On March 8, 2006 the Appellate Division reversed a jury verdict in favor of the defendants on the grounds that the defendants’ utilization of photographs showing minimal damage to the plaintiff’s vehicle on the issue of causation was improper without correlative testimony from a bio-mechanical engineer.  Brennan v. Demello, 383 N.J. Super. 521 (App. Div. 2006).  The Brennan case arose out of rear-end motor vehicle accident that occurred in Middlesex County.  As a result of the impact, plaintiff allegedly suffered a cervical herniated disc.  Diagnostic tests revealed both the existence of the herniated disc with concomitant impingement, as well as the existence of an osteophytic ridge at the same level.  Plaintiff eventually sought surgery in the form of a disc fusion to repair the claimed injury.  The defense IME physicians opined that plaintiff’s physical condition lacked any relation to the accident and instead constituted a manifestation of a pre-existing condition.

It is settled New Jersey law that rear-end hits constitute negligence per se on the part of the defendant driver.  Dolson v. Anatasia, 55 N.J. 2 (1965).  As such, the issue in Brennan became one of causation.  As a trial strategy, the defendants conceded liability and proceeded to trial on the causation and damages issues.

Prior to trial, plaintiff sought to bar the defendants’ use of the photographs or in the alternative to require that a limiting instruction be given to the jury, on the grounds that the defendants lacked a bio-mechanical expert to explain the correlation if any between the damages and the alleged injuries or lack thereof.  The trial court denied plaintiff’s motion in its entirety on the grounds that the photographs were not being utilized to disprove causation, but were merely being presented to show the severity and extent of the physical damage to plaintiff’s vehicle.

On appeal, the Brennan Court reasoned that the trial court improperly admitted the photographs because the photographs played a central role in the defendants theory of causation.  To that end, the Court concluded that to allow the photos without expert testimony constituted error.  In reaching that determination, the Court addressed a plethora of national and local decisions that viewed both sides of the issue. 

When reading the opinion, one gets the impression that the Appellate Division bent over backwards to build a foundation upon which to base its decision to overturn the defense verdict.  Indeed, the very shield that the Appellate Division sought to provide plaintiffs becomes a very powerful tool for the defense bar, despite the Brennan Court’s admonition that its decision should not be read to require the use of expert testimony to prevent the exclusion of photographs.

It is no secret that photographs are powerful tools for trial lawyers.  Thus, when faced with cases arising out of particularly violent collisions where causation is largely at issue, the reasoning of  Brennan provides a significant foundation for which to seek exclusion of vehicle damage photographs at the time of trial absent correlating testimony of a bio-mechanical expert or a limiting instruction.

Indeed, GRSLL&B observed this tool at work in Union County in June 2006.  While monitoring a trial in Union County on behalf of an excess insurance carrier, wherein the issue was whether a relatively low speed car and truck collision caused plaintiff to suffer from a traumatic brain injury  allegedly involving severe cognitive dysfunction.  Counsel for the primary and excess carriers devised a defense strategy to concede liability and try the case solely on the causation and damages issue.  Plaintiff intended to submit to the jury, without expert testimony,  enlarged photographs of the damage to the plaintiff’s vehicle along with photographs of the defendants’ truck.  The defense successfully barred the photographs pursuant to Brennan because the photographs, without expert testimony from a bio-mechanical expert to explain how the impact forces acted on plaintiff’s body, lacked any relevance to the issues to be considered by the jury since the defendants had admitted liability.  Thus, the defendants argued that the photographs would prejudice them and allow the jury to improperly infer a correlation between the damage to the vehicles (and its being declared a total loss) and plaintiff’s alleged injuries. 

This evidentiary ruling formed an integral piece of the defense strategy which resulted in a favorable jury verdict for the defense and saved the carriers more than $3 million in potential damages. 
   
-Eric S. Schlesinger, Esq.