Young H. an v. John Szmitkowski and Admiral Fence Company, LLC

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-3426-24 YOUNG H. AN, Plaintiff-Appellant, v. JOHN SZMITKOWSKI and ADMIRAL FENCE COMPANY, LLC, Defendants-Respondents. _____________________________ Submitted September 23, 2026 – Decided October 2, 2026 Before Judges Mayer and Vinci. On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-3329-22. Sacco & Fillas, LLP, attorneys for appellant (James R. Baez, on the brief). Dwyer Connell & Lisbona, LLP, attorneys for respondents (Albert C. Lisbona and Lynn A. Lisbona, on the brief). PER CURIAM Plaintiff Young H. An appeals from a jury verdict and judgment finding he failed to prove that he sustained a permanent injury as a result of a car accident on March 29, 2022. Additionally, plaintiff appeals from an in limine order permitting defense counsel's use of plaintiff's involvement in a subsequent car accident for purposes of cross-examination. Plaintiff also appeals from a separate in limine order denying his request to strike the testimony of Dr. Decter, an expert witness for defendants John Szmitkowski and Admiral Fence Company, LLC (Admiral). We affirm all orders on appeal. On March 29, 2022, plaintiff claims he suffered a permanent injury as a result of a rear end accident involving his car and a commercial truck driven by Szmitkowski, but owned by Admiral. The impact caused plaintiff to hit his head and right knee inside the car. The day after the accident, plaintiff sought treatment for his lower back, right knee, and right shoulder. He visited a therapeutic clinic three to four times a week for a year to alleviate his pain. Because of plaintiff's ongoing pain, he went to Drs. David Basch and Jason Chiu for additional treatment. Plaintiff saw Dr. Basch, an orthopedic doctor, for the pain in his right shoulder. Dr. Basch gave plaintiff an injection in his right shoulder. However, the injection was only minimally helpful. Dr. Basch subsequently performed A-3426-24 2 shoulder surgery. The surgery required plaintiff to wear a sling for a week and discontinue therapy until his shoulder healed. Plaintiff testified he continued to have pain in his right shoulder after the surgery but that he was "[fifty] percent better." To address the pain in his right knee, plaintiff did at home exercises. He also took over-the-counter anti-inflammatory medication for knee pain. Plaintiff treated with Dr. Chiu for his neck and lower back pain. Dr. Chiu administered injections which temporarily alleviated plaintiff's neck and back pain. Because plaintiff's back pain radiated down his legs, Dr. Chiu recommended plaintiff see a doctor to discuss back surgery. On January 15, 2024, Dr. Stephen Jacobs, a spinal surgeon, performed a lumbar laminectomy. Plaintiff's surgical recovery lasted about three months. During that time, plaintiff required a walker and his wife assisted him with daily tasks. Plaintiff explained he got "a little better" following the back surgery but could not lift heavy items or engage in various activities. Approximately twenty years prior to the March 2022 car accident, plaintiff was involved in a car accident resulting in injuries to his back. Although plaintiff denied having surgery for these injuries, there was medical evidence of treatment to his lower back associated with the 2002 car accident in A-3426-24 3 the record.1 Plaintiff filed a lawsuit in connection with the 2002 car accident and settled that matter. Plaintiff had a subsequent car accident on February 10, 2023. Plaintiff claimed he suffered additional injuries in that accident and received treatment to his back and left wrist. Plaintiff filed suit to recover for his 2023 injuries, retaining the same law firm, Sacco & Fillas, LLP, who represents him in the current case,. The lawsuit from the 2023 car accident settled in June 2024. On June 16, 2022, plaintiff filed a complaint against defendants for injuries stemming from the March 2022 car accident. In their answer, defendants disputed acting negligently and asserted plaintiff did not suffer permanent injury. At plaintiff's request, discovery was extended three times. During the discovery period, plaintiff underwent a defense medical exam with Dr. Decter and appeared for his deposition. As part of the exchanged discovery, plaintiff produced MRIs of his right shoulder, right knee, and lumbar spine from Cliffside Park Imaging and Diagnostic Center. During discovery, defendants also obtained an invoice revealing plaintiff had MRIs of his left shoulder, left knee, and left wrist at 1 Dr. Jacobs saw evidence of a prior surgery when treating plaintiff in 2024. A-3426-24 4 Landa Orthopedics on April 19, 2023. Defendants only discovered the Landa Orthopedics MRIs after plaintiff produced the bill for those scans. Defense counsel asked plaintiff's counsel why plaintiff underwent additional MRIs. Plaintiff's counsel declined to provide information about the April 2023 scans because plaintiff made no claims in the current matter related to those body parts. Based on the newly discovered MRIs, defendants moved to re-open discovery. The judge granted the motion and required plaintiff "provide a response as to the reason for the [April 19, 2023] MRI[s]." In accordance with the judge's order, plaintiff's counsel advised his client had a subsequent motor vehicle accident on February 10, 2023, which resulted in the April 2023 MRIs. Defendants' counsel then asked about the February 2023 car accident and if plaintiff filed a lawsuit stemming from that accident. In response, p laintiff stated his claims arising from the February 2023 car accident were handled by another attorney from Sacco & Fillas, LLP in the firm's New York office. Just before the start of trial related to the March 2022 car accident, the judge heard argument on defendants' in limine motions. Defendants sought to mark the Landa Orthopedics medical records from the February 2023 car accident for identification purposes to impeach plaintiff and his experts on A-3426-24 5 cross-examination. Defendants argued the records were necessary because plaintiff denied having a subsequent accident during his deposition in this case. Additionally, defendants sought to introduce the medical records from the February 2023 car accident to ask plaintiff's experts on cross-examination if they were aware of the subsequent accident when formulating their opinions regarding plaintiff's claimed injuries from the March 2022 car accident. Plaintiff asserted the medical records associated with injuries from the February 2023 car accident were irrelevant and inadmissible because plaintiff's injuries attributable to the subsequent accident concerned "body parts that [were] not in controversy in this case." The judge permitted defense counsel to use the medical records from the February 2023 car accident, marked as D-1 for identification, to cross-examine witnesses but declined to admit the records as evidence at trial. The judge rejected plaintiff's argument that the injuries from the February 2023 car accident were unrelated. The judge explained: [I]t's clearly a medical conclusion whether they are related or not. I appreciate counsel's representation[,] but counsel can't make the representation whether they are related or not. I want the record to be clear, that's unequivocally a medical conclusion. No ifs, ands[,] or buts. A-3426-24 6 So[,] I am going to grant the defense request to conduct cross examination with respect to the records. I don't know . . . what the scope of the records call for . . . , if they call into other body parts or what, but they are related. At trial, plaintiff testified about the happening of the 2022 car accident, resulting injuries, and treatment for those injuries. Plaintiff testified that he saw three specialists for his injuries from that accident, Drs. Basch, Chiu, and Jacobs. Plaintiff's treatment started just after the accident with massage and orthopedic therapy. He then saw Dr. Basch in May 2022, and learned he tore shoulder, neck, and back muscles. Plaintiff began treatment with Dr. Chiu around July 2022 and received steroid injections in his neck and lower back. Dr. Chiu recommended plaintiff undergo back surgery. Plaintiff saw Dr. Jacobs for back surgery in January 2024. Through July 2024, plaintiff continued physical therapy to help with his ongoing mobility and weakness issues. Plaintiff also testified about the February 10, 2023 car accident. Plaintiff was treated at Landa Orthopedics for injuries associated with that accident. The medical records from Landa Orthopedics were marked D-1 for identification and used by defense counsel during cross-examination. A-3426-24 7 Defense counsel asked plaintiff about the 2002, 2022, and 2023 car accidents. Defense counsel asked if plaintiff had a lumbar discectomy after his 2002 car accident and if that accident contributed to his current injuries rather than the 2022 car accident. Plaintiff denied having lumbar surgery after the 2002 car accident but admitted to receiving a steroid injection. He further testified he suffered minimal injuries from the 2002 car accident. Plaintiff was also asked during cross-examination if he received chiropractic treatment for his back and neck after the 2023 car accident, similar to the treatment he received following the 2022 car accident. Plaintiff explained he received treatment, but the treatment involved different body parts. Defendants' attorney asked plaintiff why D-1 "ma[de] no reference to . . . [the] prior accident." Plaintiff's counsel objected and the judge overruled the objection. The judge allowed defense counsel to "probe . . . what those notes say, in terms of treatment and who provided the treatment." Defense counsel also asked plaintiff about a notation in D-1 stating plaintiff was "pain free" prior to the 2023 car accident. Plaintiff did not recall making such a statement. Additionally, plaintiff testified he had substantial pain in his right shoulder, lower back, and right knee from the 2022 car accident, and A-3426-24 8 explained the pain free comment in D-1 referred to his left knee, left wrist, and left shoulder. Additionally, during cross-examination, plaintiff confirmed Sacco & Fillas, LLP represented his interests in the lawsuits arising from the 2022 and 2023 car accidents. During the 2023 lawsuit, an attorney from Sacco & Fillas, LLP stated plaintiff's injuries from the 2023 car accident "interfered with . . . plaintiff's ability to engage in activities, social, vocational[,] avocational[,] and daily routine in nature and . . . affected . . . plaintiff's comfort and pattern of sleep[ing]," resulting in "chronic and persistent pain, tenderness, swelling" and "stiffness, discomfort, distress, weakness, depression, stress, restriction of motion, anxiety, nocturnal pain, difficulty sleeping, change in sleeping patterns and irritability" Dr. Chiu testified as plaintiff's expert witness in the fields of anesthesiology and pain management. Dr. Chiu opined plaintiff's lower back injury was attributable to the March 2022 car accident and constituted "a permanent injury." On cross-examination, Dr. Chiu testified he was unaware of plaintiff's 2002 car accident and would have wanted that information while treating plaintiff. Dr. Chiu further stated information regarding plaintiff's 2023 car A-3426-24 9 accident would have mattered to him. However, Dr. Chiu testified the lack of information regarding the 2002 and 2023 car accidents did not alter his opinion that plaintiff's injuries were attributable to the 2022 car accident. Next, plaintiff called Dr. Jacobs to testify as an expert in neurosurgery. He performed a laminectomy on plaintiff's spine. Dr. Jacobs testified that he spoke with plaintiff about a prior lumbar procedure. Dr. Jacobs was not certain if the prior procedure was an epidural injection or a laminectomy. Dr. Jacobs opined plaintiff's back injury was caused by the March 2022 car accident and plaintiff suffered "some permanent disability" but his prognosis was "good." On cross-examination, Dr. Jacobs testified he did not know about plaintiff's prior car accident. Plaintiff called Dr. Basch to testify as an expert in orthopedics and spinal surgery. Dr. Basch's testimony was presented de bene esse to the jury via video recording. Dr. Basch began treating plaintiff in May 2022 for neck, lower back, right shoulder, and right knee issues. According to his March 19, 2024 expert report, Dr. Basch diagnosed plaintiff with multiple disc herniations and bulges, a torn rotator cuff in his right shoulder, and a tear in his right knee. According to Dr. Basch, plaintiff suffered "permanent" injuries and was at "higher risk for post-traumatic arthritis" due to the 2022 car accident. A-3426-24 10 On cross-examination, Dr. Basch testified he was unaware of plaintiff's 2002 car accident or any treatment associated with that accident. Dr. Basch stated the 2002 car accident did not change his opinion regarding the 2022 car accident as to the cause of plaintiff's injuries. Defendants called Dr. Decter as orthopedic expert. Dr. Decter examined plaintiff and reviewed plaintiff's medical records to form his opinion. He also reviewed the reports submitted by plaintiff's experts. Defense counsel asked if Dr. Decter had "an opinion as to whether [plaintiff's dis[c] herniations] were caused by this accident?" Dr. Decter responded, "I can't give you a definitive opinion." Plaintiff then moved to strike Dr. Decter's testimony because he did not offer his opinions "within a reasonable degree of medical probability." In opposition to plaintiff's motion, defendants argued Dr. Decter's testimony was admissible because plaintiff bore the burden of proving he suffered a permanent injury from the 2022 car accident. The judge denied plaintiff's motion, stating "the defense does not bear the burden in this case." The verdict sheet submitted to the jury after closing argument included the following questions: (1) whether defendants were negligent; (2) whether defendants' negligence was the proximate cause of plaintiff's injuries; (3) A-3426-24 11 whether plaintiff sustained a permanent injury; and (4) damages to be awarded to plaintiff if the jury answered "yes" to questions one, two, and three. During deliberations, the jury wrote the following note to the judge: "Was Dr. Decter asked if the plaintiff sustained permanent damage. If so, what was his answer?" After discussing the jury's question with counsel, the parties agreed the judge should advise the jury to "rely on [their] recollection as to the testimony taken in this case and specifically the testimony that was presented by that particular witness, Dr. Decter." The jury resumed deliberating and returned a unanimous verdict finding as to question one that defendants were 100% negligent for the happening of the accident. However, the jury also found plaintiff did not sustain a permanent injury and was not entitled to damages in response to the remaining questions on the verdict sheet. On appeal, plaintiff argues the judge should have denied defendants' in limine motions allowing information about plaintiff's 2023 car accident to be used during cross-examination. Further, plaintiff contends the judge erred in declining to strike Dr. Decter's testimony. We reject these arguments. "Our review of the trial court's evidential rulings 'is limited to examining the decision for abuse of discretion.'" Primmer v. Harrison, 472 N.J. Super. 173 , 187 (App. Div. 2022) (quoting Ehrlich v. Sorokin, 451 N.J. Super. 119 , 128 A-3426-24 12 (App. Div. 2017)) (internal quotation marks omitted). An abuse of discretion "arises when a decision is 'made without a rational explanation, inexplicably departed from established policies, or rested on an impermissible basis.'" Flagg v. Essex Cnty. Prosecutor, 171 N.J. 561, 571 (2002) (quoting Achacoso-Sanchez v. Immigr. & Naturalization Serv., 779 F.2d 1260, 1265 (7th Cir. 1985)). Plaintiff first argues the judge erred by allowing defendants to discuss plaintiff's 2023 car accident during cross-examination of plaintiff and plaintiff's experts. Plaintiff contends N.J.S.A 39:6A-8(a), known as the verbal threshold limitation on lawsuits, precluded defense counsel's discussion of plaintiff's 2023 car accident. Plaintiff further asserts the 2023 car accident was irrelevant and inadmissible because defendants failed to provide expert testimony establishing a causal connection between plaintiff's injuries from the 2022 car accident and the 2023 car accident. We reject plaintiff's arguments. The verbal threshold is inapplicable to accidents involving a passenger car and a commercial vehicle. See Lymon v. Cape Transit Corp., 340 N.J. Super. 573, 575 (App. Div. 2001). Defendants concede the accident involved a commercial vehicle, and the verbal threshold limitation does not apply. Thus, plaintiff's reliance on N.J.S.A 39:6A-8(a) is misplaced. A-3426-24 13 We next address plaintiff's argument that the judge misapplied his discretion by allowing defense counsel to use D-1, referring to the 2023 car accident, to cross-examine plaintiff and plaintiff's experts. Where a defendant is accused of negligently causing a plaintiff's medical condition, our courts allow a defendant to impeach the plaintiff and the plaintiff's experts using evidence of prior medical conditions. See Allendorf v. Kaiserman Enterprises, 266 N.J. Super. 662, 672-73 (App. Div. 1993). A defendant is permitted to question injury claims by a plaintiff and a plaintiff's witnesses or experts so that a jury may determine the cause of the injury. Ibid. In deciding the admissibility of such evidence, a trial judge must weigh the prejudice to a plaintiff in admitting the evidence against the prejudice suffered by the defendant in excluding the evidence. See Rodriguez v. Wal-Mart Stores, Inc., 237 N.J. 36, 67-68 (2019). The New Jersey Rules of Evidence permit any party to attack the credibility of a witness by introducing extrinsic evidence. N.J.R.E. 607(a). Relevant evidence requires it to have a "tendency in reason or disprove any fact of consequence." N.J.R.E. 401. An injury is relevant and admissible if there is "competent proof from which it could be found that the injury was thus attributable to the earlier event." Paxton v. Misiuk, 34 N.J. 453, 461 (1961). A-3426-24 14 The New Jersey Supreme Court has held that a defendant has the right to provide evidence that a plaintiff's injury was caused, wholly or partly, by a prior accident or existing condition. See Rodriguez, 237 N.J. at 66 . The Court explained it would have been "unfairly prejudicial" to prevent the defendant from discussing contributing factors to the plaintiff's health issues to prove the defendant was not the cause of the plaintiff's injuries. Id. at 67 . Our Court has held impeachment of expert witnesses is effective in assisting the jury 's "search for the truth." James v. Ruiz, 440 N.J. Super. 45, 75 (App. Div. 2015). Here, the judge properly weighed the potential prejudice to the parties associated with the use of D-1 and information regarding plaintiff's 2023 car accident. Based on the testimony, the jury could find plaintiff's injuries from all three accidents were causally connected. Plaintiff reported discomfort and inability to perform activities of daily living after the 2002, 2022, and 2023 car accidents. Plaintiff's injuries associated with 2023 car accident were similar to the injuries which he claimed were associated with the 2022 car accident. It was for the jury to determine what, if any, injuries plaintiff suffered due to the 2022 car accident since plaintiff previously settled his claims for injuries suffered in the 2023 car accident. A-3426-24 15 Importantly, the judge did not admit D-1 as trial evidence and defense counsel did not use D-1 for the truth of the matter asserted. Rather, defendant counsel used D-1 to challenge plaintiff's credibility before the jury. It would have been highly prejudicial to prevent defendants from asking plaintiff about the 2023 car accident so the jury could assess plaintiff's credibility given plaintiff's deposition testimony denying any subsequent car accident. The judge's evidentiary ruling was wholly within his wide discretion and did not constitute an abuse of discretion. Est. of Hanges v. Metro. Prop. & Cas. Ins. Co., 202 N.J. 369, 383 (2010). We also reject plaintiff's argument that the 2023 car accident was inadmissible because Dr. Decter never causally connected the injuries from the 2023 car accident and plaintiff's injuries from the 2022 car accident. Defense counsel used D-1 not for the purpose of proving the truth of the subsequent accident, but to impeach the testimony of plaintiff and challenge the opinions proffered by plaintiff's expert witnesses. Moreover, the judge correctly concluded plaintiff, not defendants, bore the burden of proving causation. We next consider and reject plaintiff's arguments that the judge should have barred Dr. Decter's expert testimony as not contained within the scope of his report and his opinion improperly influenced the jury. Plaintiff argues A-3426-24 16 information about the subsequent accident was improper because Dr. Decter did not provide expert testimony establishing the 2023 car accident, rather than the 2022 car accident, caused plaintiff injuries. The judge concluded plaintiff impermissibly attempted to shift the burden to defendants to require Dr. Decter provide opinions within a reasonable degree of medical probability as to the cause of plaintiff's injury. Dr. Decter examined plaintiff and the judge allowed the doctor to comment on his findings during that examination. The fact that Dr. Decter did not provide an expert opinion within a reasonable degree of medical probability as to causation for plaintiff's 2022 injuries did not invalidate his testimony. The judge properly allowed defendants to question the witnesses about the 2023 car accident. Defendants did not have the burden of proof, and the judge appropriately found that Dr. Decter's lack of causal medical testimony did not preclude him from testifying about his examination of plaintiff. Affirmed. A-3426-24 17