Brenman v. Demello

• Decision Date: 30 May 2007
• Docket Number: No. A-13 September Term 2006.,A-13 September Term 2006.
• Citation: 921 A.2d 1110,191 N.J. 18
• Parties: Rena BRENMAN and Mitchell D. Brenman, Plaintiffs-Respondents, v. Michael DEMELLO and Stephanie Demello, Defendants-Appellants, and ABC Company, (said name being fictitious and unknown), Defendant.
• Court: New Jersey Supreme Court

921 A.2d 1110

191 N.J. 18

Rena BRENMAN and Mitchell D. Brenman, Plaintiffs-Respondents, v. Michael DEMELLO and Stephanie Demello, Defendants-Appellants, and ABC Company, (said name being fictitious and unknown), Defendant.

No. A-13 September Term 2006.

Supreme Court of New Jersey.

Argued November 29, 2006.

Decided May 30, 2007.

Kathleen S. Murphy argued the cause for appellants (Connell Foley LLP, attorneys).

Michael F. Wiseberg argued the cause for respondents (Leonard & Leonard, P.A., attorneys).

Bruce H. Stern argued the cause for amicus curiae, Association of Trial Lawyers-New Jersey (Stark & Stark, P.C. and Pellettieri, Rabstein & Altman, attorneys; Mr. Stern, Michael G. Donahue, III, Lawrenceville and Anne P. McHugh, Princeton, on the brief).

Justice RIVERA-SOTO delivered the opinion of the Court.

This appeal presents a single issue germane to automobile accident cases: whether expert testimony is required as a condition precedent to the admission of photographs of vehicle damage when the cause or extent of a plaintiff's injuries are at issue.

We answer that question in the negative. The admissibility of any relevant photograph rests on whether the photograph fairly and accurately depicts what it purports to represent, an evidentiary decision that properly lies in the trial court's discretion. We reject a per se rule that requires expert testimony as a foundation for the admissibility of a photograph of vehicle damage when the photograph is used to show a correlation between the damage to the vehicle and the cause or extent of injuries claimed by an occupant of the struck vehicle. Instead, we commend that judgment to the sound discretion of the trial court. Consistent therewith, a party opposing the admission of photographs of damage to a car remains free to offer expert proofs for the purpose of showing that there is no relationship between the extent of the damage and the cause and severity of the resulting injuries. Conversely, a party proposing the use of photographs of impact may tender its own expert proofs to further support the proposition in its case-in-chief—either that slight impact force results in no or slight injury, or that great impact force results in great injury—or to rebut its opponent's assertions. In the end, however, such expert proofs address the weight to be given to photographs of impact, not their admissibility.

I.

In October 2001, plaintiff Rena Brenman was driving in stop-and-go traffic when her car was struck from behind by a car driven by defendant Stephanie Demello. All parties concede that there was minimal damage to plaintiff's car, but they quarrel about the extent of the damage to defendant's car.

In the end, however, the issue in this case was narrowed to the cause and extent of the injuries to plaintiff attributed to this car accident. Although plaintiff immediately complained of neck and chest pain and requested an ambulance, she was taken home by her step-father, forgoing an emergency room visit. The next day plaintiff was seen by her family physician, who referred her to Dr. Zemsky, an orthopedist. He prescribed medication, physical therapy, and the use of a cervical pillow. Plaintiff was away from work for two and one-half months. When she returned to her job, she was unable to work for extended periods, and her employer reduced her work-week accordingly.

In early December 2001, Dr. Zemsky ordered an MRI of plaintiff's neck. Based on the MRI results, he referred plaintiff to Dr. Kasoff, a neurosurgeon who, after additional diagnostic tests, recommended surgery. Plaintiff sought a second opinion from Dr. Kalko, who confirmed both Dr. Kasoff's diagnosis and the need for surgery. In August 2002, ten months after the car accident, a three-level cervical fusion was performed on plaintiff, which involved the removal of three discs and their replacement with "spacers."

Two months before undergoing this operation, plaintiff filed a complaint¹ alleging that her injuries were the direct and proximate result of defendant's negligent behavior that resulted in the car accident.² Seeking to minimize, if not defeat, plaintiff's claim—which she asserted at trial totaled $713,000—defendant intended to offer into evidence photographs³ produced by plaintiff in discovery showing admittedly minimal damage to the rear bumper of plaintiff's car. Defendant's undisguised purpose for the admission of those photographs was to argue to the jury that, due to the small amount of damage to plaintiff's rear bumper, plaintiff could not have suffered either the type or extent of injuries she alleged. Plaintiff did not resist that effort until jury selection, when she filed a motion in limine seeking to bar the admission of the photographs absent expert proofs to connect the condition depicted in the photographs and the biomechanical forces that resulted from the impact between the two cars.

After the jury was selected, sworn, and excused for lunch, the trial court considered plaintiff's "in limine motion regarding the photographs of the automobile." Acknowledging that "[t]here's never been a dispute among the parties that [plaintiff] had minor damage to the rear of her car[,]" plaintiff asserted that "the sole purpose of this photograph is to try to show that ... there's no way [plaintiff] could have sustained the injuries that she [asserts she] sustained in this accident." According to plaintiff, "those matters are really scientific matters that require expert testimony through a biomechanical expert, an engineer, somebody who has the requisite training and experience to advise the jurors on the relationship between the damage or lack thereof" to plaintiff's automobile and her physical injuries. In plaintiff's view, "it would be so prejudicial to let the jurors speculate on the relationship between one photograph and [plaintiff's] injuries." Summing up, plaintiff argued that it is "the province of an expert to draw that type of conclusion" and that "it shouldn't be to the jurors to wildly speculate on their own theories [by] looking at the rear of the car and then making a determination whether or not it can cause somebody's injuries."

In response, defendant asserted that "although defendants [will] present testimony describing the minimal impact [as the] amount of impact, the photograph is demonstrative evidence bearing on that issue." In defendant's view, "the jury is entitled to see the demonstrative evidence of what is alleged [as] the nature, severity of the impact." Relying heavily on an unpublished decision of the Appellate Division,⁴ defendant argued that the photographs were admissible for several reasons: to prove the severity of the impact; to describe the physical damage to plaintiff's vehicle; to allow the jury to infer the amount of force needed to cause that damage; and to determine whether and to what extent plaintiff's injuries were caused by that force.

The trial court, although originally "inclined to rule that the photograph would be inadmissible[,]" ultimately concluded that the photographs were admissible. Focusing on the balancing test embodied in N.J.R.E. 403, the trial court explained that "[c]ertainly this is evidence which would otherwise be []admissible, except for the fact that undue prejudice may be present." It noted that "[p]hotographs of automobiles involved in collisions ... offered as probative of the severity of injuries have been deemed admissible in spite of undue prejudice claims." It explained that "[t]he possibility of some inflammatory effect on the jury is compared with the relevancy[,] and [the] generally accepted admissibility of the photographs of the scene of an automobile accident is best left to the discretion of the trial court." The trial court reasoned that the "anticipat[ion] that the police officer who investigated at the scene will be here to testify" was "a very significant issue ... in determining ... whether or not there is any undue prejudice which would justify the exclusion of this otherwise admissible photograph."

Addressing the discrete issue certified before us, the trial court explained that where the photographs have been offered not to prove causation but, instead, to address the disputed issue of the severity of impact[,] the photographs were not scientific evidence so as to [re]quire expert testimony[,] and no expert testimony is needed to describe the physical damage of the vehicle or to allow the jury to infer ... the force that would cause the damage. Jurors can infer from their viewing photographs that the plaintiff could not have been as seriously injured as she claimed . . . . It is also appropriate for defendant to comment on the photographs and to argue the inferences to be drawn therefrom in an effort to refute the plaintiff's experts' medical testimony as to the seriousness and permanency of the injuries sustained.

[(emphasis supplied).]

The trial court thus found that "the photograph is admissible under the circumstances of this case" because "[w]e do anticipate that there will be investigating officer[] testimony, which will further be probative as to the condition of the vehicles at the scene of the accident."⁵

At trial, defendant conceded that she was liable for the accident, but, relying in large measure on the photographs, she contested whether plaintiff's injuries were caused by the accident and, if so, to what extent. Thus, during her opening statement to the jury, defendant's counsel explained that "Stephanie was driving under 10 miles an hour when she tapped the rear of this car bumper to bumper. That's what happened. That's the photograph."

Plaintiff presented her case-in-chief, including the testimony of her medical expert, Dr. Paul Ratzker, a neurosurgeon. He opined that the cause of plaintiff's symptoms was osteophyte, an abnormal protrusion of bone. He explained that osteophyte is a degenerative condition that frequently is a byproduct of the aging process. He testified...