phe feats stata Th sable that et the 0 thet id xe His IX [BALIAN v, GENERAL, MOTORS Na. 817 221 NaSeper 118 Arthur BALIAN, etal, Plaetfarappallants, GENERAL MOTORS, ee, and Gary Allon "spondents, Rehearing Desi Oct 20,1072. In action against automobile man factater and others for injuries sustained when automobile left highway, the Superior Cont, Law Division, entered jedgment on verdicts in favor of defendani, and pai {ifs apposted from the judgment in favor ff the mansiactorer. The Superior Cour Appellate Division, Cacton, Jo A. Dy eld that in action based on alleged defect Steering system of mutomotile which left road, admission of motion picture of ex periment allegedly confirming contention of defendants expert that astonebile war Sil steerable despite alleged defect was le crror where, inter alia, it ap peared plaintiffs had no knowledge of # Deriments and. fins despite order reat ing detendasts eo submit to plaints copes of their expert's reports, though defendant contends iter slit, that movies were ROE "reports” covered ty the pre-teal order and that defendants were not aware before tral ofthe presse theory upon which pai Reversed; petition for rehearing snd recall of judgment denied Relevant motion pictures are genérall Admissible if property sushensieated ‘Aathentiation of maton pstures or arily neludes: (1) evidence a8 to circ Stances surrounding the taking of the fle @ the manner and cieumstances sur Founding the development of the film; (3) tvidence in regard to the projection of the film; and (4) testimony by & person pren tnt at the tne the motion pietores were taken that they accurately depict the events fe he eaw them when they oseured Admissibility of evidence concerning ‘experiments or test i generally within the fares. of judicial discretion and toms on whether the experiment wat condscted {inder conditions and circamstances similar to those actually existing in the case There is no inherent objection to the admizsiblty of motion pictures of an ex periment; such evidence is entirely proper fotfeet by wodue prejeiiee, unfair surprise Tndye consumption of trial ine, oF poe Sible confusion of fasues due to the into fiction of collateral satters. Roles of Evidence, ele 4, NJSA Relevance of motion picture of experi- Motion pictare of am artificial recon tweak evidence, while danger is present of undue prejudice as a result of "vgs placing inordinate weight on the = moving picture in light of ite dramatic im personal injury action against auto mobile manufacturer based ot alleged deB18 Ns, {ect in ssering system of antomatile which left road, asso of mation pictures of experiment allegedly confirming contention fof defendants expert that automobile was still steerable despite alleged defect was Teversible error where, inter alia, it =p peared plsitiffs had no knowledge of ex- periments and Films despite order requir Ing defendants to submit to plantfts copie, of their expert's reports, though defendant ootendee, inter alia, that movies were n Seeports” covered by the pretrial order and that defendants wore not aware before tial of the precise theory spon which plaintiffs were proceeding, R4AMI: R. 418-1; Roles of Evidence, tule 13), NSA, 2A BHAI CCrose-exavination stone wil nt ord nary provide a sufficient avenue of re butt with respect to motion picture ev tates that pay proposing to inreduce ito fvidence motion picures of a reconsruct- ed event oF a posed demonstration give fotie thereof and opportunity thi ad veseary to monitor the experiment snd the taking of the ‘im ences fondamental faieness die Howard M. Kaplan, Monsey, for appel= lnts (Alon R. Kaplan Englewood, attor- ne) Carrol A. Motley, Jersey City, spondent General Motors Corp. Blake, Hutehinuon & Dunne, Jersey City, attorneys; Wiliam J. Cleary. Ju Jersey City, on the brief) Allen C, Mathias, Newark, for respond ent Gary-Allen Cheveolt Co, (Stevens & Mathias, Newark, attorneys Newark, of counsel and on the brie Before Judges SULLIVAN, LEONARD snd CARTO! 896 ATLANTIC REPORTER, td SERIES ‘The opinion of the court was delivered by CARTON, J. A. D. “This is prodvet ability case Lief Louise Balin and other members of her family sustained injuries when 2 1965, Chevrolet Impsis she wat driving a the New York Taruway veered off the side of the road end struck a pole ‘There iso real dispute at to the pet rene facts, Piainiff, Arthur Bali, por chased the 1965 Cheveolet Impala new on December 4, 1964, At various times be- tween that date and the occurrence of the fr, who alo made repairs and adjustments pursuant to the drivers manwal supplied Uy the eotnufacturer, ‘Thren days before the accident and prior to planned trp to Montreal, the owner had the automobiles brakes relind, the car tuned up and greased and a toe replaced Pisin (Os Joly 31 1967 plaints ltt thee Home in Teaneck, New Jersey, picked up an York State Thruway. Plaintiff, Louise lian, who had eeceived her New Jersey driver's Ticense about two months before, se driving. ‘They had traveled about ten miles on the Thrwwiay when the accident occured the car was going about S088 miles per hour ‘The occupants of the car heard @ ing from under the feont ofthe car. Tt was Aeserbed as sounding tke metal was strike ing metal. At this point the diver los her ability to control the ear, Despite het tempt to turn the steering wheel and direct the ene in another direction, it henge 10 stat pole nipporting an overhead sgh Immediately after the accident Teooper Donnell of the New York State Police plainti, he lifted the hood and examined3 1985 ‘of the ve de upelied rested Law Jersey BALIAN v, GENERAL MOTORS NI. 819 revealed theta rivet was sissng from the steering coupler and the fibrous wafer feparating the two parts of the coupler was, ‘The steering coupler connects two see: tions of the steering column. Tt consist of metal flanges located on the ends of the SHeering column sections which face each fier. The Manges are separated by a fibrous wafer. One of the metal flanges fs attacked to the wafer by two metal rts and bolts. The corresponding flange a tached tothe opposite section of the coloms Ji connected 0 the same wafer by two rivets, The function of the coupler is 10 hold the two parts of the steering column together while allowing suficent flexi bility fe sbeorb road shook Plaintfts brought this action against de fendent General Motors Corporstion and others, clniming that the accident reauled rom daplncement of & rivet im the ster ing coupler, which in turn tore the fibrous chung the driver to Tose conte he juny returned a verdict in favor of defendants, “We are concerned here only with paintt fe appeal from the judgment in favor of defendant General Motors, the manufacturer of the automobite ‘The tral, although Teagthy one, wae lcgely to technical testimony of expert witesses concerning the design and func tion of the coupler and elated parts of the automobile steering mechanism, whether it ‘war defectively designed, and whether the defective contin rested from the acc dest, haentfa' cxpert expressed the opinion that the coupler was umpropery designed Defendane’s expert denied this. Inthe lt ters opinion, the damage to the couple wae attributable tothe impact of the ae ene. Furthermore, he coiteded that the cident could not have happened. in Ke manner indicated hy plaintiffs! expert. ‘The main basis of plait’ appest ie that the trial court, over objection, iar propery admited Into evidence sation pic- toes taken daring the course of the teal ‘These pictures showed the operation of = 1968 Impals in a test at defendant's prov ing grounds. The fim was made at the Airetion of defendants expert forthe Par pote of contizming hie contention expressed in his testimony that the astomabile wes still steerable even if the rivet was missing fd the wafer torn. Taue he maintained the accident eould not have oowurted in the manner deserited by plaintiff's expert. Retoltion of the ine involved requires In November 1967, 2 plant request, 4 Mr, Daniel Fivehouse, a automotive snd front-end expert, examined the ext, He testified that the vivet described ty time and that the fibrous wafer was torn He said that the two parts of the steering foapler were no longer symmetrical He was of the opinion that when the fibrous Wafer was torn and the eivet missing there Would fe no steering contra Pintfte also produced Huxley: Made- heim, an expert in mechanical engineering fd inthe design and function of the steer= Jing couples. He expressed the opinion tat {rivet olding the steering coupler came ‘out, causing the flanges to lose contact and fsimmetry. The eer then Beste nstoer= fie, resulting in the driver loosing con trol, Te wae bis opinion that this cond tion ad existed prior to and not asa esl cf the force of the car striking the pole ‘This witness,» fll professor of engineer ing a8 City University of New York, wa Also of the opinion that the coupler was improperly designed for the reason that it ould have beet made with four nits and Vote rather than two ute and bolts and two rivets, and that had the coupler been Charles Spalding, an expert engineer ia820.3. ployed in a division of General Motors Which manufactures steering gear and other accesories for automobiles, was the only witness called by defendant General Motors, He described in considerable de tall the fonction and operation of the coup- Ierin the automobile, sring numerous dea. ings and designs for this purpose. De fenant alo produced for inspection by the court and jory a replica of the steering foupler said to be the type wed jn 1968 Impalas. The actual coupler involved in the acsident was not produced in court. Spalding expressed the opinion that the coupler which he had helped design was properly designed. He believed that the damage found by Trooper McDonnell and the witness Fivehouse resulted ole from the force of the impact. He sated that such a condition did not cause and could fot cause the ear to go out of control and thatthe automobile would be steerable with fut the missing rivet and with the wafer forn, He also. ceseribed the first of the neo teste condusted at defendant's proving: rounds daring the course of the trial, Hee stated that during the teat he drove 2 1963 Impaln under conditions allegely Comparable to those at the time of the fesident, He made this tat for the pur pose of demonstrating the coreetness of his contention that-notwithetsnding the absence of the civet in the coupler and the inte of the torn fibrous wafer the sotomobile was sterable. He sated that be was, infact, able to dive the car with out ay loss of steering abity. He further testified that motion pictures were taken of this tex ‘The judge and counsel viewed the movie in chambers. The court witimately ruled that such motion pictares were nadie ble beeause defendant had failed to estab lish that the conditions were comparable ‘The court then instructed the jury to dace gtd all testimony concerning the prepara fion of the experiment and the mation picture taken of i This roling wae made while defendant's expert Spalding was still on the witness 295 ATLANTIC REPORTER, 24 SERIES fils ( tion of stand. At the point when the court re- cessed for the weekend, cross-examination Of this witnese had been almost completed (Over that weekend Spalding and defend soy trial torney aguin went to defend anes proving grounds at Detroit, Mich fin and conducted another test of a 1955, impale. When the court reconvened the following Monday, evoss-examization of Spalding was interrupted and he was per mitted to describe the second test conduct fon the previous Saturday. Te repeated his testimony that the automobile was {ng and the water torn. Ring that de fendant had remedied the deficiencies preseat in the previous test, the court de ided that the conditions were comparable. Therefore the court held that the second set of motion pictures could properly be Shown tthe ry for considerntion in de- termining the sstue of defendant's Til. lay. The motion picture of that test were then exhibited tothe jury curate when ol Hert fim owgh resent nd thy wee fim 8 cerning enti concepts: the admissibility of mo: tion pictures; the admissibility of ev nce of experiments; and the némisi bility oF motion piewees of experiments. those ¢ ceises A, 2 Moving 1] It is wall sewlea what relevant me: tion pictures ate generally admissible if propesly authenticated, See 62 ALR2d 685, 685 (1958) where the cases sre col- ed. Although no New Jersey case hat in wh antcuiated the tasie of requirements for ea 5 their admisabiity, the courts of this State have on numerous occasions permitted their ‘te apparently on the same rationale. For ‘example, ina personal injury care motion ceived in evidence fo show on the one had tha excent of disability and on the othe € factor Aad 1 held th to refv of con Aemonstrate that the injuries are neither The Permanent nor a8 extensive. 26 claimed Morine See 62 ALR-24 686 (1958), 12 oF cease 2] Authentication of motion pictures Picture ‘hich ordinarily inchades (1) evidence as to the circumstances surrounding the taking of on inpleted Aefend= fefend- Michi 2 1968 5 pe. nde pected tt de wre de ble abi jose if R24 we hes (hei wel in her © BAMIAN y, GENERAL MOTORS Na 32 the flim; (2) the manner and circum~ stances surrounding the development ofthe film; (3) evidence in segard to the projex- tion of the fee; and (4) testimony By & person present at the tne the mation pic res were taken that the pioteres 16 Curately depict the events as fe enw them when they occurred. See 62 ALLR28 686, 82 (1958), Here the court made 4 finding tht the film was properly authentiated and. al though net all the points above mentioned te clearly manifested in the recor, techs eal objections tothe flim appear t9 have Teen waived. Defendants expert was preset in court. The record indicates he tae in charge of the making of the fin nd that he was cross-examined by plane {fe counsel concerning the making ofthe fi. Is} So far ar experiments or tests are concerned, admissilty of evidence cor cermin them would appear tobe within the der congitions and circumstances similar to those actually existing fa the ease,” State Harris, | NJ. 826, 124 A. 602 (Sup (Ce1923), ated 0, & 100 NLL. 1B, 124 A, 02 (E. & A. 1924). See Use, "Use of Moving Fientes in Outet-Court Exper tment." § Defense LJ. 71 74 (1960), which deseribes a number’ of factual situations Jn which sch evidence has been consider fe. See also Drice y. Buckingham Mam facturing Co Ine, 110 NJ Super, 462,266, A241 (App.Div.1970), where the court held tha it was not an abuse of diseretion to refuse to adit prof of a simulated re fnaetment of an acelgent, The court in this ease epecifically found that smarty of conditions and circumstances existe. ‘The leading case of St. Paul Fire & Marine Tas, Co. v. Bakkinare & 0. RC, 12 Ohio St. 401, 195 NE. 861 (Ohio Sup, ©, 1935), whi is concerned with motion Pictures of experiments, set out factor which should guide the teal courts disee ion in this ates. "That case has been ap proved by Some commentator. See e.g Ute, "Use of Moving Pictures in Outot Court Experiments" 8 Defense LJ. 71 (4960); 62 ALRZE at 695." The court + + Such evidence i usually held competent if therein & subrtantal sini larity berween the conditions existing at the time ofthe occurrence complained of nd when the experiments are_ made. ‘The existence of identical conditions is not necessary; dissimilarity, when not 0 ‘marked as fo confuse and mislead the ary, going to the weight rather than the admissibility of the evidence. In the very nature of things, much must be lft to the dieeretion of the trish judge, snd ‘when sich discretion has not been abused reviewing courts will not interfere See alo Streit v. Kestel, 103 Ohio App 241, 16t. NIEZA 409 (Ohio CeApp. 1959) [4]. We perceive no inherent objection to the admiuiility of motion pictures of an experiment. Such evidence, in our pinion, is entirely proper when relevant tind ie probative value i not offet By un ‘hue prejudice, unfair surprise, unde com ‘simption of trial time, oF pauibie cont ion of issuer due to the sntroduction of Collateral matters, See Rue 4, New Jersey Roles of Evidence, The applicable poliey expressed i Rule 4 is well stated in Stoelting v. Hauck, 32 NJ. 87, 159, A24 4385. (1960), where Justice Proctor com: mented There is no doubt that itis generally within the dieretion of the tial court to exelnde remotely relevant evidence whose probative value is offset by the anger of undue prejudice, unfair sve prise, undue consumption of tral time, fr the possibie confusion of istics at tendant on the introduction of collateral matters, 7" + [at 103, 159 A2d 33 [5]. The itm in question was generally relevant inasmuch as it tended t negateB22 NS. plaintiffs contention and to support that of Sefendant. Its relevance was t0 be tested by its probative value with rexpect 40 the points in issue, Miller v. Trane Oil Co, 1B NJ. 407, 113 A24 777 (1958). Prox rate saute was clearly an isue, The tes. tlmony of plaintiff expert Madeheits ted fe to etaish that a certain defect was the fause ofthe accident. He testified 4 + Ere appears ahat one rivet came loose which thus pt the aly cone tact between one segment of the eoupler snd the wafer on one rivet. This means lunder condition Hike that that when you attempt t0 turn the whee! you 0 Tonger get 100% cooperation from the coupler. And the net result was tht eventually the one remaining sivet tore the lamination which, by the way just for the sake of clarity, they call it a wafer she laminated material in between the Manges [6] Here the degree of selevaney of he mation pictures presents a more dif colt problem. ‘There is support in the "record forthe tin courts finding thatthe periment was rubetantaly similar to the Finding does nat negate the fact tit motion pictre of an artist reconstruc tion of an cccurrence may be very weak tvidence. In this ease the motion picture id. not portray the actual automobile in jalved in the aecident; nor did it show plains! aetsal operation. Ted, it may be vietaily imporsibie to recreate & par ticular automtile which has suffered variety of different and unknown stresses and strains or perhaps enjoved meticulous fare. As Wigmore ponte ont a movie of sich recreation fs made of and erections, nanally involving. several Actor, cach of them the prid agent of the party and acting wnder his dretio, ence, tS reliability, ae identiesl with se oFginal scene, i decreased and may bbe minimized to the point of worthless 208 ATLANTIC REPORTER, 24 SERIES [3 Wigmore, Evidence (Chaabourn rev te demo 1970), § 7984) Mile was of the + fute the The fie third ah both te third which fousded ‘The danger of une prejudice as a re tended sult of the jury's placing inordinate weight ih on the moving pletures ir always present in tight ofthe tremendous dramatic impact ‘of motion pictures. See Parad "The Ce ‘Thos any movi is a manufactured, se serving piece of evidence. Ibis true, of course, tht all evidence may be sid in one Sense to be self-serving. “However, not all Cvidence isa staged production whose finale isnot only hoped for bu very mach part of the script Atthough these considerations donot serve t0 render this evidence inadassite they emphasize the importance of the off. Setting factors referred to in Stoelting ¥ Hauck, spre, We now consider thei pact of those factors inthis eat, m cating a1 Iuloid Witness" 37 U:ColoL Rey, 235, is the (1955). Undererved emphasis by the jury was ent Placa first ex of the motion pietie is cumulative. The Fequicoment for. suthentieation inevitably Bids some degree of cumulative impact om the fact‘inder. That impact i consider ly snereseed in this ease since the mov fg pietores were not only eoncededly de. Signed #0 lend strength and support to de fendants version of how the aceient hap pened. They were also cumulative to de fendant’s exper’s expresred opinion as t0 the cause of the secient and his descrip Son of the two set of tests which, ad india defends senda Ty be er een filmed, See Shneiderman v. Stte- svidene lecki, 107 NoJ-Super. 113, 257 A.2d 130 tion, or (Agp.Diva969), certs, den. 8 NJ. 158 pra 239.24 915 (1959) vecsari Signi wits pe of the at ep the ord Although the procedures atendant upot the presentation of filme often involee {questions of the allocation of tal time, we donot dear this element of signitiensce We also consider that the jury might have teen confused by collateral issues pre film, The theme of defend anw’s offer of the proof was that ie tendedto demonstrate the correctness of defend: fants experts contention that the astomo- bile was operable notwithstanding the loss of the rivet and the existence of 4 torn ‘wafer. The offer thereby tended to, re- {ute te hypothesis expounded by plaintiffs! expert The film seems to go Seyond this ‘whose ‘The first sequence showed @ 1965 Impala sy mich being operated with a rivet missing from A steering coupler and its wafer tors. The third showed 2 1965 Impala operating with fa stering coupler whote rivet and wafer tvere missing. The fest did not embrace both elements of the alloged defect. The third went beyond the conditions upon which plaintiff! experts hypothesis was arated tended to present collateral issues which a might have confused the Jury ed sete tne, of noe all the off. sling» ‘thei. The Cet [7]. The strongest counter factor mil tating against the admision of these movies = 8 {the element of unfair surprise which he jury vas engendered by the manner in which vation {he movies were prepaeed and presented, othe Plaintiffs had no prior knowledge of te italy fit experiment oF of the motion pictare pact oh taken of i. It is evident that they Rad no onside suspicion that during the weeckend, after he results of the Linet test had been held ‘nadnissibe, defendant's exper, along with tte ae defendants lawyer, would journey to de hay fendants proving grounds in order t0 re (od peat the experiment Plaintiffs can hard nas ly be eriieized for assuming that this issue dese wae at rest One would normally not es ish Pct an adversary tobe able co present such evidence ia an effort to reopen the ques tion, o€ Hf able to do s9, to proceed with 1 gon Significantly, in the cate at Bar plain involve Lite procured an order requiring. defend ime, we "nts submit to pnts, within five days iia Of the date set for tral, a copy of their spares reports, Defendant's poston at the tril and here is that the movies were ig ot reports and not therefore covered by the order. Such an interpretation appears extremely argov, The movie reflected the experts opinion in refutation of plnin= BALIAN , GENERAL MOTORS Nt. 328, tiff theory of the case, Plaintiffs appore feally made their motion purauaat to R ‘S741, This rule allows a party to obtain es 5 a copy of a paper, including the ‘A srit“iterpretation lends seme support to defendant's argument. Neverteless, we ‘deem it incongrous in the circumstances fof ths cate to permit defendant € avid the spin if not the strict letter of the courts order in this fashion. Parenthetic cally, we not that Rule 1(13) (of dhe Rsles fof Evidence) teste writing to include every means of recording, including photog- raphy. Perhaps plaintiff request more properly should have been made under the Companion rule, 418.1 The rules should ‘probably be clarified in this respect. Since tee of mation pistare equipment is becom ing commonplace, consideration should al- 10 be given to the desirability of adopting Felatng to se and admissibility of motion Pictures of reconstructed or simulated events such a8 those involved inthe present We are not inpresed with defendant's forther argument that even if the ims were considered expert’ reports the order ould not Titerally be complied with be ause the film was notin existence before the til wor with ts asertion that it could ‘not make the movie before trial because it was not aware of the preste theory fon which plaintiffs were proceeding wn ‘thei exper, Madeheim, testified ‘These arguments ignore the spirit of the forder which was entered just before the tril and place & premivm on techaicaltes. Defendant knew or cou readily” have now plaintiff’ theory of the accident tough available “discovery proceedings. Indeed i i inconceivable to ue that in a case of this magnitide defendant would ot be fully aware of the basis of plaintiff’ cain, Defendant knew from the outset tat plains claimed the accident resulted from ‘malfunction in the steering mechanism, Te had in ie postession = copy of Trooper324 3. 296 ATLANTIC REPORTER, 24 SERIRS MeDonnel's report of the accident which 1938). In this case dete contained a statement that the "operator ly gave no notice to plaintiffs of its inten lost control due to malfunction of the steer- ion to conduct the first experiment and ing mechanism.” It had aleo received 4 to take moving pleares of copy of the report of plsinife’ witness subsequent plan to conduct another test in Fivehouse in which reference wat made order to reniedy deficiencies in the fist to the string coupler, With such knowl one and to exhibit motion pitures of that ‘sige we see no reason why it could ot text in conjanction with Spalding’ already have prepared the movie before tral and completed direc testimony. offered plaintiffs an opportunity to see it By waiting wnt the eleventh hour it was tue able to prepare the movie without the eawiedge of its adversaries and withost isving them any opportunity to prepare a Febutal, We cannot sanction such tial fctic, more reminiscent of the days be fore the present liberal discovery rules 1 ght of all the eiscumstance, we con- clude that the motion pitares should have been excluded from exhibition tothe jury And from admission into evidence, and that fe failure to do so requires a. zeversl In the event of any retrial of this ease the admissibility of any motion pictares ‘of experiments. shouldbe determined fecordance with the principles expressed in [8]_A motion pictare inthe exer of the jury is one of the most spestaclar forms fof evidence. It it combat this opinion. in nature, The judgment in favor of defendant ‘There are inherent dangers in ite prepara General Motors Corporation and. against tion snd presentation. Elfective rebutal plaintiffs is reversed, ‘The judgment fan only be had if opposing counsel and favor of Gary Allen Cheyralet is atfie ity to mect such evidence. We de not com any clin agains that defendant sider that crostextmination alone would ordinarily provide a sufficient avenue of Febutal fo the adverse party. Consequent- Iy, a8 a prerequisite tothe admission ito fvidence of motion pictures of 2 recom rusted event or 4 posed. demonstration PER CURIAM. ON PETITION FOR REHEARING taken during the pendency of an action, After the entry on June 1, Fundamental faizness dctaes thot the pare idgment of tis court, defendant Gener ty proposing to offer such evidence give a Motore Corporation submited a petition otis thereof snd an oppostuity fo his supported by affidavits fora rehearing and adversary to monitor the experiment and tall of the judgment. Defendant clas he taking oF the fil that chere wae no feetual support for the Appellate Division's conchsion that Geo Thi is especially tue in this ease. Even si be assumed that emergency preperation $f daring the course ofthe trial was unavoid- tbl, pantiffe should have been given no: ferth tice and an opportunity for their expert #0 tral Motors neither gave plantfls notice ts intention to conduct an experiment for an opportunity to monitor the fing Imonitor the, preparation of the movie. The asserted basis of thie ap Viewing the movie on the following trial that on Jantary 30, 197) defendants co day hardy provided «sufficient opportaa- sel had in fact "ivevocaby indicated © iy to prepare a rebuttal, See Paradis, all concerned his intention to once agaio “Phe Calluiid Witness" 37 U.Colod.Rev, fin the experiment = 235,251 (1968); GUE Life Ins. Co. v. Sto cure the deficiencies found by the cout Sel, 131 Fa, 258, 75 So. 804 (Sup.Ct1987), to exist inthe frst flim,” and in fact hod tod, [51 Fla, 127, 179 So. 16! (Sup.Ct. “invited plaintiff's counsel to observe thesignticae oF i inten veriment snd in the first ares of that ings already should have see, end that 1 reversl Df this case, expressed ia detendant ie affirmed 1972 of the dant Gener heaving and vaant clis dikes notice experimest the fins he. court in fact bad shserve the conduct and film of these testa” These Statements were allegedly made after the trial court had ruled the firs films inad: rissble We observe that defendant had not at any time previously advanced any conten tion of this nature. Defendant's initial positon was basically thst a notification of the tests snd an opportunity to monitor the filming of the tests were not preequiites to the film's admission into evidence “The attorney who originally represented defendant ied after the tial, The attor ney appearing for defendant on the appeal Indicated tat he did not become aware of the cireumstances giving rie to thi arpect Of the appeal unt after the decision was handed down by this court, Tn view of this unusual development, we Airected plaintiff” counsel to file answer ing affdgvite and agreed to hear further ral argument. We thereafter remanded tual determination on tht aoe. The jadge who. presided over the original tial di Qualified himself beeavse of the possibilty Fe mighe be called asa witness, “The mater vas then assigned to another jodge ho Conducted a hearing. Seven witnesses, i ‘ing the tral judge, testified The remand judge made extensive writ ten findings of Sack He noted, at we have done, thatthe tial transcript revealed 20 relevant conversions made in open cou fr in chambers, He went on to indicate that certain conversations related Ly de fendane’s witnesses bad taken pce on faary 30, 1970 sn the court's chambers fd inthe courteoom ater that day. How fret the remand judge remarked that Ie is another question as to whether of sot Me, Glaser and Me. Kaplan (plain tiff trial attorneys) were parties to these conversations heard the conversa Sons, and derstood that they were genuine offers affording them 20 oppor fnty to be present in Devrit for the Siming of the second experiment ‘The judge noted that the trial judge ad no recollection of any such offer being fmade in hit chambers or in open court, ‘Additionally, he found specifically that the ‘lone in chambers where an offer was sade to plsintiffs" counsel to come to De troit for the purpose of observing the ex periment, Furthermore, the tial judge Tesified that he believed no auch offer ad been made The remand judge con cluded that, although some conversations took pliee, he wae inable to find that an Understanding war arrived at by the re spective counsel whieh would indicate that efendant's counsel had “informed plain {ifs of bis ntention to conduct a certain tsperiment and to take. motion pictures threat for the purpose of introducing said filme into evidence!” ‘He added: "Nor can I find that defendant, General Motors ror such experiment and the making of the fim" We have carefully reviewed the evidence ‘ken om the remand and the findings and oncusions of the cour thereon, We are fatistied that they are fully supported by the record. We tee not persuaded by de fendauts aegument that the court's cone lutions are agtingt the weight of the ev fence oF inconsistent with st findings We have considered the additional points ised by defendant and we pereive no Fe- ‘erie error in any of thers Petition for rehearing and reall of judg