Persley v. New Jersey Transit Bus Operations ( 2003 )

WECKER, J.A.D.,

concurring.

While I concur in the result, I write separately to express my disagreement with my colleagues’ conclusion in Part III that the video simulation was “straight-forward and not misleading ----[and that there was] no error in allowing the jury to view it as an aid to Nolte’s testimony.” Op. at 18, 813 A.2d at 1229.

In my view, the tape was inadmissible for two reasons. First, although my colleagues recognize that Nolte disclaimed his ability or intention to depict “the force with which plaintiffs head struck the seat in front of him,” Op. at 13, 813 A.2d at 1227, that is exactly what the video purports' to show. Second, my colleagues also recognize that Nolte “conceded that the animation did not depict the effect on plaintiffs body of Barrentine’s admitted swerving just prior to the accident and he was unable to calculate the forces that were brought to bear on plaintiffs body.” Op. at 14, 813 A.2d at 1227. Thus the video simulation gave the jury a visual picture of the direction and strength of the forces upon plaintiffs body (or the absence of such forces) without an accurate basis for that visualization.

Under other circumstances, the admission of this video simulation might be reversible error. Here, however, there was overwhelming evidence that plaintiffs complaints were either preexisting or exaggerated or both. I therefore find the error harmless and concur in affirming the judgment below.