Yvonne J. Terrell v. Penafranc A. Chitra

NOT FOR PUBLICATION WITHOUT THE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-1946-23

YVONNE J. TERRELL,

Plaintiff-Respondent/

Cross-Appellant,

v.

PENAFRANC A. CHITRA,

Defendant-Appellant/

Cross-Respondent.

_________________________

Argued November 12, 2025 – Decided January 16, 2026

Before Judges Gilson, Firko, and Vinci.

On appeal from the Superior Court of New Jersey, Law

Division, Essex County, Docket No. L-6089-19.

John V. Mallon argued the cause for appellant/cross-

respondent (Chasan Lamparello Mallon & Cappuzzo,

PC, attorneys; John V. Mallon, of counsel and on the

briefs; Robert Cappuzzo, of counsel; Robert J.

Lombardo, on the briefs).

Brett R. Greiner argued the cause for respondent/cross-

appellant (Levinson Axelrod, PA, attorneys; Brett R.

Greiner, of counsel and on the brief).

PER CURIAM

Motor vehicles driven by plaintiff Yvonne Terrell and defendant

Penafranc Chitra collided at an intersection and plaintiff sustained injuries to

her neck, spine, and right shoulder. Plaintiff sued defendant and defendant

stipulated that she caused the accident. The matter then proceeded to trial on

plaintiff's damages.

Germane to this appeal, the trial involved disputes concerning plaintiff's

claims for future medical expenses and lost wages. Before trial, the court barred

plaintiff's medical expert from testifying about future medical expenses because,

among other reasons, plaintiff had testified at her deposition that she had not

proceeded with the surgery recommended by her treating physician. At trial,

however, plaintiff changed her position and stated that she was now considering

having the surgery. Thus, on plaintiff's motion, the trial court reversed its prior

ruling and allowed plaintiff's medical expert to be recalled and testify that the

cost of plaintiff's future medical surgery would be approximately $225,000.

On the issue of lost wages, the trial court barred that claim after listening

to plaintiff's testimony. The court determined that her testimony concerning her

alleged lost wages was too speculative.

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The jury awarded plaintiff $1,300,000, consisting of $1,000,000 for pain

and suffering and $300,000 for future medical expenses. Defendant now

appeals, contending primarily that evidence of future medical expenses should

have been precluded. Plaintiff cross-appeals from the ruling that barred her from

pursuing a claim for lost wages.

Having considered the arguments, record, and law, we reverse the order

allowing evidence of plaintiff's future medical expenses. We affirm the order

precluding plaintiff's claim for lost wages. Accordingly, we vacate the judgment

and remand for a new trial on plaintiff's damage claims without evidence of

future medical expenses related to a potential surgery.

I.

On August 6, 2018, defendant was driving her car south on Grove Street

in Montclair. At the same time, plaintiff was driving her car west on Watchung

Avenue. The cars collided at the intersection of Grove Street and Watchung

Avenue. As a result of the accident, plaintiff sustained severe injuries to her

neck, cervical spine, lumbar spine, and right shoulder.

Following the accident, plaintiff consulted with several physicians. Her

primary treating physician was Dr. Jerald Vizzone, an orthopedic surgeon. Dr.

Vizzone recommended that plaintiff undergo two magnetic resonance imaging

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3

(MRI) and an electromyography (EMG). The MRIs and EMG showed that

plaintiff had a disc herniation in her spinal cord.

In 2019 and 2020, Dr. Vizzone recommended that plaintiff have surgery

involving "an anterior cervical discectomy with total disc replacement and

possible fusion" to address the acute traumatic injury to her cervical spine.

According to Dr. Vizzone, the surgery would take the pressure off plaintiff's

nerves but "would not relieve all of [plaintiff's] pain." Plaintiff was a nurse and

Dr. Vizzone explained the risks of the recommended surgery to her. In that

regard, the doctor explained that the surgery was complicated, and its risks

included "paralysis and death." Plaintiff decided not to go forward with the

surgery in 2019 or in 2020.

Plaintiff also consulted with three other physicians, seeking second

opinions on her recommended course of treatment. Dr. Dannis, a neurosurgeon,

consulted with plaintiff and did not recommend surgery. Instead, he

recommended physical therapy. Plaintiff also consulted Dr. Nachwalter,

another orthopedic physician. He recommended surgery like the surgery

recommended by Dr. Vizzone. Plaintiff also consulted with Dr. Farmer, who

was associated with the New York Hospital for Special Surgery. Dr. Farmer

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told plaintiff that surgery would not relieve her pain. After consulting with those

four physicians, plaintiff decided not to undergo surgery at that time.

In August 2019, plaintiff sued defendant, seeking damages for the injuries

she suffered in the August 2018 motor vehicle collision. Defendant ultimately

conceded liability and limited her defense to contesting plaintiff's damages.

In October 2020, when plaintiff was deposed, she testified that she

understood the proposed surgery was "very delicate" and "[t]here are many risks

involved, and things [could] happen[] where there [could be] lot[s] of negative

outcomes." She also explained:

And I believe in any situation, unless it's an emergency

situation where surgery is the only option you have, that

you really need to look into all the aspects and then

make, you know, an educated decision as to whether

this will be of benefit to you. So that's kind of what I

was doing.

During discovery, plaintiff named Dr. Lance Markbreiter as her medical

expert and he thereafter prepared a written report with five supplements or

addenda. The initial report was dated July 14, 2020, and the last addendum was

prepared on December 14, 2021. Dr. Markbreiter reviewed plaintiff's medical

records, physically examined her three times, and opined that as a result of the

automobile accident, plaintiff had permanent injuries to her cervical spine,

lumbar spine, and right shoulder.

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In his last report, dated December 14, 2021, Dr. Markbreiter noted

plaintiff had recently informed him that she had not undergone the

recommended surgery and "[s]he continues to have concerns regarding future

surgical intervention." Thus, as of December 2021, plaintiff had still elected not

to undergo the recommended surgery.

In response to discovery requests, plaintiff disclosed that she had

$250,000 in automobile insurance coverage available for her personal injury

protection (PIP). In March 2022, plaintiff amended her answers to

interrogatories to state that she had received $11,810.31 in PIP benefits.

Discovery ended in May 2021. The trial regarding damages was then

conducted two years later in September 2023. At no time before trial did

plaintiff amend her discovery responses concerning her deposition testimony.

Accordingly, prior to trial, plaintiff had testified that she had not proceeded with

the recommended surgery. Plaintiff also did not amend her March 2022

interrogatory responses concerning her PIP coverage. Therefore, at the time of

trial, according to plaintiff's discovery responses she still had just over $238,000

in potentially available PIP coverage.

In April 2022, defendant moved to preclude plaintiff's medical expert

from testifying about plaintiff's future medical costs. The trial court first

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considered that motion just before trial on September 25, 2023. Defendant made

three arguments in support of her motion to strike.

First, she pointed out plaintiff had testified at her deposition that she had

not proceeded with the surgery and therefore there was no reason to believe

future surgical costs would be incurred. Second, defendant contended that there

were collateral sources to pay for her future medical surgery, including PIP

coverage. Finally, defendant asserted that Dr. Markbreiter had not been

identified as an expert on future medical costs and he did not have the proper

basis for offering an opinion.

After considering the arguments of counsel, on September 25, 2023, the

trial court barred testimony concerning plaintiff's future medical surgery costs.

The court directed that the de bene esse video testimony of Dr. Markbreiter,

which had been conducted on March 24, 2022, be redacted to delete any

"references to the costs for future surgery" before it was presented to the jury.

In explaining its ruling, the court reasoned because there would be no evidence

"that the surgery is actually going to take place[,]" there was no basis for a

medical expert to offer an opinion as to the cost of any future surgery. In that

regard, the court noted "it would be clearly improper" for plaintiff to now change

her testimony and say "okay, now I'll get the surgery."

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The trial court also reasoned Dr. Markbreiter would be attempting to offer

a "lay opinion" regarding future medical costs and he had not provided an

adequate factual basis that his projected costs were "based on a reasonable

degree of medical certainty or medical probability, even if the doctor [was to]

say[] those magic words."

Opening statements and the presentation of evidence then began on

September 27, 2023. Plaintiff called three witnesses: Dr. Vizzone, Dr.

Markbreiter, and Paulette Simpson, who had cared for plaintiff's disabled son.

Plaintiff also testified.

Dr. Vizzone explained the treatment he had provided to plaintiff after the

2018 automobile accident. He also reviewed the MRIs plaintiff had undergone,

his recommendation for surgery, and the associated risks of the surgery. He

testified that in December 2019, plaintiff had informed him "[s]he decided not

to proceed with surgery and wanted to continue physical therapy, and was given

anti-inflammatories." Dr. Vizzone also testified that he last saw plaintiff in

February 2020, and she had still not decided to proceed with the surgery.

Pre-recorded video testimony from plaintiff's medical expert, Dr.

Markbreiter, was then presented to the jury. Consistent with his reports, Dr.

Markbreiter testified that plaintiff had sustained permanent injuries to her

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cervical spine, lumbar spine, and right shoulder. He also opined that the

prognosis for plaintiff's injuries was poor. In accordance with the trial court's

ruling, Dr. Markbreiter did not initially testify about plaintiff's future costs for

surgery.

Plaintiff thereafter testified on September 28, 2023. Plaintiff informed

the jury that she had been concerned about proceeding with surgery from 2018

through 2020 because "[t]he risks were too great . . . [and she] didn't want to

stand the chance of not being able to function and take care of [her] son."

Plaintiff elucidated that her son was disabled, he needed significant care with

his daily tasks, and she was concerned she might not be able to assist with his

care if she underwent the surgery.

Plaintiff then testified that her son had recently passed away and therefore

she was "exploring having the surgery at this point." Plaintiff told the jury: "I

was going to make an appointment with [the] Hospital for Special Surgery to

get a re[-]evaluation and proceed with that, if that's what I needed to [do]."

Plaintiff went on to testify:

I believe I'm going to have pain for the rest of my life.

Surgery may help. I don't know yet. I have to talk and

get that information and, you know.

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9

I mean, I am planning to have the -- I'm going to have

the surgery because it seems that that's my only option

right now. So that's -- that's it.

On redirect, plaintiff was asked: "Okay. But at this point, your -- your intention

is to move forward with that procedure?" Plaintiff responded: "I do. My -- my

symptoms are getting worse. I think that's my only option right now."

Plaintiff also provided testimony concerning the impact her injuries had

on her activities. She told the jury that she was sixty-seven years old at the time

of trial. She explained that she had worked as a fulltime nurse in the cardiac

unit for Clara Maass Medical Center and worked part time at St. Michael's

Medical Center and Mountainside Hospital on weekends. She stated she had

planned to work until she was seventy years old but decided to retire at sixty -

seven because she did not feel she could continue her job as a nurse.

At the end of plaintiff's testimony, she rested her case. Defendant then

presented testimony from her two medical experts, and she rested her case.

Thereafter, plaintiff's counsel made an oral motion, requesting the court

to reconsider its decision that barred testimony regarding the cost of plaintiff's

future medical surgery. Counsel argued that plaintiff's trial testimony indicating

her intention to go forward with surgery was grounds for reconsidering the

court's prior ruling. The defense objected, arguing that the testimony regarding

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10

surgery was speculative and the PIP statute precluded admission of future

medical expenses because there was still available PIP coverage. The parties

disputed whether her PIP carrier would pay for plaintiff's future surgery because

the PIP statute of limitations might now preclude PIP coverage.

After hearing the arguments of counsel, the trial court reversed its earlier

ruling and decided that plaintiff could offer testimony concerning the future

costs of surgery. The court did not address the PIP statute's prohibition on the

inadmissibility of costs covered by PIP benefits. Instead, the court reasoned that

any verdict for future medical expenses could be reduced or vacated if plaintiff's

PIP carrier, State Farm, paid for the surgery. The court also reasoned that

defendant could sue State Farm for the future medical expenses.

Plaintiff then played an excerpt from the recorded de bene esse testimony

of Dr. Markbreiter for the jury. In that segment of his testimony, Dr.

Markbreiter opined that the reasonable and customary costs for plaintiff's future

medical surgery would be "approximately [$200,000]" and could "exceed

$225,000." The jury also heard an excerpt from the cross-examination of Dr.

Markbreiter. That was the last testimony the jury heard.

The following day, on September 29, 2023, the jury heard closing

statements and was given instruction by the court. After deliberating, the jury

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returned its verdict. It awarded plaintiff $1,000,000 for her pain, suffering,

disability, and loss of enjoyment of life and $300,000 for her future medical

expenses.

On January 18, 2024, the trial court molded the verdict into a judgment

order. In addition to the $1,300,000, the court awarded prejudgment interest of

$171,549.60 and entered a judgment in the amount of $1,471,549.60 plus post

judgment interest. The trial court also added a provision concerning the

potential for future PIP medical benefits. In that regard, the judgment included

a provision that stated:

Ordered that with respect to the future medical costs,

plaintiff, through her counsel, provide defendant's

attorney notice of the scheduling of such future care,

the identity and address of the providers and an

assignment of rights in order to protect the subrogation

rights of defendant against the PIP benefits of the

personal automobile policy of plaintiff, and that such

obligation remains ongoing until such time as PIP

benefits are exhausted[.]

Defendant now appeals from the final judgment. Plaintiff cross-appeals

from the ruling barring her from pursuing a claim for lost wages.

II.

In her appeal, defendant makes a series of arguments, contending that

plaintiff's future medical costs were inadmissible and should not have been

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considered by the jury. She asserts that plaintiff's PIP benefits were not

exhausted and, therefore, evidence of the future medical expenses should have

been barred under the No-Fault statute. She also argues that the subrogation

provision in the final judgment was contrary to well-established law and was

improper. Additionally, plaintiff contends that Dr. Markbreiter was not

qualified as an expert on future medical expenses and the procedures that led to

his testimony were prejudicial.

Defendant also argues that plaintiff failed to disclose the material change

in her testimony regarding her willingness to undergo surgery before trial and

that failure is an independent basis for precluding her testimony. Furthermore,

defendant contends that the entire jury award must be vacated because the

introduction of inadmissible future medical expenses tainted the jury's award on

pain and suffering. Finally, defendant argues that plaintiff's counsel made

inappropriate comments in the opening and summation, and those comments

warrant a reversal and a new trial.

A. Plaintiff's Future Medical Expenses.

Generally, an appellate court will review a trial court's ruling on an

evidentiary issue for an abuse of discretion. Schwartz v. Menas, 251 N.J. 556,

570 (2022) (citing Rodriguez v. Wal-Mart Stores, Inc., 237 N.J. 36, 57 (2019)).

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"A court abuses its discretion when its 'decision is "made without a rational

explanation, inexplicably depart[s] from established policies, or rest[s] on an

impermissible basis."'" State v. Chavies, 247 N.J. 245, 257 (2021) (quoting

State v. R.Y., 242 N.J. 48, 65 (2020)).

By contrast, "[a] trial court's interpretation of the law and the legal

consequences that flow from established facts are not entitled to any special

deference." Rowe v. Bell & Gossett Co., 239 N.J. 531, 552 (2019) (alteration

in original) (quoting Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140

N.J. 366, 378 (1995)). Accordingly, issues of statutory interpretation are

reviewed de novo. Kocanowski v. Township of Bridgewater, 237 N.J. 3, 9

(2019) (citing State v. Fuqua, 234 N.J. 583, 591 (2018)).

1. The No-Fault Statute's Prohibition on the Admission of Costs

Covered by PIP Benefits.

New Jersey has a no-fault system governing medical expenses for personal

injuries suffered in automobile accidents. N.J.S.A. 39:6A-1 to -35; see also Roig

v. Kelsey, 135 N.J. 500, 502-04 (1994) (explaining the background and purpose

of New Jersey's no-fault statutory scheme). Under that system, a motorist's

automobile insurer is required to pay for the medical expenses up to the limits

of the PIP coverage. See N.J.S.A. 39:6A-4(a); N.J.S.A. 39:6A-4.3(e).

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To help reduce costs, the no-fault system also bars an injured motorist

from introducing "evidence of the amounts collectible or paid" by their PIP

carrier if they sue the other driver. N.J.S.A. 39:6A-12. That statute states:

[E]vidence of the amounts collectible or paid under a

standard automobile insurance policy . . . a basic

automobile insurance policy[, or] . . . a special

automobile insurance policy . . . to an injured person,

including the amounts of any deductibles, copayments,

or exclusions . . . is inadmissible in a civil action for

recovery of damages for bodily injury by such injured

person.

[N.J.S.A. 39:A-12.]

The statute goes on to direct that juries in civil actions are to be instructed

that they cannot consider or speculate "as to the amount of the medical expense

benefits paid or payable by an automobile insurer under personal injury

protection coverage payable under" an automobile insurance policy. Ibid.

Additionally, the statute provides:

Nothing in this section shall be construed to limit the

right of recovery, against the tortfeasor, of

uncompensated economic loss . . . including all

uncompensated medical expenses not covered by the

personal injury protection limits applicable to the

injured party and sustained by the injured party. All

medical expenses that exceed, or are unpaid or

uncovered by any injured party's medical expense

benefits personal injury protection limits, regardless of

any health insurance coverage, are claimable by any

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injured party as against all liable parties, including any

self-funded health care plans that assert valid liens.

[Ibid.]

The language of the statute is clear. A plaintiff suing a defendant for

personal injuries arising out of an automobile accident cannot introduce

evidence of the amounts collectible from or paid by a PIP carrier. Significantly,

the Legislature made the word "collectible" disjunctive from the word "paid."

Tullis v. Teial, 182 N.J. Super. 553, 558 (App. Div. 1982). Thus, we have

explained that it "is manifest that the money need not be paid for proof of the

bill to be barred. This is so because the words 'collectible or paid' are written in

the disjunctive." Ibid.

It is undisputed that plaintiff's automobile policy provided PIP benefits in

the amount of $250,000. It is also undisputed that at the time of trial, State

Farm, plaintiff's PIP carrier, had paid $11,810.31 in PIP benefits to plaintiff.

Consequently, there was $238,189.69 in remaining PIP benefits.

The plain language of N.J.S.A. 39:6A-12 prohibited plaintiff from

introducing evidence of any future medical costs up to $238,189.69.

Consequently, the court erred when it allowed Dr. Markbreiter to testify that

plaintiff's potential future surgery costs would be approximately $200,000 to

$225,000.

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Plaintiff argues that Dr. Markbreiter's testimony regarding future medical

expenses was admissible because plaintiff's PIP benefits might not be

recoverable from State Farm as the PIP statute of limitations might bar that

coverage. We reject that argument for several reasons.

First, it is not clear that plaintiff's claim for PIP benefits will be barred.

The governing statute of limitations is set forth in N.J.S.A. 39:6A-13.1. That

provision states, in relevant part, that

[e]very action for the payment of benefits payable

under a standard automobile insurance policy . . . shall

be commenced not later than two years after the injured

person or survivor suffers a loss or incurs an expense

and either knows or in the exercise of reasonable

diligence should know that the loss or expense was

caused by the accident, or not later than four years after

the accident whichever is earlier, provided, however,

that if benefits have been paid before then an action for

further benefits may be commenced not later than two

years after the last payment of benefits.

[N.J.S.A. 39:6A-13.1.]

That statute of limitations, however, can be extended in certain

circumstances. Accordingly, we have held:

that when a carrier has made PIP payments in

connection with a compensable injury and is chargeable

with knowledge at the time of its last payment that the

injury will probably require future treatment, then the

"two-year after payment" provision of N.J.S.A. 39:6A-

13.1 will not bar an action brought within a reasonable

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time after rejection of a prompt claim for payment of

additional medical expenses for such treatment.

[Zupo v. CNA Ins. Co., 193 N.J. Super. 374, 384 (App. Div. 1984),

aff'd, 98 N.J. 30 (1984).]

See also Rahnefeld v. Sec. Ins. Co. of Hartford, 115 N.J. 628, 636 (1989)

(alteration in original) (quoting Lind v. Ins. Co. of N. Am., 174 N.J. Super. 363,

369 (Law Div. 1980)) (explaining that the PIP statute of limitations will not bar

claims when "[t]he injuries were of such a nature that future treatment was

contemplated and reasonably necessary").

Accordingly, nothing in the current record establishes that plaintiff could

not recover her medical expenses for future surgery from her PIP carrier. Thus,

if those future expenses are still potentially "collectible" evidence of that amount

is barred in a civil action under N.J.S.A. 39:6A-12.

Second, plaintiff made a knowing election not to proceed with the surgery

at a time when her PIP benefits were available. Plaintiff's primary treating

physician, Dr. Vizzone, repeatedly recommended that plaintiff undergo the

surgery in 2019 and 2020. Plaintiff also knew that she had PIP coverage

available up through March 2022 to pay for the surgery. Plaintiff, however,

decided not to proceed with the surgery. We do not fault that decision. It was

plaintiff's to make. But having decided not to proceed with the surgery when

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she had PIP coverage available, plaintiff should not now be allowed to change

her position during trial. Plaintiff made the election, and she must bear the

consequences.

That second point leads to a third point. At no time before trial did

plaintiff amend her discovery responses to state that she was going to change

her position and go forward with the surgery.

2. Plaintiff's Changed Position Regarding Future Surgery.

Before trial began in September 2023, plaintiff had not undergone the

surgery, which had been recommended for over three years. Indeed, in 2019

and 2020 her treating doctor and a second-opinion doctor both recommended

surgery, but plaintiff decided not to have the surgery. She confirmed that

position under oath at her deposition in October 2020.

At no time prior to trial did plaintiff amend her interrogatory responses to

state she was either considering getting the surgery or that she would in fact

undergo the surgery. That failure to amend her discovery responses is an

independent basis for precluding plaintiff from now seeking future medical costs

related to future surgery. See R. 4:17-7 (stating that when a party's interrogatory

responses become "incomplete or inaccurate," the party must amend those

responses at least twenty days prior to the close of discovery, and that failure to

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do so results in the amendments being "disregarded"). That amendment,

moreover, needed to have been made well before trial. See Smith v. Schalk, 360

N.J. Super. 337, 345-46 (App. Div. 2003) (holding that amending discovery

responses on the "eve of trial . . . unfairly prejudiced" the defendant); Mauro v.

Owens-Corning Fiberglas Corp., 225 N.J. Super. 196, 207-08 (App. Div. 1988)

(same).

Plaintiff's counsel tries to argue that her deposition testimony was not

definitive. We reject that argument. Plaintiff definitively testified that as of

October 2020, she had not gone forward with the surgery.

Just as importantly, plaintiff's failure to amend her discovery responses

also prejudiced defendant. Prior to trial, defendant reasonably believed that

plaintiff had decided not to go forward with the surgery. Indeed, in April 2022,

defendant moved to preclude any testimony regarding the cost of the future

surgery. Throughout the course of the trial and up until plaintiff testified as the

last witness before resting, defendant was defending a case where the cost of

future medical expenses had been barred. Thus, when plaintiff testified at trial

and changed her position, that change of position prejudiced the defense. See

McKenney v. Jersey City Med. Ctr., 167 N.J. 359, 370 (2001) (holding that a

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party may be prejudiced by a "radical change" in a witness' testimony from their

deposition when counsel knew or should have known of the change).

Had plaintiff changed her position in a timely manner when discovery was

still open before May 2021, defendant could have taken action to require, if

necessary, plaintiff to preserve her right to seek the cost of surgery from State

Farm, her PIP carrier. In that regard, defendant could have brought a motion to

require plaintiff to take a definitive position regarding whether she was going

forward with the future surgery and to create a record that if she would not

commit to the surgery, then she was making a binding election because the PIP

coverage was "collectible" in 2021 when discovery ended.

Finally, we hold that plaintiff should not have been allowed to change her

position regarding whether she was going to get the surgery because she did not

make that decision definitively even at trial. Her trial testimony is equivocal.

She did not testify that she was definitely getting the surgery. Instead, she

indicated she was planning to make an appointment with the Hospital for Special

Surgery to get a re-evaluation, and that she might undergo the surgery. Indeed,

at oral argument in this matter before us in 2025, plaintiff's counsel confirmed

that plaintiff had still not undergone the surgery.

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In summary, given that plaintiff did not amend her discovery responses

while discovery was open, or even before trial, and given her failure to amend

prejudiced the defense, she is barred as a matter of law from seeking future

medical expenses related to the surgery from defendant.

Given that ruling, we need not address defendant's additional argument

that Dr. Markbreiter was not qualified to offer an opinion regarding future

medical expenses. We do point out, however, that because plaintiff never took

a definitive position as to whether she was going forward with the surgery, Dr.

Markbreiter's opinions, which were offered in March 2022, had no reliable

factual basis that the surgery would in fact take place. In short, without

definitive testimony from plaintiff that she would be getting the surgery, Dr.

Markbreiter's testimony lacked a necessary factual foundation: that is, that the

surgery would take place at some point in the future. See N.J.R.E. 703;

Rosenberg v. Tavorath, 352 N.J. Super. 385, 401 (App. Div. 2002) ("N.J.R.E.

703 requires that an expert's opinion be based on facts, data, or another expert's

opinion, either perceived by or made known to the expert, at or before trial.").

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3. The Subrogation Provision in the Judgment.

Defendant also argues that the trial court's subrogation provision in the

judgment order was "contrary to well settled law" and it "improperly assigned"

benefits to a non-provider of services. We agree.

The right to subrogate against an insurance provider is established in

N.J.A.C. 11:3-4.9(a). That code section provides that "[p]ursuant to N.J.S.A.

39:6A-4, an insured may only assign benefits and duties under the policy to a

provider of service benefits . . . [i]nsurers may not prohibit the assignment of

benefits to providers." Ibid.

In contradiction to N.J.A.C. 11:3-4.9, the trial court added a provision to

the judgment subrogating plaintiff's rights against her PIP insurer to defendant.

That provision is without precedent, and we are not aware of any statute or case

law that would allow such a provision. Indeed, neither plaintiff nor defendant

cited any law allowing subrogation of PIP benefits to a tortfeasor.

Furthermore, that subrogation provision would be subject to challenge by

State Farm, because State Farm was not a named party to the lawsuit and would

have a right to dispute the subrogation provision. See N. Haledon Fire Co. No.

1 v. Borough of North Haledon, 425 N.J. Super. 615, 628 (App. Div. 2012)

(quoting In re Application of Mallon, 232 N.J. Super. 249, 254 n.2 (App. Div.

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1989)) (explaining that "[j]udgment or orders normally do not bind non-

parties").

B. A New Damage Trial.

Having ruled that plaintiff should not have been permitted to introduce

evidence of her alleged future medical costs related to future surgery, we vacate

the entire judgment and remand for a new trial on damages. The New Jersey

Supreme Court has explained that "a claim for future medical expenses is not

separable from seeking compensation for pain and suffering." Brehme v. Irwin,

259 N.J. 505, 518 (2025). In that regard, the Court explained that "[i]t is well

established that personal injury awards are generally not divisible." Ibid. (citing

Caldwell v. Haynes, 136 N.J. 422, 442 (1994)). The Court also explained "[t]hat

is especially true where the evidence of pain and suffering is inextricably linked

to evidence of future medical expenses. One jury cannot hear evidence relevant

to pain and suffering and another jury hear evidence relevant to future medical

expenses." Ibid.

At the trial in this matter, the jury improperly heard testimony regarding

plaintiff's future medical expenses related to a potential surgery, and that

testimony affected the jury's decision regarding the pain and suffering award.

Consequently, we vacate the complete award and remand for a new trial on

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damages. At that new trial, plaintiff will be precluded from introducing any

evidence related to future medical expenses. In that regard, we note that plaintiff

did not identify any future medical expenses other than the potential costs for

surgery. As we have ruled that those future surgical costs are not admissible,

plaintiff can present no evidence related to future medical expenses.

III.

In her cross-appeal, plaintiff contends that the trial court erred in

precluding her from seeking damages for future lost wages. We review that

evidentiary ruling for an abuse of discretion. Schwartz, 251 N.J. at 570 (citing

Rodriguez, 237 N.J. at 57).

A claim for future lost income "must be supported by two things: (1) 'a

reasonable probability' of such a loss flowing from the past harm; and (2)

'sufficient factual matter upon which the quantum of diminishment can

reasonably be determined.'" Haywood v. Harris, 414 N.J. Super. 204, 214 (App.

Div. 2010) (emphasis omitted) (quoting Coll v. Sherry, 29 N.J. 166, 176 (1959)).

"The 'mere possibility' of lost earning capacity is insufficient." Ibid. (quoting

Lesniak v. County of Bergen, 117 N.J. 12, 24 (1989)). Accordingly, a claimant

must "adduce sufficient proof so that 'the jury could make a dollar-and-cents

calculation of the loss.'" Ibid. (quoting Lesniak, 117 N.J. at 25).

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After the close of evidence, the trial court determined that plaintiff had

not established a sufficient factual basis to support a claim for future lost wages.

The court pointed out that plaintiff had retired at age sixty-seven, five years after

the date of the accident. The court then reasoned that it would be "speculative "

to try to determine what future wages plaintiff would lose because of the

accident in August 2018. We discern no abuse of discretion in that

determination.

Plaintiff did not present evidence that there was a reasonable probability

that her decision to retire five years after the accident was a result of the

accident. Moreover, plaintiff did not present any expert testimony that would

explain to the jury the quantum of diminishment in her lost earning capacity.

For example, there was no testimony from a witness, such as a vocational expert,

explaining whether plaintiff could perform other jobs given her injuries. While

plaintiff testified that her injuries prevented her from working as a nurse, she

did not present evidence regarding her ability to engage in other types of

employment, nor did her medical expert discuss the impact of her injuries on her

ability to work in other qualified positions. Consequently, plaintiff's claim for

future lost wages failed to meet the standard set forth by the Court in Haywood.

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We therefore discern no basis for reversing the trial court's decision precluding

plaintiff's claims for lost wages.

IV.

In summary, on defendant's appeal, we reverse the trial court's decision

allowing plaintiff to present evidence of her future medical expenses. On

plaintiff's cross-appeal, we affirm the trial court's decision precluding plaintiff

from seeking damages for future lost wages. We vacate the entire judgment and

remand the matter for a new trial on damages. At that trial, plaintiff cannot

introduce evidence of her future medical expenses, nor can she make a claim for

future lost wages.

We add one additional comment. While we need not address defendant's

challenges to plaintiff's counsel's statements during opening and closing because

there will be a new trial, we point out that some of those statements were

improper. Therefore, at the new damages trial, plaintiff's counsel should not

make unsupported statements or arguments.

Reversed in part, affirmed in part, and remanded. We do not retain

jurisdiction.

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