SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1641-18T1

HAJEEMA EDMAN-SUTTON,

Plaintiff-Respondent,

v.

CITY OF NEWARK, NEWARK

FIRE DEPARTMENT, and

JIHAAD A. NORTH,

Defendants-Appellants.

____________________________

Submitted December 2, 2019 – Decided

Before Judges Messano and Vernoia.

On appeal from the Superior Court of New Jersey,

Law Division, Essex County, Docket No. L-8870-15.

Kenyatta K. Stewart, Corporation Counsel, City of 

Newark, Department of Law, attorney for appellants 

(Steven Francis Olivo, Assistant Corporation Counsel, 

of counsel and on the briefs).

The Reinartz Law Firm, LLC, attorneys for respondent 

(Richard A. Reinartz, of counsel and on the brief).

PER CURIAM

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the 

internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.

February 13, 2020
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A-1641-18T1

A jury found that plaintiff Hajeema Edman-Sutton suffered a permanent 

loss of a bodily function, see N.J.S.A. 39:6A-8(a), as the result of a motor 

vehicle accident on April 23, 2015. The jury also found plaintiff was not 

negligent, and the accident was caused by the negligence of defendant, Jihaad 

North, an employee of the Newark Fire Department (collectively, defendants).

1

 

The jury awarded plaintiff $400,000 in damages for pain, suffering, impairment,

and loss of enjoyment of life. Defendants moved for a new trial or, alternatively,

remittitur. The judge denied the motion and this appeal followed.

Defendants contend the judge's decision to permit plaintiff's late 

amendments to interrogatories, while at the same time denying their late service 

of a supplemental expert's report and restricting their expert's trial testimony,

was highly prejudicial and requires reversal. They also argue the judge should 

have granted a new trial on damages because plaintiff testified about her tuition 

expenses, even though the judge previously ruled her claim was limited to noneconomic damages, or alternatively, the judge should have remitted the grossly 

excessive verdict.

1 The City of Newark (the City) is the actual defendant and was improperly pled 

as the Newark Fire Department.
3

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We have considered these arguments in light of the record and applicable 

legal standards. We reverse and remand for a new trial.

I.

Discovery ended on June 2, 2017, after which the case was arbitrated 

pursuant to Rule 4:21A, with a net award to plaintiff of $67,500. It appears the 

City rejected the award and requested a trial de novo. Ibid. Plaintiff continued 

medical treatment for injuries to her spine and filed amendments to interrogatory 

answers on July 26, 31, August 3, and 10, 2017. These included reports from 

physicians who administered two epidural injections to plaintiff's spine in 

November 2016 and April 2017, recommendations from Dr. Bryan Massoud that 

plaintiff undergo a lumbar discectomy, and a July 2017 MRI report documenting 

a lumber disc herniation. On each occasion, the reports were accompanied by 

plaintiff's counsel form cover letter that said, "[i]f the information . . . is 

produced after an applicable . . . discovery end date . . . it was not reasonably 

available by the exercise of due diligence prior to that date." 

This procedure did not comply with Rule 4:17-7, which requires that 

amendments to interrogatory answers served later than twenty days before the 

discovery end date (DED) be accompanied by a certification "that the 

information requiring the amendment was not reasonably available or
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discoverable by the exercise of due diligence prior to the [DED]." The 

assertions in counsel's letters were not certified.

Defendants moved to bar these late amendments; plaintiff filed opposition 

and cross-moved to extend discovery. The judge entered two orders on 

September 1, 2017. The first denied defendants' motion because "[t]he 

information contained in the amendment[s] was not reasonably discoverable in 

the exercise of due diligence prior to the expiration of the June 2, 2017 DED." 

The second extended discovery, which in turn the civil division presiding judge 

further extended to January 29, 2018.

During discovery, defendants supplied two expert reports authored by Dr. 

Steven G. Robbins, dated December 19, 2016, and May 19, 2017, i.e., before 

plaintiff filed the four amendatory interrogatory responses. In his first report, 

Dr. Robbins opined that plaintiff "may have sustained temporary soft tissue 

injuries" from the accident, but they "have not led to permanency." The second 

report included Dr. Robbins's comments having now reviewed various 

diagnostic films and test results. Citing an emergency room visit and tests done 

on plaintiff in 2012, after a prior motor vehicle accident, he opined that plaintiff 

may have "sustained prior trauma which required an emergency room evaluation 

and imaging studies." However, since plaintiff had not disclosed any prior
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treatment during his examination of her, Dr. Robbins withheld any further 

opinions pending a complete review of all medical records.

With trial set for September 17, 2018, on September 5, plaintiff filed a 

motion in limine seeking, among other things, to bar defendants from 

introducing any evidence of the 2012 accident, and to further prohibit Dr. 

Robbins from testifying about the two epidural injections, the July 2017 MRI,

and plaintiff's treatment with Dr. Massoud, including the recommendation for 

surgery, because neither of his two reports addressed those issues. On 

September 14, 2018, defendants served a third report from Dr. Robbins. That 

report contained Dr. Robbins's review of additional medical records supplied in 

the amendatory answers. Essentially, Dr. Robbins critiqued the diagnostic 

findings, concluding "there [were] discrepancies in the submitted medical 

records and nonanatomic features discussed on physical exam." Dr. Robbins 

did not review the July 2017 MRI "study," only the radiologist's report, and 

pending his ability to view the film alongside earlier MRIs, Dr. Robbins

"refer[red] [defense counsel] back to [his] prior report." 

The judge heard oral argument on the motion on September 18, 2018. 

Defense counsel admitted that he failed to provide Dr. Robbins with plaintiff's

amendatory reports in a timely fashion, which caused the extraordinary delay in
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producing the third report. Finding "substantial prejudice to . . . plaintiff[,]" the 

judge not only barred any reference to the third report but also prohibited Dr. 

Robbins from commenting on the July 2017 MRI, the two epidural injections,

and the recommendation for surgery, all contained in plaintiff's late 

amendments. Noting defense counsel's position that Dr. Robbins should be 

permitted to rebut the opinions offered by plaintiff's trial expert, Dr. Andrew 

Carollo, in his videotaped testimony, the judge held:

Now insofar as [Dr. Robbins's] comments upon 

things that were concluded or testified to at the de bene 

esse, he can do that but not commenting on these, on 

these. So insofar as the doctor disagrees with . . . for 

the reasons set forth in his reports, in his previous 

reports and things that flow from that, he's certainly 

permitted to testify. But just not these things.

The judge also granted plaintiff's in limine motion and barred defendants from 

introducing any evidence of plaintiff's 2012 automobile accident.2

The jury saw Dr. Carollo's videotaped deposition testimony. Dr. Carollo 

was not plaintiff's treating doctor but, based upon his clinical examination and

2

 The court's September 20, 2018 order regarding the ruling on the motion in 

limine was not filed until October 22. For reasons unexplained by the record, 

although the proposed order specifically listed the four items that Robbins was 

prohibited from discussing, the court struck out the reference to the July 2017 

MRI. It may be that the judge struck this from the order because Dr. Robbins's 

third report clearly said he had only seen the radiologist's report, not the actual 

MRI study.
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review of her medical records, he concluded plaintiff suffered a number of 

injuries in the accident, including two disc herniations with nerve root 

radiculopathy. He identified the July 2017 MRI films, opined that they 

"correlate[d]" with earlier studies from 2015, and concluded, "[i]f the situation 

. . . progresses, neurologically, then [plaintiff is] going to have to have surgery." 

Dr. Carollo explained that plaintiff underwent two epidural injections in 

November 2016 and April 2017, but they only provided "temporary relief." He 

acknowledged that they "did [not] solve her problem." Dr. Carollo opined that 

plaintiff suffered "a permanent loss of a bodily function with regard to [her]

neck and lower back."

Before Dr. Robbins testified, the judge asked defense counsel if he had 

discussed the court's prior rulings with the witness. Defense counsel indicated 

that he had. However, after Dr. Robbins alluded to plaintiff having undergone 

x-rays in 2012, the judge excused the jurors and addressed counsel with the 

witness present. The judge expressed his concern that Dr. Robbins's testimony 

about these x-rays suggested plaintiff had prior injuries, and that implication

"fl[ew] in the face of [his] ruling." Plaintiff's counsel reiterated his 

understanding that Dr. Robbins could not testify about the four items excluded 

by the judge's prior ruling. The judge said that was correct, and directing his
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comments to the doctor, said, "[a]ny of the other things that you reviewed 

afterward, we don't want you to discuss." 

Then somewhat confusingly, the judge said, in fairness to defendants, he 

would permit the doctor to compare earlier studies and later studies, apparently 

the studies from 2012 and 2015. He explained this would permit defendants to 

pursue their central argument: "[plaintiff] had this accident; whatever injuries 

she has on her spine couldn't have been caused by it, because the other image is 

exactly the same. . . . [T]hat's what I ruled so that those issues could come out 

in fairness." When the jury returned, defense counsel only asked Dr. Robbins

about the studies referenced in his first two reports, displaying for the jury MRIs 

from 2015, and his opinion that plaintiff had not suffered a permanent injury. 

In relatively brief cross-examination, Dr. Robbins acknowledged that 

those 2015 MRI studies were "poorly formatted." Dr. Robbins acknowledged 

those studies showed disc protrusions, but he reiterated his opinion that plaintiff 

had not suffered a permanent injury.

Plaintiff's counsel gave his closing statement after defense counsel. 

Discussing Dr. Robbins's testimony, counsel told the jury:

Guess what. He didn't review the records of Dr. 

Massoud that were generated over six months after [Dr. 

Robbins's] examination of [plaintiff]. So[,] he never 

reviewed the recommendation for surgery by Dr.
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Massoud. He never reviewed the July 2017 MRI of 

[plaintiff's] lumbar spine. He never reviewed the report 

of the cervical or lumbar epidural injection, and yet Dr. 

Robbins is up here selling this case to you on behalf of 

the defendants. He's up here showing you MRI slides 

that he said in his report were of poor quality and not 

properly formatted, and he's selling it to you. 

Counsel continued that Dr. Robbins "didn't review all these other records, and 

he's showing you films that are of poor quality[.]" There was no objection to 

counsel's statements, most of which were blatantly false.

3

In Point I of their brief, defendants present a two-fold argument. First, 

they contend the judge abused his discretion by permitting plaintiff's late 

amendments to interrogatories. That argument lacks sufficient merit to warrant 

extensive discussion. R. 2:11-3(e)(1)(E). We add only the following.

"As it relates to extensions of time for discovery, appellate courts . . . have 

. . . generally applied a deferential standard in reviewing the decisions of trial 

courts." Pomerantz Paper Corp. v. New Cmty. Corp., 207 N.J. 344, 371 (2011) 

(citations omitted). We will intervene only for "an abuse of discretion or a 

judge's misunderstanding or misapplication of the law." Capital Health Sys., 

3

 As noted above in footnote 1, in his third, excluded report, Dr. Robbins 

commented only on the radiology report of the July 2017 MRI and asked to 

review the actual study. The report, however, noted a "serious discrepancy" 

between the radiology report and other findings, including "electrodiagnostic 

testing" performed on plaintiff.
10 A-1641-18T1

Inc. v. Horizon Healthcare Servs., Inc., 230 N.J. 73, 79–80 (2017) (citing 

Pomerantz Paper, 207 N.J. at 371).

Here, plaintiff continued her medical treatment after the close of 

discovery. Although plaintiff's counsel failed to comply with Rule 4:17-7, we 

cannot quarrel with the judge's conclusion that the medical reports in the 

amendatory answers were "not reasonably available or discoverable by the 

exercise of due diligence prior to the discovery end date." Ibid. Further, 

discovery was extended four additional months after the denial of defendants' 

motion to bar the amendments, thereby alleviating any prejudice that otherwise 

could have resulted.

The second aspect of defendants' argument, however, has merit. It was 

certainly within the judge's discretion to bar Dr. Robbins's September 2018 

report. It was served well beyond the close of discovery and only in response 

to plaintiff's in limine motion. See, e.g., Bender v. Adelson, 187 N.J. 411, 428

(2006) (quoting R. 4:17-7; R. 4:24-1(c)) (affirming trial judge's decision to bar 

three defense experts from testifying after first being produced after discovery 

deadline because defendants failed to demonstrate "due diligence" or 

"exceptional circumstances"). However, in barring Dr. Robbins from referring 

in any way to the July 2017 MRI, the two epidural injections, and Dr. Massoud's 
11 A-1641-18T1

report and recommendation for surgery, the judge misapplied applicable law. 

That, in conjunction with plaintiff's counsel's grossly improper summation 

comments, compels reversal.

Plaintiff justified the additional relief of barring any mention of the 

information in her interrogatory amendments by arguing the well-worn cliché

that "[a]n expert's testimony at trial may be confined to the matters of opinion 

contained within the expert's report." Mauro v. Owens-Corning Fiberglas Corp., 

225 N.J. Super. 196, 206 (App. Div. 1988) (citing McCalla v. Harnischfeger 

Corp., 215 N.J. Super. 160, 171 (App. Div. 1987); Maurio v. Mereck Constr. 

Co., 162 N.J. Super. 566, 569 (App. Div. 1978)). In short, since Dr. Robbins 

never referred to the four specific items in his first two reports, and his third, 

late report was properly barred, plaintiff convinced the judge not to permit any 

testimony at all about the medical information furnished in the late amendments. 

However, "in deciding the appropriate sanction for a breach of discovery rules, 

the sanction must be just and reasonable." Ibid. (citing Brown v. Mortimer, 100 

N.J. Super. 395, 401 (App. Div. 1968)).

N.J.R.E. 703 provides: "The facts or data in the particular case upon 

which an expert bases an opinion or inference may be those perceived by or 

made known to the expert at or before the hearing." The rule 
12 A-1641-18T1

mandates that expert opinion be grounded in "facts or 

data derived from (1) the expert's personal 

observations, or (2) evidence admitted at the trial, or (3) 

data relied upon by the expert which is not necessarily 

admissible in evidence but which is the type of data 

normally relied upon by experts." 

[Townsend v. Pierre, 221 N.J. 36, 53 (2015) (emphasis 

added) (quoting Polzo v. County of Essex, 196 N.J. 

569, 583 (2008)).]

 

As a result, "authorization for an expert to base his opinion on what he learns at 

trial can sometimes excuse his failure to submit a report in advance thereof and 

may likewise justify permitting him to testify beyond the four corners of his 

report[,] if he has submitted one." Biunno, Weissbard & Zegas, Current N.J. 

Rules of Evidence, cmt. 6 on N.J.R.E. 703 (2019) (citing State v. Labrutto, 114 

N.J. 187, 205–06 (1989); Amaru v. Stratton, 209 N.J. Super. 1, 11–12 (App. 

Div. 1985)). Writing for our court in Amaru, Judge Michels stated the 

proposition succinctly: "that an expert's testimony exceeds the scope of written 

reports requested in discovery does not automatically bar that testimony from 

trial." 209 N.J. Super. at 12. Viewed differently, had Dr. Robbins been in the 

courtroom while Dr. Carollo's videotaped testimony was admitted in evidence, 

there would be no basis whatsoever to prohibit the doctor from criticizing 

plaintiff's expert's opinions, including the importance he attached to the four 

barred items. 
13 A-1641-18T1

We disagree with the trial judge's conclusion that plaintiff would be

prejudiced if Dr. Robbins were permitted to comment on the four items. The 

content of the doctor's third report demonstrated no departures from the opinions 

and comments in the first two reports. Plaintiff had the sole burden of proof in 

the trial as to whether she suffered a permanent injury in the accident, and, if so, 

what amount of damages would reasonably compensate her for her pain and 

suffering. But, plaintiff had no reasonable expectation that Dr. Carollo's 

opinions, based in part upon a full examination of her medical records, were 

immune from criticism simply because Dr. Robbins never commented about 

some of those records previously in a report.

Perhaps the judge's discovery/evidentiary ruling standing alone might not 

compel reversal, but we consider it in conjunction with plaintiff's counsel's 

improper summation comments. The Court has not hesitated to review such 

comments under the plain error standard. See, e.g., Tartaglia v. UBS 

PaineWebber, Inc., 197 N.J. 81, 128 (2008) (citing Fertile v. Saint Michael's 

Med. Ctr., 169 N.J. 481, 493 (2001)). In this case, in combination with the 

court's ruling, counsel's summation was "clearly capable of producing an unjust 

result[.]" R. 2:10-2. 
14 A-1641-18T1

Obviously, counsel is afforded broad latitude in closing arguments. 

Bender, 187 N.J. at 431. They may not, however, "misstate the evidence nor 

distort the factual picture." Ibid. (quoting Colucci v. Oppenheim, 326 N.J. 

Super. 166, 177 (App. Div. 1999)). Bender provides remarkably similar facts.

As already noted, in Bender, the trial court granted the plaintiff's motion 

to bar as untimely the names and reports of three defense experts. Id. at 419–

20. During summation, the plaintiff's counsel asked the jury to draw an adverse

inference from the defendant's failure to present such independent experts, 

asking the jurors: "[W]here are the outside objective, independent experts . . . 

for the defense?" Id. at 421. The trial court granted the defendant's motion for 

a mistrial, finding that the "cumulative effect" of the plaintiff's counsel's 

summation comments was "clearly capable of producing an unjust result." Id.

at 423. We reversed the trial court's decision, finding that the comments were,

strictly speaking, accurate, and finding it "determinative that defendants created 

this situation by their own delay." Id. at 424.

The Court reversed our judgment and affirmed the trial court's decision, 

finding that the summation comment was "so prejudicial" that it could mislead 

the jury and result in a "'miscarriage of justice,' warranting a new trial." Id. at 

435. The Court found it crucial that the plaintiff's counsel "knew . . . defendants
15 A-1641-18T1

had . . . [experts] who were precluded from testifying for procedural reasons, 

namely plaintiff's own motion[,]" and also "knew that the jury was unaware of 

that procedural bar[.]" Id. at 433. The Court found "the summation comment 

ultimately played on that ignorance and implied an untruth." Ibid.

Here, plaintiff's counsel's summation not only "implied an untruth"; it 

contained statements that were actually untrue. Counsel told the jury Dr. 

Robbins "didn't review the records of Dr. Massoud that were generated over six 

months after [Dr. Robbins's] examination of [plaintiff,]" and "he never reviewed 

the recommendation for surgery[,]" even though Dr. Robbins's barred report 

specifically mentions his review of Dr. Massoud's report and surgical 

recommendation. Counsel told the jury Dr. Robbins "never reviewed the report 

of the cervical or lumbar epidural injection," when he knew that Dr. Robbins's

report, which the judge barred as a result of plaintiff's motion in limine,

specifically discussed the injections. While he truthfully told the jury that Dr. 

Robbins never reviewed the July 2017 MRI, because of plaintiff's motion, the 

jurors never knew that Dr. Robbins had indeed reviewed the radiologist's report 

of that MRI and found a "serious discrepancy" between that and other diagnostic 

test findings.
16 A-1641-18T1

These summation comments, when taken together with the judge's 

erroneous discovery/evidentiary ruling, compel reversal.

II.

For the sake of completeness, we address defendants' other arguments.

Plaintiff testified she was employed as a physician's assistant, and the 

following exchange took place during direct examination:

Q. To become a physician assistant, is there any 

type of educational requirement?

A. Yes, it's a[n] extensive educational requirement 

actually. I actually got accepted to into the 3+3 

program with Rutgers and Kean University, and 

that was a total of about almost [seven] years. . . .

It's very expensive as well.

Q. And what year did you -- you completed that 

program?

A. I did complete that program.

Q. In what year?

A. In 2016, I completed it in May.

Q. Okay. And how did you pay for that?

A. Well, I took out almost -- now after all the 

interest rates, almost $300,000 in loans.

Q. Okay. And you completed the program and 

you're now working, yeah?
17 A-1641-18T1

A. I completed the program, but I -- initially, I was 

not working for long periods of time, and then I

got a job, had to -- actually kind of got fired from 

the job because I couldn't complete the 

requirements at that job, and then I was out of a 

job again while my loans increased with interest 

rates, and then finally I got a little desperate, so I 

moved over a hundred miles away from my 

family just so I could take another job.

There was no objection by defense counsel to any of this testimony.

During deliberations, the jury posed a question: "How long was the 

plaintiff out of work?" Defendants requested "a limiting instruction that there 

is no lost wage claim[.]" The judge answered the jury's question by giving the 

following instruction:

In this case the plaintiff claims for damages consists of

damages for pain, suffering, disability, impairment[,] 

and the loss of enjoyment of life. There are no claims 

for lost wages, past or future loss of earnings, or 

medical expenses. Testimony related to her inability to 

perform at her job or to attain certain educational 

accomplishments, were admitted for your consideration 

on the issue of her claims for pain and suffering, 

disability, impairment[,] and the loss of enjoyment of 

life as I've defined that to you in my charge and as I

discussed in my charge the things for you to consider in 

evaluating a claim for these damages.

Defense counsel said the instruction was "acceptable." In his general charge, 

the judge only provided instructions for consideration of noneconomic damages 

caused by the accident and not for economic damages.
18 A-1641-18T1

In Points II and III of their brief, defendants argue the judge should have 

granted a new trial on damages because of plaintiff's testimony "regarding 

economic damages," or alternatively, the judge should have granted a remittitur 

because the damage award of $400,000 was excessive. 

We review the trial court's decision on a motion for a new trial under the 

same standard governing the trial judge — whether "it clearly and convincingly 

appears that there was a miscarriage of justice under the law." Hayes v. 

Delamotte, 231 N.J. 373, 386 (2018) (quoting R. 4:49-1(a)). "[W]hen evaluating 

the decision to grant or deny a new trial, 'an appellate court must give "due 

deference" to the trial court's "feel of the case."'" Ibid. (quoting Risko v. 

Thompson Muller Auto. Grp., 206 N.J. 506, 522 (2011)). After reviewing the 

record, we find nothing objectionable about plaintiff's testimony, and the court's 

answer to the jury's question adequately focused deliberations upon the limited 

nature of the claimed damages. 

We need not address the issue of the excessiveness of the jury's verdict, 

given our instructions as to the proper scope any retrial. We see no reason to 

retry issues of liability for the accident, since the court's erroneous ruling 

limiting Dr. Robbins's testimony and plaintiff's counsel's improper summation 

comments did not touch on that issue. However, the errors that require reversal
19 A-1641-18T1

affected both the jury's consideration of whether the accident was a proximate 

cause of plaintiff's permanent loss of a bodily function under N.J.S.A. 39:6A8(a), and, if so, the quantum of non-economic damages proximately caused by 

those injuries. If tried again, both of those issues should be considered anew.

Reversed and remanded for a new trial.