After testifying at her deposition that she had no intention to undergo surgery, Plaintiff Yvonne Terrell changed her mind and testified at trial that she would have the surgery, causing the Appellate Division in Terrell v. Chitra, 2026 N.J. Super. Unpub. LEXIS 84 (Jan. 16, 2026), to consider whether that changed testimony would allow her to claim future medical costs from the surgery.
After a motor vehicle accident in 2018, Terrell sued Defendant Penafranc Chitra for injuries to her neck, back, and right shoulder. Noting the acute, traumatic herniated disc in her spinal column, Terrell’s primary treating doctor, an orthopedic surgeon, recommended she have a cervical discectomy and fusion. He explained the significant risks of the surgery to Terrell, which included paralysis and death. Terrell, a nurse and primary care-giver for a disabled son, worried about how a surgery would affect her and did not have the surgery in 2019 or 2020. Even after several other doctors’ opinions, she testified at her deposition that she felt the risks were too great to have the surgery. In his report in mid-2022, her medical expert stated Terrell, though still in pain, chose not to have the recommended surgery. Prior to trial she never amended any of her discovery responses to indicate any intention to have the neck surgery.
Ahead of trial, Chitra conceded that the accident was her fault, allowing the case to proceed on the issue damages alone. Working off of Terrell’s choice not to have surgery, Chitra’s attorneys asked the court to bar any evidence Terrell intended to introduce regarding the future medical costs of her surgery. The court agreed, and prevented her medical expert from offering an opinion as to those future medical costs.
At trial in the Fall of 2023, Terrell changed her story. She said her son had recently passed away and, since she intended to retire shortly and she did not want to have pain for the rest of her life, stated “surgery may help,” and she wanted to have the surgery – but made no firm decision to do so. In light of that testimony, Terrell, over the defense’s objection, asked the court to reconsider it’s decision on barring evidence of her future medical costs. The trial court agreed, and allowed her to introduce her medical expert’s testimony as to both her need for the surgery and its cost, $250,000. Upon hearing this testimony, the jury returned a verdict of $1,300,000; $1,000,000 for pain and suffering and $300,000 for future medical costs, including the surgery.
Chitra appealed. Critically, she claimed that Terrell’s future medical costs were inadmissible due to both her failure to disclose her intention to have the surgery prior to trial and because the introduction of the cost of the claimed surgery tainted the jury’s award on pain and suffering.
The Appellate Division agreed. It found that Terrell’s failure to amend her discovery responses at any time before trial to show any intention to have the surgery prejudiced defendant’s ability to defend against her claims that the surgery may occur. At no time from her deposition until she testified, including a lengthy pre-trial process and Chitra’s motion to strike evidence of future medical costs, did Terrell provide any suggestion she considered surgery; if she had done so, the defense could have prepared their defense accordingly. Because she did not, the Court determined, she prejudiced Chitra’s defense. The Court also noted she never made a definitive statement that she would have the surgery and, as her attorney admitted at oral argument before them, she still had not had it by late 2025.
Finally, the Court determined that because the trial court improperly allowed Terrell to present her expert’s opinion of her future medical costs related to the surgery, that evidence tainted the jury as to the value of her injuries and affected their decision on pain and suffering. As a result, the Court vacated the full $1,300,000 judgment and sent the entire case back to the trial court for a new trial on damages, barring Terrell from introducing any of the contested evidence as to the purported surgery or its costs.
Of note, affecting the Court’s determination of prejudice, the Court found that had Terrell made a definitive statement as to surgery before the close of discovery in 2021, or if she had the surgery, that surgery would have been covered by her Personal Injury Protection (PIP) benefits available through her auto insurance. But, because of her indecision and failure to have the surgery, the PIP statute of limitations may have expired, barring Chitra to seek reimbursement from the insurer. The Court found that Terrell must bear the consequences of failing to choose to have surgery when PIP benefits would have been available to pay for it. Moreover, by rule, PIP-payable future medical costs are not admissible at trial and should not have been presented to the jury.
