This products liability action arises out of an accident which occurred when a cutting blade descended on plaintiff's hand as he attempted to clear debris from machinery known as a "thermoformer." The blade came down across the middle of plaintiff's upturned palm and nearly amputated the top half of his hand. Plaintiff's hand was reattached by microsurgery.
Plaintiff's attorney, at a de bene esse deposition, indicated his intention to utilize a videotape of the surgical procedure at the
trial. Defendant's attorney objected to the admissibility of the videotape, contending that the lead surgeon was available to testify and the videotape would add nothing to the jury's understanding of the proofs, while it is extremely unpleasant and inflammatory.
This is a motion in limine made by defendant, pursuant to R. 4:14-9(f), to exclude at the trial the videotape of the surgical procedure under Evid.R. 4.
The court, after viewing the videotape of the surgical procedure, orally denied defendant's motion. This opinion supplements that oral decision.
On February 9, 1985, plaintiff Timothy Traver's dominant hand was almost amputated by a machine manufactured by defendant Packaging Industries Group, Inc. He was taken to Bellevue Hospital where his hand was microsurgically reattached (reconstructed) by a team of surgeons headed by Bradford W. Edgerton. Coincidentally, the Bellevue Hospital microsurgery team was cooperating with a medical publishing company which was preparing a videotape for teaching purposes. A videotape crew was on call with the microsurgery crew and videotaped the surgery.
On February 13, 1990 the de bene esse videotape deposition of Edgerton was taken. Since he presently practices in California, this was the only feasible manner to obtain his testimony for trial purposes. Although the surgery took 11 hours, a 30-minute edited version of the videotape of the surgery was prepared for use at this trial. Through use of an edited version of the complete videotape, he explained the reattachment surgery that he performed. When the surgery videotape appears on the screen, Edgerton explains the surgery through questions and answers. Edgerton testified that use of the videotape in this manner was helpful to him in recalling and explaining precisely what was done during the surgery because the videotape provides a chronological detailed record.
The surgery videotape can be divided into two different phases. Phase I involves the beginning and the end of the videotape. The beginning of the videotape demonstrates the injury sustained by plaintiff. There are a couple of short clips which visualize his hand before any surgery. This is almost the same view that plaintiff had of his hand shortly after he removed it from the machine and held it together against his body. The hand, which was severed across the palm, would have been completely amputated if not held together in a hinge-like fashion by the skin on the back of his hand. Shortly after plaintiff removed his hand from the machine, he looked down at it and recognized that he had a severe, crushing injury. He could see a bloody mass of bones, tendons and other internal anatomical structures. Although he probably had no idea what they were, he obviously could see them. There is no doubt that the videotape is a graphic display in color of a very unpleasant event. The other portion of phase I, at the end of the videotape shows the hand post-surgery. This is precisely what plaintiff observed for many weeks when he looked at his reattached, unbandaged hand.
Phase II of this videotape, the intraoperative section, chronicles the surgery in a step-by-step fashion, examining the repair of bones, tendons and nerves, as well as the removal of a vein in plaintiff's leg for grafting to the main artery in the hand. Edgerton indicated that all the surgery he performed was reflected in the operative record. However, the operative report does not contain a chronological list of the items of surgery, and it does not explain the details of surgery in the manner that the videotape does.
After plaintiff's hand was reattached, he had to undergo two additional surgeries, which involved a tendon ...