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Brenman v. Demello

May 30, 2007

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.



On certification to the Superior Court, Appellate Division, whose opinion is reported at 383 N.J. Super. 521 (2006).

SYLLABUS BY THE COURT

(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interests of brevity, portions of any opinion may not have been summarized).

In this automobile accident case, the issue is 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.

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. Brenman's family physician prescribed medication, physical therapy, and the use of a cervical pillow. Brenman was away from work for two and one-half months. Following additional diagnostic tests, in August 2002, Brenman underwent a three-level cervical fusion, which involved the removal of three discs and their replacement with "spacers." All parties concede that there was minimal damage to Brenman's car. The issue was narrowed to the cause and extent of the injuries to plaintiff attributed to this car accident.

Eight months after the accident, Brenman filed a complaint alleging that her injuries were the direct and proximate result of Demello's negligent behavior that resulted in the car accident. At trial, Brenman claimed $713,000 in damages. Demello sought to introduce at trial photographs showing admittedly minimal damage to the rear bumper of Brenman's car with the purpose of arguing to the jury that, due to the small amount of damage to Brenman's rear bumper, Demello could not have suffered either the type or extent of injuries she alleged. Brenman 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.

The trial court ultimately admitted the photographs, concluding that "[j]urors can infer from their viewing photographs that the plaintiff could not have been as seriously injured as she claimed." The trial court further concluded that the admissibility of said photographs is "best left to the discretion of the trial court." The court particularly noted that the testimony of the investigating police officer would be "probative as to the condition of the vehicles at the scene of the accident" and would be important in determining whether the photographs will result in undue prejudice.

The trial court denied Brenman's motion for a new trial. On appeal, Brenman argued that the trial court erred in admitting the photographs without a corresponding limiting instruction restricting their use to prove causation. Brenman also argued that, by failing to require expert testimony as to the link between vehicle damage and the occupant's injuries, the trial court improperly allowed Demello to invite the jury to speculate as to that link. The Appellate Division agreed, and reversed and remanded the case for a new trial. The panel adopted a per se rule that requires expert testimony to prove a causal link between the extent of damage to an automobile in an accident and the cause or extent of injuries arising from that accident. The panel explained that "photographic evidence is neither automatically admissible nor excludable, but rather subject to the sound exercise of the trial court's discretion."

The Supreme Court granted Demello's petition for certification. Also, the Court granted amicus curiae status to the Association of Trial Lawyers of America -- New Jersey (ATLA-NJ).

HELD: The admissibility of any relevant photographs 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. The Court rejects 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.

1. Like any other evidence tendered at trial, photographs must be relevant. Once deemed relevant, the evidence is admissible unless otherwise prohibited by law. However, even if relevant, evidence nonetheless "may be excluded if its probative value is substantially outweighed by the risk of (a) undue prejudice, confusion of issues, or misleading the jury or (b) undue delay, waste of time, or needless presentation of cumulative evidence." N.J.R.E. 403. In addition to proving the evidence's relevance and that its probative value is not substantially outweighed by the risk of undue prejudice, the persuasive representational nature of photographs demands that the foundation for the admission of photographs must be properly laid. The sole issue in this appeal is whether, in order to satisfy the requirement that the probative value of this evidence is not substantially outweighed by the risk of undue prejudice, expert testimony is required when photographs of vehicle damage are offered to prove either the cause or the extent of the occupant's injuries. Because the determination made by the trial court concerned the admissibility of evidence, the Court gauges that action against the palpable abuse of discretion standard. (Pp. 15-18)

2. There are three basic requirements for the admission of expert testimony. The first is that "the intended testimony must concern a subject matter that is beyond the ken of the average juror," and it is that requirement that is squarely implicated by the issue posed in this appeal. In most cases, there is a relationship between the force of impact and the resultant injury, and the extent of that relationship remains in the province of the factfinder. Juries are entitled to infer that which resides squarely in the center of everyday knowledge: the certainty of proportion, and the resulting recognition that slight force most often results in slight injury, and great force most often is accompanied by great injury. In the end, the standard is clear: in the absence of competent proofs to the contrary, the aggregate of everyday knowledge and experience fairly entitles a jury to infer that there is a proportional relationship between the amount of force applied and the injuries resulting therefrom. The trial court did not palpably abuse its discretion when it permitted the admission of photographs that fairly and accurately depicted the condition of the rear of Brenman's car and allowed Demello's counsel to argue that neither the cause nor the extent of plaintiff's injuries could have been the proximate result of the impact. (Pp. 18-22)

3. The Supreme Court cannot subscribe, as the Appellate Division did, to the limits of Davis v. Maute, 770 A. 2d 36 (Del. 2001), in which the Supreme Court of Delaware required expert testimony in a similar setting. In the main, the fundamental relationship between the force of impact in an automobile accident and the existence or extent of any resulting injuries does not necessarily require "scientific, technical, or other specialized knowledge" in order to "assist the trier of fact to understand the evidence or to determine a fact in issue[.]" N.J.R.E. 702. Of course, a party opponent remains free to offer expert proofs for the purpose of persuading the factfinder to overcome an absence of proportionality between the force of the impact and the cause and severity of the resulting injuries. Conversely, a party proponent 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. Such expert proofs, however, address the weight to be given to photographs of impact, not their admissibility. (Pp. 22-25)

The judgment of the Appellate Division is REVERSED, and the judgment of the Law Division is REINSTATED.

JUSTICE ALBIN filed a separate CONCURRING opinion, stating that because lay testimony describing the force of impact and personal injury is permissible, photographs corroborating that testimony by depicting vehicular damage must be admissible too.

JUSTICE WALLACE, Jr.,filed a separate DISSENTING opinion, agreeing with the Appellate Division's holding calling for "corroborative expert proof."

CHIEF JUSTICE ZAZZALI, and JUSTICES LaVECCHIA, and HOENS join in JUSTICE RIVERA-SOTO's opinion. JUSTICE ALBIN filed a separate concurring opinion. JUSTICE WALLACE filed a separate dissenting opinion. JUSTICE LONG did not participate.

The opinion of the court was delivered by: Justice Rivera-soto

Argued November 29, 2006

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 complaint*fn1 alleging that her injuries were the direct and proximate result of defendant's negligent behavior that resulted in the car accident.*fn2 Seeking to minimize, if not defeat, plaintiff's claim --- which she asserted at trial totaled $713,000 -- defendant intended to offer into evidence photographs*fn3 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 ...


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