SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2810-18T3

JENNIFER THOMPSON 

and JOHN THOMPSON,

Plaintiffs-Appellants,

v.

LIBERTY MUTUAL 

INSURANCE COMPANY,

Defendant,

and

ALLSTATE INSURANCE

COMPANY,

Defendant-Respondent.

________________________

Submitted March 31, 2020 – Decided July 1, 2020

Before Judges Hoffman and Firko.

On appeal from the Superior Court of New Jersey, Law 

Division, Ocean County, Docket No. L-1727-16.

NOT FOR PUBLICATION WITHOUT THE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.
2

A-2810-18T3

Maggs, McDermott & Dicicco, LLC, attorneys for 

appellant (James A. Maggs, of counsel; Victoria J. 

Adornetto, on the briefs).

Hoagland Longo Moran Dunst & Doukas, attorneys for 

respondent (Richard J. Mirra, on the brief).

PER CURIAM

On December 14, 2012, an Acura MDX driven by Jonathan Judson 

collided with a Mercury Grand Marquis driven by plaintiffs' daughter. As a 

result of the collision, plaintiff1 – a belted front-seat passenger in her daughter's 

vehicle – sustained injury. After settling with Judson for the policy limits of the 

insurance covering the MDX, plaintiffs presented a claim for underinsured 

motorist (UIM) compensation to their auto insurance carrier, Allstate Insurance 

Company (Allstate). Pursuant to the Automobile Insurance Cost Reduction 

Act,2 Allstate's policy contained a provision requiring plaintiff to show she 

suffered a permanent3injury in order to recover noneconomic damages.

1

 In this opinion, we refer to Jennifer Thompson individually as plaintiff, and 

Jennifer and John Thompson collectively as plaintiffs. Plaintiff's husband sues 

per quod.

2

 N.J.S.A. 39:6A-1.1 to -35.

3

 As defined in N.J.S.A. 39:6A-8(a), "An injury shall be considered permanent 

when the body part or organ, or both, has not healed to function normally and 

will not heal to function normally with further medical treatment."
3

A-2810-18T3

Unable to resolve their UIM claim, plaintiffs filed suit against Allstate.4 

After Allstate stipulated liability, the matter proceeded to trial before a jury on 

the issues of proximate cause and damages. On January 17, 2019, at the 

conclusion of a three-day trial, the jury returned a unanimous verdict, finding 

plaintiffs did not prove that plaintiff sustained a permanent injury that was 

proximately caused by the December 14, 2012 accident. Based on the jury's 

verdict, the trial judge entered a "no cause" order of dismissal. This appeal 

followed, with plaintiffs contending that erroneous evidentiary rulings resulted 

in harmful error. We agree, and therefore reverse the dismissal order, reinstate 

plaintiffs' complaint, and remand for a new trial.

I.

We derive the following facts from the trial record. We first address the 

happening of the accident and then plaintiff's injuries.

A. The Accident. 

The accident occurred when the Grand Marquis driven by plaintiffs'

daughter stopped for a red light in the westbound lane of Route 70, at its 

4

 Plaintiffs also asserted a UIM claim against Liberty Mutual Insurance 

Company, the insurer of the Grand Marquis. The trial court granted Liberty 

Mutual's motion to dismiss in lieu of a responsive pleading.
4

A-2810-18T3

intersection with Lake Ridge Boulevard, in Toms River. According to plaintiff, 

after her daughter brought the vehicle to a complete stop for the red light, the

MDX struck them from behind; as a result of the impact, the Grand Marquis 

"jolted forward." 

Plaintiff recounted that after Judson "exchanged words" with her 

daughter, he "[got] in his car, [went] around us[,] and [left] the scene." Plaintiff 

and her daughter then pulled off into a nearby parking lot and called the police.

According to Judson, the Grand Marquis "made a complete stop at a 

yellow light and [he] didn't have time to react." He tried to swerve around it, 

but "end[ed] up clipping her bumper just enough where it tapped her car . . . ." 

Judson estimated his speed at the point of impact at "[n]o more than ten miles 

an hour, no more than ten."5Judson testified that, after the collision, he and 

plaintiff's daughter got out of their vehicles and exchanged words. He claimed 

he provided his name to plaintiff's daughter but lost sight of her car after it pulled 

away. Instead of searching for her car, Judson continued to his destination. 

Patrolman Sean Smith of the Toms River Police Department responded to 

the scene, where he spoke with plaintiff and her daughter. He recorded his 

5

 At his deposition, Judson estimated his speed at the time of impact "[p]robably 

like [fifteen] to [twenty] miles an hour if that."
5

A-2810-18T3

observations in a written police report, noting, "Rear end damage was observed 

to [the Grand Marquis]. No injuries were reported by the driver or 

passenger . . . ." Patrolman Smith offered to call an ambulance for plaintiff, but 

she declined. 

Provided with the license plate number of the MDX, the next day 

Patrolman Smith proceeded to an address in Lakewood, where he found the 

Acura involved in the accident. He observed "[m]inor damage . . . to the front 

of the vehicle." He testified that "minor damage" usually indicates "cosmetic 

damage" or "non-disabling" damage. 

Patrolman Smith spoke to the owner of the MDX, who told him that 

Judson drove the Acura the day before. After phoning Judson and hearing his 

version of events, Patrolman Smith issued traffic citations charging him with 

leaving the scene of an accident, N.J.S.A. 39:4-129(b), and careless driving, 

N.J.S.A. 39:4-97.

Plaintiff's husband testified that his daughter called him and informed him 

of the accident. He came to the scene and drove plaintiff home, with their 

daughter following in her car. Shortly after arriving home, plaintiff's husband 

drove her to the Ocean Medical Center emergency room. 
6

A-2810-18T3

After answering questions about his wife's injuries, plaintiff's husband 

testified that he took the Grand Marquis to a body shop and personally monitored 

the repairs. At that point, Allstate's attorney asked to be heard at sidebar, where 

the following exchange occurred:

[ALLSTATE'S ATTORNEY]: I'm not quite sure where 

this is going. The vehicle was repaired by . . . Atlantic 

Auto Body. There is no witness named from Atlantic 

Auto Body that's coming here. I don't know if 

[plaintiff's attorney] intends to get into with this witness 

what repairs were done but there needs to be some type 

of expert to say, here is what repairs were done related 

to any damage cause by this accident. This witness can 

testify what his observations are, but he's not an expert 

witness.

[PLAINTIFFS' ATTORNEY]: He can talk about his 

observations of the car and the damage he observed 

while at the body shop.

[ALLSTATE'S ATTORNEY]: No he can't.

. . . . 

[PLAINTIFFS' ATTORNEY]: I don't have to call [an] 

expert. [Plaintiff's husband] went to the site, he saw the 

bumper removed, he saw the undercarriage damage, he 

saw the damage to the frame . . . . They were repairing 

the frame, they repaired the trunk. If [Allstate is] going 

to put in pictures of just the bumper, then it's highly 

prejudicial to leave out the fact that there is damage 

completely behind [the bumper] –

[THE COURT]: But you need an expert. 
7

A-2810-18T3

. . . .

[PLAINTIFFS' ATTORNEY]: He can discuss his 

personal observations.

[THE COURT]: But it's too speculative as to what 

caused it. He's saying, they opened up the bumper and 

I saw this. How does he know what caused it?

. . . .

[PLAINTIFFS' ATTORNEY]: . . . . [Allstate] wants to 

put in pictures of the bumper and say it was a tap and 

minimal damage. It's highly prejudicial if you [keep] 

out the rest of the – the remainder of the pictures that 

show that that was not the extent [of the damage].

. . . .

[THE COURT]: . . . . No. [He] can't testify. He's not 

an expert to testify to that and you had ample 

opportunity . . . to get an expert for that. It would have 

been so easy for you to get an expert for that. I'm not 

going to do this, no way. In the 12th hour [you] put him 

on to say they took off the bumper and I saw this 

cracked. It's too speculative. Sorry.

After the sidebar ended, the judge then announced, "I'm sustaining the 

objection." He did not provide the jury with any explanation or instruction

regarding his ruling.

Based upon the court's ruling, plaintiffs' attorney did not question 

plaintiff's husband any further about the observations he made when the bumper 

was removed from the Grand Marquis, nor did she attempt to have him identify 
8

A-2810-18T3

photos he took during the process. Consequently, the jury did not hear the 

observations made by plaintiff's husband

6

at the body shop nor did they get to 

view photographs of the damage behind the rear bumper.

After plaintiffs rested, Allstate called Judson as a witness and he provided 

the previously described testimony that he "tapped" plaintiffs' car and that the 

impact and damage were minor. Over objection,

7

the trial judge allowed Judson 

6 After convincing the judge to preclude testimony regarding the monitored 

repairs of the Grand Marquis, Allstate's attorney then brought out, on crossexamination, that plaintiff's husband had been employed by Plymouth Rock 

Insurance Company for the previous fourteen years. He described his position 

as an administrator for the company's Direct Repair Program, meaning "I'm 

responsible for our repair facilities."

7

 In her objection, plaintiffs' attorney argued it would be "highly prejudicial" 

for the court to allow Allstate to allow Judson to identify and discuss 

photographs relating to the post-accident damage to the Grand Marquis, after 

precluding plaintiff's husband from testifying regarding the observations he 

made at the body shop; in addition, she cited the absence of any photographs 

depicting the damage to the Acura. The judge overruled the objection without 

explanation. He then asked plaintiff's attorney if she wanted him to charge the 

jury, at that point, in accordance with Model Civil Jury Charge 5.34 (Property 

Damage In Motor Vehicle Accidents). She responded yes and the judge advised 

the jury:

In some accidents resulting in extensive 

vehicle damage[,] the occupants may suffer 

minor injuries or no injuries at all. In other 

accidents where there is no or little 

apparent vehicle damage[,] the occupants 

may suffer serious injuries. 
9

A-2810-18T3

to authenticate multiple photographs of the Grand Marquis with the rear bumper 

still intact and testify that he only caused a "scratch" to the right side of the 

vehicle's bumper. While the photographs apparently also showed damage to the 

left rear brake light and misalignment of the trunk, Judson testified that this 

other damage "had to [have] been [pre-existing], unless I hit the car at [forty] 

miles an hour." 

B. Plaintiff's Injuries.

At the emergency room, plaintiff presented with complaints involving her 

neck, back and right wrist. According to plaintiff, "They took x-rays of my right 

wrist. . . . They gave me a brace and a sling. They also took x-rays of my neck, 

as I told them I was in a prior accident and had hardware. They wanted to make 

sure the hardware was not affected . . . ." Plaintiff was released with a 

recommendation for follow-up care. 

In reaching your decision in this matter[,]

you are to give the photographs whatever 

weight you deem to be appropriate. [They 

are] but one fact to be considered, along 

with all other evidence[,] in determining 

whether the plaintiff sustained injuries as a 

result of the accident.

 
10 A-2810-18T3

Six days later, plaintiff went for follow-up care with Dr. Hoan-Vu 

Nguyen, M.D.,8a board certified orthopedic surgeon with a sub-specialty in 

spinal surgery. According to Dr. Nguyen, plaintiff reported complaints relating 

to her "neck, her right wrist, her upper back and her lower back." Initially, he 

prescribed conservative treatment in the form of physical therapy and a wrist 

splint. When plaintiff's symptoms persisted, Dr. Nguyen sent her for an MRI of 

her lumbar spine in April 2013, approximately four months after the accident. 

He read the MRI as showing "a [disc] herniation at L5-S1 . . . a central herniation 

with associated annular tear." Dr. Nguyen also sent plaintiff to another 

physician in his practice, Dr. Meyers, who performed epidural injections, facet 

injections, and radiofrequency ablation at L4-L5 and L5-S1.

Dr. Nguyen sent plaintiff for a second MRI of her lumbar spine in 

September 2014. He interpreted the MRI as showing "more compression on the 

nerve root . . . at L4-L5." He stated that plaintiff continued to receive pain 

management treatment from Dr. Meyers, at that time. 

8

 Dr. Nguyen previously treated plaintiff for injuries she sustained in an April 

25, 2008 motor vehicle accident. Dr. Nguyen performed cervical fusion 

surgeries on plaintiff in December 2009 and June 2011. Plaintiffs settled their 

case arising out of the 2008 accident five days before the accident under review. 
11 A-2810-18T3

Dr. Nguyen testified that plaintiff was hospitalized in May 2015, after she 

"developed severe worsening of her pain . . . and weakness in her right leg." He 

said the weakness proceeded to the point that plaintiff experienced "foot drop." 

Another MRI was completed at the hospital. Dr. Nguyen interpreted the MRI 

as showing that the herniation "has gotten even bigger and there's almost no 

room for this nerve root." He explained that plaintiff required surgery to remove 

"the compression on the nerve," and allow it to heal; otherwise, without surgery 

her "foot drop would be permanent."

On July 2, 2016, after plaintiff's symptoms failed to improve, Dr. Nguyen 

performed an L4-L5 decompression, laminectomy, and fusion with 

instrumentation. He explained the surgery involved removal of the disc and then 

the insertion of rods and screws, "or else [her] back would fall apart." While 

the surgery did not resolve all of plaintiff's lumbar problems, Dr. Nguyen said 

it did improve her foot drop condition.

Plaintiff testified she spent four to five days in the hospital for the surgery. 

She described the first day after her surgery as "terrible," recalling "[t]he pain 

. . . once everything [wore] off . . . ." She needed to use a walker for several 

months after the surgery, and then a cane for several months after that. She also 

received physical therapy for six months after her surgery. That therapy brought 
12 A-2810-18T3

stability to her legs, eventually permitting her to walk again without a walker or 

cane; however, at the time of trial, she still had "pain that goes down [her] leg." 

As a result, she continued to receive active pain management treatment.

Dr. Nguyen opined that plaintiff's lower back will never return to its preaccident state. He further stated that the accident caused plaintiff to sustain 

trauma to her cervical spine, resulting in a contusion of the spinal cord, as 

confirmed by an MRI. He also described this as a permanent injury.

On the last day of trial, Allstate presented the testimony of its defense 

medical expert, Lance Markbreiter, M.D., a board-certified orthopedic surgeon. 

Dr. Markbreiter testified, "I don't do major spine surgery. I don't do fusions 

such as [plaintiff] had . . . . By 1998, I stopped doing major spinal surgery." He 

explained that he now performs mostly outpatient surgeries, "a lot of knees, a 

lot of shoulders."

After examining plaintiff and reviewing her medical records – including 

multiple MRIs – Dr. Markbreiter issued a written report on May 29, 2017. He

opined that plaintiff's lumbar spine condition was degenerative, and that none 

of the MRIs showed any disc herniations. While he acknowledged that 

plaintiff's MRIs showed "progressive pathology at the L4-L5 level," he testified 

that the 2012 accident caused plaintiff to sustain only "a minor sprain to her 
13 A-2810-18T3

back." He explained that the initial conservative treatment plaintiff received 

and the results of her MRIs both supported his opinion that plaintiff did not 

sustain any permanent injuries as a result of the 2012 accident.

Dr. Markbreiter further testified that based upon the police report, the 

accident impact "was very minor." Notwithstanding the fact that Dr. 

Markbreiter was recognized as an expert witness in the field of orthopedic 

surgery, and not as an expert in accident reconstruction or biomechanical 

engineering, defense counsel next elicited testimony that the severity of the 

impact is "very important. The mechanism of injury, a small tap, it's almost 

unheard of that one will cause a disc herniation." Apparently emboldened by 

the absence of an objection to this testimony, and notwithstanding the fact that 

Dr. Markbreiter did not view any accident photographs prior to issuing his 

report, counsel elicited the following testimony:

Q: Dr. Markbreiter the jury is going to have 

photographs which they're going to be able to take into 

the jury room. I'm going to represent to you that these 

have been identified showing the rear of the Thompson 

vehicle. You just gave an opinion that you had based 

upon the collision report and the history that you had in 

terms of the minor nature of the impact. Do those 

photographs corroborate that opinion?

A: Yes.
14 A-2810-18T3

At this point, plaintiffs' attorney finally objected. The trial judge sustained the 

objection, after noting there was not

enough of a basis for [Dr. Markbreiter] to give an 

opinion based upon the pictures he's seeing now for the 

first time, especially with the limited amount of 

information he sees. For example, was it to the right 

side, to the left side, or to the middle, or where was 

[plaintiff] seated in the car? All of these things are a 

factor in what we call impact. I don't think he knows 

[anything] about the impact . . . just from looking at 

these pictures, are they consistent with a minor 

[impact]? Well, the jury can make that decision.

. . . .

That's a factual question that the jury can say, but it's 

not one that he can really testify to.

. . . .

I'm going to . . . sustain the objection.

At this point, the trial transcript indicates "sidebar ends." Inexplicably, 

the judge did not inform the jury he had sustained plaintiff's objection nor did 

he instruct the jury to disregard the last question and answer. Instead, Allstate's 

attorney continued with his direct examination of Dr. Markbreiter.

II.

We review a trial court's decisions to admit or exclude evidence under an 

abuse of discretion standard. Estate of Hanges v. Metro. Prop. & Cas. Ins. Co., 

202 N.J. 369, 383-84 (2010) (citing Green v. New Jersey Mfrs. Ins. Co., 160 
15 A-2810-18T3

N.J. 480, 492 (1999)). In doing so, we grant "substantial deference to the 

evidentiary rulings of a trial judge." Fitzgerald v. Stanley Roberts, Inc., 186 

N.J. 286, 319 (2006) (citing DeVito v. Sheeran, 165 N.J. 167, 198 (2000)). 

Accordingly, absent a showing the trial court abused its discretion, we will not 

reverse a decision concerning the admission or exclusion of evidence unless we 

conclude it was so wide of the mark as to bring about a manifest injustice. E & 

H Steel Corp. v. PSEG Fossil, LLC, 455 N.J. Super. 12, 24-25 (App. Div. 2018) 

(citing Griffin v. City of E. Orange, 225 N.J. 400, 413 (2016)).

Under New Jersey's Rules of Evidence, all relevant evidence is 

presumptively admissible. N.J.R.E. 402. Evidence is relevant if it has "a 

tendency in reason to prove or disprove any fact of consequence to the 

determination of the action." N.J.R.E. 401. To determine whether evidence is 

relevant, courts look at "the logical connection between the proffered evidence 

and a fact in issue." Verdicchio v. Ricca, 179 N.J. 1, 33 (2004) (quoting State 

v. Hutchins, 241 N.J. Super. 353, 358 (App. Div. 1990)). Courts determine 

"whether the evidence proffered 'renders the desired inference more probable 

than it would be without the evidence.'" Ibid. (quoting State v. Davis, 96 N.J. 

611, 619 (1984)).
16 A-2810-18T3

N.J.R.E. 901 states that "[t]he requirement of authentication or 

identification as a condition precedent to admissibility is satisfied by evidence 

sufficient to support a finding that the matter is what its proponent claims." As 

pointed out by the court in Kalola v. Eisenberg,

[N.J.R.E.] 901 does not erect a particularly high hurdle. 

The proponent of the evidence is not required to rule 

out all possibilities inconsistent with authenticity, or to 

prove beyond any doubt that the evidence is what it 

purports to be.

. . . .

The requirement under [N.J.R.E.] 901 is satisfied if 

sufficient proof has been introduced so that a 

reasonable juror could find that the matter in question 

is what its proponent claims.

[344 N.J. Super. 198, 205-06 (Law Div. 2001) (internal 

citations and quotations omitted).]

Accordingly, all that is needed to admit photographs is witness testimony 

that the photograph is a fair and accurate depiction of what the exhibit purports 

to show. See Brenman v. Demello, 191 N.J. 18, 21 (2007) ("The admissibility 

of any relevant photograph rests on whether the photograph fairly and accurately 

depicts what it purports to represent . . . ."); State v. Joseph, 426 N.J. Super. 204, 

220 (App. Div. 2012) ("The authentication of photographic evidence requires a 

witness to verify that it accurately reflects its subject, and to identify or state 
17 A-2810-18T3

what the photograph shows.") (citing State v. Wilson, 135 N.J. 4, 14 (1994)). 

However, a court may exclude otherwise admissible evidence "if its probative 

value is substantially outweighed by the risk of [] undue prejudice, confusion of 

issues, or misleading the jury . . . ." N.J.R.E. 403. 

 III.

On appeal, plaintiffs contend the trial judge erred in making his 

evidentiary rulings concerning the photographs of the Grand Marquis. Plaintiffs 

assert the trial judge should have allowed plaintiff's husband to testify and 

introduce photographs of further damage which he observed to the car at the 

repair shop. They contend this error was magnified when the judge permitted

Allstate to introduce photographs of the car following the accident, and failed 

to properly instruct the jury after sustaining plaintiff's objection to Dr. 

Markbreiter's improper testimony commenting on the rear bumper photograph.

A. Evidence of Additional Damage to the Grand Marquis.

Our review is somewhat hindered by the fact that the proposed testimony 

of plaintiff's husband and any relevant photographs were not preserved, pursuant 

to Rule 1:7-3. Nevertheless, it appears clear from the record what counsel 

sought to elicit from plaintiff's husband. See N.J. Sports & Exposition Auth. v. 

Koziol, 172 N.J. Super. 219, 221 (App. Div. 1980).
18 A-2810-18T3

Although the parties did not request a Rule 104 hearing, we hold that it 

was plain error for the trial court not to conduct an evidentiary hearing in order 

to determine the admissibility of the testimony and photographs of the additional 

damage that was revealed upon removal of the damaged rear bumper. See Kemp 

v. State, 174 N.J. 412, 432-33 (2002). Our adversarial process assumes the court 

will give the parties an adequate opportunity to be heard; if it does not, it cannot 

find facts reliably. Ibid. "[T]he detailed factual record requirement, firmly 

entrenched in our jurisprudence, requires adequate process at the evidentiary 

stage . . . ." Ibid. In a case where causation was the central issue, evidence of

the severity of the impact to the Grand Marquis clearly had the capacity to 

determine the outcome of the case. 

The record does not indicate the trial judge reviewed the deposition 

testimony of plaintiff's husband or any photographs taken at the body shop. 

Without reviewing this critical evidence, we are convinced the judge erred by 

telling plaintiff she needed an expert and the challenged evidence was "too 

speculative." While it remains possible that the outcome of a Rule 104 hearing 

may produce valid reasons for excluding the challenged evidence, such an 

outcome is far from certain. We note that an expert would not be required if a 

jury, based on its common knowledge and experience, could determine whether 
19 A-2810-18T3

there was any damage to the frame and, if so, whether it was causally related to 

the accident.

Expert testimony is not required when the subject can be readily 

understood by jurors utilizing their common knowledge and experience, 

provided it is not beyond the "ken of the average juror." State v. Harvey, 121 

N.J. 407, 426-27 (1990). A topic is beyond the ken of the jury and requires 

expert testimony to support the claim only "when the subject matter to be dealt 

with 'is so esoteric that jurors of common judgment and experience cannot form 

a valid judgment as to whether the conduct of the party was reasonable.'" Rocco 

v. N.J. Transit Rail Operations, Inc., 330 N.J. Super. 320, 34 (App. Div. 2000) 

(quoting Butler v. Acme Mkts., Inc., 89 N.J. 270, 283 (1982)). Several cases 

provide examples of when expert testimony is not needed. See State v. Harvey, 

121 N.J. 407, 427 (1990) (finding that neither comparison between shoe print 

and proffered shoe, nor proposition that "shorter people tend to have smaller 

feet" required expert testimony); Boland v. Dolan, 140 N.J. 174, 189 (1995) ("an 

instrument of 'common knowledge' like an ordinary magnifying glass, generally 

requires no expert testimony"). 
20 A-2810-18T3

B. Dr. Markbreiter's Improper Testimony.

We next address plaintiffs' argument that the trial judge erred in not 

providing a curative instruction after sustaining plaintiff's objection. Since 

plaintiffs failed to request a curative instruction at trial, plaintiffs would 

normally face the burden of showing "that the failure to give such an instruction 

sua sponte constitutes an error 'clearly capable of producing an unjust result.'" 

State v. Mays, 321 N.J. Super. 619, 633 (App. Div. 1999) (quoting State v. 

Loftin, 287 N.J. Super. 76, 97 (App. Div. 1996)). Regardless of the judge's 

failure to provide a curative instruction or plaintiffs' error in not requesting one, 

the plain error here was the judge's failure to announce his ruling and inform the 

jury that he had sustained plaintiff's objection. As a result, the jury was allowed 

to consider Dr. Markbreiter's improper testimony commenting on the rear 

bumper photograph to support his opinions on causation.

Dr. Markbreiter is not a biomechanical expert qualified to comment on 

physical forces. The record contains no evidence that Dr. Markbreiter has any 

background, training, or experience in biomechanics or accident reconstruction, 

nor did defendant offer him as expert in these fields. Moreover, as the judge 

noted in sustaining plaintiffs' objection concerning the photograph of the rear 

bumper, the record lacks relevant details of the accident, including exact 
21 A-2810-18T3

information regarding the damage to each vehicle, the size of each vehicle, the 

speed of each vehicle, as well as information regarding the interior of plaintiff's 

vehicle. 

The judge properly sustained plaintiffs' objection to Dr. Markbreiter's

testimony commenting on the extent of damage depicted in the photo of the rear 

bumper of the Grand Marquis. Dr. Markbreiter did not rely upon the photo when 

he prepared his report setting forth his opinions in this case, nor does the record 

reflect that he possesses any expertise in biomechanics or accident 

reconstruction. 

The heart of the dispute in this case was not whether plaintiff sustained a 

serious injury, but rather what caused it. In that context, it was plain error for 

the jury not to hear that the judge had sustained plaintiffs' objection to Dr. 

Markbreiter citing the rear bumper photo as corroborating his opinion as to the 

minor nature of the impact and the unlikelihood that such an impact could have 

caused serious injury to plaintiff's spine.

The jury likely accepted Dr. Markbreiter's conclusions regarding 

mechanism of injury because they came from a medical expert. We therefore 

conclude the failure of the trial court to sustain plaintiffs' objection on the trial 
22 A-2810-18T3

record resulted in clear prejudice to plaintiffs and was "clearly capable of 

producing an unjust result." R. 2:10-2. 

Because the trial court mistakenly denied plaintiff's the opportunity to 

provide critical evidence regarding damage sustained by the Grand Marquis

without basis, and because of the real prospect that Dr. Markbreiter's improper

opinion testimony had an impact on the critical causation issue in the case, a 

new trial is required. We therefore reverse the no cause judgment and remand 

for a new trial. 

In light of the comments made by the trial judge regarding the testimony 

and evidence concerning what plaintiff's husband observed at the body shop 

where the Grand Marquis was repaired, which comments went considerably 

beyond what was necessary to address the issue at hand and indicated he may 

have prejudged the issue, we direct that the case proceed to trial before a 

different judge on remand. See P.T. v. M.S., 325 N.J. Super. 193, 220-21 (App. 

Div. 1999). 

Reversed and remanded. We do not retain jurisdiction.