                        NOT FOR PUBLICATION WITHOUT THE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 only binding 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-3383-14T2


SILVANO COLLADO and MAYRA
COLLADO, Individually and
as Husband and Wife,

        Plaintiffs-Appellants,

v.

ELI M. SALZMANN,

        Defendant-Respondent,

and

ARI MUTUAL INSURANCE COMPANY,

     Defendant.
_______________________________

              Argued September 21, 2016 – Decided            August 22, 2017

              Before Judges Fuentes, Simonelli and Carroll.

              On appeal from the Superior Court of New
              Jersey, Law Division, Hudson County, Docket
              No. L-4337-12.

              James B. Smith, Jr. argued the cause for
              appellants (Ana C. Moreira, attorney; Ms.
              Moreira, on the brief).
            Carl Mazzie argued the cause for respondent
            (Foster & Mazzie, LLC, attorneys; Mr. Mazzie,
            of counsel and on the brief; Jennifer L.
            Sanyshyn, on the brief).

PER CURIAM

     On September 7, 2010, plaintiff Silvano Collado was rear-

ended by defendant Eli M. Salzmann while driving a mini-commuter

bus in Jersey City, New Jersey. Defendant stipulated to liability,

and the matter was tried before a civil jury to determine whether

plaintiff was entitled to recover compensatory damages.                Because

plaintiff's    insurance   policy       contained   a      verbal    threshold

provision, he was required to prove, by a preponderance of the

evidence, that he suffered "a permanent injury within a reasonable

degree of medical probability."           N.J.S.A. 39:6A-8a.1        At trial,

defendant's orthopedic expert, Dr. Thomas Helbig, opined that

plaintiff    suffered   only    soft   tissue    sprains    and     strains   in

connection with the accident.          Dr. Helbig further testified that

two surgical procedures performed on plaintiff were unnecessary.

The jury returned a verdict in defendant's favor, finding plaintiff

did not suffer a permanent injury related to this accident.

     On   appeal,   plaintiff    argues    the   trial     judge    abused    her

discretion in permitting Dr. Helbig to opine that his surgeries


1
  The statute provides that "[a]n injury shall be considered
permanent when the body part or organ, or both, has not healed to
function normally and will not heal to function normally with
further medical treatment." N.J.S.A. 39:6A-8a.
                            2                             A-3383-14T2
were unnecessary.        As he did before the trial judge, plaintiff

argues this testimony went beyond the four corners of the six pre-

trial    reports   Dr.    Helbig       submitted   to   plaintiff’s   counsel.

Plaintiff argues this discrete evidential error by the trial judge

requires us to vacate the jury's verdict and remand for a new

trial.    We disagree with plaintiff's arguments and affirm.

     In order to question Dr. Helbig directly and fully consider

counsel's arguments, the trial judge conducted an N.J.R.E. 104

hearing outside of the presence of the jury.                   The following

colloquy occurred at this hearing:

            THE COURT:     Doctor [Helbig], just so            I'm
            clear, because I want to make sure                 I'm
            following you,     . . . you would have             to
            speculate,   essentially,  as   to  why            the
            surgeries were performed.

                   . . . .

            Is that accurate?

            A. Yes. I would have to speculate as to why
            Dr. Rovner2 and Dr. Oppenheimer3 performed
            these particular procedures on this particular
            gentleman.


2
  In his August 18, 2014 report, Dr. Helbig noted reviewing the
operative report of Dr. Aron Rovner, dated June 6, 2014, which
noted a surgical procedure performed on plaintiff related to a
herniated disc at L5-S1.    Dr. Helbig made clear he saw only
degenerative change.
3
  In the same August 18, 2014 report, Dr. Helbig indicated he had
reviewed Dr. Oppenheimer's post-surgery report on plaintiff's
cervical spine.

                                   3                                   A-3383-14T2
                 . . . .

           THE COURT: Notwithstanding that you said you
           would have to speculate as to why the
           surgeries were performed . . .      you still
           indicated that you would not have recommended
           either procedure. . . . Am I accurate in what
           you said?

           A.   Yes.

                 . . . .

           DEFENSE COUNSEL: Doctor [Helbig], whether you
           know why in Dr. Rovner's mind or Dr.
           Oppenheimer's mind, why they did the surgery,
           do you believe the surgeries were necessitated
           by the motor vehicle accident of September
           7[], 2010?

           A. No.

           DEFENSE COUNSEL: And why not?

           A. There was no objective finding on the MRI
           scan that was performed soon after the
           accident of September 2010 that, in my
           opinion, would require surgery.

           DEFENSE COUNSEL: I have nothing further.

           THE COURT: [Addressing plaintiff's counsel]
           [A]ny follow up?

           PLAINTIFF'S COUNSEL: No Judge.

     After considering the parties' arguments, the trial judge

overruled plaintiff's objection.       Dr. Helbig had previously opined

in his pre-trial reports that plaintiff suffered only "sprains and

strains" as a result of the September 7, 2010 accident, and the

trial   judge   found   that   Dr.   Helbig's   opinion   concerning   the

                                4                                 A-3383-14T2
necessity    of   plaintiff's        surgeries        was   merely    the   logical

extension of these reports. Furthermore, Dr. Helbig had previously

made clear that the Magnetic Resonance Imaging (MRI) studies he

reviewed    showed   injuries    that       were      "degenerative    in   nature,

unrelated to trauma[,] and unrelated to the alleged incident of

9/7/10."    Dr. Helbig's opinion concerning the degenerative nature

of plaintiff's spine covered both the cervical and lumbar regions.

The trial judge was also particularly troubled by plaintiff’s

counsel's decision to proceed to trial without having taken Dr.

Helbig’s deposition.

     Our standard of review concerning this type of evidentiary

ruling is well settled.          A trial court's admission of expert

testimony is entitled to deference absent a showing of an abuse

of discretion.       Townsend v. Pierre, 221 N.J. 36, 52–53 (2015)

(citations    omitted).         An       abuse   of     discretion    arises     "on

demonstration of 'manifest error or injustice[,]'" Hisenaj v.

Kuehner, 194 N.J. 6, 20 (2008) (quoting State v. Torres, 183 N.J.

554, 572 (2005)), and occurs when the trial judge's "decision is

'made without a rational explanation, inexplicably departed from

established policies, or rested on an impermissible basis.'" Milne

v. Goldenberg, 428 N.J. Super. 184, 197 (App. Div. 2012) (quoting

Flagg v. Essex Cty. Prosecutor, 171 N.J. 561, 571 (2002)).



                                     5                                      A-3383-14T2
     "Expert testimony that deviates from the pretrial expert

report may be excluded if the court finds 'the presence of surprise

and prejudice to the objecting party.'"   Conrad v. Robbi, 341 N.J.

Super. 424, 440–41 (App. Div.) (citation omitted), certif. denied,

170 N.J. 210 (2001). In determining whether the trial judge abused

her discretion in permitting Dr. Helbig to opine on the need for

plaintiff's surgeries, we consider whether there was: (1) an

absence of a design to mislead; (2) an absence of the element of

surprise; and (3) an absence of prejudice.   See id. at 441.

     Here, the trial judge carefully reviewed the record and found

there was no basis to conclude plaintiff's counsel was surprised,

mislead, or prejudiced by Dr. Helbig's opinion.    We conclude the

trial judge did not abuse her discretion.

     Affirmed.




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