TANIA FRANCO v. LAURA A. POPOVICH

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1368-07T21368-07T2

TANIA FRANCO,

Plaintiff-Respondent,

v.

LAURA A. POPOVICH,

Defendant-Appellant.

__________________________________________

 

Submitted July 8, 2008 - Decided

Before Judges C.S. Fisher and Grall.

On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Docket No. L-7824-05.

Youngblood, Corcoran, Lafferty & Hyberg, attorneys for appellant (Eric S. Robinson, on the brief).

David R. Castellani, attorney for respon-dent.

PER CURIAM

Defendant's appeal in this matter requires that we consider whether the trial judge erred in excluding photographs that depicted the condition of defendant's vehicle following the accident in question and in refusing to instruct the jury regarding the absence of an interpreter at plaintiff's deposition. Because we find that the judge mistakenly exercised his discretion in making both these rulings, we reverse and remand for a new trial.

Plaintiff commenced this action claiming that she sustained personal injuries. The complaint alleged that defendant negligently caused her vehicle to collide with the rear end of plaintiff's vehicle in Absecon on September 11, 2004. Defendant conceded liability.

A trial on the issue of damages took place on October 9 and 10, 2007. At the trial's commencement, plaintiff moved to bar defendant from making use of photographs of defendant's vehicle. In response, defendant argued that the photographs were admissible so long as they were properly authenticated and so long as there was testimony that they accurately depicted the condition of the vehicle following its impact with plaintiff's vehicle. The judge granted plaintiff's application and rejected defendant's argument that the photographs were admissible:

I'm going to deny the use of the photographs in this case. I believe that the mere admittance of photographs without more runs afoul of [Brenman v. Demello, 191 N.J. 18 (2007), a] case wherein the [C]ourt required that there be a nexus or a connection between the photographs and the proofs elicited. In other words, you've got to come in with a biomechanical expert or someone -- some expert that can draw a distinction in -- or draw a connection, if you will, between the damage suffered by the vehicle and the injuries suffered by the plaintiff, and we simply don't have that in this case.

The issue resurfaced at the conclusion of plaintiff's testimony, when the judge inquired whether the jury had any questions for plaintiff. The jury suggested a few questions, which were discussed by the judge and counsel at sidebar. One of the jury's questions sought information regarding "how much damage [was done] to car?" With that, defendant again argued that the judge had mistakenly barred his use of photographs of his client's vehicle. Defense counsel correctly argued that the Court in Brenman held that a party does

not need an expert to get in photographs of the property damage. You don't need a biomechanical expert. It's not required as a condition precedent when the cause and extent of plaintiff's injuries are at issue.

After additional discussion, the judge indicated that he would allow the question to be posed to plaintiff regarding property damage. Defense counsel again persisted that since the judge had deemed the extent of property damage to the vehicle to be relevant the photographs must also be relevant. In response, the judge only stated: "I'm not going to allow the photographs, no. She can testify as to what [the impact and monetary cost of repair] was, but I'm not going to allow the photographs."

Following the sidebar, some of the jury's questions were put to plaintiff, including the jury's question regarding damage to her car, which prompted the following testimony:

Q. How much damage to car?

A. Thousand dollar I think, close to a thousand dollar.

. . . .

Q. What was the force of impact at the moment of the accident?

A. Very strong.

The photographs that defendant sought to introduce into evidence could fairly be interpreted as suggesting something less than a "[v]ery strong" impact. Although the jury was interested in learning about the damage caused by the impact -- a matter which defendant was earnestly attempting to present to the jury -- the judge precluded this additional evidence.

The judge's understanding of Brenman was mistaken. The Court held in Brenman that no expert testimony is necessary to lay a foundation for the admission of photographs of vehicle damage. 191 N.J. at 34. The only requirements are that the photographs be authenticated, that what the photographs depict be relevant, and that the prejudice generated by the photographs not outweigh their relevance. Ibid. Here, we discern from his other rulings concerning the questions suggested by the jury that the trial judge recognized the relevance of the photographs. But the judge never allowed defendant to authenticate the photographs and never engaged in a balancing of the relevance and prejudice of the photographs. The judge's resolution of defendant's argument rested on his mistaken conclusion that Brenman required the exclusion of the photographs absent expert testimony. Because the trial judge's ruling was based on a misunderstanding of the applicable principles of law, we conclude that the exclusion of the photographs for the reasons indicated by the trial judge was erroneous and warrants a new trial.

Defendant argues that the judge erred in handling another circumstance that arose from the jury's request that plaintiff be asked certain questions. The jury suggested that plaintiff be asked whether she requested an interpreter during her deposition. We discern from the record that the jury sought to pursue this because, during her cross-examination at trial regarding the content of her deposition testimony, plaintiff responded at times that she did not understand the meaning of terms or the thrust of certain questions put to her at her deposition. In light of those responses, the jury likely wondered why an interpreter was not present at plaintiff's deposition. When the trial judge indicated that he would permit that question to be posed to plaintiff, defense counsel requested that the jury be instructed that whether there was a need for an interpreter at the deposition was the sole responsibility of plaintiff's attorney. The judge permitted the question, and plaintiff responded that she was not advised that she could have an interpreter present.

The next day, during a colloquy regarding the content of the judge's charge, defendant again argued that the jury should be instructed that the burden was on plaintiff and her attorney to ensure that an interpreter, if needed, was present at the deposition. He argued that it would be unfair for the jury to infer that plaintiff did not understand what was asked of her at her deposition when, prior to the deposition, only plaintiff and her attorney would be aware of a need for an interpreter. We agree.

The jury sought information from plaintiff during her trial testimony about being aware of a right to an interpreter. Plaintiff responded that she was not so aware. The jury could have used this testimony to excuse the alleged inaccuracies between plaintiff's trial testimony and her deposition testimony by assuming that plaintiff did not understand what was asked of her at the deposition. In light of the possibility that the jury might draw such an inference, the judge should have instructed the jury, as requested by defendant, that the obligation in the first instance was for plaintiff or her representative to indicate to defendant prior to the deposition that an interpreter was required and that, by failing to make such a request, and by failing to indicate -- at the deposition -- that the questions posed were not understood, the jury could also infer that plaintiff understood those questions and was not credible in asserting at trial that she did not then understand.

For these reasons, we conclude that the judge erred (1) in precluding the photographs of vehicle damage solely because defendant did not intend to offer expert testimony and (2) in refusing to provide appropriate instructions to the jury regarding the absence of an interpreter at plaintiff's deposition. These errors require that there be a new trial.

Reversed and remanded for further proceedings in conformity with this opinion.

We emphasize that we are not presently mandating the admission of the photographs at the new trial. We hold only that their admission must be determined by resort to the methodology referred to in Brenman. Here, that methodology was never invoked.

Plaintiff argues that during the course of the last colloquy on the subject of the photographs the trial judge reversed himself and permitted their use. The discussion upon which this contention is based is the following:

[DEFENSE COUNSEL]: -- if the [c]ourt is allowing questions on impact, if the [c]ourt is allowing questions on property damage, I think it only natural that the [c]ourt allow the photographs. I'm just renewing my opposition --

THE COURT: Okay, well, we can do it. I just don't want to do it right now --

[DEFENSE COUNSEL]: Yes.

THE COURT: -- if you want to bring it up, but I want to get to these questions [that the jury suggested be put to plaintiff].

[PLAINTIFF'S COUNSEL]: Judge, I'm just going to renew my objection based upon Your Honor's previous ruling. These questions all go to biomechanics. It's . . . seatbelt --

THE COURT: Okay, noted for the record.

Although, viewed in isolation, this colloquy might be interpreted as permitting admission of the photographs, we find it difficult to assume that this is what the judge meant. He had emphatically, on more than one occasion, rejected defendant's position on the subject. Without any clear indication that he had suddenly changed his mind and was now permitting what he had previously denied, we reject plaintiff's argument. Indeed, the colloquy is more logically understood as permitting defense counsel the right to pursue at greater length -- at a later occasion -- his position on the photographs' admissibility. That is, the "it" referred to by the judge undoubtedly refers to defendant's right to make a more thorough record of his position and not the admission of the photographs.

We note that an interpreter was not present during the trial.

Defense counsel argued to the judge, without contradiction, that the deposition notice requested whether an interpreter was required.

(continued)

(continued)

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A-1368-07T2

July 24, 2008