MERCEDES G. DIAZ VS. GERALD GORMLEY (L-0433-15, MIDDLESEX COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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.

SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-4449-16T3

MERCEDES G. DIAZ and
LIBERTO DIAZ, her husband,

Plaintiffs-Appellants,

v.

GERALD GORMLEY, PERFORMANCE
FOOD GROUP and/or PERFORMANCE
FOOD SERVICE,

Defendants-Respondents,

and

RYDER TRUCK RENTAL,

Defendant.

Submitted October 17, 2018 – Decided January 30, 2019

Before Judges Alvarez and Reisner.

On appeal from Superior Court of New Jersey, Law
Division, Middlesex County, Docket No. L-0433-15.
 McHugh & Imbornone, PA, attorneys for appellants
(John F.X. Kennedy and Salvatore Imbornone, Jr., on
the brief).

Lester Schwab Katz & Dwyer, LLP, attorneys for
respondents (C. Briggs Johnson and Gerald Gunning,
on the brief).

PER CURIAM

After a trial solely on the issue of damages, a jury awarded plaintiff

Mercedes G. Diaz $3200 for pain and suffering, and $2800 for lost wages. The

Law Division judge molded the Employee Retirement Income Security Act of

1974, 29 U.S.C. § 1000 to 1461 (ERISA) lien of $17,588.15 to the verdict.

Subsequent to plaintiff's unsuccessful motion for a new trial, the judge sua

sponte conducted oral argument on one of plaintiff's disputed medical bills,

which she had not allowed plaintiff to present to the jury. Even at that point,

plaintiff's counsel could not represent to the court that the bills had been timely

and fully disclosed to defendants Gerald Gormley, Ryder Truck Rental, and

Performance Food Group. The judge ordered plaintiff's counsel to provide a

written accounting so the issue of reimbursement could be revisited at a second

jury trial. Ultimately, the parties settled instead of trying the matter. We now

affirm the judge's denial of the new trial motion and affirm the jury's verdict.

On appeal, plaintiff raises the following points:

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 POINT I
THE TRIAL COURT ERRED IN DENYING
PLAINTIFF'S MOTION FOR A NEW TRIAL AS
DEFENSE COUNSEL'S UNDULY PREJUDICIAL
COMMENTS WERE IMPROPER AND
UNMISTAKABLY POISONED THE JURY
VERDICT, RESULTING IN A MISCARRIAGE OF
JUSTICE

POINT II
THE TRIAL COURT HAD AN AFFIRMATIVE
DUTY TO INTERVENE DURING SUMMATION
AND THE TRIAL COURT'S FAILURE TO
DECLARE A MISTRIAL OR GRANT A NEW TRIAL
WAS PLAIN ERROR

POINT III
THE CUMULATIVE ERROR DOCTRINE
MANDATES THAT PLAINTIFF RECEIVE A NEW
TRIAL

POINT IV
THE TRIAL COURT ERRED IN EXCLUDING
EVIDENCE OF PLAINTIFF'S VALID ERISA LIEN
AND DR. LANE'S UNPAID MEDICAL BILL
INCURRED AS A RESULT OF DEFENDANT'S
ADMITTED NEGLIGENCE

We address the first three claims of error in combination and set forth the

relevant circumstances and quotes in that section. We next address the issue of

the exclusion of certain medical bills, plaintiff's point four, and provide the

relevant facts in that portion of the opinion gleaned from the transcripts of

proceedings.

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 I.

Plaintiff's new trial motion focused on defendant's allegedly prejudicial

opening and closing statements and the judge's exclusion of a $40,000 bill for

shoulder surgery and the ERISA lien from the proofs presented to the jury. The

Law Division judge ruled that the opening and closing statements were not

improper, and therefore not a basis for a new trial, as the "case boiled down very

simply to the lack of credibility in the claims that were being asserted by

plaintiff." She reviewed some of the testimony in support of her conclusion,

noting that plaintiff had significant pre-existing health issues: "complaints of

pain in the same body parts that she alleges were injured as a result of the

accident." These included plaintiff's pre-existing urinary incontinence, which

she alleged was worsened by her accident-related injuries. The judge observed

that plaintiff presented "not one shred of paperwork" in support of her lost wages

claim, and that defendants' video surveillance depicted plaintiff as "functioning

completely normal." Hence the judge considered the jury's verdict reasonable.

Because in her view the verdict was not "shockingly inadequate or [a]

miscarriage of justice under the law[,]" she did not grant a new trial.

Plaintiff did not object to counsel's opening or closing. Before

summations, plaintiff's attorney said he wished to raise a concern regarding the

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anticipated defense arguments about plaintiff going to "litigation doctors." He

said he was not requesting a ruling and never objected afterwards.

Rule 2:10-2 states that on appeal, we will not reverse unless the allegedly

plain error was "clearly capable of producing an unjust result." It is presumed

that when counsel fails to object, it ordinarily indicates counsel's perception that

no harm has been inflicted. See Fertile v. St. Michael's Med. Ctr., 169 N.J. 481,

495 (2001). The absence of an objection suggests that counsel sees no prejudice

and has the unfortunate consequence of preventing the trial judge from

remedying any possible confusion. Bradford v. Kupper Assocs., 283 N.J. Super.

556, 573-74 (App. Div. 1995). Relief under this rule, at least in civil cases, is

discretionary and "should be sparingly employed." Gaido v. Weiser, 115 N.J.

310, 311 (1989) (quoting Ford v. Reichert, 23 N.J. 429, 435 (1957)). We

examine the unobjected-to opening and closing statements under the plain error

doctrine.

During opening statements, counsel is neither permitted to be excessively

argumentative, or to attack the integrity of adverse parties. Szczecina v. P.V.

Holding Corp., 414 N.J. Super. 173, 177-78 (App. Div. 2010). Summations

must not continue inflammatory attacks on the other side. Id. at 178. As we

said in Szczecina, "[t]he fundamental purpose of opening statements is 'to do no

A-4449-16T3
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more than inform the jury in a general way of the nature of the action and the

basic factual hypothesis projected, so that they may be better prepared to

understand the evidence.'" Ibid. (citing Amaru v. Stratton, 209 N.J. Super. 1, 15

(App. Div. 1985)). In addition to being required to be "summary and succinct,"

an attorney must not state facts which cannot be proven, or make legally

inadmissible statements. Ibid. (citing Passaic Valley Sewerage Comm'rs v.

George M. Brewster & Son, Inc., 32 N.J. 595, 605 (1960)). It is inappropriate

for an attorney to make "derisive statements" about the parties, their attorneys,

or their witnesses. Ibid.

Similarly, in summation counsel is prohibited from using disparaging

language to discredit the opposing party. Ibid. Attacks upon a defendant's

character or his witness's integrity "occupy no rightful place in proper

commentary on the evidence and the credibility of testimony." Rodd v. Raritan

Radiologic Assocs., P.A., 373 N.J. Super. 154, 171-72 (App. Div. 2004). The

"send a message" argument is inappropriate in civil cases, not just criminal.

Jackowitz v. Lang, 408 N.J. Super. 495, 508 (App. Div. 2009). As a result, even

when "silence is inexplicable[,]" the absence of an objection is not necessarily

dispositive of a claim of plain error. T.L. v. Goldberg, 453 N.J. Super. 539, 558-

59 (App. Div. 2018).

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 We quote the relevant sections from defense counsel's opening and closing

statements. In opening, counsel said:

Now, unfortunately, at that point, we have a
divergence. And I want to point out, yes, there was an
accident, but an accident is not an opportunity for
financial gain.

....

But as counsel noted to you, it's a week later that
she goes to her general practitioner and sees the nurse
practitioner, or the physician's assistant, and there's no
mention of this accident. . . . but I would submit to you,
if you had had an accident which you're now claiming
as they sit here now and by bringing this case they're
claiming she suffered terrible injuries which have
totally impacted her life a week after, you would have
told your doctor something about it.

Instead, she then starts going to a doctor on
Staten Island. And I think that's something also
significant. Why is she going to Staten Island? She
lives in Carteret. She works in Carteret. Are there no
doctors here in New Jersey to treat her? Instead, she's
going over that bridge at 15 bucks a pop to see doctors.
And she sees the first doctor in Staten Island on July
2nd. He immediately is ordering scans, tests, different
things. And I think when you see all of the evidence
and you hear from the experts, you're going to have
some questions as to why are you getting those sort of
tests, spending that sort of money at that point when it's
two weeks after this alleged accident. There was no
situation. None of those doctors describe an emergent
situation that she immediately needed to have a scan.
Did it change the way they handled the treatment of
Mrs. Diaz? Not at all.

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 What I'll submit to you is not too long after the
accident, this thing split into two tracks. There's the
real track, which is the real doctors who treated Mrs.
Diaz, and then there is the litigation track. And that --
those tracks split apart and they've remained split apart,
and the litigation track is ending here.

. . . And the key question, and again, it illustrates
how things split into two tracks, real treatment and then
litigation treatment.

Ms. Diaz was seen on July 12th after the accident
-- so that's about three weeks later -- by her urologist
Dr. Patel.1 She had had two procedures already to her
bladder before this accident. She's seen in a followup
procedure -- one of the procedures was about a month
before the accident. So she's seen in followup on July
12th by Dr. Patel. And, again, is there any mention of
this terrible automobile crash, this getting hit by a
tractor trailer? Is there any mention of any problems,
back pain? There's no mention of any problem with her
urinary symptoms at that point. It's a completely
normal examination.

The first time there is a mention of anything in
the regard to a problem that -- a worsening of what --
the problem that she had before is in August of 2015,
more than a year later. And those notes say, yes, she
had some exacerbation due to stress and that it began
three months before. Not a year before. It began in
2015.

. . . Oh, yeah, I saw her a year after the accident
and that's the first time she said she had a problem. Not
three weeks after the accident. A year after the
accident.

1
Rupa Patel, M.D., Board Certified Urologist.
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 . . . And I think you're going to hear an awful lot
of things when you hear the evidenced from the
witnesses, from the documents, from the experts that
common sense is going to tell you that something is
wrong here. And if you get to that point, I think you're
going to have to then consider, if that's not true, well,
can I believe any of this.

....

[The video] . . . five minutes of seeing somebody
walking, talking, driving. And the significance of it is
that it's completely normal. There is no evidence that
Mrs. Diaz is having any problem. She's getting in and
out of the car. She's bending over. She's doing -- she's
turning left and right to drive her car. So there's no
evidence which is consistent with the kind of claims
that they are making in this lawsuit. And that's the point
of that surveillance video.

. . . [T]he video shows that she does not appear to
be guarding. . . . And there's not one bit of evidence
of that.

....

. . . [Y]ou're going to find that all of these things
that they're claiming up on that board, you're going to
have serious questions.

We are satisfied that this case fell within Szczecina's prohibition regarding

opening statements. The opening statement in this case did not just touch upon

the basic facts of the case, it full-bore attacked plaintiff's credibility. This

exceeded the legitimate purpose of an opening statement, in which cases are

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described only in a general way, as to basic facts and what each party intends to

present by way of evidence, or what the party anticipates the other side will

admit by way of evidence.

Here, during his opening statement, defense counsel attacked plaintiff's

credibility, beginning with the statement that "an accident is not an opportunity

for financial gain." He discussed the specifics of anticipated testimony and the

reasons it proves that she is untruthful. Counsel attacked the medical expenses

and treatment as inflated and unnecessary. The statements counsel made were

not verifiable, such as telling the jury that he thought plaintiff was going to

present evidence the jury could fairly conclude was "wrong[,]" which should

make them conclude none of it could be believed. This was improper,

objectionable, should have been stricken from the record, and an instruction

should have been given to the jury instructing them to ignore it.

In summation, counsel said:

As I said at the beginning of this case, an accident
is not necessarily -- it's not supposed to be an
opportunity. . . .

I believe that the credible evidence is going to
show you that shortly after the accident of June 20th,
2014, as I mentioned in my opening, two tracks were
created. We had a litigation or a claim, and then you
had the real work. And that proceeded onward through
all of the medical treatment that have [sic] happened

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since then. And as you heard, there's a lot of medical
treatment.

But the claim has taken on a life of its own during
the course of this matter. And I believe it did become
an instance where the plaintiffs viewed this as an
opportunity as opposed to normal treatment for what
actually happened to them.

This began, I think, at the hospital. She was seen
at the hospital and she made complaints regarding her
neck and her mid-back. There are no complaints
regarding her shoulder. And those complaints were not
so sufficient that they didn't even order an x-ray. They
let her go.

. . . And she did see her family practitioner, in
this case, the physician's assistant Janet Nikolic, one
week after the accident. And as I pointed out at the
beginning, and I think I tried to point out on the stand,
when she saw Ms. Nikolic, Ms. Nikolic will tell you,
no, she did not say anything in regard to an accident,
she did not say anything in regard to pain in my
shoulder, she did not say anything in regard to a neck
or back.

Now, Ms. Diaz claims otherwise. She claims she
told [Nikolic] all of those things. And that gets to the
first or the biggest issue in this case, and that's
credibility.

You have several issues where you're going to
have to determine Mrs. Diaz's credibility. And I think
if you look at what you heard, you're going to have to
say it's not credible. First and foremost is that first visit.

....

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 . . . But I would point to all of that as to evidence
that what was going on was not active treatment of what
really was going on with Mrs. Diaz. What was going
on was a buildup of things for purposes of a claim.

. . . [T]he first visit they're ordering an MRI. The
second visit they ordered the cervical MRI. Then they
ordered a lumbar MRI. These all occur within one
month of this accident.

. . . She went for the MRI which allegedly -- what
Dr. Wayne will tell you showed tears, even though
that's not what the radiologist said on her report. And
Dr. Lifshutz did not then think that surgery was
warranted because none of his records indicate that.
And the mystery orthopedist obviously didn't think that
surgery was warranted because I think you would have
heard something about it.

....

Instead, she's treating, she's treating, she's
treating up until October. And then suddenly she's not
treating for a month, and then she begins seeing Dr.
Spiel.2 Now, what does Dr. Spiel do? He essentially
then starts it all over again.

He orders new MRIs. Now, both Dr. Spiel and
Dr. Lane3 claim, well, the first MRIs weren't that clear.
Well, there was nothing in -- neither one of them said
the second MRI showed them anything different. They
basically said they confirmed what they saw in the first
MRIs. But you had new MRIs, so it seems like
something was happening here.

2
Douglas Spiel, M.D., Board Certified Radiologist.
3
Gregory Lane, M.D., Board Certified Orthopedic Surgeon.
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 She's sent to Dr. Lane. Dr. Lane examines her in
January, sends her[] for that new MRI with contrast.
. . . Dr. Lane does not see the plaintiff again for 14
months.

. . . The injections, according to the plaintiff's
testimony, did nothing for her.

But they did make it seem like something was
going on here, that there was some basis for the claim
that they're trying to make. I would submit to you that
was the only purpose for that -- those injections was to
build up a claim, and for Dr. Spiel to bill. I believe
that's -- if you look through all of the testimony, again,
that was a driving force [of] the litigation in terms of
her treatment.

. . . [I]t was based entirely on one report of Dr.
Spiel and her belief that an injury to the lumbar spine,
if it's at L1, L2 or L3, could have aggravated the
incontinence. The fact is, there's not one doctor, not
Dr. Spiel, not Dr. Lane, not Dr. Lifshutz 4 or any of the
radiologists indicated -- has indicated that any of the
films showed an injury to [Mrs.] Diaz's lumbar spine at
L1, L2 or L3.

....

So again, you have [] two tracks. She has real
health issues and then she has the claims in this lawsuit.

. . . [A]fter those physical exams, after being
deposed and giving testimony, goes back to Dr. Spiel
and then they start a whole new round of treatment
where Dr. Spiel suddenly is treating her lower back,
which he had not treated at all before that.

4
David Lifshutz, M.D., Neurologist.
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 And then, suddenly, Dr. Lane, after a year and a
half, sees the plaintiff and says, no, we're not going to
do any shots, we're going to do an operation. Dr.
Dennis5 will tell you there was no reason for that
operation, that what Dr. Lane found were fraying, [that]
he basically debrided that fraying, that there were no
real tears, because if there was a real tear, he would
have had to do some sort of repair. There's staples.
There's suturing. There's all sorts of other things that
orthopedists will do. But that's a -- wasn't what was
done here.

I know Dr. Lane will defend his reasoning. But,
obviously if he goes in and doesn't find something, it
would be that much more clear that he never should
have gone in. He'll tell you that those MRIs -- he found
tears where the radiologist did not find tears, because
he had to justify the fact that he performed surgery on
the plaintiff.

....

[Y]ou're going to have to, at the end, reach a
verdict which says, okay, something happened here, but
it was not an opportunity for something. It was not the
kind of claim that the plaintiff is making to you here
today, that she did not sustain permanent serious
injuries as a result of this accident, that the treatment
she received was completely overblown and was done
for one purpose, the purpose of trying to bring some
sort of claim.

5
Robert Dennis, M.D., Board Certified Orthopedic Surgeon.
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 In closing, defendants' counsel returned to the theme he developed during

opening that plaintiff's medical treatment proceeded along "two tracks[.]" He

mentioned treatment for "a litigation or a claim, and then you had the real work."

Counsel suggested that the medical treatment took a life of its own because

plaintiff saw it as an opportunity for pecuniary gain as opposed to normal

treatment. He pointed out legitimate and real weaknesses in plaintiff's proofs in

a fashion that bordered on suggesting she and her physicians were attempting to

perpetrate a fraud. For example, he said that one of plaintiff's doctors described

an MRI as showing tears, even though the radiologist's report did not corroborate

that, and that multiple tests were ordered to make "it seem[] like something was

happening here." Counsel referred to the fact defendants' expert did not see a

need for shoulder surgery, adding that when a surgeon finds nothing despite

having cut into a patient's body, it is important for him "to justify the fact that

he performed surgery[.]" As counsel said when ending his closing, "the

treatment [plaintiff] received was completely overblown and was done for one

purpose, the purpose of trying to bring some sort of claim." At least some of the

statements were objectionable.

Even before the decision in Szczecina, we said that in summation, counsel

may not unfairly attack the adverse party's character and the integrity of the

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adverse party's experts, much less treating physicians. See Rodd, 373 N.J.

Super. at 171-72. Arguably, suggesting that Dr. Lane misrepresented his

findings in order to justify the surgery he performed on plaintiff was just such

an attack. But defendants' expert did support that position, and most

significantly, plaintiff's attorney did not object. The prejudice defendants

created may have been ameliorated by a properly fashioned instruction. See

Litton Indus. v. IMO Indus., 200 N.J. 372, 393-94 (2009). Since no objection

was made, no curative instruction was given. The question is the same for both

opening and closing statements—was the effect on the jury's verdict such that it

was prejudicial plain error even in the absence of an objection. The answer to

the question rests within the trial judge's analysis of the new trial motion.

Motions for a new trial are granted only when the trial judge, "having

given due regard to the opportunity of the jury to pass upon the credibility of the

witnesses, [] clearly and convincingly [concludes] that there was a miscarriage

of justice under the law." R. 4:49-1(a). In deciding whether a new trial should

be granted and whether the jury's verdict was clear error or mistake, a court

weighs both tangible and intangible factors, credibility, and the feel of the case.

See Hayes v. Delamotte, 231 N.J. 373, 385-86 (2018).

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 In deciding such motions, judges are expected to canvass the record to

determine if there is adequate support for the verdict. Jury verdicts are set aside

in favor of a new trial sparingly and only when a clear injustice has occurred.

Jacobs v. Jersey Cent. Power & Light Co., 452 N.J. Super. 494, 502 (App. Div.

2017).

In this case, although we do not share the trial judge's view that defense

counsel's commentary is the norm in civil cases, we ultimately agree that the

proofs did not support plaintiff's claimed damages. Her testimony was at odds

with the course of her medical treatment, the surveillance video, the lack of

documented loss of work time, and her preexisting injuries. Some of her medical

claims, such as that the accident exacerbated her urinary incontinence, a pre-

existing condition, made her not only appear incredible, but may have caused

the jury to essentially reject her case entirely. Her medical proofs were undercut

by defendant's experts. In other words, when viewing the trial in its entirety, it

appears that defense counsel's statements in opening and in closing, although in

error, were not plain error so prejudicial to her case as to have resulted in a

miscarriage of justice which warranted a new trial.

Our standard of review imposes on us the same obligation as the t rial

judge. We ask whether a miscarriage of justice under the law has occurred.

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Hayes, 231 N.J. at 386. We cannot say, after having examined the record and

considered the evidence, "that the continued viability of the judgment would

constitute a manifest denial of justice." Id. at 385-86 (citing Risko v. Thompson

Muller Auto Grp., Inc., 206 N.J. 506, 521 (2011)). We must give due deference

to the trial judge's feel of the case. Id. at 386. Although we do not agree with

her characterization of defense counsel's comments in opening and closing, we

do agree that ultimately, as a matter of law, no plain error occurred that would

have warranted a new trial.

Nor do we believe that the comments, and the court's failure to instruct

the jury regarding them, were cumulative errors that mandate a new trial. No

manifest injustice occurred.

II.

With regard to plaintiff's argument that the exclusion of the unpaid

medical bill and the ERISA lien warranted a new trial, the judge found that

despite her requests she do so, plaintiff had been unable to clearly establish

which medical bills had been supplied to counsel during discovery, or which

bills had been paid. Plaintiff's counsel had not objected to the molding of the

jury's verdict to include the ERISA lien. As she put it, the arguments regarding

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the prejudice to the outcome wrought by her exclusion of the medical bills were

unpersuasive.

The doctrine of plain error also applies with regard to the exclusion of the

ERISA lien and Dr. Lane's medical bills. Counsel did not object to the exclusion

of the medical bills. On multiple occasions throughout the proceedings before

the trial, and even during the hearing the court conducted post-verdict regarding

the amount of unpaid medical bills, counsel could not say with certainty which

documents had been forwarded to defense counsel, the amounts still owed, or

which were excluded from the ERISA lien.

Like all decisions regarding the admission of evidence, exclusion of the

bills was discretionary with the court. Verdicchio v. Ricca, 179 N.J. 1, 34

(2004). Decisions regarding the admissibility of evidence will not be overruled

so long as not equivalent to an abuse of discretion resulting in "manifest denial

of justice." Ibid. (citing Green v. N.J. Mfrs. Inc. Co., 160 N.J. 480, 492 (1999)).

If an evidentiary ruling is found to have been made in error, even then we reverse

only if it was clearly capable of producing an unjust result. Manata v. Pereira,

436 N.J. Super. 330, 343-44 (App. Div. 2014).

In support of her argument, plaintiff now asserts that under N.J.S.A.

2A:15-97, a party is not restricted from introducing for the jury's consideration

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evidence of the total amount of medical bills he or she has incurred. Regardless,

the judge's suggestion with regard to the ERISA lien was accepted by plaintiff's

counsel without objection at all. Just because plaintiff could have sought the

admission of the medical bills as part of her case does not mean that her strategic

decision not to do so made the judge's discretionary call error on the part of the

court. Cavuoti v. N.J. Transit Corp., 161 N.J. 107, 129 (1999) (plain error rule

should be "sparingly employed" in civil cases).

With regard to Dr. Lane's bills, it is clear from the record that plaintiff

could not say with certainty whether the bill was served on defense counsel

during discovery, the amount of the bill, and any balance that was due. The

judge was still requesting specifics even at the post-verdict hearing, and asking

for documentation before conducting a second jury trial on the question. The

statute would have permitted what plaintiff now seeks, but the record does not

indicate if the amount in question was disclosed in the discovery process, after

the trial began, and was uncertain even after the trial ended. As a result, we see

no abuse of discretion in the judge's decision to exclude the medical bills from

the jury's consideration.

Affirmed.

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