SYLLABUS

(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the 

convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the 

interest of brevity, portions of any opinion may not have been summarized.)

Sofia T. Torres v. Javier Pabon and Suburban Disposal, Inc. (A-116-13) (074307)

Argued November 10, 2015 -- Decided June 1, 2016

PATTERSON, J., writing for a unanimous Court.

 In this appeal, arising from a judgment in plaintiff’s favor in a motor vehicle negligence case, the Court 

considers defendants’ contention that the trial court committed several errors that mandate reversal of the judgment 

and a new trial. 

On August 30, 2007, before starting his daily garbage collection route, defendant Javier Pabon (Pabon) 

inspected the truck assigned to him by his employer, Suburban Disposal, Inc. (Suburban). Pabon noticed that some 

of the truck’s rear lights were covered with debris that could not be removed by wiping with a cloth. At 4:30 a.m., 

Pabon commenced his route on the eastbound lanes of Route 46 in Fairfield. Pabon testified that his truck was 

traveling at forty to forty-five miles per hour when he entered a construction area and was directed by a sign to 

merge left. He stated that he slowed his vehicle as he merged, but that he was unaware of plaintiff’s vehicle until it 

collided with his truck. Plaintiff testified that she was driving her car eastbound on Route 46, at a speed of forty-five 

to fifty miles per hour. She stated that as she merged left, she saw a “dark silhouette” of an object ahead and that 

she attempted to brake when she realized that the object was a truck, but her car crashed into the back of the truck. 

Plaintiff filed a complaint against Pabon and Suburban. She alleged that defendants were negligent and 

sought compensatory damages. Defendants denied plaintiff’s allegations and, pursuant to the Comparative 

Negligence Act, asserted plaintiff’s own negligence as an affirmative defense. Defendants’ counsel was informed 

that Pabon had left the country and could not be deposed. Plaintiff moved for an order barring Pabon from testifying 

at trial and for an extension of the discovery end date. Prior to the return date of that motion, Pabon returned to the 

United States and was deposed. Unaware of that development, a motion judge entered an order granting plaintiff’s 

motion to bar Pabon from testifying at trial, but denying plaintiff’s request to extend discovery. 

On May 16, 2011, more than a year after the trial court denied an extension of discovery and approximately 

two-and-a-half weeks before the trial date, plaintiff served a set of requests for admissions asking that defendants 

admit or deny various medical opinions submitted by Thomas E. Helbig, M.D., defendants’ expert orthopedist. 

When trial began on June 6, 2011, the thirty-day period for defendants’ response to plaintiff’s requests for 

admissions, as prescribed by Rule 4:22-1, had not yet expired. Defendants took the position that the requests for 

admissions were untimely, and did not serve responses to those requests. 

In his opening statement, plaintiff’s counsel referred to admissions made by Pabon at his deposition. 

Defendants objected, citing the pretrial order barring Pabon from testifying. Pabon did not testify, but the trial court 

permitted plaintiff to read portions of his deposition testimony into evidence. Pursuant to State v. Clawans, 38 N.J.

162 (1962), the court instructed the jury to consider drawing an adverse inference against defendants from Pabon’s 

failure to testify. Defendants declined to present Dr. Helbig’s testimony. Plaintiff’s counsel, however, asserted that 

he had the right to read into the record plaintiff’s requests for admissions. Defendants’ counsel objected. The trial 

court permitted plaintiff’s counsel to read those requests to the jury and issued a second Clawans charge authorizing 

the jury to draw an adverse inference against defendants because they decided not to call their expert as a witness. 

During her direct examination, plaintiff volunteered that she had significant medical bills and lacked the 

resources to pay them. Defendants’ counsel objected. The trial court did not strike the testimony or instruct the jury 

to disregard it. In addition, the trial court misidentified defendant as the party who was subject to the duty to follow 

another vehicle at a safe distance, despite the undisputed evidence that plaintiff’s vehicle was traveling behind the 

truck driven by Pabon.

The jury returned a verdict in plaintiff’s favor, allocating fifty-five percent of the fault to defendants and 

forty-five percent to plaintiff. The jury awarded $4.5 million in damages. The trial court molded the verdict and 

entered judgment for plaintiff in the amount of $2,735,455.08. Defendants appealed, claiming that the trial court 

erred by issuing adverse interest charges as to Pabon and Dr. Helbig; by allowing plaintiff to read to the jury the

requests for admissions; by failing to instruct the jury that plaintiff was not entitled to medical expenses; and, by 

misidentifying defendant as the party who was subject to the duty to follow another vehicle at a safe distance. 
The Appellate Division affirmed, concluding that there was no abuse of discretion and that the errors 

defendants complained of were harmless in light of the evidence. The Supreme Court granted defendants’ petition 

for certification. 218 N.J. 531 (2014).

HELD: The trial court’s five erroneous determinations, affecting both the issue of liability and the determination of 

damages, gave rise to cumulative error warranting a new trial. 

1. An adverse inference charge may be warranted when a party’s failure to present evidence “raises a natural 

inference that the party so failing fears exposure of those facts would be unfavorable to him.” State v. Clawans, 

supra, 38 N.J. at 170. A jury may draw an adverse inference only if it appears “that the person was within the power 

of the party to produce and that his testimony would have been superior to that already utilized in respect to the fact 

to be proved.” Id. at 171. In State v. Hill, this Court prescribed a four-pronged test for an adverse interest charge. 

199 N.J. 545, 561-62 (2009). Given its potentially dispositive impact on the jury’s determination – and prejudicial 

impact of an inappropriate adverse inference – the adverse inference charge is only given when all of the Hill factors 

are found to warrant the charge. Id. at 561. In this case, had the trial court undertaken the thorough analysis 

mandated by Hill, it would have denied plaintiff’s request for the Clawans charge concerning Pabon. (pp. 14-18)

2. Plaintiff’s requests for admissions were untimely and substantively improper, and defendants had no obligation 

to respond to them. Plaintiff did not seek admissions from defendants regarding facts within defendants’ knowledge

or attempt to authenticate documents. Instead, she sought defendants’ admissions to selected portions of Dr. 

Helbig’s expert report. The requests for admissions did not conform to Rule 4:22-1 and, accordingly, the trial 

court’s decision to allow plaintiff to read them to the jury constituted an abuse of discretion. An appropriate 

analysis pursuant to Hill, supra, with respect to Dr. Helbig, would have confirmed that no Clawans charge was 

warranted. (pp. 18-23) 

3. Pursuant to N.J.S.A. 39:4-89, “[t]he driver of a vehicle shall not follow another vehicle more closely than is 

reasonable and prudent, having due regard to the speed of the preceding vehicle and the traffic upon, and condition 

of, the highway.” In the form set forth in Model Jury Charge (Civil), § 5.30D(2) “Violation of Traffic Act” (August 

1999), the instruction to the jury envisions that the driver following behind another driver at the time of a motor 

vehicle collision is the defendant, not the plaintiff. Here, however, the driver subject to the duty was plaintiff, not 

defendant, and the trial court should have ensured that the Model Jury Charge was tailored to reflect that fact. The 

trial court’s charge on this important issue was contradictory and confusing, and constituted error. (pp. 23-25)

4. New Jersey’s 1998 Automobile Insurance Cost Reduction Act (AICRA), N.J.S.A. 39:6A-1.1 to -35, bars juries 

from speculating “as to the amount of the medical expense benefits paid or payable by an automobile insurer under 

personal injury protection coverage payable under a standard automobile insurance policy...” In this case, 

unprompted by her counsel, plaintiff told the jury that she was unable to pay “[h]undreds, thousands of dollars” in 

medical bills. The trial court erred when it failed to include the medical expenses charge in its jury instructions, 

thereby permitting the jury to mistakenly assume that the medical expenses described by plaintiff constituted an 

element of her claim for damages. (pp. 25-30) 

5. The trial court’s five erroneous determinations gave rise to cumulative error warranting a new trial. The Clawans

instruction regarding Pabon suggested to the jury that defendants had concealed potentially dispositive information 

on defendants’ negligence. By allowing plaintiff to read her requests for admissions to the jury, the trial court 

selectively informed the jury about aspects of Dr. Helbig’s opinion that favored plaintiff. In giving a Clawans

charge concerning Dr. Helbig, the court suggested that defendants feared the expert’s disclosure of adverse 

evidence. The confusing jury instruction regarding a driver’s duty to follow another driver at a safe distance 

suggested that defendant was subject to a finding of negligence because of a purported violation of the traffic statute. 

The trial court’s failure to give the required charge regarding medical expenses permitted the jury to consider 

plaintiff’s statements about her medical expenses in its calculation of damages. Because of those errors, defendants 

were not afforded a fair trial on either liability or damages and are entitled to a new trial. (pp. 27-28)

The judgment of the Appellate Division is REVERSED and the matter is REMANDED to the trial court 

for proceedings consistent with the Court’s opinion. 

CHIEF JUSTICE RABNER; JUSTICES LaVECCHIA, ALBIN, and SOLOMON; and JUDGE 

CUFF (temporarily assigned) join in JUSTICE PATTERSON’s opinion. JUSTICE FERNANDEZ-VINA did 

not participate. 

2
1

SUPREME COURT OF NEW JERSEY

A-116 September Term 2013

074307

SOFIA T. TORRES,

Plaintiff-Respondent,

v.

JAVIER PABON and SUBURBAN 

DISPOSAL, INC.,

Defendants-Appellants.

Argued November 10, 2015 – Decided June 1, 2016

On certification to the Superior Court, 

Appellate Division.

Timothy P. Smith argued the cause for 

appellants (Coughlin Duffy, attorneys; James 

P. Lisovicz, of counsel; Mr. Smith, Mr. 

Lisovicz, and Brooks H. Leonard, on the 

briefs).

Jean A. Amagsila argued the cause for 

respondent.

Jonathan W. Miller argued the cause for 

amicus curiae New Jersey Association for 

Justice (Locks Law Firm, attorneys; Mr. 

Miller and Michael A. Galpern, on the 

brief).

JUSTICE PATTERSON delivered the opinion of the Court.

In this appeal, arising from a judgment in plaintiff’s 

favor in a motor vehicle negligence case, we consider 

defendants’ contention that the trial court committed several 

errors that mandate reversal of the judgment and a new trial. 
2

Plaintiff Sofia Torres alleged that she was seriously 

injured in a rear-end collision between her car and a garbage 

truck owned by defendant Suburban Disposal, Inc. (Suburban) and 

operated by defendant Javier Pabon (Pabon). Plaintiff alleged 

that, as a result of defendants’ negligent maintenance of the 

truck’s taillights, she was unaware that the truck was ahead of 

her. She contended that Pabon drove negligently, causing the 

collision. Defendants denied plaintiff’s allegations and 

asserted that plaintiff’s negligence caused the accident. The 

case was tried before a jury, which found both parties negligent 

but allocated fifty-five percent of the fault to defendants, and 

awarded a substantial verdict. The Appellate Division affirmed 

the trial court’s judgment.

We conclude that the trial court committed a series of

errors during the trial. First, the trial court improperly 

issued a jury charge pursuant to State v. Clawans, 38 N.J. 162 

(1962), directing the jury to consider drawing an adverse 

inference against defendants from Pabon’s failure to testify 

after plaintiff presented Pabon’s deposition testimony to the 

jury. Second, the trial court permitted plaintiff to read to 

the jury requests for admissions, served by plaintiff 

immediately before trial, which improperly sought defendants’ 

admissions to medical opinions offered by one of their expert

witnesses. Third, the trial court erroneously issued a second 
3

Clawans charge, again authorizing the jury to draw an adverse 

inference against defendants because they decided not to call 

their expert as a witness. Fourth, the trial court made 

significant errors in its jury instruction regarding the duty of 

a driver to maintain a safe distance behind another driver. 

Finally, notwithstanding plaintiff’s testimony before the jury 

that she had significant medical bills and lacked the resources 

to pay them, the trial court failed to instruct the jury that 

plaintiff was not entitled to medical expenses as an element of 

damages, in accordance with N.J.S.A. 39:6A-12. 

We hold that those five improper rulings, which affected 

both the determination of liability and the damages award, gave 

rise to cumulative error warranting a new trial. Accordingly, 

we reverse the determination of the Appellate Division and 

remand to the trial court for a new trial. 

I.

In the early morning of August 30, 2007, at the Fairfield 

yard operated by his employer, Suburban, Pabon inspected the 

truck assigned to him for his daily garbage collection route. 

According to his deposition testimony, Pabon noticed that 

although none of the lights on the truck were missing or broken, 

some of the lower lights at the rear of the truck were covered 

with debris that could not be removed by wiping the lights with 

a cloth. 
4

At 4:30 a.m., Pabon commenced his route, driving in a 

fifty-mile-per-hour zone in one of the eastbound lanes of Route 

46 in Fairfield. Pabon testified that his truck was traveling 

at forty to forty-five miles per hour when he entered a 

construction area and was directed by a sign to merge to the 

left. He stated that he slowed his vehicle by taking his foot 

off the gas pedal, but did not apply his brakes. According to 

Pabon, as his truck merged into the left lane, he did not see 

any approaching cars, and he was unaware of plaintiff’s vehicle 

until it collided with his truck. 

Plaintiff testified that, immediately before the accident, 

she was driving her Nissan Altima eastbound on Route 46, at a 

speed of forty-five to fifty miles per hour. She stated that 

she saw the sign directing vehicles to merge from the right lane 

into the left lane. She recalled that, as she merged to the 

left, she saw a “dark silhouette” of an object ahead, but could 

not “make it out” because it was “camouflage[d] with everything 

around there.” Plaintiff said that when she realized that the 

object was a truck, she “stomped on [her] brakes,” but “[w]ithin 

one or two seconds, my right side, the driver’s side hit into 

the back of the truck.” 

Plaintiff filed a complaint against Pabon and Suburban. 

She alleged that defendants were negligent and sought

compensatory damages. Defendants denied plaintiff’s allegations 
5

and asserted plaintiff’s own negligence as an affirmative 

defense, pursuant to the Comparative Negligence Act, N.J.S.A.

2A:15-5.1 to -5.17. 

In response to a notice to take Pabon’s deposition, 

defendants’ counsel informed plaintiff’s counsel that Pabon had 

left the United States and could not be produced for a 

deposition. Several months later, plaintiff moved for an order 

barring Pabon from testifying at trial and for an extension of 

the discovery end date. Prior to the return date of that 

motion, Pabon returned to the United States. Plaintiff’s 

counsel conducted Pabon’s deposition on November 24, 2009. 

Apparently uninformed about that development, a motion judge

entered an order on December 4, 2009, granting plaintiff’s 

motion to bar Pabon from testifying at trial, but denying 

plaintiff’s request to extend discovery. 

During discovery, defendants designated Thomas E. Helbig, 

M.D., as their expert orthopedist. In his report, Dr. Helbig 

opined that plaintiff had sustained several fractures, evidently 

as a result of the August 30, 2007 accident, and that although 

plaintiff “exhibits excellent alignment of the lower 

extremities,” she “does exhibit persistent pain, weakness and 

atrophy, particularly in the left leg.”

Prior to trial, the trial court considered in limine 

motions addressing expert opinions. The trial court granted 
6

plaintiff’s pretrial motion to bar portions of the opinion of 

defendants’ accident reconstruction expert, John Karpovich, 

regarding the speed of the truck at the time of impact. The 

court rejected defendants’ challenge to the accident 

reconstruction expert testimony of plaintiff’s expert, Walter 

Suhaka. Before jury selection, the trial court ruled that, 

plaintiff’s treating internist, Peter P. Yonclas, M.D., would be 

permitted to testify despite plaintiff’s late service of a 

supplemental report by the physician, on the grounds that his 

report reflected his continued treatment of plaintiff.1

On May 16, 2011, more than a year after the trial court 

denied an extension of discovery and approximately two-and-ahalf weeks before the trial date, plaintiff served a set of 

requests for admissions. The requests for admissions,

designated as a “supplemental demand for admissions,” did not 

request that defendants admit or deny factual assertions or 

authenticate documents. Instead, plaintiff asked that 

defendants admit or deny various medical opinions that Dr. 

Helbig had stated in his expert report. When trial began on 

June 6, 2011, the thirty-day period for defendants’ response to 

plaintiff’s requests for admissions, as prescribed by Rule 4:22-

 

1 In addition to the four expert witnesses who are the subject 

of this appeal, plaintiff designated an expert orthopedist and a 

treating physician to testify on her behalf, and defendants 

designated a neurologist to testify on their behalf. 
7

1, had not yet expired. Defendants took the position that the 

requests for admissions were untimely, and did not serve 

responses to those requests. 

At the commencement of trial, the trial court and the 

parties discussed the potential testimony of defendant Pabon, 

whom defendants had designated as a trial witness in their 

pretrial submissions. Plaintiff’s counsel informed the trial 

court that defendants were barred by court order from presenting 

Pabon’s testimony at trial, on the ground that they had failed 

to produce him for a deposition. Defendants’ counsel informed 

the trial court that Pabon had in fact been deposed, and stated 

that the pretrial order barring his testimony was an error. The 

trial court declined to rule on the potential testimony of Pabon 

prior to trial. 

In his opening statement, plaintiff’s counsel referred to 

admissions made by Pabon at his deposition. Defendants 

objected, citing the pretrial order barring Pabon from 

testifying. Defendants informed the trial court that Pabon 

would be present at trial, and argued that it would be improper 

to admit the transcript of Pabon’s deposition into evidence. 

After a colloquy between the trial court and counsel, Pabon’s 

status as a potential trial witness remained unresolved. The 

trial court, however, permitted plaintiff to read portions of 

Pabon’s deposition testimony into evidence at trial, pursuant to 
8

Rule 4:16-1(c). The court reasoned that the deposition 

contained important information about the condition of the truck 

at the time of the accident. Pabon was present during portions 

of the trial, but did not testify.

Plaintiff, who received Personal Injury Protection (PIP) 

benefits covering hospital and physicians’ bills, asserted no 

claim for medical expenses. Although her counsel properly 

refrained from inquiring about medical expenses in plaintiff’s

direct examination, plaintiff volunteered that she was unable to 

pay her medical bills. She told the jury, “I have no -– no 

peace of mind, I have no money, I have all these bills, all 

these hospital bills. How do they want me to pay for a 

helicopter ride? I have no clue. Hundreds, thousands of 

dollars.” Although defendants’ counsel immediately objected, 

the trial court did not strike the testimony or instruct the 

jury to disregard it. 

Pursuant to the trial court’s pretrial rulings, plaintiff 

was permitted to present her expert testimony without 

limitation. Although he had conducted no analysis to determine 

the speed of either vehicle at the time of impact, plaintiff’s 

accident reconstruction expert, Suhaka, was permitted to testify 

that plaintiff did not have the opportunity to avoid the crash. 

Plaintiff’s expert orthopedist, Dr. Hirsch, was permitted to 

testify about the impact of plaintiff’s injuries on her mental 
9

status and employability. Plaintiff also presented the 

testimony of Dr. Yonclas and another treating physician.

Defendants called no fact witnesses. They called two 

expert witnesses, their expert neurologist and their accident 

reconstruction expert, Karpovich. The accident reconstruction 

expert, barred by the trial court’s ruling from estimating the 

speed of plaintiff’s vehicle, testified within the constraints 

imposed by the court. Defendants declined to present the 

testimony of their expert orthopedist, Dr. Helbig.

At the charge conference, plaintiff’s counsel claimed that 

defendants had decided not to call Dr. Helbig to the stand 

because his report supported opinions stated by plaintiff’s 

expert. Plaintiff’s counsel asserted that he had the right to 

read into the record plaintiff’s requests for admissions, which

set forth various opinions stated in Dr. Helbig’s report.

Defendants’ counsel objected, arguing that plaintiff’s requests 

for admissions, to which defendants had not responded in light 

of their untimely service, could not serve as a substitute for 

expert testimony. Although the trial court initially expressed 

concerns about the fairness of plaintiff’s proposed use of her 

requests for admissions, it permitted plaintiff’s counsel to 

read those requests to the jury.

Also at the charge conference, the trial court decided to 

instruct the jury that it could draw an adverse inference 
10

against defendants because they had not presented the testimony 

of defendant Pabon or the testimony of their expert, Dr. Helbig. 

The court did not engage in an analysis of plaintiff’s request 

for the adverse inference charges under Clawans and State v. 

Hill, 199 N.J. 545 (2009). Instead, the court commented that 

Pabon was available in court, that defendants had the 

opportunity to call him to the stand, and that defendants could 

have also called Dr. Helbig as a witness but did not do so. In 

summation, plaintiff’s counsel emphasized the adverse inference 

that the jury could draw because defendants had declined to 

present Dr. Helbig’s testimony. 

When the trial court gave the jury an instruction based on 

Model Jury Charge (Civil), § 5.30D(2) “Violation of Traffic Act” 

(August 1999), pursuant to Dolson v. Anastasia, 55 N.J. 2, 10 

(1969), it misidentified defendant as the party who was subject 

to the duty to follow another vehicle at a safe distance, 

despite the undisputed evidence that plaintiff’s vehicle was 

traveling behind the truck driven by Pabon before the collision. 

Defendants’ counsel interrupted the trial court’s charge to 

advise the court of its error. Although the trial court 

promised to “clarify” the charge, it repeated its misstatement 

that “defendant” was the motorist subject to the duty to follow

at a safe distance, and then told the jury that if it found 

defendant had followed the other vehicle too closely, “the 
11

plaintiff is also negligent.” The trial court then instructed 

the jury that it could draw adverse inferences from defendants’ 

failure to call Pabon and Dr. Helbig to the stand. 

Notwithstanding plaintiff’s testimony regarding her medical 

bills, the trial court did not charge the jury that it could not

include in its damages calculation plaintiff’s medical expenses. 

Defendants did not request such a charge or object to the trial 

court’s failure to address the issue with the jury.

The jury returned a verdict in plaintiff’s favor. Pursuant 

to N.J.S.A. 2A:15-5.2, the jury allocated fifty-five percent of 

the fault to defendants and forty-five percent of the fault to 

plaintiff. The jury awarded $4.5 million in damages. The trial 

court molded the verdict, awarded prejudgment interest and 

costs, and entered judgment for plaintiff in the amount of 

$2,735,455.08.

An Appellate Division panel affirmed the trial court’s 

judgment. It held that the trial court’s adverse inference 

charge concerning Pabon was not an abuse of discretion. The 

panel concluded that the trial court’s two rulings regarding 

defendants’ expert, Dr. Helbig -- its determination that 

plaintiff was permitted to read the requests for admissions to 

the jury, and its adverse inference charge as to the expert --

constituted harmless error. The panel acknowledged the trial 

court’s confusion of the parties in its jury charge regarding a 
12

driver’s duty to follow at a safe distance, but held that the 

charge was not harmful error in light of the evidence presented 

to the jury regarding the circumstances of the accident. It 

concluded that the trial court’s failure to instruct the jury 

not to consider plaintiff’s medical expenses did not give rise 

to plain error. The panel rejected defendants’ contentions that 

plaintiff’s experts, Suhaka and Dr. Yonclas, were improperly 

permitted to testify, and that the expert testimony of 

defendants’ expert, Karpovich, was erroneously restricted. 

We granted defendants’ petition for certification, 218 N.J.

531 (2014), and granted the motion of the New Jersey Association 

for Justice (NJAJ) to appear as amicus curiae.

II.

Defendants urge the Court to reverse the Appellate 

Division’s judgment and order a new trial. They contend that 

the trial court’s adverse inference charge as to Pabon was not 

only contrary to the principles of Clawans and Hill, but was 

fundamentally unfair in light of plaintiff’s use of Pabon’s 

deposition testimony at trial. Defendants argue that the trial 

court also erred in allowing plaintiff to read to the jury 

untimely and improper requests for admissions regarding the 

opinions of their orthopedic expert, Dr. Helbig. They assert 

that the court’s error was compounded by its decision to issue a

Clawans charge as to Dr. Helbig and add that such a charge is 
13

rarely warranted when a party fails to call an expert witness. 

Defendants contend that the trial court’s mistakes in its charge 

to the jury on a driver’s duty to follow at a safe distance, 

under Dolson, gave rise to reversible error, and that the 

court’s failure to instruct the jury not to consider plaintiff’s 

medical expenses in its calculation of damages constituted plain 

error. Defendants assert that the cumulative effect of the 

trial court’s errors denied them a fair trial.

Plaintiff counters that the trial court was fair and evenhanded in its oversight of this case. She argues that because 

her counsel would have consented had defendants sought to call 

Pabon as a trial witness, and Pabon was present in court, the 

trial court correctly decided to permit the jury to draw an 

adverse inference from his failure to testify. She asserts that 

the trial court did not abuse its discretion in admitting her 

requests for admissions, and that because of defendants’ 

unanticipated decision not to call Dr. Helbig to testify on 

their behalf, the court properly authorized the jury to draw an 

adverse inference from the expert’s absence. Plaintiff also 

argues that the trial court’s mistakes in its jury instruction 

on the duty to follow at a safe distance amounted to nothing 

more than minor semantic errors that did not affect the outcome. 

She notes that defendants declined to request a charge 

admonishing the jury not to consider plaintiff’s medical 
14

expenses in its calculation of damages, and asserts that the 

trial court’s failure to give that charge was not plain error.

Amicus curiae NJAJ urges the Court to remand the matter to 

the trial court or the Appellate Division for additional 

consideration of the trial court’s Clawans jury instruction 

regarding Dr. Helbig. In the alternative, NJAJ proposes that

the Court affirm the decision of the Appellate Division 

regarding the trial court’s issuance of a Clawans charge 

concerning Dr. Helbig, on the ground that any error committed by 

the trial court was harmless.

III.

A.

In our review of defendants’ claim that the trial court 

committed cumulative error, we first consider the court’s 

adverse inference charge regarding the failure of defendant 

Pabon to testify at trial.

An adverse inference charge may be warranted when a party’s 

failure to present evidence “raises a natural inference that the 

party so failing fears exposure of those facts would be 

unfavorable to him.” Clawans, supra, 38 N.J. at 170. The jury 

is instructed that it may draw an adverse inference against the 

party who would be expected to call the witness, but has 

declined to do so. See id. at 170-71; Hill, supra, 199 N.J. at 

559-61. 
15

As this Court stated in Hill, supra, however, the adverse 

inference instruction “is not invariably available whenever a 

party does not call a witness who has knowledge of relevant 

facts.” 199 N.J. at 561. The jury is instructed that it may 

draw an adverse inference from a party’s failure to call a 

witness only if it appears “that the person was within the power 

of the party to produce and that his testimony would have been 

superior to that already utilized in respect to the fact to be 

proved.” Clawans, supra, 38 N.J. at 171 (citing Meistrich v. 

Casino Arena Attractions, Inc., 54 N.J. Super. 25, 31 (App. 

Div.), modified 31 N.J. 44 (1959); O’Neil v. Bilotta, 18 N.J. 

Super. 85, 86 (App. Div.), aff’d, 10 N.J. 308 (1952)). The

adverse inference “is always open to destruction by explanation 

of circumstances which make some other hypothesis a more natural 

one than the party’s fear of exposure.” Ibid.

In Hill, supra, the Court set forth procedures for a trial 

court to follow when a party requests an adverse inference 

charge or states its intent to address in summation the absence 

of a witness. 199 N.J. at 560-62. The party seeking the charge 

“must notify the opposing party and the judge, outside of the 

presence of the jury, must state the name of the witness or 

witnesses not called, and must set forth the basis for the 

belief that the witness or witnesses have superior knowledge of 

relevant facts.” Id. at 560-61. The trial court must conduct a 
16

“dispassionate assessment of the circumstances” of the specific 

case. Id. at 561; see also Washington v. Perez, 219 N.J. 338,

356-57 (2014). To guide that assessment, the Court in Hill, 

supra, prescribed a four-pronged test:

(1) that the uncalled witness is peculiarly 

within the control or power of only the one 

party, or that there is a special relationship 

between the party and the witness or the party 

has superior knowledge of the identity of the 

witness or of the testimony the witness might 

be expected to give; (2) that the witness is 

available to that party both practically and 

physically; (3) that the testimony of the 

uncalled witness will elucidate relevant and 

critical facts in issue[;] and (4) that such 

testimony appears to be superior to that 

already utilized in respect to the fact to be 

proven.

[199 N.J. at 561-62 (alteration in original) 

(quoting State v. Hickman, 204 N.J. Super.

409, 414 (App. Div.), certif. denied, 103 

N.J. 495 (1986)).]

Because the prejudicial impact of an inappropriate adverse 

inference charge may be “severe,” the case-specific assessment 

mandated in Hill serves an essential purpose. Id. at 562. As 

the Court observed, “it is one thing for counsel in his 

summation to point to the absence of particular witnesses; it is 

quite another when the court puts the weight of its authority 

behind such a summation by telling the jury it may draw an 

adverse inference from their absence.” Ibid. (quoting Wild v. 

Roman, 91 N.J. Super. 410, 415 (App. Div. 1966)). Given its 

potentially dispositive impact on the jury’s determination, the 
17

adverse inference charge is only given when all of the Hill

factors are found to warrant the charge. Id. at 561; 

Washington, supra, 219 N.J. at 356. 

Had the trial court undertaken the thorough analysis 

mandated by Hill, it could not have found in plaintiff’s favor 

on all four of the Hill factors, and would have denied 

plaintiff’s request for the Clawans charge concerning Pabon. 

The record did not support a finding on the first factor

identified in Hill, supra: “that the uncalled witness is 

peculiarly within the control or power of only the one party, or 

that there is a special relationship between the party and the 

witness or the party has superior knowledge of the identity of 

the witness or of the testimony the witness might be expected to 

give[.]” 199 N.J. at 561. Plaintiff’s counsel could have 

secured Pabon’s trial testimony by service of a notice in lieu 

of subpoena on his counsel, pursuant to Rule 1:9-1, by court 

order, or by consent. Moreover, plaintiff’s counsel had deposed 

Pabon and was fully familiar with his testimony. 

There was a basis for findings by the trial court in 

plaintiff’s favor on the second Hill factor, “that the witness 

is available to [defendants] both practically and physically,” 

and the third Hill factor, “that the testimony of the uncalled 

witness will elucidate relevant and critical facts in issue[.]” 

199 N.J. at 561. However, given plaintiff’s affirmative use of 
18

Pabon’s detailed deposition testimony in her case, there was no 

support for a finding in plaintiff’s favor on the fourth Hill

factor, that Pabon’s testimony “appears to be superior to that 

already utilized in respect to the fact to be proven.” Ibid.

Thus, the circumstances of this case justified findings in 

plaintiff’s favor with respect to only two of the Hill factors, 

not the mandated four. 

By giving the Clawans charge, the court suggested to the 

jury that Pabon’s testimony would have undermined defendants’

case and that defendants had sought to conceal that testimony 

from the jury. Thus, plaintiff not only utilized deposition 

testimony by Pabon to support her case, but she also had the 

benefit of a potentially determinative jury charge. 

Accordingly, the trial court erred when it gave the jury an 

adverse inference charge pursuant to Clawans with respect to 

defendants’ decision not to call Pabon to testify at trial. 

B.

We next review the trial court’s two determinations

regarding defendants’ orthopedic expert, Dr. Helbig: the 

court’s ruling permitting plaintiff to read to the jury 

plaintiff’s late-served requests for admissions stating Dr. 

Helbig’s opinions, and its Clawans charge based on defendants’ 

decision not to call Dr. Helbig as an expert witness at trial. 
19

Requests for admissions are intended “to streamline 

litigation by ‘weeding out items of fact and proof over which 

there is no dispute, but which are often difficult and expensive 

to establish by competent evidence[.]’” Hungerford v. Greate 

Bay Casino Corp., 213 N.J. Super. 398, 404 (App. Div. 1986)

(quoting Klimowich v. Klimowich, 86 N.J. Super. 449, 452 (App. 

Div. 1965)). Rule 4:22-1 authorizes service on an opposing 

party of “a written request for the admission for purposes of 

the pending action only, of the truth of any matters of fact 

within the scope of R. 4:10-2 set forth in the request, 

including the genuineness of any documents described in the 

request.” The matter set forth in the request is deemed 

“admitted unless, within 30 days after service of the request,

or within such shorter or longer time as the court may allow,

the party to whom the request is directed serves . . . a written 

answer or objection addressed to the matter, signed by the party 

or by the party’s attorney[.]” Ibid. 

In this case, plaintiff’s requests were served long after 

the close of discovery, so close to the trial date that the 

thirty-day period to respond did not expire until the trial was 

well underway. There was no application to the court for leave 

to serve the requests, much less an order granting such leave. 

The requests for admission were therefore untimely, and 

defendants had no obligation to respond to them. 
20

The requests for admissions also were substantively 

improper. Plaintiff did not seek admissions from defendants 

regarding facts within defendants’ knowledge, or attempt to 

authenticate documents. Instead, she sought defendants’ 

admissions to selected portions of Dr. Helbig’s expert report. 

The requests for admissions did not conform to Rule 4:22-1. 

Accordingly, the trial court’s decision to authorize plaintiff 

to read to the jury plaintiff’s requests for admissions 

constituted an abuse of its discretion. 

The trial court’s error was compounded when it gave the 

jury an adverse inference charge regarding defendants’ decision 

not to call Dr. Helbig as a witness. Defendants objected to 

plaintiff’s request for a Clawans instruction, noting that 

giving that charge after allowing plaintiff to read the requests 

for admissions concerning Dr. Helbig’s report would be “piling 

on.” The trial court rejected defendants’ argument. Consistent

with its approach to the adverse inference issue regarding 

Pabon, the court gave the instruction without considering the 

Hill factors as they applied to Dr. Helbig. 

Again, had the trial court undertaken an appropriate 

analysis pursuant to Hill with respect to Dr. Helbig, that 

inquiry would have confirmed that no Clawans charge was 

warranted. The first Hill factor, which focuses on one party’s 

exclusive control over, or special relationship with, the 
21

witness, weighs against a Clawans charge. 199 N.J. at 561. 

Defendants exercised no proprietary right to their expert’s 

testimony, and plaintiff could have called Dr. Helbig to the 

stand. Washington, supra, 219 N.J. at 365 (noting defendants 

did not have exclusive control over physicians designated as 

their experts); Fitzgerald v. Stanley Roberts, Inc., 186 N.J.

286, 302 (2006) (holding party may call adversary’s expert when 

expert was designated as adversary’s testifying expert). 

The record is inconclusive with respect to the second Hill

factor, which concerns whether Dr. Helbig was “available to 

[defendants] both practically and physically.” 199 N.J. at 561. 

The third consideration identified in Hill, whether Dr. Helbig’s 

testimony would have “elucidate[d] relevant and critical facts 

in issue,” also provides no support for an adverse inference 

charge. Ibid. There is no indication that Dr. Helbig was 

uniquely aware of any facts relevant to this case, in light of 

plaintiff’s examination and treatment by her own medical 

witnesses, or that he had information that was withheld from the 

expert’s report that was served on plaintiff. Finally, Dr. 

Helbig’s testimony was not “superior to [testimony] already 

utilized in respect to the fact to be proven,” for purposes of 

the fourth Hill factor. Ibid. There is no indication that Dr. 

Helbig’s testimony would have proven more illuminating than the 

opinions of the experts who testified before the jury. Thus, 
22

under a proper Hill analysis, plaintiff’s request for an adverse 

inference charge concerning Dr. Helbig’s failure to testify

should have been denied. Moreover, in accordance with Hill,

supra, the trial court should have barred plaintiff’s counsel 

from discussing, in summation, Dr. Helbig’s absence from the 

trial. 199 N.J. at 569 n.9.

Indeed, as this Court held after the trial in this case, “a 

Clawans charge will rarely be warranted when the missing witness 

is not a fact witness, but an expert.” Washington, supra, 219 

N.J. at 364. By virtue of the expansive expert discovery 

authorized by our court rules, an expert’s opinions and the 

factual basis for those opinions are likely to be disclosed to 

the opposing party well in advance of trial. Id. at 361-62. 

Moreover, a party’s decision not to call a particular expert 

witness may reflect strategic considerations having nothing to 

do with that party’s fear of adverse testimony. Id. at 363-64. 

“Thus, when the witness whom a party declines to call at trial 

is an expert rather than a fact witness, the factors that may 

necessitate an adverse inference charge addressing the absence 

of a fact witness are unlikely to be germane.” Id. at 364.

Accordingly, the trial court committed two errors in its 

response to defendants’ decision not to call Dr. Helbig as their 

expert orthopedist at trial: it permitted plaintiff to read her 

untimely and improper requests for admissions to the jury, and 
23

it gave the jury an unwarranted and inappropriate Clawans

charge.

C.

We next consider the trial court’s jury instruction 

regarding the duty of a driver to maintain a safe distance while 

following another vehicle. The Legislature codified that duty 

in N.J.S.A. 39:4-89:

The driver of a vehicle shall not follow 

another vehicle more closely than is 

reasonable and prudent, having due regard to 

the speed of the preceding vehicle and the 

traffic upon, and condition of, the highway.

 

In Dolson, supra, this Court determined that N.J.S.A. 39:4-

89 “merely incorporates the common law standard into the motor 

vehicle law to authorize penal sanctions for a violation[,]” and 

that a driver’s conduct contravening that standard “is

negligence and a jury should be so instructed.” 55 N.J. at 10 

(emphasis in original); see also Eaton v. Eaton, 119 N.J. 628, 

642-43 (1990) (holding where “a statute specifically 

incorporates a common-law standard of care, a jury finding of a 

statutory violation constitutes a finding of negligence”). 

Thus, because N.J.S.A. 39:4-89 imposes a statutory duty of care

on a driver following behind another driver, a finding that the 

driver violated the duty obviates the need for further proof of 

negligence. Dolson, supra, 55 N.J. at 10 (citing N.J.S.A. 39:4-

89). 
24

The statutory standard, and the common-law principle that 

it codifies, are incorporated in Model Jury Charge (Civil), § 

5.30D(2) “Violation of Traffic Act” (August 1999):

In this case, plaintiff argues that defendant 

was negligent because defendant violated a 

provision of the motor vehicle laws. The 

provision referred to, N.J.S.A. 39:4-89, is as 

follows: The driver of a vehicle shall not 

follow another vehicle more closely than is 

reasonable and prudent, having due regard to 

the speed of the preceding vehicle and the 

traffic upon, and condition of, the highway.

In the form set forth in the Model Jury Charge, the 

instruction envisions that the driver following behind another 

driver at the time of a motor vehicle collision is the 

defendant, not the plaintiff. Like all model charges, however, 

the Model Jury Charge must be adjusted, as necessary, to conform 

to the particular facts of a given case. See Komlodi v. 

Picciano, 217 N.J. 387, 420 (2014) (noting “[a]s with all jury 

instructions, the trial judge should tailor the charge to the 

facts and the parties’ arguments”). Here, the driver subject to 

the duty set forth in N.J.S.A. 39:4-89 was plaintiff, not 

defendant, and the trial court should have ensured that the 

Model Jury Charge was tailored to reflect that fact. 

Instead, the trial court juxtaposed the parties in its 

recitation of the charge, instructing the jury that defendant 

had the obligation to follow plaintiff’s vehicle at a safe 

distance, and repeated the error after being alerted to it by 
25

defendants’ counsel. Although the trial court belatedly 

mentioned the possibility that plaintiff was negligent, the jury 

may have been left with the mistaken impression that defendants’ 

vehicle followed plaintiff’s vehicle too closely, when 

defendants’ vehicle indisputably was ahead of plaintiff’s 

vehicle prior to the collision. The trial court’s charge on 

this important issue was contradictory and confusing, and 

constituted error.

D.

Finally, we review the trial court’s failure to instruct 

the jury that plaintiff, who collected PIP benefits, was not 

entitled to an award for medical expenses as an element of 

damages in her civil claim. 

New Jersey’s 1998 Automobile Insurance Cost Reduction Act 

(AICRA), N.J.S.A. 39:6A-1.1 to -35, bars the admission, in a 

civil action for personal injury damages, of “evidence of the 

amounts collectible or paid under a standard automobile 

insurance policy pursuant to [N.J.S.A. 39:6A-4, -10] . . . to 

an injured person, including the amounts of any deductibles, 

copayments or exclusions, including exclusions pursuant to 

[N.J.S.A. 39:6A-4.3], otherwise compensated.” N.J.S.A. 39:6A12. The statute provides:

The court shall instruct the jury that, in 

arriving at a verdict as to the amount of the 

damages for noneconomic loss to be recovered 
26

by the injured person, the jury shall not 

speculate as to the amount of the medical 

expense benefits paid or payable by an 

automobile insurer under personal injury 

protection coverage payable under a standard 

automobile insurance policy pursuant to 

[N.J.S.A. 39:6A-4, -10]. . . .

Nothing in this section shall be construed to 

limit the right of recovery, against the 

tortfeasor, of uncompensated economic loss 

sustained by the injured party.

[Ibid.]

Thus, “testimony as to the amount of lost wages and medical 

expenses collectible or paid as PIP benefits . . . is not

admissible in evidence.” Clifford v. Opdyke, 156 N.J. Super.

208, 213 (App. Div. 1978) (citing N.J.S.A. 39:6A-12). In 

accordance with the statute, Model Jury Charge (Civil) § 8.20

“Medical Expenses (Auto)” (December 1996) states, “[t]he 

plaintiff’s claim in this case does not include any claims for 

medical expenses. Therefore, in determining the reasonable 

amount of damages due to plaintiff, you shall not speculate 

about the medical expenses plaintiff may have had.” 

In Espinal v. Arias, the Appellate Division reversed a jury 

verdict because the trial court improperly denied defense

counsel’s request for a charge instructing the jury not to 

consider the plaintiff’s medical expenses in determining its 

verdict for noneconomic damages. 391 N.J. Super. 49, 62 (App. 

Div.), certif. denied, 192 N.J. 482 (2007). There, the 
27

“[p]laintiff offered no evidence of medical expenses during 

trial, but he did testify that he had received medical 

treatment.” Ibid. The panel noted that “[i]n the absence of 

[the model] charge, the jury might speculate about a plaintiff’s 

medical expenses in arriving at a damages verdict.” Id. at 63. 

The panel rejected the trial court’s determination that the jury 

instruction was unnecessary in light of the absence of any claim 

for medical expenses, noting that “it is exactly under those 

circumstances when this charge must be given.” Ibid.

In this case, plaintiff’s testimony extended beyond the 

comments about medical treatment that the Appellate Division 

considered in Espinal. Unprompted by her counsel, plaintiff 

told the jury that she was unable to pay “[h]undreds, thousands 

of dollars” in medical bills. Defendants did not ask the trial 

court to give the model charge admonishing the jury not to 

include medical expenses in its calculation of damages. 

Nonetheless, the trial court erred when it failed to include the 

medical expenses charge in its jury instructions. Without the 

guidance of that charge, the jury may have mistakenly assumed 

that the medical expenses described by plaintiff constituted an 

element of her claim for damages.

E.

An appellate court may reverse a trial court’s judgment if 

“the cumulative effect of small errors [is] so great as to work 
28

prejudice[.]” Pellicer v. St. Barnabas Hosp., 200 N.J. 22, 53 

(2009).2 In Pellicer, supra, the Court noted that by virtue of 

the aggregate effect of a series of errors addressed in that 

case, the trial court had not afforded to the defendants a fair 

trial: 

Our review of the record convinces us that, 

taken together, these numerous claims of error 

cannot be explained away as harmless. They 

are not simply a litany of minor or 

inconsequential matters of no substance or 

significance. Rather, they represent real and 

repeated errors that cumulated so as to 

unfairly tilt the balance in favor of 

plaintiffs and to deprive defendants of a fair 

trial.

[Id. at 56-57.]

The Court cautioned that a cumulative error analysis does 

not “simply entail[] counting mistakes, because even a large 

number of errors, if inconsequential, may not operate to create 

an injustice.” Id. at 55. It commented that it neither invited 

nor countenanced “appeals that do no more than point to minutiae 

in an effort to create the impression that there was an 

 

2 If an appellate court finds cumulative error, it need not 

consider whether each individual error was prejudicial. See, 

e.g., State v. Jenewicz, 193 N.J. 440, 473 (2008) (asserting 

appellate courts “need not decide whether any of the individual 

errors found to have occurred in defendant’s trial would amount 

to reversible error”); State v. Koskovich, 168 N.J. 448, 540 

(2001) (stating “[b]ecause we find that those instructions 

constitute cumulative error warranting reversal of the death 

sentence, we do not address whether any of them, standing alone,

would warrant that same result”).
29

atmosphere of unfairness.” Ibid. It recognized, however, that 

if the combined effect of multiple errors deprives a party of a 

fair trial, an appellate court should order a new trial. Id. at 

55-57; see also Jenewicz, supra, 193 N.J. at 473 (noting

cumulative effect of individual errors “can cast sufficient 

doubt on a verdict to require reversal”); Barber v. ShopRite of 

Englewood & Assocs., Inc., 406 N.J. Super. 32, 52-53 (App. Div.) 

(“When ‘legal errors are manifest that might individually not be 

of such magnitude to require reversal but which, considered in 

their aggregate, have caused [a party] to receive less than a 

fair trial,’ a new trial is warranted.” (alteration in original) 

(quoting Eden v. Conrail, 175 N.J. Super. 263, 267 (App. Div.

1980), modified by 87 N.J. 467 (1981))), certif. denied, 200 

N.J. 210 (2009). Thus, in our review of defendants’ claim of 

cumulative error, we consider the aggregate effect of the trial 

court’s errors on the fairness of the trial. Pellicer, supra,

200 N.J. at 56-57.

We conclude that the trial court’s five erroneous 

determinations gave rise to cumulative error warranting a new 

trial. The court’s rulings affected both the issue of liability 

and the determination of damages. The Clawans instruction 

regarding Pabon suggested to the jury that defendants had 

concealed potentially dispositive information on defendants’ 

negligence. By allowing plaintiff to read her requests for 
30

admissions to the jury, the trial court selectively informed the 

jury about aspects of Dr. Helbig’s opinion that favored 

plaintiff. In giving a Clawans charge concerning Dr. Helbig, 

the court suggested that defendants feared the expert’s 

disclosure of adverse evidence. The confusing jury instruction 

regarding a driver’s duty to follow another driver at a safe 

distance suggested that defendant was subject to a finding of 

negligence because of a purported violation of the traffic 

statute. The trial court’s failure to give the required charge 

regarding medical expenses permitted the jury to consider 

plaintiff’s statements about her medical expenses in its 

calculation of damages. 

Because of those errors, defendants were not afforded a 

fair trial on either liability or damages.3 They are entitled to 

a new trial.

IV.

The judgment of the Appellate Division is reversed, and the 

matter is remanded to the trial court for proceedings in 

accordance with this opinion.

 

3 We do not reach the issues of whether the trial court 

improperly limited the testimony of defendants’ accident 

reconstruction expert, Karpovich, improperly denied defendants’

motion in limine regarding the testimony of plaintiff’s accident 

reconstruction expert, Suhaka, and improperly permitted 

plaintiff’s treating physician, Dr. Yonclas, to testify despite 

the late service of his final report.
31

CHIEF JUSTICE RABNER; JUSTICES LaVECCHIA, ALBIN, and 

SOLOMON; and JUDGE CUFF (temporarily assigned) join in JUSTICE 

PATTERSON’s opinion. JUSTICE FERNANDEZ-VINA did not 

participate. 
SUPREME COURT OF NEW JERSEY

NO. A-116 SEPTEMBER TERM 2013

ON CERTIFICATION TO Appellate Division, Superior Court

SOFIA T. TORRES,

Plaintiff-Respondent,

v.

JAVIER PABON and SUBURBAN 

DISPOSAL, INC.,

Defendants-Appellants.

DECIDED June 1, 2016

Chief Justice Rabner PRESIDING

OPINION BY Justice Patterson

CONCURRING/DISSENTING OPINIONS BY

DISSENTING OPINION BY 

CHECKLIST REVERSE AND 

REMAND

CHIEF JUSTICE RABNER X

JUSTICE LaVECCHIA X

JUSTICE ALBIN X

JUSTICE PATTERSON X

JUSTICE FERNANDEZ-VINA ------------------

JUSTICE SOLOMON X

JUDGE CUFF (t/a) X

TOTALS 6