    of    N.J.R.E.   411    is

limited."       Biunno, Weissbard & Zegas, Current N.J. Rules of

Evidence, cmt. on N.J.R.E. 411 (2018).                N.J.R.E. 411 provides

that, "[s]ubject to Rule 403, this rule does not require the

exclusion of evidence of insurance against liability when offered

for another purpose[.]" Plaintiff's reference to her own insurer's

alleged failure to promptly pay her medical bills served another

purpose, namely to explain her delay in seeking further treatment.

Defense counsel did not object under N.J.R.E. 403, nor did she

object to similar comments on direct.            In any event, "[t]he mere

mention of [insurance] coverage has been held not to be prejudicial

                                       23                                A-3493-15T1
error."      Krohn, 316 N.J. Super. at 482.            Moreover, defendants

never requested a limiting instruction.

     Defendants contend plaintiff's testimony was untrue because

Allstate paid her medical bills promptly, and told her so in

Explanation of Benefits forms (EOBs).              However, that does not

impugn the trial court's ruling on the objections.                    Defendants

could have introduced proof to rebut plaintiff's claim.                  Indeed,

after the objections were denied, defense counsel asked plaintiff

"isn't it true that . . . [a]ll your medical bills were paid and

there was no issue . . . with any payment?"                Plaintiff admitted

"[m]y medical bills were paid by . . . my primary insurance."

Defense counsel suggested the EOBs would show the bills were paid

in a timely fashion, and the court stated it would "certainly

allow" defense counsel to introduce those records. Defense counsel

stated she would look for the records, but she never tried to

question plaintiff with the records or offer them into evidence.

Having failed to do so at trial, defendants cannot do so on appeal.

                                      III.

     Defendants    make    two    challenges      to   plaintiff's      closing

argument for plaintiff.      "'[C]ounsel is allowed broad latitude in

summation.'     That     latitude     is   not   without     its   limits,     and

'counsel's    comments    must   be   confined    to   the    facts    shown    or

reasonably suggested by the evidence introduced during the course

                                      24                                 A-3493-15T1
of the trial.'     Further, counsel 'should not misstate the evidence

nor   distort    the   factual   picture.'"     Hayes,   231     N.J.   at   387

(citations omitted).       "Within those limits, however, '[c]ounsel

may argue from the evidence any conclusion which a jury is free

to reach.'       'Indeed, counsel may draw conclusions even if the

inferences that the jury is asked to make are improbable.'"                  Id.

at 388 (citations omitted).

      Defendants contend plaintiff's counsel mentioned insurance

in his closing argument.           After noting plaintiff got an MRI

examination     within   four    months   of   the   accident,    plaintiff's

counsel argued:

           Now, you know, I think the reasonable person
           knows how long it takes to get into a doctor,
           see a doctor, get examined, get approvals, go
           to and get MRIs done. That just doesn't happen
           in a day. There's a process that people go
           through in their medical treatment.

Defendants did not object to this argument, which made no explicit

reference to insurance, and no conceivable reference to their

insurance.      Defendants cannot show plain error.        R. 2:10-2.

      Defendants also argue plaintiff's counsel misused the time-

unit rule.      "In civil cases any party may suggest to the trier of

fact, with respect to any element of damages, that unliquidated

damages be calculated on a time-unit basis without reference to a

specific sum." R. 1:7-1(b). "Under the rule, 'counsel may suggest


                                     25                                 A-3493-15T1
to the trier of fact that it calculate damages on the basis of

specific time periods, for example, the amount of pain that a

plaintiff will suffer each day for the rest of his life.'"                  Brodsky

v. Grinnell Haulers, Inc., 181 N.J. 102, 123 n.4 (2004) (quoting

Friedman   v.    C    &   S    Car   Serv.,      108    N.J.    72,   74   (1987)).

"Nevertheless,       while    reference     to   time   units    is   permissible,

mention of specific dollar amounts remains prohibited."                       Ibid.

(citing Weiss v. Goldfarb, 154 N.J. 468, 481 (1998) ("reference

to a specific sum may not be made")).

     Plaintiff's counsel in closing argued:

           [Y]ou get to pain and suffering. And how do
           you calculate that?     Now, I'll tell you,
           before I show you this calculation under Rule
           1:7-1 for time unit, that, you know, there is
           no perfect science. It's left to your sound
           discretion. . . . So there's a calculation
           that you can do that's under the rules and
           it's in argument, and I – you know, I follow
           the rules, I don't . . . make them up.      I
           follow them. . . . It's a time unit analysis
           under Rule 1:7-1. Now, what you do is, you
           correlate an amount of money to an aspect of
           an injury and multiply it by a unit of time.
           You don't talk dollars. The Judge will tell
           you, units.   Okay?   Units are the argument
           that we make. So you will have units.

     After the closing, defense counsel's only objection was "I

heard you say money equals units."               Plaintiff's counsel said he

had not done so, and defense counsel said "Okay."




                                       26                                   A-3493-15T1
     Nonetheless, on appeal, defendants complain about various

words and phrases in counsel's argument, as well as his subsequent

calculation of how many units of time plaintiff had lived and

would live since the accident.       We agree "I follow the rules" was

gratuitous.     However, that was not prejudicial, and defendants'

other complaints are meritless.

     Moreover, plaintiff's counsel never mentioned a specific

dollar amount.    Further, the trial court properly instructed that

plaintiff's time-unit argument was "argument only and it does not

constitute evidence," and that the jury was "not bound to follow"

it or "any particular method in establishing damages."              See R.

1:7-1(b).     Defendants have not shown plain error.

                                    IV.

     Defendants    argue    the   $250,000   awarded   by   the   jury   was

excessive.     "When a court is persuaded that a new trial must be

granted based solely on the excessiveness of the jury's damages

award, it has the power to enter a remittitur reducing the award

to the highest amount that could be sustained by the evidence."

Cuevas v. Wentworth Grp., 226 N.J. 480, 499 (2016).

     Courts "must exercise the power of remittitur with great

restraint."     Ibid.      "A jury's verdict, including an award of

damages, is cloaked with a 'presumption of correctness,'" which

"is not overcome unless a defendant can establish, 'clearly and

                                    27                              A-3493-15T1
convincingly,' that the award is 'a miscarriage of justice.'"              Id.

at 501 (citation omitted).     "[E]ven a seemingly high award should

not be disturbed; only if the award is one no rational jury could

have returned, one so grossly excessive, so wide of the mark and

pervaded by a sense of wrongness that it shocks the judicial

conscience, should a court grant a remittitur."             Id. at 500.

     The trial "court must view 'the evidence in the light most

favorable   to   the   plaintiff,'"    and   "give   'due    regard   to   the

opportunity of the jury to pass upon the credibility of the

witnesses.'"     Id. at 501 (citations omitted).        "The standard for

reviewing a damages award that is claimed to be excessive is the

same for trial and appellate courts, with one exception — an

appellate court must pay some deference to a trial judge's 'feel

of the case.'"    Ibid. (citations omitted).

     In denying defendants' motion for a new trial or remittitur,

the trial court found:

            the jury could reasonably have concluded that
            Reid sustained two herniated discs, which
            required physical therapy; that the injuries
            and their consequences, both past, present and
            future, are so severe that an anterior
            cervical fusion[,] that would require plates
            and screws, was recommended; and finally, that
            Reid has been living with extreme pain for
            years, and will continue to do so for the rest
            of her life. Under that version of the facts,
            the verdict was neither disproportionately
            excessive nor does it shock the conscience [.]


                                  28                                  A-3493-15T1
Defendants    have   not     shown   any   basis     for   rejecting     this

determination by the trial judge who saw and heard the evidence

and the jury.

      Finally, defendants argue cumulative errors warrant a new

trial.   "An appellate court may reverse a trial court's judgment

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

prejudice[.]'"    Torres v. Pabon, 225 N.J. 167, 190 (2016) (quoting

Pellicer v. St. Barnabas Hosp., 200 N.J. 22, 53 (2009)).           However,

any error regarding the exclusion of Dr. Vega's double-edged July

25,   2012   notations,    and   plaintiff's    mentioning    of   her   own

insurance, were not prejudicial individually or cumulatively and

did not "deprive defendants of a fair trial."          Pellicer, 200 N.J.

at 57.

      Defendants' remaining arguments lack sufficient merit to

warrant discussion.       R. 2:11-3(e)(1)(E).      We "decline to consider

arguments raised for the first time in [defendants'] reply brief."

Bacon v. N.J. State Dep't of Educ., 443 N.J. Super. 24, 38 (App.

Div. 2015).

      Affirmed.




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