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Twal v. Hinds

July 18, 2008


On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-3488-05.

Per curiam.


Submitted June 4, 2008

Before Judges Lihotz and King.

Following a damages-only trial in this auto negligence action, the jury rendered a verdict in favor of plaintiff Issa Twal*fn1 against defendant Celina Hinds, awarding plaintiff $150,000 plus prejudgment interest and the costs of suit. Defendant appeals from the order entering judgment alleging six trial errors, which she argues necessitate a new trial. Following our review, we affirm.

The facts are undisputed. On May 29, 2004, while plaintiff was stopped at a traffic signal, defendant's vehicle struck plaintiff's automobile in the rear. Plaintiff declined medical assistance at the scene, believing his injuries were not severe. Three weeks following the accident, plaintiff sought treatment with a specialist in pain management and commenced a course of physical therapy. Thereafter, a magnetic resource imaging (MRI) test and an electromyography (EMG) nerve test revealed injury to plaintiff's cervical and lumbar spine. The parties' medical experts did not dispute plaintiff was injured, but disagreed on the permanency of the asserted cervical and lumbar injuries and their causation. Following the jury verdict, the court denied defendant's motion for a new trial.

Prior to considering the issues raised, we note that defendant's arguments challenge the discretion exercised by the trial judge. We do not second-guess the exercise of sound discretion by a trial judge because we recognize "[j]udicial discretion connotes conscientious judgment, not arbitrary action; it takes into account the law and the particular circumstances of the case before the court." Higgins v. Polk, 14 N.J. 490, 493 (1954); see also DeVito v. Sheeran, 165 N.J. 167, 198 (2000) (appellate review requires substantial deference to trial court's evidentiary rulings). However, a "trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference." Manalapan Realty v. Manalapan Tp. Comm., 140 N.J. 366, 378 (1995).

Defendant first argues the court erred in denying her request to admit photographic evidence. The trial court barred the introduction of photographs of defendant's minivan, which showed no discernable damage to the vehicle's bumper, and her testimony regarding the estimated speed upon impact. At trial, defendant contested the nature and extent of the injuries plaintiff sustained as a result of the minor collision. No expert testimony was introduced linking the limited damage to defendant's minivan and the extent of the injuries sustained by plaintiff.

The trial judge denied defendant's application. Relying on our opinion in Brenman v. Demello, 383 N.J. Super. 521, 535 (App. Div. 2006), the judge concluded "there is simply too much chance of confusing and misleading a jury even with a curative instruction to permit the photographs and or speed of the vehicle or vehicles to be introduced."

Defendant maintains the Supreme Court's reversal of our determination and the Court's rejection of "a per se rule that require[d] 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," Brenman v. Demello, 191 N.J. 18, 28 (2007), required admission of the photographs.

"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." Brenman, supra, 191 N.J. at 21. A court may exclude otherwise admissible evidence "if its probative value is substantially outweighed by the risk of [] undue prejudice, confusion of issues, or misleading the jury . . . ." N.J.R.E. 403. "Determinations pursuant to N.J.R.E. 403 should not be overturned on appeal unless it can be shown that the trial court palpably abused its discretion, that is, that its finding was so wide off the mark that a manifest denial of justice resulted." Green v. N.J. Mfrs. Ins. Co., 160 N.J. 480, 492 (1999) (internal quotations omitted).

We disagree with defendant's argument that the photographs should have been admitted. In Brenman, the photographs sought to be introduced were of plaintiff's car to support the jurors' "everyday knowledge . . . that slight force most often results in slight injury." Brenman, supra, 191 N.J. at 32. Defendant proffered photographs of her vehicle to similarly suggest a relationship existed between her car damage and plaintiff's injuries. Nothing supports this conclusion. A comparable proposition could be that the unyielding toughness of defendant's vehicle exacerbated the impact experienced by plaintiff. Both propositions are speculative, making the photographs of negligible probative value.

Here, defendant not only conceded liability but also that plaintiff suffered injury from the accident. The issue for jury determination was limited to whether plaintiff's back injury was a bulging or herniated disc. In light of the limited probative value of the photographic evidence, which was substantially outweighed by the risk of potential prejudice, we conclude there exists no abuse of discretion in denying defendant's motion.

Defendant's second challenge addresses the denial of her application to limit the testimony of plaintiff's medical expert, Dr. Nehmer. Defendant maintains that the failure of plaintiff's expert to read plaintiff's MRI film when issuing his expert opinion prevents his reliance upon the radiologist's written test results when testifying. The court permitted Dr. Nehmer to review the MRI film prior to testifying and then to limit his opinion to his actual review. Dr. Nehmer testified the MRI films reviewed at trial were consistent with the MRI reports he reviewed in initially formulating his expert opinion. Defendant admits Dr. Nehmer was qualified to read the MRI, but asserted ...

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