ISSA M. TWAL and ANJA Y. TWAL v. CELINA A. HINDS

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4296-06T14296-06T1

ISSA M. TWAL and

ANJA Y. TWAL,

Plaintiffs-Respondents,

v.

CELINA A. HINDS,

Defendant-Appellant.

___________________________________

 

Submitted June 4, 2008 - Decided

Before Judges Lihotz and King.

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

David E. Rehe & Associates, attorneys for appellant (John J. Kapp, on the brief).

Epstein Arlen, LLC, attorneys for respondents (Daniel N. Epstein, on the brief).

PER CURIAM

Following a damages-only trial in this auto negligence action, the jury rendered a verdict in favor of plaintiff Issa Twal 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 surprise because the expert's testimony introduced the radiologist's findings, which were impermissible hearsay, citing Brun v. Cardoso, 390 N.J. Super. 409 (App. Div. 2006).

We do not view these facts as akin to the facts in Brun. In Brun, the plaintiff produced the trial testimony of a previously undisclosed expert to testify regarding MRI results because the radiologist who performed the test was unavailable. Id. at 415. The new expert's opinion was the plaintiff's injuries were more severe than disclosed by the initial expert. Ibid. The defendant asserted surprise that could not be cured and sought to bar the witness and dismiss the plaintiff's complaint. Ibid. Our opinion centered on the correctness of the order of dismissal with prejudice in light of the less severe remedy of granting a mistrial. Id. at 419.

Defendant admits Dr. Nehmer was qualified to read the MRI, but asserts his discussion "bootstrapped" the inadmissible radiologist's report. We reject this suggestion. Instead, we view Dr. Nehmer's testimony, which may have been partially based on the radiologist's report and confirmed by his individual review of the MRI films, to properly comply with Evidence Rule 703, which permits an expert to base an opinion on facts or data "reasonably relied upon by experts in the particular field," even if those facts or data are not admissible into evidence. N.J.R.E. 703.

The defense was prepared for Dr. Nehmer's testimony, which was consistent with both his report and his deposition. We see no basis for the defense's claim that it was unfairly prejudiced, and we find no abuse of discretion in the trial judge's ruling.

We need make only limited comment on defendant's objection to Dr. Nehmer's testimony regarding the extent and cost of plaintiff's anticipated surgery and the related challenge to plaintiff's testimony regarding what he was told about the need for surgery and the extent of the operation. The jury awarded no damages to plaintiff for future medical expenses. Were the trial judge's decision to admit the testimony error, it was harmless and no evidence supports defendant's speculative contention that Dr. Nehmer's testimony improperly tainted the jury's damage award. The trial court properly instructed the jury on this issue and we assume the jury followed the court's instruction and found for the defendant on this question. Bardis v. First Trenton Ins. Co., 397 N.J. Super. 138, 151 (App. Div. 2007); Clark v. Piccillo, 75 N.J. Super. 123, 134 (App. Div. 1962).

Defendant's argument that the court erred in responding to the jury's question also warrants limited discussion. During deliberations, the jury asked "[p]lease redefine the meaning of permanent injury." In response, the trial judge read the first paragraph of the then two-paragraph model charge. Model Jury Charge (Civil), 5.42(B). Defendant argues the court should have read the entire charge.

The trial judge viewed the jury's inquiry to obtain the definition of a permanent injury and reread the first portion of the model charge containing the definition. The second paragraph of the charge addresses the plaintiff's burden of proof. We perceive no error resultant from the court's response to the jury's question.

Finally, defendant seeks review of what she characterizes as the trial court's limitation of the cross-examination of plaintiff. After plaintiff stated on direct he was referred to a treating physician "by a friend," the defense sought to use the initial patient questionnaire completed by plaintiff to show he consulted with counsel prior to obtaining medical treatment. The trial judge concluded "[t]here is absolutely [nothing] wrong about going to a lawyer and there's absolutely no reasonable fair inference that this jury should be making based upon somebody going to a lawyer, period." We agree. R. 2:11-3(e)(1)(E).

Our review discerns no miscarriage of justice and we conclude the trial court's ruling denying defendant's motion for a new trial will not be disturbed. R. 2:10-1.

Affirmed.

 

Because the claims of Anja Y. Twal, the wife of Issa M. Twal, are derivative, we refer to Issa M. Twal as "plaintiff" in this opinion.

In October 2007, the Supreme Court revised this charge, which is now found at 5.33(B) in the reorganized renumbered charges.

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A-4296-06T1

July 18, 2008