Submitted September 20, 2016 Decided. Before Judges Koblitz and Rothstadt.

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1 NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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. LEILA KARPUZI, a minor by and through her G/A/L IDRIZ KARPUZI and IDRIZ KARPUZI, Individually, SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. Plaintiffs-Appellants, v. EVAN M. GALLO, and Defendant-Respondent, AUDRENE M. GALLO and XHEMILE KARPUZI, Defendants. Submitted September 20, 2016 Decided March 8, 2017 Before Judges Koblitz and Rothstadt. On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Docket No. L Westmoreland Vesper Quattrone & Beers, P.A., attorneys for appellants (Kathleen F. Beers, on the briefs). Hurvitz & Waldman, LLC, attorneys for respondent (Marc L. Hurvitz and Joshua K. Givner, on the brief).

2 PER CURIAM Plaintiff Leila Karpuzi was involved in an automobile accident as a passenger when she was approximately twelve years old. Her father, plaintiff Idriz Karpuzi, brought this action for damages, on behalf of Leila and individually, against defendant, Evan M. Gallo, the driver of the vehicle that struck the car in which Leila was a passenger. The matter was tried before a jury that returned a verdict of "no cause" in favor of defendant, and the trial court denied plaintiffs' motion for a new trial. Plaintiffs appeal from the judgment dismissing their complaint and the trial court's order denying her motion for a new trial. They contend the trial court committed various errors that warrant reversal. Specifically, they argue that the jury's verdict was against the weight of the evidence; the court failed to ask any open-ended questions during jury selection; it barred testimony about "malingering"; it did "not allow[] fair comment or [a] negative inference" regarding a defense doctor who did not testify; it barred testimony by plaintiffs' chiropractor regarding his reliance on MRI results; it failed to give an "aggravation charge"; and it did not itemize injuries on the jury verdict sheet. In addition, plaintiffs contend that defense counsel's summation "was, inaccurate, prejudicial [and] easily capable of [being] misleading." 2

3 We have considered plaintiffs' contentions in light of the record and our review of the applicable legal principles. We reverse the order denying a new trial, vacate the entry of judgment in favor of defendant, and remand the matter for a new trial because the trial court did not comply with its obligations during jury selection. The proofs adduced at trial focused on Leila's injuries, as liability was not an issue, and can be summarized as follows. On August 24, 2011, defendant's car collided with a vehicle being driven by Leila's sister in which she was a passenger. Leila did not receive any medical treatment or care for any injuries she sustained in the accident until January 2012, even though she stated that she experienced back and neck pain about a week to two weeks after the accident. Leila was first evaluated and treated by Dr. Jason Pagliarini, a chiropractor, who she saw regularly until June Two x-rays of Leila's cervical spine (neck) were taken on January 18, 2012, and an MRI of her lumber spine was performed on March 22, In addition to the chiropractic treatment, Leila took over-thecounter anti-inflammatories to alleviate her pain. Also, in November 2012, she saw a doctor at a hospital, but did not have any follow-up treatment with that doctor. 3

4 Dr. Andrew S. Glass, a neurologist, also saw Leila in March and April 2013, and an additional time in April Leila testified that Dr. Glass informed her that her back was "very unstable" and that there was a possibility for surgery though he did not recommend it at this time due to her very young age. Dr. Glass gave her two booklets with stretching exercises for her to do from home. He did not prescribe any pain medication or other forms of treatment and never advised Leila to stop participating in school athletic activities. After seeing Dr. Glass, Leila did not received any additional medical treatment for her injuries. Although Leila expressed at trial that her physical activities had been limited as a result of pain she suffered after the accident and that she can no longer roller skate or go on a roller coaster, she confirmed that she regularly continued to attend school and gym classes since the accident. Her school records demonstrated that Leila attended physical education and continued to perform very well in school. Dr. Ralph Dauito, plaintiffs' expert in radiology, reviewed and interpreted the MRI of Leila's lumber spine and the two x-rays of her cervical spine, and testified as to injuries he discerned from those tests. According to Dr. Dauito, the MRI showed a herniated disc at L5-S1 and the x-rays reflected a "trauma induced whiplash injury of the cervical spine" wherein the "ligament 4

5 posteriorly is sprained and torn." He testified that the herniated disc was "caused by an acute injury," sustained in the motor vehicle accident based upon "[t]he history [he] was provided." He also testified that the neck injury was "related to" the motor vehicle accident based on the "history of trauma [he] was given." The parties' medical experts did not dispute the injuries testified to by the radiologist. Instead, they testified about their findings as to whether Leila sustained any of her injuries in the accident and, if so, whether either of them was permanent. Dr. Glass testified that Leila had two permanent injuries: a herniated disc at the L5-S1 level and an injury to her cervical spine called "spondylolisthesis" or "anterolisthesis." He found the disc herniation to be a "sizeable" one, but opined that the "degree of misalignment in the neck [was] only mild." He did not find any neurological deficits. The doctor stated that Leila's injuries were "structural abnormalities objectively determined by MRI." Moreover, he opined within a reasonable degree of medical certainty that the herniated disc was caused by the motor vehicle accident on August 24, 2011, and Leila's anterolisthesis was either caused by the accident or rendered symptomatic by the accident. He based his finding about the cervical spine injury upon Leila being "entirely asymptomatic in that region before the motor 5

6 vehicle accident" and "[w]as only symptomatic consistently and persistently after the motor vehicle accident." Dr. Glass also opined that Leila's symptoms were consistent with her injuries and that there "appeared to be a direct correlation between her verbal description, the findings on her physical examination and the MRIs." Dr. Glass further testified that while he did not recommend surgery to Leila given her young age and the risk of complications, he informed her that surgery was an option. He indicated that even if he were to "fix" her herniated disc with surgery, "there was no way it will heal to normal or function normally." Dr. Glass did not recommend surgery for Leila's neck and opined that even with surgery, her neck "would not function in any way near normal...." He could not state whether she would need surgery in the future. The doctor also stated that Leila will be restricted in her daily activities and employment choices. Dr. Dorie Herndon, a chiropractor, also testified on behalf of plaintiffs. He had evaluated Leila on July 16, 2012, on behalf of her family's personal injury protection insurance carrier. He testified that he reviewed medical records sent to him by the insurance company and the report prepared by the radiologist, and thereafter, performed his own orthopedic tests. He testified that Leila suffered two injuries a herniated disc at L5-S1 and a neck 6

7 sprain and strain that were causally related to the auto accident. Like Dr. Glass, he found that Leila's subjective complaints matched the objective findings. Leila, however, did not have any neurologic deficit or loss of muscle strength caused by her pain. Dr. Herndon further testified that there was no further need for chiropractic treatment because Leila had "ample opportunity to receive maximum value from chiropractic care" or in other words, "the treatment thereafter... probably wouldn't be changing her condition or improving it in any way." He confirmed that Leila was never precluded from participating in any activities. The doctor also noted that his report did not mention any complaints by Leila about inactivity or lack of capabilities. Dr. Herndon offered no testimony on permanency. Dr. Stuart L. Trager, testified for defendant as an expert in orthopedics and orthopedic surgery. He stated that he performed an independent medical examination of Leila in September 2013 and 2014 and rendered three reports. None of his clinical examinations of Leila tested positive. After reviewing the MRI of Leila's lumber spine, he concluded that Leila had a L5-SI disc herniation with "some minimal impingement on the thecal sack." He stated, "For disk herniation in a young person, it usually involves a significant traumatic episode and we typically would expect to see 7

8 complaints of pain initially" and "instantaneously, at least within a day or so." He testified that based on the herniated disc demonstrated in Leila's MRI, he would expect certain clinical exam findings, including absent or decreased reflexes, decreased strength, positive straight leg raise, and spasms, which he did not find in examining Leila. With respect to her neck, Dr. Trager agreed that she had mild anterolisthesis. He found that her reflexes and strength were intact, and that there were no "particular range of motion that could be identified... on an objective basis." Dr. Trager ultimately opined that there was no objective evidence of any permanent injury, and he could not say with any degree of medical certainty whether Leila's neck and back injuries were caused by the accident. He also expressed that Leila's ability to participate in gym and other physical activities appeared to evince her ability to participate in activities of daily living. While Dr. Trager found that Leila had a herniated disc, he testified that there were no positive clinical exam findings consistent with the MRI and that a person can have a positive MRI for herniation, but have no clinical exam findings to confirm it. When asked how he could reconcile the inconsistency he stated, We know that people have MRIs that have positive findings all the time. The 8

9 challenge[ is to] identify whether or not they're clinically significant findings. In this case, again based on my exam, based upon prior examinations and prior evaluation at Nemours as well, my opinion... is that... ongoing symptoms did not appear to be related to the disk abnormality. After considering the evidence, the jury returned its verdict, and on February 23, 2015, the trial court entered a judgment, dismissing the complaint with prejudice. Plaintiffs filed a motion for a new trial, 1 arguing essentially the same issues they now argue on appeal. In an oral decision placed on the record on April 10, 2015, the trial court rejected plaintiffs' arguments. On April 23, it issued its order denying plaintiffs' motion for a new trial. This appeal followed. We begin our review by addressing plaintiffs' contention that the trial court's refusal during jury selection to ask two openended questions that she requested or two suggested by the court's Administrative Directives 4-07 warrants a new trial. 2 Defendant 1 We have not been provided with copies of the motion papers. We rely on the trial court's description of plaintiffs' arguments. 2 In 2006 and 2007, the Administrative Office of the Courts (AOC) issued directives addressing jury voir dires. See Administrative Directive #21-06, "Approved Jury Selection Standards, Including Model Voir Dire Questions" (Dec. 11, 2006), Administrative Directive #4-07, "Jury Selection Model Voir Dire Questions Promulgated by Directive #21-06 Revised Procedures and Questions" (May 16, 2007), /directive/2007/dir_04_07.pdf. Directive #21-06 required trial judges to ask each individual juror a set of standard questions, 9

10 contends that the court satisfied its obligation to ask open-ended questions under the directive when it asked the jurors the one biographical open-ended question required by the directives and included in the AOC's Model Voir Dire Questions. Also, he contends plaintiffs failed to preserve their objection to the trial court's decision when they did not raise the issue again during jury selection and found a panel to be acceptable. Before commencing jury selection, plaintiffs requested that the trial court ask jurors to describe what they thought about when they heard the terms "permanent injury" or "permanency" or when they heard or read about "earnings capacity" or "future earning capacity or income earning capacity." In addition, plaintiffs requested two questions contained in the Model Voir Dire Questions about whether a juror thought society was too litigious or whether each juror thought he or she would make a good juror. 3 The court refused to ask the first two because it as well as questions tailored to the individual case. Directive 4-07 specifically states, "Where this Directive modifies voir dire procedures set forth in Directive #21-06, it supersedes the relevant portions of that Directive." 3 Directive 4-07 identifies six sample questions. The two plaintiffs requested asked: 2. Do you have any feelings about whether or not our society is too litigious, that is, that people sue over things too often that they should not sue over; or do you think, on the other hand, there are too many 10

11 believed that the questions were not relevant to jury selection and the jurors would be bound by the court's definition of permanency and earning capacity. As to the other two questions, the court stated: I m not going to ask either one of them. I ll ask the open ended questions after, that are contained in the model jury charge after the biographical section. Everybody s going to say they can become a good juror. I mean remember, at this point we ve all ready [sic] asked them whether or not they re willing to sit here for 3 weeks for a trial. And then I m going to ask them whether or not they think they re going to be a good juror and then, okay, I m going to say why and they re going to sit there and say I can be fair, I m always fair. That s what they re going to say. The court conducted jury selection by asking several general questions from the Standard Jury Voir Dire Questions included with the directives that elicit yes or no responses, 4 and specific ones restrictions on the right of people to sue for legitimate reasons; or do you think our system has struck the right balance in this regard? Have you heard of the concept of "tort reform" (laws that restrict the right to sue or limit the amount that may be recovered)? How do you feel about such laws? 6. Do you believe that you will make a good juror for this case? Please explain. 4 The trial judge asked model questions 1 through 5, 7, 8, and 10 through

12 relating to auto accidents and medical malpractice. 5 It also posed to each juror the requisite biographical question contained in the model questions and the two mandated omnibus qualifying questions to each juror. The court did not ask any open-ended questions. Plaintiffs' counsel never made any objections after the court completed its questioning and, at the conclusion of jury selection, he informed the court that "the jury [was] acceptable." Plaintiffs' motion for a new trial raised the issue of the court's failure to ask the open-ended questions. In denying the motion, the trial court explained that it complied with the directives by asking the open-ended biographical question that allowed counsel to "get to know [the jurors] a little bit instead of just having a yes or no answer." We conclude that the trial court failed to comply with its obligations under the directives to ask at least three questions that required answers in narrative form. We are therefore constrained to vacate the judgment, and reverse and remand for a new trial, to be conducted in accordance with the directives. Directive #4-07 states: In addition to the printed questions, the judge shall also inform the jurors in the box and the array that jurors will also be individually asked several questions that they will be required to answer in narrative form. 5 The trial judge asked model questions 1 through 4 with respect to auto accidents and medical malpractice. 12

13 .... The judge will then ask [the] juror each of the open-ended questions, to which a verbal response shall be given and for which appropriate follow up questions will be asked..... Some open-ended questions must be posed verbally to each juror to elicit a verbal response. The purpose of this requirement is to ensure that jurors verbalize their answers, so the court, attorneys and litigants can better assess the jurors' attitudes and ascertain any possible bias or prejudice, not evident from a yes or no response, that might interfere with the ability of that juror to be fair and impartial. Open-ended questions also will provide an opportunity to assess a juror's reasoning ability and capacity to remember information, demeanor, forthrightness or hesitancy, body language, facial expressions, etc. It is recognized that specific questions to be posed verbally might appropriately differ from one case to another, depending upon the type of case, the anticipated evidence, the particular circumstances, etc. Therefore, rather than designating specific questions to be posed verbally to each juror, the determination is left to the court, with input from counsel, in the case..... The judge must ask at least three such questions, in addition to the biographical question and the two omnibus qualifying questions. This is a minimum number and judges are encouraged to ask more where such action would be appropriate. [(emphasis added).] 13

14 The directives' requirements are mandatory and binding on all trial courts and have the force of law. State v. Morales, 390 N.J. Super. 470, 472 (App. Div. 2007). The purpose of the directives is to "empanel a jury without bias, prejudice or unfairness." Gonzalez v. Silver, 407 N.J. Super. 576, 596 (App. Div. 2009) (citing Morales, supra, 390 N.J. Super. at 472, 475). The requirements exist in order to provide "'uniform practices' that will 'assure a thorough and meaningful inquiry into jurors' relevant attitudes....'" Ibid. (quoting Morales, supra, 390 N.J. Super. at 473). Accordingly, "a case should be reversed if it can be said that a 'miscarriage of justice,' R. 2:10-1,... resulted from failing to follow those requirements." Ibid. Here, the trial court did not ask any open-ended questions because it believed the information to be elicited by them was covered by other questions, and it did not believe that jurors would ever answer a question about their ability to be fair by admitting he or she could not. Those views by the trial judge did not provide a justification for failing to ask at least three open-ended questions. The directives make clear that a trial judge cannot refuse to ask less than three open-ended questions of each juror. While the trial court was within its discretion to reject plaintiff's proposed open-ended questions, it was an 14

15 abuse of discretion not to ask any other open-ended questions as required by the directives. It is, of course, counsel's obligation to alert the trial court to its error in failing to ask any open-ended questions by promptly raising any objection to the jury selection process. Counsel's "seeming[] satisf[action] with the court's voir dire questions," can infer that the court's error did not cause any harm. Id. at 597. Having determined that the trial court here erred, we turn therefore to the question of whether that error warrants a new trial. Generally, some degree of harm must be shown; an error does not warrant a new trial "unless it is of such a nature as to have been clearly capable of producing an unjust result...." R. 2:10-2; see also State v. Singleton, 211 N.J. 157, 182 (2012); State v. Reeds, 197 N.J. 280, 298 (2009). Because a litigant "is entitled to a fair trial but not a perfect one," an error must have caused harm, or a likelihood of harm, in order to warrant a reversal. State v. R.B., 183 N.J. 308, 334 (2005) (quoting Lutwak v. United States, 344 U.S. 604, 619, 73 S. Ct. 481, 490, 97 L. Ed. 593, 605 (1953)). "Generally, a trial court's decisions regarding voir dire are not to be disturbed on appeal, except to correct an error that undermines the selection of an impartial jury." State v. Winder, 200 N.J. 231, 252 (2009). 15

16 Applying these standards, we conclude the trial court's failure to ask open-ended questions in this case was of "such a nature as to have been clearly capable of producing an unjust result." R. 2:10-2. We cannot conclude from our review of the jury voir dire that it was sufficiently comprehensive to ensure that an impartial jury was selected. The questions the court referred to were either the required biographical or omnibus questions. Such questions may offer some insight into the perspective of prospective jurors, but they do not satisfy the mandate to ask open-ended questions. In light of our decision to order a new trial, we limit the balance of our review to those issues raised by plaintiffs that are likely to confront the court during the new trial. We begin with plaintiffs' contention that the trial court impermissibly barred experts from testifying as to whether Leila malingered. 6 Plaintiffs contend that the trial court erred by holding that "malingering" is not a medical term and by barring Drs. Herndon and Glass from testifying about whether they believed Leila was malingering. Plaintiffs maintain that malingering is a 6 "Malingering is the intentional production of false or grossly exaggerated physical or psychological symptoms motivated by external incentives, such as obtaining compensation or drugs, avoiding work or military duty, or evading criminal prosecution." Fitzgerald v. Stanley Roberts, Inc., 186 N.J. 286, 298 n.6 (2006) (citing American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders 683 (4th ed. 1994)). 16

17 medical diagnosis, and thus, the doctors should have been allowed to comment on whether plaintiff was untruthful in her reporting about the accident or her injuries. We disagree. In response to an objection made by defendant during Dr. Herndon's testimony, the court prohibited the doctor from defining the term "malingerer" in order to support his testimony that Leila was not a malingerer. It barred similar testimony when plaintiffs' counsel attempted to elicit opinions from Drs. Glass and Trager that Leila was not malingering in her reporting to them of her injuries and symptoms. The court stated, "Malingerer is a characterization that's far outside the field of expertise of a chiropractor or an independent medical evaluator or physician." The court would not "allow either positive or negative testimony or opinions from a doctor about whether or not he feels that the patient is a malingerer...." According to the court, "[w]hether or not somebody is being truthful and frank has nothing to do, as far as [it's] concerned, with a doctor's medical opinion, whether that doctor is a defense doctor or plaintiff[s'] doctor." For the same reasons, the court also denied the use of "symptom magnification" in both Dr. Glass and Dr. Trager's testimonies. The court explained that it would be prejudicial "to attempt to suggest to this jury that this highly educated individual... 17

18 has a better ability than they do to evaluate who's believable and who's not believable." Generally, when reviewing the admission or exclusion of evidence, we afford "[c]onsiderable latitude" to a trial judge's determination, "examining the decision for abuse of discretion." State v. Kuropchak, 221 N.J. 368, 385 (2015) (alteration in original) (first quoting State v. Feaster, 156 N.J. 1, 82 (1998), cert. denied, 532 U.S. 932, 121 S. Ct. 1380, 149 L. Ed. 2d 306 (2001); then quoting Hisenaj v. Kuehner, 194 N.J. 6, 12 (2008)); see also State v. Jenewicz, 193 N.J. 440, 456 (2008) (stating "the abuse-of-discretion standard" is applied "to a trial court's evidentiary rulings under Rule 702"). Importantly, "[u]nder th[is] standard, an appellate court should not substitute its own judgment for that of the trial court, unless 'the trial court's ruling was so wide of the mark that a manifest denial of justice resulted.'" Kuropchak, supra, 221 N.J. at (quoting State v. Marrero, 148 N.J. 469, 484 (1997)); see also Brenman v. Demello, 191 N.J. 18, 31 (2007). Applying this standard, we conclude the trial court did not abuse its discretion by barring the cited opinions. Plaintiffs' arguments to the contrary are without any merit. First, contrary to plaintiffs' assertions, the trial court did not hold that malingering was or was not a medical term. In fact, the court 18

19 acknowledged that it did not know if it was, but confirmed with plaintiffs' counsel that "malingering implies someone is falsifying their statements to a physician" and prohibited the doctors from using the term because they were "not here to evaluate credibility." Second, the court's ruling was consistent with the Rules of Evidence governing expert testimony, especially where, as here, there was no evidence that the experts' reports referred to opinions on whether Leila was or was not feigning or exaggerating any of her injuries or symptoms. See N.J.R.E. 702; see also Anderson v. A.J. Friedman Supply Co., Inc., 416 N.J. Super. 46, 72 (App. Div. 2010) ("Trial judges have discretion to preclude an expert from testifying to opinions not contained in his or her report or in any other discovery material."), certif. denied, 205 N.J. 518 (2011). "Because credibility is uniquely within the province of the jury and within its capacity to judge, expert testimony as to the credibility of other witnesses or parties is not permitted." Biunno, Current New Jersey Rules of Evidence, comment 1 to N.J.R.E. 702 (2016) (emphasis in original). Next, plaintiffs argue that the trial court erred by preventing their counsel from making "fair comment" or allowing him to argue to the jury that it draw a "negative inference" based upon defendant's failure to call one of his experts, Dr. Fernando 19

20 Delasotta, as a witness. The trial court refused to allow such comments by plaintiffs' counsel even though it barred, in limine, any evidence that Dr. Delasotta examined Leila, found her to have suffered from a permanent injury, and told Leila about her condition. We conclude plaintiffs' argument as to this point is without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). Suffice it to say that, contrary to our rules, plaintiffs failed to cite to any case law or other legal authorities to support their contentions. See R. 2:6-2(a)(6) (requiring that legal argument be supported with reference to legal authority). In any event, allowing a jury to take an adverse inference is "rarely... warranted when the missing witness is not a fact witness, but an expert." Washington v. Perez, 219 N.J. 338, 364 (2014). 7 We turn to plaintiffs' argument that the trial court erred by preventing Dr. Herndon from testifying about his reliance on 7 We note that plaintiffs could have sought discovery of Dr. Delasotta since he had examined Leila, and could have called Dr. Delasotta as their own witness where they could have examined him about the findings of his report. See Rincon v. Delapaz, 279 N.J. Super. 682, 686 (App. Div. 1995); see also Pressler & Verniero, Current N.J. Court Rules, comment on R. 4:10-2 (2017). Moreover, the trial court gave plaintiffs an opportunity to brief the issue of whether their experts would be permitted to refer to Dr. Delasotta's report, but they did not take advantage of that opportunity. 20

21 the MRI results. Plaintiffs acknowledges that the court allowed Dr. Herndon to testify as to his general reliance on the MRI, but contend on appeal that the court erred by preventing the doctor from testifying as to his specific reliance upon Dr. Dauito's MRI report and his finding that the MRI demonstrated there was a herniated disc. Plaintiffs further aver that the court's reliance on Brun v. Cardoso, 390 N.J. Super. 409 (App. Div. 2006), was misplaced since plaintiffs were not requesting that "the report of the non-testifying doctor be admitted but only that [p]laintiff's chiropractor relied on it and that the report was consistent with his diagnosis." (emphasis added). At trial, plaintiffs attempted to elicit testimony from Dr. Herndon concerning Dr. Dauito's report before the radiologist testified. More specifically, plaintiffs' counsel inquired whether Dr. Herndon could testify that a particular slide from all of the MRIs best exemplified Leila's herniated disc. The trial court replied that it would listen to Herndon's testimony to see if he was properly qualified to read an MRI as discussed in Agha v. Feiner, 198 N.J. 50 (2009), since "it's a complex medical diagnosis and you have to be trained in interpreting MRI studies to testify about the MRI study." Dr. Herndon testified that he was not specially trained to read MRIs and with that, the court 21

22 refused to allow testimony from the witness about the MRI, other than the fact that he relied upon the MRI report. We review the trial court's evidentiary rulings for abuse of discretion. Hisenaj, supra, 194 N.J. at 12. "[T]he latitude initially afforded to the trial court in making a decision on the admissibility of evidence -- one that is entrusted to the exercise of sound discretion -- requires that appellate review, in equal measures, generously sustain that decision, provided it is supported by credible evidence in the record." Estate of Hanges v. Metro. Prop. & Cas. Ins. Co., 202 N.J. 369, 384 (2010). We conclude that the court did not abuse its discretion by preventing the untrained chiropractor from testifying as to the contents of the radiologist's report or that it was consistent with his findings. First, there was no dispute factually that Leila suffered a herniated disc, and Dr. Dauito ultimately testified to his findings. As a result, plaintiffs suffered no prejudice because of the court's ruling. Second, "[o]nly a physician who was qualified by education or training to interpret the films and, in fact, did so, could have brought the [MRI] conclusion to the jury as a matter of substance." Agha, supra, 198 N.J. at 67. While an unqualified, testifying expert may rely on a non-testifying expert's report, if the information is of a type reasonably relied on by experts 22

23 in the field, an attorney may not ask a testifying expert if his or her opinion accords with the conclusions of a the non-testifying qualified expert as a means to have the jury consider the substance of the non-testifying expert's report. James v. Ruiz, 440 N.J. Super. 45, (App. Div. 2015). The trial court, therefore, correctly limited Dr. Herndon's testimony to the fact that he relied upon the report. Plaintiffs next argue that the trial "court erred by failing to give an aggravation charge" with respect to Leila's cervical spine injury. Plaintiffs rely upon Dr. Glass's testimony that the injury "was either caused by or rendered symptomatic by the accident" because Leila was asymptomatic before the collision, according to her reports. We find plaintiffs' argument as to this point to also be without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). Leila never testified, nor did any expert state or other evidence establish, that she suffered from any "preexisting injury" that was "aggravated" as contemplated by the jury charge requested by plaintiffs. See Model Jury Charge (Civil), 8.11F, "Aggravation of the Preexisting Disability" (2009); see also Edwards v. Walsh, 397 N.J. Super. 567, 572 (App. Div. 2007). Dr. Glass's passing comment was, at best, speculation. 23

24 Under these circumstances, there was no reason for the court to grant the request. Plaintiffs' next challenge is to the court's verdict sheet. According to plaintiffs, the court committed reversible error by not "itemizing injuries on the jury verdict sheet." We disagree. During the court's charge to the jury it explained that plaintiffs needed to prove that Leila sustained at least one permanent injury as a result of the accident. The court explained: The threshold [] under our law is proof that the plaintiff suffered a permanent injury.... In this case to recover damages for pain and suffering, disability, impairment and loss of enjoyment of life the plaintiff must prove that she suffered a permanent injury as a proximate result of the motor vehicle accident of August 24, Miss Karpuzi alleges that she suffered a loss of use of her back and/or her neck. In order to prevail Miss Karpuzi must prove that she sustained a loss of use of her back and/or neck and that the injury to her back and/or neck is permanent.... Now if you conclude that the plaintiff has crossed the verbal threshold by proving a permanent injury the plaintiff is entitled to compensation for fair and reasonable money damages for the full extent of the harm caused, no more, no less. In other words, you might find that there was a permanent injury to one area of the spine but not to the other. If she proves that she suffered a permanent injury to one or the other area she s entitled to be compensated for both. Okay. Now a plaintiff who has sustained a permanent injury is entitled to fair and reasonable compensation for those injuries as well as any temporary injuries resulting in disability to or impairment of her faculties, health or ability to 24

25 participate in activities as a proximate result of the defendant s negligence. [(emphasis added).] The court also discussed its jury verdict sheet with the jury before sending it to begin deliberations. Question two on the verdict sheet asked, "Has the plaintiff... proven... that the accident... was a proximate cause of her injuries and that the injuries are permanent?" (emphasis added). In its explanation of the verdict sheet, the court repeated the question verbatim, including the need for plaintiffs to prove her "injuries" were caused by the accident and are permanent. The jury later returned its verdict, answering "no" to question two. Plaintiffs argue that "case law dictates that there is a preference that damages should be itemized on the [j]ury [v]erdict [s]heet." Plaintiffs again failed to provide us with any authorities. R. 2:6-2(a)(6). We, therefore, have no cause to disturb the result in this case based on this contention. Nevertheless, in light of our remand for a new trial we add the following brief comments about the verdict sheet in this case. The trial court's charge to the jury stated that plaintiffs had to prove that one of the injuries Leila sustained in the accident, if any, was a permanent injury in order for plaintiffs to recover damages for both of her injuries. The verdict sheet, however, asked the jury to determine whether plaintiffs proved 25

26 Leila sustained permanent "injuries." The question, therefore, did not follow the court's charge or comport with the law. The purpose of a verdict sheet, or jury interrogatories, is "to require the jury to specifically consider the essential issues of the case, to clarify the court's charge to the jury, and to clarify the meaning of the verdict and permit error to be localized." Ponzo v. Pelle, 166 N.J. 481, 490 (2001) (quoting Wenner v. McEldowney & Co., 102 N.J. Super. 13, 19 (App. Div.), certif. denied, 52 N.J. 493 (1968)). They should be tailored to avoid confusion on the part of the jury. Id. at 492. "The framing of [jury] questions in clear and understandable language cannot be overemphasized." Id. at 491 (alteration in original) (quoting Benson v. Brown, 276 N.J. Super. 553, 565 (App. Div. 1994)). Errors in interrogatories given to the jury are not grounds for reversal unless they were "misleading, confusing, or ambiguous." Id. at 490 (quoting Sons of Thunder v. Borden, Inc., 148 N.J. 396, 418 (1997)). "[I]n reviewing an interrogatory for reversible error, we... consider it in the context of the charge as a whole [because a]n accurate and thorough jury charge often can cure the potential for confusion that may be present in an interrogatory." Id. at 491. Considering the court's charge here, we conclude that it was accurate and thorough enough to have prevented any confusion caused 26

27 by the interrogatories' reference to "injuries" rather than plaintiff's obligation to prove that one of her injuries was permanent as explained in the court's charge. We do, however, caution all trial courts to be vigilant in their review of their verdict sheets so as to avoid any confusion being unnecessarily created by what is supposed to be an aid to the jury. 8 Because we reverse on other grounds, we need not address the remainder of plaintiffs' arguments. The order denying a new trial is reversed; the judgment is vacated, and the matter remanded for a new trial. We do not retain jurisdiction. 8 We would be remiss if also did not warn against the potential for confusion when a court employs the phrase "and/or" in its charge. See State v. Gonzalez, 444 N.J. Super. 62, (App. Div.) (The Supreme Court cited with approval "[t]he [Appellate Division's] criticism of the use of 'and/or' [in a jury charge, but] limit[ing it] to the circumstances in which it was used in th[at] case."), certif. denied, 226 N.J. 209 (2016). 27