PATRICIA A. CZMYR VS. DARLENE S. ALDEROTYÂ (L-4731-14, MIDDLESEX COUNTY AND STATEWIDE), A-1091-16T4

Background

Rear-end collision (Oct. 11, 2012). Plaintiff (Czmyr) sought treatment from pain specialist Dr. Magaziner for neck, back, left-shoulder injuries; prior history of degenerative problems and remote MVA/work injuries noted. Defendant (Alderoty) admitted a minor impact and minimal vehicle damage.
Dr. Magaziner testified (videotaped) that the 2012 accident caused exacerbations and new injuries (L5-S1 herniation; left rotator cuff tear; chronic sprains). Defense expert (Dr. Hausmann) attributed problems to degenerative disease and only a temporary exacerbation.
During plaintiff’s trial testimony, defense counsel repeatedly asked whether plaintiff had complained to her primary-care doctor about neck/back/shoulder pain on specific pre- and post-accident dates, and proffered medical notes to refresh her memory even though no foundation/authentication or hearsay exception was established.
The trial judge sustained objections, instructed that the records were unauthenticated hearsay and ordered the jury to disregard the questions/implications; nevertheless the jury returned a $3,200 damages verdict for plaintiff.
Trial court granted plaintiff’s post-trial motion for a new trial on damages, finding the award "grossly inadequate" and that defense counsel’s improper use of documents and questioning had improperly influenced the jury despite the curative instruction. Defendant appealed.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether defense counsel’s use of unauthenticated medical records and related cross-examination so prejudiced the jury that a new trial on damages was required	Czmyr: questioning improperly put inadmissible records/their substance before the jury and the curative instruction was ineffective; verdict was grossly inadequate	Alderoty: jury could assess the evidence showing only temporary strain; curative instruction cured any prejudice; low award was supportable	Court affirmed new trial: judge’s factual finding that the misconduct improperly influenced the jury was entitled to deference; curative instruction was ineffective given the strong implication of records’ contents
Whether showing records to a witness for refreshing recollection (N.J.R.E. 612) permits putting their contents before the jury absent authentication/hearsay foundation	Czmyr: using records in front of the jury without proper foundation equated to introducing inadmissible hearsay	Alderoty: arguing the questions merely tested memory and any issue was cured by instruction	Held: A writing may refresh recollection but the witness’s recollection — not the document — is evidence; counsel cannot present inadmissible writings’ contents to the jury under the guise of refreshment
Whether trial court abused discretion in granting new trial rather than imposing a lesser remedy (e.g., denying motion)	Czmyr: trial court properly exercised discretion after observing testimony and juror reaction	Alderoty: curative instruction was sufficient; verdict should stand	Held: No abuse of discretion; trial judge best positioned to assess prejudice and the instruction’s adequacy; new trial appropriate
Whether comparable verdicts or other external benchmarks controlled the trial court’s decision to order a new trial	Czmyr: decision based on juror reaction to improper questioning, not on other verdict comparisons	Alderoty: court erred if relying on comparisons with other verdicts	Held: Cuevas inapplicable — court relied on prejudice from improper questioning and its observation of the jury, not on other verdict comparators

Key Cases Cited

Dolson v. Anastasia, 55 N.J. 2 (1959) (standard that trial judge should not substitute own view for jury absent clear miscarriage of justice)
Risko v. Thompson Muller Auto. Grp. Inc., 206 N.J. 506 (2011) (deference to jury verdicts and standard for new-trial motions)
State v. Winter, 96 N.J. 640 (1984) (trial judge’s discretion to decide whether curative instruction or mistrial is required for prejudicial, inadmissible evidence)
State v. Carter, 91 N.J. 86 (1982) (use of writings to refresh recollection yields admissible evidence in the witness’s present recollection only)
State v. Caraballo, 330 N.J. Super. 545 (App. Div. 2000) (court must prevent parties from introducing contents of otherwise inadmissible writings under guise of refreshing recollection)
Cuevas v. Wentworth, 226 N.J. 480 (2016) (trial judges may not rely on unrelated verdict comparators when remitting awards)