SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4996-18

SAMY BOUTROS, individually 

and as administrator ad 

prosequendum of the ESTATE 

OF NADIA ASSAD,

Plaintiff-Appellant/

Cross-Respondent,

v.

CHRISTOPHER S. COOK, 

KRUSE ASSOCIATES, P.C., and

RICK WAGNER, A/E,

Defendants,

and

SMITH-SONDY ASPHALT 

CONSTRUCTION CO., INC.,

NICOLA GENCHI, P.E.,

STRAIGHT EDGE STRIPING,

ROBERT WALSH ASSOCIATES,

LLC, and ROBERT WALSH, P.E.,

Defendants-Respondents/

Cross-Appellants.

_______________________________

NOT FOR PUBLICATION WITHOUT THE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.
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A-4996-18

Argued January 11, 2021 – Decided August 23, 2021

Before Judges Messano, Suter, and Smith.

On appeal from the Superior Court of New Jersey, Law 

Division, Hudson County, Docket No. L-1913-16.

Francis X. Dorrity argued the cause for appellant/crossrespondent (Dorrity Law Office, attorneys; Francis X. 

Dorrity and Tracey A. Dorrity, of counsel and on the 

briefs).

Richard J. Mirra argued the cause for respondent/crossappellants Smith-Sondy Asphalt Construction Co. and 

Nicola Genchi, P.E. (Hoagland, Longo, Moran, Dunst 

& Doukas, LLP, attorneys; Richard J. Mirra, of counsel 

and on the briefs).

William H. Mergner, Jr., argued the cause for 

respondent/cross-appellant Straight Edge Striping 

(Leary, Bride, Mergner & Bongiovanni, PA, attorneys; 

William H. Mergner, Jr., and Catherine McGlone, of 

counsel and on the briefs).

Richard E. Snyder argued the cause for 

respondent/cross-appellants Robert Walsh Associates, 

LLC, and Robert Walsh, P.E. (Braff, Harris, Sukoneck 

& Maloof, attorneys; Elliott Abrutyn and Richard E. 

Snyder, on the briefs).

PER CURIAM

Nadia Assad was struck and killed by a van driven by her co-worker

Christopher Cook as she walked to her car in the employee parking area of the 

Dominick V. Daniels (DVD) Postal Process and Distribution Center in Kearny. 
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A-4996-18

Individually and as his wife's representative, plaintiff Samy Boutros filed a 

negligence action against Cook and other defendants involved in the design, repaving, and striping of the recently renovated employee parking area. 

Plaintiff settled his claim with Cook, and other defendants were dismissed

before trial proceeded against Robert Walsh Associates, LLC, and Robert E. 

Walsh individually (Walsh); Smith-Sondy Asphalt Construction Company and 

its engineer, Nicola Genchi; and Straight Edge Striping (Straight Edge)

(collectively, defendants). The judge directed verdicts at the close of plaintiff's 

case in favor of all defendants except Walsh. The jury unanimously found 

Walsh was not negligent, and the judge denied plaintiff's motion for a new trial 

as to all defendants.

On appeal, plaintiff argues he is entitled to a new trial based on erroneous 

rulings made by the judge, and because the court's "animosity towards

plaintiff['s] counsel coupled with its erroneous adverse rulings aggregated to 

make the trial unfair." Additionally, all defendants filed cross-appeals 

challenging evidential rulings by the judge and denial of their pretrial motions 

for summary judgment and various in limine motions; Walsh also cross-appeals 

from the denial of his motion for a directed verdict at the end of plaintiff's case.
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We have considered the arguments in light of the record and applicable 

legal standards. We affirm on plaintiff's appeal and dismiss the cross-appeals 

as moot.

I.

"A jury verdict is entitled to considerable deference and 'should not be 

overthrown except upon the basis of a carefully reasoned and factually 

supported (and articulated) determination, after canvassing the record and 

weighing the evidence, that the continued viability of the judgment would 

constitute a manifest denial of justice.'" Hayes v. Delamotte, 231 N.J. 373, 385–

86 (2018) (quoting Risko v. Thompson Muller Auto. Grp., Inc., 206 N.J. 506, 

521 (2011)). "A trial court therefore grants a motion for a new trial only 'if, 

having given due regard to the opportunity of the jury to pass upon the 

credibility of the witnesses, it clearly and convincingly appears that there was a 

miscarriage of justice under the law.'" Id. at 386 (quoting Crawn v. Campo, 136 

N.J. 494, 511–12 (1994) (quoting R. 4:49-1(a))). We apply the same standard 

on appeal. Risko, 206 N.J. at 522. However, "when 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."'" Hayes, 231 N.J. at 386 (quoting Risko, 206 N.J. 

at 522).
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Although an appellate court has a duty to canvass the 

record to determine whether a jury verdict was 

incorrect, that verdict should be considered 

"impregnable unless so distorted and wrong, in the 

objective and articulated view of a judge, as to manifest 

with utmost certainty a plain miscarriage of justice."

[Kassick v. Milwaukee Elec. Tool Corp., 120 N.J. 130, 

135 (1990) (quoting Carrino v. Novotny, 78 N.J. 355, 

360 (1979)).]

"That is not to say, however, that we must accept the trial court's legal reasoning: 

'[a] trial court's interpretation of the law and the legal consequences that flow 

from established facts are not entitled to any special deference.'" Hayes, 231 

N.J. at 386–87 (alteration in original) (quoting Manalapan Realty, LP v. Twp. 

Comm. of Manalapan, 140 N.J. 366, 378 (1995)).

Because plaintiff's new trial motion was predicated on alleged trial errors, 

we set forth the standards of review guiding our consideration of those issues. 

In selecting a jury, a trial court must see to it that the jury chosen is impartial,

because "[t]he right to a fair and impartial jury is . . . 'fundamental'" to a fair 

trial. Pellicer v. St. Barnabas Hosp., 200 N.J. 22, 40 (2009) (quoting Wright v. 

Bernstein, 23 N.J. 284, 294 (1957)). "We have long relied on our trial court 

judges to ensure that the selection of jurors is conducted in a manner that will 

effectuate these rights[,]" recognizing when we conduct our review that the trial 

judge "is vested with discretion." Id. at 40–41.
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"In reviewing a trial court's evidential ruling, an appellate court is limited 

to examining the decision for abuse of discretion." Hisenaj v. Kuehner, 194 N.J. 

6, 12 (2008). A new trial is not warranted unless the trial court's evidentiary 

ruling was "so 'wide of the mark' as to constitute 'a manifest denial of justice' 

and an abuse of discretion." Id. at 25 (first quoting State v. Wakefield, 190 N.J. 

397, 435 (2007)); and then quoting Verdicchio v. Ricca, 179 N.J. 1, 34 (2004)). 

We apply a similar discretionary standard of review of the trial court's decisions 

regarding the admissibility of expert testimony. See, e.g., Townsend v. Pierre, 

221 N.J. 36, 52 (2015) ("The admission or exclusion of expert testimony is 

committed to the sound discretion of the trial court." (citing State v. Berry, 140 

N.J. 280, 293 (1995)).

With respect to plaintiff's allegations of the trial judge's "animosity" 

toward counsel and the judge's overall conduct of the proceedings, we have 

made clear that 

[a] judge must "conduct [a] trial in a fair and impartial 

manner, without making remarks that might prejudice a 

party or which are calculated to influence the minds of 

the jury." A judge should never unfairly criticize or 

humiliate counsel, especially in front of the jury. A 

judge's failure to abide by these guidelines "can easily 

prejudice a jury since it conveys the opinion of the 

judge as to his [or her] belief or disbelief in one side of 

the case." Nevertheless, a trial court has wide 

discretion in controlling the courtroom and the court 
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proceedings. Alleged misconduct by a trial judge must 

be reviewed within the context of the entire record in 

order to determine whether it had prejudicial impact. 

[D.G. ex rel. J.G. v. N. Plainfield Bd. of Educ., 400 N.J. 

Super. 1, 25–26 (App. Div. 2008) (alterations in 

original) (emphasis added) (citations omitted).]

With these standards in mind, we first review the evidence adduced at trial.

II.

Ms. Assad was walking to her car in the employee parking area at the 

DVD shortly before six o'clock on the morning of March 22, 2016, when Cook 

struck her with his van. Police responded quickly, and, while she was alive

immediately after being struck, Ms. Assad expired hours later from a fractured 

skull. 

Cook was arriving at work for the 7:00 a.m. shift; he had worked at the 

DVD for 26 years and used the 800-car employee parking area daily. Cook was 

looking for an available parking spot, as close to the entrance of the DVD as 

possible. He testified that the lighting at the time "wasn't the greatest" and a lot 

of people were in the parking lot as shifts were changing. Cook came to the end 

of an aisle of parking spaces, referred to as Aisle 4, intending to make a left turn 

and proceed to park in the next aisle to the left, Aisle 3. Instead of proceeding 

out fully into Aisle A, part of a two-way circulation or collector roadway, and 
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A-4996-18

then down Aisle 3, without stopping Cook abruptly turned to his left — in 

vernacular, "cutting the corner" — and struck Ms. Assad, who was crossing in 

front of Cook's van. A security camera captured the accident as it occurred, 

and the video recording was played for the jury.

Plaintiff's theory of liability against defendants centered on the design, repaving and striping of the employee parking lot that began in 2014; the project 

was completed in the area of the accident in late 2015, several months before 

the accident. The United States Postal Service (USPS) hired Walsh as the design 

engineer for the project, and he prepared a series of plans for Smith-Sondy, 

which the USPS hired as general contractor for the project. Smith-Sondy 

subcontracted the task of striping the parking lot to Straight Edge.

All defendants moved for summary judgment before trial. A judge, who 

was not the trial judge, denied those motions. His oral decision indicated that 

for summary judgment purposes he rejected defendants' arguments regarding the 

inadequacy of the opinions rendered by plaintiff's experts, or that any failure to 

provide certain markings, striping or signage could not have proximately caused 

the accident.1 

1

 The judge entered three orders, one for each defendant. Although denying 

Smith-Sondy's motion, the order indicated the judge granted summary judgment 
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Louis A. DiGeronimo, an architect, testified as plaintiff's expert in the 

safe design of a parking lot. He explained that a DVD employee leaving the 

building would first use a striped crosswalk to cross a road used by USPS trucks 

and continue down a pedestrian path over a bridge before entering the employee 

parking lot. DiGeronimo testified that after leaving the DVD building, Ms. 

Assad took this route and then walked across Aisle A before Cook's van struck 

her as it made a left turn at the end of Aisle 4. DiGeronimo explained that while 

the original parking lot had diagonal parking, accessible from one-way traffic 

lanes, the new design by Walsh had perpendicular parking accessible from aisles

with two-way traffic.

DiGeronimo criticized the lack of marked pedestrian crosswalks in the 

parking lot "to visually guide the pedestrian and alert . . . the vehicle traffic that 

this was a pedestrian area." In addition, he noted that there were no markings 

for pedestrians in Aisle A, and the road did not have a center dividing line 

indicating two-way traffic. 

DiGeronimo concluded that Walsh breached his duty of care because the 

design plan "failed to comply with pedestrian safety standards" in the USPS

to Genchi individually, but that he "remain[ed] a defendant in his capacity as a 

professional." 
10 A-4996-18

project design guidelines. In addition, Walsh failed to provide adequate 

pedestrian safety measures to warn postal employees that a new parking lot 

design had "radically changed . . . the preexisting traffic pattern." Finally, 

DiGeronimo opined that Walsh failed to inspect the completed work to ensure 

his design for striping and road markings in the revised drawings had been fully

implemented.

Michael Scarano testified for plaintiff as an engineering expert. 

According to Scarano, when designing the reconstruction of an employee 

parking lot with a large amount of foot traffic, a design engineer must consider 

the safety of both pedestrians and drivers. In addition, Walsh's contract with the 

USPS required that he take all proper precautions to protect the safety of postal 

service employees.

Scarano testified that there were no "visual cues," such as a stop sign at 

the end of the parking aisle, as he had seen "in similar circumstances on many 

other . . . pedestrian crossing[s]" whenever there was a new traffic pattern. 

These cues included a clearly delineated pedestrian crosswalk and broken 

yellow lines in a collector roadway, such as Aisle A, indicating two-way traffic. 

Even though the collector roadway in the employee parking lot at the DVD, i.e., 

the predecessor to Aisle A, always handled two-way traffic, Scarano concluded 
11 A-4996-18

that Walsh's design "greatly increased the risk to pedestrians . . . when 

compar[ed . . . to] the prior condition." Probably the most significant change, 

according to Scarano, was that 

[y]ou [previously] had one-way aisles in the vicinity of 

the accident and they were changed to two-way aisles. 

Which now doubles the risk of any individual standing 

at any location within those aisles. You basically now 

have traffic coming from two directions instead of one.

Combined with that, for someone who would 

have been used to the parking lot as it was before and 

now coming into the parking lot with all these two-way 

aisles, this presents a significantly increased risk as a 

pedestrian must now face the risk of vehicular traffic 

from both directions.

Of course, Cook's van did not strike Ms. Assad in a parking aisle, but rather 

before she entered an aisle.

Scarano added the lack of stop signs and lettering, no pedestrian 

crosswalks, and no signs indicating there was a new traffic pattern "[we]re all 

contrary to sound design engineering principles for a facility" of DVD's size. 

Scarano opined that due to the lack of "sufficient arrows and traffic directory 

signage, the risk of error and confusion [wa]s significantly increased" 

everywhere in the lot.

Lee D. Klein testified for plaintiff as an expert in traffic engineering. Prior 

to reconstruction, the parking lot had angled parking spaces and one-way drive 
12 A-4996-18

aisles with directional arrows; any two-way traffic was noted by a yellow center 

line. With the new design, once a pedestrian entered the main parking area and 

aisles, there was no identified path, and no pedestrian crosswalk in the area 

where the accident occurred. There was no marking on Aisle A indicating twoway traffic. In Klein's opinion, due to the volume of traffic and the angle of 

intersection between the aisles and the circulation road, "it would be 

recommended to provide visual cues for a driver . . . to direct them to stay to the 

right of the double yellow line" in Aisle A. He added that "[n]ot only do 

crosswalks provide visual cues for . . . pedestrians, but [they] also provide[]

visual cues for . . . driver[s] to realize that this is a place where pedestrians could 

be cross[ing.]"

According to Klein, the three basic failures of the parking lot design were 

the lack of pedestrian crosswalk striping, the lack of center yellow striping, and 

a lack of two-way directional arrows. This created an unsafe and hazardous 

condition in the parking lot due to a lack of visual cues for both drivers and 

pedestrians.

Plaintiff's evidence included other witnesses, as well as short deposition 

readings from Walsh, Barry Huston, Smith-Sondy's manager for the DVD 

repaving project, and Andrew Altobelli, the owner of Straight Edge. As noted, 
13 A-4996-18

the judge granted motions for directed verdicts as to the latter two defendants; 

he denied a motion made by Walsh. 

Huston testified live as a defense witness. He described changes that were 

made to some of the initial plans drawn by Walsh during conferences with the 

general manager of the DVD. Huston documented some of these in his work 

logs.

Walsh testified that he had designed hundreds of parking lots in his thirtyfive-year professional career. He submitted a proposed design for the 

reconstruction of the DVD lot in December 2014 with perpendicular parking on 

both sides of two-way traffic aisles. The plan's notes reflected that "final 

proposed striping layout shall be approved by [the USPS] prior to proceeding 

with the work." The USPS finally approved the final striping plan in August 

2015, and that was reflected on a revised site plan Walsh identified at trial. 

Walsh said the traffic aisles contained stop bars painted on the ground 

rather than stop signs because the entire lot was paved and had no landscaping 

on a raised island where a sign could have been erected. Paving the entire lot 

was done to make snow removal easier, and the USPS design criteria did not 

require stop signs, crosswalks or center lines in traffic aisles. As a result of the 

project meetings and feedback, Walsh revised his drawings again. The 
14 A-4996-18

circulation roadway, which included Aisle A, was made wider for easier turning 

as vehicles exited the parking aisles. All striping was completed by the end of 

September 2015.

James Peter Quinn, a professional engineer, testified as an expert for 

Walsh. He opined that the repaved, restriped lot was safer than the previous 

parking lot. Quinn also testified that design standards did not require a marked 

crosswalk for pedestrians, or a painted center line in the circulating roadway or 

parking aisles, nor was there any need for additional signage.

The jury returned a unanimous no cause verdict after deliberating for 

approximately three hours, some of which was consumed by arranging for the 

jurors to view again the surveillance video footage.

III.

We address the alleged trial errors that plaintiff claims "clearly and 

convincingly" demonstrate the directed verdicts and the jury's no cause verdict 

as to Walsh were "miscarriage[s] of justice under the law." R. 4:49-1(a). 

Jury Voir Dire

In his preliminary instructions to the jury venire, the judge explained how 

plaintiff had settled his claim against Cook, who was no longer a defendant at 

trial. Twice, he told prospective jurors, "plaintiff claimed that . . . Cook was the
15 A-4996-18

cause of the accident." (emphasis added). There was no objection from 

plaintiff's counsel. The next day, when a new venire panel arrived, the judge 

more appropriately said, "plaintiff claimed . . . Cook was one of the causes of 

the accident but before the trial, Mr. Cook settled with the plaintiff." (emphasis 

added). It does not appear that plaintiff raised this as an issue when he moved 

for a new trial, but, in any event, he now claims the judge implied that only 

Cook, and not the remaining defendants, could be liable. The argument lacks 

sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).

Over defendants' objection, the judge agreed to permit the admission of 

two autopsy photos at trial, even though the cause of Ms. Assad's death was not 

disputed. Over plaintiff's objection, the judge said he would show them to 

prospective jurors to "make sure, based upon their review, they still can be fair 

and reasonable and unbiased and make a decision without sympathy, passion, or 

prejudice." He then told the panel:

As part of this trial, we're going to show you some not 

very pleasant photographs. . . . For lack of a better 

description. They are not pleasant. We're going to 

show you photographs and we are going to ask you 

point-blank whether you can decide this case based 

upon the facts and the evidence and put aside any 

sympathy you may have for the plaintiff that you 

develop as a result of seeing these pictures. That's why 

we ask you that question.
16 A-4996-18

When I call you up and show you the pictures, 

that's what I will ask you. I will say: Can you judge 

this case fairly and impartially without sympathy in 

light of these pictures?

As he did when he moved for a new trial, plaintiff claims this implied he 

intended to play to jurors' sympathy. In denying the new trial motion, the judge 

noted it was plaintiff who sought to admit the photos, and the procedure he used 

was effective, because he excused some jurors who said they were unable to 

judge the case fairly after seeing the autopsy photos. This argument also 

requires no further discussion. R. 2:11-3(e)(1)(E).

In Limine Rulings on Plaintiff's Experts

Plaintiff argues the trial court erred, both procedurally and substantively, 

by precluding or restricting his experts' testimony. Specifically, he asserts the 

judge erred in limiting the experts' ability to testify regarding proximate cause, 

and in barring entirely the testimony of William Gulya, the principal of an 

excavation and construction firm, who the judge ruled was not qualified to 

testify as an expert on any relevant issue. Plaintiff contends these rulings 

prevented him from establishing a prima facie negligence case against SmithSondy and Straight Edge.

Prior to the start of trial, defendants filed in limine motions challenging 

the admissibility of all plaintiff's experts' opinions as net opinions. The judge 
17 A-4996-18

partially granted the motions as to DiGeronimo, Scarano and Klein, ruling only 

that they could not testify as to proximate cause regarding the actual accident. 

He explained: 

They can't offer an opinion that they would have 

followed the line or would have followed the crosswalk 

. . . . It's not within the purview of their expertise. 

However, they can give an opinion about why parking 

. . . lots are stripped [sic]. . . .

The same thing with the crosswalk. . . . [Y]ou 

can't say for certain that every individual who walks 

across the street is going to stay within the parameters 

of those four lines, the rectangle, the crosses. However, 

you can say this is a general guide to the public as to 

where they should cross safely. And it's also notice to 

the driver . . . [to] be wary of pedestrians walking in 

that crosswalk. So they can't say the person wouldn't 

have made the turn or they can't say the person would 

have used the crosswalk. But they can say the basic 

function of stripping [sic] is to try to mold or guide 

people to operate safely and walk safely through 

parking lots and that the guidance wasn't there and as 

the result of a lack of guidance, the person wasn't 

guided to drive carefully or wasn’t guided to cross the 

street carefully. . . . So that's the limit of their 

proximate cause. So Klein, Scarano, DiGeronimo may 

all testify within these parameters.

The issue arose again briefly during trial, when the judge ruled that 

DiGeronimo could not testify as to causation, noting the expert said in his 

deposition that causation was not within the scope of his opinion. The judge 

again explained, "[A]ll the experts . . . c[an] testify as to why, based upon 
18 A-4996-18

engineering principles, stripes are put on the ground. That's their job. But they 

can't say what Mr. Cook's behavior would or would not have been had the stripes 

been there."

The judge also granted defendants' in limine motion as to Gulya, 

concluding he was not qualified to testify as an expert because he lacked any

special knowledge, education, skill, experience, or 

training. He is not an architect. He is not an engineer. 

His expert[ise] [sic] appears to be related to 

construction sites and construction projects, be it 

OSHA2compliance or performance of the contract as 

per the plans, but he is involved with construction sites. 

This is not a construction site. . . . Construction wasn't 

[sic] done. The theory of liability is the stripping [sic] 

or lack of stripping [sic] and he has no expertise in that 

area.

We don't need . . . his expertise to testify that the 

plans had an arrow and the arrow wasn't drawn. It's not 

needed. His special knowledge or skill doesn't assist 

the jury in their fact-finding duties, so I am striking him 

as an expert for that reason.

Plaintiff renewed his request for Gulya to testify during trial, citing the 

prejudice occasioned "by the absence of . . . testimony from a . . . contracting 

expert." Specifically, at that point, plaintiff wanted Gulya to testify regarding 

2

 Occupational Safety And Health Act, 29 U.S.C. §§ 651 to 678. 
19 A-4996-18

the contractor defendants' failure to photograph the preexisting condition of the 

parking lot.

3

 The judge denied the request.

Plaintiff cited the exclusion of Gulya as a witness when he moved for a 

new trial. The judge noted that Gulya's opinions were based primarily on OSHA 

standards, "which w[ere] in no way applicable to the case, because the accident 

did not occur on a construction site. Gulya was not an accident reconstruction 

expert, nor was he a human factors expert or engineer." In denying plaintiff's 

motion for a new trial, as to plaintiff's other experts, the judge wrote that their 

testimony

only established that the [d]efendant "stripers" (SmithSondy and Straight Edge Striping) failed to paint 

arrows on the new asphalt at a location [that was] in no 

way related to the occurrence of . . . Cook's car striking 

[p]laintiff.4 There was no miscarriage of justice. The 

3

 Plaintiff sought to imply that defendants failed to follow Walsh's plans, which 

indicated in notes that the existing striping should be photographed and, unless 

modified by the USPS, the repaved lot should be similarly striped. Prior to the 

repaving project, the lot had a center line denoting two-way traffic in the 

circulating road, including Aisle A. However, as defendants repeatedly pointed 

out, the note made little sense because the original plan from Walsh retained the 

"herringbone" parking pattern in one-way parking aisles; the new plan adopted 

two-way traffic parking aisles with perpendicular parking spots. Thus, a prerepaving photograph showing the then-existing striping would have been 

irrelevant.

 

4

 This was a reference to plaintiff's claim that directional arrows in Aisle A 

demonstrating two-way traffic were supposed to be painted according to Walsh's 
20 A-4996-18

[d]efendant "stripers" were contractually obligated to 

paint lines and arrows on new asphalt per the plans 

prepared by [Walsh]. Subsequent to completion of 

their contractual obligation to "paint," they had no duty 

to abate hazardous conditions allegedly created by a 

design deficiency in the plans.

Plaintiff initially argues that the trial judge erred in excluding and limiting 

the expert testimony by way of an in limine motion after the motion judge had 

earlier denied defendants' summary judgment motions on similar grounds. 

However, "an order denying summary judgment is not subject to the law of the 

case doctrine because it decides nothing and merely reserves issues for future 

disposition." Gonzalez v. Ideal Tile Importing Co., 371 N.J. Super. 349, 356 

(App. Div. 2004), aff'd on other grounds, 184 N.J. 415 (2005); see Blunt v. 

Klapproth, 309 N.J. Super. 493, 504 (App. Div. 1998) ("Denial of summary 

judgment preserves rather than resolves issues; therefore, later reconsideration 

of matters implicated in the motion, including the reasons in support of the 

denial, are not precluded." (citing A & P Sheet Metal Co. v. Edward Hansen, 

Inc., 140 N.J. Super. 566, 573–74 (Law Div. 1976))).

plans, but were not. However, in granting a directed verdict as to Smith-Sondy 

and Straight Edge, the judge noted that the area where the arrows were to be 

painted according to Walsh's plans was some distance away from where the 

accident occurred. In other words, the absence of arrows could not have been a 

proximate cause of the accident. 
21 A-4996-18

While plaintiff correctly notes that courts generally disfavor in limine 

rulings on evidence questions, particularly where the motion seeks the exclusion 

of expert testimony, a trial judge retains the discretion, in appropriate cases, to 

rule on the admissibility of evidence pretrial. Seoung Ouk Cho v. Trinitas Reg'l 

Med. Ctr., 443 N.J. Super. 461, 470–71 (App. Div. 2015). In Cho, we concluded 

that the grant of the defendant's in limine motion brought the day before jury 

selection was the equivalent of an untimely summary judgment motion. Id. at 

471–72. Here, however, except for Gulya, the trial judge did not exclude 

plaintiff's experts from testifying. He limited their opinions on proximate cause

as to the happening of this accident.

5

 

Before turning to the merits of the judge's decision to limit the expert

testimony, at the hearing on the in limine motion, the judge observed that 

"plaintiff has offered no substantive opposition to the motions in limine relative 

5

 To the extent plaintiff contends the judge should have conducted a Rule 104 

hearing before ruling on the in limine motions, we note plaintiff never requested 

such a hearing. We need not consider the argument. Nieder v. Royal Indem. 

Ins. Co., 62 N.J. 229, 234 (1973). In any event, plaintiff's experts were all 

subject to deposition and the trial judge had all the available discovery, thereby 

obviating the need for a hearing. See Fairfax Fin. Holdings Ltd. v. S.A.C. Cap. 

Mgmt., LLC, 450 N.J. Super. 1, 100 n.50 (App. Div. 2017) (finding no error in 

the failure to conduct a Rule 104 hearing because the expert was examined at a 

deposition and that deposition testimony was available to and considered by the 

trial court at the time of its ruling).

 
22 A-4996-18

to the experts and would procedurally argue that these motions are dispositive 

and therefore bought as late summary judgment motions. That's it right?" 

Plaintiff's counsel answered affirmatively. In other words, plaintiff only 

opposed consideration of defendants' motion by arguing that Cho precluded 

consideration. He did not argue the merits of defendants' request.

Turning to the substance of plaintiff's arguments, "[t]he issue of causation 

is ordinarily left to the factfinder." Townsend, 221 N.J. at 59 (citing Fleuhr v. 

City of Cape May, 159 N.J. 532, 543 (1999)). Undoubtedly, there may be 

instances where the issue of proximate cause is complex and requires special 

expertise. In such circumstances, expert testimony is not only helpful for the 

jury but also required. See, e.g., Quail v. Shop-Rite Supermarkets, Inc., 455 

N.J. Super. 118, 135 (App. Div. 2018) (explaining that expert testimony was 

necessary to explain "the chain of proximate cause" between an accident in the 

defendant's store and the plaintiff's wife's death five days later). This was not 

such a case. The judge permitted the testifying experts to explain fully why the 

lot design and its absence of markings made for an unsafe condition; the only 

thing he forbade was allowing plaintiff's experts to say those conditions 

proximately caused this particular accident. 
23 A-4996-18

Plaintiff was not at all prejudiced by that limitation. The jury saw a video 

recording of the accident and could easily relate its occurrence to the alleged 

breaches in design. The expert testimony that was admitted at trial using the 

plans as exhibits implicitly established plaintiff's claim, and the jury did not 

need an expert to explain it. Moreover, plaintiff's inability to prove a prima 

facie case against Smith-Sondy and Straight Edge had nothing to do with the 

limit the judge placed on the experts' testimony. 

That leaves consideration of the judge's decision to exclude Gulya's 

testimony. To the extent the judge concluded Gulya lacked the requisite 

expertise, we disagree. Although he may have lacked professional training, 

Gulya's years of experience qualified him to opine about appropriate procedures 

at construction sites and the duties of general and subcontractors. See N.J.R.E. 

702 (noting expert may be qualified based on "experience"). However, we agree 

the exclusion of Gulya as a witness was appropriate for another reason. See

Hayes, 231 N.J. at 387 (noting "it is well-settled that appeals are taken from 

orders and judgments and not from opinions, oral decisions, informal written 

decisions, or reasons given for the ultimate conclusion." (quoting Do-Wop Corp. 

v. City of Rahway, 168 N.J. 191, 199 (2001))). 
24 A-4996-18

Gulya's was president of a trenching company that did excavation and 

construction site preparation. In his report, Gulya stated that Smith-Sondy failed 

to install "temporary warning signage such as slow[,] construction ahead" near 

the area "where the work was incomplete." Gulya concluded in his report that 

Smith-Sondy had "adequate and available resources to remedy and abate the 

hazardous safety conditions that were obvious prior to and on the day of the . . .

accident." The absence of striping created a "clearly recognizable known 

dangerous condition to exist." He opined that Straight Edge failed to install 

directional arrows in Aisle A, as indicated on Walsh's plans, and that SmithSondy failed to inspect the striping for conformance with the design plan. 

In main support of these conclusions, Gulya's report cited the OSHA 

regulations and manual that dealt with rules at construction sites. He cited 

contractual provisions between the USPS and Smith-Sondy that imposed safety 

at the worksite on the general contractor and sub-contractors. However, as the 

judge noted, the portion of the parking lot where the accident occurred was 

completed months earlier. There was no ongoing construction. 

Moreover, Gulya's opinions largely criticized the same design flaws that 

plaintiff's other experts addressed. During his deposition, for example, Gulya 

cited the lack of striped pedestrian walkways, "one-way signs," and double 
25 A-4996-18

yellow lines for two-way traffic as violations of industry safety standards. There

was no underlying support for Gulya's claim that the contractors nevertheless 

had independent duties to correct any unsafe condition after the work was 

complete. While we disagree with the trial judge's rationale in barring Gulya 

from testifying, we affirm his decision. 

Most importantly, the absence of Gulya's testimony did not prejudice 

plaintiff because even had Gulya testified in accordance with his report, the 

judge would have still properly granted directed verdicts in favor of SmithSondy and Straight Edge. At his deposition, Gulya's main criticism of the two 

contractors was their failure to paint directional arrows in Aisle A as indicated 

by Walsh's plan. The absence of directional arrows in Aisle A as shown on the 

plans could not have been a proximate cause of this accident. The trial judge's 

order barring Gulya as a witness did not lead to an unjust result. R. 2:10-2.

Other Trial Rulings

It is not clear that plaintiff raised these issues in support of his new trial 

motion, but we address them, nonetheless.

Defense counsel objected when plaintiff's counsel asked a police witness 

if he had observed pavement markings in another lot at the DVD used

exclusively by the USPS trucks. The judge sustained the objection, although he 
26 A-4996-18

permitted counsel to have the officer explain the path Ms. Assad traveled

through the truck lot to reach the employee parking lot.

Plaintiff argues this was reversible error, because there was a marked

pedestrian crosswalk in the truck lot, but not in the employee lot, thereby 

demonstrating a design flaw. We disagree. The sole issue was the condition of 

the employee parking lot where the accident occurred. More importantly, 

plaintiff's experts repeatedly opined that the employee lot should have had a 

marked pedestrian walkway, and during his testimony, Walsh acknowledged 

that the striping in the truck lot preexisted the repaving of the employee lot and 

was necessary because employees at that point traversed tractor-trailer traffic. 

In other words, the jury was fully aware that the truck lot had a striped pedestrian 

walkway and the employee lot did not.

Plaintiff contends the judge prejudicially limited his attorney's use of 

leading questions during Cook's direct examination. Plaintiff does not dispute 

that the questions were grossly leading, but rather he relies on N.J.R.E. 611(c), 

which provides:

Leading questions should not be used on direct 

examination except as necessary to develop the witness' 

testimony. Ordinarily, leading questions should be 

permitted on cross-examination. When a party calls an 

adverse party or a witness identified with an adverse 

party, or when a witness demonstrates hostility or 
27 A-4996-18

unresponsiveness, interrogation may be by leading 

questions, subject to the discretion of the court.

According to plaintiff, even though he settled with Cook before trial, the leading 

questions were appropriate because Cook was "an adverse party." 

"'[C]ontrol[ling] and manag[ing] the introduction of testimony' is within 

the discretion of the trial court, and '[its] decision . . . [is] conclusive unless 

clearly erroneous as a matter of law.'" Capparelli v. Lopatin, 459 N.J. Super. 

584, 609–10 (App. Div. 2019) (alterations in original) (first quoting Hall v. St. 

Joseph's Hosp., 343 N.J. Super. 88, 107 (App. Div. 2001); and then quoting 

Bosze v. Metro. Life Ins. Co., 1 N.J. 5, 10 (1948)). We need not get into the 

technicalities of the evidence rule. The reality of the situation was that Cook 

did not display any adversity during his testimony, and, while he could not recall 

many things, he never demonstrated "hostility or unresponsiveness." N.J.R.E. 

611(c). 

Plaintiff also fails to assert how he was prejudiced by any limitation 

imposed by the judge. In fact, Cook described the very poor lighting in the 

parking lot, the significant number of pedestrians exiting the DVD and entering 

the parking lot, and that complaints about the situation had been brought to the 

USPS's attention. 
28 A-4996-18

Use of the Surveillance Video

Plaintiff argues that he is entitled to a new trial because the judge abused 

his discretion by not permitting him to play the surveillance video during direct 

examination of his experts. We disagree.

The issue first arose during DiGeronimo's direct testimony, when plaintiff 

sought to play the video and have DiGeronimo comment on it. Defendants 

objected, and the judge ruled that because DiGeronimo said at his deposition 

that the video "played no role in the function he performed as an expert 

reviewing the design plans of the parking lot," he could not refer to it in front of 

the jury. The judge added: "[H]e didn't use the video in his analysis and ultimate 

opinion. That's what he's saying. He's saying the plans are bad . . . . He's saying 

the video didn't help me form my opinion that the plans were bad." Plaintiff 

also sought to ask Klein about the video, but the court sustained defendants' 

objection because Klein also said at his deposition that he did not rely on the 

video in formulating his opinion.

In denying plaintiff's motion for a new trial as to testimony regarding the 

video, the judge reiterated that he correctly precluded plaintiff's experts from 

reviewing it before the jury because they did not reference it in their reports. 

The judge noted that "DiGeronimo even testified that his responsibility was not 
29 A-4996-18

to review the video of the accident. Rather . . . to[] 'look at the design . . . as to 

whether [the expert] performed in accordance with the standard of care.'"

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 proceeding." The rule 

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, 221 N.J. at 53 (emphasis added) (quoting 

Polzo v. Cnty. 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 (2021) (first citing State v. Labrutto, 

114 N.J. 187, 205–06 (1989); and then citing 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 
30 A-4996-18

testimony from trial." 209 N.J. Super. 1, 12 (App. Div. 1985). Whether 

testimony exceeding the scope of an expert's report should be admitted at trial 

is left to the sound discretion of the trial court. Conrad v. Robbi, 341 N.J. Super. 

424, 441 (App. Div. 2001) (citing Ratner v. Gen. Motors Corp., 241 N.J. Super. 

197, 202 (App. Div. 1990)); Nicholl v. Reagan, 208 N.J. Super. 644, 652 (App. 

Div. 1986). 

Plaintiff does not dispute that the experts never reviewed the video in 

preparing their reports; however, the video was in evidence at trial, and we see 

no prohibition in allowing an expert witness to view it simply because it was not 

cited in a report furnished in discovery or referenced during deposition. The 

issue, however, is whether the experts would have offered proper testimony 

while the video played. Pursuant to N.J.R.E. 702, "[e]xpert testimony is not 

necessary to tell the jury the 'obvious' or to resolve issues that the jury can figure 

out on its own." State v. Simms, 224 N.J. 393, 403 (2016) (quoting State v. 

Nesbitt, 185 N.J. 504, 514 (2006)). "In other words, '[e]xpert testimony should 

be limited to areas that are beyond the understanding of the jury.'" Ibid.

(alteration in original) (quoting State v. Sowell, 213 N.J. 89, 102 (2013)).

There was no dispute as to how the accident occurred in this case. If 

plaintiff intended to have the experts explain what was obvious from the video, 
31 A-4996-18

the testimony would have been improper. More importantly, the experts fully 

explained their opinions for the jury, using Walsh's plans to demonstrate where 

the shortcomings were and where the accident occurred. The jury saw the video, 

and it could readily relate what was shown there to the experts' opinions. Even 

if the judge mistakenly exercised his discretion in prohibiting any questioning 

of the experts regarding the video, that error was harmless and was not a basis 

for a new trial.

The Jury Charge

At the charge conference, Walsh objected to the judge charging the jury it 

could determine the requisite standard of care based on its common knowledge 

and experience. See Model Jury Charge (Civil) 5.52(C), "Professional Liability 

of an Architect/Engineer, Common Knowledge May Furnish Standard of Care" 

(approved Nov. 1995). Plaintiff objected, claiming it was common knowledge 

that a pedestrian walkway should be marked. The judge rejected that view: 

"[S]triping on parking lots is not common knowledge to common lay-people. 

So, they don't know whether or not a standard has been violated." The judge 

charged the jury in accordance with subsection B of the model charge which 

discusses the need for expert testimony to prove the appropriate standard of care. 

In denying plaintiff's new trial motion as to the jury charge, the judge wrote:
32 A-4996-18

Jury Charge 5.52[B] has been used in actions for 

personal injury against architects or engineers. There 

was a charge conference prior to jury instructions 

where [p]laintiff was put on notice [that] this charge 

would be given. There was no objection by [p]laintiff. 

The charge was appropriate under the facts of the case.

Plaintiff argues that his motion for a new trial should have been granted 

because the court erred by not charging the jury that the standard of care for 

professional liability could be established by the jurors' own common 

knowledge. We disagree.

"In the exceptionally rare cases in which the common knowledge 

exception applies, . . . an expert is not needed to demonstrate that a defendant 

professional breached some duty of care 'where the carelessness of the defendant 

is readily apparent to anyone of average intelligence.'" Cowley v. Virtua Health 

Sys., 242 N.J. 1, 17 (2020) (quoting Rosenberg v. Cahill, 99 N.J. 318, 325 

(1985)). The Model Charge anticipates that, in certain cases, it may be 

appropriate to charge the jury with both subsection B and C. The accompanying 

note to the judge states:

Where there has been expert architectural 

testimony as to the standard of care but the standard is 

one which can also be determined by the jury from its 

common knowledge and experience, the jury should 

determine the standard of care after considering all the 

evidence in the case, including the expert architectural 
33 A-4996-18

testimony, as well as its own common knowledge and 

experience.

[Model Jury Charges (Civil), 5.52, "Professional 

Liability of an Architect/Engineer" (approved Nov. 

1995).]

In this case, the issue involved whether a pedestrian crosswalk should have been 

clearly delineated in an employee parking lot with more than 800 parking spaces 

and multiple parking aisles. If such a crosswalk should have been delineated, 

where it should have been located, and whether more than one was necessary 

were issues beyond the ken of an average juror. Perhaps, as the judge noted, 

most jurors would understand through their collective common knowledge the 

need for crosswalks on busy streets they walked every day, but whether that was 

required under professional standards of care at the DVD employee parking lot 

was not. 

Culture of Animosity

In addition to these specific allegations of error by the judge, plaintiff's 

overarching claim is that the judge displayed such animosity to his attorney that 

the trial was manifestly unfair and a new one is warranted. Plaintiff does not 

appear to have raised this issue as a basis for his new trial motion; however, as 

noted below, plaintiff did seek a mistrial on this issue. We address the issue 

applying an abuse of discretion standard. D.G., 400 N.J. Super. at 25.
34 A-4996-18

The trial record patently reveals the highly contentious nature of the 

proceedings. The judge, now retired, did a commendable job maintaining the 

order and dignity of the courtroom, but only by frequently cautioning counsel, 

who posed numerous objections, frequently and sarcastically spoke over each 

other, interrupted the judge and were constantly at sidebar.6 We provide some 

limited examples.

During the direct examination of a police officer, one of the earliest 

witnesses, a defense counsel asked at sidebar to see a copy of the officer's report 

before it was shown to the witness. The following colloquy then took place:

Plaintiff's counsel: Your Honor, this is bizarre. 

Everybody has these.

Defense counsel: I don't care.

Plaintiff's counsel: You be quiet for a moment.

Defense counsel: Excuse me, you're not my father 

when you tell me what to do.

Plaintiff's counsel: Well, you need a father.

Defense counsel: I have a father.

Plaintiff's counsel: Then you need another one.

6

 The contentious nature of the proceedings predated the trial. The deposition 

transcripts in the record are marred by frequent and improper objections.
35 A-4996-18

The judge told the attorneys to "stop," and instructed plaintiff's counsel to show 

the report to his adversary. After the sidebar ended, plaintiff's counsel told the 

police officer that he had been requested to show the report to his opponent. 

Defense counsel interjected that it was a court rule, not a request. The judge

then excused the jury and told the attorneys that their actions had required him 

to be a "babysitter." After the jury returned, another sidebar took place, where 

a different defense attorney accused plaintiff's counsel of placing photographs 

of the accident scene on a table where the jury could see them. The court 

excused the jury for the day, and told the attorneys:

I'm not going to do this for two weeks. . . . All 

right? For the record, counsel, you pulled the 

photographs out and you put them at a [forty-five]-

degree angle which is very viewable to the jury. . . . 

Maybe you didn't do it on purpose. Maybe you did. I 

don't know. . . . But the bottom line is this . . . . If this 

culture of animosity continues, I don't believe justice is 

going to be done. . . . So please, if the four of you can 

get together and work out your differences without the 

jury being involved and witnessing it, I think you're all 

going to be better off.

During subsequent proceedings, the court told counsel, outside the 

presence of the jury, that the jury had complained about the temperature in the 

courtroom and the number of sidebars. As to the latter, outside the jury's 

hearing, the judge said:
36 A-4996-18

Can we please stop going over to that sidebar? They 

really can't stand it. . . . [W]e stand over there forever 

and they're sitting over there freezing.

I can't help with that one either, can I? But these 

are eight individuals you have chosen to resolve your 

dispute you're all having over this case and I suggest 

collectively you do what you can [t]o accommodate 

their concerns in order for justice to prevail.

During a colloquy outside the jury's presence regarding a diagram he 

intended to introduce, plaintiff's attorney commented that the court "made" him 

show the exhibit to the defense, to which the judge replied: "Don't . . . put this 

on me. . . . [T]he fact that you didn't do what you're supposed to do is not my 

fault." Plaintiff's counsel responded, "I'm tired of being blamed by the [c]ourt 

and I think it's inappropriate." The record indicates that the court responded, 

"You (indiscernible)," and the judge then exited the courtroom.

After trial resumed, and again outside the presence of the jury, plaintiff 

asked for a mistrial based on the court "berating me in front of my clients on 

two separate occasions." The judge denied the motion, stating he had not 

berated counsel and the jury had not been present. Plaintiff's attorney stated that 

the court should have admonished him in chambers rather than before his clients,

and he did "not wish to continue this case before [the judge]." The judge again 

denied a motion for a mistrial.
37 A-4996-18

After ruling plaintiff could not use the video during the testimony of his 

experts, the court sustained a defense objection during redirect of Scarano when 

plaintiff's counsel sought to reference the video. The judge then instructed the 

jury that Scarano's testimony was limited to what was in his report, and "[w]hat 

counsel attempts to do is ask questions outside the report, thus causing the 

objections. Okay? That's what this . . . two days of consternation is all about."

On the following trial date, during plaintiff's redirect of Klein, the judge 

again sustained an objection when plaintiff's attorney attempted to ask Klein a 

question about the video. When counsel requested a sidebar, the judge replied,

"No, absolutely not. Continue your examination of your witness." 

During defendants' motion for judgment at the close of plaintiff's case, the 

judge accused plaintiff's attorney of avoiding answering his questions, adding:

Just like, for example . . . we told you at sidebar not to 

use the death certificate and you tried anyway, and then 

you put it down to give the jury the implication that the 

judge and defense counsel are just beating poor little 

you up, okay. So I think I'm asking very pertinent 

questions and you're deliberately not answering them 

because that's your style. 

Plaintiff also points to the judge granting Walsh's objections during plaintiff's 

summation about claims that his comments were a mischaracterization of the 

evidence. 
38 A-4996-18

In Persley v. N.J. Transit Bus Operations, we held that the court did not 

abuse its discretion in addressing a "recurring problem" that arose from attempts 

by the plaintiff's attorney, during cross-examination of expert witnesses, to read 

favorable portions of the reports of the plaintiff's experts "under the guise of 

posing questions," after the witnesses stated that they had reviewed those reports 

and that "it did not change their opinions." 357 N.J. Super. 1, 10 (App. Div. 

2003). The court admonished the plaintiff's attorney at sidebar conferences to 

refrain from this practice, and when he persisted, the court admonished him in 

the presence of the jury. Ibid. In addition, the judge admonished the plaintiff's 

attorney in the jury's presence for asking repetitive questions and questions 

regarding matters not in dispute. Ibid. 

We held that in the overall context of the lengthy trial, none of these 

incidents, individually or collectively, deprived the plaintiff of a fair trial. Ibid. 

We did "not detect in the judge's demeanor any pervasive criticism of plaintiff's 

counsel or undermining of plaintiff's case." Id. at 11.

Here, except for the objections during summation, the rulings on which 

were not accompanied by any comments by the judge, and the denial of a request 

for a side bar, the only exchange plaintiff points to that took place in front of the 

jury was the court's statement that plaintiff's attorney attempt to ask questions
39 A-4996-18

outside the expert's report caused objections resulting in "two days of 

consternation." While this would have been better left unsaid, it was no worse 

than the admonishments of the attorney that took place in front of the jury in 

Persley. Cf. Mercer v. Weyerhaeuser Co., 324 N.J. Super. 290, 299–313 (App. 

Div. 1999) (reversing where the trial judge imposed a ban on sidebar 

conferences and chastised the attorney at length in front of the jury, including a 

reference to the attorney's violation of the Rules of Evidence). 

Viewing the trial in its entirety, we cannot conclude the judge's demeanor, 

comments, or rulings demonstrated prejudice toward plaintiff or his counsel 

resulting in a miscarriage of justice.

Affirmed. As a result, we dismiss the cross-appeals as moot.