NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2602-13T4

ANTHONY A. GONZALES,

Plaintiff-Respondent,

v.

ELLEN I. HUGELMEYER,

Defendant-Appellant,

and

FREDERICK ADAMS,

Defendant.

__________________________________

Argued April 13, 2015 - Decided

Before Judges Sabatino, Guadagno, and Leone.

On appeal from the Superior Court of New 

Jersey, Law Division, Atlantic County, 

Docket No. L-3854-09.

Stephen A. Rudolph argued the cause for 

appellant (Rudolph & Kayal, attorneys; Mr. 

Rudolph, on the briefs).

Kathleen F. Beers, argued the cause for 

respondent (Westmoreland Vesper Quattrone & 

Beers, attorneys; Ms. Beers, on the brief).

The opinion of the court was delivered by

SABATINO, P.J.A.D.

APPROVED FOR PUBLICATION

July 22, 2015

APPELLATE DIVISION

July 22, 2015
2 A-2602-13T4

This automobile negligence case arises out of a rear-end 

collision on the Atlantic City Expressway. After a six-day 

trial, the jury found that defendant Ellen I. Hugelmeyer,1 the 

driver of the Mazda sedan that struck plaintiffs' Lexus SUV from 

behind, was negligent and the sole proximate cause of the 

accident. The jury awarded $380,000 in damages to plaintiff 

Anthony A. Gonzales, the driver of the Lexus, and $810,000 in 

damages to his wife Valerie, who was a passenger in their 

vehicle. The trial court also awarded plaintiffs counsel fees, 

costs, and interest pursuant to the Offer of Judgment Rule, R.

4:58-2(a), because the combined damages verdict substantially 

exceeded the amount plaintiffs had offered to accept in 

settlement before trial.

Defendant appeals the verdict and final judgment solely 

with respect to her liability to Mr. Gonzales,2 as the parties 

and their insurers have settled all claims respecting Mrs. 

Gonzales, including her claims for underinsured motorist 

coverage. Defendant asserts a variety of trial errors regarding 

both liability and damages, and further argues that the Offer of 

 

1 At various points in the record, defendant's surname is 

identified as Hugelmeyer-Green.

2 For purposes of clarity, we refer to plaintiffs as "Mr. 

Gonzales" and "Mrs. Gonzales," intending no disrespect by our

omission of such titles for the other individuals mentioned in 

this opinion.
3 A-2602-13T4

Judgment Rule is unconstitutional because it allegedly is unfair 

to defendants.

Because of multiple errors that deprived defendant of a 

fair trial, we vacate the judgment as to Mr. Gonzales and order 

a new trial.

I.

The evidence shows that at about 5:00 p.m. on April 22, 

2008, Mr. Gonzales was driving his Lexus on the Atlantic City 

Expressway when he encountered congested traffic due to an 

accident. Mr. Gonzales drove from the far-right lane into the 

far-left lane of the three-lane highway. According to the 

testimony of an eyewitness, Stephanie Blount, the Lexus moved 

across the center lane in front of Hugelmeyer's car. After 

Gonzales needed to stop short, Hugelmeyer's Mazda struck his 

Lexus from behind, damaging its rear bumper and the Mazda's 

front bumper. 

A State Trooper, Vaughn Crouthamel, responded to the scene. 

The Trooper interviewed several persons, including Mr. Gonzales 

and Hugelmeyer. According to Hugelmeyer, she "didn't have time 

to react" and avoid the collision because Mr. Gonzales had "just 

slammed on his brakes" while in traffic. The Trooper 

nevertheless issued a traffic citation to Hugelmeyer, although 

the ticket was eventually dismissed because of the Trooper's 
4 A-2602-13T4

failure to appear in municipal court. The ticket and its 

disposition were not divulged to the jury.

At trial, Mr. Gonzales testified that the accident had 

aggravated a pre-existing degenerative disc disease. His main 

testifying expert, Dr. John C. Baker, a Board-certified 

orthopedic surgeon, testified that he had arthritis dating back 

to 1998, and that the accident had greatly worsened his preexisting disease, causing permanent spinal damage. Mr. Gonzales 

also presented testimony from Dr. Ira Greg Warshaw, his family 

physician from 2001 to 2008. Dr. Warshaw testified on direct 

examination that Mr. Gonzales had never commented on any back 

problems when treated by him. However, Dr. Warshaw conceded on 

cross-examination that he had treated Mr. Gonzales in 2006 for 

lower-leg pain and radiating cervical spine or neck pain, and in 

2004 for cervical radiculopathy. Mr. Gonzales also presented 

videotaped testimony from a chiropractor, Dr. Michael Gerber, 

who had examined him at the behest of his insurer in connection 

with his claims for personal injury protection benefits. Based 

upon tests Dr. Gerber performed, he opined that the condition of 

Mr. Gonzales's neck and low back had been "exacerbated or 

aggravated" by the accident. 

The defense presented testimony from Blount and Dr. John 

Cristini, a Board-certified orthopedic surgeon who had evaluated 
5 A-2602-13T4

Mr. Gonzales. Hugelmeyer did not testify because she was living 

in a distant state and seven months pregnant. However, portions 

of her deposition testimony were read aloud to the jury.

As we have already noted, the jury found that Hugelmeyer 

was negligent but that Mr. Gonzales was not, and awarded 

substantial monetary damages to both Mr. Gonzales and Mrs. 

Gonzales. The trial judge denied Hugelmeyer's motion for a new 

trial or remittitur, and ordered fee-shifting pursuant to Rule

4:58. The judge declined to address defendant's constitutional 

challenge to the Offer of Judgment Rule.

II.

This appeal ensued, which, as we have noted, is confined to 

the judgment obtained by Mr. Gonzales. Defendant argues that 

the trial judge erred in (1) allowing Trooper Crouthamel to 

present inadmissible lay opinion asserting that she was at fault 

in causing the accident, and also relied on hearsay statements 

from an unidentified witness he had interviewed at the accident 

scene; (2) excluding Dr. Warshaw's treatment office notes that 

would substantiate the severity of Mr. Gonzales's preexisting 

condition; (3) allowing the chiropractor, Dr. Gerber, to present 

expert opinions on permanency without proper qualifications and

to discuss the hearsay findings of a non-testifying radiologist; 

(4) permitting this "verbal threshold" case brought under 
6 A-2602-13T4

N.J.S.A. 39:6A-8(a) to go to the jury without appropriate 

objective evidence of aggravated injury; and (5) awarding fees 

and other funds to plaintiffs under the Offer of Judgment Rule. 

For the reasons that follow, the first two claims of 

prejudicial error are meritorious. Singularly and cumulatively, 

they warrant a new trial.

A.

Defendant rightly contends that she was unfairly prejudiced 

by two critical aspects of Trooper Crouthamel's testimony, which 

plaintiffs' counsel punctuated in his closing argument to the 

jury.

We first consider the Trooper's reference to hearsay 

statements by an unidentified eyewitness he interviewed at the 

accident scene. The Trooper could not recall the accident at 

trial with much detail and instead relied substantially on the 

accuracy of his written accident report. The report reflected 

that he had interviewed an eyewitness, who was not a passenger 

in either the Mazda or the Lexus.3 Over defense counsel's 

objection, the Trooper informed the jurors that the eyewitness 

had told him that he or she was driving behind defendant's Mazda 

 

3 Mr. Gonzales's counsel speculates that Blount was the 

eyewitness that the Trooper had interviewed, but that was not 

confirmed by the Trooper, who did not recognize Blount in the 

courtroom.
7 A-2602-13T4

and saw plaintiffs' Lexus change lanes, get in front of the 

Mazda and stop abruptly "as traffic backed up." The Trooper 

relied on this observation in formulating his conclusions about 

how and why the accident occurred.

The eyewitness statement, which plaintiffs4 offered for its 

truth, was hearsay and should not have been admitted. See

N.J.R.E. 801(c). Plaintiffs' counsel suggested that the 

statement was admissible, alternatively, under the hearsay 

exceptions for present sense impressions, N.J.S.A. 803(c)(1), or 

excited utterances, N.J.S.A. 803(c)(2). The required elements 

of these exceptions are not present. The eyewitness's statement 

was not a present sense impression because it was not made 

"while or immediately after" the declarant saw the accident. 

N.J.R.E. 803(c)(1); State ex rel. J.A., 195 N.J. 324, 338-39 

(2008). The Trooper was not present when the accident occurred, 

but arrived at least "several minutes" thereafter. The 

statement was not eligible as an excited utterance because there 

was no foundation laid that the declarant spoke "under the 

stress of excitement" without "the opportunity to deliberate or 

fabricate." N.J.R.E. 803(c)(2); State v. Branch, 182 N.J. 338, 

357-58 (2005). No other hearsay exceptions apply.

 

4 Mr. and Mrs. Gonzales each had separate counsel at trial.
8 A-2602-13T4

An even more troublesome aspect of the Trooper's testimony 

is the court's allowance, over objection, of his opinion that 

defendant was at fault in causing the accident. The first time 

this occurred, plaintiffs' counsel elicited the Trooper's 

opinions by asking him about the "contributing circumstances" 

for the collision: 

Q. Okay. Now, based on your investigation 

at the scene, you concluded what the 

contributing circumstances were to this 

rear-end collision, didn't you?

A. Yes.

Q. What contributing circumstances were 

there for Mr. Gonzales?

A. None.

Q. What were the contributing 

circumstances for Mrs. Hugelmeyer –

Mrs. Hugelmeyer-Green?

A. Okay. She was noted as driver 

inattention was –

Q. Mis – thank you.

A. I'm sorry.

[(Emphasis added).]

By opining that Mr. Gonzales had no "contributing circumstances" 

and that defendant Hugelmeyer, by contrast, had the 

"contributing circumstances" of "driver inattention," the 

Trooper surely conveyed to the jury his personal belief that 
9 A-2602-13T4

defendant had not been paying sufficient attention and 

consequently was responsible for rear-ending the Lexus.

Later in the Trooper's direct examination, Mr. Gonzales's

counsel drew from him an even more explicit opinion of 

defendant's fault:

Q. Trooper, Mrs. Hugelmeyer-Green said, "I 

was told by the officer it was not my 

fault, the accident." This is at the 

scene. Did you ever say that to Mrs. 

Hugelmeyer?

A. I don't recall what was said.

Q. Would you have ever said it was not her 

fault?

DEFENSE 

COUNSEL: Objection. Speculative.

THE COURT: I'll allow the –

MR. GONZALES'S

COUNSEL: Would you.

THE COURT: I'll allow the question.

BY THE WITNESS:

A. If it legitimately was not her fault, 

it would have been indicated on the 

report –

Q. What's indicated on –

A. - along with a statement. If I were to 

make that statement –

Q. Right.

A. - it would reflect in the report 

accurately.
10 A-2602-13T4

Q. Right.

A. Which in this case I obviously, based 

on the evidence and my training and 

experience at this point, found her at 

fault.

MR. GONZALES'S 

COUNSEL: Thank you. No further questions.

[(Emphasis added).]

These opinions of fault were improperly elicited by Mr. 

Gonzales's counsel from the Trooper.5 Although the Trooper 

testified that he had over five years of experience in 

investigating motor vehicle accidents, he was not designated or 

qualified by plaintiffs as an expert witness under N.J.R.E. 702. 

His prejudicial opinions on the critical jury issue of fault for 

the accident were clearly beyond the scope of lay opinion 

admissible under N.J.R.E. 701. In State v. McLean, 205 N.J.

438, 460 (2011), a criminal case, the Supreme Court disapproved 

of the admission of critical expert opinions from police 

officers under the guise of the lay opinion rule. The same 

principles restricting certain lay opinion from police officers 

likewise extend to their testimony in civil cases. 

 

5 Plaintiff has not argued in his brief that defendant "opened 

the door" to the officer's opinions by alleging in her testimony 

that the officer told her she was not at fault. Even if the 

officer had made such an oral statement, that subjective hearsay 

assertion likewise would have been inadmissible.
11 A-2602-13T4

Moreover, the Trooper had no personal observation or 

recollection of the accident and his opinions thus failed the 

foundational requirements of Rule 701. The Supreme Court has 

instructed that "a police officer cannot provide an opinion at 

trial when that opinion is based primarily on the statements of 

eyewitnesses." Neno v. Clinton, 167 N.J. 573, 585 (2001). "Any 

other conclusion," the Court cautioned in Neno, "would allow an 

officer to subvert the prohibition against hearsay and pass 

along the essence of those hearsay statements to the jury even 

when the officer is not permitted to testify to the substance of 

the witness's statements under the hearsay rule." Id. at 585. 

That is exactly what happened here.

These errors were not harmless. Mr. Gonzales's counsel 

explicitly reminded the jurors of these inadmissible portions of 

the testimony during closing argument:

The problem with [blaming Anthony Gonzales] 

is the trooper got the bottom line. He 

finds out from [the person he interviewed] –

here it is. Here it is. The witness says 

he changed lanes, nothing about cutting 

anyone off. Did you hear that testimony 

today from the tiebreaker? Changed lanes, 

was traveling in front, means he was going a 

while, and then he stopped abruptly. And 

you heard why now from today, and – because 

traffic backed up, and then she struck him. 

That's what the tiebreaker said at the 

scene.

[(Emphasis added).]
12 A-2602-13T4

As we recently held in James v. Ruiz, 440 N.J. Super. 45, 72 

(App. Div. 2015), trial counsel may not misuse hearsay or other 

inadmissible proof in summation by advocating to jurors that 

they treat such proof as a "tiebreaker" to resolve the competing 

positions of the parties. 

Counsel apparently intended the term "tiebreaker" to refer 

to the unidentified eyewitness that the Trooper interviewed at 

the accident scene, who plaintiffs alleged was Blount. For the 

reasons we have already noted, the interviewee's out-of-court 

statement to the officer was inadmissible hearsay. Counsel 

should not have made substantive use of that statement in his 

summation. It was likewise improper for counsel to showcase the 

Trooper's inadmissible personal conclusion by advocating to the 

jurors that the Trooper "got the bottom line."

We cannot ignore these highly prejudicial circumstances and 

conclude with any confidence that the jurors were not swayed by 

the Trooper's improper testimony. A new trial is warranted.

B.

Defendant is also entitled to a new trial because her trial 

attorney was wrongfully foreclosed from admitting into evidence 

notes from Mr. Gonzales's medical chart prepared by his regular 

family physician, Dr. Warshaw. The notes were admissible 

business records under N.J.R.E. 803(c)(6). See also Konop v. 
13 A-2602-13T4

Rosen, 425 N.J. Super. 391, 405 (App. Div. 2012) (recognizing 

that "routine" findings contained in patient medical records 

generally are admissible hearsay). Relevant statements made by 

Mr. Gonzales during those visits to his family physician were 

admissible statements by a party opponent, N.J.R.E. 803(b)(1), 

and also admissible as statements made to a medical provider for 

treatment or diagnosis under N.J.R.E. 803(c)(4). The records 

were highly relevant to substantiate Mr. Gonzales's pre-existing 

spinal injuries and condition.

In excluding these office notes, the trial judge broadly 

asserted they "do not come into evidence . . . [b]ecause the 

jury has already heard [about] it" through the doctor's 

testimony. The judge cited no authority for this blanket 

proposition, and we have not been made aware of any. Although 

the court has the authority to exclude cumulative evidence under 

N.J.R.E. 403 where its probative value is "substantially 

outweighed" by countervailing factors, no such compelling 

showing in favor of exclusion is present here. The records 

would have provided the jurors with relevant, tangible proof 

that Mr. Gonzales had been suffering from serious spinal 

problems for many years. The defense should not have been 

forced to limit its evidence to the doctor's spoken testimony. 

The judge misapplied his discretion in excluding the notes. 
14 A-2602-13T4

Because the degree of Mr. Gonzales's pre-existing condition was 

a critical disputed issue, the error was not harmless. This 

also mandates a new trial.

C.

We turn to defendant's additional contention that Dr. 

Gerber, the chiropractor, improperly discussed in his testimony

spondylosis, a condition which had been identified by a nontestifying radiologist who interpreted MRI studies of Mr. 

Gonzales's spine. The chiropractor was not shown to be 

qualified to interpret those studies himself. Absent such 

expertise, the complex hearsay opinions of a radiologist are not 

to be conveyed through a testifying chiropractor acting as a 

conduit. See Agha v. Feiner, 198 N.J. 50 (2009); James, supra, 

440 N.J. Super. at 61-70; see also N.J.R.E. 808. 

Mr. Gonzales's orthopedic expert, Dr. Baker, was clearly 

qualified to interpret the MRI studies and he commented on them 

in his own testimony. However, the chiropractor, Dr. Gerber, 

who was not shown to have such qualifications, should not have 

been likewise permitted to testify that his own opinions were 

specifically "based on . . . [the absent radiologist's] MRI 

findings of spondylosis," if those findings were disputed. The 

testifying chiropractor went beyond "the bare fact that he 

considered the absent radiologist's report." James, supra, 440 
15 A-2602-13T4

N.J. Super. at 73 n.17. Instead, Dr. Gerber passed over that 

line and "delv[ed] into" the MRI report's actual contents.

Ibid. 

We cannot tell from the record, including the phrasing of 

the questioning and testimony of the medical experts, whether 

the diagnosis of spondylosis for Mr. Gonzales was, in fact, 

disputed. The prohibition in N.J.R.E. 808 and case law on an 

expert's testimony about the complex hearsay opinions of a nontestifying expert does not apply if the opinion is undisputed.

See N.J.R.E. 808; James, supra, 440 N.J. Super. at 63; see also

Nowacki v. Community Med. Ctr., 279 N.J. Super. 276 (App. Div.), 

certif. denied, 141 N.J. 95 (1995). Defense counsel did not 

object to this portion of Dr. Gerber's testimony at trial, which 

suggests that the defense was not disputing the spondylosis 

diagnosis. If there is no such dispute, then Dr. Gerber's 

reference to the hearsay finding was innocuous. On retrial, 

defense counsel shall clarify whether the MRI finding is indeed 

disputed and, if so, Dr. Gerber's videotaped testimony must be 

redacted accordingly.

III.

[At the direction of the court, the 

published version of this opinion omits Part 

III, which briefly addresses the other 

points defendant raised on appeal.]
16 A-2602-13T4

IV.

The final judgment is vacated in its entirety, and the case 

is remanded for a new trial on liability and damages as to the 

claims of Mr. Gonzales.