NOT FOR PUBLICATION

The opinion of the court was delivered by FISHER, P.J.A.D.

Defendant Port Authority of New York and New Jersey and defendant Modern Facilities Services, Inc., appeal from a judgment based on a jury verdict in favor of plaintiff Soma Mandal, M.D., for injuries suffered as a result of her fall at Pavonia Station in Jersey City on March 18, 2007. Because, among other things, the trial judge erroneously instructed the jury that the Port Authority was burdened by the heightened standard of care imposed on common carriers, we reverse and remand for a new trial.

Plaintiff commenced this action against the Port Authority, Modern Facilities Services and Timberland Company.1 At the conclusion of a twelve-day trial, the jury reached a verdict for plaintiff, apportioning seventy-five percent of the liability to the Port Authority and twenty-five percent to Modern, and awarding plaintiff $7,231,397, which included $106,397 for past and future household expenses incurred as the result of her injury, $4,125,000 for past and future lost earnings, and $3,000,000 for pain and suffering. Defendants unsuccessfully moved for judgment notwithstanding the verdict, remittitur and a new trial, and judgment was entered in favor of plaintiff in the amount of $7,735,002.24, which included $503,605.24 in prejudgment interest.

The Port Authority and Modern appeal, and plaintiff cross-appeals. Defendants' arguments require our consideration of: (1) whether the Port Authority should have been held to the traditional standard of "utmost caution" for common carriers when plaintiff's fall occurred in a station and not while getting on or off or riding on a train, and the consequences of that determination; (2) whether plaintiff should have been permitted to read portions of a deposition of a witness who resided in Texas regarding the circumstances of his fall in Pavonia Station eighteen hours earlier than plaintiff's fall; (3) whether the judge erred in permitting plaintiff's treating physician to provide an opinion about permanency and whether the judge also erred in limiting cross-examination of that witness; (4) whether the judge erred in instructing the jury that it could draw an adverse inference from the failures of the Port Authority and Modern to provide records or videotapes; (5) whether the Port Authority may be compelled to pay prejudgment interest; and (6) whether plaintiff's counsel made improper statements during his summation.2

We find plaintiff's cross-appeal — in which she argues that N.J.R.E. 407 evidence of defendants' post-accident actions should have been permitted, that her attorney should have been permitted to cross-examine an investigator about who had retained him, apparently for the sole purpose of revealing that the investigator was hired by an insurance company, and that her claim of punitive damages should not have been dismissed — to have insufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). We, thus, turn to the issues presented by defendants.

I

The Port Authority first argues the trial judge erred in finding — and instructing the jury — that the Port Authority was a "common carrier" and owed those who used Pavonia Station a greater duty of care than other land occupiers. We agree that the utilization of the common-carrier standard of care was erroneous in these circumstances.

The trains that service Pavonia Station are operated by the Port Authority Trans-Hudson (PATH) rail system, a corporation wholly-owned and operated by the Port Authority. Pavonia Station is also owned and operated by the Port Authority, which contracted with Modern to provide cleaning services at the station. The evidence adduced at trial revealed that, at or around 7:00 a.m. on Sunday, March 18, 2007, plaintiff entered Pavonia Station and began walking down its North Corridor to board a train bound for New York City. Plaintiff, a physician, was commuting to New York University's Medical Center, where she was scheduled to begin work ninety minutes later. She only saw one other passenger walking in the North Corridor.

The North Corridor is a sloping ramp that leads downward to the boarding platforms. Its floor is tiled, and handrails are affixed to the walls. In wet conditions, Modern placed black mats3 over the part of the floor beneath the handrails. When plaintiff entered the corridor, mats were situated under the handrail, although the snow and rain had ended the day before.

In traversing the North Corridor, plaintiff walked on the mats. She did not observe any signs warning of a slippery condition, and she did not use the handrail. Roughly "halfway down" the corridor, plaintiff's right foot slipped "on the mat," and she fell. She could not recall on which part of her body she had fallen, but remembered "lying face down ... against the tiles." And, although she did not know what caused the fall, plaintiff recalled having "walked on a slippery mat."

There is no doubt that plaintiff's fall did not occur while she was boarding a train or even while on the platform waiting to board a train. Plaintiff fell in an underground corridor on her way to the train platform. As a result, the judge erred in holding the Port Authority to the common-carrier standard. That is, the Port Authority owed plaintiff a standard of care commensurate with the nature of the occurrence. If plaintiff was injured while riding a train or while embarking or disembarking from a train, the common-carrier standard of care might arguably apply. But, as here, when patrons are in a train station on their way to or from a platform, the Port Authority's role is that of an occupier of land and the less onerous standard of care applicable to that undertaking governed the Port Authority's liability here.

For example, in Lieberman v. Port Authority of New York & New Jersey, 132 N.J. 76, 85 (1993), the Court considered whether a complaint stated legally cognizable causes of action against the Port Authority where plaintiff alleged she was assaulted and robbed by a homeless man as she exited a bakery located in the Port Authority Bus Terminal in New York City. Id. at 79-80. Although the Court determined that the plaintiff could not sue the Port Authority for failing to provide police protection at the bus terminal, it construed the complaint as stating a cause of action for injuries caused by foreseeable acts of third persons in the Port Authority's capacity as a landlord required to provide reasonably safe premises for invitees. Id. at 90-91, 93. In accord with past precedent, the Court did not impose the greater duty reserved for common carriers in that instance. See Buchner v. Erie R.R. Co., 17 N.J. 283, 285-86 (1955) (holding the defendant-railroad to the duty of a proprietor of premises once plaintiff had debarked from defendant's train when he tripped while walking through a darkened area a few feet away from the train station's property line); Bohn v. Hudson & Manhattan R.R. Co., 16 N.J. 180, 189-90 (1953) (imposing only the duty owed by an occupier of land when the defendant-railroad's patron slipped and fell on stairs in its train station); Seckler v. Pennsylvania R.R. Co., 113 N.J.L. 299, 300-01 (E. & A. 1934) (observing the "distinction, long recognized by the courts of this state, between the degree of care required of a common carrier, with respect to the safe carriage of its passengers, and that required in the construction and maintenance of its station and the approaches thereto"); Karmazin v. Pennsylvania R.R. Co., 82 N.J.Super. 123, 130-31 (App. Div. 1964) (holding the defendant-railroad to the common carrier's enhanced duty of care because the plaintiff-passenger slipped and fell on ice on a station platform while disembarking from a railcar); Monaco v. Harran's Transp. Co., 632 N.Y.S.2d 814, 814 (App. Div. 1995) (stating that "[i]t is well settled under New Jersey law that a duty of ordinary care is imposed on a common carrier with regard to sidewalks, streets, loading platforms, or other places of ingress and egress to and from the carrier").

In short, the Port Authority's duty to a patron extends throughout the station and, indeed, even beyond its perimeter, see Buchner, supra, 17 N.J. at 285-86, but any change in the level of care depends on the location of the incident. Accordingly, while on board a train, or while embarking or debarking, the high degree of care owed by a common carrier might apply, but the lesser standard applicable to occupiers of land otherwise applies. Because plaintiff was injured while walking through a corridor and not while riding in or embarking or debarking from a train, the trial judge erred when he instructed the jury that the Port Authority owed plaintiff the duty to "use the utmost caution to protect their passengers" once plaintiff entered Pavonia Station.4

Plaintiff argues that, even if incorrect, this jury instruction was not capable of producing an unjust result because "the jury[] [determined] the Port Authority was 75% responsible for causing [p]laintiff's personal injuries." We disagree. Where there is a heightened standard of care, as opposed to a heightened standard of proof, the application of the lower standard does not mean the jury would have reached the same conclusion. The fact that the jury found the Port Authority liable and largely responsible for the damages does not suggest it would have reached the same verdict if it had been told to apply a less rigorous standard of care and had it not been misinformed that the Port Authority owed plaintiff "the utmost caution."

The trial judge's instructions must also be considered from the standpoint of New York law. The Port Authority was created in 1921 by a compact signed by New York and New Jersey, and is a joint and common agency of both states. Lieberman, supra, 132 N.J. at 82. "The Port Authority is not the agency of a single state but rather a public corporate instrumentality of New Jersey and New York." Bunk v. Port Auth., 144 N.J. 176, 184 (1996). As a result, "neither creator state may unilaterally impose additional duties, powers, or responsibility upon the Authority," and "principles of parallelism" control the disposition of issues affecting the Port Authority. Id. at 184-85. As a result, New York law is "influential precedent because of the bi-state nature of the Port Authority." Lieberman, supra, 132 N.J. at 84.

Interestingly, in Bethel v. New York City Transit Authority, 703 N.E.2d 1214, 1218 (N.Y. 1998), New York's highest court "abandoned the rule that common carriers owe a `duty of highest care,' and decided to `realign the standard of care required of common carriers with the traditional, basic negligence standard of reasonable care under the circumstances.'" Boyd v. Manhattan & Bronx Surface Transit Operating Auth., 876 N.E.2d 1197, 1199 (N.Y. 2007). The Court reasoned that the historical justifications for imposing a high duty of care on common carriers had no modern relevance, as the "primitive safety features" that caused substantial railroad accident injuries no longer exist. Bethel, supra, 703 N.E.2d at 1216. Here, we need not consider what standard would apply if the injury occurred on a train, a circumstance that would create a conflict between New Jersey and New York law, since only the former would presently impose the heightened standard of care on the Port Authority. We merely observe that New Jersey and New York law are in accord with the standard of care to be applied to the Port Authority when an injury occurs while the plaintiff is neither riding on, nor getting on or off, a train. Before Bethel and since the nineteenth century, New York had applied "[a] lesser [than the common-carrier] standard of care ... with respect to approaches, station platforms, halls and stairways, under which the carrier is held `to exercise ordinary care, in view of the dangers attending its use, to make it reasonably adequate for the purpose to which it was devoted.'" Lewis v. Metro. Transp. Auth., 472 N.Y.S.2d 368, 370 (App. Div.) (quoting Lafflin v. Buffalo & Southwestern R.R. Co., 12 N.E. 599, 600-01 (N.Y. 1887)), aff'd o.b., 474 N.E.2d 612 (N.Y. 1984). As a result, both New Jersey and New York are in accord as to the standard of care to be imposed on the Port Authority with regard to its walkways. The trial judge erred in imposing a common-carrier standard of care on the Port Authority that was contrary to both New Jersey and New York law.

As a general matter, we will not reverse if an erroneous jury instruction was "incapable of producing an unjust result or prejudicing substantial rights." Fisch v. Bellshot, 135 N.J. 374, 392 (1994). In considering this question, we examine the charge as a whole, giving due consideration to surrounding language to determine its true effect. Viscik v. Fowler Equip. Co., 173 N.J. 1, 18 (2002). Here, it is true that the trial judge informed the jury that common carriers have a duty of "reasonable care in the maintenance of station buildings ... so that they are reasonably safe for passengers to use them," but that statement was preceded by the "utmost care" language quoted earlier and followed, as well, by the judge's statement to the jury that the Port Authority was held to a different standard than Modern. Indeed, the judge specifically told the jury that, in cases involving a "slippery condition" from the effect of weather, the Port Authority must be held to a "high degree of care." This erroneous instruction struck at the heart of the matter and was clearly capable of producing an unjust result.

This error not only requires a new trial as to the liability of the Port Authority but of Modern as well, even though the instructions regarding Modern's standard of care were accurate, because the liability of the Port Authority and Modern cannot be apprised separately. See, e.g., Conklin v. Hannoch Weisman, 145 N.J. 395, 410 (1996). The jury was required to allocate each defendant's degree of responsibility for plaintiff's injuries. Here, if the jury had been charged that the Port Authority had the same duty of care as Modern, instead of the higher duty, then it might have allocated liability to reflect those equivalent duties. Instead, the Port Authority, which the jury was told had a higher duty, was found to be the most negligent. Consequently, the jury may have found that the Port Authority was more culpable simply because, in light of the charge, it was saddled with a duty to protect plaintiff from foreseeable injury to a greater extent than Modern. Under the higher duty, the proximate cause effects of the Port Authority's negligence may have been superior in the jury's mind. Therefore, we conclude the charge was prejudicial and a retrial on liability and the allocation of liability is necessary to remedy the error. See Mavrikidis v. Petullo, 153 N.J. 117, 148 (1998) (remanding for "reallocation trial" to determine appropriate percentage of fault as between the defendants); Riley v. Keenan, 406 N.J.Super. 281, 301 (App. Div.) (vacating judgment against one defendant and remanding "for retrial of liability allocation as between the remaining defendants"), certif. denied, 200 N.J. 207 (2009).

A more difficult question concerns whether, as in DeRobertis v. Randazzo, 94 N.J. 144, 160 (1983), "the erroneous jury instruction on liability contaminated the entire verdict and that a new trial is necessary on both liability and damages." In light of other errors, as well as the exceedingly high verdict, we would have no confidence in concluding that the damages award was not impacted by the erroneous standard of care charged by the judge. Accordingly, we reverse and remand for a new trial on all issues.

II

Both defendants argue the trial judge erred by allowing plaintiff to read the deposition testimony of Gregory Baumer, an out-of-state witness. To put this argument in its proper setting, we first examine at some length evidence relating to events occurring prior to plaintiff's fall. We then consider the admissibility and relevance of Baumer's testimony about his fall eighteen hours before plaintiff's,5 as well as the question of whether our rules permit the use of the deposition without a finding that Baumer was actually unavailable.

A

Pursuant to its contract with the Port Authority, Modern's employees had a duty to report hazardous or slippery conditions to a supervisor, who would then decide whether to remediate the condition or report it to the Port Authority. In slippery conditions, the Port Authority directed Modern to cover the floor with mats, change the mats if needed, and put out signs warning about the slippery condition. Modern's standard practice was to set up warning signs if it was in the process of changing or drying the mats. Modern knew that the North Corridor could become slippery during inclement weather and that only the Port Authority had the power to close the North Corridor at such times.

At the time of plaintiff's fall, Modern had three shifts to "maintain" and "police" the station: shifts A, B and C.6 In "maintaining" the station, an employee would clean the station by mopping and sweeping; to "police" it, the employee would only have to look out for hazardous conditions. On the weekdays, each shift would have a duty to "maintain" the station. On the weekends, Modern assigned the C shift to "maintain" and shifts A and B to "police" the station. Thus, employees on shifts A and B would work two hours to look out for hazardous conditions, but would "maintain" the station for most of their shift. Each employee was required to submit daily reports detailing "what had taken place on that particular shift." The reports for March 17 and 18, 2007, were allegedly destroyed after Modern's computers failed.

In the days leading up to plaintiff's fall, the weather was wet and snowy in Jersey City. On March 15, 2007, 0.24 inches of precipitation fell. On March 16, 2007, 5.9 inches of snow fell, and on Saturday, March 17, 2007, it snowed an additional 1.43 inches.

On March 17, 2007, at 11:09 a.m., Madeline Ramirez, a Port Authority communications agent, received a report that the North Corridor was slippery. She told the PATH Train Master, and PATH sanitation supervisor Peter Fenton. Although she personally did not provide this information to Modern, Ramirez testified that Modern would have been notified by somebody working for the Port Authority in the normal course of business of any slippery conditions at the station. About two hours later, at 12:54 p.m., Ramirez received word that a passenger, Gregory Baumer, had fallen in the North Corridor.

Baumer testified at his deposition — in portions read to the jury — that, on March 17, 2007, the weather conditions outside were "wet and slippery." Despite the weather, Baumer did not observe warning signs or maintenance staff in the North Corridor. He walked down the North Corridor on the mats at a "relaxed" and "leisurely pace," wearing "dress shoes" with a "rubber sole." Halfway down the mat, he slipped and fell backwards. He could not recall whether, at the time of the fall, one or both of his feet had been on the mat, but he concluded that he slipped on the mat. There was water on the mat where he slipped: a "sheen," but "[n]ot a puddle." He also testified his clothes were damp after falling, and he saw about ten to fifteen people around him slip and fall as they walked on the mat, leading him to conclude that he slipped on the mat. In addition, he speculated that the mat was slippery from the mixture of "oil and water" since "oil is something that you get from out walking on the asphalt and the street."

Officer Louis Herrera responded to Baumer's slip-and-fall at 1:00 p.m. Baumer told Herrera that a "[s]lippery mat" caused his fall, and Herrera wrote in his incident report that the North Corridor was "slippery," but he did not believe it necessary to recommend closing the corridor. Nonetheless, the Port Authority closed the corridor at 1:20 p.m. John Venditolli, the PATH operations examiner, testified that he closed the North Corridor because it was wet and slippery. He closed the corridor by putting up yellow or red caution tape, and told the PATH Train Master to notify Modern. Although he saw Modern employees in the corridor, he did not know whether Modern had actually cleaned the mats.

At 1:46 p.m., sanitation supervisor Fenton reopened the North Corridor "when it was safe." While it was closed, he saw Modern mopping, and "vaguely recall[ed Modern] swapping out the matting with dry matting," and then taking down the caution tape. Seven minutes later, at 1:53 p.m., the Train Master closed the North Corridor, reopening it at 11:09 p.m.

The following morning, Assistant Train Master Timothy DeLurski began his shift and was told by a train master working the prior shift that the North Corridor was still closed because of a "slippery condition." DeLurksi was therefore not aware that the corridor was actually open, and was also unaware Baumer had fallen the day before.

At 7:12 a.m., Ramirez, who was also working on the morning of March 18, 2007, was notified that plaintiff fell in the North Corridor.

B

In a pretrial decision, the motion judge explained that Baumer's testimony was admissible, pursuant to Wymbs v. Twp. of Wayne, 163 N.J. 523 (2000), "to show the dangerousness and hazardous condition of the north corridor in rainy or snowy conditions, the continuance of such conditions, their notoriety and whether [they were] known to the defendant[s]," because the circumstances of the two falls were sufficiently similar. The motion judge noted that the two falls were similar in that they occurred at approximately the same location, when the weather conditions were nearly identical, during the same Modern work shift, and appeared to involve the same mats.

In Wymbs, the plaintiff "sustained severe head injuries" as a passenger in a car accident, when the driver lost control on a curve in the roadway, and hit a utility pole. Id. at 529. The plaintiff sued the municipality, claiming the curve was a "`dangerous condition' on the property of a public entity," and sought to prove this through evidence of prior car accidents at the same curve. Id. at 531-32. Although the trial judge found the evidence to be admissible, it restricted its use "to the issue of notice of a dangerous condition." Id. at 531. On appeal, the Court held

This two-part admissibility standard "ensures that there is a `logical connection' between the prior accidents and the `fact in issue.'" Id. at 537 (quoting Green v. N.J. Mfrs. Ins. Co., 160 N.J. 480, 492 (1999)). In determining whether this "logical connection" exists, trial judges have broad discretion to exclude evidence pursuant to N.J.R.E. 403. Applying this deferential standard, the Court held that the trial court did not abuse its discretion in limiting the use of the prior-incident evidence to the notice issue. Wymbs, supra, 163 N.J. at 537. See also Schaefer v. Cedar Fair, L.P., 348 N.J.Super. 223, 234-39 (App. Div. 2002).

Both defendants argue the trial judge abused his discretion in admitting Baumer's deposition testimony, claiming Baumer's fall was not sufficiently similar. Unlike Baumer, plaintiff recalled walking with both feet on the mat, but she could not remember whether the mat was wet, and could not articulate with any certainty what caused her to fall. It was also raining or snowing on the day of Baumer's fall, and the incidents were separated by evidence that the Port Authority closed the North Corridor for several hours for Modern to clean up after Baumer's fall but not on the day plaintiff fell.

Baumer's testimony established, if credited, that roughly eighteen hours before plaintiff's fall, he too slipped and fell on the mats, and in the same location in the North Corridor as plaintiff. Although it stopped raining and snowing after Baumer's fall and before plaintiff's, the evidence established that outside conditions were still wet and wintry. Plaintiff could not state whether these wet conditions had contributed to her fall, but she asserted that she slipped and fell on the mat halfway down the North Corridor, which was what Baumer concluded happened to him. Although the Port Authority closed the North Corridor following Baumer's fall, the jury was free to accept or reject evidence that Modern cleaned up the North Corridor during the closure, and accept or reject evidence that the mats remained slippery at the time of plaintiff's fall.

The trial judge did not abuse his discretion in determining that Baumer's testimony was relevant to prove the condition of the property and defendants' notice of it. Its relevance to plaintiff's fall depends on how and to what extent Baumer's version was credited by the jury.

C

Modern argues the judge erred by allowing plaintiff to read Baumer's deposition testimony to the jury pursuant to Rule 4:16-1, claiming Baumer was not unavailable to testify. Although Baumer relocated to Texas prior to trial, Modern claims plaintiff did nothing to determine whether Baumer would or could return to New Jersey.

Rule 4:16-1(c) provides that the deposition of a witness, who is not necessarily a party, "may be used by any party for any purpose, against any other party who was present or represented at the taking of the deposition" — all of which conditions were satisfied here — provided:

It is undisputed that, at the time of trial, Baumer was "out of this state" within the meaning of Rule 4:16-1(c). Contrary to Modern's assertions, Baumer's location outside New Jersey was sufficient to trigger plaintiff's right to use his deposition so long as plaintiff had not procured his absence. See Avis Rent-A-Car, Inc. v. Cooper, 273 N.J.Super. 198, 202 (App. Div. 1994).7 Plaintiff was not required to show that Baumer was unable or unwilling to return to New Jersey to testify at trial. The trial judge properly allowed plaintiff to read excerpts of Baumer's deposition to the jury under Rule 4:16-1(c).

D

Modern next argues that the trial judge erred by allowing counsel to read excerpts of Baumer's technical description of the mats. Modern claims Baumer was a lay witness who was not qualified as an expert to provide the following testimony:

Neither Modern nor the Port Authority lodged an objection to the reading of this testimony at trial.

As a general matter, "lay opinion testimony may not cross into the realm of expert testimony." Biunno, Weissbard & Zegas, Current N.J. Rules of Evidence, comment 4 on N.J.R.E. 701 (2012). See also Alpine Country Club v. Borough of Demarest, 354 N.J.Super. 387, 394 (App. Div. 2002). Our rules restrict the opinions that a lay witness may offer to those "rationally based on the perception of the witness" and to those that will also "assist [the jury] in understanding the witness' testimony or in determining a fact in issue." N.J.R.E. 701. Testimony on a subject requiring "scientific, technical, or other specialized knowledge" mandates the use of expert opinion. N.J.R.E. 702. Nevertheless, if the subject of the lay opinion testimony does not demand complex scientific or technical knowledge, or if the lay witness possessed qualifications to have testified as an expert, an error in allowing lay opinion testimony to cross into the realm of expert testimony may be deemed harmless. Biunno, et al., supra, comment 4 on N.J.R.E. 701 (citing State v. Kittrell, 279 N.J.Super. 225, 235-36 (App. Div. 1995)). See also State v. Labrutto, 114 N.J. 187, 199-202 (1989) (concluding that non-expert police officers could offer opinion testimony on a point of impact of a collision); Myrlak v. Port Auth. of N.Y & N.J., 302 N.J.Super. 1, 9-10 (App. Div. 1997) (in action alleging a defective chair, manager of chair manufacturer should have been allowed to give lay opinion testimony about how chairs were manufactured in light of his familiarity with the manufacturing process), rev'd in part on other grounds, 157 N.J. 84 (1999); Navarro v. George Koch & Sons, Inc., 211 N.J.Super. 558, 582-83 (App. Div.) (in a products liability action, noting that a non-expert employee knowledgeable about the product could offer lay opinion testimony about the product's design and its intended uses), certif. denied, 107 N.J. 48 (1986).

Here, Baumer's testimony that the mat was "Terminal Plastic Rubber," and therefore had "extruding" and "continuous grooves," was rationally based on his perception and, arguably, may have assisted the jury in understanding how or why he may have slipped on the mat. On the other hand, the testimony could have misled or confused the jury. If objected to at the retrial, Baumer's lay opinion should be excluded.

III

Defendants argue the trial judge erred by permitting Dr. Ramesh Gidumal, an orthopaedic surgeon, to testify that plaintiff sustained permanent injuries and as to her likely need for surgery in the future. This error, they say, was compounded when plaintiff was allowed to show the jury the videotaped testimony of Dr. Gidumal, while allowing a redaction of those portions where he was cross-examined with records he did not consider in reaching his expert opinions. Defendants contend they were entitled to impeach Dr. Gidumal with these records by showing, in essence, that his opinion was uninformed without this information. Although we appreciate defendants' criticism of plaintiff's inconsistency in the offering of Dr. Gidumal's testimony — plaintiff first, at the de bene esse deposition, offered him only as a treating physician, then as an expert witness, and ultimately, in the judge's words, a "super fact witness" — we are required to consider whether what transpired before the jury prejudiced defendants.

We first recognize there was no impediment to Dr. Gidumal's rendering opinions to explain how or why he treated plaintiff in a particular manner. See Stigliano v. Connaught Laboratories, Inc., 140 N.J. 305 (1995); Carchidi v. Iavicoli, 412 N.J.Super. 374, 381 (App. Div. 2010). Because the cause of a patient's illness is a part of diagnosis and treatment, a treating physician may testify about the cause of the patient's condition. See Stigliano, supra, 140 N.J. at 314. As a result, as the Court in Stigliano recognized, the characterization of a treating physician's testimony as "`fact' or `opinion' creates an artificial distinction." Ibid. For physicians to properly treat their patients, they must determine causation. When they testify about their diagnoses and courses of treatment, they provide factual information "albeit in the form of opinion." Ibid. As a result, Dr. Gidumal was properly permitted to testify about the nature of plaintiff's injury and how he repaired the fracture, using "[eleven] screws, a washer, and some wires." It was also appropriate to allow Dr. Gidumal to testify about plaintiff's condition during examination after the surgery; indeed, it was undoubtedly helpful to the defense that Dr. Gidumal testified that, upon examination a year after the surgery, plaintiff's "bone had healed."

Dr. Gidumal later discovered that plaintiff's "radial nerve had been injured during the course of the operation." He diagnosed plaintiff with having "radial nerve palsy," which was not resolved during the time he treated her. The last time Dr. Gidumal treated plaintiff was April 2, 2008, when plaintiff "still had numbness at the base of her thumb." Dr. Gidumal stopped treating plaintiff because she needed to see a physical therapist, and "no longer needed an orthopedic surgeon." We find no error in the admission of this testimony despite the fact that it was stated in opinion form. See Stigliano, supra, 140 N.J. at 314.

It was when plaintiff offered Dr. Gidumal's opinion testimony about plaintiff's need for future surgery that the issue becomes more controversial. In this regard, because Dr. Gidumal was no longer treating plaintiff, the judge was required to reject plaintiff's argument that Dr. Gidumal was still a fact witness, or a fact witness entitled to convey facts in the form of an opinion, as Stigliano permits, or even, to use the judge's phrase, a "super fact witness." Dr. Gidumal provided an expert report8 regarding his opinions as to plaintiff's future and, in rendering testimony on those matters, he should have been treated as any other physician hired by a litigant for purposes of rendering expert testimony.

So understood, defendants were certainly entitled to present objections to Dr. Gidumal's opinions, which extended beyond his diagnosis and treatment of plaintiff, that are normally reserved for hired experts.9 In this regard, Dr. Gidumal opined that plaintiff "had a much higher rate of potentially developing arthritis of the elbow as a result of the injury," and if she did, she would require an elbow replacement. He also thought plaintiff would require surgery on the ulnar nerve, "if the scar tissue that was caused by the injury ... go[es] on to irritate her ulnar nerve," and that plaintiff would have permanent weakness in her elbow as a result of the surgery.

Defendants first argue that these opinions, which were unrelated to Dr. Gidumal's diagnosis and treatment of plaintiff, should have been excluded because they were not couched in terms of being within a degree of reasonable medical probability. Whether a treating physician or a hired expert, Dr. Gidumal's medical opinions were subject to this standard. Although it appears that the only time this standard was mentioned during the deposition was during cross-examination, it is possible that the parties understood that Dr. Gidumal was testifying within the parameters of reasonable medical probabilities. See, e.g., Vuocolo v. Diamond Shamrock Chems. Co., 240 N.J.Super. 289, 300 (App. Div.), certif. denied, 122 N.J. 333 (1990); Johnesee v. Stop & Shop Cos., Inc., 174 N.J.Super. 426, 431 (App. Div. 1980). When the matter is retried, we assume these arguments will be presented again and the judge will be in a better position to develop the dispute than we are in examining this cold record.

Defendants next contend the trial judge erroneously barred their attempt to impeach Dr. Gidumal by referring him to records he did not review in reaching his opinions. We agree. As we have observed, when Dr. Gidumal was permitted to testify as to those opinions that extended beyond his diagnosis and treatment of plaintiff, he was subject to being impeached in this manner just as any other hired expert. As a result of this erroneous ruling, the jury was not permitted to see and hear portions of the de bene esse videotaped deposition of Dr. Gidumal during which defendants endeavored to impeach him with records or notes of other physicians and therapists as to plaintiff's then present complaints. The jury did, however, see that portion of the videotaped deposition during which defense counsel cross-examined Dr. Gidumal with records from plaintiff's physical therapist, Duffy and Bracken, and the records of another physician, Dr. Daniel Silvershein. Defendants claim they were prejudicially barred from impeaching Gidumal's credibility further.

"[A]s a general rule, any fact which bears against the credibility of a witness is relevant to the issue being tried, and [a] party ... has a right to have that fact laid before the jury in order to aid them in determining what credit should be given to the person testifying." State v. Pontery, 19 N.J. 457, 472 (1955). Indeed, it is well-settled that "[e]xtensive cross-examination of experts is generally permitted, subject to reasonable limitations imposed by the trial court in its discretion." Nowacki v. Community Med. Ctr., 279 N.J.Super. 276, 290 (App. Div.), certif. denied, 141 N.J. 95 (1995); see also DaGraca v. Laing, 288 N.J.Super. 292, 302 (App. Div), certif. denied, 145 N.J. 372 (1996). Defendants were deprived of this right here not because the judge exercised his discretion for any of the reasons set forth in N.J.R.E. 611, but because he mistakenly determined that Dr. Gidumal was not an expert. Defendants were prejudiced by the judge's mistaken ruling.

IV

Defendants argue the trial judge erred by giving the following adverse inference charge based upon defendants' failure to preserve or produce certain evidence:

This instruction "permit[ted] the jury to infer that the evidence destroyed or concealed would not have been favorable to the spoliator." Jerista v. Murray, 185 N.J. 175, 202 (2005).

Such a charge should only be given if there has been a "threshold showing" that the other party recklessly caused the loss of evidence in spite of a duty to preserve it. Cockerline v. Menendez, 411 N.J.Super. 596, 621 (App. Div.), certif. denied, 201 N.J. 499 (2010). The existence of this duty is a legal issue to be decided by the court. Id. at 620.

The duty to preserve evidence "arises when there is pending or likely litigation between two parties, knowledge of this fact by the alleged spoliating party, evidence relevant to the litigation, and the foreseeability that the opposing party would be prejudiced by the destruction or disposal of this evidence." Ibid. If a judge decides to give the inference, the jury must be charged that it is free to accept or reject it. Id. at 621.

As a general matter, an incorrect jury charge "constitutes reversible error only if the jury could have come to a different result had it been correctly instructed." Viscik, supra, 173 N.J. at 18. A jury charge is "likely to mislead the jury if the evidence presented at trial does not support the instruction." Davis v. Barkaszi, 424 N.J.Super. 129, 148 (App. Div. 2012) (citing Dynasty, Inc. v. Princeton Ins. Co., 165 N.J. 1, 13-14 (2000)).

The challenged instruction related to the absence of the Port Authority's security video of the north corridor and Modern's inability to produce its maintenance records. We consider these matters separately.

A

The Port Authority argues that the judge improperly gave a spoliation instruction on the basis of its failure to produce the security video of the North Corridor at the time of plaintiff's fall, claiming it had no duty to preserve the video.

In Davis, supra, 424 N.J. Super. at 146, a dram shop case, we considered whether a trial judge erred by instructing the jury that it could draw an adverse inference from the defendant bar's failure to produce a surveillance video from the night that a patron caused an automobile accident after drinking. The bar, KC's Korner, declined to preserve the video; its employee, Walter Kurilew, determined that the footage showed no factual basis for a dram shop action. Id. at 147. Although KC's Korner "was aware that the accident occurred, [the victim] never put the bar on notice that he intended to file suit," and the video camera eventually, and "automatically," taped over the surveillance footage. Ibid.

The trial judge in Davis not only instructed the jury to draw an adverse inference from the non-production of the surveillance video, but also precluded a witness from testifying about what the video footage, which he had seen, disclosed "and how that affected his decision not to preserve the footage." Id. at 146. On appeal, we determined that the judge's charge was erroneous

In a different situation, we affirmed the use of such a charge. Cockerline, supra, 411 N.J. Super. at 621. In that case, a UPS tractor-trailer had been involved in a multi-vehicle accident. Id. at 605-07. The tractor-trailer was equipped with an "in-vehicle information system," or "IVIS," which recorded the tractor-trailer's speed and brake applications. Id. at 610. As a matter of protocol, if UPS determined that one of its vehicles was involved in a "serious" accident, the IVIS data was required to be retained. Ibid. On the other hand, if it determined that the accident was not serious, the IVIS data would be stored on a UPS computer for thirty days and then purged. Ibid.

The IVIS data for the tractor-trailer that was involved in the multi-vehicle accident was purged after thirty days. Ibid. Consequently, the trial judge gave a spoliation charge. Id. at 620. The defendants challenged the spoliation charge on appeal, and we affirmed, finding the plaintiff had made the "threshold showing" that UPS improperly destroyed the IVIS data. Id. at 621. The "plaintiff presented evidence that UPS allowed the IVIS data to be purged even though it usually looked at the data even in the case of a minor accident." Ibid. There was also evidence that the accident was in fact "serious," and proof that UPS was timely made aware of the plaintiff's claims. Ibid.

Here, Ramirez, a Port Authority supervising communications employee, testified that surveillance video is always being taken of Pavonia Station. To her knowledge, the Port Authority did not investigate whether one of the station's video cameras had actually recorded plaintiff's fall, and she was never directed to preserve the video, if it existed. In the normal course, the Port Authority's surveillance video footage was taped over with new footage after thirty days. Thus, in response to plaintiff's discovery request, the Port Authority was unable to produce any surveillance video footage of plaintiff's fall. At trial, only Modern, not plaintiff, requested an adverse inference charge based on the Port Authority's failure to produce the video.

The facts here fall somewhere between what occurred in Cockerline and what occurred in Davis. The evidence did not establish whether the Port Authority had notice of plaintiff's intent to file this lawsuit. However, there was evidence that could support an inference that the Port Authority, like UPS in Cockerline, may have deliberately failed to intervene to preserve the surveillance videotape so that this footage would ultimately be destroyed by its standard protocols. Ramirez testified that a supervisor can request that the tape be "pulled" and preserved. Although the evidence did not establish what kind of criteria a supervisor would consider in determining whether to preserve surveillance footage, there was clearly some kind of criteria that allowed the supervisor to do so, in his or her discretion. However, as UPS failed in Cockerline, the Port Authority failed to exercise this discretion to, in the very least, view the footage of the North Corridor on the day of plaintiff's fall — or even to determine whether the fall had been captured on video — to determine whether it should be preserved, as the defendant did in Davis. Through inaction, the Port Authority permitted any existing footage to be lost through the passage of time.

Although there was no proof that a surveillance camera had actually captured plaintiff's fall, there was evidence of the existence of surveillance cameras in the North Corridor. Indeed, the Port Authority did not argue in response to Modern's motion for the adverse inference charge that the footage had never existed. We therefore conclude the Port Authority should not benefit — or at least was in no position to complain — about the instruction because of its choice not to investigate, when it knew not only about the seriousness of plaintiff's fall, but also about Baumer's fall the day before. In these circumstances, we find no error in the judge's determination that the "threshold showing" had been made for the issuance of the charge in question.

B

Modern contends that the trial judge erred by giving an adverse inference charge with respect to its failure to produce shift reports that would have allegedly contained information about the conditions in the North Corridor at the time of plaintiff's fall.

Carlos Cruz, the Modern "contract manager for the PATH Port Authority account," explained that Modern's employees generated daily shift reports for the purpose of "highlight[ing] what had taken place on that particular shift." While these reports were submitted to the Port Authority, Modern also had a contractual duty to independently:

Modern was unable to produce the shift reports for March 17 and 18, 2007, in response to plaintiff's discovery request. Cruz testified this was probably the result of "several computer crashes" Modern had experienced "within a couple of months." Cruz, however, also testified that he "can't be 100 percent" certain that the crashes caused the loss of the reports.

Because Modern acknowledged its duty to maintain the shift reports for a period of time during which Modern was made aware of plaintiff's claim, Cockerline controls.

Modern contends that the spoliation charge was nevertheless improper because plaintiff (1) never sought to obtain the copies of the reports that Modern submitted to the Port Authority, and (2) never sought to depose those Modern employees who would have generated the missing shift reports. The availability of alternate sources of information bears upon whether the opposing party has been prejudiced by the spoliator. Robertet Flavors, Inc. v. Tri-Form Constr., Inc., 203 N.J. 252, 280-81 (2010). The fact that plaintiff failed to request copies of the reports from the Port Authority does not change the analysis. There was no evidence that the Port Authority had the reports or any duty to maintain them. It is also questionable why, if the Port Authority had the copies, Modern did not request the copies from the Port Authority when they were sought by plaintiff in discovery.

Furthermore, the fact that plaintiff did not seek to depose Modern's employees who would have generated the shift reports is irrelevant to Modern's failure to produce documentary evidence. As the defendant bar did in Davis, Modern was free to call those witnesses in defense of the adverse inference, but it did not do so.

Modern lastly contends that the trial judge "failed to give the jury guidance on the proper limits of any inference to be drawn." In support, it cites Wild v. Roman, 91 N.J.Super. 410, 414 (App. Div. 1966), which involved an adverse inference charge pursuant to State v. Clawans, 38 N.J. 162 (1962). The trial judge's instructions were appropriate since they were properly limited to the "information" that was allegedly contained in the shift reports.

We, thus, find no error in the jury instructions regarding defendants' failure to produce materials that were once in their possession.

V

The Port Authority argues that the trial judge erred by assessing prejudgment interest, claiming it is exempt from such an award because it is a public entity. Although our conclusion that a new trial is warranted does not necessitate our disposition of this issue, we provide the following for guidance should plaintiff again obtain a verdict in her favor.

We start with Rule 4:42-11(b), which permits an award of prejudgment interest "except where provided by statute with respect to a public entity or employee," and with N.J.S.A. 59:9-2(a), which declares that "[n]o interest shall accrue prior to the entry of judgment against a public entity or public employee." The Port Authority claims it is a public entity within the intendment of N.J.S.A. 59:9-2(a) and, thus, plaintiff was not entitled to prejudgment interest.

That argument is an over-simplification of the issue. The Port Authority is not just any public entity. As our Supreme Court has recognized, "[a]lthough the Port Authority serves a governmental function, it is not immune from suit," Lieberman, supra, 132 N.J. at 82, and, in fact, in forming the Port Authority, New Jersey and New York consented to "liability ... in such suits, actions or proceedings for tortious acts committed by [the Port Authority] and its agents to the same extent as though it were a private corporation," N.J.S.A. 32:1-162; N.Y. Unconsol. Laws § 7106. In light of this waiver of immunity, the Port Authority does not contend that the substantive provisions of the Tort Claims Act apply, but urges that we find, in light of Dorn v. Transport of New Jersey, 200 N.J.Super. 159 (App. Div. 1984), that, in spite of Lieberman, other provisions of the Tort Claims Act, specifically N.J.S.A. 59:9-2(a), should in fairness apply.

In Dorn, we held that applying N.J.S.A. 59:9-2(a) to the Transport of New Jersey, when no other provisions of the Tort Claims Act applied, was not inconsistent with the policy of the Tort Claims Act of limiting the liability of a public entity strictly to its negligence. Id. at 162, 164. Dorn, however, is distinguishable. The Transport of New Jersey was a "public entity" because it was owned by the New Jersey Transit Corporation, which, according to its implementing legislation, was a State "instrumentality" deemed to be performing an "essential governmental function" in the exercise of its statutory authority. Id. at 162 (quoting N.J.S.A. 27:25-4). This fit squarely within the definition of a "public entity" in the Tort Claims Act. Ibid. (citing N.J.S.A. 59:1-3).

To be sure, the Port Authority also performs essential governmental functions. Lieberman, supra, 132 N.J. at 82. But, unlike the New Jersey Transit Corporation, the Port Authority is a "public corporate instrumentality of New Jersey and New York." Bunk, supra, 144 N.J. at 184. Although courts have acknowledged that the Port Authority is a "public agency" of both states, its bi-state nature removes it from the notice provisions of the Tort Claims Act. Lieberman, supra, 132 N.J. at 82; Williams v. Nat'l Car Rental Sys., Inc., 225 N.J.Super. 164, 168 (Law Div. 1988); see also Foster v. Newark Housing Auth., 389 N.J.Super. 60, 65 (App. Div. 2006).

Although the precise issue has not previously been decided, we conclude that the Port Authority's claim of immunity from prejudgment interest must fail. In Bell v. Bell, 83 N.J. 417, 423-24 (1980), the Court considered the application of the notice provisions of the Tort Claims Act to another bi-state agency, the Delaware River Port Authority (DRPA). In that regard, the Court recognized that even though the DRPA could arguably fall within the definition of "public entity" set forth in the Tort Claims Act, "it is clear that the act itself cannot apply" because DRPA is a bi-state agency "that derives its powers, including the power to sue and be sued" from joint legislative action and, thus, is beyond the power of the New Jersey Legislature to modify. Ibid. The Court thus concluded that the DRPA is not a public entity "within the meaning and scope of [the Tort Claims Act] so that none of its provisions apply to DRPA." Id. at 425 (emphasis added). See also Ballinger v. Del. River Port Auth., 172 N.J. 586, 593-94 (2002). Consequently, we reject the argument that certain portions of the Tort Claims Act apply and instead adhere to the Court's clear holding in Bell that no provision of the Tort Claims Act applies to the Port Authority.

Like the DRPA, the Port Authority was created — with the consent of Congress — by a compact between New Jersey and another state, here New York. There is no principled reason for applying some portion of the Tort Claims Act for the benefit of the Port Authority when our Supreme Court, in Bell, has refused to do so with regard to the DRPA. The compact that created the Port Authority allows it to sue and be sued to the same extent as though it were a private corporation and may, for the same reason, be held liable for an award of prejudgment interest.

VI

Modern argues that plaintiff's counsel made comments during summation that, viewed together, caused prejudice. Modern did not object to any of plaintiff's comments below, and the Port Authority does not join in Modern's challenge. Today's decision does not require our disposition of these issues because a new trial is required, but we offer the following comments for future guidance.

Attorneys are given broad latitude in summation, but cannot make disparaging remarks to discredit a party or witness, accuse a party's attorney of wanting the jury to evaluate the evidence unfairly, deceive the jury, or deliberately distort the evidence. See Geler v. Akawie, 358 N.J.Super. 437, 470-71 (App. Div.), certif. denied, 177 N.J. 223 (2003); Henker v. Preybylowski, 216 N.J.Super. 513, 518-19 (App. Div. 1987). When such remarks may not individually require reversal, but are prejudicial when considered in their aggregate, a new trial is also warranted. See Barber v. ShopRite of Englewood & Assocs., Inc., 406 N.J.Super. 32, 53 (App. Div.), certif. denied, 200 N.J. 210 (2009). "[W]here an attorney persists in making unwarranted prejudicial appeals to a jury which taint the verdict ... we have often held that a reversal is in order." Hofstrom v. Share, 295 N.J.Super. 186, 193 (App. Div. 1996), certif. denied, 148 N.J. 462 (1997).

Modern first argues that the following comments made by plaintiff's attorney during his summation cast unjustified aspersions on the defense and its experts:

Counsel's accusation that defense counsel acted improperly in attacking plaintiff's credibility or otherwise maligned her went over the line. There is nothing in the record to suggest defense counsel acted in any but a proper manner. This portion of the summation was improper, but Modern did not object at that time, and we find nothing about the statements that would suggest these brief inappropriate comments were capable of producing an unjust result. This type of summation should not be repeated at the retrial.

Modern also complains about the alleged denigration of the defense experts:

We find nothing improper in this argument. Counsel may argue to a jury that an expert is a "hired gun" if that contention is supported or suggested by the evidence. See Gensollen v. Pareja, 416 N.J.Super. 585, 590 (App. Div. 2010); Espinal v. Arias, 391 N.J.Super. 49, 61 (App. Div.), certif. denied, 192 N.J. 482 (2007); Cogdell v. Brown, 220 N.J.Super. 330, 336 (Law Div. 1987).

Modern also refers to the comments of plaintiff's attorney that: plaintiff was an "invitee"; Modern owed plaintiff a duty of utmost care; Modern violated OSHA standards10; it was necessary for Modern to provide "expert testimony ... to establish that plaintiff was negligent in failing to use the handrail"; and, in alleged violation of the "golden rule," the jury's award of damages should be based on their own knowledge, i.e., "[w]e know that if it's a permanent injury, what it's like after a long day's work" and other similar comments.

We find these arguments, as well as those Modern makes regarding plaintiff's opening statement, to be of insufficient merit to warrant further discussion in a written opinion. R. 2:11-3(e)(1)(E).

Reversed and remanded for a new trial.