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MacAluso v. Pleskin

March 30, 2000

CHARLENE MACALUSO, PLAINTIFF-RESPONDENT,
V.
LORI A. PLESKIN, DEFENDANT-APPELLANT.



Before Judges Pressler, Bilder and Arnold.

The opinion of the court was delivered by: Arnold, J.S.C. (temporarily assigned)

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued February 15, 2000

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

This personal injury action arose from an automobile accident which occurred on February 17, 1995 in Old Bridge. Following a jury trial, plaintiff Charlene Macaluso was awarded $350,000. Defendant appeals contending, among other things, that the trial court erred in permitting a video entitled "Soft Tissue Animation" produced by Technical Medical Animation Corporation of Denver, Colorado, to be shown to the jury. We agree and reverse and remand for a new trial.

Briefly, the material facts in this matter are as follows. On February 17, 1995, plaintiff was driving her car south on Washington Avenue in Old Bridge and made a left turn to enter a driveway. Defendant Lori Pleskin was also driving south on Washington Avenue behind plaintiff, and when plaintiff turned defendant struck the left front wheel of plaintiff's car. Plaintiff sued and after a three-day trial, the jury returned a verdict in plaintiff's favor in the amount of $350,000. Defendant filed a motion for a new trial, or in the alternative, a remittitur which was denied.

Defendant raises the following points on appeal:

POINT I THE TRIAL COURT ERRED IN PERMITTING THE VIDEO ENTITLED "SOFT TISSUE ANIMATION" TO BE SHOWN TO THE JURY

POINT II THE PLAINTIFF'S EXPERT WAS ERRONEOUSLY PERMITTED TO RECITE THE FINDINGS OF EXPERTS WHO DID NOT TESTIFY (Not raised below)

POINT III COMMENTS OF PLAINTIFF'S COUNSEL DURING SUMMATION WERE AN IMPROPER PLEA TO SYMPATHY AND PASSION WHICH PREJUDICED THE DEFENDANT AND WERE CLEARLY CAPABLE OF PRODUCING AN UNJUST RESULT (Not raised below)

POINT IV THE "COMPUTERIZED IMAGING" ALLEGEDLY MADE FROM X- RAYS TAKEN OF PLAINTIFF SHOULD NOT HAVE BEEN SHOWN TO THE JURY AND SHOULD NOT HAVE BEEN ENTERED INTO EVIDENCE (Not raised below)

POINT V THE PRESENTATION TO THE JURY OF ALL THE TESTIMONY, DOCUMENTS, VIDEO AND SUMMATION COMMENTS DISCUSSED IN POINTS I THROUGH IV, TAKEN IN TOTAL WAS CLEARLY CAPABLE OF PRODUCING AN UNJUST RESULT AND UNFAIRLY PREJUDICING THE DEFENDANT

After jury selection and before opening statements, the trial court was made aware that plaintiff wanted to introduce the video entitled "Soft Tissue Animation" into evidence. Defendant objected generally to the introduction of the video and also objected to specific portions. The trial court regarded the video as a visual aid, redacted certain portions and permitted the remainder to be played for the jury. It was not, however, admitted into evidence. The only foundation laid for the playing of the video was the testimony of plaintiff's treating chiropractor, Dr. Weinstein, that he had viewed the video and believed it could be of assistance in helping the jury understand the anatomy of the cervical spine and the injuries claimed by plaintiff. He testified that he had no idea who made the video or why it was made and he never spoke to anyone involved in its production. After the video was played, the following testimony was elicited from Dr. Weinstein. Q. [W]as there any section or any particular area under the injuries segment that you found to be particularly relevant in Charlene's case.

A. Mostly pertaining to the last sections where you had injuries to the muscles, as well as to ...


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