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Ferlise v. Eiler

Decided: July 2, 1985.

NANCY C. FERLISE AND VINCENT J. FERLISE, PLAINTIFFS-RESPONDENTS,
v.
OWEN CHARLES EILER AND K & M AUTO SUPPLY COMPANY, DEFENDANTS-APPELLANTS



On appeal from the Superior Court of New Jersey, Law Division, Mercer County.

Furman and Havey. The opinion of the court was delivered by Havey, J.A.D.

Havey

In this personal injury action, the jury returned a verdict finding both defendant Owen Charles Eiler and plaintiff Nancy C. Ferlise (plaintiff) negligent, allocating 78% and 22% negligence against the parties respectively. The jury returned a verdict of $50,000.00 in favor of plaintiff and $10,000.00 in favor of plaintiff Vincent J. Ferlise, for his per quod claim.

On appeal defendants argue that the trial judge erred in admitting into evidence thermograms taken of plaintiff during her period of treatment. They contend that plaintiffs failed to

present competent evidence that thermograms have achieved general acceptance in the medical community as a reasonably reliable diagnostic tool. Defendants also challenge the liability and damage award as constituting a miscarriage of justice. We affirm the liability verdict but reverse the damage award, holding that plaintiff failed to lay the requisite foundation as to the reliability of thermography in general and the thermograms performed here in particular for the test results to have been admitted.

Thermography, a recent development in the medical field, is essentially "heat photography" which purportedly provides an objective means of measuring soft-tissue injuries and pain. See Procida v. McLaughlin, 195 N.J. Super. 396, 399-400 (Law Div.1984). The procedure measures differential skin surface temperature by recording the infra-red light emitted by the body. The emitted infra-red light is directly related to the temperature of the point of the body emitting it. The temperature is computerized into a graphic representation of the skin temperature depicted on a television screen. Injuries which result in inflammation, such as sprains and strains to muscles, cause dilation of the blood vessels in the involved area, resulting in the appearance of a warm spot which is recorded by the thermogram machine. A thermogram is a photograph of the graphic representation of the emitted heat from the affected area. See ibid.

A proponent of expert testimony must demonstrate first that the proffered testimony will "enhance the knowledge and understanding of lay jurors . . . with respect to other testimony of a special nature normally outside of the usual lay sphere. . . .," State v. Griffin, 120 N.J. Super. 13, 20 (App.Div.1972), certif. den. 62 N.J. 73 (1972); and second, that the expert's testimony is sufficiently reliable, see State v. Kelly, 97 N.J. 178, 209 (1984); Evid.R. 56(2). To meet the "sufficiently reliable" test, the technique or mode of analysis used and testified to by the expert must have a "sufficient scientific

basis to produce uniform and reasonably reliable results so as to contribute materially to the ascertainment of the truth." State v. Kelly, supra, 97 N.J. at 210; State v. Cavallo, 88 N.J. 508, 517 (1982); State v. Cary, 49 N.J. 343, 352 (1967).

That a test or technique has a "sufficient scientific basis" may be demonstrated in any one of three ways: (1) expert testimony as to the general acceptance of the premise being advanced among those in the profession; (2) authoritative scientific and legal writing indicating that the premises enjoys general acceptance in the professional community; and (3) judicial opinions that indicate that the expert's premise has gained general acceptance. See State v. Kelly, supra, 97 N.J. at 210; State v. Cavallo, supra, 88 N.J. at 521.

Since the trial of this matter, Judge Talbott in Procida, supra, 195 N.J. Super. 396, addressed the question of the scientific reliability of thermography and held that a "thermogram is a diagnostic tool with a sufficient scientific basis to produce uniform and reasonably reliable results." Id. at 404. Judge Talbott allowed the thermogram results in evidence, however, only after a lengthy Rule 8 hearing at which experts testified respecting the construction of and operational reliability of the thermographic machine, the need for careful control during operation and the necessity to give pre-operative instructions to the patient, prohibiting such activities as smoking, consumption of hot or cold beverages, use of lotions or ointments, physical therapy, sunbathing and pain medications prior to the administration of the test.

Unlike Procida, the trial judge here held no Rule 8 hearing. He overruled defendants' objection as to the admissibility of the thermograms, erroneously correlating them with X-rays, and held that defendants' objection regarding the reliability of the results was an appropriate subject of ...


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