Transcript Impact Evidence Admissibility Update

Impact Evidence
Admissibility Update
Honorable Joseph R. Slights, III
Davis v. Maute, 770 A.2d 36 (Del.
2001)
Background:
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In opening statements at trial, Maute’s
counsel described the automobile accident
as a “fender-bender”
Offered photographs into evidence that
showed minimal damage to the plaintiff’s
car.
Did not offer expert testimony to corroborate
the argument that slight property damage
was suggestive of minimal physical injuries.
(Id. at 39)
Davis v. Maute, 770 A.2d 36 (Del.
2001)
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Court Rules:
Counsel’s arguments:
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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)
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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:
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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 party’s personal
injuries.” (Id. at 42)
Eskin v. Cardin, 842 A.2d 1222
(Del. 2004)
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“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.
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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 impliedthat prompted our holding.
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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.
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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.”
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Eskin v. Cardin cont.
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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-fitsall” statistical range.
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Trial court properly excluded biomechanical
expert who failed to take into account the
plaintiff’s unique medical history in
formulating his
Dunn v. Riley, 864 A.2d 905 (Del.
2004)
 Defendant’s
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
Drejka v. Hitchens Tire Service, Inc., 2009
WL 1813761 (Del. Super. July 13, 2009)
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Issue:
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The Defendant sought to exclude photographs depicting
the damage to Drejka’s vehicle and testimony regarding
the forces of impact she experienced.
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The motion was granted in part and denied in part.
To the extent the motion attempted to limit the Plaintiff’s
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 Plaintiff’s 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)
Kapetanakis v. Baker, 2008 WL
3824165 (Del. Super. Aug. 11, 2008)
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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)).
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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.
State Farm Mut. Automobile Ins. Co. v.
Enrique, 3 A.3d 1099 (Del. Sept. 3, 2010)
(TABLE)
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Issue:
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State Farm appealed the Superior Court’s 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.
State Farm Mut. Automobile Ins. Co. v.
Enrique, 3 A.3d 1099 (Del. Sept. 3, 2010)
(TABLE)
Superior Court Reasoning:
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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 plaintiff’s injuries. (Id. at *2)
State Farm Mut. Automobile Ins. Co. v.
Enrique, 3 A.3d 1099 (Del. Sept. 3, 2010)
(TABLE)
Continued:
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The Supreme Court affirmed -
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Regardless of whether State Farm acknowledge that Enrique’s knees
were injured when they hit the dashboard, it was still Enrique’s
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.
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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.
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State Farm provided a curative instruction that the photographs were only
to be considered as evidence that Enrique’s knees hit the dashboard.
Therefore, the limiting instruction complied with Davis. (Id. at *3)
Adams v. Satterfield, 2009 WL 3636762
(Del. Super. Ct. Aug. 27, 2009)
Issue:
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Did the court improperly deny a motion for mistrial after defense
counsel referred to the automobile accident as a “minor accident.”
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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 court’s trial admonition and attempted to correlate a
“minor accident” to minimal injuries during the trial.
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The court admonished defense counsel when he crossed examined
Plaintiff Adams in an attempt to establish the collision’s minimal impact.
Adams v. Satterfield, 2009 WL 3636762
(Del. Super. Ct. Aug. 27, 2009)
Reasoning/Rational:
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The court denied the motion for new trial and found that this case
was unlike Davis in that:
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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))
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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)
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The Defendant’s single reference to a “minor accident” was not enough to
mislead the jury (Id. at *1)
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Plaintiff declined the curative instruction
Marafet v. Fiala, 2003 WL
23274847
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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.
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Nevertheless, the comment about the scratch arguably was a Davis violation.
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As mentioned, however, Plaintiff chose not to object. Had Plaintiff objected, the court could
have given an effective curative instruction on the spot.
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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.
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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.
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Considering the actual Davis violation and taking its genesis into account, this is a good
case to enforce the contemporaneous objection rule.
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Thomas v. Lagola, 2003 WL
22496355 (Del. Super.)
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Biomechanical testimony criticized
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“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.
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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.”
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Cuonzo v Shore, 958 A.2d 840 (Del.
2008)
Emphasizes proper disclosure of evidence in the pretrial stipulation
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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.
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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.”
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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.
Sloan v Clemmons, 2001 WL 1735087
(Del. Super. Ct. Dec. 17, 2001)
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Court laments the aftermath of Davis:
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“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.
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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.
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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.”
Sloan v Clemmons, 2001 WL 1735087
(Del. Super. Ct. Dec. 17, 2001)
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The “Other Purpose” Exception – use of property damage evidence to attack
credibility
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“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.
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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.”
Hovis v. Hughes cont.
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“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.”