Opinion
DOCKET NO. A-2453-13T2
04-09-2015
JERMAINE A. THOMAS, Plaintiff-Respondent, v. JAMES M. CONTESSA and GOVERNMENT EMPLOYEES INSURANCE COMPANY, Defendants-Appellants.
Seth D. Greip and Darren C. Kayal argued the cause for appellants (Harwood Lloyd, LLC attorneys for appellant James M. Contessa; Rudolph & Kayal, P.A., attorneys for appellant Government Employees Insurance Company; Mr. Kayal and David T. Robertson, on the joint brief). Craig M. Aronow argued the cause for respondent (Rebenack, Aronow & Mascolo, LLP, attorneys; Mr. Aronow, of counsel; Tyler J. Hall, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Messano and Sumners. On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-3978-11. Seth D. Greip and Darren C. Kayal argued the cause for appellants (Harwood Lloyd, LLC attorneys for appellant James M. Contessa; Rudolph & Kayal, P.A., attorneys for appellant Government Employees Insurance Company; Mr. Kayal and David T. Robertson, on the joint brief). Craig M. Aronow argued the cause for respondent (Rebenack, Aronow & Mascolo, LLP, attorneys; Mr. Aronow, of counsel; Tyler J. Hall, on the brief). PER CURIAM
Plaintiff Jermaine A. Thomas alleged that he suffered back injuries on April 13, 2010, when the vehicle he was driving was struck in the rear by a vehicle driven by defendant James M. Contessa. Both vehicles were insured by defendant, Government Employees Insurance Company (GEICO). Contessa's policy limit for claims of bodily injury was $15,000; plaintiff's policy provided for underinsured motorist (UIM) coverage with a limit of $100,000.
Plaintiff filed his complaint against Contessa on March 27, 2011. Plaintiff answered interrogatories and was deposed, but Contessa never furnished interrogatory answers and plaintiff never sought to depose him. Nor does the record disclose that plaintiff engaged in motion practice to compel discovery or sought to strike Contessa's answer.
The case proceeded to non-binding arbitration, see R. 4:21A, and on October 3, 2012, the arbitrator determined that Contessa was 100% liable and recommended an award of $85,000. Plaintiff filed an amended complaint on November 16, 2012, adding GEICO as a defendant, and asserting a claim for underinsured motorist benefits under his policy. GEICO answered and moved to adjourn the trial date and re-open discovery. By order dated February 22, 2013, the motion was granted by the presiding civil judge, discovery was extended for sixty days, until April 22, and a new trial date of May 13, 2013, was set.
Thereafter, GEICO served notice to depose plaintiff. By letter, plaintiff's counsel refused to produce his client without a court order, noting plaintiff had already been deposed. Within the extended discovery period, defendant filed a motion to compel plaintiff's deposition. The motion judge entered an order on May 3, 2013, denying the motion, noting on the order "there [was] nothing in the motion record to support a request to redepose" plaintiff.
The motion judge was not the trial judge.
The case was apparently set for trial on September 17, but, for undisclosed reasons, trial was adjourned. On September 18, GEICO's counsel served plaintiff's counsel with an amendment to interrogatory answers, together with a certificate of due diligence as required by Rule 4:17-7. The subject of the amendment was a series of "color photographs of plaintiff's vehicle." Although plaintiff did not move to challenge the certificate of due diligence, ibid., on September 25, plaintiff's counsel sent a letter advising he would object at trial to the admission of the photographs.
Before trial began on October 15, 2013, plaintiff made a series of in limine motions seeking to bar defendants from introducing certain evidence. We consider some of the resulting rulings which are the basis for points raised on appeal. Liability was stipulated, and the jury heard from plaintiff, his medical expert, Dr. Didier Demesmin, who was qualified as an expert in pain management, and Dr. Francis Deluca, defendants' expert who was a board certified orthopedic surgeon. The jury concluded plaintiff had suffered a "permanent" injury, see N.J.S.A. 39:6A-4, as a result of the accident and awarded plaintiff $675,000 in damages for pain, suffering, disability and loss of enjoyment of life.
On October 23, 2013, plaintiff served a revised draft order of judgment against Contessa, for $622,359.21, and against GEICO for $85,000, the UIM policy limits minus Contessa's policy limit. The proposed judgment included pre-judgment interest against each defendant, to which counsel for GEICO objected.
On October 31, 2013, defendants filed motions for a new trial or remittitur. The judge considered oral argument and, on January 28, 2014, entered an order for judgment that included pre-judgment interest against both defendants. By separate orders dated February 11, 2014, the judge denied defendants' motions for a new trial or remittitur. This joint appeal followed.
GEICO contends that the motion judge mistakenly exercised his discretion by denying its motion to depose plaintiff. Both defendants argue that the trial judge mistakenly exercised his discretion by denying admission of certain evidence, and by admitting other evidence over objection. Defendants also argue their motion for a new trial should have been granted based upon these rulings and because the size of the verdict "shocks the conscience." Lastly, GEICO argues that the judge erred in including pre-judgment interest in the order of judgment.
We have considered these arguments in light of the record and applicable legal standards. We conclude that an accumulation of errors compels a new trial. See Pellicer ex rel. Pellicer v. St. Barnabas Hosp., 200 N.J. 22, 51-56 (2009). We therefore reverse, vacate the judgment and remand for further proceedings.
I.
"An appellate court applies 'an abuse of discretion standard to decisions made by [the] trial courts relating to matters of discovery.'" C.A. ex rel. Applegrad v. Bentolila, 219 N.J. 449, 459 (2014) (alteration in original) (quoting Pomerantz Paper Corp. v. New Cmty. Corp., 207 N.J. 344, 371 (2011)). As a result, "[w]e generally defer to a trial court's disposition of discovery matters unless the court has abused its discretion or its determination is based on a mistaken understanding of the applicable law." Rivers v. LSC P'ship, 378 N.J. Super. 68, 80 (App. Div.) (emphasis added), certif. denied, 185 N.J. 296 (2005)).
Pursuant to Rule 4:24-1(b), joinder of a new party to a pending action shall extend the discovery period for sixty days, "unless reduced or enlarged by the court for good cause shown." The Rule otherwise does not limit the added party's right to participate fully in discovery. Rule 4:10-1 sets forth the permissible modes of discovery in a civil suit, and further provides that "[u]nless the court orders otherwise under R. 4:10-3, the frequency of use of these methods is not limited." Rule 4:10-3 in turn provides that "[o]n motion by a party . . . from whom discovery is sought, the court, for good cause shown . . . may make any order that justice requires to protect a party . . . from annoyance, embarrassment, oppression, or undue burden or expense."
Simply put, collectively, these Rules should have governed resolution of GEICO's motion to depose plaintiff. Nineteen months after filing suit against Contessa, plaintiff amended his complaint and added GEICO as a defendant. The presiding judge properly entered an order extending discovery for an additional sixty days. GEICO expeditiously noticed plaintiff's deposition, as it was entitled to do as a newly-added party. Instead of submitting to the deposition, or otherwise moving for a protective order under Rule 4:10-3, plaintiff simply refused to appear without a court order.
When GEICO moved to compel plaintiff's deposition, the motion judge improperly assessed the circumstances. Instead of requiring plaintiff to demonstrate good cause why he should not be deposed, the judge denied the motion, finding "nothing in the motion record to support a request to redepose" plaintiff. In other words, the judge placed a burden on GEICO when the burden should have been borne by plaintiff.
Plaintiff contends it was not error to bar his second deposition since he supplied GEICO with a transcript of his earlier deposition, taken one full year before, and because, given the nature of a UIM action, GEICO and Contessa had a common interest. See Bardis v. First Trenton Ins. Co., 199 N.J. 265, 275-76 (2009) (explaining the unique nature of a UIM trial). However, GEICO argues plaintiff claimed he had continued medical treatment well after he was deposed by Contessa, and GEICO should not have been denied the opportunity to ask plaintiff questions about this or other matters, particularly since it was plaintiff's decision not to add GEICO to the suit until late in the game.
On the record presented, we are firmly convinced that the order denying GEICO's deposition of plaintiff was a mistaken exercise of discretion. However, we cannot say that denying GEICO its right as a late-added party to discovery permitted by our rules resulted in harm that standing alone would justify reversal.
II.
Several other issues raised by defendants implicate both our discovery rules, and the trial court's resulting evidentiary determinations. We recognize that "[e]videntiary decisions are reviewed under the abuse of discretion standard because, from its genesis, the decision to admit or exclude evidence is one firmly entrusted to the trial court's discretion." Estate of Hanges v. Metro. Prop. & Cas. Ins. Co., 202 N.J. 369, 383-84 (2010). "Under this standard, 'an appellate court should not substitute its own judgment for that of the trial court, unless the trial court's ruling was so wide of the mark that a manifest denial of justice resulted.'" Hanisko v. Billy Casper Golf Mgmt., Inc., 437 N.J. Super. 349, 362 (App. Div. 2014) (quoting State v. Brown, 170 N.J. 138, 147 (2001)). "However, [w]hen the trial court fails to apply the proper test in analyzing the admissibility of proffered evidence, our review is de novo." Konop v. Rosen, 425 N.J. Super. 391, 401 (App. Div. 2012) (alteration in original) (internal quotation marks omitted). We address the issues seriatim.
A.
Rule 4:17-7 governs the late amendment of interrogatory answers and provides that amendments sought to be made after the close of discovery may be allowed "only if the party seeking to amend certifies . . . that the information requiring the amendment was not reasonably available or discoverable by the exercise of due diligence prior to the discovery end date." Thereafter, the burden shifts to the opposing party, since the Rule provides that "[a]ny challenge to the certification of due diligence will be deemed waived unless brought by way of motion . . . and served within [twenty] days after service of the amendment."
As noted, well after discovery had ended, GEICO's counsel served plaintiff with an amendment to interrogatory answers and a certificate of due diligence. The amendment was a set of photos of the rear end of plaintiff's car after the accident. They are contained in the record, and it suffices to say the photographs show little damage to the vehicle. Plaintiff did not file a motion as required by the Rule to challenge the "due diligence" asserted; however, within one week, plaintiff sent a letter to GEICO's counsel advising of his objection and noting the "certification of due diligence [was] deficient."
On the date of trial, October 15, 2013, plaintiff orally moved to exclude the photographs. We need not address the various arguments each side makes as to whether plaintiff's objection was or was not procedurally deficient, choosing instead to consider the merits of the dispute.
Plaintiff argued he was prejudiced by the late amendment, claiming that he might have deposed Contessa about the damage to the vehicles or otherwise "followed up with additional demands" for discovery. GEICO's counsel merely argued that plaintiff would suffer no prejudice because, after all, these were photos of plaintiff's vehicle. He argued that plaintiff's decision not to compel discovery from Contessa had little to do with the dispute.
The judge concluded there was a "[d]iscovery violation," and the photos "would be unduly prejudicial." He further noted, "plaintiff . . . is not prepared to respond to the photographs and there's no balancing plaintiff's evidence." He granted the motion and barred admission of the photographs.
During trial, defense counsel asked plaintiff if he made a claim for property damage to his vehicle. Plaintiff acknowledged that he did, and that his rear bumper and muffler were replaced and his tailgate repaired. Defense counsel asked if the estimate for the work was less than $2000. Plaintiff's counsel objected and, at sidebar, the judge overruled the objection, stating, "I treat property damage the same as photographs providing it goes to impact in some way, shape or form." Plaintiff admitted the estimate of damage to his vehicle was less than $2000.
When defendants moved for a new trial, GEICO's counsel reiterated the arguments made at the trial's inception, but notably he never fleshed out the assertion that the photographs were unavailable during the discovery period despite the exercise of due diligence. In denying the new trial motion on this issue, the judge simply stated that plaintiff had made a timely objection to the photographs and "barring the photographs was warranted."
Absent their late production, the photos unquestionably should have been admitted at trial because they were highly relevant. See Brenman v. Demello, 191 N.J. 18, 33 (2007) ("[I]n the absence of competent proofs to the contrary, the aggregate of everyday knowledge and experience fairly entitles a jury to infer that there is a proportional relationship between the amount of force applied and the injuries resulting therefrom."). Despite his earlier ruling, the judge recognized the relevancy of the photos during trial, and seemingly tried to remedy the earlier ruling by permitting defense counsel to ask about the estimate of repair.
Moreover, as the later trial testimony revealed, plaintiff testified that he made a claim for property damage, and we are hard-pressed to accept that a person making such a claim would be oblivious to the likelihood that photographs of the damage would be taken by his or the other party's insurer, which, in this case, was one and the same. We also reject plaintiff's argument that he was prejudiced because he would have taken Contessa's deposition or asked for further discovery. The simple fact is that plaintiff never sought to compel answers to interrogatories from Contessa, never noticed him for depositions and never sought relief from the court.
By the same token, GEICO's counsel's certification of due diligence was bereft of any facts. As the Court has stated, "[a] precise explanation that details the cause of delay and what actions were taken during the elapsed time is a necessary part of proving due diligence as required by Rule 4:17-7." Bender v. Adelson, 187 N.J. 411, 429 (2006). In opposing plaintiff's in limine motion at the start of trial, counsel failed to articulate what, if any, efforts were made to find out if photographs existed, or why they were not located until right before trial. The judge failed to focus on the true nature of the dispute, i.e., whether the certification filed by GEICO's counsel complied with Rule 4:17-7, and we cannot imply from the judge's terse ruling whether he found that counsel had or had not exercised due diligence.
The photographs were highly relevant evidence supporting the essential defense in this case, i.e., that such a minor traffic accident was an unlikely proximate cause of plaintiff's complaints. Permitting GEICO to elicit the cost of estimated repairs was a poor substitute, since the proverbial picture is worth a thousand words. In the absence of a record that permits us to determine for ourselves whether the amendment to GEICO's interrogatory answers complied with Rule 4:17-7, however, we are unable to conclude that excluding the photographs was in and of itself harmful error that requires reversal.
B.
During his deposition, plaintiff denied filing any prior workers' compensation claims or having any prior neck and back injuries. However, in April 2013, as the extended discovery period was ending, GEICO served plaintiff with an amendment to interrogatory answers that included various records obtained from the Division of Workers' Compensation pursuant to subpoena. These included a 2000 claim petition in which plaintiff alleged compensable injuries to his neck, back and other body parts, a transcript from the 2003 settlement of that petition and the order approving settlement pursuant to N.J.S.A. 34:15-20. In his pre-trial exchange, see R. 4:25-7, citing Allendorf v. Kaiserman Enterprises, 2 66 N.J. Super. 662 (App. Div. 1993), plaintiff indicated his intention to move in limine to exclude the records, "as there [was] no medical evidence relating to that claim."
The deposition is not in the record.
The in limine motion was argued on the first day of trial. Counsel admitted that plaintiff denied ever filing a workers' compensation claim during his deposition, but he argued plaintiff had no medical treatment for the injury and there would be "no medical testimony and no medical references" to this injury, noting specifically that "Dr. Deluca never saw this worker[s'] compensation award." Plaintiff argued any evidence regarding the prior claim for neck and back injuries should be excluded pursuant to N.J.R.E. 403.
Defendants argued that they had a right to use the evidence to impeach plaintiff pursuant to N.J.R.E. 607, stating "not only did [plaintiff] file a worker[s'] comp[ensation] claim, he filed it because of a car accident and because of a neck and back injury, all of which he denied . . . at the deposition."
Although the judge initially overruled the objection, plaintiff's counsel persisted, urging the judge to limit the evidence to impeach only plaintiff's prior deposition testimony. He again noted, "the doctors haven't reviewed this," and "there is no medical evidence or testimony on whether or not that injury is even related to this [one]." After examining the proffered evidence, the judge ruled:
[T]he evidence will be limited to the accuracy of the plaintiff's response as to whether or not he filed a worker[s'] compensation claim.
However, the details thereof shall be excluded, since the doctor[s] have not commented in any way. And the information could give rise to speculation on the part of the jury and . . . be unduly prejudicial for the probative value they may have.
During direct examination at trial, plaintiff denied having ever testified before in court. He acknowledged filing a prior workers' compensation claim but denied ever being treated by a doctor prior to this accident for neck or back pain. During cross-examination, defense counsel asked plaintiff if he remembered "going to court in Newark on April 29, 2003," the date of the proceedings during which plaintiff testified and agreed to the settlement of his workers' compensation claim. Plaintiff said he did not remember.
Overruling plaintiff's counsel's objection, the judge permitted GEICO's counsel to confront plaintiff with the documents. Plaintiff then acknowledged being in court but said
it wasn't for me being hurt. . . . I remember it wasn't a courtroom like this, it was just a . . . small room because the guy, he owed me money for back wages and he was supposed to pay me. He didn't want to pay me for my back wages.After a sidebar, the judge only permitted defense counsel to show plaintiff the documents and ask if they refreshed his recollection. Defense counsel was permitted to ask if plaintiff's prior court appearance was not "about wages." Plaintiff responded, "Um-mum."
Plaintiff's counsel thereafter moved for a mistrial, claiming the cross-examination went beyond that permitted by the judge's in limine ruling. The judge denied the application, noting "there [was] nothing about injury . . . that[] [was] addressed by the questioning . . . absolutely nothing . . . [rose] to the level of even creating the risk of a miscarriage of justice."
When GEICO moved for a new trial, it argued that the judge should have permitted the use of the workers' compensation material to impeach plaintiff's claim that he had never suffered injuries to his neck and back before. In denying the motion, the judge reiterated the ruling he made in limine, stating, "[t]he Court made it clear that in order to admit testimony regarding previous accidents, evidence needed to be brought forward that there was a causal link between the injuries currently complained of and the previous accident. No such evidence was produced."
Before us, defendants reiterate their argument. They contend they should have been permitted to impeach plaintiff's claim that he had never suffered neck or back injuries prior to the accident. Plaintiff argues that the judge's ruling was correct, and, even if erroneous, defendants effectively were able to get this information before the jury through the limited cross-examination permitted.
With certain limitations, our evidence rules permit impeachment of a witness's credibility through examination with and introduction of extrinsic evidence. N.J.R.E. 607. "Although extrinsic evidence may be admitted to impeach a witness, its probative value as impeachment evidence must be assessed independently of its potential value as substantive evidence." Green v. N.J. Mfrs. Ins. Co., 160 N.J. 480, 494 (1999) (citation omitted); see also State v. Hutchins, 241 N.J. Super. 353, 361 (App. Div. 1990) ("Irrelevant evidence which might improperly affect a witness' credibility may not be admitted into evidence."); Biunno, Weissbard & Zegas, Current N.J. Rules of Evidence, comment 1 on N.J.R.E. 607 (2014) ("[T]he only evidence that may be introduced is that which contradicts or calls into question the witness's version of the facts; only that evidence is relevant.").
Ironically, our decision in Allendorf supports defendants' position. There, the plaintiff argued the trial court erred in denying her motion to strike testimony elicited by the defendants regarding prior episodes during which she passed out. 266 N.J. Super. at 672. The plaintiff contended the defendants failed to demonstrate through expert testimony that these episodes were unrelated to the accident or pre-existed the accident. Ibid.
We recognized that "[a] party seeking to present evidence of a prior injury or condition relating to an issue of medical causation must show that the evidence has some 'logical relationship to the issue in the case.'" Ibid. (quoting Paxton v. Misiuk, 34 N.J. 453, 460 (1961)). We concluded that the defendants had satisfied these requirements through expert testimony. Id. at 673. Additionally, we concluded "the evidence that [the] plaintiff had episodes of passing out prior to the accident was admissible for the purpose of impeaching the credibility of her testimony that she was 'in perfect health' and had never had 'any problem with blacking out' prior to the accident." Id. at 674 (citing N.J.R.E. 607).
In this case, defendants should have been permitted to cross-examine plaintiff about filing a previous petition for workers' compensation benefits in which he alleged injuries to his neck and spine. That extrinsic evidence specifically impeached plaintiff's testimony that he never suffered from such ailments before the accident in this case. Plaintiff's counsel fully recognized credibility was critical to the case. In his opening he stated, "[t]he first thing you're going to decide . . . is whether or not [plaintiff] is a faker or a liar." In summation, he reinforced the theme, telling the jury that the primary issue in the case was "whether or not [plaintiff was] a liar." The judge's decision on this issue is not entitled to the usual deference we accord evidentiary rulings because it was premised upon a misunderstanding of applicable law. Konop, supra, 425 N.J. Super. at 401. In short, we agree with defendants that it was error to limit cross-examination of plaintiff regarding the nature of injuries claimed in his workers' compensation petition because that evidence was admissible to impeach plaintiff's testimony on a critical issue in the case.
We address one other point that is not critical to our decision. The Court has said that "every defendant, in response to an allegation that his negligence has caused injury, possesses the right of demonstrating by competent evidence that that injury 'could' have been caused, wholly or partly, by an earlier accident or by a pre-existing condition." Davidson v. Slater, 189 N.J. 166, 187 (2007) (quoting Paxton, supra, 34 N.J. 460-61). A defendant must produce competent proof of a "logical relationship" between prior injury and the "issue in the case." Paxton, supra, 34 N.J. at 460. Here, the judge accepted plaintiff's argument that defendants should not be permitted to question plaintiff about his prior claim of back and neck injuries because defendants' medical expert never addressed the issue. However, plaintiff failed to relate this information to either medical expert in the case when he provided a history, and so Dr. Deluca's failure to address it in a report was understandable. The judge's in limine ruling barred the door on defense counsel's ability to question his own expert about plaintiff's prior claim of injury and whether such information supported Deluca's essential conclusion that plaintiff had degenerative changes in his spine. The ruling also foreclosed defendants' ability to cross-examine Dr. Demesmin, who noted the onset of plaintiff's symptoms arose after the accident, and concluded, in part, that the lack of prior complaints demonstrated a causal relationship to the accident at issue.
III.
A trial judge "shall . . . grant [a motion for a new trial] if, having given due regard to the opportunity of the jury to pass upon the credibility of the witnesses, it clearly and convincingly appears that there was a miscarriage of justice under the law." R. 4:49-1(a). We have said that
[t]his standard applies whether the motion is based upon a contention that the verdict was against the weight of the evidence, or is based upon a contention that the judge's initial trial rulings resulted in prejudice to a party. Whether to grant the motion is within the trial court's discretion. On appeal, we consider essentially the same standard.We apply a similar analysis when evaluating a claim of cumulative error, Pellicer, supra, 200 N.J. at 51-52, that is where each individual error is not "clearly capable of producing an unjust result," R. 2:10-2, but collectively, the errors "relate to relevant matters and in the aggregate render[] the trial unfair." Pellicer, supra, 200 N.J. at 55 (quoting Diakamopoulos v. Monmouth Med. Ctr., 312 N.J. Super. 20, 37 (App. Div. 1998) (internal quotation marks omitted).
[Hill v. N.J. Dep't of Corr., 342 N.J. Super. 273, 302 (App. Div. 2001) (citing Crawn v. Campo, 136 N.J. 494, 510-12 (1994); R. 2:10-1), certif. denied, 171 N.J. 338 (2002).]
The errors cited above preceded trial and pervaded the course of the actual trial. Ibid. In our minds, the discretionary decisions regarding discovery and the admission of evidence misapplied applicable legal principles and "unfairly tilt[ed] the balance in favor of plaintiff[] and . . . deprive[d] defendants of a fair trial." Id. at 56-57. We therefore reverse, vacate the judgment entered and remand the matter for a new trial.
In light of our decision, we do not address defendants' arguments regarding the amount of the verdict or whether it was appropriate to include pre-judgment interest in the judgment.
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In the event the matter is tried again, we briefly address two other evidentiary issues raised by defendants. They argue that the judge "erred when [he] barred defendants from asking plaintiff who referred him to his treating physicians." Based on the record before us, we find no error. It would appear from the arguments of counsel that, during his deposition, plaintiff testified he expressed dissatisfaction with his prior physician, and he may have requested the referral from his attorney. In the event of another trial, we leave the issue of relevancy and admissibility of such evidence to the sound discretion of the trial judge who should more fully develop the record.
Defendants' last point is that the judge erred in admitting statements Contessa made to plaintiff during a break in Court proceedings. Plaintiff testified that Contessa acknowledged seeing plaintiff immediately after the accident and telling an ambulance attendant that plaintiff was "hurt." The statements were admissible pursuant to N.J.R.E. 803(b)(1) (excluding from the hearsay rule "[a] statement offered against a party which is . . . the party's own statement"). Defendants' claim that Contessa's statement was not relevant since liability was stipulated lacks sufficient merit to warrant discussion in this opinion. R. 2:11-3(e)(1)(E).
Reversed and remanded for further proceedings consistent with this opinion. We do not retain jurisdiction. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION