Full Service Law Firm in Mt. Laurel Township, NJ | Capehart Scatchard

evidence

View OTHER BLOGS

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.

Compensatory Damages Are Not a Binary Choice and Must Fairly Compensate a Plaintiff

In September, 2022, a driver of a truck owned by Defendant G&E Services, LLC (“G&E”) accidentally ran into a commercial building owned by Plaintiff Long Valley Realty Holding, LLC (“Long Valley”). Long Valley sued G&E for the building’s damage caused by the impact, including visible cracking to the building’s bollards, brick facade, adjacent sidewalk, and damage to portions of the roof. The two parties agreed that G&E was liable for the damage and proceeded to a bench trial on the issue of the value of the property damage. Based upon the opinions of two experts, an engineer and a licensed building contractor, Long Valley claimed its damages, the cost to repair the building, was $112,000; with no supporting evidence, G&E argued that cost was only $3,650. The trial court found Long Valley did not sufficiently prove the cost of the damages and awarded Long Valley damages of the lower amount. Long Valley appealed. The issue before the Appellate Division in Long Valley Realty Holding, LLC v. G & E Servs., LLC, 2026 N.J. Super. Unpub. LEXIS 461 (App. Div. Mar. 13, 2026), was whether the trial court properly determined the lower damages award.

At trial, Plaintiff’s engineer presented his opinion as to the scope of the damage, admitting that some of the condition of the building pre-existed the accident. Plaintiff’s contractor provided an estimation of replacement costs and repair costs, including a replacement of the entire roof, concrete work to the bollard and sidewalk, and structural repair to the cracked facade. Though agreeing that the roof had been towards the end of its useful life, his analysis evaluated the cost of these repairs at $112,000. G&E provided no expert testimony, and proposed the $3,650 cost of the repairs with no source of support. The trial court expressed concern that neither of Long Valley’s experts itemized the cost to perform the proposed repairs, and there was some disagreement between the two as to what damage was caused by the accident. Further, the court found that without an itemized list of repairs and their proposal of one gross figure of $112,000, it was forced to speculate how to apportion that full figure amongst the roof, the bollards, the facade, and concrete. As a result, though admitting that a higher award was likely correct, because it only had two values on which to rule, the trial court awarded Long Valley $3,650 in damages – finding that Long Valley’s full $112,000 damages claim was a “severe overreach.” The court likened its determination to a professional baseball arbitration, where the two sides propose a figure, and the arbitrator must pick one.

The Appellate Division disagreed. Though handcuffed by the limited review of a trial court’s finding of fact in a bench trial, it found that and because compensatory damages are meant to compensate a plaintiff for their actual injury or loss, while the plaintiff must provide a reasonable estimation of damages, that estimate does not need to be certain. It decided that when a plaintiff clearly sustained some damages, any uncertainty as to the amount of those damages will not preclude them from a reasonable recovery. In this case, where neither side proposed a repair estimate that contradicted that of Long Valley, indeed G&E did not even provide one at all, the trial court’s reliance on G&E’s lower figure was unreasonable. Further, the appellate court disagreed with the baseball arbitration analogy, particularly when G&E’s valuation lacked any foundation may have complicated the court’s ability to analyze the value of the loss, there are methods to arrive at a reasonable estimate; there was no “binary choice” between one or the other. However, because it expressly noted it was not dictating a result, the Appellate Division stopped short of awarding Long Valley its full valuation of damages. Instead, the court vacated the trial court’s award of $3,650 and asked it to consider the evidence in front of it, and nothing else, and arrive at an appropriate calculation of damages.

Defendant in Civil Case May Be Questioned at Deposition As to Statements Made During Criminal Guilty Plea

Defendant Alex Brown-Eskengren, with two accomplices, attacked minor plaintiff R.J. after a party.  Defendant was charged criminally for this attack and eventually pled guilty to third-degree aggravated assault on the condition that he would be admitted to pre-trial intervention (PTI).  As part of the plea, he gave a factual allocution regarding the attack, testifying that he struck plaintiff.  The issue in R.J. v. Brown-Eskengren, 2025 N.J. Super. Unpub. LEXIS 1620 (App. Div. Aug. 27, 2025) was whether the defendant could be compelled to answer questions in his civil suit deposition regarding his sworn statement and testimony given in the criminal case.

Plaintiff R.J. sued defendant for injuries he suffered during the attack.  After plaintiff requested defendant’s deposition, the trial court ordered that it be adjourned until the resolution of defendant’s criminal charges.  After his criminal plea, he was deposed.  During the deposition, plaintiff’s counsel tried to impeach defendant using his guilty plea allocution.  (A criminal allocution consists of statements and testimony made by defendant with respect to entering a plea for a criminal charge.)

Defendant’s counsel objected on the grounds that the plea allocution was inadmissible.  However, the trial court ordered that defendant could be cross-examined regarding his plea allocution.  Defense counsel then unilaterally cancelled the deposition.

Thereafter, plaintiff’s counsel filed an application to compel the defendant’s deposition.  The trial court judge granted the application and ordered that defendant’s deposition be taken within forty-five days.  Additionally, the trial court entered an order compelling defendant to answer questions regarding his sworn statement and testimony in the criminal case.  The court found that the question of admissibility could be addressed closer to trial and that the rules covering discovery in a civil case did not prevent plaintiff from cross-examining defendant regarding his guilty plea allocution at the deposition. 

Defendant appealed these orders, contending that the questions regarding his guilty plea allocution should be barred.

Initially, the Appellate Division noted that in evaluating a trial court’s evidentiary rulings, an appellate court would “generally defer to a trial court’s disposition of discovery matters unless the court has abused its discretion or its determination is based on a mistake and understanding of the applicable law.”  Further, the court noted that New Jersey’s discovery rules are to be construed liberally in favor of broad pre-trial discovery.

The Appellate Division cited to R. 4:10-2(a) which stated that “parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action, whether it relates to the claim or defense of the party seeking discovery or to the claim or defense of any other party. . .”  The Court did note that the parties’ discovery rights are not unlimited and that protective orders can be entered which would protect a party or person “from annoyance, embarrassment, oppression or undue burden or expense.”

Here, defendant did not contend that his guilty plea allocution was privileged or that it would cause annoyance, embarrassment, oppression or undue burden or expense which would require a protective order.  Defendant simply argued that the allocution was inadmissible at trial.  The Court pointed out that the test for discoverability under the civil court rules was limited to whether the evidence was relevant, not whether it was admissible.

The Appellate Division concluded that “the trial court did not abuse its discretion in compelling defendant’s attendance at deposition and permitting cross-examination of him regarding his guilty plea allocution.”  The Court agreed that the trial court correctly found that the ultimate question of admissibility was to be determined after the deposition.  Therefore, the Appellate Division affirmed the trial court’s ruling that defendant must sit for a deposition and that he must answer questions regarding his sworn statement and testimony in his criminal case.

Appellate Division Rules That Injured Plaintiff May Pursue Pothole Claim Against Municipality

On January 29, 2021, Plaintiff Michael Shaw tripped and fell while crossing Kearny Avenue due to a large pothole in the middle of the street. He suffered significant injuries including a broken right hip, chronic lumbar strain, and aggravation of other pre-existing conditions. The issue in Shaw v. Town of Kearny, 2025 N.J. Super. Unpub. LEXIS 937 (App. Div. June 4, 2025) was whether the Township was deemed to have notice of the alleged roadway defect and, hence, could be responsible for his accident.

Typically, in accidents involving potholes, the public entity responsible for the roadway will not be held liable due to lack of notice of the pothole. Usually, they will not have actual notice of the pothole because they can appear suddenly. Further, it is often hard to prove constructive notice for the same reason. However, the facts in the Shaw case were different. Plaintiff was able to present sufficient facts to establish that the pothole was present for years and was so obvious that Kearny, using due care, should have discovered it. Hence, sufficient facts exist to establish constructive notice.

Plaintiff suffered his injury on a dark night, after parking his car on Kearny Avenue to visit a nearby bakery to make a purchase. The bakery was on the opposite side of the street from where he parked. He went to the bakery and, on the way back, crossed in the middle of the street, not in the crosswalk. He was holding a box of custard cups, not looking down and encountered a large pothole and fell. The pothole was 4 feet in length, 12 inches wide and the deepest section was about 2-3 inches deep.

At the trial court level, the trial judge found that the Township did not have actual or constructive notice of the pothole, granted summary judgment, and dismissed the lawsuit. This appeal ensued.

The Appellate Division, however, disagreed with the trial court. While there was no proof of actual notice, it held that there were facts sufficient to establish constructive notice. It found that the record did include imagery from 2012-2015 showing evidence of cracking and surface depressions. The formation of a pothole appeared on images as of July 2018 and, by October 2020, further images showed continued pavement deterioration, and evidence of large pothole formation.

During this time, Kearny was engaged in a variety of roadway inspection, planning, project finance and repair activities on Kearny Avenue. Other areas near this pothole were patched and repaired in 2018 and 2019. Plaintiff’s expert opined that the accident site continued to deteriorate. Giving all inferences to Plaintiff, the Appellate Division found that there was ample evidence for a jury “to conclude that the Kearny Avenue pothole was a dangerous condition sometime after 2015; the dangerous condition existed for a significant period of time prior to the accident; and the dangerous condition was obvious, so much so that Kearny, using due care, should have discovered it.”

The Court noted that the record showed a continually deteriorating pothole near the middle of the roadway in the Kearny central business district where the Township had multiple opportunities to discover it. Hence, the Appellate Division disagreed with the trial court’s assessment as to the lack of notice and reversed the court’s order for summary judgment.

Court Dismisses Plaintiff’s Personal Injury Lawsuit Due to Inability to Identify Why Floor Was Slippery

Plaintiff Ann Brilliant slipped and fell inside an Outback Steakhouse but did not know how or why she slipped.  She was unable to identify any specific hazardous condition of the floor or deviation from accepted safety standards.  The issue in Brilliant v. Outback Steakhouse of Florida, LLC, 2025 U.S. Dist. LEXIS 87014 (D.N.J. May 7, 2025) was whether summary judgment should be granted to the defendant Outback Steakhouse due to plaintiff’s failure to identify why the floor was slippery and what caused her to fall.

Plaintiff had met her friend Darsell Pigford for dinner at an Outback Steakhouse in Deptford, New Jersey.  As she was walking to her table, she slipped and fell, breaking her arm and leg.

She testified at her deposition that she did not notice any substance on the floor that caused her to slip.  Rather, she guessed that “the floor was slippery because it had a wax residue on it that made it feel like a sheet of ice.”  However, she denied seeing or feeling any wax residue on the floor.  Plaintiff’s friend, Ms. Pigford, also testified in a deposition that she frequently ate at this Outback and that the floor always seemed slippery but, she was unaware of any particular condition that made the floor slippery.  Although, on one of her prior visits, she had apparently alerted restaurant staff about the slipperiness of the floor.

At the conclusion of discovery, Outback moved for summary judgment, arguing that, as a matter of law, no reasonable jury could find that it negligently maintained its floor.  The District Court found that plaintiff could not survive summary judgment “because she has failed to present evidence outside her and her witnesses’ own subjective characterizations that Outback maintained its floor negligently.”

The Court relied on prior New Jersey case law which held that “the mere fact that a plaintiff falls on a waxed floor is not enough to infer negligence; instead, the plaintiff has to show that the way the floor was waxed – in terms of the nature or quantity of the substance used, or in the matter or time of its application – was such a departure from the normal or generally accepted standards as to create a hazard of a tortious character for the lawful users of the premises.” 

Here, plaintiff failed to produce any evidence that the floor was negligently waxed, or that it was waxed at all.  The Court also pointed to out of state decisions in which courts have held that a plaintiff cannot prevail on a negligence claim when she fails to offer any evidence that the floors were excessively slippery, “other than subjective characterizations about the appearance of the floor.”

Plaintiff had also argued that summary judgment should be denied because Outback failed to produce in discovery a completed opening and closing inspection checklist, as well as a completed facilities inspection checklist.  Instead, Outback had only produced a blank version of the opening checklist.  Plaintiff argued that defendant’s failure to preserve these records should create a negative inference that it either never created the records or that the records were destroyed because they were harmful for the defendant. 

The District Court disagreed with that argument.  Plaintiff had never objected in discovery to Outback’s failure to produce these completed versions of the checklist from the day of the accident.  Further, the Court noted that production of the completed checklists, even if they did exist, would not create a triable dispute of fact.  At most, the checklist would establish that inspections were conducted but not what if anything was observed during the inspections, let alone that any hazardous condition was or should have been detected.

The Court concluded that the undisputed evidence was that there was no admissible evidence of a dangerous hazard on the floor and, as such, the argument that any hazard could have been identified or remedied by an inspection procedure was speculative.  Thus, the District Court granted summary judgment and dismissed the complaint.

Appellate Division Affirms Dismissal of Case After Bifurcated Trial

The small details matter.  A petitioner will always have problems at trial when there is very little congruence between the allegations contained on the claim petition and the statements which petitioner gave to the employer and treating doctors at the time of the accident. That is the message in the case of Makins v. Palace Rehab & Care Center and Premier Cadbury, LLC, A-2263-23, A-2276-23 (App. Div. April 24, 2025).

Petitioner was a certified nursing assistant (CNA) who provided essential care to patients. She injured her back in 2013 while working for Palace Rehab with pain and numbness into her right leg. She received an award in that case and reopened that award on June 12, 2018.

On June 19, 2018, petitioner, who was then working for Premier Cadbury, filed two additional claim petitions.  The first claim petition alleged an injury on February 11, 2018, which aggravated her low back with pain into her legs while “picking up a resident.”  In the second claim petition, she alleged that she injured her back, left knee and left hip picking up a patient on June 8, 2018. Cadbury denied both claims, and the case proceeded to trial. The parties agreed to a bifurcated trial.  That meant that the case would be tried on the issue of the occurrence of an accident and causal relationship without medical experts necessarily testifying. 

During the first date of trial, petitioner said she did not remember whom she reported the first incident to but later she said she told her supervisor, whose name she did not recall.  She said she was lifting a patient when something happened to her low back.  She admitted to finishing work the day of the alleged injury on February 11, 2018.  She worked the next two days.  She then went to a hospital on February 14, 2018, and stayed home two days, returning to work on light duty before resuming full duty.

The petitioner’s version of the second alleged incident on June 8, 2018 was similar.  She said she was lifting a patient, putting her on a toilet, when she felt sharp pain in her back.  She also said that she bent down to pick up a box of tissues that the patient dropped but then she fell to the floor, striking her back and left hips.  She said she told a nurse who entered the room what had occurred. She recalled signing an incident report but claimed she had not read the incident report because she was in too much pain.  She said Susan, who completed the incident report, told her to see her family doctor.  She was referred to an orthopedist, who gave her an injection.  She was then referred to Dr. Kepler, a surgeon.  She also had two visits with Concentra, which were arranged through her employer.

Cadbury’s counsel focused heavily during trial on numerous inconsistencies in this case:

1)  The incident report of February 16, 2018, which was signed by a supervisor but not by petitioner, contained a handwritten response to the question about how the incident happened: it read “overall strain on back – did not occur with just [one] resident.” Defense counsel asked petitioner to comment on this description.  The judge observed that during her response,  “petitioner’s head went down, she would not make eye contact with respondent attorney, she did not speak for a period that was uncomfortable, shrugging with [a] lack of expression.”  She then said she did not recall making that statement.

2)  Regarding the alleged incident on June 8, 2018, petitioner admitted that she signed the incident report but said that she had not read it. She denied ever saying the words contained in the report: “Employee was simply walking, passing out trays and performing routine duties when she felt sharp pain in her left hip like a dislocation – now has radiated to lower back.”  Petitioner testified, “This didn’t happen like this.”

3)  Petitioner was shown a document entitled “Workers’ Compensation – First Report of Injury or Illness.”  She said she did not agree with the description on that document, namely: “Employee was simply walking, passing out trays and performing routine care when she felt a sharp pain in her left hip/lower back.”

4)  Petitioner was also shown notes from a physician’s assistant in the orthopedic practice for her June 13, 2018 appointment. She did not agree with the description: “[The patient] states that she has been having low back pain for approximately a month. She states that a few [sic] last week at work when she was in a standing position, her leg gave out and she did not fall.  She states that her knee has been feeling painful as well.”

5)  Petitioner also disagreed with a statement contained in a June 14, 2018 appointment at Concentra: “Patient states that as she was walking her left leg gave out, she was able to prevent herself from falling, she states she sat down and rested and later in the day the same thing happened again. She reports since then she has been experiencing lower back pain, left knee and left hip pain.  She states that her left knee appears to slip out of place and she is unable to resume regular activity until it returns to a normal position.  She reports a history of arthritis to the back.  She denies slipping, tripping or other mechanics of injury.”

6)  Petitioner also disagreed with the note from a Concentra doctor in her June 18, 2018 appointment where the physician described her as having a “preexisting condition.”

7)  Petitioner also was shown a note from her orthopedic physician at her July 2, 2018 appointment.  The doctor wrote that petitioner had “a history of chronic recurrent lower back pain for many years” and “severe osteoarthritis of her left knee.”  The doctor also wrote that petitioner denied any specific injury and admitted that her symptoms began “insidiously.”  Petitioner did admit that she had preexisting problems but did not recall this specific discussion.

8)  Petitioner also did not recall the history contained in an IME performed at Cadbury’s request which referenced a prior August 8, 2017 incident when petitioner felt pain while helping a 200-pound patient get off a toilet. Petitioner did not recall being examined by the doctor and did not recall that particular history.  In fact, she disagreed with that description of a 2017 injury.

On examination by the attorney for Palace, (the first employer), petitioner did agree with a statement by Dr. Kepler in his May 21, 2019 report that she suffered two injuries at Cadbury on February 11, 2018 and June 8, 2018, both of which aggravated her back and leg pain.

Cadbury produced two witnesses:  a Director of Nursing in 2018 and an Executive Assistant and Supervisor for the front desk. These witnesses testified to the procedures that Cadbury followed for reporting an injury at work.  The first witness testified that the information on the First Report of Injury Form came from the information on the Incident Report. The second witness testified that she created the incident report for the alleged February 11, 2018 accident based on what petitioner had reported to her.

The Judge of Compensation admitted into evidence over objection from petitioner’s attorney the incident reports and the Workers’ Compensation First Report under the Business Records exception to hearsay.  The Judge permitted the petitioner on the final day of trial to bring in a doctor to challenge impeachment evidence but petitioner declined to do so.  Certain documents were introduced into evidence by all parties, and the Judge of Compensation rendered a decision finding that … “petitioner failed to prove by a preponderance of the evidence that her injuries were causally related to the alleged accidents at Cadbury.”  The Judge dismissed both claim petitions with prejudice.  The Judge also noted that he did not give the First Report of Injury Form any weight in arriving at his decision.  He specifically stated that he found petitioner not to be credible.

Petitioner appealed and raised several issues.  The first issue pertained to petitioner’s competence to testify.  Petitioner was asked by the judge at the outset of testimony whether she was under the influence of anything that would interfere with her ability to testify.  She said no.  Then her own attorney asked her if she was under the influence of medications.  She said yes, that she was taking oxycodone and muscle relaxers which affected her memory.  She also said she was suffering from memory issues related to Long Covid.  The Appellate Division commented, “The problem with that argument is that petitioner and her counsel chose to have her testify, fully aware of what medication she had taken and her Long Covid condition and their potential effects on her memory.  Nothing in the record indicates petitioner or her counsel asked the judge for an adjournment…”  The Court also noted that petitioner initially told the Judge of Compensation that she was not under the influence of anything that would cloud her judgment. Furthermore, the Appellate Court noted that the Judge of Compensation focused more on “the differences in her demeanor when she testified about facts that were in her favor and when she testified about facts that were not in her favor.”

The next issue on appeal was the decision to bifurcate the trial.  Counsel for petitioner challenged the trial judge’s decision to bifurcate the trial because it contended that this may have prevented petitioner from producing testimony from her treating physicians.   The Appellate Court said there was no error in bifurcating the trial because neither party objected to this approach.  The Court also noted that the Judge of Compensation allowed petitioner to bring in medical testimony on the final date of trial but petitioner’s counsel declined. The Appellate Court commented that in this case the judge found that petitioner was not credible in her claims that work accidents happened.

The last argument on appeal was that the Cadbury incident and first reports should not have been admitted into evidence because they did not meet the test of a business record under N.J.R.E. 803 (c)(6).  Counsel also argued that petitioner was denied due process when Cadbury did not produce the author of the incident report. The Appellate Court noted that the Judge of Compensation gave no weight to the First Report of Injury Form.  The Court also noted, “… [A] Judge of Compensation is not bound strictly by the Rules of Evidence, see N.J.S.A. 34:15-56, and may admit documents into evidence without authentication testimony,” citing Lindquist v. City of Jersey City Fire Dept., 175 N.J. 244 (2003). The Court also observed that petitioner did admit that she signed the first page of the June 8, 2018 incident report, “which contained a description of the purported accident that did not match the description petitioner gave on her claim form or in her testimony.” Finally, the Court commented that all counsel in the case consented to the admission of certain documents into evidence; hence there was no due process violation.

The dilemma for petitioner in this case was the inability to overcome the inconsistency between the allegations in her claim petitions and the contrary statements in the incident reports and doctors’ notes close in time to the alleged accidents.

  • Evidence

Photographs Showing Mopping of Floor and Caution Sign Placed Post-Accident Barred at Trial As Subsequent Remedial Measure

Plaintiff Pauline Jelken fell in a puddle of water in the lobby of the defendant’s Public Storage facility.  After she fell, an employee mopped the puddle and placed a caution sign on the floor.  Plaintiff sued Public Storage for her injuries suffered from the fall. The issue in Luciano v. Public Storage, 2025 N.J. Super. Unpub. LEXIS 383 (App. Div. Mar. 13, 2025) was whether the trial court judge properly barred Jelken from introducing photographs of the post-accident measures undertaken after Jelken fell, specifically the mopping of the floor and the placing of the caution sign. 

On July 4, 2018, Jelken went to defendant Public Storage’s facility with her friend Arlene Castello to retrieve items she had stored there.  It rained that day and she slipped and fell in a puddle of water in the lobby of the premises.  Jelken reported her fall to the defendant’s employee.  Thereafter, an employee mopped the puddle and placed a caution sign on the floor.

Jelken filed a personal injury lawsuit for injuries she suffered in her fall.  The case proceeded to trial and, among other witnesses, the defense presented a forensic engineering expert, Dr. David Behnken, to testify as to the condition of the floor. 

Prior to trial, the defense made two evidentiary motions, ruled upon by the trial court, one of which will be discussed in this blog article.  One of the motions concerned post-accident photos that showed the floor being mopped and a caution sign placed at the scene of the fall. The defendant sought to bar them from being introduced into evidence at the trial. The trial court judge granted that motion.

The trial court judge asked Jelken’s attorney to state the basis for introducing this evidence.  Jelken’s attorney stated that he intended to use the photographs to demonstrate Jelken “got out of the facility safely.”  The trial court judge ruled that the post-accident photographs were inadmissible under the evidentiary rule, N.J.R.E. 407, which barred the introduction of evidence of subsequent remedial measures.

The judge reasoned that the photos went more to the remedial measures that were taken by the defendant after the accident. While pictures of the condition of the floor at the time of the accident would be admissible, the judge found that the mopping and pictures with the signage around it was not the condition of the floor at the time of the accident and barred their admission at trial.

At trial, Jelken’s attorney sought to revisit this ruling after defense counsel gave his opening statement.  During the opening statement, the defense counsel argued that the floor was slip resistant and that you could pour all the water you want on the floor and you could not slip.  Jelken’s attorney made the argument that defendant sought to portray the floor as slip proof and contended that “the photographs demonstrating defendant’s employee mopped the floor and placed a caution sign refuted the floor’s safety.”

The judge restated his pre-trial ruling that the post-accident photographs constituted inadmissible subsequent remedial measures, precluded under N.J.R.E. 407.  The judge further commented that Jelken had the opportunity to call an expert in the matter to indicate that the floor was not slip proof.  The judge also barred Jelken’s attorney from using the photographs of defendant’s post-accident remedial measures to cross-examine defendant’s engineering expert. 

After hearing all of the testimony, the jury found that plaintiff had failed to prove defendant was negligent and found for defendant.  Jelken filed a motion for a new trial based upon the court’s evidentiary rulings.  That motion was denied and this appeal ensued. 

On appeal, Jelken argued that the judge made a mistake in excluding evidence of defendant’s post-accident safety measures.  In considering this argument, the Appellate Division noted that: “while evidence of safety measures taken after an accident may tend to prove or disprove a fact of consequence, New Jersey has a clear and longstanding public policy favoring the immunization of remedial measures from negative inferences.” 

The Court explained that, pursuant to this rule of evidence, evidence of remedial measures taken after an event were not admissible to prove that the event was caused by negligence or culpable contact.  However, evidence of subsequent remedial conduct may be admitted as to other issues such as to establish control over the instrumentality causing the injury, to show defendant’s customary standard of care, to prove the condition existed at the time of the accident, to show that a feasible alternative for avoiding the danger existed at the time, or to attack the credibility of a witness. 

During the appeal, plaintiff argued that the photographs were relevant to show that plaintiff got out of the facility safely, to show the floor was slippery, and to impeach defendant’s engineering expert who testified the floor was highly slip resistant. 

The Appellate Division found that the trial court judge did not abuse his discretion in precluding evidence of the defendant’s post-accident conduct under N.J.R.E. 407.  The photographs, showing the defendant’s employee mopping a puddle and placing a caution sign were changes and repairs made subsequent to the accident, were precautions taken subsequently to prevent recurrence of an injury and were not admissible as showing negligence or as amounting to an admission of negligence. 

Hence, the Court found that absent a proffer of the photographs to prove some other fact in issue, the evidence of subsequent remedial measures could not be used to show negligence.

The Appellate Division also rejected the argument that the photographs were required to prove Jelken exited defendant’s facility safely.  Both plaintiff and her friend who accompanied her testified that they left the facility without further incident.  While photographs showing the condition of the floor at the time of the fall might be relevant to plaintiff’s negligence claim, photographs of the floor after defendant’s employee took action constituted evidence of subsequent remedial measures which were properly precluded under this rule of evidence.

Plaintiff further argued that she intended to use the photographs of defendant’s post-accident conduct to prove the floor was slippery.  The Appellate Division found that the best evidence in support of this contention was the testimony proffered by plaintiff and her friend during the trial.

The Appellate Division further rejected the argument that the evidence of defendant’s subsequent remedial measures should be admissible to impeach defendant’s engineering expert. During direct testimony, the engineering expert was never questioned as to defendant’s post-accident conduct.  During cross-examination, plaintiff’s attorney hypothetically asked the witness if he had been at defendant’s premises at the time of the fall, whether he would have placed a sign warning people to be careful.  He testified that he would not have directed the placement of such a sign. Because Plaintiff’s counsel, not Defendant’s counsel brought up the issue of placement of the sign, the post-accident photos showing the sign could not be used to impeach the expert’s testimony.

Thus, the Appellate Division ruled that this evidentiary ruling was proper by the trial court judge.  The Court found that the denial of Jelken’s new trial motion was not a miscarriage of justice under the law and affirmed the trial court’s decision.  Accordingly, the jury verdict in favor of the defendant was upheld.

New Jersey Supreme Court Determined That Juries Can View Video in Slow Motion

This matter concerns a challenge to the trial court’s decision to permit the jury to replay surveillance video evidence in slow motion and with intermittent pauses during deliberations in a criminal trial.  Although this case involved a criminal matter, the holding may also be utilized in a civil case.  In the case of State v. Knight, 2024 N.J. LEXIS 1174 (Sup. Ct. Dec. 18, 2024), three men were on trial for robbing a victim behind a deli.  The issue in Knight was whether the trial court properly permitted a surveillance video taken from inside the deli, showing four men walking outside past the deli’s back door, to be played in slow motion during deliberations.

Allegedly, three men robbed a victim behind the deli.  The victim identified defendants as two of the robbers.  However, at trial, defendants disputed the identification and their involvement in the robbery.

During the trial, the State presented a surveillance video taken from inside the deli about six seconds in length, that showed, for about two seconds, four men walking outside past the partially obscured window in the deli’s back door.  In addition to playing the video as part of its case and again several times in closing, the State played the video once in slow motion.

During jury deliberations, the jury requested that the video be replayed several more times in slow motion, at other varying speeds, and with intermittent pauses.  Although the defendants objected, the trial court judge permitted those playbacks under her supervision in the court room.  Ultimately, the jury found defendants guilty of armed robbery and other defenses.

This conviction was appealed to the Appellate Division, which affirmed, finding no reversable error concerning the slow-motion video replays.  The Appellate Division held that relevant “surveillance video evidence may be presented during a trial or closing argument . . . in slow motion or at other varying speeds or with intermittent pauses, if the trial court reasonably finds [it] would assist the juror’s understanding of the pertinent events and help them resolve disputed factual issues.”  Further, the Appellate Division found that “trial courts have the discretion to grant a jury’s request during deliberations to replay surveillance videos in such modes one or more times, provided that the playbacks occur in open court under the judge’s supervision and in the presence of counsel.” 

Further, the Appellate Division ruled that the trial court, in exercising its discretion as to whether to permit the replays of the surveillance videos should consider among other things the following:

A.    Whether the video has a soundtrack that contains recorded statements of the filmed persons;

B.    Whether the video is difficult to discern when played only at a normal speed;

C.   Whether the video can assist in resolving disputed issues of identification;

D.   Whether the video bears upon disputed issues of intentionality; and

E.    Whether the video contains content that is particularly disturbing or inflammatory to watch repeatedly in slow motion.

The Supreme Court agreed with the Appellate Division and affirmed substantially for the reasons expressed in the Appellate Division decision.  The Court concurred with the Appellate Division’s list of non-exclusive factors for trial courts to consider in exercising their discretion. 

Further, the Supreme Court noted that watching a video in slow motion is not beyond the ken of an average juror.  It would not require any kind of specialized knowledge.  It would be similar to a case in which the Court had permitted the use of a conventional magnifying glass during deliberations to view a photograph in evidence.  In that case, the Court had determined that the magnifying glass was not new evidence but nearly a commonplace tool familiar to the jury.

Here, the Supreme Court noted that playing in slow motion the same video that was properly admitted into evidence to highlight the action occurring on screen and assist the jury was no different from allowing a jury to use a magnifying glass to inspect a picture.  However, some tools or functions may be so specialized that their usage constitutes an alteration of evidence or creating new evidence.  In those type of situations, the Court noted that an expert may be needed to testify about the modifications.

Thus, the Supreme Court confirmed the Appellate Division and upheld the trial court’s ruling to permit the video to be played back in slow motion.

Capehart Blogs

Firm News
Capehart Scatchard Supports Oaks Integrated Care’s Rooted In Community Fundraiser
Firm News
Kenneth Chiarella Selected As A Fellow Of The National Filipino American Lawyers Association Leadership Academy
NJ School Law
Court Denies School District’s Motion to Compel IMEs

Court Denies School District’s Motion to Compel IMEs

Court Finds No Liability of Defendant Homeowner for Social Guest’s Fall Down Her Steps

Appellate Division Reinforces Strict Compliance With the “Notice Requirement” of the Tort Claims Act

Subscribe to Blog Updates

Categories

Tags
Alternative Energy Alternative Energy - Solar Alternative Energy - Wind Appellate Division automobile accident automobile insurance Burlington County Bar Association Cannabis Law Charity constructive notice coverage data security discovery dismissal Diversity & Inclusion Diversity & Inclusion Committee duty of care employees employers Employment Law evidence insurance Liability Litigation Litigation Quarterly Lorman Millennium Seminars NBI negligence New Jersey Workers' Compensation Act New York Law NJ Law notice Pennsylvania Law personal injury Public Entity Newsletter Real Estate and Land Use school law slip and fall statute of limitations summary judgment Tort Claims Act trip and fall Workers' Compensation Workers' Compensation Newsletter