RENEE FRAZIER v. ALLSTATE NEW JERSEY INSURANCE COMPANY

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1373-09T1

RENEE FRAZIER,

Plaintiff-Respondent,

v.

ALLSTATE NEW JERSEY INSURANCE

COMPANY,

Defendant-Appellant.

________________________________________________________

November 8, 2010

Argued October 20, 2010 - Decided

Before Judges Cuff and Fisher.

On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Docket No. L-341-08.

Michael A. Malia argued the cause for appellant(King, Kitrick& Jackson, attorneys; Kevin F. Sheehy, on the brief).

Joseph Sayegh argued the cause for respondent (Goldenberg,Mackler, Sayegh, Mintz, Pfeffer, Bonchi & Gill, attorneys; Mr. Sayegh and Mark Pfeffer, on the brief).

PER CURIAM

In defendant's appeal of a judgment awarding plaintiff $75,000 in this personal injury action, we affirm because the judge properly exercised his discretion: (1) in barring the jury's consideration of evidence of plaintiff's two subsequent accidents due to the lack of medical testimony linking them to plaintiff's claim of a herniated disc and (2) in excluding photographs due to the absence of a foundation that they depicted the damage to plaintiff's vehicle after the accident.

The record reveals that, on April 24, 2003, plaintiff Renee Frazier's vehicle was rear-ended by a vehicle operated by Kevin Daley. After the settlement of her suit against Daley for most of his $15,000 policy, plaintiff commenced this action against defendant Allstate New Jersey Insurance Company seeking underinsured motorist benefits.

Shortly before jury selection, plaintiff made two requests in the form of oral in limine motions. In one application, plaintiff sought to bar any reference to her involvement in prior or subsequent accidents, arguing that none of the doctors expected to testify would link the prior or subsequent accidents to her current complaints or injuries. The judge postponed his decision on this issue but, prior to submission of the case to the jury, concluded that because the medical testimony provided no nexus between the injuries and complaints in the suit and plaintiff's subsequent accidents, the jury could not consider the evidence of the subsequent accidents.1 By way of the other application, plaintiff successfully sought the exclusion of photographs taken of her vehicle after the accident, claiming they did not accurately depict the damage sustained in the accident in question.

The jury returned a verdict in favor of plaintiff in the amount of $75,000, and defendant appealed, reprising his arguments in response to plaintiff's in limine motions, which defendant described in his appeal brief in the following way:

I. THE LOWER COURT ERRED IN INSTRUCTING THE JURY THAT THE SUBSEQUENT ACCIDENTS ARE NOT A FACTOR IN THIS CASE AND THAT THEY ARE TO IGNORE ALL TESTIMONY REGARDING THE SUBSE-QUENT ACCIDENTS.

A. The Jury should have been permitted to consider the alter-native theory of causation that was created through the testimony of plaintiff and Dr. Joseph Gaff-ney.

B. Testimony regarding the subse-quent accident is relevant and should have been permitted for impeachment purposes as to the testimony of both plaintiff and Dr. Joseph Gaffney.

II. THE LOWER COURT ERRED IN BARRING THE USE OF PHOTOGRAPHS TAKEN OF PLAINTIFF'S VEHICLE FOLLOWING THE APRIL 24, 2003 ACCIDENT.

We find insufficient merit in these arguments to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). We add only the following brief comments.

As for Point I, the trial judge did not abuse his discretion in instructing the jury to disregard evidence of the subsequent accidents because he concluded that the medical testimony did not assert a causal connection between the herniated disc and the subsequent accidents. To place defendant's argument in its proper setting, plaintiff asserted at trial that she had suffered disc injuries as a result of the accident in question. Her evidence included testimony regarding lumbar and cervical MRI studies conducted on September 13, 2004. The lumbar films revealed a herniated disc at L2-3 encroaching upon the left neural foramina and bulging annuli at L3-4 and L4-5; the cervical films revealed a bulging annulus at C6-7 with the loss of cervical lordosis. The 2005 and 2007 accidents in which plaintiff was involved, and upon which defendant bases its arguments in Point I, occurred after these MRI studies were conducted. Notwithstanding that demonstrable fact, defendant was free -- as fully explained by the Court in Davidson v. Slater, 189 N.J. 166, 187 (2007) -- to attempt to show that some other incident caused the injuries shown in the MRIs or otherwise generated plaintiff's existing complaints of pain. However, to support such a contention, defendant was obligated to provide competent medical testimony of a causal link between the disc injuries revealed in the MRIs and some other event. See, e.g., Allendorf v. Kaiserman Enterprises, 266 N.J. Super. 662, 672-73 (App. Div. 1993). Absent such expert testimony, consideration of evidence regarding the subsequent accidents could have led the jury adrift into speculative areas. We thus find no abuse of discretion because the judge's directions properly precluded the jury from speculating as to the cause of plaintiff's injuries.

In Point II, defendant argues that the judge erred in barring the admission of photographs of defendant's vehicle after the accident in question. In Brennan v. Demello, 191 N.J. 18, 30-31 (2007) (quoting State v. Wilson, 135 N.J. 4, 14 (1994)), the Court held that photographs of vehicle damage may be admitted on the question of the severity of an impact but, as with any other photographic evidence, the trial judge must ascertain whether the photograph is "a substantially correct representation of the matters offered in evidence," which includes "an identification or statement as to what the photograph[] show[s]." Here, the photographs of plaintiff's vehicle were the subject of other pretrial discovery. At her deposition, defense counsel asked plaintiff whether the photographs of her vehicle "accurately show the damage that you saw after the accident?" She said they did not, explaining there was greater damage after the accident to the rear bumper that was not depicted because, between the accident and the taking of the photograph, a responding police officer had pushed the bumper back into place. She also testified that the photographs failed to depict damage to the muffler and tailpipe of her vehicle. In light of this disavowal of the photographs as accurate depictions of the damage to the vehicle, and in the absence of evidence to refute plaintiff's assertion that the vehicle's condition was altered between the accident and the taking of the photograph, we find no abuse of discretion in the judge's evidentiary ruling. Estate of Hanges v. Metropolitan Prop. & Cas. Ins. Co., 202 N.J. 369, 374, 382 (2010).

1Although the motion encompassed a concern about testimony regarding both prior and subsequent accidents, the trial testimony related only to subsequent accidents and defendant has not argued on appeal that the judge erred with respect to his ruling on any prior accidents.