SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4281-14T3

LEILA KARPUZI, a minor

by and through her G/A/L

IDRIZ KARPUZI and IDRIZ

KARPUZI, Individually,

Plaintiffs-Appellants,

v.

EVAN M. GALLO,

Defendant-Respondent,

and

AUDRENE M. GALLO and XHEMILE

KARPUZI,

Defendants.

__________________________________________

Submitted September 20, 2016 – Decided

Before Judges Koblitz and Rothstadt.

On appeal from the Superior Court of New

Jersey, Law Division, Atlantic County, Docket

No. L-6480-12.

Westmoreland Vesper Quattrone & Beers, P.A.,

attorneys for appellants (Kathleen F. Beers,

on the briefs).

Hurvitz & Waldman, LLC, attorneys for

respondent (Marc L. Hurvitz and Joshua K.

Givner, on the brief).

NOT FOR PUBLICATION WITHOUT THE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.

March 8, 2017

2 A-4281-14T3

PER CURIAM

Plaintiff Leila Karpuzi was involved in an automobile

accident as a passenger when she was approximately twelve years

old. Her father, plaintiff Idriz Karpuzi, brought this action for

damages, on behalf of Leila and individually, against defendant,

Evan M. Gallo, the driver of the vehicle that struck the car in

which Leila was a passenger. The matter was tried before a jury

that returned a verdict of "no cause" in favor of defendant, and

the trial court denied plaintiffs' motion for a new trial.

Plaintiffs appeal from the judgment dismissing their

complaint and the trial court's order denying her motion for a new

trial. They contend the trial court committed various errors that

warrant reversal. Specifically, they argue that the jury's verdict

was against the weight of the evidence; the court failed to ask

any open-ended questions during jury selection; it barred

testimony about "malingering"; it did "not allow[] fair comment

or [a] negative inference" regarding a defense doctor who did not

testify; it barred testimony by plaintiffs' chiropractor regarding

his reliance on MRI results; it failed to give an "aggravation

charge"; and it did not itemize injuries on the jury verdict sheet.

In addition, plaintiffs contend that defense counsel's summation

"was, inaccurate, prejudicial [and] easily capable of [being]

misleading."

3 A-4281-14T3

We have considered plaintiffs' contentions in light of the

record and our review of the applicable legal principles. We

reverse the order denying a new trial, vacate the entry of judgment

in favor of defendant, and remand the matter for a new trial

because the trial court did not comply with its obligations during

jury selection.

The proofs adduced at trial focused on Leila's injuries, as

liability was not an issue, and can be summarized as follows. On

August 24, 2011, defendant's car collided with a vehicle being

driven by Leila's sister in which she was a passenger. Leila did

not receive any medical treatment or care for any injuries she

sustained in the accident until January 2012, even though she

stated that she experienced back and neck pain about a week to two

weeks after the accident.

Leila was first evaluated and treated by Dr. Jason Pagliarini,

a chiropractor, who she saw regularly until June 2012. Two x-rays

of Leila's cervical spine (neck) were taken on January 18, 2012,

and an MRI of her lumber spine was performed on March 22, 2012.

In addition to the chiropractic treatment, Leila took over-the-

counter anti-inflammatories to alleviate her pain. Also, in

November 2012, she saw a doctor at a hospital, but did not have

any follow-up treatment with that doctor.

4 A-4281-14T3

Dr. Andrew S. Glass, a neurologist, also saw Leila in March

and April 2013, and an additional time in April 2014. Leila

testified that Dr. Glass informed her that her back was "very

unstable" and that there was a possibility for surgery though he

did not recommend it at this time due to her very young age. Dr.

Glass gave her two booklets with stretching exercises for her to

do from home. He did not prescribe any pain medication or other

forms of treatment and never advised Leila to stop participating

in school athletic activities. After seeing Dr. Glass, Leila did

not received any additional medical treatment for her injuries.

Although Leila expressed at trial that her physical

activities had been limited as a result of pain she suffered after

the accident and that she can no longer roller skate or go on a

roller coaster, she confirmed that she regularly continued to

attend school and gym classes since the accident. Her school

records demonstrated that Leila attended physical education and

continued to perform very well in school.

Dr. Ralph Dauito, plaintiffs' expert in radiology, reviewed

and interpreted the MRI of Leila's lumber spine and the two x-rays

of her cervical spine, and testified as to injuries he discerned

from those tests. According to Dr. Dauito, the MRI showed a

herniated disc at L5-S1 and the x-rays reflected a "trauma induced

whiplash injury of the cervical spine" wherein the "ligament

5 A-4281-14T3

posteriorly is sprained and torn." He testified that the herniated

disc was "caused by an acute injury," sustained in the motor

vehicle accident based upon "[t]he history [he] was provided." He

also testified that the neck injury was "related to" the motor

vehicle accident based on the "history of trauma [he] was given."

The parties' medical experts did not dispute the injuries

testified to by the radiologist. Instead, they testified about

their findings as to whether Leila sustained any of her injuries

in the accident and, if so, whether either of them was permanent.

Dr. Glass testified that Leila had two permanent injuries: a

herniated disc at the L5-S1 level and an injury to her cervical

spine called "spondylolisthesis" or "anterolisthesis." He found

the disc herniation to be a "sizeable" one, but opined that the

"degree of misalignment in the neck [was] only mild." He did not

find any neurological deficits. The doctor stated that Leila's

injuries were "structural abnormalities objectively determined by

MRI." Moreover, he opined within a reasonable degree of medical

certainty that the herniated disc was caused by the motor vehicle

accident on August 24, 2011, and Leila's anterolisthesis was either

caused by the accident or rendered symptomatic by the accident.

He based his finding about the cervical spine injury upon Leila

being "entirely asymptomatic in that region before the motor

6 A-4281-14T3

vehicle accident" and "[w]as only symptomatic consistently and

persistently after the motor vehicle accident."

Dr. Glass also opined that Leila's symptoms were consistent

with her injuries and that there "appeared to be a direct

correlation between her verbal description, the findings on her

physical examination and the MRIs." Dr. Glass further testified

that while he did not recommend surgery to Leila given her young

age and the risk of complications, he informed her that surgery

was an option. He indicated that even if he were to "fix" her

herniated disc with surgery, "there was no way it will heal to

normal or function normally." Dr. Glass did not recommend surgery

for Leila's neck and opined that even with surgery, her neck "would

not function in any way near normal . . . ." He could not state

whether she would need surgery in the future. The doctor also

stated that Leila will be restricted in her daily activities and

employment choices.

Dr. Dorie Herndon, a chiropractor, also testified on behalf

of plaintiffs. He had evaluated Leila on July 16, 2012, on behalf

of her family's personal injury protection insurance carrier. He

testified that he reviewed medical records sent to him by the

insurance company and the report prepared by the radiologist, and

thereafter, performed his own orthopedic tests. He testified that

Leila suffered two injuries – a herniated disc at L5-S1 and a neck

7 A-4281-14T3

sprain and strain – that were causally related to the auto

accident. Like Dr. Glass, he found that Leila's subjective

complaints matched the objective findings. Leila, however, did

not have any neurologic deficit or loss of muscle strength caused

by her pain.

Dr. Herndon further testified that there was no further need

for chiropractic treatment because Leila had "ample opportunity

to receive maximum value from chiropractic care" or in other words,

"the treatment thereafter . . . probably wouldn't be changing her

condition or improving it in any way." He confirmed that Leila

was never precluded from participating in any activities. The

doctor also noted that his report did not mention any complaints

by Leila about inactivity or lack of capabilities. Dr. Herndon

offered no testimony on permanency.

Dr. Stuart L. Trager, testified for defendant as an expert

in orthopedics and orthopedic surgery. He stated that he performed

an independent medical examination of Leila in September 2013 and

2014 and rendered three reports. None of his clinical examinations

of Leila tested positive. After reviewing the MRI of Leila's

lumber spine, he concluded that Leila had a L5-SI disc herniation

with "some minimal impingement on the thecal sack." He stated,

"For disk herniation in a young person, it usually involves a

significant traumatic episode and we typically would expect to see

8 A-4281-14T3

complaints of pain initially" and "instantaneously, at least

within a day or so." He testified that based on the herniated

disc demonstrated in Leila's MRI, he would expect certain clinical

exam findings, including absent or decreased reflexes, decreased

strength, positive straight leg raise, and spasms, which he did

not find in examining Leila. With respect to her neck, Dr. Trager

agreed that she had mild anterolisthesis. He found that her

reflexes and strength were intact, and that there were no

"particular range of motion that could be identified . . . on an

objective basis."

Dr. Trager ultimately opined that there was no objective

evidence of any permanent injury, and he could not say with any

degree of medical certainty whether Leila's neck and back injuries

were caused by the accident. He also expressed that Leila's

ability to participate in gym and other physical activities

appeared to evince her ability to participate in activities of

daily living.

While Dr. Trager found that Leila had a herniated disc, he

testified that there were no positive clinical exam findings

consistent with the MRI and that a person can have a positive MRI

for herniation, but have no clinical exam findings to confirm it.

When asked how he could reconcile the inconsistency he stated,

We know that people have MRIs that have

positive findings all the time. The

9 A-4281-14T3

challenge[ is to] identify whether or not

they're clinically significant findings. In

this case, again based on my exam, based upon

prior examinations and prior evaluation at

Nemours as well, my opinion . . . is that . .

. ongoing symptoms did not appear to be

related to the disk abnormality.

After considering the evidence, the jury returned its

verdict, and on February 23, 2015, the trial court entered a

judgment, dismissing the complaint with prejudice.

Plaintiffs filed a motion for a new trial,1

arguing

essentially the same issues they now argue on appeal. In an oral

decision placed on the record on April 10, 2015, the trial court

rejected plaintiffs' arguments. On April 23, it issued its order

denying plaintiffs' motion for a new trial. This appeal followed.

We begin our review by addressing plaintiffs' contention that

the trial court's refusal during jury selection to ask two open-

ended questions that she requested or two suggested by the court's

Administrative Directives 4-07 warrants a new trial.2

Defendant

1

We have not been provided with copies of the motion papers.

We rely on the trial court's description of plaintiffs' arguments.

2

In 2006 and 2007, the Administrative Office of the Courts (AOC)

issued directives addressing jury voir dires. See Administrative

Directive #21-06, "Approved Jury Selection Standards, Including

Model Voir Dire Questions" (Dec. 11, 2006),

http://www.judiciary.state.nj.us/directive/2006/dir_21_06.pdf;

Administrative Directive #4-07, "Jury Selection — Model Voir Dire

Questions Promulgated by Directive #21-06 — Revised Procedures and

Questions" (May 16, 2007), http://www.judiciary.state.nj.us

/directive/2007/dir_04_07.pdf. Directive #21-06 required trial

judges to ask each individual juror a set of standard questions,

10 A-4281-14T3

contends that the court satisfied its obligation to ask open-ended

questions under the directive when it asked the jurors the one

biographical open-ended question required by the directives and

included in the AOC's Model Voir Dire Questions. Also, he contends

plaintiffs failed to preserve their objection to the trial court's

decision when they did not raise the issue again during jury

selection and found a panel to be acceptable.

Before commencing jury selection, plaintiffs requested that

the trial court ask jurors to describe what they thought about

when they heard the terms "permanent injury" or "permanency" or

when they heard or read about "earnings capacity" or "future

earning capacity or income earning capacity." In addition,

plaintiffs requested two questions contained in the Model Voir

Dire Questions about whether a juror thought society was too

litigious or whether each juror thought he or she would make a

good juror.3

The court refused to ask the first two because it

as well as questions tailored to the individual case. Directive

4-07 specifically states, "Where this Directive modifies voir dire

procedures set forth in Directive #21-06, it supersedes the

relevant portions of that Directive."

3

Directive 4-07 identifies six sample questions. The two

plaintiffs requested asked:

2. Do you have any feelings about whether or

not our society is too litigious, that is,

that people sue over things too often that

they should not sue over; or do you think, on

the other hand, there are too many

11 A-4281-14T3

believed that the questions were not relevant to jury selection

and the jurors would be bound by the court's definition of

permanency and earning capacity. As to the other two questions,

the court stated:

I’m not going to ask either one of them. I’ll

ask the open ended questions after, that are

contained in the model jury charge after the

biographical section. Everybody’s going to

say they can become a good juror. I mean

remember, at this point we’ve all ready [sic]

asked them whether or not they’re willing to

sit here for 3 weeks for a trial. And then

I’m going to ask them whether or not they think

they’re going to be a good juror and then,

okay, I’m going to say why and they’re going

to sit there and say I can be fair, I’m always

fair. That’s what they’re going to say.

The court conducted jury selection by asking several general

questions from the Standard Jury Voir Dire Questions included with

the directives that elicit yes or no responses,4

and specific ones

restrictions on the right of people to sue for

legitimate reasons; or do you think our system

has struck the right balance in this regard?

Have you heard of the concept of "tort reform"

(laws that restrict the right to sue or limit

the amount that may be recovered)? How do you

feel about such laws?

6. Do you believe that you will make a good

juror for this case? Please explain.

4

The trial judge asked model questions 1 through 5, 7, 8, and

10 through 19.

12 A-4281-14T3

relating to auto accidents and medical malpractice.5

It also posed

to each juror the requisite biographical question contained in the

model questions and the two mandated omnibus qualifying questions

to each juror. The court did not ask any open-ended questions.

Plaintiffs' counsel never made any objections after the court

completed its questioning and, at the conclusion of jury selection,

he informed the court that "the jury [was] acceptable."

Plaintiffs' motion for a new trial raised the issue of the

court's failure to ask the open-ended questions. In denying the

motion, the trial court explained that it complied with the

directives by asking the open-ended biographical question that

allowed counsel to "get to know [the jurors] a little bit instead

of just having a yes or no answer."

We conclude that the trial court failed to comply with its

obligations under the directives to ask at least three questions

that required answers in narrative form. We are therefore

constrained to vacate the judgment, and reverse and remand for a

new trial, to be conducted in accordance with the directives.

Directive #4-07 states:

In addition to the printed questions, the

judge shall also inform the jurors in the box

and the array that jurors will also be

individually asked several questions that they

will be required to answer in narrative form.

5

The trial judge asked model questions 1 through 4 with respect

to auto accidents and medical malpractice.

13 A-4281-14T3

. . . .

The judge will then ask [the] juror each of

the open-ended questions, to which a verbal

response shall be given and for which

appropriate follow up questions will be asked.

. . . .

Some open-ended questions must be posed

verbally to each juror to elicit a verbal

response. The purpose of this requirement is

to ensure that jurors verbalize their answers,

so the court, attorneys and litigants can

better assess the jurors' attitudes and

ascertain any possible bias or prejudice, not

evident from a yes or no response, that might

interfere with the ability of that juror to

be fair and impartial. Open-ended questions

also will provide an opportunity to assess a

juror's reasoning ability and capacity to

remember information, demeanor,

forthrightness or hesitancy, body language,

facial expressions, etc. It is recognized

that specific questions to be posed verbally

might appropriately differ from one case to

another, depending upon the type of case, the

anticipated evidence, the particular

circumstances, etc. Therefore, rather than

designating specific questions to be posed

verbally to each juror, the determination is

left to the court, with input from counsel,

in the case.

. . . .

The judge must ask at least three such

questions, in addition to the biographical

question and the two omnibus qualifying

questions. This is a minimum number and

judges are encouraged to ask more where such

action would be appropriate.

[(emphasis added).]

14 A-4281-14T3

The directives' requirements are mandatory and binding on all

trial courts and have the force of law. State v. Morales, 390

N.J. Super. 470, 472 (App. Div. 2007). The purpose of the

directives is to "empanel a jury without bias, prejudice or

unfairness." Gonzalez v. Silver, 407 N.J. Super. 576, 596 (App.

Div. 2009) (citing Morales, supra, 390 N.J. Super. at 472, 475).

The requirements exist in order to provide "'uniform practices'

that will 'assure a thorough and meaningful inquiry into jurors'

relevant attitudes . . . .'" Ibid. (quoting Morales, supra, 390

N.J. Super. at 473). Accordingly, "a case should be reversed if

it can be said that a 'miscarriage of justice,' R. 2:10-1, . . .

resulted from failing to follow those requirements." Ibid.

Here, the trial court did not ask any open-ended questions

because it believed the information to be elicited by them was

covered by other questions, and it did not believe that jurors

would ever answer a question about their ability to be fair by

admitting he or she could not. Those views by the trial judge did

not provide a justification for failing to ask at least three

open-ended questions. The directives make clear that a trial

judge cannot refuse to ask less than three open-ended questions

of each juror. While the trial court was within its discretion

to reject plaintiff's proposed open-ended questions, it was an

15 A-4281-14T3

abuse of discretion not to ask any other open-ended questions as

required by the directives.

It is, of course, counsel's obligation to alert the trial

court to its error in failing to ask any open-ended questions by

promptly raising any objection to the jury selection process.

Counsel's "seeming[] satisf[action] with the court's voir dire

questions," can infer that the court's error did not cause any

harm. Id. at 597.

Having determined that the trial court here erred, we turn

therefore to the question of whether that error warrants a new

trial. Generally, some degree of harm must be shown; an error

does not warrant a new trial "unless it is of such a nature as to

have been clearly capable of producing an unjust result . . . ."

R. 2:10-2; see also State v. Singleton, 211 N.J. 157, 182 (2012);

State v. Reeds, 197 N.J. 280, 298 (2009). Because a litigant "is

entitled to a fair trial but not a perfect one," an error must

have caused harm, or a likelihood of harm, in order to warrant a

reversal. State v. R.B., 183 N.J. 308, 334 (2005) (quoting Lutwak

v. United States, 344 U.S. 604, 619, 73 S. Ct. 481, 490, 97 L. Ed.

593, 605 (1953)). "Generally, a trial court's decisions regarding

voir dire are not to be disturbed on appeal, except to correct an

error that undermines the selection of an impartial jury." State

v. Winder, 200 N.J. 231, 252 (2009).

16 A-4281-14T3

Applying these standards, we conclude the trial court's

failure to ask open-ended questions in this case was of "such a

nature as to have been clearly capable of producing an unjust

result." R. 2:10-2. We cannot conclude from our review of the

jury voir dire that it was sufficiently comprehensive to ensure

that an impartial jury was selected. The questions the court

referred to were either the required biographical or omnibus

questions. Such questions may offer some insight into the

perspective of prospective jurors, but they do not satisfy the

mandate to ask open-ended questions.

In light of our decision to order a new trial, we limit the

balance of our review to those issues raised by plaintiffs that

are likely to confront the court during the new trial.

We begin with plaintiffs' contention that the trial court

impermissibly barred experts from testifying as to whether Leila

malingered.6

Plaintiffs contend that the trial court erred by

holding that "malingering" is not a medical term and by barring

Drs. Herndon and Glass from testifying about whether they believed

Leila was malingering. Plaintiffs maintain that malingering is a

6

"Malingering is the intentional production of false or grossly

exaggerated physical or psychological symptoms motivated by

external incentives, such as obtaining compensation or drugs,

avoiding work or military duty, or evading criminal prosecution."

Fitzgerald v. Stanley Roberts, Inc., 186 N.J. 286, 298 n.6 (2006)

(citing American Psychiatric Association, Diagnostic and

Statistical Manual of Mental Disorders 683 (4th ed. 1994)).

17 A-4281-14T3

medical diagnosis, and thus, the doctors should have been allowed

to comment on whether plaintiff was untruthful in her reporting

about the accident or her injuries. We disagree.

In response to an objection made by defendant during Dr.

Herndon's testimony, the court prohibited the doctor from defining

the term "malingerer" in order to support his testimony that Leila

was not a malingerer. It barred similar testimony when plaintiffs'

counsel attempted to elicit opinions from Drs. Glass and Trager

that Leila was not malingering in her reporting to them of her

injuries and symptoms. The court stated, "Malingerer is a

characterization that's far outside the field of expertise of a

chiropractor or an independent medical evaluator or physician."

The court would not "allow either positive or negative testimony

or opinions from a doctor about whether or not he feels that the

patient is a malingerer . . . ." According to the court, "[w]hether

or not somebody is being truthful and frank has nothing to do, as

far as [it's] concerned, with a doctor's medical opinion, whether

that doctor is a defense doctor or plaintiff[s'] doctor." For the

same reasons, the court also denied the use of "symptom

magnification" in both Dr. Glass and Dr. Trager's testimonies.

The court explained that it would be prejudicial "to attempt to

suggest to this jury that this highly educated individual . . .

18 A-4281-14T3

has a better ability than they do to evaluate who's believable and

who's not believable."

Generally, when reviewing the admission or exclusion of

evidence, we afford "[c]onsiderable latitude" to a trial judge's

determination, "examining the decision for abuse of discretion."

State v. Kuropchak, 221 N.J. 368, 385 (2015) (alteration in

original) (first quoting State v. Feaster, 156 N.J. 1, 82 (1998),

cert. denied, 532 U.S. 932, 121 S. Ct. 1380, 149 L. Ed. 2d 306

(2001); then quoting Hisenaj v. Kuehner, 194 N.J. 6, 12 (2008));

see also State v. Jenewicz, 193 N.J. 440, 456 (2008) (stating "the

abuse-of-discretion standard" is applied "to a trial court's

evidentiary rulings under Rule 702"). Importantly, "[u]nder

th[is] standard, an appellate court should not substitute its own

judgment for that of the trial court, unless 'the trial court's

ruling was so wide of the mark that a manifest denial of justice

resulted.'" Kuropchak, supra, 221 N.J. at 385-86 (quoting State

v. Marrero, 148 N.J. 469, 484 (1997)); see also Brenman v. Demello,

191 N.J. 18, 31 (2007).

Applying this standard, we conclude the trial court did not

abuse its discretion by barring the cited opinions. Plaintiffs'

arguments to the contrary are without any merit. First, contrary

to plaintiffs' assertions, the trial court did not hold that

malingering was or was not a medical term. In fact, the court

19 A-4281-14T3

acknowledged that it did not know if it was, but confirmed with

plaintiffs' counsel that "malingering implies someone is

falsifying their statements to a physician" and prohibited the

doctors from using the term because they were "not here to evaluate

credibility."

Second, the court's ruling was consistent with the Rules of

Evidence governing expert testimony, especially where, as here,

there was no evidence that the experts' reports referred to

opinions on whether Leila was or was not feigning or exaggerating

any of her injuries or symptoms. See N.J.R.E. 702; see also

Anderson v. A.J. Friedman Supply Co., Inc., 416 N.J. Super. 46,

72 (App. Div. 2010) ("Trial judges have discretion to preclude an

expert from testifying to opinions not contained in his or her

report or in any other discovery material."), certif. denied, 205

N.J. 518 (2011). "Because credibility is uniquely within the

province of the jury and within its capacity to judge, expert

testimony as to the credibility of other witnesses or parties is

not permitted." Biunno, Current New Jersey Rules of Evidence,

comment 1 to N.J.R.E. 702 (2016) (emphasis in original).

Next, plaintiffs argue that the trial court erred by

preventing their counsel from making "fair comment" or allowing

him to argue to the jury that it draw a "negative inference" based

upon defendant's failure to call one of his experts, Dr. Fernando

20 A-4281-14T3

Delasotta, as a witness. The trial court refused to allow such

comments by plaintiffs' counsel even though it barred, in limine,

any evidence that Dr. Delasotta examined Leila, found her to have

suffered from a permanent injury, and told Leila about her

condition.

We conclude plaintiffs' argument as to this point is without

sufficient merit to warrant discussion in a written opinion. R.

2:11-3(e)(1)(E). Suffice it to say that, contrary to our rules,

plaintiffs failed to cite to any case law or other legal

authorities to support their contentions. See R. 2:6-2(a)(6)

(requiring that legal argument be supported with reference to

legal authority). In any event, allowing a jury to take an adverse

inference is "rarely . . . warranted when the missing witness is

not a fact witness, but an expert." Washington v. Perez, 219 N.J.

338, 364 (2014).7

We turn to plaintiffs' argument that the trial court erred

by preventing Dr. Herndon from testifying about his reliance on

7

We note that plaintiffs could have sought discovery of Dr.

Delasotta since he had examined Leila, and could have called Dr.

Delasotta as their own witness where they could have examined him

about the findings of his report. See Rincon v. Delapaz, 279 N.J.

Super. 682, 686 (App. Div. 1995); see also Pressler & Verniero,

Current N.J. Court Rules, comment 5.2.1 on R. 4:10-2 (2017).

Moreover, the trial court gave plaintiffs an opportunity to brief

the issue of whether their experts would be permitted to refer to

Dr. Delasotta's report, but they did not take advantage of that

opportunity.

21 A-4281-14T3

the MRI results. Plaintiffs acknowledges that the court allowed

Dr. Herndon to testify as to his general reliance on the MRI, but

contend on appeal that the court erred by preventing the doctor

from testifying as to his specific reliance upon Dr. Dauito's MRI

report and his finding that the MRI demonstrated there was a

herniated disc. Plaintiffs further aver that the court's reliance

on Brun v. Cardoso, 390 N.J. Super. 409 (App. Div. 2006), was

misplaced since plaintiffs were not requesting that "the report

of the non-testifying doctor be admitted but only that

[p]laintiff's chiropractor relied on it and that the report was

consistent with his diagnosis." (emphasis added).

At trial, plaintiffs attempted to elicit testimony from Dr.

Herndon concerning Dr. Dauito's report before the radiologist

testified. More specifically, plaintiffs' counsel inquired

whether Dr. Herndon could testify that a particular slide from all

of the MRIs best exemplified Leila's herniated disc. The trial

court replied that it would listen to Herndon's testimony to see

if he was properly qualified to read an MRI as discussed in Agha

v. Feiner, 198 N.J. 50 (2009), since "it's a complex medical

diagnosis and you have to be trained in interpreting MRI studies

to testify about the MRI study." Dr. Herndon testified that he

was not specially trained to read MRIs and with that, the court

22 A-4281-14T3

refused to allow testimony from the witness about the MRI, other

than the fact that he relied upon the MRI report.

We review the trial court's evidentiary rulings for abuse of

discretion. Hisenaj, supra, 194 N.J. at 12. "[T]he latitude

initially afforded to the trial court in making a decision on the

admissibility of evidence -- one that is entrusted to the exercise

of sound discretion -- requires that appellate review, in equal

measures, generously sustain that decision, provided it is

supported by credible evidence in the record." Estate of Hanges

v. Metro. Prop. & Cas. Ins. Co., 202 N.J. 369, 384 (2010).

We conclude that the court did not abuse its discretion by

preventing the untrained chiropractor from testifying as to the

contents of the radiologist's report or that it was consistent

with his findings. First, there was no dispute factually that

Leila suffered a herniated disc, and Dr. Dauito ultimately

testified to his findings. As a result, plaintiffs suffered no

prejudice because of the court's ruling.

Second, "[o]nly a physician who was qualified by education

or training to interpret the films and, in fact, did so, could

have brought the [MRI] conclusion to the jury as a matter of

substance." Agha, supra, 198 N.J. at 67. While an unqualified,

testifying expert may rely on a non-testifying expert's report,

if the information is of a type reasonably relied on by experts

23 A-4281-14T3

in the field, an attorney may not ask a testifying expert if his

or her opinion accords with the conclusions of a the non-testifying

qualified expert as a means to have the jury consider the substance

of the non-testifying expert's report. James v. Ruiz, 440 N.J.

Super. 45, 71-72 (App. Div. 2015). The trial court, therefore,

correctly limited Dr. Herndon's testimony to the fact that he

relied upon the report.

Plaintiffs next argue that the trial "court erred by failing

to give an aggravation charge" with respect to Leila's cervical

spine injury. Plaintiffs rely upon Dr. Glass's testimony that the

injury "was either caused by or rendered symptomatic by the

accident" because Leila was asymptomatic before the collision,

according to her reports.

We find plaintiffs' argument as to this point to also be

without sufficient merit to warrant discussion in a written

opinion. R. 2:11-3(e)(1)(E). Leila never testified, nor did any

expert state or other evidence establish, that she suffered from

any "preexisting injury" that was "aggravated" as contemplated by

the jury charge requested by plaintiffs. See Model Jury Charge

(Civil), 8.11F, "Aggravation of the Preexisting Disability"

(2009); see also Edwards v. Walsh, 397 N.J. Super. 567, 572 (App.

Div. 2007). Dr. Glass's passing comment was, at best, speculation.

24 A-4281-14T3

Under these circumstances, there was no reason for the court to

grant the request.

Plaintiffs' next challenge is to the court's verdict sheet.

According to plaintiffs, the court committed reversible error by

not "itemizing injuries on the jury verdict sheet." We disagree.

During the court's charge to the jury it explained that

plaintiffs needed to prove that Leila sustained at least one

permanent injury as a result of the accident. The court explained:

The threshold [] under our law is proof

that the plaintiff suffered a permanent

injury. . . . In this case to recover damages

for pain and suffering, disability, impairment

and loss of enjoyment of life the plaintiff

must prove that she suffered a permanent

injury as a proximate result of the motor

vehicle accident of August 24, 2011. Miss

Karpuzi alleges that she suffered a loss of

use of her back and/or her neck. In order to

prevail Miss Karpuzi must prove that she

sustained a loss of use of her back and/or

neck and that the injury to her back and/or

neck is permanent. . . . Now if you conclude

that the plaintiff has crossed the verbal

threshold by proving a permanent injury the

plaintiff is entitled to compensation for fair

and reasonable money damages for the full

extent of the harm caused, no more, no less.

In other words, you might find that there was

a permanent injury to one area of the spine

but not to the other. If she proves that she

suffered a permanent injury to one or the

other area she’s entitled to be compensated

for both. Okay. Now a plaintiff who has

sustained a permanent injury is entitled to

fair and reasonable compensation for those

injuries as well as any temporary injuries

resulting in disability to or impairment of

her faculties, health or ability to

25 A-4281-14T3

participate in activities as a proximate

result of the defendant’s negligence.

[(emphasis added).]

The court also discussed its jury verdict sheet with the jury

before sending it to begin deliberations. Question two on the

verdict sheet asked, "Has the plaintiff . . . proven . . . that

the accident . . . was a proximate cause of her injuries and that

the injuries are permanent?" (emphasis added). In its explanation

of the verdict sheet, the court repeated the question verbatim,

including the need for plaintiffs to prove her "injuries" were

caused by the accident and are permanent. The jury later returned

its verdict, answering "no" to question two.

Plaintiffs argue that "case law dictates that there is a

preference that damages should be itemized on the [j]ury [v]erdict

[s]heet." Plaintiffs again failed to provide us with any

authorities. R. 2:6-2(a)(6). We, therefore, have no cause to

disturb the result in this case based on this contention.

Nevertheless, in light of our remand for a new trial we add the

following brief comments about the verdict sheet in this case.

The trial court's charge to the jury stated that plaintiffs

had to prove that one of the injuries Leila sustained in the

accident, if any, was a permanent injury in order for plaintiffs

to recover damages for both of her injuries. The verdict sheet,

however, asked the jury to determine whether plaintiffs proved

26 A-4281-14T3

Leila sustained permanent "injuries." The question, therefore,

did not follow the court's charge or comport with the law.

The purpose of a verdict sheet, or jury interrogatories, is

"to require the jury to specifically consider the essential issues

of the case, to clarify the court's charge to the jury, and to

clarify the meaning of the verdict and permit error to be

localized." Ponzo v. Pelle, 166 N.J. 481, 490 (2001) (quoting

Wenner v. McEldowney & Co., 102 N.J. Super. 13, 19 (App. Div.),

certif. denied, 52 N.J. 493 (1968)). They should be tailored to

avoid confusion on the part of the jury. Id. at 492. "The framing

of [jury] questions in clear and understandable language cannot

be overemphasized." Id. at 491 (alteration in original) (quoting

Benson v. Brown, 276 N.J. Super. 553, 565 (App. Div. 1994)).

Errors in interrogatories given to the jury are not grounds for

reversal unless they were "misleading, confusing, or ambiguous."

Id. at 490 (quoting Sons of Thunder v. Borden, Inc., 148 N.J. 396,

418 (1997)). "[I]n reviewing an interrogatory for reversible

error, we . . . consider it in the context of the charge as a

whole [because a]n accurate and thorough jury charge often can

cure the potential for confusion that may be present in an

interrogatory." Id. at 491.

Considering the court's charge here, we conclude that it was

accurate and thorough enough to have prevented any confusion caused

27 A-4281-14T3

by the interrogatories' reference to "injuries" rather than

plaintiff's obligation to prove that one of her injuries was

permanent as explained in the court's charge. We do, however,

caution all trial courts to be vigilant in their review of their

verdict sheets so as to avoid any confusion being unnecessarily

created by what is supposed to be an aid to the jury.8

Because we reverse on other grounds, we need not address the

remainder of plaintiffs' arguments.

The order denying a new trial is reversed; the judgment is

vacated, and the matter remanded for a new trial. We do not retain

jurisdiction.

8

We would be remiss if also did not warn against the potential

for confusion when a court employs the phrase "and/or" in its

charge. See State v. Gonzalez, 444 N.J. Super. 62, 75-76 (App.

Div.) (The Supreme Court cited with approval "[t]he [Appellate

Division's] criticism of the use of 'and/or' [in a jury charge,

but] limit[ing it] to the circumstances in which it was used in

th[at] case."), certif. denied, 226 N.J. 209 (2016).