GWENDOLYN O. HINTON v. KERRY F. BESSINGER

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4394-08T24394-08T2

GWENDOLYN O. HINTON

and SAMUEL S. HINTON,

her husband, per quod,

Plaintiffs-Appellants.

v.

KERRY F. BESSINGER,

Defendant-Respondent.

_________________________________

 

Argued: November 18, 2009 - Decided:

Before Judges Stern and Lyons.

On appeal from the Superior Court of New Jersey, Law Division, Civil Part, Middlesex County, Docket No. L-8455-06.

Mitchell H. Portnoi argued the cause for appellants (Prince & Portnoi, P.C., attorneys; Mr. Portnoi, on the brief).

John J. Kapp argued the cause for respondent (David E. Rehe & Associates, attorneys; Mr. Kapp, on the brief).

PER CURIAM

Plaintiff appeals from a judgment based on a jury verdict of no cause for action and the denial of a motion for reconsideration following an automobile accident on January 12, 2006. Plaintiff argues that the photographs of defendant's vehicle should not have been admitted into evidence "as the photographs did not depict the condition of the vehicle after the accident" and that Dr. Tiedrich "should have been permitted to testify as to the correlation (or lack of correlation) of the amount of damage to a vehicle and the amount of injury (or quality of injury) one can sustain as a result." We affirm the judgment.

Plaintiff's first claim is twofold: first, that the photos were taken after the defendant's car was repaired and, second, they were admitted when the judge changed her ruling as to admissibility following an initial ruling that they were inadmissible and after plaintiff had testified.

Plaintiff is correct that at an in limine application the trial judge ruled that the pictures would not be admissible at trial because of the repairs that had been made and their possible impact on other parts of his vehicle. However, in her testimony, plaintiff testified that defendant's "vehicle was banged up in the front," "was smashed in," "was banged," and "the front was . . . smashed in like a car accident." As a result, the judge permitted defendant to introduce the photos because plaintiff "took advantage" of the prior ruling when she testified the vehicle was "banged up" and "the hood was smashed in," and went into "detail about suggesting that there was such significant damage . . . she was suggesting that there was a significant amount of damage." Defendant was also permitted to testify regarding what he did and the lack of damage to parts of the car. The judge ruled that by plaintiff so testifying while knowing the pictures were not going to be presented to the jury, plaintiff had "free reign to say whatever she want[ed] without [defendant] having the better evidence to dispute it." The judge believed the plaintiff gave the impression there was "a tremendous amount of damage," which was "prejudicial to the defense." After looking at the photographs at the in limine hearing, the judge had believed that plaintiff would not get "into any sort of detail about defendant's vehicle after [her] ruling."

According to the judge's ruling:

. . . I'm not basing my decision on the fact that this was surprise, I'm basing my decision on the fact that I precluded the defense from presenting this because of the fact that the defendant had done something to it. With that understanding, I wouldn't expect you to go into the detail that you did with your client, although apparently it's consistent with her previous testimony, which is fine. But then I can't tie the hands of the defense and not allow them the opportunity to present relevant evidence to refute your position. It can't just be your client presents the pictures of her car and her testimony and then there's no pictures of the defense to counter it and, again, the reason I didn't permit it to be presented originally was because of the fact that he had tried to bang out whatever the damage was. But now he's entitled to present it to refute her testimony. On the other hand, you have every right, as I said, to cross examine him on it to show that this does not reflect what it looked like at the time, but he can counter that by saying right, but I banged it out in this area, but I didn't do anything in the front, if that's what he testified to, as I understand it, and the jury can reach their own conclusions, but you opened the door by asking those questions of your client and allowing her to go into the detail about the damage, the extreme extent of the damage to the defendant's vehicle.

"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 relies on the trial court's discretion." Brenman v. Demello, 191 N.J. 18, 21 (2007). The judge also has "sound discretion" regarding whether to admit the photo without expert testimony as to "a correlation between the damage to the vehicle and the cause or extent of injuries claimed by an occupant of the struck vehicle." Ibid. We find no basis for reversal.

In upholding the trial judge's exercise of discretion, we emphasize that defendant testified that the photographs were taken about six weeks after the accident and that, during that time, he had "beat . . . down" the hood with "a rubber mallet." He further testified "[e]verything [else] is the same as nothing has changed" since the accident. Moreover, plaintiff was recalled to the stand for rebuttal and had an opportunity to testify further about damage to the car, or to ask for leave to do so. We also note the charge as recommended by Brenman was given, and the jury was told that:

[t]he evidence in this case consists of testimony that you heard from witnesses and the exhibits that have been marked into evidence, which includes photographs, and I want to remind you that some bad acts 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 the other evidence in determining the level of plaintiff's injuries from the accident.

See Brenman, supra, 191 N.J. at 36.

Plaintiff also contends that a trained and experienced treating physician, such as Dr. Tiedrich, can testify as to correlation between impact and injury, and in fact does so in asserting causation. She asserts that such testimony should have been permitted, particularly to offset the photographs, and that Dr. Tiedrich's expertise flows from his treatment and care of patients and forensic expertise in similar cases. See N.J.R.E. 702.

The judge concluded that the doctor could testify with respect to causation, but was not "qualified" as "a biomechanical engineer or someone with that sort of training" to testify concerning the relation between damage to a car and the degree of injury. As noted, the judge gave the instructions about photos and impact, as provided in Brenman, and felt it covered plaintiff's "concerns." She gave the instruction in the form requested by plaintiff, not omitting a part, as requested by defendant. Accordingly, we can find no abuse of discretion in the judge's ruling. Brenman, supra, 191 N.J. at 36.

 
The judgment is affirmed.

He testified that her hood "kinked up when [a] bug spoiler hit the back of the spare tire on [plaintiff's] car." Our review of the photos appears to show discoloration of the minivan's hood.

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A-4394-08T2

December 16, 2009