AHMED HASSAN v. ROLAND WILLIAMS

Annotate this Case

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-3336-18

AHMED HASSAN and SALWA
HASSAN,

Plaintiffs-Appellants,

ROLAND WILLIAMS and
ABF FREIGHT SYSTEM
INCORPORATED,

Defendants-Respondents.
___________________________

Argued May 26, 2020 – Decided April 13, 2021

Before Judges Messano, Ostrer, and Vernoia.

On appeal from the Superior Court of New Jersey,
Law Division, Ocean County, Docket No. L-0213-16.

Paul M. Brandenburg argued the cause for appellants
(Rebenack, Aronow & Mascolo, LLP, attorneys;
Edward J. Rebenack, of counsel and on the briefs;
Tyler J. Hall and Paul M. Brandenburg, on the briefs).

Jerald F. Oleske argued the cause for respondents
(Oleske & Oleske, LLP, attorneys; Jerald F. Oleske,
on the brief).

The opinion of the court was delivered by

OSTRER, J.A.D.
Plaintiff Ahmed Hassan appeals from a no-cause judgment in his motor

vehicle negligence suit. 1 Defendant Roland Williams rear-ended Hassan.

Hassan was driving a FedEx tractor-trailer, and Williams was driving a tractor-

trailer for defendant ABF Freight System. The jury found both drivers

negligent, but Hassan slightly more so. Hassan principally contends the court

erroneously excluded statements by ABF officials that Williams could have

prevented the accident, he drove recklessly, and he violated ABF safety

protocols. We agree those statements should have been admitted into

evidence. We therefore reverse and remand for a new trial.

The truckers collided on Route 78 near Clinton. It was around 4:00 a.m.

on a June morning. As he had for three years, Hassan was driving his normal

route from Newark Airport to Allentown, Pennsylvania. Suddenly, he felt

himself "on the ramp, on the side of the road, and hitting like I don't know if it

was trees, brushes, whatever." Hassan could not remember how fast he was

going, or other pre-crash details. A police report stated that the FedEx truck

1
Mr. Hassan's wife, Salwa Hassan, is also a plaintiff-appellant. But, for
convenience, we use the singular "plaintiff" and attribute appellants' arguments
to him.

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snapped a light pole, not a tree, and blocked westbound traffic when it came to

rest.

Williams said his truck was on cruise control, and set at the truck's pre-

set top speed of 62 m.p.h. Williams said, "[A]ll of a sudden, out of nowhere I

come up on this Fed-Ex truck." As he rapidly approached Hassan's truck,

Williams's instinct was to change lanes. But, he looked in his side mirror, and

saw a car. He then looked ahead, and slammed on his brakes before striking

Hassan's tractor trailer in the rear. Williams was not sure of Hassan's speed.

He saw the taillights on Hassan's truck, but no flashers or brake lights.

Once Hassan's truck came to a stop, he exited, and at first felt "fine."

But, shortly after, while still at the scene, Hassan said he collapsed to the

ground. Emergency medical staff told him he needed to go the hospital. Once

there, Hassan began feeling pain in his "neck, [] shoulders, [] upper back."

From the hospital, Hassan was driven back to his car in Allentown, and he

drove himself home.

In the subsequent complaint, Hassan alleged that Williams and ABF

were negligent and negligent per se, and ABF was vicariously and strictly

liable for Williams's acts. Hassan requested compensatory and punitive

damages. His wife asserted a per quod claim. Hassan alleged the collision

caused a traumatic brain injury, and shoulder and wrist injuries; and

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exacerbated a back condition. He alleged cognitive loss, depression, and other

neurological problems.

Although both parties initially viewed the collision as an uncomplicated

"rear-end hit," defendants vigorously contested liability after producing an

expert's opinion that Hassan caused the accident. Relying on skid marks, fuel

spills, and various calculations, the expert asserted that Hassan cut in front of

Williams at a slow speed from the entrance lane. Hassan's expert disagreed in

a pre-trial report, but he did not testify at trial.

Defendants also challenged Hassan's damages claim. Defendants argued

he exaggerated his ailments; and, to the extent they were real, the accident did

not cause them. Of particular importance on appeal, defendants suggested that

either Hassan's soccer playing, family history of Alzheimer's, or "white matter

disease" was responsible.

The parties' pre-trial motion practice gives rise to the principal issues on

appeal. Hassan filed a motion to compel discovery from ABF. Among other

requests, Hassan demanded that defendants produce "[c]opies of all records of

Roland Williams for the 7 days prior to the collision" including "weight/scale

tickets," "on-board computer records," and "overweight/oversize reports and

citations." Hassan contended that federal motor carrier safety regulations

required ABF "to maintain driver record of duty status logs and all supporting

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documents," and that the documents related to his contention that ABF failed

to assure safe truck operation. Hassan also demanded that defendants produce

"[c]opies of all satellite communications and email for the day of the collision

and seven days prior" as well as other electronic information on Williams's

truck, including the truck's "vehicle speed limit," its "maximum vehicle speed

recorded" and the "number of hard brake incidents."

Defendants objected, arguing that the information would not lead to

admissible evidence, and the categories of documents lacked definition. In a

letter brief opposing Hassan's motion, defendants added that the first group of

requested documents were "not remotely relevant to this simple motor vehicle

accident," and the second group was "not directed to any issue that may exist

with reference to this claim." Defendants asserted that the accident was

"rather straight forward" and "involve[d] no unique or perplexing liability

issues." Notably, defendants did not argue that production of the requested

documents would be unduly burdensome, nor present competent evidence to

support such an argument. Defendants had not yet produced their expert

opinion on liability.

The court denied Hassan's motion to compel production of those

documents "for the reasons cited by [d]efendant in response."

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Hassan also filed motions in limine to establish the admissibility of

statements by Williams and two other ABF employees, and the inadmissibility

of evidence pertaining to aspects of Hassan's health. Hassan sought to

introduce Williams's deposition testimony that Williams did not question why

ABF considered disciplining him after the accident. Williams explained, "I

had hit this FedEx truck in the rear. It automatically makes you wrong when

you hit someone in the rear. I don't care what the circumstances [are]."

Hassan also wanted to introduce into evidence ABF's post-accident letter

firing Williams. ABF's Manager of Line Operations, Chuck Witter, wrote to

Williams, stating, "The Safety Department in Fort Smith, AR has determined

that your accident . . . has been judged preventable. This is to advise you that

you are hereby discharged due to your recklessness resulting in a serious

preventable accident while on duty." Evidently referring to a collective

bargaining agreement, the letter continued, "In accordance with Article 44 of

the Central Pennsylvania Over-the-Road and Local Cartage Supplemental

Agreement, this discharge is for recklessness resulting in a serious preventable

accident." Copies were sent to a Teamsters local and union steward.

And Hassan wanted to introduce excerpts from the deposition testimony

of Sam Cates, who worked in ABF's safety department in Arkansas, and was

ABF's corporate representative on "issues dealing with safety." Hassan

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proposed to offer the following interchange, to establish that Williams

deviated from ABF safety training and procedures:

Q. As the director of safety, are there any
circumstances where ABF finds that it is allowable for
its road driver to run into the back of another car?

A. No sir.

....

Q. As the director of safety, as you read Mr. Williams'
statement about the incident, did ABF require Mr.
Williams to already know whether he could change
lanes?

....

A. He should have known.

Q. According to his statement, would you agree with
me that he stated that he did not know?

A. He's saying he looked to see if he could change
lanes, so I would have to say he didn't look prior to
approaching the FedEx vehicle.

Q. As the director of safety for ABF, based upon the
statement by Roland Williams, would you agree that
he violated ABF's rules and regulations for road
drivers?

....

A. I would say he failed to maintain proper lookout of
what was ahead of him and didn't allow himself an
out. He should have been able to stop or change
lanes.

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Q. Would you agree that that is a violation of ABF's
rules and regulations for its road drivers?

....

A. No, I wouldn't know that I [would] say it's a
violation. I would say it's contrary to what we train
in.

Cates also shed light on the "preventability determination" that Witter

mentioned in the termination letter. Cates testified that ABF concluded the

accident was "preventable." He explained that Witter's letter stating that

conclusion was based on the accident preventability analysis that Cates's

department conducted. Cates also explained that he would not have called

Williams reckless, as Witter did, which he defined to mean "not exercising due

care and caution when operating a vehicle." Cates said he would have called

Williams "inattentive."

At the motion-in-limine hearing, the court ruled Cates could describe

ABF's rules and regulations for truck drivers, but he could not say if, in ABF's

opinion, Williams violated them. The court barred Williams's statement

discussing his own fault or how ABF viewed a rear-end collision. And, the

court also barred Witter's letter in its entirety. Hassan argued the letter was an

admission against interest, but the court disagreed, stating the letter was a

determination of fault that was ultimately within the province of the jury. The

court stated, "It's inappropriate to have somebody come in and offer an opinion

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on the ultimate issue in the case," which is the "jury's determination." The

court also noted that both Witter and Cates lacked personal knowledge of the

accident. Evidently referring to Witter, the court said he was "[s]omeone who

wasn't there . . . didn't see it, and . . . who's relying on the opinion of someone

a thousand miles away [Cates]" without knowing the basis for that opinion.

Hassan also filed a motion to prevent defendants from questioning his

medical expert on the possibility that Hassan suffers from Alzehimer's disease.

Defendants indicated they intended to have their expert testify that Hassan

suffered from Alzheimer's, since he was taking a drug that was FDA-approved

to treat the disease, and he had a family history of it. The court ruled

defendants were not allowed to have their own expert opine that Hassan could

be suffering from Alzheimer's, since it was "too inflammatory" and no witness

was prepared to say Hassan in fact was suffering from the disease. However,

defendants could question Hassan's medical expert on cross-examination

whether he believed Alzheimer's or white matter disease contributed to the

crash. Also, although defendants could not elicit testimony that Hassan may

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have been a malingerer, they could present testimony that his physical injuries

were psychogenic. 2

After the close of testimony and summation, the jury of eight found

Hassan and Williams were both negligent, and allocated fifty-one percent of

fault to Hassan. The trial court entered a judgment of no cause. Hassan then

filed a motion for a new trial, which the court denied.

On appeal, Hassan contends the court erred by (1) barring Witter's letter

and Cates's and Williams's statements; (2) denying his motion to compel

discovery; and (3) permitting prejudicial questioning and comment by defense

counsel about Alzheimer's and other subjects.

II.

We consider first the court's exclusion of Witter's discharge letter,

Cates's deposition excerpts, and Williams's statement about ABF's approach to

rear-end hits. "Although we may not simply substitute our judgment for the

trial court's, we shall not affirm an evidentiary ruling that represents 'a clear

error of judgment.'" State v. Vargas, 463 N.J. Super. 598, 613 (App. Div.

2020) (quoting State v. Perry, 225 N.J. 222, 233 (2016)).

2
Psychogenic is defined as "originating in the mind or in mental or emotional
conflict." Merriam-Webster Online Dictionary, https://www.merriam-
webster.com/dictionary/psychogenic (last visited February 10, 2021).

A-3336-18
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On the other hand, we are obliged to affirm an evidentiary decision if it

reached "the proper conclusion . . . based on the wrong reasoning." Hayes v.

Delamotte, 231 N.J. 373, 387 (2018). In holding the statements were

inadmissible, the court wrongly concluded they would usurp the function of

the jury by addressing an "ultimate issue." However, ABF's decision to

discharge Williams was properly excluded because it was a subsequent

remedial measure. N.J.R.E. 407. The balance of the discharge letter and

Cates's and Williams's statements should have been analyzed as statements of

a party opponent, N.J.R.E. 803(b). As such, they were admissible.

A. Ultimate Issue

The trial court erred in reasoning that the Cates deposition excerpts and

the statements in the discharge letter usurped the jury's function by addressing

an "ultimate issue." First, the court mischaracterized the evidence. Second,

statements may not be excluded solely because they may embrace an ultimate

issue. Third, while ultimate issue evidence may be excluded for other reasons,

those reasons do not apply or were not applied in this case.

Our Evidence Rules abolished the so-called "ultimate issue rule."

"Testimony in the form of an opinion or inference otherwise admissible is not

objectionable because it embraces an ultimate issue to be decided by the trier

of fact." N.J.R.E. 704. The rule does not define "ultimate issue." But our

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cases make clear that a witness may testify that a defendant deviated from a

standard of care. See, e.g, Jacober v. St. Peter's Med. Ctr., 128 N.J. 475, 497

(1992) (stating that expert could testify that a certain catheter "[wa]s the

appropriate size" to use on the plaintiff-infant, not the one the defendant used).

Even before the Rules of Evidence were adopted, we held "opinion testimony

of experts relating to the ultimate issue, i.e., the propriety and safety of a

condition or appliance is allowed." Shutka v. Pa. R. Co., 74 N.J. Super. 381,

401 (App. Div. 1962).

That does not mean that ultimate issue testimony may never be excluded.

The rule refers to evidence "otherwise admissible." N.J.R.E. 704. So, a court

may still bar a witness from telling a jury what result to reach in a case (for

example, that a criminal defendant is guilty), or from offering a purely legal

conclusion. A court may do so, but not because such statements do not

embrace an ultimate issue. Rather, a court may bar ultimate issue opinions,

among other reasons, if they are unhelpful. See, e.g., State v. Cain, 224 N.J.
410, 427 (2016) (noting that "an expert is no better qualified than a juror to

determine the defendant's state of mind," an "ultimate issue," after the expert

has tutored the jury on "the peculiar characteristics of drug distribution"). Or,

they are unreliable. See, e.g., Jacober, 128 N.J. at 497 (stating an expert may

"offer reliable opinion testimony about the ultimate issue at trial").

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Or, they are unduly prejudicial, as with opinions about guilt or essential

elements of crimes. See, e.g., Cain, 224 N.J. at 427-28 (noting that expert's

testimony on ultimate issue state-of-mind causes "prejudice and potential

confusion . . . [that] outweighs any probative value it may possess"); State v.

Sowell, 213 N.J. 89, 100 (2013) (stating that expert testimony embracing an

ultimate issue "can be excluded if 'the risk of . . . undue prejudice, conf usion

of issues, or misleading the jury' substantially outweighs its probative value")

(quoting N.J.R.E. 403); State v. McLean, 205 N.J. 438, 454 (2011) (stating the

"risk of undue prejudice" is "'significant'" if an expert investigating officer

"'offers an opinion on an ultimate issue in the case'") (quoting State v. Berry,

140 N.J. 280, 301 (1995)); State v. Landeros, 20 N.J. 69, 74-75 (1955)

(reversing conviction because of police officer's prejudicial testimony

regarding the defendant's guilt).

As the Federal Advisory Committee observed:

The abolition of the ultimate issue rule does not lower
the bars so as to admit all opinions. Under Rules 701
and 702, opinions must be helpful to the trier of fact,
and Rule 403 provides for exclusion of evidence
which wastes time. These provisions afford ample
assurances against the admission of opinions which
would merely tell the jury what result to reach,
somewhat in the manner of the oath-helpers of an
earlier day. They also stand ready to exclude opinions
phrased in terms of inadequately explored legal
criteria. Thus the question, "Did T have capacity to
make a will?" would be excluded, while the question,

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"Did T have sufficient mental capacity to know the
nature and extent of his property and the natural
objects of his bounty and to formulate a rational
scheme of distribution?" would be allowed.

[Advisory Committee Note to Fed. R. Evid. 704, 56 F.R.D. 183, 285 (1972).]
Here, the trial court mischaracterized the statements as "ultimate issue"

evidence. Neither Cates nor Witter said how the case should be decided, nor

did they offer a legal conclusion, let alone an "inadequately explored" one, that

Williams acted negligently. Rather, Cates testified, as a factual matter, that

Williams deviated from ABF's training and protocols. Cates also concluded,

in his safety evaluation, that the accident was "preventable." That opinion was

repeated in Witter's letter. But, "preventable" evidently is not the same as

negligent.3 Also, although Witter said Williams drove "reckless[ly]," he did

not define the term. Perhaps, it was defined in the apparent collective

3
Cates did not disclose ABF's definition of "preventable" in the record before
us. Williams testified he understood it to mean the "driver could have d[one]
something to keep the accident from happening. Basically [it] is saying the
driver [is] at fault." We note that the Motor Carrier Safety Regulations include
at least two definitions. See 49 C.F.R. § 385.3 (defining a "[p]reventable
accident on the part of a motor carrier [to] mean[] an accident (1) that involved
a commercial motor vehicle, and (2) that could have been averted but for an
act, or failure to act, by the motor carrier or the driver"); 49 C.F.R. Pt. 385,
App A (stating that "[i]f a driver, who exercises normal judgment and
foresight, could have foreseen the possibility of the accident that in fact
occurred, and avoided it by taking steps within his/her control which would
not have risked causing another kind of mishap, the accident was
preventable").

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bargaining agreement that he referenced in his letter; or he used the word in its

common, everyday meaning. However, there is no reason to believe he had in

mind the term's legal meaning under our tort law.

Furthermore, even if the statements were deemed to embrace the

ultimate issue, they may not be barred on that basis. N.J.R.E. 704. We

acknowledge that N.J.R.E. 701 and 702 may generally provide grounds to bar

an ultimate issue opinion — because, for example, it was an expert's net

opinion, or a lay opinion unsupported by personal knowledge. But, as we

discuss below, those rules do not bar the introduction of a statement of a party

opponent. Finally, the trial court engaged in no N.J.R.E. 403 balancing. In

sum, the trial court erred in characterizing Cates's and Witter's statements as

embracing the ultimate issue, and then excluding them on that basis.

B. Hearsay

We also reject defendants' argument that the statements of Cates, Witter,

and Williams were excludable hearsay. They were admissible as statements of

a party opponent. N.J.R.E. 803(b).

Witter wrote his letter, and Cates made his statements, in their respective

capacities as representatives of defendant ABF. The statements were "offered

against a party-opponent" — ABF. N.J.R.E. 803(b). And, in each case, the

statement was made "by a person authorized by the party-opponent to make a

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statement concerning the subject." N.J.R.E. 803(b)(3). ABF presented Cates

in discovery as its corporate representative on safety issues. Defendants do not

challenge Witter's authority to write the discharge letter as he did.4

In any event, Witter wrote the letter while he was an "agent or servant"

of ABF, "concerning a matter within the scope of the agency or employment,

made during the existence of the relationship." N.J.R.E. 803(b)(4). The

statement itself — for example, Witter's statement that Williams was reckless

— need not fall within the scope of the agency or employment. The statement

need only "concern[] a matter within the scope of the agency or employment"

— in this case, Witter's firing authority. See 5 Weinstein's Federal Evidence §

801.33[1] (2021) (making that distinction).

Williams's statement was admissible against him, because it was his

"own statement, made either in an individual or in a representative capacity."

N.J.R.E. 803(b)(1). It is unclear if Williams's statement would be admissible

against ABF as a statement of ABF, because Williams may have been retired

when he made the statement. See Matter of Opinion 668 of Advisory Comm.

4
We recognize that the Safety Department's determination that the accident
was preventable was hearsay within the hearsay of Witter's letter. However,
"[h]earsay within hearsay is not excluded by the rule against hearsay if each
part of the combined statements conforms with an exception to the rule."
N.J.R.E. 805. The Safety Department's determination — which Cates
confirmed in his deposition — was also a statement of a party-opponent.

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on Pro. Ethics, 134 N.J. 294, 300 (1993) (stating, referring to N.J.R.E.

803(b)(4), that "[f]ormer employees are not, strictly speaking, covered by the

[e]vidence [r]ule").

Although defendants reiterate the trial court's concern that both Witter

and Cates lacked personal knowledge about the collision, that lack of

knowledge is no reason to exclude their statements. Their statements still

qualify as those of a party-opponent under the rule, because personal

knowledge is not required. See Parker v. Poole, 440 N.J. Super. 7, 19 (App.

Div. 2015) (noting that "courts have specifically exempted statements under

F.R.E. 801(d)(2)(A) from the personal-knowledge requirement for testimony");

2 McCormick on Evidence § 254 (8 th ed. 2020) (noting that the party who

makes a statement of a party-opponent "is not required to have firsthand

knowledge of the matter declared").

Nor must the proponent demonstrate that the party-opponent's statement

has an "indicia of reliability," as defendants argue. "[S]tatements by a party -

opponent are not subject to trustworthiness considerations." Parker, 440 N.J.

Super. at 19. The proponent also need not establish, as defendants contend,

that the declarants "possessed the expertise necessary" to offer their opinions.

Just as a party-opponent's statement of opinion need not satisfy the personal

knowledge requirement of the lay opinion rule, N.J.R.E. 701, see Parker, 440

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17 N.J. Super. at 20, a party-opponent statement of opinion need not satisfy the

expertise requirement of the expert opinion rule, N.J.R.E. 702, see Advisory

Committee Note to Fed. R. Evid. 801(d)(2)(A), 56 F.R.D. at 297 (referring to

"[t]he freedom which admissions have enjoyed . . . from the restrictive

influences of the opinion rule and the rule requiring firsthand knowledge").

And, for purposes of admitting a statement of a party-opponent, it does

not matter if, as defendants contend, Hassan "offered no proof" that Witter's

letter was "a statement against ABF's interest." "A statement admitted under

N.J.R.E. 803(b)(1) does not have to be contrary to the party's interest when

made." See, e.g., State v. Covell, 157 N.J. 554, 572 (1999). That is required

to admit statements under N.J.R.E. 803(c)(25).

Since Cates's and Witter's statements are admissible as statements of a

party opponent only against ABF, and Williams's statement is admissible as a

statement of a party opponent only against Williams, the trial court on remand

will need to determine whether the limited use of the statements can be

adequately addressed through jury instructions.

Alternatively, on remand, Hassan may try to offer some of the

statements as statements against interest. N.J.R.E. 803(c)(25). If so

admissible, they could be offered against all defendants. Hassan would need

to establish that Cates's or Witter's statements were "so far contrary to . . .

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[ABF's] pecuniary, proprietary, or social interest, or so far tended to subject

[ABF] to civil . . . liability . . . that a reasonable person in . . . [Cates's or

Witter's] position would not have made the statement unless . . . [Cates or

Witter] believed it to be true." N.J.R.E. 803(c)(25). 5 Hassan would also need

to establish that Williams's discussion of ABF's policy in rear-end collisions

was also "so far contrary" to his pecuniary interests or would "so far tend[] to

subject" him to civil liability. We do not reach the issue whether any of the

statements would be admissible under N.J.R.E. 803(c)(25), because Hassan on

appeal confines his argument to N.J.R.E. 803(b) and caselaw interpreting that

rule (notwithstanding that he mistakenly described the rule as pertaining to

statements against interest).

C. Subsequent Remedial Measure

As noted, if the trial court reached the right result for the wrong reason,

we are obliged to affirm. We do so regarding the order excluding Witter's

statement discharging Williams. However, for reasons we discuss below, the

discharge statement should be redacted from the rest of the letter.

5
Evidently, federal regulators rate the safety of interstate motor carriers, 49
C.F.R. § 385.5, and among the factors considered are "indicators of
preventable accidents" and "whether . . . preventable accident indicators have
increased or declined over time," 49 C.F.R. § 385.7(f). Conceivably, a
statement that an accident was "preventable" may be "so far contrary" to ABF's
"pecuniary, proprietary, or social interest" by undermining ABF's standing
with federal regulators.

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Although evidence of Williams’s discharge was not excludable as

hearsay, otherwise "admissible hearsay must avoid the exclusions found in

Article IV of our Rules of Evidence." Vargas, 463 N.J. Super. at 610. The

statement discharging Williams was properly excluded because his discharge

was a post-event "remedial measure." N.J.R.E 407. Once fired, he could not

get into more accidents. And Hassan offered the firing to "prove that the event

was caused by [Williams's] negligence or culpable conduct." Ibid.

Under the common law, "evidence of remedial measures is excluded not

because it lacks relevancy, but because the court, to refrain from discouraging

such measures, declares it incompetent." Hansson v. Catalytic Constr. Co., 43 N.J. Super. 23, 29 (App. Div. 1956); but see Brown v. Brown, 86 N.J. 565,

580-81 (1981) (stating that the rule excluding subsequent remedial measures is

also based "on the unreliability of any inference of an admission of culpability

by the defendant").

Before adoption of our Rules of Evidence, the Court of Errors and

Appeals held, in a case involving a bus colliding into a truck, that "[e]vidence

that a driver ha[d] been discharged soon after an accident is not competent as

an implied admission that the driver had been careless." Rynar v. Lincoln

Transit Co., 129 N.J.L. 525, 530 (E. & A. 1943). Although we have found no

New Jersey case deeming a responsible employee's discharge a subsequent

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remedial measure under our Rules of Evidence, we have no doubt that N.J.R.E.

407 applies, as did its predecessor, Evid. R. 51. See Judson F. Falknor,

Extrinsic Policies Affecting Admissibility,
10 Rutgers L. Rev. 574, 591 (1956)

(stating that Uniform Rule of Evidence Rule 51 "finds its most common

application in respect . . . of . . . the discharge of an employee charged with

causing an injury" among other measures, and stating that the rule "appears

broad enough to cover any situation which, by existing law, is within the

sweep of the exclusionary principle"). 6

N.J.R.E. 407 "follows the principle stated by . . . Fed. R. Evid. 407."

1991 Supreme Court Committee Comment to N.J.R.E. 407. Therefore, we

may look to federal cases for guidance. Parker, 440 N.J. Super. at 19. Courts

applying Fed. R. Evid. 407 have found discharging a responsible employee to

be a subsequent remedial measure. See, e.g. Nolan v. Memphis City Schools,

589 F.3d 257, 274 (6th Cir. 2009) (stating that "[e]vidence that an employer

subsequently discharged an employee accused of causing a plaintiff's injury

6 Evid. R. 51 stated, "When after the occurrence of an event remedial or
precautionary measures are taken, which, if taken previously would have
tended to make the event less likely to occur, evidence of such subsequent
measures is not admissible to prove negligence or culpable conduct in
connection with the event." N.J.R.E. 407 states, "Evidence of remedial
measures taken after an event is not admissible to prove that the event was
caused by negligence or culpable conduct. However, evidence of such
subsequent remedial conduct may be admitted as to other issues."

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may be properly excluded as a subsequent remedial measure under Rule 407");

Mahnke v. Wash. Metro. Area Transit Auth., 821 F. Supp. 2d 125, 152

(D.D.C. 2011) (stating that Fed. R. Evid. 407 barred evidence of bus driver's

discharge). See also 2 Weinstein's Federal Evidence § 407App.01 (2021)

(quoting Advisory Committee Notes acknowledging that the rule covers

discharge of responsible employees). 7

However, N.J.R.E. 407 does not bar admissibility of a post-accident

investigation, even if it prompted the discharge. We again look to other

persuasive sources absent controlling New Jersey authority. Evidence of post -

accident investigations lies outside the rule because the investigations "are

conducted or prepared for the purpose of investigating the cause of the

accident, and can rarely be characterized as 'measures' which, if conducted

previously, would have reduced the likelihood of the accident." 2 Weinstein's

Federal Evidence § 407.06 (2021). Put another way, safety is only furthered

when measures are taken as a result of the investigation. Ibid.

7 Fed. R. Evid. 407 originally stated, "When, after an event, measures are
taken which, if taken previously, would have made the event less likely to
occur, evidence of the subsequent measures is not admissible to prove
negligence or culpable conduct in connection with the event." Pub. L. 93 -595
(Jan. 2, 1975). The rule was remodeled to state: "When measures are taken
that would have made an earlier injury or harm less likely to occur, evidence
of the subsequent measures is not admissible to prove: negligence; culpable
conduct; a defect in a product or its design; or a need for a warning or
instruction." Fed. R. Evid. 407.

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Thus, courts have excluded evidence of subsequent remedial measures

under Rule 407, but not the investigation that preceded them. See, e.g., Rocky

Mtn. Helicopters, Inc. v. Bell Helicopters Textron, 805 F.2d 907 (10 th Cir.

1986) (affirming trial court decision to exclude evidence of helicopter

redesign, but not a post-accident study about the prior design); Fox v. Kramer,

994 P.2d 343 (Cal. 2000) (stating that California analog to Rule 407 "would

appear to include only subsequent actions taken to repair or correct a problem

identified by an investigation — not the factual inquiries undertaken to

determine whether such repair or correction was necessary"). "[T]he policy

considerations that underlie Rule 407, such as encouraging remedial measures,

are not as vigorously implicated where investigative tests and reports are

concerned." Rocky Mtn. Helicopters, 805 F.2d at 918. And, "[t]o the extent

that such policy concerns are implicated, they are outweighed by . . . the

danger of depriving 'injured claimants of one of the best and most accurate

sources of evidence and information.'" Id. at 918-19 (quoting Westmoreland v.

CBS, Inc., 601 F. Supp. 66, 68 (S.D.N.Y. 1984)).

In particular, courts have distinguished between evidence of a discharge,

and the investigatory report that may have prompted it. In J.B. Hunt

Transport, Inc. v. Guardianship of Zak, 58 N.E.3d 956, 963 (Ind. Ct. App.

2016), a case involving an automobile-truck collision, the trial court excluded

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evidence of the driver's firing as a subsequent remedial measure, but not

reports of the trucking company's internal review process. On the trucking

company's appeal, the Indiana appellate court affirmed, holding that "evidence

of post-accident investigations are not automatically excluded as subsequent

remedial measures." Id. at 967. See also J.M. v. City of Milwaukee, 249 F.

Supp. 3d 920, 931-32 (E.D. Wisc. 2017) (distinguishing between evidence of

police officer's firing, which was inadmissible under Rule 407, and "the

investigation leading to that act, namely the determination in the Discharge

Proceedings that his search was unreasonable"); Aranda v. City of

McMinnville, 942 F. Supp. 2d 1096, 1104 (D. Or. 2013) (noting the

"distinction . . . between the actual disciplining of officers for their conduct,

which could constitute a remedial measure, and the investigation that precedes

a disciplinary process"); Bullock v. BNSF Ry. Co., 399 P.3d 148, 158-59

(Kan. 2017) (affirming appellate court's distinction between evidence of

discipline and evidence of investigative conclusion). 8 Where investigative

conclusions and discipline are found in the same document, appropriate

8
We find unpersuasive the view that if an employee's discharge is barred as a
subsequent remedial measure, so is the internal investigation that led to the
discharge. But see Mahnke, 821 F. Supp. 2d at 152 (excluding investigation
leading to discharge of bus driver involved in collision); Martel v. Mass. Bay
Transp. Auth., 525 N.E.2d 662, 664 (Mass. 1988) (same).

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redactions should be made, rather than excluding the entire document. Id. at

158.

In sum, N.J.R.E. 407 excludes evidence of Williams's discharge. But the

rule does not exclude evidence of ABF's investigation, including Cates's

finding that Williams violated ABF safety protocols, and the collision was

preventable; and Witter's opinion that Williams acted "reckless[ly]." 9

However, that does not complete the analysis.

D. N.J.R.E. 403

We turn, finally, to whether the probative value of the statements by

Cates and Williams, and the redacted letter of Witter, would be "substantially

outweighed by the risk of (a) [u]ndue prejudice, confusion of issues, or

misleading the jury; or (b) [u]ndue delay, waste of time, or needless

presentation of cumulative evidence." N.J.R.E. 403. Had the court engaged in

9
We recognize that in "certain rare circumstances," a court may shield
statements in a "self-critical analysis," where "confidentiality concerns . . .
outweigh the need for disclosure." Payton v. N.J. Tpk. Auth., 148 N.J. 524,
546 (1997). However, defendants do not argue that ABF's preventability
analysis amounts to a "self-critical analysis." Furthermore, "[i]t is not so clear
that disclosure inevitably will discourage candid self-criticism." Id. at 547. In
particular, "when a deliberating body is required by law to prepare an honest
report, replete with self-evaluation, we do not assume that that body will shirk
its responsibilities in order to hide the truth." Ibid. In this case, one may
question whether evidentiary exclusions would affect a motor carrier's
preventability investigations, especially if they are responsive to federal
regulations. See 49 C.F.R. § 385.5; 49 C.F.R. § 385.7(f).

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that balancing, it would command our deference. See Covell, 157 N.J. at 569

(stating that a court may overturn an N.J.R.E. 403 determination "[o]nly where

there has been a 'clear error of judgment'" (quoting State v. Koedatich, 112 N.J. 225, 313 (1988), cert. denied, 488 U.S. 1017 (1989))). "Yet, where the

trial court fails to apply the proper legal standard in evaluating the

admissibility of evidence, we review the evidentiary ruling de novo." State v.

Trinidad, 241 N.J. 425, 448 (2020). In Trinidad, the trial court failed to

conduct an N.J.R.E. 403 analysis. So, the Supreme Court conducted one itself.

Ibid.

So shall we. We conclude that the excluded statements had significant

probative value. Cates stated that Williams did not adhere to the safety

protocols that he was taught and "he failed to maintain proper lookout of what

was ahead of him," he "didn't allow himself an out" and "[h]e should have

been able to stop or change lanes." Those statements were relevant to the

jury's determination whether Williams exercised reasonable care, including, as

the judge instructed the jury, whether Williams "use[d] reasonable care in the

control, management, and operation of his machine," and whether he made

"such observations for traffic and road conditions and to exercise such

judgment as to avoid collision or injury to others upon the highway as a

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reasonably prudent person would have done under those circumstances." 10

Cates's Safety Department conclusion that the collision was preventable, which

Witter restated in his discharge letter, pertains to the same question. ABF had

determined that Williams had it in his power to avoid the collision.

Likewise, Witter's statement that Williams drove recklessly also had

significant probative value. Although Witter did not define the term in his

letter, it conveyed to the jury that Williams's own boss believed he acted

without sufficient care.

Lastly, Williams's own acknowledgement that ABF blamed any driver

who struck another vehicle in the rear was probative. We are not convinced by

Hassan's argument that Williams's statement admitted fault. Rather, it

described how ABF viewed his actions. Still, it was highly probative, since

ABF was denying fault at trial.

The probative value of these statements was not outweighed, let alone

"substantially outweighed" by "[u]ndue prejudice, confusion of issues, or

misleading the jury." N.J.R.E. 403(a). The evidence would not "divert jurors

'from a reasonable and fair evaluation'" of the issues before them. See State v.

Moore, 122 N.J. 420, 467 (1991) (quoting State v. Sanchez, 224 N.J. Super.

10
The court's instruction followed virtually verbatim the Model Jury Charges
(Civil), 5.30A "General Duty Owing" (approved Aug. 1999).

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231, 249-50 (App. Div.) certif. denied, 111 N.J. 653 (1988)). Furthermore,

appropriate jury instructions — for example, distinguishing between

"preventability" and "negligence" — would manage any risk the jury would be

confused or misled by the witnesses' statements. 11

E. Rule 2:10-2

Finally, we conclude that the court's order excluding Witter's letter, and

Cates's and Williams's statements, were "clearly capable of producing an

unjust result," R. 2:10-2, compelling a new trial. The jury found both Hassan

and Williams negligent, and found Hassan only two percent more at fault than

Williams. The excluded evidence was clearly capable of convincing the jury

to assign slightly more responsibility to Williams and slightly less to Hassan.

In short, the excluded statements could have been "the deciding factor in

[Hassan's] favor." Parker, 440 N.J. Super. at 23. Therefore, Hassan (and his

wife) are entitled to a new trial.

11
Cf. Tyson v. Old Dominion Freight Line, Inc., 608 S.E.2d 266, 270 (Ga. Ct.
App. 2004) (holding that the trial court did not abuse its discretion in finding
that the prejudicial effect of admitting a motor carrier's finding that the
accident was "preventable" outweighed its probative value because the carrier's
"definition of preventable is different from the standard of liability"). Notably,
we are not reviewing the trial court's discretionary balancing. Instead, we
review the issue de novo.

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III.

Hassan argues that the court erred in denying his motion to compel

responses to his discovery requests. We "are not to intervene but instead will

defer to a trial judge's discovery rulings absent an abuse of discretion or a

judge's misunderstanding or misapplication of the law." Capital Health Sys.,

Inc. v. Horizon Healthcare Servs., Inc., 230 N.J. 73, 79–80 (2017) (citing

Pomerantz Paper Corp. v. New Cmty. Corp., 207 N.J. 344, 371 (2011)).

Although mindful of the high bar appellants face, we agree the motion judge

erred in denying the discovery request for documents.

"[A]ppellate courts must start from the premise that discovery rules 'are

to be construed liberally in favor of broad pretrial discovery.'" Horizon

Healthcare, 230 N.J. at 80 (quoting Payton v. N.J. Tpk. Auth., 148 N.J. 524,

535 (1997)). "Our court system has long been committed to the view that

essential justice is better achieved when there has been full disclosure so that

the parties are conversant with all the available facts." Jenkins v. Rainner, 69 N.J. 50, 56 (1976). "To determine whether the materials sought by [Hassan]

are discoverable, their potential relevance is the initial inquiry. In deciding

whether evidence is relevant the focus is on the 'logical connection between

the proffered evidence and a fact in issue[.]'" In re Liquidation of Integrity

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Ins. Co., 165 N.J. 75, 82 (2000) (alteration in original) (quoting State v.

Hutchins, 241 N.J. Super. 353, 358 (App. Div. 1990)). "N.J.R.E. 401 defines

relevant evidence as 'evidence having a tendency in reason to prove or

disprove any fact of consequence to the determination of the action.'" Ibid.

The motion judge denied Hassan's request for the documents we have

described, evidently agreeing with defendants that the complex documents

were not relevant to liability issues in what seemed to be a "straight forward"

accident case. As a threshold matter, there is no competent evidence in the

record demonstrating that these documents were so complex. More

importantly, complexity and relevance are not mutually exclusive. In a case

that may seem simple, complex documents can add support to a party's

arguments. That is true here. The requested documents, including satellite

and "black box" data, concern such matters as the speed the truck was

traveling, what it was carrying, how the brakes were used, and the condition of

the driver. Such information was relevant to understanding how the accident

occurred.

We reject defendants' newly minted argument that Hassan's discovery

demand was "onerous." Defendants did not resist the discovery request on that

ground before the trial court, let alone provide any competent evidence to

support such a claim. See Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234

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(1973) (stating that "appellate courts will decline to consider questions or

issues not properly presented to the trial court when an opportunity for such

presentation was available 'unless the questions so raised on appeal go to the

jurisdiction of the trial court or concern matters of great public interest'"

(quoting Reynolds Offset Co., Inc. v. Summer, 58 N.J. Super. 542, 548 (App.

Div.) certif. denied, 31 N.J. 554 (1960))).

We also are unpersuaded by defendants' contention Hassan was obliged

to revive his request for the information, evidently through a motion to

reconsider, after defendants served their expert report. We disagree. Our

court rules place a "continuing obligation" on a party responding to a "r equest

to produce" to update its response throughout the pre-trial litigation as needed.

See R. 4:18-1(b)(3). Once defendants concededly "radically shifted" "[t]he

complexion" of the case with their experts' opinion, defendants bore the

responsibility to reassess their response, and disclose what they withheld based

on their prior characterization of the case.

Without the benefit of the discovery itself, and perhaps an expert

analysis of its significance, we cannot decide that withholding it led to an

unjust result, requiring a new trial. R. 2:10-2. However, we need not reach

the question, as we reverse based on the exclusion of Cates's and Williams's

statements and Witter's letter with the discharge portion redacted.

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31
B.

Hassan contends the court erred in allowing defendants to elicit

testimony concerning the possibility he was suffering from Alzheimer's

disease. He also contends the court erred in allowing defense counsel to cross -

examine his expert on aspects of his medical history.

The court barred defendants from eliciting testimony from their own

medical expert that Hassan might suffer from Alzheimer's disease, as there was

no competent evidence from a medical professional that Hassan actually did.

However, the court allowed defendant to cross-examine Hassan's treating

neurologist and medical expert witness, who asserted that the collision caused

Hassan neurological injury, whether he considered pre-existing "white matter

disease" or "anxiety."

At trial, defense counsel asked the expert witness whether he considered

Hassan's family medical history, particularly that his father had dementia. The

expert testified he noted the family history of dementia in his report. Defense

counsel then asked whether people with dementia "drive real slow." Hassan's

counsel objected. The judge directed defense counsel to "move on,"

interrupted defense counsel's attempt to argue the point, and then asked the

expert, "Doctor, you don't have any medical evaluation of driving patterns with

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people with dementia; do you?" The witness answered no, and the judge

responded, "All right."

Defense counsel's questioning was improper. Instead of probing the

basis of the medical expert's damages-related opinion, defense counsel

evidently suggested that Hassan may have driven slowly — as defendants'

accident reconstruction expert asserted — because he had incipient dementia.

Although the court did not expressly sustain the objection, nor provide a

curative instruction, the court minimized any harm by establishing that the

doctor had no evidence that people with dementia drive slowly. Defense

counsel did not attempt to make the connection again in closing. We therefore

conclude that the fleeting remark, by itself, was not capable of producing an

unjust result.

We reach the same conclusion with respect to questioning about a 2002

medical record indicating Hassan had suffered a wrist injury. The court agreed

to bar such inquiry, as defense counsel had not questioned any of the medical

experts during their depositions. Nonetheless, defense counsel cross-examined

Hassan on whether he recalled this injury. After Hassan reviewed the record

to refresh his memory, he stated he did not remember the injury. However, the

jury never reached the issue of damages. So, the error was harmless.

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Hassan's remaining arguments lack sufficient merit to warrant discussion

in a written opinion. R. 2:11-3(e)(1)(E).

Reversed and remanded for a new trial. We do not retain jurisdiction.

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