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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-3348-23 MOHAMMED HUZIEN and DIANE HUZIEN, Plaintiffs-Appellants, v. NELSON DURAN and DELTA GAS STATION, a/k/a DELTA PATERSON, Defendants, and MORALES AUTO REPAIR, LLC, Defendant-Respondent. Submitted October 6, 2026 – Decided November 10, 2026 Before Judges Firko and Bergman. On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-5850-20. Brandon J. Broderick LLC, attorneys for appellants (Christopher T. Karounos and Paul F. Romano, of counsel and on the briefs). Biancamano & Di Stefano, PC, attorneys for respondent (James G. Serritella, on the brief). PER CURIAM Plaintiffs Mohammed Huzien and Diane Huzien appeal from a series of orders and trial rulings, including: a July 25, 2023 order barring plaintiffs' amendments to interrogatory answers concerning surveillance evidence; a subsequent order denying reconsideration of the order, as well as a ruling denying plaintiffs' trial request to utilize the surveillance evidence for impeachment purposes; a trial ruling barring plaintiff from testifying about discussions with his physicians concerning surgery; trial rulings denying plaintiffs' directed verdict motion on liability and proximate cause; a February 6, 2024 order of judgment memorializing the jury's verdict; and a March 28, 2024 order denying plaintiffs' motion for judgment notwithstanding the verdict (JNOV) or, alternatively, a new trial. Plaintiffs also contend there was plain error in the jury instructions and verdict sheet as well as cumulative error requiring a new trial. Having considered the parties' arguments, record and applicable legal principles, we affirm all orders and rulings. A-3348-23 2 I. We recite the facts and procedural history relevant to our decision. This personal injury matter arises from an incident in November 2018, at the property of defendant Morales Auto Repair, LLC (Morales). Plaintiff Mohammed Huzien alleged he was struck on the head by a commercial garage door while lawfully on defendant's premises. According to plaintiff, 1 an employee lifted the manually operated overhead door and waved him into the garage area, and thereafter, the door then came down and struck him. After the initiation of plaintiffs' complaint in October 2020, and responsive pleadings were filed, discovery was conducted. The final discovery end date was set at September 3, 2022. During discovery, plaintiffs served deposition notices for Morales representatives and employees, but those depositions were adjourned several times and did not occur until December 2022, after the discovery end date. On June 12, 2023, plaintiffs served an amendment to interrogatory answers identifying surveillance videos recorded on May 26, 2023, May 31, 2023, and June 2, 2023, together with an investigative report and also named 1 We reference Mohammed Huzien singularly as "plaintiff" in this opinion as plaintiff Diane Huzien's claims were per quod only. A-3348-23 3 two additional fact witnesses. Defendant moved to bar the surveillance evidence as a late discovery amendment. Plaintiffs opposed the motion, asserting the surveillance only became necessary after late-taken depositions in December 2022, wherein defense witnesses testified customers were not permitted to enter the garage. On July 25, 2023, the court granted defendant's motion to bar plaintiffs' use of the surveillance videos at trial. Plaintiffs moved for reconsideration, which was denied. In a written statement of reasons, the court found plaintiffs had not demonstrated diligence in pursuing the depositions or obtaining the surveillance evidence and failed to show why the material could not have been obtained prior to the discovery end date. The court had also previously denied defendant's motion for summary judgment on February 23, 2023,2 but entered an order limiting a portion of the opinion of plaintiffs' liability expert, John Yannacone, P.E. Specifically, the court barred the portion of Yannacone's opinion determining the garage door springs were "likely" adjusted between the time of the incident and the inspection, finding it was an impermissible net opinion. 2 All other defendants were dismissed from the action prior to trial except for Morales, which remained the sole defendant. A-3348-23 4 Trial The court conducted a jury trial in January 2024, where liability and damages were contested. At trial, plaintiff testified he returned to Morales' property after retrieving his vehicle because it was still not operating properly. He stated an employee led him toward the garage area to take down his information for the owner, lifted the door, and the door came down and struck him on the head. Plaintiff also described his treatment history and the effect of the incident on his daily life. Plaintiffs presented expert damages testimony from Joseph Bellapianta, M.D, an orthopedic surgeon who opined plaintiff sustained cervical and lumbar injuries causally related to the incident. Dr. Bellapianta also testified some of the injuries plaintiff sustained from the accident were permanent in nature. On cross-examination, Dr. Bellapianta acknowledged he had not reviewed certain earlier records documenting plaintiff's prior complaints of neck, back, knee, and shoulder pain. Plaintiffs also presented Yannacone as their liability expert, who had inspected the door in May 2022. He described maintenance-related issues— including loose nuts, hardware, and a roller not engaging with the track—and opined the extension springs were not properly adjusted. Yannacone concluded A-3348-23 5 the lack of inspection, maintenance, and the spring condition, were substantial contributing factors to the door's failure to remain open. On cross-examination, however, he acknowledged when he inspected the door, it could be raised and would stay in position, and the hardware issues were not likely to cause the door to fall. Defendant Junior Morales, the owner of Morales, testified he operated the shop since 2008. He stated customers were not permitted in the garage bay area, although he acknowledged customers sometimes entered without authorization. He denied witnessing the incident or ever seeing the door fall from a raised position, and testified the door was manually operated and had not been repaired nor reported as malfunctioning. Employee Luis Nova testified customers were not permitted inside the bays and denied witnessing the incident or ever seeing the door fall from an open position. Defendant's presented orthopedic expert, Kent Lerner, M.D., who examined plaintiff and reviewed imaging and medical records. Dr. Lerner testified plaintiff sustained blunt trauma to his head and aggravated a pre- existing degenerative cervical condition. Dr. Lerner noted the degenerative changes were longstanding, opining these structural changes were not caused by the incident, and plaintiff's shoulder, knee, and back complaints were also pre- A-3348-23 6 existing and unrelated to the accident. He further testified for purposes of his medical evaluation, he accepted the history provided by plaintiff. Defendant also presented liability expert William J. Meyer, P.E., who inspected the door in July 2022. Meyer testified when he tested the door, it held its position at various heights and required downward force to move from a raised position. He opined, based on the condition of the door he observed, plaintiff's account of the incident was "not possible analytically." On cross- examination, Meyer acknowledged he did not know the precise condition of the door on the date of the accident. Both after plaintiffs' case and after the close of all evidence, plaintiffs moved for a directed verdict on liability and damages pursuant to Rule 4:40-1. The court reserved decision on both motions. Shortly thereafter, both attorneys agreed to final jury charges and a verdict sheet. The court charged the jury on negligence, proximate cause, res ipsa loquitur, and aggravation of a pre-existing condition. Pertinent here, the court utilized the model jury charge for the doctrine of res ipsa loquitur, which permits, but does not require, an inference of negligence if: 1) the occurrence ordinarily bespeaks negligence; 2) the instrumentality was within defendants exclusive control; and 3) plaintiff's A-3348-23 7 voluntary act or neglect did not contribute to the occurrence. See Model Jury Charges (Civil), 5.10D, "Res Ipsa Loquitur" (approved Oct. 1990). The verdict sheet first asked whether Morales was negligent; second, whether that negligence was a proximate cause of the accident; and only if the jury answered yes to both, should it proceed to a determination of damages. During deliberations, the jury presented a question to the court, asking if they answered "[y]es" to question one and "[n]o" for question two, whether they should award damages. The court answered if the jury found "[n]o" to question two concerning proximate cause, it should not proceed to damages. The jury found Morales negligent by a 7-1 vote by answering "[y]es" to question one of the verdict sheet but answered "[n]o" to question two by an 8-0 vote, determining Morales' negligence was not a proximate cause of plaintiff's accident. The court entered an order of judgment for "no cause of action" on February 6, 2024. Post-Trial Motions Plaintiffs moved for JNOV or, alternatively, a new trial, arguing the verdict was inconsistent with the evidence, the res ipsa loquitor charge was improper, and the jury's question during deliberations showed confusion. By A-3348-23 8 order dated March 28, 2024, the trial court denied the motion. Thereafter, plaintiffs moved for reconsideration, which the trial court also denied. On appeal, plaintiffs raise the following contentions: (1) the trial court committed plain error by failing to reconsider the interlocutory order barring their use of the surveillance footage at trial or, alternatively, by failing to allow use of the footage for impeachment purposes only; (2) the trial court erred because plaintiff should have been permitted to testify about his knowledge and understanding of his medical conditions and the procedures his doctor was recommending because the testimony was non-hearsay, "effect on the listener" testimony; (3) the trial court committed plain error by failing to recognize an improper jury charge on res ipsa loquitor; (4) the trial court erred by not granting a directed verdict on liability; and (5) the cumulative effect of the trial court's errors warrants a new trial. II. We begin with the standards that govern our review of each of plaintiffs' contentions on appeal. We review discovery and evidentiary rulings for abuse of discretion. State v. Prall, 231 N.J. 567, 580 (2018); State in the Int. of A.B., 219 N.J. 542, 554 (2014). A trial court's determination will not be disturbed unless it was made A-3348-23 9 without a rational explanation, departed from established policies, or rested on an impermissible basis. U.S. Bank Nat'l Ass'n v. Guillaume, 209 N.J. 449, 467- 68 (2012). A trial court has the inherent authority to revise interlocutory orders before final judgment in the interest of justice. Lawson v. Dewar, 468 N.J. Super. 128, 134 (App. Div. 2012); see also R. 4:42-2. But the exercise of that power remains committed to the courts sound discretion. Lawson, 468 N.J. Super. at 134, 137. Hearsay is generally inadmissible unless an exception applies. N.J.R.E. 801(c); N.J.R.E. 802. However, statements not offered for the truth of the matter asserted may, in some circumstances, be admissible for a non-hearsay purpose. See State v. Long, 173 N.J. 138, 152 (2002); Carmona v. Resorts Int'l Hotel, Inc., 189 N.J. 354, 376 (2007). Even so, a court retains discretion to exclude such evidence where its prejudicial effect substantially outweighs its probative value. Spragg v. Shore Care, 293 N.J. Super. 33, 57 (App. Div. 1996); N.J.R.E. 403(a). An expert hearsay opinion may not be presented to the jury through backdoor use of non-testifying expert materials. James v. Ruiz, 440 N.J. Super. 45, 71-72 (App. Div. 2015). A-3348-23 10 We review unpreserved challenges to jury instructions or verdict sheets for plain error. R. 2:10-2; State v. Cuff, 239 N.J. 321, 340-41 (2019); Willner v. Vertical Reality, Inc., 235 N.J. 65, 79 (2018). Reversal is warranted only if the alleged error was clearly capable of producing an unjust result. R. 2:10-2. A jury verdict is entitled to substantial deference. Baxter v. Fairmont Food Co., 74 N.J. 588, 598 (1977). A motion for JNOV or for a new trial may be granted only if, giving due regard to the jury's role in assessing credibility, it clearly and convincingly appears that there was a miscarriage of justice under the law. See R. 4:49-1(a); R. 4:40-2; Verdicchio v. Ricca, 179 N.J. 1, 30 (2004); Dolson v. Anastasia, 55 N.J. 2, 6 (1969). In reviewing such rulings, we accord deference to the trial judge's "feel of the case." Jastram v. Kruse, 197 N.J. 216, 230 (2008). A. Plaintiffs first contend the trial court should have granted their application to amend discovery responses to include the surveillance videos and erred in not reconsidering its order. Plaintiffs also contend the court erred in denying their application to use the footage for impeachment purposes of defense witness testimony at trial because the testimony was inconsistent with the videos. We disagree. A-3348-23 11 Plaintiffs served the surveillance video amendment on June 12, 2023, approximately nine months after the September 3, 2022, discovery end date and only days before the then-scheduled trial date. Rule 4:17-7 permits late amendments only where the information was not reasonably available or discoverable by due diligence prior to the discovery end date. In the court's written statement of reasons in the motion and motion for reconsideration, the court specifically found plaintiffs had not demonstrated diligence either in pursuing fact depositions or in obtaining the surveillance and had offered no competent specifics showing why the videos could not have been obtained sooner. We determine these findings are supported by the motion record. Plaintiffs noticed depositions in mid-2022, but discovery motions thereafter focused on expert issues. Even after the December 2022 depositions, plaintiffs waited months before obtaining the videos in late May and early June 2023. We determine there was no error in the trial court's denial of the plaintiffs' motion and motion for reconsideration. Nor did the trial court abuse its discretion by adhering to the previous order barring this evidence when raised at trial for impeachment purposes. Although a trial court has authority to revisit an interlocutory ruling in the interests of justice, nothing compelled revision of the court's order in this A-3348-23 12 instance. The record demonstrates this issue had been fully litigated pretrial, reconsideration had already been denied, and the case proceeded to trial on the understanding the surveillance could not be used. Admitting the videos mid- trial would have introduced late-disclosed extrinsic evidence without affording defendant the opportunity to depose the investigators or conduct discovery concerning the creation, chain of custody, and context of the recordings, which we conclude would be prejudicial to defendant, regardless of their use for impeachment purposes. At trial, when plaintiffs repeatedly renewed their request, the court recognized the existing order and declined to reopen the issue. Even assuming the court retained the power to do so, we determine its refusal here was not an abuse of discretion. The fact plaintiffs desired to use the videos for impeachment purposes does not call for the court to reopen this issue because it would not erase plaintiffs' discovery violations or diminish the prejudicial effect on defendants. Accordingly, we discern no basis to disturb either the pretrial exclusion order or the trial court's refusal to revisit the order. B. Plaintiffs next argue plaintiff should have been permitted to testify about his doctor's recommendation for surgery to explain his understanding of his A-3348-23 13 condition and the effect that information had on him, not to prove surgery was actually required. We are unpersuaded. During plaintiff's direct examination, counsel sought to elicit testimony related to non-testifying neurosurgeons' discussions with him concerning surgery and the recommended procedure, while disclaiming any intention to elicit the specifics of the procedure. The trial judge concluded the proposed testimony carried substantial risk that the jury would consider the testimony for its substantive import—that plaintiff's condition was serious enough to require surgery—even though no testifying expert had offered that opinion. Plaintiffs attempted to characterize and offer this testimony solely for its "effect on the listener." Although it is true some out-of-court statements may be admitted for a non-hearsay purpose, Long, 173 N.J. at 152, such statements often carry both a permissible and impermissible aspect. A trial court may exclude a statement that includes such aspects where the risk of improper use is substantially outweighed by the probative value, Spragg, 293 N.J. Super. at 57, which we determine occurred here. The proposed testimony concerned a non- testifying doctor's recommendation for surgery, which was a complex medical opinion going directly to the seriousness of plaintiff's condition. Yet no testifying expert opined plaintiff required surgery. Indeed, the record included A-3348-23 14 testimony from Dr. Daniels that surgery would not be helpful. Under these circumstances, the trial court did not abuse its discretion because it reasonably viewed the proposed testimony as an attempt to place before the jury, through plaintiff, an expert medical opinion from a non-testifying physician. James cautions against precisely that sort of backdoor use of expert hearsay. 440 N.J. Super. at 71-72. In addition, the court did not wholly prevent plaintiff from exploring his treatment history, symptoms, or the impact of his injuries on his life. It simply barred testimony that would have conveyed or substantially implied to the jury that non-testifying doctors recommended surgery. We conclude this ruling did not constitute an abuse of discretion. C. We next turn to plaintiffs' challenge to the trial court's res ipsa loquitur instruction and the verdict sheet, arguing the court should not have instructed the jury on elements they claim were effectively admitted, and the jury 's question during deliberations showed confusion. We disagree. Initially, the record demonstrates the parties discussed and agreed upon the charge and verdict sheet before submission to the jury, including the questions that plaintiffs now challenge. To the extent plaintiffs now dispute the A-3348-23 15 charges and form of the verdict sheet itself, our review is for plain error. See Cuff, 239 N.J. at 340-41. The record demonstrates the res ipsa charge given by the court and agreed upon by the parties included the substance of the model instruction. The doctrine permits, but does not require, a jury to infer negligence if the occurrence ordinarily bespeaks negligence, the instrumentality was within defendant's control, and plaintiff's voluntary act or neglect did not contribute to the occurrence. The court's charge reflected these requirements. In support of their argument, plaintiffs emphasize defendant withdrew a separate comparative negligence request and defense counsel acknowledged defendant had control of the door. Even if those concessions narrowed some of the disputed issues, we conclude the charge itself was not misleading. The reference in the res ipsa loquitor instruction to plaintiff's voluntary act or neglect concerned the permissive inference, not apportionment of comparative negligence. The court did not submit any comparative negligence instruction to the jury, and the jury's verdict confirms it understood it was permitted to find defendant negligent, which it did. Thus, even accepting plaintiffs' contention that portions of the res ipsa instruction were unnecessary, the charge did not prevent the jury from drawing an inference of negligence. The jury simply A-3348-23 16 found defendant's negligence was not a proximate cause of plaintiff's accident and injuries, which was a separate and distinct finding. We are not moved by plaintiffs' contention the jury's note during deliberations demonstrates otherwise. The note asked, if it answered "[y]es" to negligence and "[n]o" to proximate cause, whether it should award damages. The court correctly instructed it should not proceed to a determination of damages absent proximate cause. The question was procedural, not substantive. It did not indicate the jurors were confused about the meaning of negligence, proximate cause, or res ipsa loquitur. Nor was the verdict sheet improper because it asked whether defendant's negligence was a proximate cause of the accident, rather than the injuries. Read in conjunction with the full charge, the jury was instructed on proximate causation in the context of plaintiffs' claims and was told to proceed to damages only if it found defendant's negligence proximately caused the accident underlying plaintiff's injuries. The record before us does not include the verdict sheet itself, and the court's oral description used slightly different phrasing when discussing proximate cause. Even so, read as a whole, the charge and the court's explanation made clear the jury could proceed to damages only if it found A-3348-23 17 defendant's negligence proximately caused the occurrence underlying plaintiffs' claimed injuries. On this record, we conclude plaintiffs have not shown any wording issue in the verdict sheet or oral instruction was plain error, which was clearly capable of producing an unjust result. Nor did the court commit plain error by declining plaintiffs' request to re- read the res ipsa charge after the jury's note. The note did not ask for clarification of res ipsa loquitur or any element of negligence; it asked only whether the jury should reach damages if it found negligence but no proximate cause. The court's response directly and correctly answered that procedural question. D. We now turn to plaintiffs' contention they were entitled to a directed verdict on liability because defendant's experts effectively conceded the accident happened as plaintiff described and it caused an aggravation of his pre - existing cervical condition. We conclude the record does not support this contention. In reviewing a motion for judgment under Rule 4:40-1, we apply the same standard that governs the trial courts. ADS Assocs. Grp. v. Oritani Sav. Bank, 219 N.J. 496, 511 (2014). These motions are governed by "the [] evidential A-3348-23 18 standard: 'if, accepting as true all the evidence which supports the position of the party defending against the motion and according him the benefit of all inferences which can reasonably and legitimately be deduced therefrom, reasonable minds could differ, the motion must be denied[.]'" Verdicchio, 179 N.J. at 30 (quoting Estate of Roach v. TRW, Inc., 164 N.J. 598, 612 (2000)). We review de novo a trial court's decision on these motions also, applying the same standard as the trial court. Godfrey v. Princeton Theological Seminary, 196 N.J. 178, 197 (2008). The trial court correctly distinguished between medical causation testimony and proof of the accident's occurrence. Dr. Lerner was not an eyewitness. He testified, for purposes of his orthopedic evaluation, he accepted the history plaintiff gave him. His opinion, stating plaintiff sustained blunt trauma to the head and an aggravation of a pre-existing cervical condition, was premised on that assumed history. It was not a concession defendant's negligence caused the occurrence or injuries in the manner plaintiff alleged. Moreover, the evidence adduced at trial from the parties concerning liability and proximate cause was conflicting. Plaintiffs' own liability expert, Yannacone, acknowledged at the time of his inspection the door would stay in position when raised, and the hardware issues he identified were not likely to A-3348-23 19 cause the door to fall. He could only infer, and had earlier been barred from opining, that the spring condition had likely changed since the incident. Defendant's expert, Meyer, expressly opined the incident as described by plaintiff was not physically possible based on Meyer's inspection and testing of the door. Defendant's owner and employee denied observing the event and denied any prior issues with the door. In light of this evidence, we conclude reasonable minds could certainly differ as to whether any negligent condition of the door caused the accident. We note there had been evidence of maintenance issues with the garage door controlled by defendant, but the jury could have determined those issues were not the proximate cause of the accident. Here, neither expert could explain how the door could have fallen on the plaintiff in the way he testified. We also note, in its decision, the trial court found there were several credibility issues on the part of the plaintiffs' witnesses during the trial. We conclude based on this record the jury could have easily believed that the accident did not occur in the manner alleged by the plaintiff. The jury could also rationally conclude defendant was negligent in some respect concerning maintenance or operation, yet plaintiffs failed to prove the negligence A-3348-23 20 proximately caused the occurrence plaintiff described caused his injuries. The verdict reflects that potential reasoning. For these same reasons, we also conclude the trial court did not err in denying JNOV or a new trial. The judge was required to give due regard to the jury's opportunity to assess credibility and weigh the competing expert opinions. See Verdicchio, 179 N.J. at 30. Based on the record before us, we determine the verdict does not shock the judicial conscience, nor does it clearly and convincingly show a miscarriage of justice has occurred. E. Finally, plaintiffs argue the cumulative effect of the court's rulings warrants a new trial. Because we have determined there was no reversible error in the trial court's discovery or evidentiary rulings, no plain error in the charge or verdict process, and no basis to disturb the denial of plaintiffs' motions for JNOV or a new trial, plaintiffs' cumulative error argument likewise fails. To the extent we have not addressed any of plaintiffs' remaining arguments, we conclude those arguments are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). Affirmed. A-3348-23 21