Full Opinion

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-2134-24 JORGE GUILLEN and MARLENIS ALMONTE, Administrator of the Estate of JORGE GUILLEN, Plaintiffs-Appellants, v. NATIONAL INDEPENDENT TRUCKERS INSURANCE COMPANY, RRG and LIBERTY MUTUAL INSURANCE COMPANY, Defendants-Respondents. ______________________________ Submitted September 22, 2026 – Decided October 28, 2026 Before Judges Vanek and Bergman. On appeal from the Superior Court of New Jersey, Law Division, Union County, Docket No. L-1924-21. Percario Clericuzio & Cornel, LLC, attorneys for appellants (Joseph A. Percario III, on the brief). McElroy Deutsch Mulvaney & Carpenter LLP, attorneys for respondent Liberty Mutual Insurance Company (John T. Coyne, on the brief). PER CURIAM Plaintiff Marlenis Almonte, the administrator of the Estate of Jorge Guillen,1 appeals from an October 9, 2024 Law Division order involuntarily dismissing plaintiff's complaint against Liberty Mutual Insurance Company (Liberty) for Uninsured Motorist benefits (UM), after the close of plaintiff's proofs during a jury trial. Plaintiff also appeals several evidentiary rulings at trial and a February 14, 2025 order denying reconsideration of the involuntary dismissal. We reverse and remand for a new trial consistent with this opinion. We address separately certain evidentiary issues in the event those issues recur during retrial and leave determination of the remainder of the evidentiary issues to the sound discretion of the trial court, should they arise in the context of the new record. 1 Jorge Guillen filed the complaint in 2021. He passed away prior to trial, and complaint was amended to name Marlenis Almonte, administrator of Jorge Guillen's estate, as plaintiff. Thus, we refer to Guillen by name and Almonte as plaintiff. A-2134-24 2 I. We recount the facts in the record material to our decision. By way of background, on November 19, 2019, Guillen was driving a commercial truck during snowy conditions in Hartland, Vermont when his vehicle jackknifed and struck another vehicle. Vermont State Trooper Sean Collins was dispatched to the scene. After an investigation which included an interview with the other driver, Trooper Collins concluded in a police report that Guillen's excessive speed coupled with the weather had caused the accident and he issued Guillen a speeding ticket. The police report referenced a third vehicle, but that driver's name was redacted on the copy Guillen later received. Guillen suffered severe head trauma as a result of the accident. He was transported to Dartmouth-Hitchcock Hospital in New Hampshire, where he was admitted for several days. Plaintiff asserts that, while in the hospital, Guillen relayed that another vehicle caused the accident by attempting to cut him off on the roadway. While Guillen was hospitalized, his family reported Giullan's statements to his insurance carriers. After discharge, Guillen returned to his home in New Jersey and continued to complain of headaches and neck pain. He was again hospitalized from A-2134-24 3 November 30, through December 4, 2019, and from January 1, through January 3, 2020. Guillen continued to receive treatment for his accident-related injuries. At the time of the accident, Guillen held a commercial automobile insurance policy with National Independent Truckers Insurance Company, RRG (National Independent) and a personal automobile policy through Liberty. Both policies included UM coverage. About a year after Liberty issued an April 23, 2020 letter denying Guillen's claim for UM benefits, he filed a verified complaint and order to show cause against National Independent and Liberty seeking to compel UM arbitration. Liberty's counsel did not appear at the June 7, 2021 order to show cause hearing. On consent of Guillen and National Independent, the court entered an order compelling discovery from all parties by specified deadlines. After Liberty filed its answer about a month later, Guillen's counsel provided a copy of the June 7 order to Liberty and suggested proceeding with arbitration. Guillen died on December 31, 2021 due to unrelated health complications. On May 9, 2022, all parties agreed to dismiss plaintiff's complaint without prejudice and proceed to arbitration. After both carriers failed to respond to plaintiff's attempts to schedule arbitration, the court reinstated the complaint to the active trial calendar on plaintiff's motion, conditioned on proceeding to A-2134-24 4 arbitration with National Independent. The judge found Liberty was not bound by the 2021 consent order, but "encouraged" Liberty to arbitrate. Plaintiff resolved his UM claim against National Independent after arbitration. The court scheduled trial on plaintiff's claim for UM benefits against Liberty. Liberty then moved for summary judgment, asserting it was not liable for UM benefits because Guillen had failed to make reasonable efforts to identify the phantom vehicle that allegedly caused the accident. On March 21, 2024, the court entered an order denying Liberty's summary judgment motion. In an accompanying written statement of reasons, the judge cited to Norman v. Selective Ins. Co., 249 N.J. Super. 104, 111 (App. Div. 1991), concluding "the question of whether [Guillen] failed to act reasonably at the scene in not obtaining information about the identity of the other driver or owner is subject to varying inferences and . . . must be left to the trier of fact for final resolution." The judge found because of the "unique facts in this matter"— namely Guillen was unconscious and hospitalized after the accident, but upon his return to New Jersey, provided "identifying information regarding the phantom driver to his insurance carrier"—that "a reasonable fact finder may conclude that [Guillen] did make reasonable efforts to identify the phantom driver similar to [the plaintiff in] Norman." A-2134-24 5 After Liberty moved in limine to bar Guillen's interrogatory answers from being utilized at trial, the court conducted a hearing under N.J.R.E. 104 to determine their inadmissibility. Plaintiff argued Guillen's interrogatory answers were admissible under N.J.R.E. 804(b)(6), which allows hearsay evidence if the declarant is deceased and the statements were made in good faith, based on the declarant's personal knowledge, and there is a probability they are trustworthy. During the N.J.R.E. 104 hearing, plaintiff recognized Guillen's signature on the interrogatory answers executed two years after the accident. However, she did not recall seeing him sign the certification and testified that he would not have been able to read the document written in English because he did not speak the language and could only read some words. Plaintiff thought "[Guillen] was a little bit not right, a little dizzy" after the accident. Later, plaintiff testified Guillen's memory was affected by the injuries he sustained in the accident. According to plaintiff, Guillen told her when she first visited the hospital that he lost consciousness after the accident, however he reported to hospital staff he had not. Plaintiff testified that, hours after the accident, Guillen told her in the hospital "it wasn't snowing" at the time of the accident, he braked because another car had tried to cut him off and he did not know what happened after A-2134-24 6 that or how he got into the hospital. Plaintiff was not aware of any other evidence, beyond Guillen's post-accident account to her, that a phantom vehicle had caused the accident. Plaintiff had not personally attempted to contact Trooper Collins or the driver of the other vehicle involved in the crash and testified the police did not come to speak with either Guillen or her after the accident. Guillen's stepdaughter, Erica Llaverias, was with her mother when they visited Guillen in the hospital after the accident. Llaverias testified Guillen told them a white vehicle passed him on the roadway and cut him off, causing the accident. Llaverias contacted Guillen's insurance carrier to provide notice of the accident but did not specify which company she called. When Guillen received the accident report roughly two weeks after the accident upon her request, Llaverias reviewed the report with him and he told her it was incorrect. Llaverias testified Guillen appeared to have a clear memory of the accident when she visited him in the hospital, although he was "in and out." Llaverias testified the accident happened after a vehicle passed Guillen. However, the insurance loss notice presented to her on cross-examination described the cause of the accident as a "vehicle coming toward [Guillen]," which prompted him to brake and caused his truck to jackknife. A-2134-24 7 Liberty maintained Guillen's interrogatory answers were inadmissible and, without them, there was no evidence a phantom vehicle caused the accident. Liberty claimed the answers were not trustworthy, as plaintiff testified Guillen could not read English, making it unclear whether he knew what he was certifying, and the accident report and Llaverias's call with the insurance company conflicted with the account of the accident in his interrogatory answers. Plaintiff argued Llaverias's call with the insurance company did not conflict with the interrogatory answers, as both referenced that a phantom vehicle was involved in the accident. Plaintiff's counsel explained any inconsistency in the police report resulted from the police never having interviewed Guillen. Counsel claimed Liberty's arguments went to the weight of the evidence and were required to be resolved by the factfinder rather than by the court. The judge granted Liberty's motion in limine, barring Guillen's answers to interrogatories for the reasons set forth on the record and as supplemented in writing. Because plaintiff failed to provide evidence as to the drafting and signing of the answers by Guillen, the judge concluded the answers were not sufficiently trustworthy to justify admission under N.J.R.E. 804(b)(6). A-2134-24 8 The judge also found the interrogatory answers and Llaverias's testimony regarding her conversations with Guillen conflicted with the police report of the accident. The judge concluded while the interrogatory answers and Llaverias maintained there was a phantom vehicle that either cut off or passed Guillen, the police report stated Guillen had passed a vehicle and lost control of the truck due to his speed and the road conditions. The police report was consistent with the insurance loss report and was never amended at Llaverias' request. Prior to trial, Liberty orally moved again for judgment as a matter of law, which the trial court denied subject to renewal at the close of plaintiff's case. During trial, plaintiff testified Guillen's memory worsened after the accident and her conversations with him about the accident were limited. Guillen told her while in the hospital that another vehicle tried to cut him off on the roadway and he applied the brakes and lost control of the truck, but he did not know what happened after that. Guillen told her in the hospital that the police never interviewed him. Plaintiff had a second conversation with Guillen in the presence of Llaverias, where he recounted the same facts regarding the accident. Plaintiff denied previously testifying that Guillen told her it was not snowing at the time of the accident. A-2134-24 9 Llaverias testified at trial Guillen told her he was cut off by a white four- door car in snowy conditions, which caused him to brake and lose control of the vehicle, resulting in the truck jackknifing, hitting a metal railing and rolling over. Guillen told her he did not know how he got to the hospital because he was unconscious. She assisted him in contacting the insurance carrier from the hospital, relaying to the insurance company that Guillen was in a car accident on a snowy day when a car cut him off and caused his truck to jackknife. Llaverias testified she also called the police in Vermont four or five times, leaving voicemails before she was finally able to speak with an officer several days later and ask if her father could give a statement for the police report. Once she obtained the police report about two weeks later, she reviewed it with Guillen, who told her it was incorrect and did not include his account of the accident or mention a third vehicle cutting off Guillen's truck. Llaverias also helped Guillen complete insurance documents he received in the mail, including forms requiring a sketch of the accident scene. The court allowed Liberty to utilize the police report and insurance loss report at trial over both plaintiff's hearsay objections and her objection to use of documents that were not produced during discovery. On cross-examination, Llaverias was shown the insurance loss report, which described the accident as A-2134-24 10 Guillen hitting the brakes when a vehicle was "coming towards him," resulting in a jackknife, and "no contact with any other vehicle." She was also confronted with the police report, which concluded Guillen was traveling too fast for the weather conditions and did not mention another vehicle cutting him off. Llaverias confirmed she attempted to have the police report amended to include Guillen's version, but the police never made the change. Although Guillen's chiropractor, Dr. Michael Robinson, was initially permitted to testify that Guillen reported another vehicle cut him off and caused his truck to jackknife, cross-examination revealed his diagnosis and treatment of Guillen relied primarily on objective findings and the specific cause of the accident was not significant to his medical conclusions. Thus, the trial judge sustained Liberty's objection under N.J.R.E. 803(c)(4) and struck the portion of Dr. Robinson's testimony relaying Guillen's statement to him about how the accident happened. At the close of plaintiff's case, Liberty moved to involuntarily dismiss plaintiff's complaint under Rule 4:37-2, arguing plaintiff failed to make "all reasonable efforts" to ascertain the identity of the phantom vehicle and its operator, as required by N.J.S.A. 39:6-78. Plaintiff argued efforts were made A-2134-24 11 through contacting insurance representatives and the police, and that the issue of reasonableness should be left to the jury. The judge granted Liberty's motion to involuntarily dismiss the complaint with prejudice, concluding not even a "scintilla of evidence" supported a finding that all reasonable efforts were made to identify the phantom vehicle as required by statute. Plaintiff's reconsideration motion was denied. This appeal followed. Liberty maintains the trial court did not err in dismissing plaintiff 's complaint, because plaintiff had failed to establish the threshold prerequisite to obtain UM coverage, because neither Guillen nor anyone acting on his behalf had made reasonable efforts to identify the alleged phantom vehicle following the accident. Plaintiff contends the issue should have been submitted to the jury because there was evidence in the record permitting a finding either that Guillen's efforts were reasonable under the circumstances or additional efforts would have been futile. Plaintiff further contends the judge erroneously barred Guillen's answers to interrogatories and Dr. Robinson's testimony relaying Guillen's statements as to the happening of the accident, while also allowing the police report and insurance loss report to be utilized at trial without the proper foundation. We review the parties' arguments in turn. A-2134-24 12 II. We review a trial court's decision on a motion for involuntary dismissal pursuant to Rule 4:37-2(b) by applying the same standard as the trial court. Smith v. Millville Rescue Squad, 225 N.J. 373, 397 (2016). See also ADS Assocs. Grp. v. Oritani Sav. Bank, 219 N.J. 496, 511 (2014). "A motion for involuntary dismissal is premised 'on the ground that upon the facts and upon the law the [non-moving party] has shown no right to relief.'" ADS Assocs. Grp., 219 N.J. at 510 (quoting R. 4:37-2(b)). "[U]nder Rule 4:37-2(b), the judicial function 'is quite a mechanical one. The trial court is not concerned with the worth, nature, or extent (beyond a scintilla) of the evidence, but only with its existence, viewed most favorably to the party opposing the motion.'" Ji v. Palmer, 333 N.J. Super. 451, 460 (App. Div. 2000) (quoting Dolson v. Anastasia, 55 N.J. 2, 5-6 (1969)). The motion must be denied "[i]f the court, 'accepting as true all the evidence which supports the position of the [non-moving party] . . . and according him [or her] the benefit of all inferences which can reasonably and legitimately be deduced therefrom,' finds that 'reasonable minds could differ.'" Id. at 510-11 (quoting Verdicchio v. Ricca, 179 N.J. 1, 30 (2004)). However, an involuntary "'dismissal is appropriate when no rational [factfinder] could A-2134-24 13 conclude from the evidence that an essential element of the plaintiff's case is present.'" Perez v. Professionally Green, LLC, 215 N.J. 388, 407 (2013) (quoting Schneider v. Simonini, 163 N.J. 336 (2000), certif. denied, 531 U.S. 1146 (2001)). We review trial courts' evidentiary rulings for abuse of discretion. Est. of Hanges v. Metro. Prop. & Cas. Ins. Co., 202 N.J. 369, 382-83 (2010). An evidentiary ruling will be overturned only when "a decision is made without a rational explanation, inexplicably departed from established policies, or rested on an impermissible basis." Palmer v. Flagship Resort Dev. Corp., 481 N.J. Super. 465, 496 (App. Div. 2025) (internal quotation marks omitted) (quoting Flagg v. Essex Cnty. Prosecutor, 171 N.J. 561, 571 (2002)). We also review a trial court's determination on a reconsideration motion for abuse of discretion. In re Est. of Jones, 477 N.J. Super 203, 216 (App. Div. 2023). However, the trial court's "interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference." Summit Plaza Assocs. v. Kolta, 462 N.J. Super. 401, 410 (App. Div. 2020). A-2134-24 14 III. Based on our review of the record and prevailing case law, we conclude the involuntary dismissal of plaintiff's complaint pursuant to Rule 4:37-2(b) was erroneous and plaintiff's proofs should have been submitted to the jury. Accordingly, we vacate the October 9, 2024 and February 14, 2025 orders and remand for a new trial. N.J.S.A. 17:28–1.1(e)(2) defines, in relevant part, the term "uninsured motor vehicle" as including "a hit and run motor vehicle described in" N.J.S.A. 39:6-78. In a "hit-and-run case," under N.J.S.A. 39:6-78, where death or personal injury arises out of use of an automobile but the operator or owner's identity cannot be determined, a claimant must make "[a]ll reasonable efforts . . . to ascertain the identity of the motor vehicle and of the owner and operator thereof . . . ." As this court explained in O'Connell, "[t]he clear purport of the statute is that, as a condition precedent to an insured's entitlement to pursue a[] [UM] claim, the insured must prove he or she satisfied the statutory prerequisites." O'Connell v. N.J. Mfrs. Ins. Co., 306 N.J. Super. 166, 172 (App. Div. 1997). See also Kenny v. N.J. Mfrs. Co., 328 N.J. Super. 403, 408 (App. Div. 2000). A-2134-24 15 N.J.S.A. 17:28–1.1, however, does not prescribe what efforts are reasonable in every circumstance. Accordingly, in Norman, we declined to adopt a bright-line rule governing compliance with the statute, holding instead that "[w]hether actions taken to ascertain identification constitute reasonable efforts depends on the circumstances of the case." Norman v. Selective Ins. Co., 249 N.J. Super. 104, 109 (App. Div. 1991). Kenny synthesized the statutory inquiry into two related factual questions: "[T]he pertinent two-pronged question rather is first, whether the insured's conduct in attempting to identify the hit-and-run driver was reasonable, or, alternatively, efforts to do so would have been futile; and second, whether the failure to file a prompt police report was excusable under the circumstances." 328 N.J. Super. at 408. We reaffirmed that principle in Scheckel, emphasizing that "[o]n this issue, the insured bears the burden of proof." Scheckel v. State Farm Mut. Auto. Ins. Co., 316 N.J. Super. 326, 332 (App. Div. 1998). A claimant's failure to undertake certain investigative measures does not necessarily foreclose recovery. Kenny specifically rejected the proposition that failure to file a police report automatically defeats a UM claim, explaining that if such failure is "excusable under the circumstances" it is not dispositive. 328 N.J. Super. at 409. Rather, whether the omission was excusable, together with A-2134-24 16 the broader question of whether the claimant made all reasonable efforts, "are all matters of fact to be determined by the trier of fact." Ibid. In Norman, we reversed the grant of summary judgment because competing inferences could reasonably be drawn concerning the plaintiff's conduct at the scene of the accident. There, we observed that "the question of whether [the plaintiff] failed to act reasonably at the scene in not obtaining information about the identity of the other driver or owner is subject to varying inferences and therefore must be left to the trier of fact for final resolution ." 249 N.J. Super. at 111. Thus, neither the existence nor absence of any particular investigative step is dispositive of a plaintiff's compliance with UM statute. Instead, the factfinder must evaluate the totality of the surrounding circumstances in determining whether the statutory standard has been satisfied. Our jurisprudence supports the conclusion that whether Guillen's limited actions—or lack thereof— constituted "reasonable efforts" remained a factual issue for the jury. Liberty contends that no New Jersey court has excused compliance based solely on an assumption that further investigation would have been futile. However, whether plaintiff ultimately establishes compliance with the statute is distinct from whether sufficient evidence existed to permit the jury to decide A-2134-24 17 that question. The jury could ultimately reject plaintiff's position and conclude all reasonable efforts to identify the phantom vehicle were not made and that the failure to do so is inexcusable. Conversely, the jury could infer from the evidence that Guillen's traumatic injuries, prolonged and numerous hospitalizations, immediate reporting of the phantom vehicle to family members, inability to personally investigate at the accident scene and the failure of the police to amend the report rendered additional efforts impracticable or futile. Because competing inferences could have been drawn, the issue should have been submitted to the jury. We are unpersuaded plaintiff effectively shifted the burden to the defense to establish reasonable efforts were not made. Scheckel expressly places that burden on the insured. 316 N.J. Super. at 332. Plaintiff posits the burden to survive dismissal was met because the evidence created a factual dispute, not that plaintiff is relieved of its burden of proof. The same reasoning applies to Liberty's argument concerning futility. The court concluded that because Guillen undertook no direct investigation, no reasonable jury could find his efforts would have been futile. That reasoning effectively imposes an additional requirement absent from Kenny. Kenny identifies the relevant inquiry as whether "the insured's conduct in attempting to A-2134-24 18 identify the hit-and-run driver was reasonable, or, alternatively, efforts to do so would have been futile." 328 N.J. Super. at 408. The alternative phrasing recognizes that, in some circumstances, futility itself may excuse investigative efforts. Although it may be difficult for a claimant who personally undertook no investigative measures whatsoever to establish futility, here a jury nevertheless could alternatively conclude that Guillen's unconsciousness at the accident scene, his extended hospitalization in another state, his traumatic brain injury, and his return to New Jersey where he was further hospitalized, limited any realistic opportunity to identify an unidentified passing vehicle. Moreover, there was evidence in the record that Guillen's family attempted to have the police report revised to comport with his statements to them involving a phantom vehicle at the scene. The fact that the jury might ultimately reject plaintiff's proffer does not merit involuntary dismissal at the close of plaintiff's proofs. Accordingly, because prevailing law recognizes both reasonable efforts and excusable futility as factual questions, and the evidence in this case permitted competing inferences, the issues should have been resolved by the jury rather than determined as a matter of law on Liberty's Rule 4:37-2 motion. Thus, we vacate the orders on appeal and remand for a new trial. A-2134-24 19 IV. For purposes of completeness, we address plaintiff's arguments of evidentiary error at trial. i. Plaintiff argues the trial court abused its discretion by excluding Guillen 's certified interrogatory answers under N.J.R.E. 804(b)(6), the hearsay exception applicable to statements of unavailable declarants. Plaintiff contends the answers satisfied the rule because Guillen certified them before his death, the statements were based on his personal knowledge, and any inconsistencies identified by Liberty affected only the weight of the evidence, not admissibility. Under N.J.R.E. 804(b)(6), "a statement made by a person unavailable as a witness because of death [is not excluded by the hearsay rule] if the statement was made in good faith upon declarant's personal knowledge in circumstances indicating that it is trustworthy." Estate of Hanges, 202 N.J. at 385 (quoting N.J.R.E. 804(b)(6)) (alteration in original). A trial court must make particularized findings of good faith, personal knowledge and trustworthiness prior to the admission of evidence of this nature under the hearsay exception. Ibid. (internal citations omitted) (quoting DeVito v. Sheeran, 165 N.J. 167, 194 (2000)). A-2134-24 20 Here, the court concluded plaintiff failed to satisfy the trustworthiness requirement. The court emphasized plaintiff presented no witness with personal knowledge regarding preparation of the interrogatory answers, failed to establish the written responses in English accurately reflected Guillen's oral answers in Spanish, failed to establish Guillen actually executed the certification, and offered statements that materially conflicted with the police report and insurance loss report. Those considerations were proper factors bearing on trustworthiness under N.J.R.E. 804(b)(6). Although plaintiff argued Liberty's objections merely raised credibility issues for the jury, credibility becomes relevant only after the court first determines the threshold admissibility requirement has been satisfied. Because the trial court conducted a hearing under N.J.R.E. 104 and made findings grounded in the record as required under prevailing case law, plaintiff has not demonstrated the exclusion of Guillen's interrogatory answers constituted a clear abuse of discretion. ii. Nor do we discern an abuse of discretion in the court's ruling that statements decedent made to Dr. Robinson unrelated to his medical diagnosis and subsequent issuance of a curative instruction directing the jury to disregard A-2134-24 21 the testimony were error. Initially, the court permitted Dr. Robinson to testify that Guillen reported another vehicle had cut him off, causing the truck to jackknife. During cross-examination, however, Dr. Robinson acknowledged the precise mechanism of the accident was not significant to either his diagnosis or his treatment recommendations, both of which rested on objective examination findings. Liberty later renewed its hearsay objection. The trial court concluded Guillen's statements did not satisfy N.J.R.E. 803(c)(4), which excepts from the hearsay rule statements made for purposes of medical diagnosis or treatment. Dr. Robinson's testimony established the specific cause of the accident—whether Guillen was cut off by another vehicle or lost control because of speed and weather—played no role in his diagnosis or treatment decisions. Because Dr. Robinson expressly disclaimed any medical significance to that portion of Guillen's history, the court did not abuse its discretion in concluding the statements fell outside the ambit of N.J.R.E. 803(c)(4). We reject plaintiff's argument Dr. Robinson's testimony was admissible as a statement of then-existing physical condition under N.J.R.E. 803(c)(3) or as a business record under N.J.R.E. 803(c)(6). N.J.R.E. 803(c)(3) concerns statements describing the declarant's then-existing physical condition, not A-2134-24 22 retrospective narratives assigning responsibility for an accident. Likewise, N.J.R.E. 803(c)(6) permits admission of properly authenticated business records but does not independently render embedded hearsay admissible unless each level of hearsay satisfies an applicable exception. See State v. Matulewicz, 101 N.J. 27, 29-30 (1985); Manata v. Pereira, 436 N.J. Super. 330, 345 (2014). Nor did the court abuse its discretion by striking the testimony after it had initially been admitted. The factual predicate for exclusion emerged during Dr. Robinson's cross-examination, when he acknowledged the accident history was immaterial to diagnosis and treatment. Once that testimony established N.J.R.E. 803(c)(4) did not apply, the court was permitted to reconsider its earlier evidentiary ruling and instruct the jury to disregard inadmissible testimony through a curative instruction. Accordingly, plaintiff has not demonstrated the trial court abused its discretion in striking Dr. Robinson's testimony concerning Guillen's description of the accident and issuing a curative instruction directing the jury to disregard his testimony. iii. Plaintiff lastly argues the court erred by admitting the police report and the insurance loss notice as based on inadmissible hearsay not subject to an A-2134-24 23 exception, lacked proper authentication, and, with respect to the loss notice, without the required determination under Rule 4:17-7. The trial court shall further consider these evidentiary issues on remand to the extent they are raised on the new record. Defendant argues the police report and the loss notice were not offered for their truth, but rather to establish that Guillen knew another identified witness existed and nevertheless failed to contact that witness in attempting to identify the phantom vehicle. We decline to substantively address these arguments as the documents' proposed use may develop differently during retrial. Additionally, plaintiff objected that the insurance loss notice had never been produced despite an interrogatory requesting all documents defendant intended to rely upon at trial. Rule 4:17-7 obligates parties to supplement discovery responses when additional responsive materials are identified. The court did not engage in an analysis to determine whether admissibility should be precluded under Rule 4:17-7. Although exclusion is not automatic, the court should determine on remand whether Liberty's failure to produce the document during discovery bars its use at trial. Finally, because the record contains little discussion of authentication beyond counsel's representations, the court should require defendant to establish A-2134-24 24 the necessary foundation under N.J.R.E. 901 before either document is admitted on remand, should counsel continue to maintain authenticity objections. Affirmed in part. Reversed and remanded in part for proceedings consistent with this opinion. A-2134-24 25