N.J. Supreme Court Justice Lee A. Solomon N.J. Supreme Court Justice Lee A. Solomon

The New Jersey Supreme Court on Wednesday reinstated a $250,000 jury verdict in an automobile accident case after a trial judge declined to allow play back of recorded expert testimony that apparently contained an error.

Justice Lee Solomon, writing for the unanimous court, called a denied motion to play back video of the deposition testimony a “miscarriage of justice,” and said generally: “counsel may refer to, read, or play portions of videotaped fact or expert testimony given at trial during closing, as long as (1) ‘counsel’s comments [are] confined to the facts shown or reasonably suggested by the evidence introduced during the course of the trial’ … and (2) the concerns set forth in [Condella v. Cumberland Farms] are met.”

The decision overturns an Appellate Division holding that said the error, not detected or at least not pointed out at the time of the deposition, was no basis to order a new trial after an original no-cause verdict.

The issue arose in Hayes v. Delamotte when Dr. Arthur Vasen’s prerecorded testimony, played in the courtroom, showed the doctor apparently comparing two identical MRIs rather than two taken a year apart, according to court documents.

The suit stemmed from a May 2008 single-vehicle crash and was lodged against the driver, Barbara Delamotte, by front-seat passenger Doreen Hayes, who had to be extricated from the vehicle and claimed she sustained disc herniations and underwent fusion surgery as a result. Her treating physician, Dr. Robert Sabo, contended that she sustained a permanent injury, while Vasen claimed the injury was a mere sprain, and the surgery was unnecessary.

The apparent error captured in video of Vasen’s testimony might have been recognized at the time by Hayes’ counsel but was not raised until the parties were preparing for summations.

At the conclusion of an April 2014 trial, Ocean County Superior Court Judge Mark Troncone denied a request to replay the video during summation but said Hayes “‘would likely suffer an injustice if, as it appears, the defendant’s medical expert likely misrepresented the MRI films to the jury.’” The jury returned a no-cause verdict.

But the judge did order a new trial on damages only, which in January 2015 ended with the $250,000 verdict.

Appellate Division Judges Carmen Alvarez, Mitchel Ostrer and Thomas Manahan ruling in May 2016 vacated the award and reinstated the original no-cause verdict because the judge, “presuming both the error of the testimony and the jury’s reliance thereupon, assumed the role of the fact-finder and ‘reached the opposite conclusion[.]‘”

Denying the replay request was “legally correct” because “a video replay during summation would have been prejudicial given the lack of testimony by any medical expert or radiologist who could have explained the discrepancy in the films,” the panel said in the per curiam decision. However, absent a legal error, ordering a new trial based on a finding that the jury gave greater weight to Vasen’s apparently erroneous testimony than to Sabo’s “is without basis in the trial record,” the court said. The no-cause verdict “could have been influenced by several factors, including the credibility of witnesses or the adverse opinions of non-testifying witnesses,” the panel said.

The Supreme Court reversed, reinstating the $250,000 verdict resulting from the damages-only trial.

“Because expert testimony was vital to the outcome of the trial, the trial court’s refusal to allow plaintiff’s counsel to replay a portion of Dr. Vasen’s deposition was an error that resulted in a ‘miscarriage of justice under the law’,’ warranting a new trial,” Solomon said.

The court relied in part on Condella, where in 1996 the Law Division said video may be played back for a jury.

The playback in Hayes’ case “would not have constituted a ‘second trial’ overemphasizing plaintiff’s case,” and “would not have been an attempt to misuse Dr. Vasen’s testimony, but merely a legitimate attempt to emphasize a certain aspect of his testimony, namely, the dates on the MRIs to which he pointed in the video,” Solomon wrote.

Delamotte’s counsel, Stephen Rudolph of Rudolph & Kayal in Sea Girt, didn’t return a call seeking comment. Neither did Hayes’ lawyer, Kimberly Gozsa of Levinson Axelrod in Brick.