June 27, 2007
DANIELLE PARADOWSKI, PLAINTIFF-APPELLANT,
ELIZABETH CASHMAN, DEFENDANT, AND EVELYN REID, DEFENDANT-RESPONDENT.
On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-404-04.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued May 23, 2007
Before Judges Parrillo and Sapp-Peterson.
In this automobile negligence lawsuit, plaintiff Danielle Paradowski appeals from entry of judgment in favor of defendant Evelyn Reid after a jury verdict of no-cause of action, and from denial of plaintiff's motion for a new trial. We affirm.
Defendant rear-ended plaintiff's vehicle on April 18, 2002,*fn1 stipulated to liability, and proceeded to a damages trial based on plaintiff's claim of "permanent injury" under the verbal threshold, N.J.S.A. 39:6A-8, due to cervical and lumbosacral disc herniations her doctor causally related to the car accident. Prior to trial, the court granted plaintiff's in limine motion barring defendant's biomechanical expert from testifying. Specifically, the court found that the expert's opinion that the force imparted to plaintiff's body in the collision was insufficient to cause the injuries of which plaintiff complained was a net opinion and therefore inadmissible. The court, however, denied plaintiff's other in limine motion, based on Brenman v. Demello, 383 N.J. Super. 521 (App. Div.), rev'd, ___ N.J. ___ (2007), seeking to bar "severity of impact" references at trial.
Consequently, in their respective opening statements, plaintiff's counsel was the first to introduce the notion of the nature of the impact and lack of property damage, by stating to the jury:
Well, you're going to hear evidence about what happened to Danielle . . . . [Y]ou will hear how the force of that impact, irrespective to the damage done or lack of damage done to either vehicle threw her like a rag doll . . . .
Defense counsel, in her opening, responded in kind, arguing that:
You are going to hear testimony as to the severity of the impact, and the injuries that -- the alleged injuries as a result. The impact actually was -- that was so minor, that the police weren't even called to the scene. In fact, plaintiff didn't report this accident to the police until six days later.
The evidence is going to show you that in all reality it was a tap. The evidence will also show that plaintiff was involved in a prior motor vehicle accident wherein she injured her neck and back, and received treatment.
On direct examination, plaintiff testified as to the nature of the impact, explaining that her body jerked "back and forward" "like a rag doll." Following up on plaintiff's characterization, defense counsel asked plaintiff on cross-examination "I guess the seatbelt didn't work, did it?" The court sustained opposing counsel's objection and instructed the jury to disregard the comment. The court also sustained the objection to defense counsel's comment "[s]o the back of your vehicle must have been totaled?", in response to plaintiff's confirmation, on cross, of her earlier deposition testimony that the impact was "medium to heavy." When asked about property damage, plaintiff said "there was damage to the bumper." Defense counsel then showed plaintiff photographs depicting two nicks on the bumper and asked her if the photos fairly and accurately depicted the damage to plaintiff's car, to which plaintiff responded "I don't recall." The court sustained counsel's objection to the photos, which were apparently taken after plaintiff's bumper cover had been replaced, and therefore were never admitted into evidence. Nor were any estimates of property damage or invoices even proffered, let alone introduced into evidence. Finally, when defense counsel asked plaintiff whether the property damage was less than $1000, the court again sustained the objection and instructed the jury not to consider any reference to property damage.
At the close of evidence and prior to summations, the court cautioned both counsel not to mention the nature of impact in closing statements. Despite this directive, plaintiff's counsel in summation used the word "smashed" to describe the rear-end hit and to suggest the causative correlation:
There is no other cause of these injuries in this case. There is no other evidence of trauma. There's no other evidence of pre-accident symptoms. There's no evidence of limitation. This can be linked directly to April 18, 2002 when defendant Reid carelessly smashed her vehicle into the rear of Danielle Paradowski. [(emphasis added).]
Although defense counsel objected, the court took no immediate corrective action. Instead, in its final charge to the jury, the court specifically instructed:
In his closing remarks, [plaintiff's counsel] described the defendant's vehicle as having smashed into the rear of the plaintiff's vehicle. You are directed to disregard that description of the accident, and you shall not make use of that in your deliberations. You shall not speculate as to the severity or lack of severity of impact. Impact may have no correlation to injury. For instance, . . . slight impact may in some cases cause significant injury, and severe impact in some cases may cause minimal or no injury.
You are directed not to speculate as to how impact relates to causation of injury in this matter. [(emphasis added).]
Thus, the court clearly informed the jury that there was no relationship between the force of the impact and the existence and extent of plaintiff's personal injuries. As noted, the jury returned a verdict of no-cause of action.
On appeal, plaintiff raises the following issues:
I. THE COURT ERRED IN DENYING PLAINTIFF'S MOTION IN LIMINE #6, AFTER IT GRANTED PLAINTIFF'S MOTION IN LIMINE #1 BARRING DEFENDANT'S PROFERRED BIOMECHANICAL EXPERT'S TESTIMONY, WHICH ERROR PERMITTED DEFENDANT TO IMPROPERLY REFERENCE THE ALLEGED MINIMAL IMPACT BETWEEN THE VEHICLES.
II. IRRESPECTIVE OF THE FOREGOING, DEFENSE COUNSEL'S CHARACTERIZATION OF THE IMPACT AS A "TAP" AND A "MINOR" IMPACT AND HER REPEATED IMPROPER CROSS-EXAMINATION HAD NO SUPPORT IN THE RECORD AND DEPRIVED PLAINTIFF OF A FAIR TRIAL.
III. PHOTOGRAPHS OF VEHICLE DAMAGE OR OTHER EVIDENCE OF VEHICLE SPEED OR IMPACT ARE NOT RELEVANT FOR THE PURPOSES OF ESTABLISHING THE NATURE, EXTENT, OR SERIOUSNESS OF AN INJURY.
We have considered each of these issues in light of the record, the applicable law, and the arguments of counsel, and find no warrant for interference with the jury's verdict.
Plaintiff essentially argues that by denying her in limine motion, the court impermissibly allowed reference to "impact" evidence without expert biomechanical support. In this regard, she relies exclusively on our decision in Brenman, which held that photographs showing minimal damage to an injured motorist's vehicle following a rear-end collision could not be used to infer that the accident was not the cause of the motorist's injuries, in a personal injury action against a defendant driver, without expert proof correlating the severity of impact and likelihood of injury. 383 N.J. Super. at 536-37. We were careful to point out in Brenman, however, that our holding should not be construed broadly to require expert testimony in every case in order for jurors to be permitted to view photographs of vehicles involved in an accident. As noted, photographic evidence is neither automatically admissible nor excludable, but rather subject to the sound exercise of the trial court's discretion.
Whether an expert foundation is required depends, of course, on the particular issue in the case to which the photographic evidence relates. Here, that issue was causation and because no expert proof of correlation was produced, we hold that the introduction of the photographs without restriction on their use and the use actually made of them by the defense constitute reversible error. [Id. at 537-38.]
In reversing this determination, the Supreme Court rejected a per se rule requiring expert testimony of a causal link when photographs of vehicle damage are offered to prove either the cause or the extent of the occupant's injuries and consequently held that 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 plaintiff Brenman's car and allowed defendant 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. State v. Brenman, ___ N.J. ___ (A-13-06, decided May 30, 2007), slip op. at 18 to 22. The Court reasoned that in the absence of competent proofs to the contrary, the aggregate of everyday knowledge and experience fairly entitles a jury to infer there is a proportional relationship between the amount of force applied and the injuries resulting therefrom. Ibid.
In fairness to plaintiff, the Court's recent Brenman decision was issued well after the filing of this appeal, and essentially disposes of her arguments that it was reversible error to permit defendant to reference the impact between the vehicles. As the Court observed, "jurors 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." Ibid. Thus, given the fact that plaintiff offered no competent proof to the contrary, defense counsel did not ask the jury to make an impermissible inference.
Of course, plaintiff further argues that there was no foundation in the evidence for defense counsel to question her about the photographs or to refer to a "minor tap" in opening. Unlike Brenman, where defense counsel's triple reference to "fender bender" played such a prominent role in the defense and contradicted its own medical expert who opined that no connection or correlation existed between the impact and injury in that case, 383 N.J. Super. at 537, here, in sharp contrast, the photographs were not admitted into evidence and the jury was both informed they did not accurately depict the condition of the vehicle at the time of the accident and instructed, in any event, to disregard any reference to property damage. Furthermore, each of plaintiff's challenges to questions posed by defense counsel on cross-examination was immediately sustained by the trial judge. In fact, plaintiff was the first to mention impact or force when she described on direct examination being thrown about like a "rag doll", thereby inviting a corresponding response by defense counsel who characterized the rear-end hit as "minor" and a "tap". Continuing this theme into summation, despite the court's express admonition to the contrary, plaintiff's counsel again commented on force and impact, characterizing the hit as a "smash". In contrast, defense counsel, heeding the court's warning, did not mention impact or force in her closing statement. And most significantly, the trial court clearly and unequivocally gave a limiting instruction in its final jury charge, addressing comments by both counsel during trial, explicitly advising the jury that there was no relationship between the force of the impact, or lack thereof, and the existence, nature or severity of the injuries claimed to be suffered by plaintiff. Although prompted by plaintiff's counsel's remark, the court's limiting instruction plainly applied to both counsel and to the entirety of the trial. Contrary to plaintiff's assertion, the instruction was fair and balanced, specifically advising that "significant impact may result in little or no injury, while a minor impact may result in serious injury."
We presume that the jury heeded the court's clear and plain instruction. State v. Manley, 54 N.J. 259, 270 (1969). Moreover, we are satisfied that, considering plaintiff's counsel's own commentary, that of defense counsel was not prejudicial, and because both were neutralized by the judge's instruction, no clear capacity for an unjust result was created in this case.