                        NOT FOR PUBLICATION WITHOUT THE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-2302-15T4

CHRISTIAN ANGELES,

        Plaintiff-Respondent/
        Cross-Appellant,

v.

CARMEN I. NIEVES,

        Defendant-Appellant/
        Cross-Respondent.

_______________________________

              Argued October 24, 2017 – Decided June 28, 2018

              Before Judges Carroll and Leone.

              On appeal from Superior Court of New Jersey,
              Law Division, Middlesex County, Docket No.
              L-5685-13.

              Brian G. Steller argued the cause for
              appellant/cross-respondent (Connell Foley,
              LLP, attorneys; Brian G. Steller, of counsel
              and on the briefs).

              Steven P. Haddad argued the cause for
              respondent/cross-appellant    (Haddad    Law
              Offices, attorneys; Steven P. Haddad, of
              counsel and on the brief; Nehal Modi, on the
              brief).

PER CURIAM
        After an auto accident, a jury found defendant Carmen I.

Nieves liable and awarded plaintiff Christian Angeles a $3,000,000

judgment.     Both parties appeal from a December 31, 2015 order.

Defendant appeals the order's denial of her motion for a new trial.

Plaintiff cross-appeals from the order's grant of a remittitur

reducing the judgment to $1,100,000.      We reverse the order denying

a new trial, vacate the order granting the remittitur, and remand

for a new trial.

                                 I.

        Plaintiff testified that, on September 23, 2011, he was

driving his two-door car on a two-lane avenue a block from his

house in Perth Amboy when defendant, on a street with a stop sign,

drove into the intersection and struck the passenger side of his

car.1    Photos showed a dent on the passenger door of plaintiff's

car, and scratches on the front of defendant's car.

        Plaintiff testified as follows.    The impact pushed his car

across the street, onto the sidewalk, and into a fence, causing

his body to hit the driver's door.     Plaintiff called the police,

but did not request an ambulance or emergency treatment. Plaintiff

drove home.



1
 Defendant testified she stopped, looked both ways, and proceeded
into the intersection at 5 m.p.h.

                                  2                            A-2302-15T4
     Plaintiff felt "some pain, a little bit of pain," in his

neck, shoulder, and back.         He went home and took a pill.          The pain

went away but returned when the medicine wore off.                   Two weeks

later, when he could not take the pain anymore, he called a

chiropractor.       When the pain worsened, plaintiff went to the

emergency room, where he was given medicine and crutches.

     From October 17 to December 14, 2011, plaintiff received

eleven chiropractic treatments with massages.               From November 11,

2011,   to   June    8,   2012,    he   received    twenty-one      acupuncture

treatments.     On    December     1,   2011,   plaintiff    went   to    a   pain

management specialist, Dr. Amit Poonia, who diagnosed him with

pain,   sprains/strains,      radiculopathy,       and   disc   displacement,

prescribed medication, and gave him three epidural injections on

March 16, April 13, and May 11, 2012, which enabled him to walk

without crutches.     In June 2012, plaintiff consulted with Dr. Carl

Giordano, who recommended surgery.          Plaintiff did not get surgery

or seek any more medical treatment before the September 2015 trial.

     Dr. Giordano testified the accident caused a herniated L3-L4

disc and a disc protrusion at L4-L5.               He recommended a micro-

discectomy.     Plaintiff's expert, Dr. Wayne King, testified the

accident caused herniated discs at L3-L4, L4-L5, and L5-S1.                   King

also recommended surgery.         Defendant's expert, Dr. Joseph Dryer,

testified the herniated discs were due to degeneration.

                                        3                                 A-2302-15T4
     Plaintiff   testified   as   follows.   Although   his   neck   and

shoulders improved, his pain in his lower back remained "between

9 and 10" on a scale of ten, and he still had pain in his leg and

could not put much weight on it.       "[A]fter the accident my life

changed a lot because I have to stay home permanently because my

back hurts a lot."

          My life has changed 75 percent. I cannot sit
          for a long period of time. I am a truck driver
          and I cannot work the same way I did
          before. . . .    I cannot run.       I cannot
          jump. . . . I cannot kneel . . . . I cannot
          even drive – well, if I ever drive it has to
          be on [pills] and it is with a great deal of
          pain.

     Plaintiff testified he could not coach his kids in basketball,

he could not take them to see the Pope during the papal visit, and

he had problems during sex.   Plaintiff's wife testified similarly,

and added that plaintiff no longer did yard work, and couldn't

play with the children.

     Plaintiff filed his complaint in September 2013.          After a

four-day trial, the six jurors unanimously issued its verdict on

September 30, 2015.   The jury found that: plaintiff did not drive

negligently; defendant drove negligently; defendant caused the

collision; plaintiff sustained at least one permanent injury as a

result; and the sum of money which would compensate him for his




                                   4                           A-2302-15T4
pain, suffering, disability, impairment, and loss of enjoyment of

life was $3,000,000.

     Defendant filed a motion for new trial and/or remittitur.

After hearing oral argument, the trial court issued a written

opinion dated December 30, 2015, and the order dated December 31,

2015, denying a new trial but granting remittitur reducing the

judgment to $1,100,000.   Plaintiff accepted the remitted amount.

Defendant appealed, and plaintiff cross-appealed.

                               II.

     Defendant contends the trial court erred in precluding her

from cross-examining plaintiff's claims of disability using photos

of plaintiff engaging in athletic activities.   "When a trial court

admits or excludes evidence, its determination is 'entitled to

deference 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.

     As set forth above, plaintiff and his wife testified about

how disabled he was as a result of the evidence.    Defense counsel

also cross-examined about plaintiff's working out at the gym.

                                5                           A-2302-15T4
Plaintiff's wife testified plaintiff "can't go to the gym anymore"

since the accident and "d[id]n't go anymore."   Plaintiff testified

that before the accident, "I used to work out," but now "I can't."

     Defense counsel then asked plaintiff if he maintained a

Facebook account. Plaintiff objected. At sidebar, defense counsel

showed the trial court screenshots from plaintiff's Facebook page

dated January 15, 2013.    One screenshot showed plaintiff in a

sleeveless shirt and sweatpants at a gym near exercise equipment,

with a photo caption "In order to maintain the artistic action

figure."

     The trial court asked if defense counsel had made plaintiff's

counsel aware defense counsel was going to use Facebook.   Defense

counsel replied: "No, just – just for cross-examination, Judge."

When defense counsel explained the photo showed plaintiff at the

gym working out, the court mistakenly responded that plaintiff had

testified "yes, I do work out."     The court stated it was "very

concerned about the prejudicial aspect of" the gym photo, and

sustained the objection.

     Defendant attached the gym photo to her motion for a new

trial, as well as other screenshots from plaintiff's Facebook

page. A screenshot dated October 3, 2012, showed plaintiff wearing

a life preserver standing on the edge of a beach a few feet in

front of a "WaveRunner" (a brand of large jet-ski).   A screenshot

                                6                           A-2302-15T4
dated June 16, 2013, showed plaintiff in a short wetsuit sitting

on a WaveRunner, with the photo caption "In water hesitating."2

     In his response to the motion for a new trial, plaintiff

argued his Facebook page was not public.     On appeal, plaintiff

does not dispute the photos were obtained from his publicly-

accessible Facebook profile page.   Cf. Robertelli v. N.J. Office

of Atty. Ethics, 224 N.J. 470, 487 (2016).

     In its written opinion denying defendant's motion for a new

trial, the trial court quoted the rules governing the admission

of relevant evidence and the exclusion of unduly prejudicial

evidence, N.J.R.E. 401, 402, and 403.   The court then ruled:

          Viewing the evidence in the light most
          favorable to the non-moving party, Mr.
          Angeles, the Facebook content had limited
          probative value. The photographs showed Mr.
          Angeles standing or sitting near athletic
          equipment. There was a lack of authentication
          and foundation. Conversely, the surprise to
          Mr. Angeles was profound: the prejudice level,
          potentially high.   The jury might well have
          wondered what Mr. Angeles was doing in a gym
          in the first place.




2
  Plaintiff notes the trial transcript contains no mention of the
WaveRunner photos.    Defendant responds that defense counsel's
efforts to use the photos were prematurely precluded by the court
at trial. On defendant's motion for a new trial, the trial court
stated it had ruled both the gym photo and the WaveRunner photos
could not be shown to the jury. Thus, we consider both the gym
photo and WaveRunner photo.


                                7                          A-2302-15T4
     Defendant challenges each of the trial court's rationales.

First, in determining the probative value of evidence, it is

inappropriate to view the evidence "in the light most favorable

to the non-moving party."3   Rather, under N.J.R.E. 401, "[t]he

'test [of relevancy] is broad and favors admissibility[.]'"   State

v. Schnabel, 196 N.J. 116, 131 (2008) (alteration in original)

(citation omitted).   Moreover, "[t]he burden lies with the party

seeking exclusion of the evidence to show that the probative value

is substantially outweighed by one or more of the factors listed

in [N.J.R.E.] 403." McLean v. Liberty Health Sys., 430 N.J. Super.

156, 167 (App. Div. 2013); see Rosenblit v. Zimmerman, 166 N.J.

391, 410 (2001) ("The burden is clearly on the party urging the

exclusion of evidence[.]" (quoting Biunno, Current N.J. Rules of

Evidence, comment 1 on N.J.R.E. 403 (1999-2000))).   "A reviewing

court will not defer to a trial court if its decision '"'is based

on a mistaken understanding of the applicable law.'"'"     Mernick

v. McCutchen, 442 N.J. Super. 196, 199 (App. Div. 2015) (quoting

C.A. ex rel. Applegrad v. Bentolila, 219 N.J. 449, 459 (2014)).

     Second, the excluded evidence was relevant.   The January 15,

2003 photo showing plaintiff at a gym directly contradicted the

testimony by plaintiff's wife that after the September 23, 2011


3
  That is the standard for summary judgment.   Qian v. Toll Bros.
Inc., 223 N.J. 124, 134-35 (2015).

                                8                          A-2302-15T4
accident plaintiff could not and did not go to the gym.   Moreover,

the photo of plaintiff at the gym in exercise clothes, bearing the

caption "[i]n order to maintain the artistic action figure,"

supported a reasonable inference that plaintiff was working out

at the gym, in direct contradiction to plaintiff's testimony that

after the accident he could not work out.

     Similarly, the October 3, 2012 and June 16, 2013 photos

showing plaintiff, wearing wetsuits or life preservers, sitting

on or standing near WaveRunners in or near the water, raised a

reasonable inference that plaintiff was riding the WaveRunners.

Thus, those photos, and the January 15, 2013 photo of plaintiff

at the gym, were inconsistent with plaintiff's overall testimony

that after the accident he "had to stay home permanently because

my back hurts a lot," and that he could not engage in modest

physical activities or drive a vehicle without a great deal of

pain.

     Evidence is relevant if it has "a tendency in reason to prove

or disprove any fact of consequence to the determination of the

action."   N.J.R.E. 401.    That standard "is generous: if the

evidence makes a desired inference more probable than it would be

if the evidence were not admitted, then the required logical

connection has been satisfied."   State v. Williams, 190 N.J. 114,

123 (2007).   "[I]f evidence does support the existence of a

                                  9                         A-2302-15T4
specific fact, even obliquely, it is relevant and admissible."

Verdicchio v. Ricca, 179 N.J. 1, 34 (2004); see N.J.R.E. 402.              If

the photos were taken after the accident, as defendant contended,

the photos tended to disprove plaintiff's claims of disability by

making more probable the inference that he was able to engage in

vigorous physical activity.

     Third, post-accident photos of plaintiff apparently engaged

in strenuous activity would have substantial probative value.

"Probative value 'is the tendency of the evidence to establish the

proposition that it is offered to prove.'"         State v. Buckley, 216

N.J. 249, 261 (2013) (citation omitted).          Motion pictures which

"actually portray plaintiff engaged in some strenuous activity

which on deposition she had already testified is beyond her

capacity" is valuable evidence to deflate a plaintiff's claim.

Jenkins v. Rainner, 69 N.J. 50, 58 (1976); Mernick, 442 N.J. Super.

at 202.    Still photos are also telling, especially as plaintiff

added a caption stating he is at the gym "to maintain [his]

artistic action figure."

     Although the photos depicted plaintiff standing near the gym

equipment and WaveRunner and sitting on a WaveRunner, rather than

actually   working   out   or   riding   the   WaveRunner,   the   gym   and

WaveRunner photos showed plaintiff dressed to work out and to ride

a WaveRunner, respectively.      His attire, and the captions he gave

                                   10                               A-2302-15T4
the pictures, strongly support the inference he was engaged in

those strenuous activities.

     The trial court expressed concern the gym photo might have

caused the jury to wonder what plaintiff was doing in a gym.

However, that was no reason to preclude use of the photos on cross-

examination.     Cross-examination "is the 'greatest legal engine

ever invented for the discovery of truth.'"          State v. Cope, 224

N.J. 530, 555 (2016) (quoting California v. Green, 399 U.S. 149,

158 (1970)).     If the photos cast doubt on plaintiff's claim of

disability, they "could have undermined" that claim and "cast

doubt on [his] general veracity and capacity to tell the truth."

See State v. Castagna, 187 N.J. 293, 311 (2006).

     Moreover, plaintiff would have had the opportunity on cross-

or redirect examination to explain what he was doing in a gym or

with WaveRunners, or to dispute when the photos were taken, and

the jury would have had the opportunity to evaluate the credibility

of his answer.    Any subsequent concern about speculation "could

have been ameliorated with a limiting instruction to the jury."

See Davis v. Barkaszi, 424 N.J. Super. 129, 142 (App. Div. 2012).

     Fourth,   relevant   evidence    may   be   excluded   only   "if   its

probative value is substantially outweighed by the risk of (a)

undue prejudice."    N.J.R.E. 403.    This standard was not satisfied

by the trial court's statements that it was "very concerned about

                                 11                                A-2302-15T4
the    prejudicial   aspect"    or   that   "the   prejudice   level     [was]

potentially high."     "The mere possibility that evidence could be

prejudicial does not justify its exclusion."          State v. Morton, 155

N.J. 383, 453-54 (1998).       "It is not enough for the opposing party

to show that the evidence could be prejudicial[.]"         State v. Cole,

229 N.J. 430, 448 (2017).

       Crucially, the trial court did not identify any prejudice

from the photos other than their probative value in disproving

plaintiff's disability claim.           "Even when evidence is 'highly

damaging' to a [plaintiff's] case, 'this cannot by itself be a

reason to exclude otherwise admissible and probative evidence.'"

State v. Brockington, 439 N.J. Super. 311, 333 (App. Div. 2015)

(citation omitted).    "[T]he question is not whether the challenged

testimony will be prejudicial to the objecting party, 'but whether

it will be unfairly so.'"            Griffin, 225 N.J. at 421 (quoting

Stigliano v. Connaught Labs., 140 N.J. 305, 317 (1995)).                    "We

would ill-serve the cause of truth and justice if we were to

exclude relevant and credible evidence only because it might help

one side and adversely affect the other."          Stigliano, 140 N.J. at

317.

       "'Evidence claimed to be unduly prejudicial is excluded only

when its "probative value is so significantly outweighed by [its]

inherently inflammatory potential as to have a probable capacity

                                      12                               A-2302-15T4
to divert the minds of the jurors from a reasonable and fair

evaluation" of the issues in the case.'"           Griffin, 225 N.J. at 421

(alteration in original) (citations omitted).              There was nothing

inflammatory in the photos of the smiling plaintiff in exercise

clothes near exercise equipment.           The photos would not divert the

jury from the issues, as they directly addressed the issue of

whether plaintiff was as disabled as he claimed.

     We   recognize    that    "[t]he      trial court    is     granted     broad

discretion in determining both the relevance of the evidence to

be presented and whether its probative value is substantially

outweighed by its prejudicial nature."            Green v. N.J. Mfrs. Ins.

Co., 160 N.J. 480, 492 (1999).              However, the photos were not

inflammatory and there was no unfair prejudice to weigh.               Cf. id.

at 501-02 (finding the trial court abused its discretion in

admitting   evidence   whose       probative     value   "was    substantially

outweighed by its exceedingly inflammatory nature").

     Moreover, the trial court agreed the photos had probative

value.    Even if the photos' probative value was "limited" as the

court stated, there was no undue prejudice by which the photos'

probative   value   could     be   outweighed,    let    alone   substantially

outweighed.    Thus, "[w]e find no support for the invocation of

N.J.R.E. 403(a) as the means for excluding this evidence."                      See

State v. Hockett, 443 N.J. Super. 605, 615 (App. Div. 2016)

                                      13                                   A-2302-15T4
(reversing    exclusion   of   photos   inconsistent   with   a   witness's

testimony).    "In sum, we conclude that the trial court's decision

to bar [the photos under N.J.R.E. 403] was an abuse of discretion."

See Griffin, 225 N.J. at 422-23.

     Fifth, in denying a new trial, the trial court also stated

"there was a lack of authentication and foundation."                Neither

objection was raised at trial, and plaintiff on appeal does not

challenge the authenticity of the photos.        See Hockett, 443 N.J.

Super. at 614 (finding that, by claiming prejudice and "failing

to otherwise object, the prosecution tacitly acknowledged the

photographs actually depicted what the defense claimed").

     Moreover, defendant sought to use the photos to cross-examine

plaintiff.     Authentication and foundation are preconditions for

the admission of evidence.         N.J.R.E. 901; Biunno, Weissbard &

Zegas, Current N.J. Rules of Evidence, comment 1 on N.J.R.E. 611

at 666 (2018).     By contrast, "documents that are not going to be

admitted into evidence, or do not need to be admissible, need not

be authenticated."    Biunno, Weissbard & Zegas, Current N.J. Rules

of Evidence, comment 1 on N.J.R.E. 901 (2018) (citing Plaza 12

Assocs. v. Carteret Borough, 280 N.J. Super. 471, 477-78 (App.

Div. 1995)).     "Impeachment of a witness' credibility need not be

limited to evidence adduced at trial."        Delgaudio v. Rodriguera,



                                   14                               A-2302-15T4
280 N.J. Super. 135, 141 (App. Div. 1995) (citing State v. Martini,

131 N.J. 176, 255 (1993)).

       In any event, defense counsel began to ask plaintiff if he

maintained   a     Facebook   account,    but   further    questioning      was

precluded when the trial court expressed concern over prejudice

and sustained the objection. Had the inquiry not been interrupted,

defense counsel could have asked plaintiff further questions to

establish that the photos and their captions came from plaintiff's

Facebook account.       "Authenticity can be established by direct

proof — such as testimony by the author admitting authenticity[.]"

State v. Hannah, 448 N.J. Super. 78, 90 (App. Div. 2016).

       Moreover,     the      requisite    showing        "'may   be       made

circumstantially.'"        Ibid. (citation omitted).       "The 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 '"does not require absolute certainty or

conclusive proof" — only "a prima facie showing of authenticity"

is required.'"     Hannah, 448 N.J. Super. at 89 (citations omitted).

       There was evidence supporting a prima facie showing that the

photos were authentic.        As the trial court acknowledged, the gym

photo depicted plaintiff.        It is undisputed that the WaveRunner

photos also depicted plaintiff.            Each of the photos were on

                                     15                                A-2302-15T4
Facebook screenshots showing the header "Christian R. Angeles" and

a profile picture, comments by other Facebook subscribers on the

photos, and replies bearing plaintiff's header and the profile

picture.   This evidence could have been "sufficient to meet the

low burden imposed by our authentication rules."           Id. at 90-91

(finding a tweet was authenticated by its use of the defendant's

Twitter handle, her profile photo, the content of the tweet, its

nature as a reply, and trial testimony).

     As to foundation, our Supreme Court has remarked:

           the persuasive representational nature of
           photographs demands that the foundation for
           the admission of photographs must be properly
           laid.   We have stated the rule as follows:
           "'[t]he   authentication    of    photographic
           evidence prior to its admission seems to
           contemplate proof that the photograph is a
           substantially correct representation of the
           matters offered in evidence, and this includes
           an identification or statement as to what the
           photograph shows.'"

           [Brenman v. Demello, 191 N.J. 18, 30 (2007)
           (alteration in original) (quoting State v.
           Wilson, 135 N.J. 4, 14 (1994)).]

     Again,   had   defense   counsel   been   permitted   to   question

plaintiff further, it seems likely that plaintiff, who was depicted

in each of the photos, wrote the captions for the photos, and

posted them on his Facebook page, could "identify the persons,

places, or things shown in the photograph[s]," and state whether

the photos were a substantially correct representation of the

                                  16                             A-2302-15T4
"event that was the subject of testimony," namely plaintiff's

activities at the gym and with the WaveRunners.   Wilson, 135 N.J.

at 14, 18.   "'[A]ny person with knowledge of the facts represented

in the photograph may authenticate it.'"   Hockett, 443 N.J. Super.

at 613 (citation omitted).

     Plaintiff argued the dates the photos were taken were unknown.

Even if the date was at issue, "the better course was for the

judge, in his gatekeeping role, to . . . leave for the factfinder

a 'more intense review' of the photographs and the credibility of

the authenticating witness."      Id. at 614-15 (quoting Biunno,

Weissbard & Zegas, Current N.J. Rules of Evidence, comment 1 on

N.J.R.E. 901 (2015)).

     Sixth, the trial court stated "the surprise to [plaintiff]

was profound."     The court cited Persley v. N.J. Transit Bus

Operations, 357 N.J. Super. 1 (App. Div. 2003), where we noted

"unfair surprise" was a factor in determining whether "[a] motion

picture of a reconstruction of a particular event may be admitted

into evidence."    Id. at 14, 15.     However, Persley involved a

computer-generated, animated, video simulation of an accident

created by the defense. Id. at 4, 8. Here, by contrast, plaintiff

posed for the photos, wrote the captions for the photos, posted

them on his Facebook page, and replied to comments about the

photos.   Thus, he was well aware of the existence and content of

                                17                          A-2302-15T4
the photos.    See Hayes v. Delamotte, 231 N.J. 373, 391 (2018) ("A

party's use of evidence in its closing argument cannot be an

'unfair surprise' to the adverse party that properly produced,

introduced, and admitted the same evidence at trial.").

     Although plaintiff posted the photos on his public Facebook

page, he may have been surprised defendant was using the photos

at trial, because she did not produce them in discovery.                  However,

the trial court did not state it was excluding the photos as a

discovery sanction.

     Nonetheless,       plaintiff    argues       we    may     affirm    on    any

appropriate ground even if it is not the ground relied on by the

trial court.       Plaintiff cites Isko v. Planning Bd. of Livingston,

51 N.J. 162, 175 (1968), which ruled: "It is a commonplace of

appellate review that if the order of the lower tribunal is valid,

the fact that it was predicated upon an incorrect basis will not

stand in the way of its affirmance."

     We agree with plaintiff that defendant had a continuing

obligation    to    produce   the   photos   in    discovery.        Plaintiff's

complaint demanded defendant produce documents, including "all

photographs . . . obtained regarding the [P]laintiff." Plaintiff's

complaint     also      demanded     defendant         answer     the     "Uniform

Interrogatories,       Form   C,"   which    includes         questions   seeking

information about "any photographs . . . made with respect to

                                      18                                   A-2302-15T4
anything that is relevant to the subject matter of the complaint,"

and "any statements or admissions [by plaintiff] as to the subject

matter of this lawsuit," which encompassed the captions.                   It is

not "ground for objection that the examining party has knowledge

of the matters as to which discovery is sought."              R. 4:10-2(a).

      Nonetheless,    a    discovery    violation    does    not   necessarily

justify the exclusion of proffered evidence.                "[A]lthough it is

the policy of the law that discovery rules be complied with, it

is also the rule that drastic sanctions should be imposed only

sparingly."   Zaccardi v. Becker, 88 N.J. 245, 253 (1982).                    The

exclusion of relevant evidence "'is a drastic remedy and should

be applied only after other alternatives are fully explored[.]'"

State v. Washington, 453 N.J. Super. 164, 190 (App. Div.) (citation

omitted), appeal denied, __ N.J. __ (2018).           Before invoking that

sanction,   "'the    court    should    explore    alternatives.'"         Ibid.

(citation omitted).

      To support her argument that exclusion was the proper remedy,

plaintiff   claims   the     circumstances   are    analogous      to   Jenkins.

There, the defendants' investigator conducted covert surveillance

of the plaintiff, taking motion pictures to show she was feigning

injury, but the defendants refused to disclose the movies or the

circumstances under which they were taken.           69 N.J. at 52-53, 55-

56.   Our Supreme Court required disclosure, reasoning: "It is no

                                       19                                A-2302-15T4
more   unlikely   that   a    defendant   may    resort   to   chicanery     in

fabricating motion pictures of one alleged to be the plaintiff

than it is that a plaintiff may indeed be a faker."               Id. at 57.

"If [the movie] is unleashed at the time of trial, the opportunity

for an adversary to protect against its damaging inference by

attacking   the   integrity    of   the   film   and   developing   counter-

evidence is gone or at least greatly diminished."              Id. at 57-58.

       Here, by contrast, having posed for the photos, captioned

them, and posted them on his Facebook page, plaintiff already knew

better than defendant "where, when, how often and under what

circumstances the [photos] were taken."            Id. at 53, 59.       Under

those circumstances, there was no claim that defendant had resorted

to chicanery by fabricating the photos or captions.               Indeed, no

suggestion is made that plaintiff had any basis for attacking the

integrity of the photos.

       Moreover, plaintiff has not suggested any other counter-

evidence he could have offered other than his own testimony.

Plaintiff was present and available to testify about where, when,

and under what circumstances he posed for the photos, captioned

them, and posted them.       Any surprise to plaintiff's counsel could

have been adequately addressed by a recess to allow consultation

with plaintiff and examination of his Facebook page.             Thus, total



                                     20                               A-2302-15T4
exclusion   of   the   photos   would    not   have    been   an   appropriate

discovery sanction.

     Accordingly, there was no basis to exclude the photos.                   As

the photos had substantial probative value to rebut plaintiff's

claim of disability, their exclusion "was clearly capable of

producing an unjust result."       R. 2:10-2.         That the exclusion was

prejudicial was evidenced by the $3,000,000 verdict based on

plaintiff's unrebutted claim of disability.              See Rosenblit, 166

N.J. at 410 (finding prejudice based on the damage award in another

case).   In any event, plaintiff cannot show that the exclusion of

the photos was harmless.        Accordingly, we reverse and remand for

a new trial.4

                                   III.

     Defendant also contends a new trial is required by remarks

by plaintiff's counsel during his closing argument.                The remarks

referred to an objection during plaintiff's direct testimony.

     During plaintiff's direct examination, after eliciting Dr.

Giordano's recommendation to have surgery, plaintiff's counsel

asked "did you undergo the surgery," and plaintiff said "I didn't



4
  We need not reach defendant's contention it was plain error for
the trial court not to have a hearing under N.J.R.E. 104 to
determine the admissibility of the photos. See Kemp v. State, 174
N.J. 412, 432-33 (2002).


                                    21                                 A-2302-15T4
because I didn't have the money."    Defense counsel objected, but

the trial court believed plaintiff had said only "I didn't."5

Plaintiff's counsel asked plaintiff "why didn't you have the

surgery," and defense counsel again objected, pointing out that

plaintiff had previously gratuitously volunteered that persons of

his ethnicity "have to pay a lot for healthcare."   The court told

plaintiff's counsel he would have to lead plaintiff "if he's going

to say something about . . . the lack of insurance or money."

Instead, plaintiff's counsel questioned plaintiff about other

topics.

     In his closing argument, plaintiff's counsel argued defense

counsel "made a big deal towards the end of his summation about

[plaintiff] never having surgery.    If you'll recall, I asked him

the question and he was cut off because of an objection."        The

trial court sustained defense counsel's objection.     Plaintiff's

counsel argued to the jury "the reason he didn't have the surgery,

we're not able to find out," and then moved on.

     We do not condone plaintiff's counsel's remarks, which "are

not to be repeated on retrial."       Rodd v. Raritan Radiologic

Assocs., 373 N.J. Super. 154, 172 (App. Div. 2004).    However, we

find no reversible error.   Defendant notes that attorneys "may not


5
  Plaintiff asserts the objection cut off the interpreter before
translating plaintiff's use of the word "dinero."

                                22                          A-2302-15T4
use disparaging language to discredit the opposing party, or

witness, or accuse a party's attorney of wanting the jury to

evaluate the evidence unfairly, of trying to deceive the jury, or

of deliberately distorting the evidence."              Id. at 171.      However,

plaintiff's counsel did not use disparaging language or make any

such     accusations.      Cf.   ibid.      (plaintiff's      counsel   accused

defendant doctor of caring more about making money and defendant's

expert of adjusting his testimony); Szczecina v. PV Holding Corp.,

414 N.J. Super. 173, 184 (App. Div. 2010) (plaintiff's counsel

"unwarrantedly and inappropriately accused the entire defense of

spinning the evidence").

       Moreover, the trial court sustained defendant's objection to

the initial remark in closing.             Defendant did not object to the

second    remark   or   seek   any   other    relief   from    either   remark.

Moreover, the court instructed the jury that "what the attorneys

say is not evidence and their comments are not binding on you,"

and that it was the jury's recollection of the evidence which

controls.    Accordingly, we reject this claim.

                                      IV.

       Finally, defendant argues we should order a new trial because

the remitted $1,100,000 verdict was against the weight of the

evidence.     As we have already ordered a new trial based on the

exclusion of the photos, we need not address this claim.

                                      23                                 A-2302-15T4
     Similarly, we need not reach plaintiff's cross-appeal arguing

the remittitur was an abuse of discretion.      Because the exclusion

of the photos requires that we vacate the jury's verdict, we could

not reinstate the jury's $3,000,000 verdict even if the remittitur

was an abuse of discretion.

     We also decline to review the validity of the remittitur

because the trial court's remittitur ruling was based in part on

Supreme Court case law that our Court has since overturned.        The

trial court relied on He v. Miller, 207 N.J. 230 (2011).      "The He

Court held that a trial judge could rely on both his personal

knowledge of verdicts as a practicing attorney and jurist and

'comparable' verdicts presented by the parties in deciding a

remittitur motion."   Cuevas v. Wentworth Grp., 226 N.J. 480, 486

(2016); see He, 207 N.J. at 255-57.      Relying on He, the trial

court here cited verdicts reported throughout the State, and

verdicts "which with the court is familiar."

     However, after the trial court's December 2015 remittitur

ruling, the Supreme Court in 2016 "conclude[d] that such an

approach is not sound in principle or workable in practice."

Cuevas, 226 N.J. at 486; see id. at 503-09.     In Cuevas, the Court

held that "a judge's personal experiences with seemingly similar

cases while in practice and on the bench are not relevant in

deciding a remittitur motion."    Id. at 505.    The Court also held

                                 24                           A-2302-15T4
"that the comparison of supposedly similar verdicts to assess

whether a particular damages award is excessive is ultimately a

futile exercise that should be abandoned." Ibid. Thus, in Cuevas,

the "Court rejected many aspects of its earlier holding in He."

Krzykalski v. Tindall, 448 N.J. Super. 1, 5 n.3 (App. Div. 2016),

aff'd, 232 N.J. 525 (2018).

     As we have already granted a new trial on other grounds, it

would be pointless to review the trial court's remittitur ruling

based in part on the overruled aspects of He.    Remittitur should

be addressed in the first instance by the trial court applying the

proper standard.6   If a remittitur motion is filed after the

retrial, the trial court should apply current law, including

Cuevas.




6
  "[A]n appellate court must pay some deference to a trial judge's
'feel of the case' . . . because '[i]t is the judge who sees the
jurors wince, weep, snicker, avert their eyes, or shake their
heads in disbelief,' who may know 'whether the jury's verdict was
motivated by improper influences,' and who may be privy to
observations that could not have been made by the jury." Cuevas,
226 N.J. at 501-02 (citations omitted).      Here, the trial court
cited such factors, including plaintiff's interjection before the
jury about his inability to afford healthcare.      The court also
cited plaintiff's apparent lack of pain and discomfort while
testifying, but "[a] judge's 'feel of the case' based on observing
a party or a witness in the courtroom is entitled to minimal weight
if the jury had the same opportunity to make similar observations."
Id. at 502 (citation omitted).

                               25                           A-2302-15T4
    We reverse the order denying a new trial, vacate the jury's

verdict,   and   remand   for   a   new   trial.   We   do   not    retain

jurisdiction.




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