Before Judges Pressler, Ciancia and Arnold.
The opinion of the court was delivered by: Ciancia, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
On appeal from the Superior Court of New Jersey, Law Division, Camden County.
The opinion of the court was delivered by
In this rear-end-hit, automobile-negligence action, liability against defendant Jennifer Egeland was conceded and a jury trial was held as to damages only. The primary issue at trial was whether plaintiff Luisa Suanez sustained injuries sufficiently serious to overcome the strictures of the verbal threshold statute. N.J.S.A. 39:6A-8a. The jury found that she had not suffered such injuries and a judgment of no cause for action was entered. We now reverse that judgment and reinstate plaintiff's complaint.
Plaintiff essentially raises two issues on appeal, one concerning the playing of a video tape as part of a defense expert's testimony and a second dealing with the trial court's ruling that plaintiff could not read to the jury a medical report prepared by a defense physician who was not called to testify. We find no merit in the latter contention because we are satisfied that on the facts here presented the doctor's report did not constitute an adoptive admission of the defendant. Skibinski v. Smith, 206 N.J. Super. 349, 353-354 (App. Div. 1985).
We do find merit, however, in the contentions concerning the video tape. The playing of the video tape came about as follows. Plaintiff's primary contention was that she suffered a lower back disc herniation at the L4-5 level, as a result of the impact occurring when defendant's vehicle rear-ended the stationary or slowly moving vehicle plaintiff was riding in as a front seat passenger. It was defendant's contention that the accident was so minor it could not have caused plaintiff's herniated disc. To advance that proposition defendant called Lawrence Thibault, a professor of bio-engineering, as an expert witness. After an appropriate voir dire, Thibault was found qualified "in the area of bio-mechanics."
Thibault testified in some detail concerning the force necessary to cause a disc herniation such as that claimed by plaintiff. His conclusion was that the impact of defendant's moving vehicle upon the vehicle occupied by plaintiff was insufficient to cause a herniated disc. In reaching that opinion he relied on a variety of information, including the accident report, deposition testimony, medical records and pictures of defendant's vehicle, although not pictures of the vehicle plaintiff occupied. He also based his opinion on a "variety of studies" including, "a very specific study of measuring the forces acting on an anthropomorphic dummy, a test dummy, a car crash - a federal standard car crash dummy called hybrid three, where instruments are in the head and neck, the lumbar spine, throughout the dummy's body, subjected to low speed rear end impacts of varying degrees." Although not previously disclosed to plaintiff's attorney, Thibault had brought to court a short video tape depicting a car crash dummy in an automobile being struck at five miles-per-hour. Thibault testified that he relied on that video tape, in part, in formulating his opinion. Over plaintiff's objection the video was played for the jury. We find that the playing of the video tape, under the circumstances here presented, constituted prejudicial error. We reach that conclusion for the following reasons.
The tape was not provided to plaintiff on discovery although it certainly should have been. Plaintiff chose not to depose Thibault, but she did submit interrogatories to defendant seeking "the substance of the facts and opinions to which your experts are expected to testify and a summary of the grounds for each opinion." Although the interrogatory might have been more specific, it was certainly sufficient to discover a video tape an expert witness not only relied upon but which he planned to show to the jury. As Justice Clifford said in Jenkins v. Rainner, 69 N.J. 50 (1976), when discussing the discoverability of motion picture films taken of plaintiff by defendant in a personal injury action:
Our court system has long been committed to the view that essential justice is better achieved when there has been full disclosure so that the parties are conversant with all the available facts. See, e.g., In re Selser, 15 N.J. 393, 405 (1954). Twenty-five years ago Chief Justice Vanderbilt pointed out:
Our Rules for discovery . . . are designed to insure that the outcome of litigation in this State shall depend on the merits in the light of all of the available facts, rather than on the craftiness of the parties or the guile of their counsel. [Lang v. Morgan's Home Equip. Corp., 6 N.J. 333, 338 (1951).]
This policy is in keeping with the modern trend which recognizes "the need to make available to each party the widest possible sources of proof as early as may be so as to avoid surprise and facilitate ...