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Frazier v. Allstate New Jersey Insurance Co.

November 8, 2010

RENEE FRAZIER, PLAINTIFF-RESPONDENT,
v.
ALLSTATE NEW JERSEY INSURANCE COMPANY, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Docket No. L-341-08.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued October 20, 2010

Before Judges Cuff and Fisher.

In defendant's appeal of a judgment awarding plaintiff $75,000 in this personal injury action, we affirm because the judge properly exercised his discretion: (1) in barring the jury's consideration of evidence of plaintiff's two subsequent accidents due to the lack of medical testimony linking them to plaintiff's claim of a herniated disc and (2) in excluding photographs due to the absence of a foundation that they depicted the damage to plaintiff's vehicle after the accident.

The record reveals that, on April 24, 2003, plaintiff Renee Frazier's vehicle was rear-ended by a vehicle operated by Kevin Daley. After the settlement of her suit against Daley for most of his $15,000 policy, plaintiff commenced this action against defendant Allstate New Jersey Insurance Company seeking underinsured motorist benefits.

Shortly before jury selection, plaintiff made two requests in the form of oral in limine motions. In one application, plaintiff sought to bar any reference to her involvement in prior or subsequent accidents, arguing that none of the doctors expected to testify would link the prior or subsequent accidents to her current complaints or injuries. The judge postponed his decision on this issue but, prior to submission of the case to the jury, concluded that because the medical testimony provided no nexus between the injuries and complaints in the suit and plaintiff's subsequent accidents, the jury could not consider the evidence of the subsequent accidents.*fn1 By way of the other application, plaintiff successfully sought the exclusion of photographs taken of her vehicle after the accident, claiming they did not accurately depict the damage sustained in the accident in question.

The jury returned a verdict in favor of plaintiff in the amount of $75,000, and defendant appealed, reprising his arguments in response to plaintiff's in limine motions, which defendant described in his appeal brief in the following way:

I. THE LOWER COURT ERRED IN INSTRUCTING THE JURY THAT THE SUBSEQUENT ACCIDENTS ARE NOT A FACTOR IN THIS CASE AND THAT THEY ARE TO IGNORE ALL TESTIMONY REGARDING THE SUBSEQUENT ACCIDENTS

A. The Jury should have been permitted to consider the alternative theory of causation that was created through the testimony of plaintiff and Dr. Joseph Gaffney.

B. Testimony regarding the subsequent accident is relevant and should have been permitted for impeachment purposes as to the testimony of both plaintiff and Dr. Joseph Gaffney.

II. THE LOWER COURT ERRED IN BARRING THE USE OF PHOTOGRAPHS TAKEN OF PLAINTIFF'S VEHICLE FOLLOWING THE APRIL 24, 2003 ACCIDENT

We find insufficient merit in these arguments to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). We add only the following brief comments.

As for Point I, the trial judge did not abuse his discretion in instructing the jury to disregard evidence of the subsequent accidents because he concluded that the medical testimony did not assert a causal connection between the herniated disc and the subsequent accidents. To place defendant's argument in its proper setting, plaintiff asserted at trial that she had suffered disc injuries as a result of the accident in question. Her evidence included testimony regarding lumbar and cervical MRI studies conducted on September 13, 2004. The lumbar films revealed a herniated disc at L2-3 encroaching upon the left neural foramina and bulging annuli at L3-4 and L4-5; the cervical films revealed a bulging annulus at C6-7 with the loss of cervical lordosis. The 2005 and 2007 accidents in which plaintiff was involved, and upon which defendant bases its arguments in Point I, occurred after these MRI studies were conducted. Notwithstanding that demonstrable fact, ...


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