Impact Evidence Admissibility Update

1
Impact Evidence Admissibility Update

• Honorable Joseph R. Slights, III

2
Davis v. Maute, 770 A.2d 36 (Del. 2001)

• Background
• In opening statements at trial, Mautes counsel
  described the automobile accident as a
  fender-bender
• Offered photographs into evidence that showed
  minimal damage to the plaintiffs car.
• Did not offer expert testimony to corroborate the
  argument that slight property damage was
  suggestive of minimal physical injuries. (Id. at
  39)

3
Davis v. Maute, 770 A.2d 36 (Del. 2001)

• Court Rules
• Counsels arguments
• In general, when there is an absence of expert
  testimony, counsel may not argue there is a
  correlation between the extent of damage to
  automobiles in an accident and the extent of the
  occupants personal injuries caused by the
  accident. (770 A.2d at 38)
• Must present competent expert testimony to
  support the argument. (Id. at 40 n.3)
• And counsel may not argue by implication what
  counsel may not argue directly. (Id. at 40)
• Photographs
• Admissibility of photographs falls under the
  Delaware Rules of Evidence 403 test. If the risk
  to the jury of an improper inference
  substantially outweighs the probative value,
  they are inadmissible. (Id. at 41)
• If the photographs are admissible, the jury must
  be instructed that there is no evidence of a
  correlation between the damage shown in the
  photographs and the severity of the partys
  personal injuries. (Id. at 42)

4
Eskin v. Cardin, 842 A.2d 1222 (Del. 2004)

• Davis does not hold that photographs of the
  vehicles involved in an accident may never be
  admitted without expert testimony about the
  significance of the damage to the vehicles shown
  in the accident and how that damage may relate to
  an issue in the case.
• Davis has been misinterpreted as a bar to the
  admission of photographs without expert
  testimony. It was only the disingenuous reference
  to a fender bender-after a trial judge's
  express ruling forbidding what that phrase
  implied-that prompted our holding.
• Davis should not be construed broadly to require
  expert testimony in every case in order for
  jurors to be permitted to view photographs of
  vehicles involved in an accident.
• In short, Davis should be limited to its facts,
  recognizing that there may be many helpful
  purposes for admitting photographs of the
  vehicles involved in an accident where the case
  does not require supporting expert opinion.

5
Eskin v. Cardin cont.

• With respect to proffered expert testimony, the
  trial judge could properly conclude that there
  was a danger that the jury would be confused or
  misled into believing that Carden fell within the
  field's one-size-fits-all statistical range.
• Trial court properly excluded biomechanical
  expert who failed to take into account the
  plaintiffs unique medical history in formulating
  his

6
Dunn v. Riley, 864 A.2d 905 (Del. 2004)

• Defendants reference to minor impact did not
  open the door for plaintiff to introduce evidence
  of cost of repairs to her vehicle (which
  presumably would infer more substantial impact)
• Curative instruction cured the prejudice

7
Drejka v. Hitchens Tire Service, Inc., 2009 WL
1813761 (Del. Super. July 13, 2009)

• Issue
• The Defendant sought to exclude photographs
  depicting the damage to Drejkas vehicle and
  testimony regarding the forces of impact she
  experienced.
• The motion was granted in part and denied in
  part.
• To the extent the motion attempted to limit the
  Plaintiffs testimony as to the movements of her
  body within the vehicle during the accident, it
  was denied.
• To the extent the motion sought to exclude
  vehicle photographs and testimony relating to
  property damage and the Plaintiffs injuries,
  however, it was granted.
• Citing Davis v. Maute the court held that absent
  competent expert testimony, a party in a personal
  injury case generally may not directly argue that
  the severity of the personal injuries may be
  inferred from the extent of automobile damage.
  (Id. at 1)

8
Kapetanakis v. Baker, 2008 WL 3824165 (Del.
Super. Aug. 11, 2008)

• Court reiterates that Davis prohibits a party in
  a personal injury case from arguing directly that
  the seriousness of personal injuries from a car
  accident correlates to the extent of the damage
  to cars, unless the party can produce competent
  expert testimony on the issue. (Id. at 2
  (quoting Davis, 770 A.2d at 40)).
• The Motion in limine was granted to the extent
  the Plaintiff was not permitted to admit
  photographs of the car or damage estimates.
• The Plaintiff was permitted, however, to testify
  as to what happened in the passenger compartment
  during and immediately after the accident.

9
State Farm Mut. Automobile Ins. Co. v. Enrique, 3
A.3d 1099 (Del. Sept. 3, 2010) (TABLE)

• Issue
• State Farm appealed the Superior Courts decision
  admitting three photographs of the damaged
  automobiles into evidence.
• First, State Farm argued that the Superior Court
  abused its discretion by admitting the
  photographs because they were irrelevant to the
  determination of damages and unduly prejudicial
  to State Farm
• Second, State Farm argued that the limiting jury
  instruction given by the trial judge was
  insufficient to overcome the improper admission
  of the photographs.

10
State Farm Mut. Automobile Ins. Co. v. Enrique, 3
A.3d 1099 (Del. Sept. 3, 2010) (TABLE)

• Superior Court Reasoning
• The Superior Court found the photos admissible
  because any evidence which tends to show that it
  is more or less probable that her knees collided
  with the dashboard is relevant. (Id. at 1
  (internal quotation marks omitted) (citation
  omitted)).
• After the court ruled that the photos were
  admissible, the defense proposed, and the court
  issued, a curative jury instruction in which the
  jury was told that the photographs were not to be
  considered as evidence that the damage to the
  vehicle correlates with the severity of the
  plaintiffs injuries. (Id. at 2)

11
State Farm Mut. Automobile Ins. Co. v. Enrique, 3
A.3d 1099 (Del. Sept. 3, 2010) (TABLE)

• Continued
• The Supreme Court affirmed -
• Regardless of whether State Farm acknowledge that
  Enriques knees were injured when they hit the
  dashboard, it was still Enriques burden to
  establish a prima facie basis for recovery as to
  all elements of her claim and she could present
  probative evidence that would assist her in
  meeting this burden.
• Where photographs are relevant to a disputed
  issue and admissible under D.R.E. 403, a curative
  jury instruction is necessary to explain that the
  jury may not infer the severity of the injury
  from photos depicting vehicle damage.
• State Farm provided a curative instruction that
  the photographs were only to be considered as
  evidence that Enriques knees hit the dashboard.
  Therefore, the limiting instruction complied with
  Davis. (Id. at 3)

12
Adams v. Satterfield, 2009 WL 3636762 (Del.
Super. Ct. Aug. 27, 2009)

• Issue
• Did the court improperly deny a motion for
  mistrial after defense counsel referred to the
  automobile accident as a minor accident.
• The court denied the motion and Plaintiffs
  counsel rejected a curative instruction.
• Plaintiffs motion for new trial on the claim that
  the defense counsel ignored the courts trial
  admonition and attempted to correlate a minor
  accident to minimal injuries during the trial.
• The court admonished defense counsel when he
  crossed examined Plaintiff Adams in an attempt to
  establish the collisions minimal impact.

13
Adams v. Satterfield, 2009 WL 3636762 (Del.
Super. Ct. Aug. 27, 2009)

• Reasoning/Rational
• The court denied the motion for new trial and
  found that this case was unlike Davis in that
• Plaintiffs conceded from the start that
  Plaintiffs injuries were not the most serious
  injury that ever occurred and was not a million
  dollar case. (Id. at 1 (citation omitted))
• Defendant referred to the minor accident only
  once (Id. at 1)
• Defendant did not attempt to press a correlation
  between minor damage and minor personal injuries
  with physical evidence after the admonition (Id.
  at 1)
• The Defendants single reference to a minor
  accident was not enough to mislead the jury (Id.
  at 1)
• Plaintiff declined the curative instruction

14
Marafet v. Fiala, 2003 WL 23274847

• An isolated, non-responsive comment about damage
  to Plaintiff's car was far less egregious than
  what happened in Davis. The comment about the
  scratch was a single remark made in court, as
  opposed to the introduction of photographs and
  argument in opening and closing. Moreover, the
  circumstances of the collision were raised more
  directly by Marefat than by Davis.
• Nevertheless, the comment about the scratch
  arguably was a Davis violation.
• As mentioned, however, Plaintiff chose not to
  object. Had Plaintiff objected, the court could
  have given an effective curative instruction on
  the spot.
• The court also notes that it will be almost
  impossible to enforce Davis against lay
  witnesses. Whether defendants are careless or
  calculating, comments like Defendant's will
  happen.
• The court does not read Davis to require a
  mistrial at the mere mention of damages by a
  wayward litigant, especially when it draws no
  objection.
• Considering the actual Davis violation and taking
  its genesis into account, this is a good case to
  enforce the contemporaneous objection rule.

15
Thomas v. Lagola, 2003 WL 22496355 (Del. Super.)

• Biomechanical testimony criticized
• The Court would also use this opportunity to
  reflect that it is concerned about the
  appropriate use of biomechanical experts and the
  effect they may have on the fair deliberative
  process of the jury. This is the first case where
  I have had such testimony, and in fairness to the
  defense, the Court provided her significant lee
  way in the testimony, which she solicited from
  her expert. In hindsight, the Court is not
  convinced that it was the right path, and when
  confronted with similar testimony in the future,
  the Court may be more conservative in the
  admissibility of such evidence. The biomechanical
  game is an unfortunate byproduct of an attempt to
  solve the improper use of photographs decided in
  Davis v. Maute which has led, I believe, in most
  reasonable minds, to an even worse and more
  costly process.
• I question the value of biomechanical testimony
  in the normal motor vehicle case but understand
  the dilemma facing counsel if they do not pursue
  its admissibility. Defense counsel got a break
  from my limited familiarity with such testimony,
  but his brethren may not be so fortunate.

16
Cuonzo v Shore, 958 A.2d 840 (Del. 2008)

• Emphasizes proper disclosure of evidence in the
  pretrial stipulation
• Plaintiff argued at trial that the photographs
  showed the skid marks at scene and the severity
  of the accident, factors probative of Young's
  speed and injuries.
• The trial judge simply read the plain wording in
  the pretrial stipulation literally where
  plaintiffs indicated photographs of the
  accident scene and Defendant Shore's vehicle.
• In concluding that the Estate did not
  specifically identify photographs to be used for
  the purpose of drawing inferences from damage to
  the Youngs' car, the trial judge correctly
  determined that it was the Estate's burden to
  establish that manifest injustice could only be
  avoided by seeking to amend the stipulation to
  include photographs that could be used to show
  damage to the Youngs' car.

17
Sloan v Clemmons, 2001 WL 1735087 (Del. Super.
Ct. Dec. 17, 2001)

• Court laments the aftermath of Davis
• There was a time when photographs of the
  vehicles involved in an accident (or, at least,
  plaintiffs' vehicle) were front and center in
  almost every MIST case tried in this Court. The
  defendant would display the photographs of the
  vehicles (usually enlarged) depicting minor
  damage and would urge the jury to rely upon their
  common sense to conclude that the occupants of
  the plaintiffs' vehicle could not have sustained
  serious injury or, in some instances, any injury
  as a result of the accident.
• The court would admit the photographs in evidence
  based on the notion that they depicted what
  happened in the accident as clearly, if not more
  clearly, than any witness could. When the court
  would admit the photographs in evidence, it would
  do so without expert foundation. Again, the
  rationale was that jurors were capable of drawing
  lay inferences regarding the extent of impact
  from photographs depicting vehicle damage.
• The Supreme Court's decision in Davis v. Maute
  marked a significant change in the evidentiary
  practice of this court. Davis expressly rejected
  the argument that photographs of the vehicles
  support a common sense inference that
  plaintiff's subjective complaints are not
  credible.

18
Sloan v Clemmons, 2001 WL 1735087 (Del. Super.
Ct. Dec. 17, 2001)

• The Other Purpose Exception use of property
  damage evidence to attack credibility
• Finally, with respect to the argument that
  defendant should be permitted to elicit testimony
  regarding property damage, force of impact and
  speed of the vehicles in order to attack
  plaintiff's credibility, the Court is not
  satisfied that this case represents the case
  envisioned by Davis where evidence otherwise
  inadmissible could be admitted for a purpose
  other than the proscribed minimal damage/minimal
  injury inference.
• Certainly, there may be a case where the
  plaintiff has so misstated a fact regarding the
  accident that evidence otherwise prohibited by
  Davis would be admissible to impeach the
  plaintiff. Under these circumstances, the
  otherwise inadmissible evidence would be
  permitted so that a misleading image of the
  accident was not permitted to fester with the
  jury.
• This case, however, presented no such concerns.
  The plaintiff did not describe the impact in her
  testimony and offered only a sterile description
  her body's movements on impact. There simply was
  no justification presented at trial to allow an
  attack on her credibility with potentially
  misleading references to vehicle speed and
  property damage.

19
Hovis v. Hughes, 2001 WL 1751396 (Del. Super. Ct.
Dec. 28, 2001)

• Court decides motion for new trial
• Defense proffered medical experts who were
  prepared to testify that force of impact directly
  relates to extent of injury in care crash case
• Defendant sought to introduce photographs of the
  vehicles through these experts
• Court allowed testimony re force of
  impact/injury correlation but did not allow
  photos
• The risk of unguided speculation still
  remained, however, with respect to the
  correlation between property damage and force of
  impact or injury.

20
Hovis v. Hughes cont.

• The court acknowledges that its decision to
  exclude the photographs was significant. As
  stated, the first trial during which the photos
  were admitted (without objection) resulted in a
  1000 verdict for the plaintiffs. The second
  trial before which the photographs were
  excluded resulted in a 80,000 verdict for the
  plaintiffs. Aside from the photographs, the
  evidence presented at both trials was nearly
  identical. Thus, it might be said that a
  picture is worth about 79,000. The disparity
  in the jury verdicts in this case is perhaps the
  best evidence of he highly prejudicial nature of
  photographic evidence in low impact automobile
  accident cases. It is this potential for
  prejudice which underscores the need to admit
  this evidence only after it has been placed in
  proper context by competent expert testimony.