SUPERIOR COURT OF NEW JERSEY 

 APPELLATE DIVISION 

 DOCKET NO. A-3832-21 

TAMEKO SAWYER, 

 Plaintiff-Appellant, 

v.

RANDY C. LUCAS, HICKS 

PAVING, LLC, and HICKS 

SEPTIC & PORTABLE 

TOILETS, LLC, 

 Defendants-Respondents. 

_____________________________

Argued December 5, 2023 – Decided January 11, 2024 

Before Judges Whipple, Mayer and Paganelli. 

On appeal from the Superior Court of New Jersey, Law 

Division, Middlesex County, Docket No. L-3880-17. 

Michael James Confusione argued the cause for 

appellant (Hegge & Confusione, LLC, attorneys; 

Michael James Confusione, of counsel and on the 

briefs). 

Michael J. Marone argued the cause for respondents 

(McElroy, Deutsch, Mulvaney & Carpenter, LLP, 

NOT FOR PUBLICATION WITHOUT THE 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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attorneys; Michael J. Marone, of counsel and on the

brief; Sandra D. Lovell, on the brief). 

PER CURIAM 

Plaintiff, Tameko Sawyer, appeals the denial of her motions for a new trial 

on damages or additur. At the conclusion of trial, the trial court explained 

plaintiff's motions were untimely and, even on the merits, the jury's verdict did 

not shock the conscience. We affirm. 

On June 17, 2016, plaintiff suffered an injury to her neck, lower back, and 

shoulder. Defendant Randy Lucas was driving a tractor-trailer owned by 

defendant Hicks Paving, LLC and Hicks Septic & Portable Toilets, LLC 

(collectively defendants). Plaintiff and Lucas were traveling on Route 78, when 

the truck moved into plaintiff's lane, striking her car, causing it to slam into the 

guardrail. The Emergency Medical Technician (EMT) who responded to the 

scene documented plaintiff's vehicle had minor damage. Plaintiff refused 

transport to the hospital and when initially examined at the scene only 

complained of head pain. Plaintiff did tell the EMT she had a previous back 

injury. 

After the accident, plaintiff went to the hospital where she was evaluated 

for head, neck, and back injuries. She suffered disc herniations and bulges in

her neck and underwent five separate surgeries. 
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On June 23, 2017, plaintiff filed a complaint then an amended complaint 

naming defendants. The trial began on May 31, 2022. 

During trial, defendants filed in limine motions to exclude admission of 

plaintiff's Day in the Life video and her recently supplied supplemental 

discovery. The court barred both. 

Plaintiff testified she first experienced pain in her head following the 

accident. She also testified she left the hospital before being fully evaluated. 

Plaintiff, along with treating physicians, testified about the conservative pain 

management she underwent for an older, unrelated back injury. Throughout the 

trial, the parties and their experts disagreed about the genesis of plaintiff's back 

injury and whether it was caused or exacerbated by the accident. 

The jury found defendants' negligence proximately caused the accident 

and plaintiff's injuries. The jury awarded $400,000 in damages. 

Plaintiff moved for a new trial on damages or additur, which the court 

denied on procedural and substantive grounds. The trial court rendered its oral 

decision noting the motion had been filed three days late but considered its 

merits. The court concluded the jury's verdict did not shock the conscience, the 

jury was properly advised as to the information it could consider as evidence, 

took notes, and based on the evidence, weighed the facts, deliberated, considered 
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the information, and arrived at the damages award. The court also rejected the 

argument the award was manifestly unjust. This appeal followed. 

We review a trial court's decision on a motion for additur under an abuse 

of discretion standard. Tronolone v. Palmer, 224 N.J. Super. 92, 104 (App. Div. 

1988). The same standard is used when a trial court admits or excludes evidence 

as we grant substantial deference to a trial court's discretion on evidentiary 

rulings. Griffin v. City of East Orange, 225 N.J. 400, 413 (2016). 

 Plaintiff first argues the court should have allowed the jury to observe her 

Day in the Life video as it was relevant, probative, and accurately represented

the impact of her injuries. She argues the trial court misapplied N.J.R.E. 401 

and 403 and did not properly weigh the evidence nor consider its relevancy. 

 The barred video was five minutes long and recorded about a year and a 

half after the sustained injuries, but just eight days after she had back surgery 

and still required significant assistance with activities of daily living. Plaintiff 

argues the video was relevant to support her claim for future medical costs and 

the pain, suffering and loss of enjoyment she endured. 

 We apply an abuse of discretion standard to questions of whether the 

probative value of evidence is "substantially outweighed by its prejudicial 

nature" under Rule 403. Green v. N.J. Mfrs. Ins. Co., 160 N.J. 480, 492 (1999). 
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Under N.J.R.E. 403 "relevant evidence may be excluded if its probative value is 

substantially outweighed by the risk of: (a) undue prejudice, confusion of issues, 

or misleading the jury; or (b) undue delay, waste of time, or needless 

presentation of cumulative evidence." 

 Day in the Life videos are permitted when a trial court finds them relevant, 

probative, and an accurate representation of injuries. Robert Schiavo v. OwnsCorning Fiberglas Corp., 282 N.J. Super. 362, 368 (App. Div. 1995). Plaintiff 

argues the video was necessary to demonstrate her difficulty in day-to-day 

activities and the inability to present it deprived her the right to show the jury 

evidence of pain and suffering. 

 Plaintiff's argument is unavailing. In our view, the trial court did not 

abuse its discretion in excluding the videotapes. In Schiavo, we stated that in 

addition to being relevant and probative, the videotape needs to be "an accurate 

representation of the impact of the injuries upon the subject's day-to-day 

activities." 282 N.J. Super. at 368. 

 Unlike in Schiavo, where the injuries rendered the victim unable to 

function, plaintiff's video was taken during her recuperation from a surgery, 

instead of day-to-day life post-accident. As such, the trial court here, did not 

err finding the focus of the videotape was plaintiff's recovery from surgery as 
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opposed to her day-to-day life and was not an accurate representation of the 

continued impact of her injuries. Plaintiff testified during the trial regarding the 

extent of her injuries as a result of the accident and the impact of those injuries. 

 Plaintiff next argues the trial court abused its discretion precluding recent 

amendments to discovery1 and not allowing her to present updated medical 

information at trial. She contends the updated medical records were not a 

surprise, and this information did not prejudice defendants' ability to respond, 

and the evidence was pivotal. She argues the trial court's decision, declining to 

allow the discovery, significantly limited her ability to present her claim for 

damages. 

 A trial court's discretion in excluding evidence is broad. State v. Sands, 

76 N.J. 127, 144 (1978). The decision to exclude must stand unless it is so 

erroneous that a "manifest denial of justice resulted." Ratner v. Gen. Motors 

Corp., 241 N.J. Super. 197, 202 (App. Div. 1990). Discovery ended September 

3, 2021, and defendants received the supplemental discovery on May 19, 2022. 

The amended records were dated before February 16, 2021, and March 14, 2022. 

Plaintiff filed a certification of due diligence. The court denied the request 

1

 There were twelve discovery extensions and nine trial adjournments due to 

the pandemic. 
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stating Rule "4:17-7 requires amendments to be served not later than [twenty] 

days prior to the end of discovery or thereafter only if the party seeking to amend 

certifies therein that the information . . . was not reasonably available or 

discoverable by the exercise of due diligence prior to the discovery end date." 

The trial court noted there had been "plenty of opportunity . . . as it pertains to 

the 2021 records to have gotten them to opposing counsel prior to two weeks 

ago." Based on our review, we discern no abuse of discretion in the trial court's 

granting the motion in limine precluding the presentation of additional records 

at trial. 

 Finally, plaintiff contends the trial court abused its discretion in denying 

the motion for a new trial or additur because the verdict was against the weight 

of the evidence such that it constituted a clear miscarriage of justice. She avers 

given all her injuries and prolonged treatment, obtaining a verdict of only 

$400,000 in total damages was shockingly low and disregarded plaintiff's and 

treating provider's testimony. Moreover, plaintiff claims when considering her 

total medical bills incurred and owed—more than $600,000—the jury award is 

disproportionate, especially for covering future medical expenses. 

 We review additur motions under an abuse of discretion standard. 

Tronolone, 224 N.J. Super. at 104. We will also not reverse a trial court's 
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decision to deny a motion for a new trial "unless it clearly appears that there was 

a miscarriage of justice under the law." R. 2:10-1. Additionally, "the standard 

for granting a new trial . . . is necessarily high." Johnson v. Scaccetti, 192 N.J. 

256, 281 (2007). A new trial or remitting a jury's damages award will not be 

ordered "unless it is so clearly disproportionate to the injury . . . that it may be 

said to shock the judicial conscience." Caicedo v. Caicedo, 439 N.J. Super. 615, 

628 (App. Div. 2015). We give "due deference to the trial court's feel of the 

case." Jastram v. Kruse, 197 N.J. 216, 230 (2008) (citations omitted). In 

addition, a jury's verdict "is cloaked with a presumption of correctness." Cuevas 

v. Wentworth Grp., 226 N.J. 480, 501 (2016) (citations omitted). 

 Notably, the motion for additur and new trial was filed three days out of 

time. Rule 4:49-1(b) requires a motion not be served more than twenty days 

after the verdict is returned. Notwithstanding the untimeliness, the trial court 

also addressed the motion on its merits and found "in looking at the totality of 

the evidence and considering the jury's questions again and the verdict, [the 

court] finds that it was, in fact, appropriate[,] [a]nd it appears just." 

The trial court found that given the contested testimony, the jury believed 

some of what each party said. Therefore, the trial court was satisfied the jury 

appropriately considered the information, competing arguments and arrived at a 
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"reasoned judgment that is in fact based upon the evidence before them, and the 

[c]ourt does not find that the damages were so disproportionate such to shock 

the conscience or to be manifestly [u]njust." We discern no abuse of discretion. 

Any remaining arguments raised by plaintiff are without sufficient merit 

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

Affirmed.