                NOT FOR PUBLICATION WITHOUT THE
               APPROVAL OF THE APPELLATE DIVISION

                                  SUPERIOR COURT OF NEW JERSEY
                                  APPELLATE DIVISION
                                  DOCKET NO. A-3230-13T4

STUART SACKMAN and
PATRICIA SACKMAN, His Wife,
                                      APPROVED FOR PUBLICATION
     Plaintiffs-Appellants,
                                           April 26, 2016
v.                                      APPELLATE DIVISION

NEW JERSEY MANUFACTURERS
INSURANCE COMPANY,

     Defendant-Respondent.
___________________________________

         Argued October 7, 2015 - Decided April 26, 2016

         Before Judges Fuentes, Koblitz and Gilson.

         On appeal from Superior Court of New Jersey,
         Law Division, Middlesex County, Docket No.
         L-8522-11.

         Michael L. Pescatore argued the cause for
         appellants (Shamy, Shipers & Lonski, P.C.,
         attorneys; David P. Levine, on the brief).

         Susan A. Lawless argued the cause for
         respondent   (Purcell,    Mulcahy,  Hawkins,
         Flanagan & Lawless, L.L.C., attorneys; Ms.
         Lawless, of counsel and on the brief; Alyssa
         K. Weinstein, on the brief).

     The opinion of the court was delivered by

FUENTES, P.J.A.D.
       On June 2, 2008, a car driven by Earl Smith rear-ended

plaintiff1 Stuart Sackman's car while it was stopped on Route 22

in     Bridgewater       Township.         Plaintiff      claims        he    sustained

permanent injuries on the left side of his body, particularly

his left shoulder.          Plaintiff settled his claims against Smith

and    sought   underinsured       motorist      (UIM)   compensation         from   New

Jersey Manufacturer Insurance Company (NJM), the carrier that

issued his automobile insurance policy.2                   The policy issued by

NJM contained a provision pursuant to the Automobile Insurance

Cost Reduction Act (AICRA), N.J.S.A. 39:6A-1.1 to -35, requiring

plaintiff to show he suffered a permanent injury, as defined in

N.J.S.A. 39:6A-8(a), in order to recover compensatory damages.

       Unable to reach a resolution of his UIM claims, plaintiff

filed    suit   against     NJM.     The       matter    was   tried     in    the   Law

Division before a jury over a period of three days in January

2014.     After deliberating for approximately twenty minutes, the

jury    returned     a   unanimous   verdict         finding   plaintiff       did   not

prove,    by    a   preponderance     of       the   evidence,     he    sustained      a

permanent injury that was proximately related to the June 2,

1
  Because Patricia Sackman's per quod claims derive from her
status as Stuart Sackman's spouse, we will refer to "plaintiff"
in the singular.
2
  It is undisputed plaintiff provided NJM with timely notice of
his intention to settle his claims against Smith. See Longworth
v. Van Houten, 223 N.J. Super. 174, 194 (App. Div. 1988).



                                           2                                   A-3230-13T4
2008 accident.        The trial court thereafter denied plaintiff's

motion for a new trial.

    Plaintiff        now   appeals    arguing       the    trial    judge    erred    in

denying his motion to preclude the jury from having to find he

suffered a permanent injury that is proximately related to the

June 2, 2008 accident.            Plaintiff claims the evidence presented

at trial indisputably established this element of his cause of

action as a matter of law.            Alternatively, plaintiff argues the

brevity of the jury's deliberations is per se indicative of bias

and constitutes a clear miscarriage of justice.                     Finally, in the

course    of   her   opening      statement    to    the    jury,    NJM's    counsel

referred to the tortfeasor as "defendant."                   Plaintiff argues the

court's curative instructions to the jury in response to his

counsel    objection       were   insufficient       to    cure    NJM's    counsel's

misleading     characterization        of     the     trial        and   constitutes

reversible error.

    We     reject     these    arguments      and    affirm.        We   derive      the

following facts from the evidence presented at trial.

                                        I

    Plaintiff was forty-nine years old when the Subaru Tribeca

SUV he was driving was struck from behind by a 1970 two-seater

Volvo driven by Earl Smith, a retired New Brunswick firefighter.

The parties were travelling westbound on Route 22 in Bridgewater




                                        3                                     A-3230-13T4
Township.    According to Smith, as he attempted to stop his car,

he inadvertently "caught the gas pedal and the break [sic] at

the same time."      This caused his car "to literally [lift] itself

up, but it wouldn't stop because the engine was pulling it."                 He

"tapped" plaintiff's car going "somewhere between five and ten

miles an hour."

    Plaintiff testified the Volvo was travelling approximately

twenty miles per hour at the time it collided with his Subaru.

Plaintiff also claimed he was wearing his seatbelt and had both

of his hands on the steering wheel at the time of the accident.

As a result of the collision, plaintiff's left elbow struck the

closed    driver-side      car   window,   causing   a   "small    abrasion"

visible as a "pinkish spot."           Plaintiff stepped out of his car

and walked to the side of the road to speak with Smith.                  They

each asked the other if he was "okay" and both responded they

were not injured.

    An officer from the Bridgewater Township Police Department

responded to the scene.          Plaintiff told the officer he was not

injured and did      not need medical attention or             an ambulance.

After    providing   the     officer   with   his    driving    credentials,

plaintiff returned to his car and drove away.             At trial, NJM's

counsel introduced into evidence two photographs depicting the




                                       4                             A-3230-13T4
damage sustained by plaintiff's Subaru Tribeca as a result of

the accident.

    Before      addressing         the   injuries     related     to   the     2008

accident, plaintiff's counsel questioned him about his medical

history.    Plaintiff testified he injured his left shoulder three

years earlier in a 2005 car accident.                His treatment included a

cortisone injection, which was effective in relieving his pain.

In overcoming this injury, plaintiff particularly noted his high

pain threshold:

            I have a really high pain tolerance, so I
            don't really like to address pain in my
            head. I like to think past it, which I did
            and worked out like a dog . . . to bring
            these muscles and that thing back, which I
            did.   So after a period of time, no, it
            didn't bother me at all.

    Plaintiff testified that on January 19, 1984, he "broke his

neck" in a surfing accident on the island of Martinique.                     "I was

body surfing and I caught by a wave [sic] and it slammed me head

first   into    the       ground."       According    to    plaintiff,    he    was

diagnosed    with     a    "C-7"     fracture,    which    is   located   in    the

cervical    area    of    his   spinal    cord.      As    plaintiff   explained,

"[t]here was a lateral fracture that ended up one millimeter




                                          5                               A-3230-13T4
away from my spine."3                  In response to his attorney's question,

plaintiff testified he recovered from this injury "absolutely."

Plaintiff        credited        his     recovery            to    his    rigorous        exercise

routine,     which     he     characterized             as    "extreme."           According     to

plaintiff,       he    swam      twenty       to       thirty      miles     per    week.        He

testified        his   body      "was     perfect"           before       the    June     2,   2008

accident.

       In   addition        to    these       traumatic           injuries,      plaintiff      was

diagnosed with diverticulitis and colitis approximately one year

before the June 2008 accident.                             He had abdominal surgery to

address     these      gastrointestinal                problems.          However,      plaintiff

emphasized that none of the medical incidents he experienced

before the June 2008 accident interfered with or affected his

ability     to    perform        his    job    as      a     "legal      videographer."4          As

plaintiff described to the jury, the physical demands of his job

required him to carry up to 150 pounds of equipment and climb

"under things" to run wires.

       Despite being asymptomatic immediately after the June 2,

2008   accident,       plaintiff         testified           he    began    to     feel    "little


3
  Despite the technical nature of plaintiff's testimony, defense
counsel did not object. Cf. Berkowitz v. Soper, 443 N.J. Super.
391, 398-402 (App. Div. 2016).
4
  As described by plaintiff, his job as a "legal videographer"
consisted of videotaping discovery depositions for attorneys.



                                                   6                                      A-3230-13T4
twinges and stuff" the morning after the accident.                             However,

because of his "high pain tolerance," he did not seek medical

attention.         His    discomfort     intensified         two    days     after    the

accident.     He felt pain only on the left side of his body, from

the "scapula" to his left foot.                 He "knew then something was

wrong, really wrong" when he was unable to get out of his bed.

    Plaintiff saw his general practitioner, Dr. Scott Yeager,

on Monday June 9, 2008, a week after the accident.                      According to

plaintiff, his "chest was on fire and my back was on fire."                            He

consulted     an     orthopedist        and    received        treatment       from     a

chiropractor       after    his    consultation        with    Dr.    Yeager.         The

orthopedist    administered         a   cortisone       injection       in    his    left

shoulder.     He did not recall whether he also received physical

therapy during this time period.

    On    March     2,     2009,   plaintiff      consulted         with     orthopedic

surgeon Dr. Jeffrey S. Abrams, who recommended physical therapy

consisting    of    electrical      stimulation        and    heating      pads.      The

therapy   improved       the   range    of    motion    of    his    left     shoulder.

Despite this improvement in his physical condition, he was still

unable to swim.          He told Dr. Abrams that "no matter how hard I

tried to build my muscles again I thought my muscles would be

strong enough where I could keep it in place, but it's not how

it works."




                                          7                                    A-3230-13T4
      Dr.       Abrams    ordered    plaintiff         to   undergo     a    magnetic

resonance imaging (MRI) test.              According to Dr. Abrams, the MRI

test revealed plaintiff had "damage to his rotator cuff . . .

not a tear."        Dr. Abrams diagnosed plaintiff as suffering from

"a   rotator     cuff    tendinopathy,     which       means     inflamed   tendons."

Following his standard practice, Dr. Abrams first recommended a

conservative non-operative approach.                   In this case, he directed

plaintiff receive therapy and resume exercising.

      Dr.    Abrams      saw   plaintiff       again    approximately       six   weeks

later.      At that time, plaintiff reported constant pain without

any improvement.         Under these circumstances, Dr. Abrams opted to

perform     a    surgical      procedure   known       as   an   arthroscopy.         As

explained by Dr. Abrams, this procedure involves drilling "a

little hole in the bone;" the physician places a hollow screw

into the bone, and stitches it through the screw.                            Once the

screw is in place, the instrument is retrieved leaving the screw

behind attached by the stiches.                  The stitches are then passed

through the tissue.            On June 3, 2009, Dr. Abrams performed the

surgery in an outpatient surgical center, commonly referred to

as "same day surgery."              Dr. Abrams testified the surgery was

performed as expected without complications.

      Plaintiff testified he was confined to a recliner chair for

nine weeks after the surgery.              He also claimed the surgery did




                                           8                                  A-3230-13T4
not   completely        restore     him    to     his       pre-accident       physical

condition.       He    still   experiences        pain      and   feels    "absolutely

damaged."    His left hand "trembles" and he does not have the

same grip strength.         He feels "pain shooting down [his] arm in

the   weirdest    ways,"       as   if    he    is    having      a    heart   attack.

Comparing his physical condition before and after the accident,

plaintiff testified:

            My chest hurts on the left side.    My -- my
            left breast, it looks like -- like my pec is
            hanging a little bit differently than the
            right.   I used to have a duck chest when I
            swam and I don't have it anymore. I used to
            have abdominal muscles that they're gone. I
            now have -- I'm fat -- I'm a fat guy now. I
            used to be -- I was a monster. I was a man
            that people would look at and go wow. And I
            would think yeah, man, you -- you've worked
            hard for this. You deserve this -- this --
            you deserve these people noticing how hard
            you've applied yourself.

      Plaintiff       testified     he   "can't      swim    anymore      because   [he]

[doesn't] enjoy it anymore because between [his] shoulder blades

there's this cracking and stopping sometimes that locks me up in

a certain way and it's not smooth."                     Plaintiff also testified

that the injury affected his relationship with his wife and

daughters.    He does not share time with them as he did before

the accident; he does not play with them anymore.                      Everything he

used to do with his teenage daughters is now done by his wife

"because they don't need me.              They just don't need me the same




                                          9                                    A-3230-13T4
way."     He attributed this estrangement from his children to the

injury he sustained in the June 2008 accident.                            Plaintiff gave

this testimony on January 14, 2014.

        Finally, with respect to his job as a legal videographer,

plaintiff    testified           on    direct       examination    that    he   has    been

unable to resume the physical activities required to perform his

job.    On cross-examination, plaintiff agreed with Dr. Abrams's

medical     assessment          that    he    has    recovered    complete      range    of

motion on his left shoulder.                    Plaintiff also conceded that his

shoulder is completely stable and no longer falls out.                                As to

his ability to work, plaintiff acknowledged that in a form he

completed     for    his        chiropractor         dated   on   July    11,   2008,    he

answered "yes" to the following question: "Have you been able to

work since this injury?"

       Plaintiff         also     acknowledged          on   cross-examination         that

between 2003 and the accident on June 2, 2008, he sought medical

treatment for "an abnormal sensation" in his left arm.                           Defense

counsel also presented plaintiff with documentation indicating

that in the summer of 2003 he had seen his family physician

"complaining        of    weakness       in     [his]    upper    left     extremity[.]"

These records also showed plaintiff consulted his primary care

physician in July 2003 for "left upper extremity pain for at

least   a   year."         The        2003   report     also   stated     plaintiff     had




                                               10                                A-3230-13T4
"chronic     upper     back     and    left      superior      shoulder         pain     with

abduction."

       In addition to his role as plaintiff's treating physician,

Dr. Abrams also testified as an expert witness in plaintiff's

case in chief.         The jury heard his testimony in a de bene esse

videotaped deposition taken on May 21, 2013.                      After he described

the    surgery    he   performed      on    plaintiff     on      June    3,    2009,      Dr.

Abrams opined, within a reasonable degree of medical certainty,

that     "[t]he    most       symptomatic        injury   here      was        his     biceps

symptoms, and his biceps symptoms were a direct result of a

superior labrum tear.             A superior labrum tear is a traumatic

event.     And the traumatic event in this particular case was a

result of an accident because it's a traumatic etiology."

       When asked whether the surgery was successful, Dr. Abrams

responded:

            [Yes], I think so. I think that it's one of
            these things where patients, this patient
            particularly, let's not do in general, this
            patient is improved. He couldn't do certain
            things, he can do them now. . . . That being
            said, there were things he couldn't do that
            he can do now. And so we would agree, both
            the patient and I, that he has been improved
            . . . . And so I think we're both pleased
            with where we are now from a structural part
            of his shoulder.

       Plaintiff       last     saw    Dr.       Abrams     for     a     post-surgical

consultation      on    January       14,    2013,   approximately             six     months




                                            11                                       A-3230-13T4
before Dr. Abrams's de bene esse deposition, and one year before

the start of the trial.       Based on this examination, Dr. Abrams

testified plaintiff "continue[d] to have some symptoms in his

upper extremity."     Plaintiff also complained about "pain along

the shoulder blade[,] . . . some pain radiating up and down his

left upper extremity[, and] some weakness in his actual grip and

side of the neck."    Plaintiff told Dr. Abrams his pain level was

a two to three on a scale of one to ten.

       With respect to whether plaintiff's injuries or symptoms

were   permanent,   Dr.   Abrams   expressed   the   following   opinion,

within a reasonable degree of medical certainty:

           I do feel that there will be permanency. As
           I stated earlier, patients through multiple
           reasons will not be pain-free and back to
           full activities.   I think we improve their
           condition   by   repairing   these   damaged
           structures.

           He still has ongoing symptoms three or four
           years later, and I would not be surprised
           with that.   For now I don't think there's
           any other surgical intervention, but I do
           feel that his symptoms have some permanency,
           and I think that the two to three out of ten
           in pain is a reasonable expectation.

       However, Dr. Abrams also noted that plaintiff's "range of

motion of his shoulder [had] improved.         It [was] very close to

what his range of motion would be on his other shoulder.               His

strength [was] better.       And he did not have any crepitus or

grinding or area of concern."      According to Dr. Abrams,



                                    12                           A-3230-13T4
              I don't think -- he has a fairly normal
              range of motion. I don't think the range of
              motion is a big issue.     I think his big
              issue now is pain.    And so I don't think
              there is really anything else to offer the
              man . . . . So by fixing his cartilage or
              fixing the ring around the plate, we were
              repairing his ligaments.   We achieved that
              goal, but that doesn't necessarily take away
              all of the problems that go along with the
              surgery.

      Dr. Abrams admitted he had not reviewed certain records

pertaining to plaintiff's medical history prior to arriving at

his diagnosis.       Specifically, Dr. Abrams was not aware that: (1)

a neurologist and chiropractor had examined plaintiff in 2003;

(2) plaintiff received physical therapy in 2005 at the Kessler

Institute for Rehabilitation; (3) plaintiff had an MRI test on

his   shoulder      in   2003;   (4)    office    notes    and   medical    records

pertaining to this medical consultation were available; and (5)

plaintiff underwent "EMG/NCV testing of his upper extremities in

2003."    Finally, Dr. Abrams testified plaintiff did not explain

the "mechanics of the injury to him."               Plaintiff only told him a

car rear-ended his car; he was wearing his seatbelt at the time.

      NJM called orthopedic surgeon Dr. Edward M. Decter as an

expert witness.          He examined plaintiff on September 17, 2010,

and   again    on   September     13,    2012.      Dr.    Decter     reviewed     the

reports   describing       plaintiff's     previous       injuries,    as   well    as

those relating to this accident.                 After examining plaintiff on




                                         13                                 A-3230-13T4
September 17, 2010, Dr. Decter opined plaintiff's left shoulder

was "symmetrical and equal" to his right shoulder.              He found

plaintiff had a normal internal and external rotation with no

evidence of instability.      According to Dr. Decter, the surgery

was intended to address "some instability of his shoulder where

the   labrum   was   torn."   Dr.   Decter   opined   that   "Dr.     Abrams

corrected the shoulder instability by his operation."               He also

found a causal relationship between the shoulder surgery and the

torn labrum attributable to the June 2, 2008 accident.

      Dr. Decter gave the following testimony with respect to the

issue of permanency:

           A. [Y]es, his shoulder has been altered and
           it wasn't what God gave him, but the whole
           purpose of what Dr. Abrams did was to
           reattach the labrum back to the glenoid
           socket and that's what he did.

           Q. And [Dr. Abrams] did it successfully in
           your opinion.

           A. Well, my exact words were he made an
           excellent functional recovery as it relates
           to his shoulder surgery.    He has regained
           full mobility without any focal findings. I
           said Dr. Abrams should be commended on an
           excellent     job     of    the     shoulder
           reconstruction.
                He also did some other things in the
           shoulder. He --

           Q. Well, before we get to that, Doctor, I
           just want to now ask you my question after
           we discussed your definition.     After your
           examination, review of all of the records,
           did you have an opinion as to whether or not



                                    14                              A-3230-13T4
         Mr. Sackman suffered a permanent injury as a
         result of -- to his shoulder as a result of
         the June 2nd, 2008 accident?

         A. He has made a good functional recovery
         with full motion and good strength.    There
         has been an alteration in the anatomy of his
         shoulder.

         Q. He has full range of motion?

         A. He regained his range of motion and he
         had a good functional outcome.

    NJM also called Dr. Eric L. Fremed, who testified via a

videotaped de bene esse deposition as an expert in neurology.

Based on an examination he performed on October 14, 2012, Dr.

Fremed found plaintiff's motor function and range of motion in

his left shoulder to be completely normal.    In fact, plaintiff

had full functional use of both his arms.    However, Dr. Fremed

noted atrophy of plaintiff's left arm.     He opined the atrophy

was not related to the June 2008 accident because plaintiff had

reported this same condition in 2003.   Dr. Fremed opined, within

a reasonable degree of medical certainty, that plaintiff had not

suffered any permanent neurological injury related to the June

2, 2008 accident.

    After NJM concluded its presentation, plaintiff moved to

"bar the defense from raising the verbal threshold defense in

their summation as well as removing it [from] the jury charge

and the jury verdict questionnaire."    Defense counsel objected,




                               15                        A-3230-13T4
arguing the evidence presented to the jury clearly established a

disputed      issue    of   fact   as   to    the   permanency    of   plaintiff's

injuries as defined in N.J.S.A. 39:6A-8(a).                      The trial judge

agreed with defense counsel's argument and denied plaintiff's

motion.

                                         II

       Against this record, plaintiff now argues the trial court

erred in denying his motion to preclude the jury from deciding

whether plaintiff proved, by a preponderance of the evidence,

that he sustained a permanent injury proximately related to the

June   2,     2008    accident.     Stated      differently,     relying    on   the

Supreme Court's holding in Gilhooley v. County of Union, 164

N.J.    533    (2000),      plaintiff    argues      the   orthopedic      hardware

implanted by Dr. Abrams to surgically repair the injury to his

left shoulder constituted sufficient evidence to satisfy, as a

matter of law, the "permanent injury" threshold under N.J.S.A.

39:6A-8(a).

       In response, NJM argues the evidence presented to the jury

was not so one-sided that it precluded a reasonable juror from

finding the injuries plaintiff sustained, proximately related to

the June 2008 accident, have sufficiently healed to enable him

to regain his normal function.               NJM also notes that plaintiff's

own testimony conflicted at times, creating a clear issue of




                                         16                                A-3230-13T4
credibility       for   the     jury.       Finally,    NJM    emphasizes       that

plaintiff's reliance on Gilhooley is misplaced because the Court

in that case addressed the plaintiff's injury in the context of

the    Tort    Claims   Act     (TCA),    N.J.S.A.    59:1-1   to   59:12-3,     not

AICRA.

       The     record   here    is   replete   with    evidence     from   which    a

rational jury could find plaintiff did not present sufficient

evidence to satisfy his statutory burden.                Under N.J.S.A. 39:6A-

8(a), "[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."       Although plaintiff did not discuss or even cite the

relevant standard of review, the question before us is governed

by Rule 4:40-1, which provides:

               A motion for judgment, stating specifically
               the grounds therefor, may be made by a party
               either at the close of all the evidence or
               at the close of the evidence offered by an
               opponent.   If the motion is made prior to
               the close of all the evidence and is denied,
               the moving party may then offer evidence
               without having reserved the right to do so.
               A motion for judgment which is denied is not
               a waiver of trial by jury even if all
               parties to the action have so moved.

       In reviewing a trial court's decision on a motion for a

directed verdict, this court "appl[ies] the same standard that

governs the trial courts."            Frugis v. Bracigliano, 177 N.J. 250,




                                          17                               A-3230-13T4
269 (2003).          The standard for a motion made pursuant to Rule

4:40-1    is    akin     to       the    standard        applicable      to     a     motion   for

summary       judgment    under          Rule    4:46-2(c).             We    must     determine

"whether       the   evidence           presents     a    sufficient          disagreement      to

require submission to a jury or whether it is so one-sided that

one party must prevail as a matter of law."                                    Ibid. (quoting

Brill    v.    Guardian       Life       Ins.   Co.      of     Am.,    142    N.J.     520,   540

(1995)).

      Indeed, "[a] motion for a directed verdict, made pursuant

to   [Rule]     4:40-1        .    .    .   'shall       be    denied    if     the    evidence,

together with the legitimate inferences therefrom, could sustain

a judgment in [the non-movant]'s favor.'"                          Edwards v. Walsh, 397

N.J. Super. 567, 571 (App. Div. 2007) (quoting R. 4:37-2(b)).

Otherwise, where "the evidence and uncontradicted testimony is

'so plain and complete that disbelief of the story could not

reasonably       arise    in       the      rational          process    of    an     ordinarily

intelligent mind, then a question has been presented for the

court to decide and not the jury.'"                           Frugis, supra, 177 N.J. at

270 (quoting Ferdinand v. Agric. Ins. Co., 22 N.J. 482, 494

(1956)).

      Here,      the   trial           judge    made      the    following          findings    in

support of his decision to deny plaintiff's motion:

                    In deciding this motion naturally the
               Court has to give all inferences in favor of



                                                18                                       A-3230-13T4
the non-moving party in this case, the
defendant.    Plaintiff contends that Dr.
Abrams clearly testified that as the result
of the labral tear which was repaired by the
arthroscopic surgery in 2010 that there is
going to be and will be into the future pain
caused by this repair of the tear, caused by
the injury that was caused by this accident
continuing into the future.

     However, Dr. Decter -- it is not the
defendant's    burden   to   prove    by   a
preponderance of the evidence that there was
not an injury and that's what plaintiff is
asking.    The defense expert, Dr. Decter,
clearly testified that in his opinion Dr.
Abrams did a superlative job, I don't know
if that's the word he used, but he was
excellent, he would use Dr. Abrams to repair
his own shoulder.

     He was effusive in his [praise] and
what he also said was he completely -- he
completely healed, that the body part in
question now functions normally and he
doesn't have to use those words, but his
testimony was he has full range of motion,
he has strength, his [sic] has suppleness,
he has all of these various degrees of
standards to determine whether or not the
left shoulder has been restored to function
normally and it -- that's the standard and I
find   that  he   has  presented  sufficient
testimony and credible medical evidence
based upon his analysis of the credible
medical evidence relied upon by plaintiff's
expert to render that opinion.

     I find that [permanency] is a matter of
fact that has to be determined by the jury
and the motion is denied.

[(Emphasis added).]




                      19                       A-3230-13T4
    In cases where the question of permanency under N.J.S.A.

39:6A-8(a) is hotly contested, such as it was in this case, the

jury,     acting      within     its    fact-finding           role,       must   determine

whether    plaintiff       has    satisfied         his    statutory         burden      by    a

preponderance of the evidence.                  Ames v. Gopal, 404 N.J. Super.

82, 85-86 (App. Div. 2008), certif. denied, 198 N.J. 316 (2009).

Here,    the    trial    judge's       analysis      and   ultimate         conclusion        is

amply supported by the evidence presented at trial and properly

applied the statutory standard established by the Legislature in

AICRA.

    Plaintiff           next     argues       the     fact      it     took       the      jury

approximately         twenty     minutes       to    reach      a    unanimous        verdict

finding    plaintiff       did    not    prove,      by    a   preponderance          of    the

evidence, he sustained a permanent injury that is proximately

related    to    the    June     2,    2008    accident        constitutes        a   per     se

miscarriage of justice.                Plaintiff's appellate brief devotes a

total of two and one half pages to this argument.                            A half of one

page contains a verbatim recitation of the Model Civil Jury

Charge, through which a trial judge admonishes jurors to decide

the case impartially and not permit "sympathy, passion, bias, or

prejudice,"      to     influence      their       decision.         Model    Jury      Charge

(Civil),       1.12P,    "No     Prejudice,         Passion,        Bias     or   Sympathy"

(2007).     Plaintiff does not cite any legal authority to support




                                              20                                      A-3230-13T4
the extraordinary relief he seeks from this court.                                 Plaintiff

merely     equates     the     brevity       of     the        deliberations         with     a

miscarriage of justice.              Under these circumstances, plaintiff's

argument     lacks     sufficient           merit        to    warrant       any     further

discussion in a written opinion.                 R. 2:11-3(e)(1)(E).

      Finally,       plaintiff        argues      the         trial       judge    committed

reversible    error     when     he    failed       to    give        a   proper     curative

instruction to the jury in response to a remark made by defense

counsel in the course of her opening statement to the jury.

Plaintiff's counsel devoted a total of one and a quarter pages

in   his    appellate        brief     to    this        argument.            Here    again,

plaintiff's counsel did not cite any legal authority in support

of   his   client's     legal     position          on    appeal.           Although      this

argument is completely devoid of merit, we will nevertheless

address it in some detail because it is predicated on an alleged

misstatement of law or fact by defense counsel, compounded by an

alleged erroneous or inadequate response by the trial judge.

      When defense counsel addressed the jury for the first time

in her opening statement, she introduced herself as follows:

            I represent the defendant, Mr. Earl Smith,
            who is here with us today.    As you've just
            heard, in this case you're not going to have
            to determine who was at fault for an
            accident that happened now on June 2nd,
            2008.   Mr. Smith has taken responsibility
            for that accident, but your task this week




                                            21                                       A-3230-13T4
         is going to be no less difficult than if you
         had to have the full case in front of you.

         In this case . . . plaintiff must prove to
         your satisfaction as reasonable people, and
         by a preponderance of the evidence . . .
         that the June 2nd, 2008 accident and that
         accident alone, not past life experiences,
         not subsequent life experiences, but that
         accident alone cause Mr. Sackman to suffer a
         permanent injury. . . ."

         [(Emphasis added).]

    At the conclusion of defense counsel's opening statement,

plaintiff's counsel requested to be heard outside the presence

of the jury.   At this N.J.R.E. 104 hearing, plaintiff's counsel

argued that since this suit was an UIM claim against NJM, it was

improper and misleading for defense counsel to refer to the

tortfeasor as "defendant."     To cure this mischaracterization,

plaintiff's counsel requested the trial judge give the jury a

         curative    instruction   that  Mr.  Smith's
         personal assets are not in play at all, and
         quite    frankly    I   think   it  requires
         instruction to the jury there's sufficient
         insurance coverage in this matter.

         I know I'm not allowed to mention NJM and
         I'm   not  allowed   to   mention  insurance
         coverage and I did not.         I constantly
         referred to the defense or defendant in this
         case.   And quite frankly, I'm not even so
         sure it's appropriate for Mr. Smith to be
         constantly referred to as the defendant when
         he is not the defendant in this case and
         there is no actually pending law suit or
         pending action against him as a named
         defendant.




                                22                       A-3230-13T4
           [(Emphasis added).]


    The trial judge denied plaintiff's application and instead

instructed the jury as follows:

           Your only function in this case is to
           determine, number one, whether the injuries
           reached a level where the plaintiff is
           entitled to sue for damages and if so, based
           upon the evidence and jury instruction I
           give you on damages at the conclusion of the
           case,   what   amount    of   damages   would
           compensate the plaintiff for his injuries.

    Plaintiff     argues    the    judge's   rejection       of   his    trial

counsel's proposed curative instruction constituted reversible

error.     Specifically, plaintiff's appellate counsel states in

the brief before us: "When one combines this element of the

trial with the fact that the jury rendered a no cause verdict on

the threshold in only twenty-one minutes, one must seriously

question   the   validity   of    the   jury's   verdict."        Here   again

plaintiff's appellate counsel did not cite any legal authority

to support this position.

    Had plaintiff's appellate counsel taken the time and effort

to conduct even a modicum of research of this legal issue, he

would have discovered our Supreme Court addressed this precise

contentious question in Bardis v. First Trenton Ins. Co., 199

N.J. 265 (2009), an opinion released by the Court five years

before the start of this trial.          As framed by Justice Hoens on




                                    23                               A-3230-13T4
behalf of a majority of the Court in Bardis, "[W]e are called

upon to answer . . . whether, in a jury trial arising out of

Underinsured   Motorist     (UIM)   coverage,   the    insurer   should    be

identified as the defendant."5       Id. at 269.      Citing with approval

our holding in Krohn v. New Jersey Full Ins. Underwriters Ass'n,

316 N.J. Super. 477, 483 (App. Div. 1998), certif. denied, 158

N.J. 74 (1999), the Bardis Court emphasized that "[a] UIM action

is essentially a contract-based substitute for a tort action

against the tortfeasor."       Bardis, supra, 199 N.J. at 279.            The

Court nevertheless rejected

            the request for a rule compelling the
            insurer in a UIM trial to be identified as
            the defendant . . . . Instead, in the
            context of a UIM trial, in which the
            circumstances of the underlying accident are
            the focus, we are persuaded that the
            insurer's identity is ordinarily irrelevant.
            Nonetheless, we leave it to the sound
            discretion of the trial judge to conclude,
            and to act accordingly, if circumstances in
            a particular trial suggest otherwise.

            [Id. at 277.]

     We acknowledge that reasonable minds can differ on this

question.    Indeed, in Bardis, Justice Albin wrote a passionate

and compelling concurrence expressing his belief

            that the jury can handle the truth, that the
            jury can be trusted to be fair to the true

5
  The Bardis Court also addressed two other issues that are not
relevant to this discussion.



                                    24                             A-3230-13T4
           parties   in  interest,   and  that   feeding
           fictions to the jury is an unacceptable way
           to run a transparent court system.     I also
           believe that a properly instructed jury--
           even in an insurance coverage case--is
           capable of rendering a fair verdict.       In
           courtrooms throughout this State, juries
           hear sensational cases widely reported in
           the press, sometimes involving notorious
           defendants or plaintiffs, but we have faith
           that carefully selected jurors given proper
           legal guidance will do justice.     I see no
           reason to depart from that paradigm for an
           insurance company in a UIM coverage case.

           [Id. at 282-83 (Albin, J., concurring).]

                                      III

    We     cannot,    in   good     conscience,        conclude    this   opinion

without finding that the brief submitted by plaintiff's counsel

in this appeal warrants the imposition of monetary sanctions

pursuant to Rule 2:9-9.             Because we are keenly aware of the

extraordinary nature of this action, we want to clearly explain

the reasons underpinning our decision.                   Our reproach      is not

based on counsel's failure to adhere to the format requirements

delineated   in     Rule   2:6-2.      Plaintiff's       appellate     brief    was

neatly printed and the point headings clearly identified the

legal   issues    raised   therein.         Furthermore,     although     we   have

rejected   plaintiff's      arguments,      we   do    not   claim    plaintiff's

counsel    raised    frivolous      arguments,        completely     lacking    any

reasonable basis in law or equity.




                                       25                                 A-3230-13T4
    The attorney's failings here are not based on the type of

conduct proscribed pursuant to Rule 1:4-8(a) and N.J.S.A. 2A:15-

59.1 as "frivolous litigation."              As our colleague Judge Lyons

made clear in Alpert, Goldberg, Butler, Norton & Weiss, P.C. v.

Quinn,   410   N.J.   Super.    510,    545    (App.   Div.    2009),     certif.

denied, 203 N.J. 93 (2010), while "Rule 1:4-8 has a punitive

purpose in seeking to deter frivolous litigation, it also seeks

to compensate a party that has been victimized by another party

bringing frivolous litigation."             (Citing Deutch & Shur, P.C. v.

Roth, 284 N.J. Super. 133, 141 (Law Div. 1995)).               By contrast, a

sanction   imposed    under    Rule    2:9-9   is   intended     to    deter    the

improper prosecution or defense of an appeal and prevent the

misuse of judicial resources that result from such derelictions.

In re Tenure Hearing of Cowan, 224 N.J. Super. 737, 752-53 (App.

Div. 1988), Judge Brody explained how an attorney's failure to

adhere to Rule 2:6-2(a)(4) (which requires an appellant's brief

to include "[a] concise statement of the facts material to the

issues on appeal supported by references to the appendix and

transcript")    profoundly      undermined      the    court's        ability   to

comprehend the material facts in the case.

           The limitation on the number of pages in a
           brief has a wholesome purpose.   It requires
           the brief writer to recount the facts and to
           argue the law with economy. That constraint
           is designed to produce a brief that is well-




                                       26                                A-3230-13T4
              organized, thoughtful, comprehensible and to
              the point.

                    . . . .

              Appellant's expansiveness infected the legal
              arguments   in    his   brief   with   similar
              unproductive results.      Over 20 pages are
              devoted     to     single-spaced     extensive
              quotations from published opinions and from
              the record.    At one point two opinions are
              quoted in three and a half continuous pages
              without regard to the relevancy of the
              quoted material.

              [Id. at 752-53.]

       Here, the brief submitted by plaintiff's counsel must be

censured      and        sanctioned        because       it       displayed      an      utter

indifference        to    the    standards        of    professional        competence         a

tribunal is entitled to expect from an attorney admitted to

practice      law    in     this     State.            Even   a     cursory     review        of

plaintiff's     appellate          brief    reveals       a   complete        lack    of    any

effort   by    counsel      to     cite    and    discuss,        in   a   professionally

reasonable manner, relevant legal authority in support of the

three arguments raised therein.

       The first argument in plaintiff's appellate brief states

the trial court erred in denying plaintiff's motion to preclude

the jury from considering the question of permanency.                                 We have

stated the reasons for rejecting this argument in Part II of

this   opinion.          However,     it    bears       repeating      that    plaintiff's

brief cited only Gilhooley v. County of Union, supra, as support



                                             27                                       A-3230-13T4
for this argument.          The brief did not discuss or even identify

the    relevant   standard       we     must    apply    in     reviewing     the    trial

judge's decision, nor did it include an analysis of how the

Court's reasoning in Gilhooley applied to the facts of this

case, or to the verbal threshold requirements in AICRA.

       Plaintiff's second argument sought to overturn the jury's

verdict.     Counsel again failed to cite any legal authority in

support of this argument; he did not articulate the relevant

standard    of    review,    or       identify     the        specific     incidents     of

impropriety that irreparably tainted the jury's verdict.                                The

only legal reference included as support for vacating the jury's

verdict consisted of a verbatim recitation of the standard model

jury    charge    the    trial    judge        gave     the    jury    describing       its

obligation to decide the case without bias or prejudice.

       Plaintiff's      third     and    final     argument        point     sought     the

reversal of the jury verdict based on defense counsel's alleged

misrepresentation in her opening statement before the jury.                               As

part of this argument, plaintiff's counsel also questioned the

efficacy    of     the    trial       judge's         response        to   the    alleged

misstatement by defense counsel.                  Plaintiff's counsel did not

cite any legal authority to support this argument.                               Counsel's

unsupported assertions covered a total of one and one quarter

pages.




                                           28                                     A-3230-13T4
     Thirty-nine years ago, this court repudiated the same type

of   shoddy,     unprofessional          submission,    and    in   the        process

endorsed the following standards of professionalism that must be

followed    in   the    presentation       of   legal   analysis    in    appellate

briefs:

            Despite the fact that independent research
            by the court is, to a greater or lesser
            extent, the invariable rule, the parties may
            not escape their initial obligation to
            justify   their    positions    by    specific
            reference to legal authority.      Paucity of
            such reference suggests a like paucity of
            authority helpful to the party. The absence
            of any reference to the law, as here,
            suggests   as   well    a   regrettable    and
            reprehensible indifference on the part of
            the brief writer not only to the rules but
            to the interest of the client as well.

            [State v. Hild, 148 N.J. Super. 294,                    296
            (App. Div. 1977). (Emphasis added).]6

     We now reaffirm our commitment to the enforcement of the

professional      standards        our    colleagues     expressed        in      Hild.

Lawyers    who   take   on   the    responsibility      to    represent        clients


6
  We emphasize that at the time our colleagues endorsed this
standard of professional responsibility, legal research was
performed by the attorney through a labor-intensive process that
often consumed hours of an attorney's time.          It required
personally reviewing the various legal digests to identify a
line of possibly relevant cases. If a case seemed relevant, the
attorney had to examine the Shepard's volumes, one by one, to
ensure the case had not been reversed or distinguished in a
manner adverse to the legal argument at issue. Today, far more
comprehensive research can be completed in a matter of minutes.




                                          29                                   A-3230-13T4
before this court are expected to: (1) familiarize themselves

with the record developed in the forum of origin; (2) research

and analyze the competent legal authority related to the salient

facts of the case; and (3) submit briefs in support of the

arguments     identified     therein   which      reflect    that     the   lawyers

conducted these tasks in a diligent and professional manner.

This is the kind of effort a tribunal in this State is entitled

to expect from an attorney admitted to practice in this State.

Most importantly, as we noted in Hild, this is the kind of

professional    effort      an   attorney    owes    to    his   or   her   client.

Ibid.

      As appellate judges, we review hundreds of briefs every

year.7   The quality of the legal analysis presented to us varies

in   every    case   from    excellent      to    poor.      However,       a   large

percentage of the briefs we review fall within the middle to

upper range of this spectrum.            We accept this as an unavoidable

aspect   of    any    human      endeavor,       knowing    that      facility      of

expression, advocacy skills, and intellectual abilities are not

equally distributed.         What we cannot accept, however, is a lack




7
  As reported by the Administrative Office of the Courts, "[t]he
Appellate Division decides approximately 6,500 appeals and
10,000    motions   each    year."       New    Jersey   Courts,
http://www.judiciary.state.nj.us/appdiv/index.html (last visited
Apr. 18, 2016).



                                       30                                   A-3230-13T4
of effort.    That is what occurred here.            That is the basis for

our decision to sanction plaintiff's appellate counsel.

    Plaintiff's       appellate    counsel    failed    to    conduct   even     a

modicum of legal research or attempt to present any reasonably

competent analysis of the law as it related to the facts of this

case.   By     submitting     a   shoddy,    professionally       unacceptable

brief, plaintiff's appellate counsel displayed a disrespect for

the work of this court and for the legal profession itself.                   The

indifference to the fundamental tenets of the legal profession

displayed    here    by   plaintiff's    appellate   counsel     warrants     the

imposition of a monetary sanction under Rule 2:9-9.

    Rule     2:9-9    authorizes    this     court     to    impose   sanctions

against an attorney who fails "properly to prosecute or defend

an appeal."     These sanctions may include, but are not limited

to, dismissal of the appeal, "imposition of costs or attorney's

fees[,] or such other penalty as may be assessed personally

against the attorney."         In this respect, our Supreme Court has

admonished that "if it is at all possible, the litigant should

not be burdened with his attorney's derelictions."                    Paxton v.

Misiuk, 34 N.J. 453, 458 (1961).

    Plaintiff's appellate counsel is ordered to issue a check

from the firm's business account payable to the Treasurer of the

State of New Jersey in the sum of $200.                 The check shall be




                                        31                              A-3230-13T4
remitted to the Clerk of the Superior Court, Appellate Division

within ten calendar days of the release of this opinion.

    Affirmed.




                               32                          A-3230-13T4
_____________________________________________________
GILSON, J.S.C. (temporarily assigned) concurring.

       I concur in the well-reasoned opinion of the court, except

for section III.         I agree with my colleagues in encouraging

professional standards of advocacy.             Attorneys should strive to

make reasoned arguments based on the facts and law and should

candidly     cite    supporting     or   opposing   precedent.       I    write

separately     because    I    believe    a   monetary   sanction    is      not

warranted here.       Admittedly, plaintiffs' appellate counsel could

have done more, but I do not find their brief so lacking in

thought    and      preparation     as   to   manifest   a   disrespect       to

professional standards. I take this position because I believe

that    sanctions     should   be    reserved    for   appropriate       limited

situations.      In my opinion, this is not such a situation.
