Brenman v. Demello

921 A.2d 1110, 191 N.J. 18, 2007 N.J. LEXIS 594
CourtSupreme Court of New Jersey
DecidedMay 30, 2007
StatusPublished
Cited by93 cases

This text of 921 A.2d 1110 (Brenman v. Demello) is published on Counsel Stack Legal Research, covering Supreme Court of New Jersey primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Brenman v. Demello, 921 A.2d 1110, 191 N.J. 18, 2007 N.J. LEXIS 594 (N.J. 2007).

Opinions

Justice RIVERA-SOTO

delivered the opinion of the Court.

This appeal presents a single issue germane to automobile accident cases: whether expert testimony is required as a condi[21]*21tion precedent to the admission of photographs of vehicle damage when the cause or extent of a plaintiffs 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 plaintiffs ear, 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, [22]*22plaintiff 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 plaintiffs 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. Kasoffs 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 complaint1 alleging that her injuries were the direct and proximate result of defendant’s negligent behavior that resulted in the car accident.2 Seeking to minimize, if not defeat, plaintiffs claim — which she asserted at trial totaled $713,000 — defendant intended to offer into evidence photographs3 produced by plaintiff [23]*23in discovery showing admittedly minimal damage to the rear bumper of plaintiffs 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 plaintiffs 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 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.

After the jury was selected, sworn, and excused for lunch, the trial court considered plaintiffs “in limine motion regarding the photographs of the automobile.” Acknowledging that “[tjhere’s never been a dispute among the parties that [plaintiff] had minor damage to the rear of her ear[,]” plaintiff asserted that “the sole purpose of this photograph is to try to show that ... there’s no way [plaintiff] could have sustained the injuries that she [asserts she] sustained in this accident.” According to plaintiff, “those matters are really scientific matters that require expert testimony through a biomechanical expert, an engineer, somebody who has the requisite training and experience to advise the jurors on the relationship between the damage or lack thereof’ to plaintiffs automobile and her physical injuries. In plaintiffs view, “it would be so prejudicial to let the jurors speculate on the relationship between one photograph and [plaintiffs] injuries.” Summing up, plaintiff argued that it is “the province of an expert to draw that type of conclusion” and that “it shouldn’t be to the jurors to wildly speculate on their own theories [by] looking at the rear of the car and then making a determination whether or not it can cause somebody’s injuries.”

In response, defendant asserted that “although defendants [will] present testimony describing the minimal impact [as the] amount [24]*24of impact, the photograph is demonstrative evidence bearing on that issue.” In defendant’s view, “the jury is entitled to see the demonstrative evidence of what is alleged [as] the nature, severity of the impact.” Relying heavily on an unpublished decision of the Appellate Division,4 defendant argued that the photographs were admissible for several reasons: to prove the severity of the impact; to describe the physical damage to plaintiffs vehicle; to allow the jury to infer the amount of force needed to cause that damage; and to determine whether and to what extent plaintiffs injuries were caused by that force.

The trial court, although originally “inclined to rule that the photograph would be inadmissible[,]” ultimately concluded that the photographs were admissible. Focusing on the balancing test embodied in N.J.R.E. 403, the trial court explained that “Certainly this is evidence which would otherwise be [ ]admissible, except for the fact that undue prejudice may be present.” It noted that “[p]hotographs of automobiles involved in collisions ... offered as probative of the severity of injuries have been deemed admissible in spite of undue prejudice claims.” It explained that “[t]he possibility of some inflammatory effect on the jury is compared with the relevancy[,] and [the] generally accepted admissibility of the photographs of the scene of an automobile accident is best left to the discretion of the trial court.” The trial court reasoned that the “anticipation] that the police officer who investigated at the scene will be here to testify” was “a very significant issue ... in determining ... whether or not there is any undue prejudice which would justify the exclusion of this otherwise admissible photograph.”

Addressing the discrete issue certified before us, the trial court explained that

[25]

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Bluebook (online)
921 A.2d 1110, 191 N.J. 18, 2007 N.J. LEXIS 594, Counsel Stack Legal Research, https://law.counselstack.com/opinion/brenman-v-demello-nj-2007.