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Records from Plaintiff’s Hidden, Subsequent Accident Properly Used to Impeach on Cross-Examination

In March, 2022, Defendant John Szmitkowski rear-ended Plaintiff Young An. An claimed permanent injuries to his back, right shoulder and right knee, culminating in back surgery in 2024. Discovery revealed that he had a prior car accident in 2002, also with a back injury. An denied any other injuries at his deposition. After post-deposition discovery, Szmitkowski’s attorney identified an MRI invoice for An’s left shoulder and left knee from 2023. An’s counsel declined to explain the previously undisclosed accident or records. Further discovery into the source of the MRIs uncovered a third car accident in 2023, as well as a lawsuit filed by the same plaintiff’s firm. At trial, An produced three experts to testify that the accident caused his permanent injuries. Relying on the 2023 accident records, Szmitkowski’s attorney cross-examined An and his experts, impeaching their credibility. The jury found Szmitkowski 100% at fault but did not find An had sustained a permanent injury and awarded him no money damages. The primary issue in An v. Szmitkowski, 2026 N.J. Super. Unpub. LEXIS 2227 (App. Div. Oct. 2, 2026), was whether the trial judge abused his discretion in letting Szmitkowski’s attorney use the 2023 records to cross-examine An and his experts.

Before trial, the defense identified the records from the 2023 accident and told An they would use them at trial to impeach An and his experts. An opposed, claiming the 2023 records were irrelevant and inadmissible because they identified injuries unrelated to those from his 2022 accident. The judge disagreed. He allowed Szmitkowski to use the records, but only for cross-examination, not as evidence on their own. The judge reasoned that An’s claim they were irrelevant to his 2022 accident required an expert’s conclusion, not his attorney’s opinion.

At trial, An’s three experts all testified that An’s injuries were permanent and caused by the 2022 crash. However, each expert admitted on cross-examination that he was unaware of the 2002 or 2023 accidents, but that did not change his opinion that An’s injuries from the 2022 accident were permanent and causally related. On cross-examination, An admitted to all three accidents and, despite a record from the 2023 accident saying he was “pain free” prior to that accident, claimed his injuries from his 2022 lawsuit all came from his 2022 accident. After both parties rested, the jury returned their verdict finding Szmitkowski 100% negligent for the happening of the accident, but denied An any money damages. An appealed.

On appeal, An argued that the 2023 records were irrelevant to his 2022 injuries and the trial court should not have allowed Szmitkowski to use it during cross-examination. The Appellate Division affirmed the trial court’s determinations. It underscored its role in ruling on a trial court’s evidence determinations on an “abuse of discretion” standard; that it may only reverse such a determination when it is made “without a rational explanation.” The Court further noted that when a plaintiff accuses a defendant of causing a medical condition, the defendant may impeach the plaintiff and his experts with evidence of prior medical conditions to allow a jury to determine the factual cause of the injury. Similarly, a defendant has the right to provide evidence that an injury was caused by a prior accident, particularly in cross-examination, because it is effective in a “jury’s search for the truth.” The Court disagreed with An’s claims that the 2023 records were irrelevant. Based on the testimony, the Court found that the jury could find An’s injuries were causally related to all three accidents as his complaints and difficulties with activities of daily living after his 2023 accident were similar and associated with his complaints of the 2022 and 2002 accident. Also, by not admitting the 2023 records into evidence and limiting their use to cross-examination, the Court found the trial court properly used its discretion to allow Szmitkowski the opportunity to impeach An and his experts about the 2023 accident and limit it to cross-examination rather than for its own substance.

This case highlights the importance of a thorough investigation into a plaintiff’s claims through his medical records and his deposition. Here, the plaintiff’s entire case imploded because the defense attorney found a single MRI invoice in discovery. Identifying any treatment for body parts not alleged in the suit and prior/subsequent accident through medical records of treating providers, primary care providers, pharmacists, or an ISO search, then expanding that search for any other doctors may identify other, related treatment. A plaintiff’s later denial of any such prior or subsequent injury in a deposition sets the foundation on which his, and his experts, credibility may eventually crumble.

Appellate Division Affirms Defense Verdict in Traffic Accident Trial After Plaintiff Fails to Identify Clear Error

On June 25, 2025, Plaintiff Yao Ren was driving his car on Route 124 at its intersection with Morris Ave. in Millburn and came to a stop at an intersection intending to turn left on Morris Ave. According to his testimony, when the signal turned green, he proceeded into the intersection and struck the rear bumper of the car driven by defendant David Coelho. Ren claimed he had a green left-turn arrow while Coelho had a red light and, with his green light, the right of way in making a left turn. He claimed Coelho’s left-rear bumper stuck out and caught his right bumper, tearing it off. Ren sued Coelho in small claims court for his property damage. When he lost in a non-jury trial, Ren requested the court reconsider its findings. The issue in Yao Ren v. Coelho, 2026 N.J. Super. Unpub. LEXIS 2152 (App. Div. Oct. 1, 2026) was whether the trial court abused its discretion in denying plaintiff’s motion for reconsideration under Rule 4:49-2.

At trial, the presiding judge reviewed photos of the intersection that showed the lanes in which the parties traveled, the police report that described the facts of the accident (but placed no fault on either party and issued no summonses), and the parties’ testimony, and found Ren caused the accident. With this, the court dismissed the complaint. Ren filed a motion for reconsideration, claiming the court did not review all of the evidence. The court denied that motion. Ren appealed.

At the outset, the Appellate Division advised that its review of a bench trial was limited, giving deference to the court’s determinations based on oral testimony and written evidence and biding on appeal when supported by the “adequate, substantial, and credible evidence.” Here, the Court found the lower court’s reliance on the testimony and evidence was reasonable and should not be disturbed. Further, it noted that a motion for reconsideration, another process in which the appeals court permits the trial court broad discretion, requires the moving party to specifically state the basis for their motion and controlling case law on which it is made. However, in a much more strict manner, the Appellate Division held that reconsideration should only be granted upon a “palpably incorrect and irrational basis” or when it was obvious the court failed to consider critical, competent evidence. The Appellate Division found that the trial court satisfied its light burden by noting Ren failed to point to any evidence he believed the trial court erred or overlooked and that the court had reviewed all evidence at trial. In doing so, the Court found no grounds to overrule the trial court’s denial of the motion for reconsideration as well.

This matter underscores the standards at which New Jersey’s Appellate Division defers to the state’s trial courts on bench trials and motions for reconsideration. Because those two trial court functions are fact-intensive and delicate, appellate courts will defer to their findings unless the trial record is devoid of evidence supporting its conclusions or its rulings are clearly in error. As a result, the Appellate Division must stay away from inserting its judgment for that of the trial court.

Hearsay Statements of Future Payment for Album Cover Photos Sink Claims Against Bruce Springsteen

In the recent Appellate Division opinion in Estate of Billotti v. Springsteen, 2026 N.J. Super. Unpub. LEXIS 2094 (App. Div. Sept. 15, 2026), the Court reviewed whether alleged statements by Bruce Springsteen and his agents to a car owner for future use of photos of a classic car were sufficiently reliable for the plaintiff to recover on his claims of failed payment.

In the Fall of 2021, two photographers contacted Louis Billotti, Sr., the owner of a 1967 Pontiac GTO, to use his car in two Monmouth County photo shoots for a price of $750 and $450, respectively. Billotti, Sr. and the photographers agreed over phone and text with no written contracts, and Billotti, Sr. was paid in full. Billotti, Sr. died about a year later. His son, Louis Billotti, Jr. became the estate’s executor and sole beneficiary.

Billotti, Sr. did not learn Bruce Springsteen was the subject of the shoot until he arrived. Months after his death, the car appeared on a Springsteen album cover and various merchandising. Billotti, Jr., on the estate’s behalf, sued, claiming Springsteen and an agent had promised Billotti, Sr. additional money for future use of the photos. The trial court had to determine whether Springsteen’s alleged promises were admissible at trial for a jury to determine whether the parties had an agreement.

Billotti alleged that his father told him about the conversations. The first one with Springsteen in which he asked what would happen if the car appeared on an album cover. Springsteen allegedly answered that he had “people who deal with that,” implying a contract would follow, and the agent alleged promised such a contract. In his deposition, though initially not recalling the conversation, Springsteen acknowledged he spoke with Billotti, Sr., but he denied making any promises. Depositions of various other people who had alleged knowledge of the situation failed to disclose any first-hand knowledge of any agreement or anyone to whom Billotti, Sr. had shared what Springsteen had said, beyond his son. Two close friends submitted two similar affidavits: one saying he suggested to Billotti, Sr. to get a contract and another, Billotti, Sr.’s own attorney, denied ever hearing it. Springsteen moved both to exclude the statements as hearsay and for summary judgment. The trial court granted both. The Appellate Division affirmed.

Hearsay is an out of court statement offered to prove what that statement establishes is true. Because of the inherent unreliability of statements made out of court under certain circumstances, preventing the inclusion of hearsay statements is meant to ensure the accuracy of the jury’s role in determining a case’s facts by leaving out “inherently untrustworthy statements.” The statements here were not only hearsay, they were double hearsay or “hearsay within hearsay,” Springsteen’s alleged statement to Billotti, Sr., nested inside Billotti, Sr.’s alleged statement to his son. Under New Jersey’s evidence rules, both statements must fall under an exception in order for a jury to hear either statement.

Next, the Court unpacked the two hearsay statements, both of which must fall under an exception to be admissible. The first, Springsteen or his agent’s alleged statement to Billotti, was an admission of a party opponent (or his agent). Because the alleged statement by Springsteen that he would pay Billotti, Sr. for the future use of his car on an album cover was an alleged admission to payment against Springsteen’s interests, it satisfied the first step of resolving the double hearsay puzzle. The second statement, Billotti, Sr.’s relation to Billotti of what Springsteen said, did not fare as well. It did not fall under a clear exception set forth in the rules. Billotti argued that, because of his father’s death, it should be admitted for its inherent trustworthiness. To allow a statement to be sufficiently trustworthy, it must be made in good faith, with personal knowledge, and under trustworthy circumstances. To that end, Billotti said that his father’s vague suggestion to various people that he would make a lot of money from the photos implicated the trustworthiness of his claims. However, the Court found that an unknown agent’s unknown words to the decedent were not trustworthy, or sufficiently trustworthy to allow them to be heard by a jury. Further, the terms were indefinite, without any written contract or even a confirming text or other written memorialization of the agreement. Thereby upholding the trial court’s barring of them, and ultimately granting summary judgment.

The key takeaway is memorializing agreements of whatever scope, size, or shape. Even a contemporaneous text message agreeing to the fact of the agreement would go far towards either establishing a meeting of the minds or, at least, the trustworthiness as to claims that the agreement existed in the first place.

Appellate Division Upholds Trial Court’s Use of an Evidentiary Hearing to Dismiss Late Tort Claims Notice on Public Entity

Plaintiff Thomas Twomey (Twomey) slipped and fell on the Morristown New Jersey Transit (NJT) train platform in late October, 2021, but did not put NJT on notice of his claim or file suit until two years later in October, 2023. Not having received a timely Tort Claims Act (TCA) notice, NJT, a public entity, filed a motion to dismiss for failure to state a claim. In opposition, Twomey’s attorney argued he had filed two separate TCA notices, relying only on certifications from himself and his paralegal in support of that position. In ruling on NTJ’s motion to dismiss, the trial court held an evidentiary hearing in which Twomey’s paralegal and attorney testified about their efforts to properly put NJT on notice of Twomey’s TCA claim. The issue in Twomey v. N.J. Transit Corp., 2026 N.J. Super. Unpub. LEXIS 1362 (App. Div. June 25, 2026), was whether the trial court properly used an evidentiary hearing to resolve credibility disputes in a motion for summary judgment on issues of a late TCA notice.

The TCA requires all claimants to serve a TCA notice of claim within 90 days of the accrual of their claim, typically the date the injury occurred. If the claimant fails to serve a notice in that initial 90-day window, they have a year after the date of accrual to file a motion for leave to file a late TCA claim by showing that they could not timely file a TCA notice due to extraordinary circumstances. Each of these are strictly read. However, if they have not filed a TCA notice within one year of the date of accrual of their claim, they are barred from filing any claim against the public entity.

The trial court scheduled an evidentiary hearing to determine whether Twomey had served a TCA notice on time; also, because it would need to review facts, the trial court converted NJT’s motion to dismiss into a motion for summary judgment. At the hearing, Twomey’s paralegal testified that she mailed an initial TCA notice within the 90-day period via regular and certified mail, but recalled no further details. She claimed she received a certified mail green card confirming NJT’s receipt, but discarded it alongside other records when she left the firm. Further, she recalled sending a second notice (after the 90-day window expired and to the State rather than the NJT), but she could only testify that she followed her standard routine and the attorney’s instructions. Twomey’s attorney similarly testified that he did what he usually did for TCA notices and could only assume the paralegal “adhered to her custom and habit.” In response, an NJT employee testified that claim numbers are assigned upon receiving a notice and the only claim number associated with Twomey’s began with “23,” signaling it was opened only after receiving the formal complaint.

Reviewing the “totality of the circumstances,” the trial court granted NJT’s motion for summary judgment. The court found Twomey’s attorney and paralegal were not credible, as neither had any independent recollection of serving the notice and could only establish a vague reliance on following “normal procedure.” NJT, on the other hand, following protocol, created a claim upon receipt of the only notice from Twomey. The court found it highly unlikely that, if Twomey had sent two letters with timely notice, both would have been missed by NJT. The court also dismissed Twomey’s argument for substantial compliance and equitable estoppel, finding that the TCA’s mandate “requiring” a TCA notice did allow any room to allow those equitable remedies. Twomey appealed.

Twomey argued on appeal that the trial court was wrong in granting summary judgment when issues of fact as to the mailing of the TCA notice existed and in its reliance on “credibility findings” in making its summary judgment determination. The Appellate Division disagreed on both counts. For one, if there is any factual dispute with respect to the mailing of a TCA notice, New Jersey law requires the court to engage in an evidentiary hearing and hear evidence to resolve the issue. Further, on a fresh review of the evidence, the Appellate Division found the court made the proper determination that, because Twomey’s claim accrued in late October, 2021, he had until late January, 2022 to file his TCA notice. His failure to do so, and his failure to ask the court for leave to file his TCA notice thereafter with a showing of extraordinary circumstances at any time, bar his claim in its entirety.

This decision shows the unique divergence from a usual motion for summary judgment analysis on the distinct issue of TCA notices. Typically, when there is a genuine issue of material fact, summary judgment must be determined for the non-moving party. To decide the issue of a timely TCA notice, however, a trial court may take additional evidence, including testimony and a weighing of witnesses’ credibility, to come to a resolution of that factual issue. It also establishes the rigidity of a proper TCA notice – as to the timeliness and to the proper party on which it is served. The failure to do either correctly can be fatal to a claim.

Bicyclists Covered by Auto Insurance with Limited Tort Must Establish a Permanent Injury to Sue for Pain and Suffering

On June 5, 2022, Plaintiff James Basilone (Basilone) was riding a bicycle when he was struck by the car driven by Defendant Krzysztof Kopec and then struck by a second vehicle driven by Defendant Alexander Sanchez. Basilone sued both defendants for his personal injuries seeking non-economic damages (i.e. pain and suffering). At the time of the accident, Basilone was insured with a New Jersey automobile insurance policy in which he had chosen the Limitation on Lawsuit option (a/k/a “limited tort”). The issue in Basilone v. Kopec, 2026 N.J. Super. Unpub. LEXIS 616 (Mar. 26, 2026) was whether limited tort applied to a bicyclist.

Under New Jersey’s Automobile Insurance Cost Reduction Act (AICRA), all New Jersey drivers must choose between two tort options, full tort and limited tort, and must maintain personal injury protection (PIP) insurance. By selecting the limited tort option, an insured gives up his right to sue for pain and suffering damages caused by an automobile unless he can prove that he sustained one in a list of various injuries; one of which is “a permanent injury.” To prove he had a permanent injury, he must provide the defendant with a physician’s certification showing his injury was permanent by credible, objective medical evidence, such as an MRI. He has, at the latest, 120 days from the day the defendant answers his complaint to provide this certification. Further, the AICRA defines a “pedestrian” as any person who is not occupying, entering into, or alighting from a vehicle propelled by anything other than muscular power.

In the course of discovery, Basilone produced the certification of a physician. However, that certification did not state the accident caused a permanent injury nor did it include credible, medical evidence showing such an injury. Based on this certification, the Defendants filed motions for summary judgment, both arguing that Basilone did not establish he sustained a permanent injury from the accident and, as a result, could not meet AICRA’s limited tort threshold. Basilone’s response was, simply, the limited tort threshold did not apply to him at the time of the accident, because he was riding a bicycle. The trial court granted both motions; Basilone appealed.

Before the Appellate Division, Basilone’s argument expanded. Though conceding he chose the limited tort option, he claimed the inclusion of bicyclists in the AICRA “does not make sense” because bicyclists: do no participate in the auto insurance system; face a greater risk of serious injury than drivers and passengers of vehicles; are the more vulnerable party in a collision with a vehicle; and would be discouraged from bicycling and thereby frustrating New Jersey’s policy for eco-friendly transportation. However, the Court focused on the AICRA statute in a direct, step-by-step analysis. It looked at the statute’s definition of a pedestrian and determined there was no question that a cyclist was a pedestrian for insurance purposes, meaning he was subject to his selection of the limited tort threshold. It follows that, by choosing limited tort, Basilone had to show, by objective medical evidence in a physician’s certification, that he sustained a permanent injury. In agreement with the Trial Court, the Appellate Division found that the certification, which lacked any opinion that Basilone had sustained a permanent injury caused by the accident and had no reference to any objective medical evidence to support such an injury, did not “vault” the limited tort threshold to succeed in a lawsuit for pain and suffering. The Appellate Court affirmed the Trial Court’s dismissal of Basilone’s complaint.

One key takeaway is that a New Jersey auto policy follows a New Jersey insured in all circumstances when the tortfeasor is driving a vehicle and will follow them whether they are walking, running, skateboarding, or riding a bicycle rather than driving or a passenger in a car when the accident occurred. Also, a limited tort plaintiff must provide a sufficient physician’s certification within 120 days. If he does not, or if the certification lacks permanency or the required credible, objective medical evidence, the tortfeasor-defendant should be entitled to summary judgment as a matter of law.  

Driver Not Liable for Failing to See or Interpret Another Vehicle’s Swerve as Evidence of a Pedestrian in the Roadway

On a dark Sunday night in early September, 2021, Jeffrey Pooner (Defendant) was driving his Dodge pick-up at about the speed limit of 50 mph westbound on U.S. Route 30 in Hamilton. That night traffic was heavier than normal, lighting was poor, and visibility was “quite difficult” on that stretch of road. After passing the intersection of CR 542, he saw a vehicle directly in front of him and traveling in the same direction change lanes, which he found “unusual.” Immediately after seeing the car change lanes, he saw a “silhouette” appear in front of his truck. He jammed on the brakes but was unable to avoid striking Nancy Martinez (Plaintiff), who was walking across the road after work. An eyewitness traveling in the opposite direction at the same time saw a car ahead of him swerve “pretty aggressively,” causing the witness to change lanes. As he did so, he also saw a “silhouette” crossing from his lane into Defendant’s westbound lane of traffic. The witness remarked to his wife, “Oh my God, this person is gonna get hit!” immediately before Defendant’s vehicle struck Plaintiff. Defendant testified he never saw the “swerve.” The issue in Martinez v. Pooner, 2026 N.J. Super. Unpub. LEXIS 1285 (App. Div. June 15, 2026) was whether Defendant, who was operating his vehicle within the speed limit at night, breached his duty of reasonable care by failing to observe and interpret an oncoming vehicle’s aggressive swerve as a warning of a pedestrian hazard in the roadway.

During discovery, Plaintiff retained an expert engineer to provide a reconstruction of the accident. Using accepted formulae, the expert determined the swerve occurred about 9.1 seconds before, and Defendant was about 700 feet away from, the time and location of the accident. He also concluded Plaintiff’s location would have been within Defendant’s sight distance at that spot. The expert’s opinion stated that, “if” Defendant saw the swerve and acknowledged that it indicated a hazard existed ahead, and “if” he had reacted to the swerve by applying the brakes in a normal manner, based on his location and speed at the time he saw the swerve, he would have had enough time to stop prior to the point of impact and avoid the incident. However, the expert had no opinion that Defendant had an obligation to see the swerve or that, if he had seen the swerve, that would have resulted in him seeing the Plaintiff.

Defendant moved to bar the expert report and for summary judgment. Defendant’s primary argument in his motion for summary judgment was that the expert’s opinion failed to support the Plaintiff’s claim of liability. The expert had to, within a reasonable degree of engineering certainty, establish Defendant “should” have seen the swerve or the Plaintiff, not “if.” By stating his opinion as an “if” Defendant saw the swerve or the Plaintiff, the expert based his opinion on “unsupported speculation and unquantified possibilities.” Because Defendant’s undisputed testimony clearly established he did not see the swerve, this fact eliminated Plaintiff’s expert’s ability to argue “if” he saw the swerve. Plaintiff’s position was that Defendant “could” have seen the swerve, and that was sufficient evidence to establish negligence. The trial court disagreed; Defendant won summary judgment and the Plaintiff appealed.

The Appellate Division upheld the court’s ruling The Appellate Division focused on Defendant’s duty of care towards Plaintiff, a pedestrian walking across a state highway, in the dark, at a location without an intersection or crosswalk. Plaintiff based her entire claim on the sole premise that a swerve 700 feet ahead should have alerted a driver that there was a person crossing the busy street on foot. However, at no time could Plaintiff establish sufficient evidence that Defendant could have, would have, or should have seen the swerve. Indeed, the only testimony on that fact came from Defendant himself, who provided uncontroverted evidence he did not see the swerve. Further, the Plaintiff produced no evidence to show that a prudent driver would have made the connection between the swerve and that a person was walking across the road. The Appellate Division found that Plaintiff’s theory, including the expert’s report, lacked any basis in the evidence in the matter and was nothing but simple speculation, necessitating dismissal.

Court Determines Plaintiff’s Evidence of Black Ice “Conjecture” in Dismissing Complaint

In December, 2020, Plaintiff Gwenevere Love (Love) walked out of an Acme in Audubon and sustained a serious knee injury when she stepped off the curb and slipped. She went to the hospital four hours later and told the ER nurses, as seen in the ER records, she had slipped and fell on black ice. She filed suit against the Acme (and others) for failure to maintain their premises. In her deposition she testified she did not see black ice, or any ice or snow, in the area, but the ground was cold when she landed and she surmised she slipped on black ice. Love produced weather reports that suggested the weather warmed up during the day, melting earlier snow, then re-froze, causing black ice. Acme moved for summary judgment, claiming there was no evidence of notice or that her fall was caused by a dangerous condition. After the trial court granted the motion and Love appealed, the Appellate Division in Love v. Acme Mkts., Inc., 2026 N.J. Super. Unpub. LEXIS 1041 (App. Div. May 20, 2026) had to determine whether the trial court applied the proper standard in reviewing evidence and making inferences in Love’s favor when deciding the motion for summary judgment.

Long-standing New Jersey law holds that summary judgment should be granted if the facts in the matter show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. An issue of fact is not a “genuine” issue of fact if, for the purposes of the motion, it has a single, unavoidable resolution. In reviewing a summary judgment motion, the trial court must consider the competent evidence and draw all reasonable inferences from that evidence in a light most favorable to the non-moving party.

Love’s position was that the evidence established there was a genuine issue of material fact “beyond mere conjecture, speculation, surmise, or guess” that black ice on Acme’s property, and their failure to inspect for it, caused her to fall. She argued that the facts from her deposition testimony and statements she made to ER personnel that she fell on ice, and the weather reports met the standard. She also argued that the trial judge did not properly apply the standard in drawing all reasonable inferences in her favor and to stay out of resolving factual disputes.

The Appellate Division upheld the trial court, finding that it correctly ruled on the evidentiary issues and concluded there was no genuine issue of material fact that Acme was entitled to summary judgment. The Court agreed that Love’s statement in the ER records that she slipped on ice, made four hours after she fell, was inadmissible hearsay. While those records would be admissible for her statements of pain, they would not be admissible for something non-treatment related, such as the presence of snow or what caused her fall. Further, they found her deposition testimony that she slipped on ice speculative. She only concluded she slipped on black ice circumstantially (the ground was cold, her foot slipped) and, more importantly, she did not see any snow or ice on the ground in the area she fell or in the parking lot. The Court found that while the non-moving party is entitled to the benefit of all favorable inferences, there’s a difference between a favorable inference and speculation. Her testimony that she slipped on black ice was mere conjecture and not based on competent evidence to present a genuine issue of fact. As for the weather reports, without an expert to interpret the data included in the weather reports to link it directly to a thaw and refreeze, the court was under no obligation to use that evidence to draw an inference in her favor. This evidence only established the mere possibility that ice caused her fall, and this was not enough to resolve the issue in her favor.

Importantly, the Appellate Division was satisfied with the role the trial court took to distinguish between inferences and conjecture, and did not intrude on the fact-finding duties of the jury. The Court held that when a trial court’s ruling depends on certain evidentiary issues, the trial court must decide on the admissibility of that evidence. The Appellate Division here approved of the trial court’s weighing and sifting of evidence (determining the ER record to be hearsay, the deposition testimony inadmissible speculation, and the weather report’s need to be supported by an expert opinion), and its function here appropriately stopped short of interfering in fact-finding responsibility that is the sole domain of the jury.

New Jersey Supreme Court Unanimously Holds Future Medical Costs Still Payable by PIP are “Collectible” and Inadmissible at Trial

After she was injured in a car accident in 2016, Lakita Murray applied for Personal Injury Protection insurance benefits (PIP) that would pay her all of her post-accident medical bills up to $250,000. Her treatment after the accident did not hit that limit, nor did her medical expert’s opinion of what he anticipated to be her future medical expenses. After the trial court allowed a jury to hear the evidence of her future medical expenses, leading to a significant award in her favor, the appeals process led all the way to the New Jersey Supreme Court where, in Murray v. Punina, 2026 N.J. LEXIS 387 (2026), in an opinion handed down earlier this week, the issue was whether Murray’s evidence of future medical expenses is admissible at trial when those projected expenses would not exceed her PIP coverage limits.

Under New Jersey law, PIP benefits are intended to promptly pay the medical expenses of someone injured in a motor vehicle accident, regardless of whether the injured person was at fault (hence it’s official but less common name, “No-Fault” insurance). A caveat of PIP benefits under New Jersey law is that any amount “collectible” under PIP, that is any amount that falls within the limits of an injured person’s PIP coverage, may not be presented as evidence of damages when that plaintiff sues for their injuries at trial.

After her accident, the cost of Murray’s treatment before trial did not exceed her PIP limits of $250,000. In a deposition prior to trial, Murray’s expert opined that her future medical expenses – treatment Murray stated she would like to have but did not have prior to trial – would amount to between $42,000 and $160,000. Prior to trial the defendant filed a motion with the court to remove that testimony arguing that evidence of these expenses is inadmissible under the PIP law. The trial court denied the motion and admitted the expert’s opinion of how much her future medical treatment would cost. The jury found in Murray’s favor and awarded her $100,000 in future medical expenses. The defendant appealed on three basic facts: 1) Murray was eligible for $250,000 in PIP benefits, 2) those benefits had not been exhausted prior to trial, and 3) the expert’s projected future expenses would not exhaust the remainder of Murray’s PIP benefits. The Appellate Division reversed the trial court, finding that because PIP had not been exhausted, the expert’s proposed future medical expenses were still “collectible” under PIP and, thus, inadmissible at trial.

Murray asked the Supreme Court to review this opinion. She claimed future medical expenses are not “collectible” or “paid” as outlined in the law because they had not yet been incurred, and if they had not been incurred, they were not yet “collectible.” The defense argued  that any evidence of medical expenses, past or future, that do not exceed PIP limits are either “paid” or “collectible” under PIP and are thus inadmissible at trial.

The Supreme Court considered the arguments and agreed with the Appellate Division and defendant that future medical expenses that were “collectible” by PIP were inadmissible in a personal injury trial. The Court stated that this conclusion best reflects what the legislature clearly intended in passing the No Fault Act in that any amounts “collectible or paid” under PIP were inadmissible as evidence against the tortfeasor. Further, the Court disagreed with Murray’s position in that categorizing future expenses as “unpaid” and thus admissible as evidence, would allow a Plaintiff to defer treatment until after trial, and unfairly expose a defendant to greater exposure. Perhaps most importantly, the Court clearly voiced its distaste and rejection of a “double recovery,” or permitting a plaintiff to collect twice on future medical bills. It reasoned that if a plaintiff were allowed to show a jury future medical expenses that PIP could still pay, the Plaintiff would be able to recover those costs in the form of a jury verdict, and again from PIP. This, the Court determined, was not the purpose or intent of the PIP law.

A Plaintiff’s Complaints of Pain Without an Objectively Permanent Injury Fails to Meet the Verbal Threshold

In January, 2019, Plaintiff Martchela Popova-Mladenov was injured in a motor vehicle accident when Defendant Jason Coigne swerved into her lane on I-295 in Mount Laurel, causing her to hit him. She complained of neck pain, but she chose not to go to the ER. A month later, complaining of lower back pain, a doctor took an X-ray, which showed “mild degenerative disc disease.” She had a lumbar MRI a few months later, which showed a pre-existing, degenerative condition to her lower back. In 2021, Popova-Mladenov filed a lawsuit against Coigne, alleging she sustained permanent injuries to her lower back. The issue in Popova-Mladenov v. Coigne, 2026 N.J. Super. Unpub. LEXIS 258 (App. Div. Feb. 12, 2026) was whether Popova-Mladenov met the “verbal threshold” and could prove she had sustained a permanent injury through objective clinical evidence, rather than only exhibiting subjective complaints of pain.

New Jersey’s Automobile Insurance Cost Reduction Act (AICRA) allows drivers seeking New Jersey automobile insurance to choose between one of two tort options: “limitation on lawsuit” and “no limitation on lawsuit.” Those who choose the “limitation on lawsuit” option, otherwise known as the “verbal threshold,” can only succeed in a lawsuit for non-economic “pain and suffering”-type damages if their injuries meet the “verbal threshold.” They can do so by proving they have one of several listed injuries, including, among others, a “permanent injury within a reasonable degree of medical certainty.” They also must prove their permanent injury through accepted diagnostic tests, and not entirely upon their subjective responses or complaints of pain.

Prior to trial, both parties obtained experts to offer opinions on Plaintiff’s claims of injuries to her lower back. Plaintiff’s expert, Dr. Joshua Landa, arrived at the conclusion that the accident caused damage to Popova-Mladenov’s lumbar spine, including a permanent aggravation of pre-existing degenerative changes. Defendant Coigne’s expert, Dr. Seven Carl Hausmann concluded that the objective clinical evidence from the MRIs of her lumbar spine showed her condition was “consistent with degenerative spondylosis, which is age-related” and was not due to, and pre-dated, the accident. Plaintiff produced a second report from Dr. Landa to rebut Dr. Hausmann’s conclusions, confirming that the condition of her lower back pre-dated the accident, but that condition made them “susceptible to injury,” and the pain she experienced after the accident had not resolved and was “likely a permanent injury.” The emphasis on “likely,” included in the opinion, is important.

At trial, Dr. Landa testified on Popova-Mladenov’s behalf, stating that though the objective condition of Plaintiff’s spine pre-dated the accident, he confirmed that his opinion that she had a permanent injury was based on her continued, subjective complaints of pain. After Plaintiff had introduced all of her evidence, Coigne asked the court to dismiss Plaintiff’s complaint. He argued that Plaintiff failed to meet the verbal threshold because Dr. Landa could not prove she had a permanent injury based on objective medical evidence, only Plaintiff’s ongoing, subjective pain. The trial court agreed and dismissed Plaintiff’s complaint, and she appealed.

In reviewing the trial court’s opinion, the Appellate Division focused on Dr. Landa’s opinion that Plaintiff “likely” had a permanent injury, and that, after he admitted the MRI established the condition of her lumber spine was degenerative and pre-dated the accident (and could not show objective evidence of an injury caused by this accident), Dr. Landa based his conclusions as to Plaintiff’s permanency for the purposes of the verbal threshold on her complaints of pain alone. The Appellate Division referred to New Jersey Supreme Court precedent, which stated that subjective complaints of pain, “standing alone, are insufficient to satisfy the verbal threshold,” and a plaintiff must present objective clinical evidence from diagnostic tests, like an MRI, establishing a permanent injury.

Here, the Appellate Division concluded that Dr. Landa could not identify anything in Plaintiff’s lumbar MRI that showed objective medical evidence of an injury caused by the accident. As a result, because his conclusion that she sustained a permanent injury to her lower back was based solely on Plaintiff’s own complaints of pain, and no objective diagnostic test, she could not meet the verbal threshold, and the trial court properly dismissed her complaint.

Court Bars Admission of Prior Conviction at Trial

At the federal court personal injury trial in Erodici v. Boardwalk Regency LLC, 2026 U.S. Dist. LEXIS 72542 (D.N.J. Apr. 2, 2026), one of the pre-trial issues raised was whether the prior criminal conviction of Plaintiff Marcus Erodici was admissible. Evidence of prior criminal convictions can be used to attack the credibility of a witness. The Plaintiff filed a pre-trial motion, called an in limine motion, to exclude evidence of Erodici’s prior criminal conviction for racketeering. Defendant Boardwalk Regency argued that it should be permitted as impeachment testimony.

The applicable court rule of evidence governing the admissibility of criminal convictions under both federal and New Jersey state rules of evidence is Rule 609. Pursuant to this rule of evidence, convictions may be used as evidence of truthfulness for impeachment purposes.

However, under the federal rules (Rule 609(b)), if more than 10 years has passed (as of the date of the trial) since the witness’s conviction or release from confinement, whichever is later, then “evidence of the conviction is admissible only if the court determines that its probative value outweighs its prejudicial effect, with the proponent of that evidence having the burden of proof.”

New Jersey has a similar rule of evidence, in determining admissibility under these circumstances, in which the court will consider:

  1. Whether there are intervening convictions for crimes or offenses and, if so, the number, the nature, and seriousness of those crimes or offenses;
  2. Whether the conviction involved a crime of dishonesty, lack of veracity or fraud;
  3. How remote the conviction is in time;
  4. The seriousness of the crime.

In Erodici, Plaintiff argued that evidence of his criminal conviction for racketeering should be precluded because he was released from incarceration 13 years ago and “the probative value of that conviction does not substantially outweigh its prejudicial effect.” Defendant argued that he was released from probation less than 10 years before the trial and, hence, the 10 year rule would not apply.

The Court found that the fact that Plaintiff was only released from probation within the 10 year period had no relevance to the application of this rule. The time period would run from when he was released from custody, not probation.

Under the federal case law, convictions more than 10 years old are presumptively excluded. Evidence of these types of convictions are admitted “very rarely and only in exceptional circumstances.”

Here, the Court found that the evidence of Plaintiff’s conviction must be excluded at trial. Defendant made no argument for why the probative value of his conviction would substantially outweigh the prejudicial effect. And, the District Court found that this was not one of the “exceptional circumstances” meriting the inclusion of such evidence. The Court noted that his racketeering conviction would have little probative value in this premises liability case.

Thus, the District Court granted Plaintiff’s motion to exclude evidence of his racketeering conviction at his personal injury trial.

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