Videotaped Deposition May be Replayed During Summation

Hayes v. Delamotte, 231 N.J. 373 (2018).  Today saw the issuance of the Supreme Court’s first opinion of 2018.  The case, a personal injury matter arising out of an auto accident, was a procedural mess.  In summary, however, plaintiff lost after a jury trial, which featured an attempt by her counsel to play during summation a portion of the videotaped deposition of a defense expert.  The Law Division denied that request.  Plaintiff moved for a new trial, and the Law Division granted that motion, not because of the videotaped deposition issue but because the jury had given greater weight to the defense expert than to the expert for plaintiff.

Plaintiff prevailed at the second trial.  Defendant appealed, and the Appellate Division reversed, holding that the Law Division had erred in granting a new trial, so that the defense verdict from the first trial would govern.  Plaintiff obtained Supreme Court review, and that Court today reversed and reinstated the pro-plaintiff verdict from the second trial, finding that a new trial was properly granted, but due to the Law Division’s error in denying plaintiff the ability to play the videotaped deposition during summation.  Justice Solomon wrote the opinion for a unanimous Court.

Justice Solomon set forth the standard of review of a grant of a motion for a new trial.  That test looks at whether, “having given due regard to the opportunity of the jury to to pass upon the credibility of the witnesses, it clearly and convincingly appears that there was a miscarriage of justice under the law.”  There was such a miscarriage here.  “Counsel is allowed broad latitude in summation” and, as the Appellate Division stated in Condella v. Cumberland Farms, Inc., 298 N.J. Super. 531 (Law Div. 1996), “it is within the trial court’s discretion to to allow counsel to show portions of the videotaped trial testimony and make comment thereon during summation.”

Justice Solomon adopted Condella, but cautioned that any replay should not be so long as to constitute a second trial emphasizing only one side’s view of the case, and that edited portions of a videotape should be presented to the trial court before being shown, to ensure that they are “a fair and accurate representation of the witness’ testimony.”  Counsel’s statements about a videotape also must be “confined to the facts shown or reasonably suggested by the evidence introduced during the course of the trial.”

The videotape was in evidence, and could be used for any purpose.  The Law Division thus abused its discretion in preventing plaintiff from commenting on it during summation.  That ruling produced a miscarriage of justice, since the expert testimony was “key to the outcome of the first trial.”

Defendant argued that it was unfair to permit plaintiff to use the videotape of the defense expert during summation play and comment on the videotape during summation because the defense did not have that same opportunity with plaintiff’s expert, who testified live.  Justice Solomon was not impressed with that argument, noting that defendant had chosen to offer videotaped deposition testimony.  Nor was there “unfair surprise” to defendant, who had “properly produced, introduced, and admitted the same evidence at trial.”

The result was that the verdict for plaintiff at the second trial was reinstated.  But the Court also dealt with an evidence issue that arose at both trials.  Defendant’s expert had referred to opinions of non-testifying experts that had supported his own opinion.  Plaintiff sought to exclude those references as hearsay, but the Law Division allowed that evidence.  Justice Solomon observed that an expert may not “relate the opinions of non-testifying experts merely those opinions are congruent with the ones he has reached.”  Though the Law Division gave the jury a cautionary instruction, the evidence, used as it was to buttress substantively the opinion of the defense expert, was improperly admitted.