SYLLABUS
(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).
Argued November 29, 2006 -- Decided May 30, 2007
RIVERA-SOTO, Jr., writing for a majority of the Court.
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.
SUPREME COURT OF NEW JERSEY
A-
13 September Term 2006
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.
Argued November 29, 2006 – Decided May 30, 2007
On certification to the Superior Court, Appellate Division, whose opinion is reported at
383 N.J. Super. 521 (2006).
Kathleen S. Murphy argued the cause for appellants (Connell Foley LLP, attorneys).
Michael F. Wiseberg argued the cause for respondents (Leonard & Leonard, P.A., attorneys).
Bruce H. Stern argued the cause for amicus curiae, Association of Trial Lawyers-New
Jersey (Stark & Stark, P.C. and Pellettieri, Rabstein & Altman, attorneys; Mr. Stern,
Michael G. Donahue, III, and Anne P. McHugh, on the brief).
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 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.
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 See footnote 1 alleging that her injuries were the direct and proximate result of defendant’s negligent behavior that resulted in the car accident. See footnote 2 Seeking to minimize, if not defeat, plaintiff’s claim –- which she asserted at trial totaled $713,000 -- defendant intended to offer into evidence photographs See footnote 3 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 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 plaintiff’s “in limine motion regarding the photographs of the automobile.” Acknowledging that “[t]here’s never been a dispute among the parties that [plaintiff] had minor damage to the rear of her car[,]” 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 plaintiff’s automobile and her physical injuries. In plaintiff’s view, “it would be so prejudicial to let the jurors speculate on the relationship between one photograph and [plaintiff’s] 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 of 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, See footnote 4 defendant argued that the photographs were admissible for several reasons: to prove the severity of the impact; to describe the physical damage to plaintiff’s vehicle; to allow the jury to infer the amount of force needed to cause that damage; and to determine whether and to what extent plaintiff’s 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 “[c]ertainly 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 “anticipat[ion] 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
where the photographs have been offered not to prove causation but, instead, to address the disputed issue of the severity of impact[,] the photographs were not scientific evidence so as to [re]quire expert testimony[,] and no expert testimony is needed to describe the physical damage of the vehicle or to allow the jury to infer . . . the force that would cause the damage. Jurors can infer from their viewing photographs that the plaintiff could not have been as seriously injured as she claimed . . . . It is also appropriate for defendant to comment on the photographs and to argue the inferences to be drawn therefrom in an effort to refute the plaintiff’s experts’ medical testimony as to the seriousness and permanency of the injuries sustained.
[(emphasis supplied).]
The trial court thus found that “the photograph is admissible under the circumstances
of this case” because “[w]e do anticipate that there will be investigating officer[]
testimony, which will further be probative as to the condition of the vehicles
at the scene of the accident.”
See footnote 5
At trial, defendant conceded that she was liable for the accident, but, relying
in large measure on the photographs, she contested whether plaintiff’s injuries were caused
by the accident and, if so, to what extent. Thus, during her opening
statement to the jury, defendant’s counsel explained that “Stephanie was driving under 10
miles an hour when she tapped the rear of this car bumper to
bumper. That’s what happened. That’s the photograph.”
Plaintiff presented her case-in-chief, including the testimony of her medical expert, Dr. Paul
Ratzker, a neurosurgeon. He opined that the cause of plaintiff’s symptoms was osteophyte,
an abnormal protrusion of bone. He explained that osteophyte is a degenerative condition
that frequently is a byproduct of the aging process. He testified that, in
plaintiff’s case, the bone protrusion in her spine was pressing against the nerve
root, thus causing plaintiff’s maladies. He explained that plaintiff’s osteophyte existed prior to
her car accident, but that the trauma of the accident caused plaintiff’s bone
protrusion to impact her nerve root. Dr. Ratzker acknowledged, however, that no objective
findings of the osteophyte had been found for at least four to six
months after the accident, and that only an MRI disclosed that condition.
In order to counter defendant’s assertion that the force of the impact was
too slight to cause, either in whole or in part, the injuries claimed
by plaintiff, on re-direct examination Dr. Ratzker addressed the correlation between the amount
of force applied to the rear bumper of plaintiff’s car and the cause
and extent of plaintiff’s injuries. In his view, the cause of plaintiff’s injuries,
which he described as an “extension flexion injury,” “totally depends on the momentum
or the velocity of [the car’s] seat against the patient’s upper back. It
doesn’t have anything to do with what happened to the bumper or what
not.”
T
he core of the
defense was presented through the testimony of defendant’s medical
expert, Dr. Eric Fremed, a neurologist. Although he candidly agreed that plaintiff required
surgery to correct her spinal problems, he strongly disagreed that plaintiff’s ailments were
caused by the accident. In Dr. Fremed’s own words, “I’m simply saying that
[the] need for surgery has nothing to do with the accident.” According to
Dr. Fremed, plaintiff’s condition was degenerative in nature, one “that takes years to
form” and one that was not caused by the trauma of the automobile
accident.
In her closing argument, defendant returned to the theme first explored in her
opening statement: that the slight impact between her car and plaintiff’s car could
not have caused plaintiff’s injuries. She argued to the jury, in part, as
follows:
I opened as a fender bender. I’m going to close as a fender
bender. That’s what [it] was. [Plaintiff and her husband], however . . .
now want [defendant] to pay for some close to $400,000 in future lost
wages, some $270,000 they’re claiming for future household items, for a surgery, a
triple cervical fusion all as a result of that. All as a result
of that fender bender.
. . . .
My client Stephanie Demello is being charged with a lot of things, all
this future income, all these household services, all this money, all this injury
from a minor fender bender. I opened with it, ladies and gentlemen, and
I’ll close with it. This is a fender bender. This is not a
lottery.
Plaintiff did not object contemporaneously to those remarks, either when made or at
the close of defendant’s summation.
After being charged on proximate causation in the context of a claim of
aggravation of a preexisting condition that was asymptomatic at the time of the
accident, and later, at the jury’s request, being re-instructed on the concept of
proximate cause, the jury determined that defendant’s actions were not the proximate cause
of plaintiff’s injuries and returned a verdict of no cause of action.
Plaintiff filed a motion for a new trial, principally arguing that it was
error to admit the photographs without an appropriate limiting instruction, and that defendant’s
repeated reference to the accident as a “fender-bender” caused the jury to speculate
as to the cause of plaintiff’s injuries without the benefit of expert biomechanical
testimony. The trial court denied plaintiff’s motion, specifically stating that it would “not
substitute [its] judgment for that of the jury who entered what [it] believe[d]
to be a fair and just verdict under the circumstances.” The trial court
noted that, while it might “have been somewhat surprised by the outcome, [it]
certainly wasn’t shocked by it.” It explained:
The determination by the jury in finding against the plaintiff was certainly within
the realm of probability based upon the evidence submitted. Credibility –- the credibility
of the plaintiff and the plaintiff’s witnesses were certainly an issue, perhaps to
a higher degree than other trials [the court had] been involved in .
. . . But this was -- this was a trial which was
well presented by both sides, and the jury made a determination, which [the
court is] satisfied should not be set aside and should stand.
Speaking directly to the issue of the photographs, the trial court noted that
the matter
was evidential, and you say
[“
]well, it was prejudicial[.” I]n [the court’s] opinion[,]
all evidence presented by both sides is prejudic[ial.] The question is, is it
unduly prejudicial? Is it unfair to present that under the circumstances? And [the
court does not] believe that it was unfair. [I]n compliance with the Rules
of Evidence, the attorneys were able to present on behalf of their respective
clients significant testimony . . . . [The court does] not find that
there was a miscarriage of justice, nor do[es the court] find that the
plaintiff’s case was unduly prejudiced by the presentation and admission into evidence of
the photograph of the plaintiff’s vehicle . . . . [I]t was totally
fair and appropriate to introduce that photograph . . . . [T]he trial
was conducted appropriately, the evidence submitted, including the photographs[,] was appropriate, the charge
. . . given to the jury [] was also appropriate . .
. .
On appeal, plaintiff contended that the trial court erred in admitting the photographs
without a corresponding limiting instruction restricting their use to prove causation. Plaintiff also
argued that, by failing to require expert testimony as to the link between
vehicle damage and the occupant’s injuries, the trial court erred when it allowed
defendant to invite the jury to speculate as to that link. The Appellate
Division agreed, and reversed and remanded the case for a new trial. Brenman
v. Demello,
383 N.J. Super. 521, 538 (App. Div. 2006). Defining the issue
as the intersection between “the physics of a particular accident” and “a particular
injury to a particular individual[,]” the panel held that “a party’s use of
photographs depicting minimal vehicular damage to suggest just such a causative correlation invites
and encourages jury supposition and conjecture, without a basis in the evidence, that
the plaintiff’s injuries could not have been caused by a relatively minor accident.”
Id. at 535-36. Endorsing the analysis embraced by the Supreme Court of Delaware
in Davis v. Maute,
770 A.2d 36 (Del. 2001), 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. Brenman, supra, 383 N.J. Super.
at 535. The Appellate Division concluded that “the cumulative effect of admitting the
photographs without a limiting instruction and allowing counsel to prominently argue an improper
inference resulted in an unfair verdict” requiring a new trial. Id. at 536.
The panel cautioned, however, that its “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.” Id. at 537. It
explained that “photographic evidence is neither automatically admissible nor excludable, but rather subject
to the sound exercise of the trial court's discretion.” Ibid. It noted that
“[w]hether an expert foundation is required depends, of course, on the particular issue
in the case to which the photographic evidence relates.” Ibid. The Appellate Division
nonetheless concluded that “because no expert proof of correlation was produced . .
. 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.
We granted defendant’s petition for certification.
187 N.J. 492 (2006). On application, we
also granted leave to appear as amicus curiae to the Association of Trial
Lawyers of America–New Jersey (ATLA-NJ). For the reasons that follow, we reverse the
judgment of the Appellate Division and reinstate the judgment of the Law Division.
Defendant asserts that the Appellate Division’s decision cannot be reconciled with prior, long-standing Appellate Division precedent. According to defendant, those earlier decisions render admissible photographs of vehicle damage whenever the severity of the impact is at issue. Thus, defendant argues, to the extent the Appellate Division incorrectly distinguished prior precedent and relied instead on the decision of the Supreme Court of Delaware in Davis, the panel’s reasoning must be rejected. Defendant also urges that New Jersey should remain within the majority of jurisdictions that allow juries to make the common sense inference that a minor vehicle impact suggests minor occupant injury, and vice versa.
Distinguishing between causation and the extent of damages, plaintiff asserts that prior precedent allowed the admission of photographs of vehicle damage when the issue was the severity of the injuries suffered and not whether the injuries were caused by the accident. Categorizing this case as one where causation is the primary issue, plaintiff argues therefore that defendant’s reliance on prior precedent is misplaced. In plaintiff’s view, there is sufficient scientific literature to challenge any inferentially based correlation between the amount of vehicle damage and the infliction of injuries on the occupants. That is why, plaintiff explains, the methodology adopted by the Appellate Division represents the better reasoned approach.
Closely hewing to a relevance analysis, amicus ATLA-NJ supports the position advocated by plaintiff, asserting that photographs of vehicle damage are not relevant to establishing either causation of injury or the nature, extent, or seriousness of injury. That is our inquiry’s starting point.
Like any other evidence tendered at trial, photographs must be relevant; that is, they must “hav[e] a tendency in reason to prove or disprove any fact of consequence to the determination of the action.” N.J.R.E. 401. Once deemed relevant, the evidence is admissible “[e]xcept as otherwise provided in these rules or by law[.]” N.J.R.E. 402. 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. W e have stated the rule as follows: “[t]he authentication of photographic evidence prior to its admission seems to contemplate proof that the photograph is a substantially correct representation of the matters offered in evidence, and this includes an identification or statement as to what the photograph shows.” State v. Wilson, 135 N.J. 4, 14 (1994) (citations, internal quotation, and editing marks omitted).
No challenge has been interposed here as to whether the photographs of the rear of plaintiff’s car were “a substantially correct representation of the matters offered in evidence” or whether the record includes “an identification or statement as to what the photograph[s] show[].” Ibid. The sole issue raised 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, we gauge that action against the palpable abuse of discretion standard. Green v. N.J. Mfrs. Ins. Co., 160 N.J. 480, 492 (1999) (holding that “[t]he trial court is granted broad discretion in determining both the relevance of the evidence to be presented and whether its probative value is substantially outweighed by its prejudicial nature” and that “[d]eterminations 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” (citations and internal quotation marks omitted)). An answer to the question posed in this appeal therefore requires that we explore some of the limits of expert testimony.
We have explained:
Pursuant to the New Jersey Rules of Evidence, “scientific, technical or other specialized knowledge” by a witness “qualified as an expert by knowledge, skill, experience, training, or education” may be admissible “in the form of an opinion or otherwise” if the expert testimony will assist the jury “to understand the evidence or to determine a fact in issue.”
[State v. Townsend, 186 N.J. 473, 490 (2006) (quoting N.J.R.E. 702).]
We further have noted that
the rule sets forth three basic requirements for the admission of expert testimony:
(1) the intended testimony must concern a subject matter that is beyond the
ken of the average juror; (2) the field testified to must be at
a state of the art that an expert’s testimony could be sufficiently reliable;
and (3) the witness must have sufficient expertise to offer the intended testimony.
[State v. Torres,
183 N.J. 554, 567-68 (2005) (citations and internal quotation marks
omitted).]
It is the first requirement for the admissibility of expert testimony -- that
“the intended testimony must concern a subject matter that is beyond the ken
of the average juror” -- that is squarely implicated by the issue posed
in this appeal.
Plaintiff asserts that, in an automobile accident, there is no correlation between the
amount of vehicle damage and the infliction of injuries on the occupants or
the extent thereof and, hence, expert testimony is needed in order to link
them. We do not accept that proposition because, 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. We acknowledge
those instances where slight force causes grave injury -- a simple misstep off
a sidewalk curb resulting in a compound, complex fracture of the leg –-
as well as those where great force results in little or no injury
-- the child who miraculously survives a fall out of a high-rise window,
or the driver who walks away unscathed from a hideous car crash. Those
instances inhabit, however, the margins of common knowledge. 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.
Thus, although “[i]t must be conceded that the force of the impact, when
two automobiles collide, does not necessarily justify an inference that the occupants of
the vehicles sustained serious physical injuries[,]” Gambrell v. Zengel,
110 N.J. Super. 377,
380 (App. Div. 1970),
[a]t the same time it is a generally accepted rule that evidence of
the speed at which the colliding cars were traveling, the severity of the
physical impact and the manner of the happening of the accident is admissible
where there is an issue as to the seriousness of plaintiff’s injuries. And
this, too, despite admitted liability.
[Ibid.]
But see Suanez v. Egeland,
353 N.J. Super. 191, 201-03 (App. Div. 2002)
(holding that “defendant failed to establish a reliable scientific foundation for [the] purported
expert opinion on the basis of [the expert]’s own research work, authoritative scientific
literature or persuasive judicial decisions” and that “there is no reliable scientific foundation
in bio-mechanical studies for an expert opinion that a low-impact automobile accident cannot
cause a . . . serious 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.
In a similar and more recent setting, the Appellate Division addressed both the
admission of photographs showing damage to a vehicle involved in a collision and
counsel’s argument based thereon. Spedick v. Murphy,
266 N.J. Super. 573 (App. Div.),
certif. denied,
134 N.J. 567 (1993). The panel summarily dispatched the argument that
the photographs should not be admitted into evidence; it referred solely to the
standard for admission of a photograph, and concluded that “[t]he photographs, as explained,
fairly and accurately depicted the condition of the automobile immediately following the accident,
and thus, were properly admitted into evidence.” Id. at 590. Significantly, in respect
of the argument made by counsel based on the photographs, the Appellate Division
explained that “[i]t is fundamental that counsel may argue from the evidence any
conclusion which a jury is free to arrive at.” Ibid.
We too have embraced that rule. We have held that, “[a]s a general
matter, counsel is allowed broad latitude in summation[.]” Bender v. Adelson,
187 N.J. 411, 431 (2006) (citations, internal quotation, and editing marks omitted). We have emphasized
that “[s]ummation commentary, however, must be based in truth, and counsel may not
misstate the evidence nor distort the factual picture.” Ibid. (citation and internal quotation
marks omitted). The potential peril incurred by a transgressor is clear: “When summation
commentary transgresses the boundaries of the broad latitude otherwise afforded to counsel, a
trial court must grant a party’s motion for a new trial if the
comments are so prejudicial that ‘it clearly and convincingly appears that there was
a miscarriage of justice under the law.’” Ibid. (quoting R. 4:49-1(a)).
On the whole, that analysis leads us to conclude 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’s car
-– the place where her car was struck by defendant’s car -- and
allowed defendant’s counsel to argue that neither the cause nor the extent of
plaintiff’s injuries could have been the proximate result of the impact. We commend
and therefore repeat the analysis applied by the trial court: if evidence is
relevant, it is to be admitted unless its probative value is substantially outweighed
by its undue prejudicial effect and, once admitted, counsel is permitted to argue
to the jury based on that evidence.
The Appellate Division, however, viewed this matter differently. According to the panel, “[p]hotographs alone cannot provide definitive evidence that the physics of a particular accident -- the general forces at work in a collision determined by physical forces analysis -- did or did not cause a particular injury to a particular individual.” Brenman, supra, 383 N.J. Super. at 535. That iteration, however, overstates the issue. The admissibility of any evidence cannot be dependent on whether that evidence is “definitive,” a concept that speaks to the weight of the evidence and not its admissibility. In order for evidence to be presumptively admissible, we require only that the evidence be relevant. Relevance is measured in terms of reasoned probabilities, not hardened certainties, and is properly gauged as “having a tendency in reason to prove or disprove any fact of consequence to the determination of the action.” N.J.R.E. 401. Once evidence is deemed relevant, it is admissible, N.J.R.E. 402, unless “its probative value is substantially outweighed by the risk of [] undue prejudice,” N.J.R.E. 403, or some other bar to its admission is properly interposed. Nothing more is required.
We add only the following. The reasoning of the Appellate Division was strongly influenced by the decision of the Supreme Court of Delaware in Davis, supra. There, applying the same analytical construct on which we rely, it was held that, “[a]s a general rule, a party in a personal injury case may not directly argue that the seriousness of personal injuries from a car accident correlates to the extent of the damage to the cars, unless the party can produce competent expert testimony on the issue.” Davis, supra, 770 A.2d at 40 (footnote omitted). The Delaware Supreme Court further held that, “[a]bsent such expert testimony, any inference by the jury that minimal damage to the plaintiff’s car translates into minimal personal injuries to the plaintiff would necessarily amount to unguided speculation.” Ibid.
We cannot subscribe to the limits of Davis’s logic. 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. See footnote 6
Finally, we acknowledge those cases outside the heartland of common knowledge where slight force causes great injury or where great force causes little injury. In order to account for those possibilities, where photographs of vehicle damage are admitted, the trial judge should remind the jury that some bad accidents result in little injury, that some minor accidents result in serious injury, and that, therefore, the level of damage to a vehicle is but one factor to be considered, along with all of the other evidence, in determining the level of plaintiff’s injuries resulting from the accident. We commend the matter to the Supreme Court Committee on Model Civil Jury Charges for the formulation of an instruction to that effect.
The judgment of the Appellate Division is reversed, and the judgment of the Law Division is reinstated.
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.
SUPREME COURT OF NEW JERSEY
A-
13 September Term 2006
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.
JUSTICE ALBIN, concurring.
I concur with most of the majority’s analysis, though I do find the
admissibility of the photographs to be a close issue. Because I believe that
lay testimony describing the force of impact and personal injury is permissible, photographs
corroborating that testimony by depicting vehicular damage must be admissible too. I disagree
with the majority that there is “certainty of proportion” in relation to force
of impact and personal injury. See ante at __ (slip op. at 19).
Based on its common knowledge and experience, and depending on the condition of
the victim and all of the surrounding circumstances, a jury may infer that
a slight impact in a motor vehicle accident generally results in a slight
injury. To the extent that the photograph corroborates the nature of the impact,
the photograph has probative value. On the other hand, with or without a
photograph, the jury is not required to draw what may seem a natural
inference -- slight impact equals slight injury -- if it is inconsistent with
the available evidence.
To accept plaintiff’s argument that the admissibility of a photograph is conditioned on
expert testimony explaining how biomechanical forces caused personal injury in a motor vehicle
crash would likewise require expert testimony in every motor vehicle accident involving personal
injury to prove causation, even without a photograph. Because I cannot accept that
proposition, I concur with the majority.
SUPREME COURT OF NEW JERSEY
A-
13 September Term 2006
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.
JUSTICE WALLACE, JR., dissenting.
I respectfully dissent.
To be sure, it is common nature for a fact-finder to conclude from
a photograph depicting minor vehicle damage that the resulting injuries were also minor.
However, that inclination should not influence the admissibility of the photographs. I agree
with the Appellate Division that “photographs depicting slight vehicular damage, although conceivably serving
other valid purposes, simply do not support, without corroborative expert proof, the inference
that the accident could not have caused the serious injury of which a
plaintiff complains.” Brenman v. Demello,
383 N.J. Super. 521, 533 (App. Div. 2006).
In this case, the issue was causation of plaintiff’s injuries. Because the parties
failed to present expert proof demonstrating that the slight damage to the vehicle
could not have caused plaintiff’s serious injuries, the photographs should not have been
admitted without restrictions on their use. In my view, the Appellate Division struck
the proper balance in holding that:
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.]
I would affirm the judgment substantially for the reasons expressed by the Appellate
Division.
SUPREME COURT OF NEW JERSEY
NO. A-13 SEPTEMBER TERM 2006
ON CERTIFICATION TO Appellate Division, Superior Court
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.
DECIDED May 30, 2007
Chief Justice Zazzali PRESIDING
OPINION BY Justice Rivera-Soto
CONCURRING OPINION BY Justice Albin
DISSENTING OPINION BY Justice Wallace
CHECKLIST
AFFIRM
Footnote: 1
The second count of the complaint alleges derivative, per quod claims by
Mitchell Brenman, plaintiff’s husband. Because his claims depend on the viability of his
wife’s claims, they are not necessary for the resolution of this case. For
that reason, all references to “plaintiff” address Rena Brenman alone.
Footnote: 2
The claims alleged against defendant Michael Demello, Stephanie’s fa
ther, arise only because
he owned the automobile invol
ved in the accident, a matter also not ne
cessary
for the resolution of t
his case. Hence, all references to “defendant” address Stephanie
Demello alone.
Footnote: 3 The trial record is unclear whether plaintiff produced in discovery, and defendant
offered at trial, one or more than one photograph; at points the parties
speak of but one photograph, yet at others they refer to the plural.
As best we can interpret, plaintiff produced two small photographs in discovery, which
were marked as a single trial exhibit. Defendant enlarged and based much of
her arguments on only one of the photog
raphs (which itself was marked as
a separate trial exhibit). All of the photographs were admitted in evidence. However,
during trial, defendant relied exclusively on the enlarged photograph alone.
For ease of
reference, we refer to “photographs” and not to a single one.
Footnote: 4
Ortiz v. Schubert, No. A-5081-02T2 (App. Div. May 17, 2004), certif. granted,
181 N.J. 546 (2004), cross-petition for certif. granted,
181 N.J. 545 (2004), appeal
dismissed as moot (Apr. 13, 2005). Defendant complied with Rule 1:36-3 regarding the
use of unpublished opinions.
Footnote: 5
During plaintiff’s cross-examination at trial, defendant laid the foundation for the admission
of the photographs. The trial court, consistent with its pre-trial, in limine ruling,
admitted the photographs in evidence. At that point, the trial court also rejected
plaintiff’s first request for a limiting instruction, explaining that prior precedent “permit[s] the
use of the photographs without a limiting instruction . . . .”
Footnote: 6
Davis, supra, concluded that “a party in a personal injury case may
not directly argue that the seriousness of personal injuries from a car accident
correlates to the extent of the damage to the cars, unless the party
can produce competent expert testimony on the issue.” 770 A.
2d at 40. Reasoning
that “[c]ounsel may not argue by implication what counsel may not argue directly[,]”
it also concluded that “defense counsel's characterization of the accident as a ‘fender-bender’
was improper,” ibid. For the reasons set forth above, supra, ___ N.J. ___
(2007) (slip op. at 20-22), we also do not adopt Davis’s automatic condemnation
of the use of the term “fender bender” by counsel.