SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2158-15T4

THOMAS CHETNEY,

Plaintiff-Respondent,

v.

NEW JERSEY MANUFACTURERS

RE-INSURANCE COMPANY,

Defendant-Appellant.

____________________________

Argued November 13, 2017 – Decided

Before Judges Sabatino, Ostrer and Whipple.

On appeal from Superior Court of New Jersey, 

Law Division, Middlesex County, Docket No. L7829-13.

Kevin F. Sheehy argued the cause for appellant 

(Leyden, Capotorto, Ritacco & Corrigan, 

attorneys; Paul J. Capotorto, of counsel; 

Kevin F. Sheehy, on the briefs).

Michael J. Deem argued the cause for 

respondent (R.C. Shea & Associates, attorneys; 

Michael J. Deem, of counsel and on the brief).

PER CURIAM

After a damages-only trial, a jury found that plaintiff Thomas 

Chetney suffered a permanent injury as a result of a collision 

NOT FOR PUBLICATION WITHOUT THE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.

July 17, 2018
2 A-2158-15T4

caused by an uninsured driver, and awarded $1.5 million in 

compensatory damages. The court molded the award, to reflect 

defendant's $500,000 policy limit, and a workers' compensation 

lien. The court thereafter denied a motion for a new trial. 

Chetney's uninsured motorist carrier, defendant New Jersey 

Manufacturers Re-Insurance Company (NJMRe), appeals, raising 

numerous points of evidentiary error. We reject all but one. We 

agree with NJMRe that the trial court erred in permitting plaintiff 

and his wife to testify that he suffered from erectile dysfunction 

after the accident, without plaintiff offering an expert opinion 

that the injuries from the accident caused that condition. On 

that sole basis, we reverse and remand for a new trial.

Chetney was working as a paramedic on February 5, 1998 when 

his ambulance was struck by a vehicle operated by an uninsured 

driver. Chetney claimed the accident caused a permanent injury 

to his lumbosacral spine. Although Chetney suffered injuries from 

three prior motor vehicle accidents, one prior slip and fall, and 

four subsequent non-motor vehicle accidents, he alleged that the 

1998 accident was the principal cause of his permanent injury. He 

said he suffered from chronic pain despite spinal fusion surgery

in 2004, physical therapy, and numerous steroid injections. At 

the time of trial in 2015, he controlled his pain – but did not 
3 A-2158-15T4

eliminate it – with prescription morphine and an implanted device 

designed to redirect nerve signals.1 

He and his wife testified that the injury from the 1998 

accident caused him to limit various recreational and familyrelated activities; and negatively affected his quality of life. 

Despite his prior accidents, Chetney and his wife portrayed him 

as an active, physically fit young man who participated in sports

and hunting; tumbled with his two toddlers; maintained his lawn 

and yard; performed tree and snow work for himself and neighbors; 

worked long hours; and built furniture as a hobby. Those 

activities were eliminated or severely restricted after the 

accident.

In particular, Chetney and his wife testified that he suffered 

from erectile dysfunction after the 1998 collision. His wife 

testified that she was pregnant at the time of Chetney's accident, 

but had a miscarriage shortly thereafter. As a result of Chetney's 

erectile dysfunction, they were unable to conceive a third child 

or engage in intimacy. She also testified that he once threatened 

 

1 In 2000, plaintiff timely filed his complaint, which included a 

per quod claim of his wife. After voluntarily dismissing the 

complaint, he refiled the complaint, absent the per quod claim,

in 2013, pursuant to an agreement with defendant. We surmise that 

in the interim, plaintiff pursued a workers' compensation claim.
4 A-2158-15T4

to kill himself if his unremitting pain did not abate. She told 

him to seek help. 

As noted, the most salient point on appeal pertains to the 

testimony about erectile dysfunction. NJMRe filed a pre-trial 

motion to bar any testimony about the condition, contending that 

(1) plaintiff did not adequately disclose it in discovery; and (2) 

expert testimony was required to establish that plaintiff suffered 

from the condition, and that the 1998 collision caused it. In 

particular, NJMRe sought to redact portions of plaintiff's

orthopedic expert's de bene esse deposition, in which he explained 

how nerve impingement in the lumbosacral spine could affect 

plaintiff's urologic function. 

The trial court granted the motion as to the expert's 

testimony, concluding he lacked the expertise to address urologic

conditions, but denied it as to the testimony of plaintiff and his 

wife.2 The court reasoned that expert testimony was not necessary 

to establish what Chetney experienced himself. Furthermore, 

Chetney was free to testify about how the accident affected his 

life. NJMRe renews its arguments before us.

We consider first the alleged discovery violation. We review 

the trial court's discovery ruling for an abuse of discretion and 

 

2 Chetney does not cross-appeal from the order restricting his 

expert's testimony. 
5 A-2158-15T4

shall not disturb the trial court's decision absent a proven

injustice. Bender v. Adelson, 187 N.J. 411, 428 (2006) (reviewing 

for an abuse of discretion a "trial court's decision to bar 

defendants' requested amendments to their interrogatory answers 

[to add experts] and deny a further discovery extension"); Abtrax 

Pharms., Inc. v. Elkins-Sinn, Inc., 139 N.J. 499, 517 (1995) 

(stating appellate courts shall review the dismissal of a complaint 

with prejudice "for discovery misconduct" under an abuse of 

discretion standard and shall not interfere "unless an injustice 

appears to have been done"). In particular, courts should "seek 

to avoid exclusion" of testimony that is "'pivotal'" to the case 

of the party offering the evidence. Wymbs v. Twp. of Wayne, 163 

N.J. 523, 544 (2000) (citation omitted). Even if there is a 

discovery violation, in deciding whether to "suspend the 

imposition of sanctions," a court should consider whether there 

was a design to mislead, surprise if the evidence is admitted, and 

prejudice from admission of the evidence. Ibid. 

We discern no abuse of discretion here. First, we are not 

convinced there was a discovery violation. Although the medical 

reports before us did not expressly refer to "erectile 

dysfunction," they repeatedly referred to urological or 

genitourinary problems that Chetney experienced post-accident. 

One report noted that "he has a problem with marital relations." 
6 A-2158-15T4

Asked to describe the "nature, extent and duration" of his injuries 

in interrogatories, Chetney did not mention "erectile 

dysfunction," but referred to his medical records, his underlying 

spinal injury, and stated his injuries "affect all facets of [his] 

life including, but not limited to . . . domestic activities both 

interior and exterior . . . ." There is no indication defendant 

sought more specific answers. At plaintiff's deposition, defense 

counsel asked him if there was anything he could not do that he 

was able to do before the 1998 accident. Plaintiff explained that 

he used to be "a lot more intimate with [his] wife." Defense 

counsel did not follow up. 

In any event, there is no showing that plaintiff had the 

design to mislead. Furthermore, given the references to urological 

and marital issues, the claim of surprise is unpersuasive. The 

relevant prejudice is not the impact of the evidence itself, but 

the complaining party's inability to contest it because of alleged 

late disclosure. See State v. Heisler, 422 N.J. Super. 399, 415 

(App. Div. 2011). Notably, NJMRe fails to establish what measures 

it would have undertaken to contest Chetney's and his wife's 

factual testimony about their private, intimate relations had 

Chetney explicitly disclosed the condition earlier.

We also discern no harmful error in the court's determination 

that Chetney and his wife could testify as to his condition. While 
7 A-2158-15T4

the rule authorizing expert testimony is permissive, see N.J.R.E. 

702 (stating that a "witness qualified as an expert . . . may 

testify") (emphasis added), an expert's testimony is required when 

an average juror lacks the experience and knowledge to form a 

conclusion about a matter. Biunno, Weissbard & Zegas, Current 

N.J. Rules of Evidence, cmt. 1 to N.J.R.E. 702 at 731 (2018); see, 

e.g., Butler v. Acme Markets, Inc., 89 N.J. 270, 273 (1982) 

(requiring expert testimony if the issue is "so esoteric that 

jurors of common judgment and experience cannot form a valid 

judgment . . . .").

We agree that the specific diagnosis of "erectile 

dysfunction" is outside the expertise of a lay witness, and should 

be presented through a treating physician, see Delvecchio v. Twp. 

of Bridgewater, 224 N.J. 559, 577-78 (2016) or an expert, see

Devlin v. Johns-Manville Corp., 202 N.J. Super. 556, 564 (Law Div. 

1985).

3 However, in general, Chetney and his wife avoided medical 

nomenclature and instead described in lay terms what he experienced 

and what she observed. See J.W. v. L.R., 325 N.J. Super. 543, 548 

 

3 "Erectile dysfunction" is defined as "inability to achieve or 

maintain penile tumescence sufficient for sexual intromission or 

for achieving orgasm." Stedman's Medical Dictionary, 596 (28th 

ed. 2006); see also Ida G. Dox et al., Attorney's Illustrated 

Medical Dictionary, D52 (1997) (stating that erectile dysfunction 

"is considered part of the overall multifaceted process of male 

sexual function").
8 A-2158-15T4

(App. Div. 1999) (stating that expert testimony is not required 

to present subjective symptoms). They both clearly had personal 

knowledge of these facts. See N.J.R.E. 601. Plaintiff's counsel 

used the medical term "erectile dysfunction" in questioning and 

in summation. But, it is likely the jury simply understood the 

term to summarize the condition that the witnesses described. In 

any event, we discern no harmful error as to this aspect of their 

testimony. R. 2:10-2. 

However, we part company with the trial court's determination 

that expert testimony was not required to establish causation. 

"If plaintiff seeks to prove causation of a current medical or 

psychological condition, of course, competent expert testimony 

would be required." J.W., 325 N.J. Super. at 548; see also

Allendorf v. Kaiserman Enters., 266 N.J. Super. 662, 672 (App. 

Div. 1993) (stating that the "logical relationship" underlying a 

claim of medical causation "generally must be established by 

appropriate expert medical opinion"); Kelly v. Borwegen, 95 N.J. 

Super. 240, 243-44 (App. Div. 1967); see also Quail v. Shop-Rite 

Supermarkets, Inc., ___ N.J. Super. ___, ___ (App. Div. 2018) 

(slip op. at 8, 14) (affirming grant of summary judgment where 

trial court ruled that plaintiff would be unable to show proximate 

cause of death without expert testimony, for which the certificate 

of death was not a substitute).
9 A-2158-15T4

This case is no different. Chetney's symptoms could have had 

psychological or physical causes unrelated to his injury.4 

Although, as the trial court noted, Chetney did not need an expert 

to describe his symptoms, he needed an expert to identify their

medical cause. Chetney and his wife testified he experienced no 

difficulty before the 1998 collision, but coincidence is not 

causation. 

Furthermore, the evidence did not clearly establish when the 

condition first appeared. Chetney testified at trial that he

experienced difficulty in marital relations for thirteen to 

fifteen years, which would place the onset of symptoms two to four 

years after the accident. In his deposition, he said, without 

pinpointing a date, that he had less intimacy with his wife after 

the accident. His wife testified that difficulties arose within 

months of the accident, and progressively worsened, as a result 

of which marital relations had ceased for fifteen years.5

 

4 See Attorney's Illustrated Medical Dictionary, D52 (1997)

(stating that "causes [of erectile dysfunction] may be organic 

(from the nervous or vascular systems) or psychological, but they 

most commonly appear to derive from the problems in all three 

areas acting in concert . . . .").

5 Chetney's orthopedic expert provided relevant information about 

the connection between his neurologic injury and his ability to 

control his urologic functioning. However, his testimony was 

excluded. Plaintiff contends on appeal some of the expert's 

opinion was presented to the jury notwithstanding the court's 
10 A-2158-15T4

We cannot conclude that this error was harmless. We do not 

minimize the substantial other evidence in support of Chetney's 

claim. Even from the cold record, we discern that Chetney 

presented as a sympathetic witness. He was a former Army 

paramedic. At the end of his military service, he continued to 

serve the public as a paramedic, often facing hazardous situations.

His expert testified persuasively that the 1998 collision was the 

cause of Chetney's spinal injury, which in turn led to a life of 

pain, and restricted activities, as Chetney and his wife detailed. 

It is apparent from the record that plaintiff's counsel effectively 

challenged the defense expert on cross-examination as to his 

expertise, the care with which he reviewed Chetney's prior records, 

and his conclusion that Chetney suffered no permanent injury as a 

result of the 1998 collision. 

Yet, the testimony of Chetney's erectile dysfunction was 

emotionally powerful evidence. His wife testified movingly about 

her miscarriage, her inability to have a desired third child, and 

 

ruling. Plaintiff contends that his counsel proposed redactions 

after the court ruling which left some of the expert's opinions 

intact, and defense counsel did not object. We note that the 

record does not document these redactions, nor does the trial 

transcript reflect exactly what was played. But see R. 1:2-2. 

Therefore, we presume that the transcript was redacted in accord 

with NJMRe's in limine motion, which would have excluded the 

discussion plaintiff now claims was presented to the jury. Any 

lingering disputes over such redactions shall be addressed on 

remand by the trial court before the retrial. 
11 A-2158-15T4

the loss of intimacy with her husband. She described him as a

vigorous and physically fit young man before the accident, 

notwithstanding periodic injuries and recoveries. Chetney 

testified that he felt like less of a man, as a result of his 

condition. Plaintiff's counsel highlighted this aspect of 

Chetney's injuries in both opening and summation.

In sum, a new trial is warranted at which Chetney would be 

obliged to present expert testimony to establish the causal 

connection between his spinal injury – which his orthopedic expert 

connected to the 1998 accident – and his erectile dysfunction. We 

recognize that, lacking the guidance of this court's present 

opinion, no such expert was presented in discovery, except for the 

limited opinions of plaintiff's orthopedic expert, which the trial 

court excluded. In advance of a new trial, the court may, in the 

exercise of its discretion, reopen discovery as to any changes in 

plaintiff's condition. The court may also revisit the limitations 

it imposed on plaintiff's orthopedist and allow plaintiff to amend 

prior disclosures to present the required medical expert opinion; 

and permit defendant to obtain an independent medical examination, 

as well as a responsive opinion. 

We briefly discuss NJMRe's remaining points on appeal, none 

of which are persuasive. NJMRe contends it was reversible error 

to permit testimony and argument regarding Chetney's suicidal 
12 A-2158-15T4

ideation. The testimony was limited to his wife's reference to a 

conversation in which Chetney stated his pain was so intense and 

unremitting that he was "going to blow [his] brains out" if he 

could not get any relief. The wife did not contend that Chetney 

continued to harbor suicidal thoughts, attempted suicide, or 

otherwise suffered from a related mental illness. Defense counsel 

did not object at the reference to suicidal thoughts in plaintiff's 

counsel's opening, or his wife's testimony, nor did NJMRe raise 

it in its motion for a new trial. Hence, we review NJMRe's 

contention for plain error. R. 2:10-2.

We perceive none. We may conclude that defense counsel's 

"failure to object signifies that the error belatedly claimed was 

actually of no moment." See State v. Krivacska, 341 N.J. Super. 

1, 42-43 (App. Div. 2001). Furthermore, the testimony was relevant 

to establishing the extreme and unremitting pain Chetney 

experienced. Standing alone, it fell short of persuading the jury 

that Chetney suffered from mental illness or was actually on the 

brink of taking his own life. At most, NJMRe may have been 

entitled to a limiting instruction, but NJMRe did not request one.

NJMRe also contends that the court erred in granting 

plaintiff's motion to bar testimony about "gaps in treatment" 

shortly after the accident. Plaintiff's counsel contended that 

Chetney was receiving medical care through workers' compensation
13 A-2158-15T4

at the time, and exploration of "gaps in treatment" would 

necessarily require evidence about how the workers' compensation

system limited Chetney's autonomy in seeking treatment. 

As the trial court recognized, in denying NJMRe's new trial 

motion on this point, gaps in treatment could be relevant to 

Chetney's credibility, and whether he suffered the injury claimed, 

and the consequences of it. But, citing N.J.R.E. 403, the court 

concluded that the probative value of "gaps in treatment" evidence 

was outweighed by the risk that it would trigger "the introduction 

of an entire slew of worker's compensation issues when both parties 

had stipulated they would be barred from trial." The court 

concluded, "This would pose a huge risk of confusion of the issues 

and would certainly increase trial time by an extensive margin." 

We recognize that Chetney has provided no evidence that 

treatment delays were caused by the workers' compensation process.

6

However, "[d]eterminations pursuant to N.J.R.E. 403 should not be 

overturned on appeal 'unless it can be shown that the trial court 

 

6 NJMRe has provided competent evidence that Chetney sought 

treatment with Dr. Patrick Foye the day of collision, February 5, 

1998. Chetney attended a follow-up appointment four days later, 

but did not attend another appointment until June 1, 1998. Dr. 

Foye scheduled Chetney for an EMG within the next week. Chetney 

missed the appointment, did not return Dr. Foye's calls, and 

attended a re-evaluation on March 3, 2000. Chetney did not 

demonstrate that his workers' compensation carrier denied 

treatment during that time period, or that he made any effort to 

contest such denial. See N.J.A.C. 12:235-3.2.
14 A-2158-15T4

palpably abused its discretion, that is, that its finding was so 

wide off the mark that a manifest denial of justice resulted.'" 

Green v. N.J. Mfrs. Ins. Co., 160 N.J. 480, 492 (1999) (citing 

State v. Carter, 91 N.J. 86, 106 (1982)). NJMRe has not met that 

high threshold to disturb the trial court's broad discretion in 

applying N.J.R.E. 403. 

Finally, there was no miscarriage of justice in plaintiff's 

counsel's argument in summation that the defense expert was 

unethical. The court sustained the defense objection and delivered 

a curative instruction. Notably, the curative instruction was the 

one that defense counsel proposed, upon the court's invitation, 

without amendment. We presume the jury followed the court's 

instruction. See, e.g., State v. Loftin, 146 N.J. 295, 390 (1996) 

("That the jury will follow the instructions given is presumed.").

NJMRe's remaining points lack sufficient merit to warrant 

extended discussion. See R. 2:11-3(e)(1)(E). 

Reversed and remanded. We do not retain jurisdiction.