The New Jersey Supreme Court weighed in on the issue of whether expert testimony is required for the admission of photographs of damage to the car or truck as probative to the issue of a plaintiff’s damages/injuries.
In Brenman v. Demellon, the Plaintiff was driving in stop-and-go traffic when she was rear ended by the Defendant. The Plaintiff allegedly suffered a herniated cervical disc requiring a cervical fusion.
At trial, the Defendant sought to introduce photographs showing minimal damage to the rear bumper of Plaintiff’s car to contend that the Plaintiff could not have suffered a herniated disc in this accident given the property damage to the vehicles. Plaintiff filed a motion in limine seeking to bar the admission of the photographs absent expert proof to connect the condition depicted in the photographs to the biomechanical forces that resulted from the impact between the two cars.
The trial court admitted the photographs, specifically concluding that “[j]urors can infer from their viewing photographs that the plaintiff could not have been as seriously injured as she claimed” and noted this question should be left to the discretion of the trial court.
After an award of zero damages, the Plaintiff appealed. The Appellate Division (New Jersey’s intermediate appellate court) reversed and remanded the case for a new trial, adopting a per se rule that requires expert testimony to prove a causal link between the extent of damage to an automobile in an accident and the cause or extent of injuries arising from that accident consistent with Delaware law in Davis v. Maute, 770 A.2d 36 (Del. 2001). In that case, the Supreme Court of Delaware held that: (1) as a general rule, a party in an automobile accident case may not directly argue the relationship between the damage to the vehicles in the car accident and the extent of Plaintiff’s injuries caused by the accident absent expert testimony on the issue; (2) lawyers may not argue by implication what the lawyer could not argue indirectly, i.e., they may not characterize the accident as a fender-bender or otherwise downplay the seriousness of the accident; and (3) the lower court erred in admitting the photographs of the Plaintiff’s car without a specific instruction limiting the jury’s use of the photographs.
The Supreme Court reversed, holding that the admissibility of photographs of the vehicles rests on whether the photograph fairly and accurately depicts what it purports to represent, and that this decision rests in the discretion of the trial court. The New Jersey Supreme Court specifically rejected a per se rule requiring expert testimony as a foundation for the admissibility of a photograph of a vehicle even when the photograph is used to show a correlation between the damage to the vehicle and the extent of a plaintiff’s injuries. There was, however, dissenting opinion that urged a per se rule requiring expert testimony before the admission of property damage photos.
This ruling is consistent with Maryland law set forth by the Court of Special Appeals in Mason v. Lynch, 388 Md. 37, 878 A.2d 588 (2005). In this case, the Plaintiff stopped her automobile on a bridge in P.G. County and was rear-ended. The Prince George’s County Circuit Court Judge allowed the admission of photos of plaintiff’s vehicle and let the defendant offer what is arguably a reasonable common sense argument: how could these serious injuries have occurred given the limited damage to the vehicles? Plaintiff’s lawyer, David Kopstein, a well respected personal injury lawyer in Charles County, appealed the jury award of no damages.
A split Court of Appeals, with a notable dissent written by Judge Raker, which Judge Bell joined, affirmed that the trial judge has the discretion to allow into evidence photographs that allegedly illustrate the inconsistencies between Plaintiff’s injuries from the car accident and the property damage sustained by the vehicles involved, even in the absence of expert testimony that establishes a correlation between property damage as illustrated in a photograph and the Plaintiff’s injuries. Writing on behalf of the majority, retired Judge John C. Eldridge opined that “It is ordinarily within the discretion of the trial court to weigh the degree of relevance against any unfair prejudice which might arise from the admission of the photographs. . . . [accordingly], the trial court’s ruling on admissibility will not be overturned on appeal absent a clear abuse of discretion.” In so holding, the court considered and then rejected the Davis v. Maute holding that required expert testimony first establish a causal link between the damages to the vehicles and the injuries to one of the drivers before the photographs of the damages to the vehicles becomes admissible.
Judge Raker’s dissent pointed to the scientific literature that shows there is no positive correlation between property damage and extent of injury, arguing that “[t]here is no way that, based merely on the extent of property damage, a fact finder could assess the injury of a party and particularly, whether a party had a preexisting injury that was exacerbated by the impact. A review of the scientific literature expresses the view that there can be a strong inverse correlation between injury levels and measurable vehicle crush, especially in low speed, rear-impact collisions.”
Typically, the defense lawyers play both sides of this issue, as do plaintiffs’ attorneys. If the damage is significant, obviously our lawyers want the pictures of the vehicles admitted into evidence. Conversely, in lower property damage but significant injury cases, we seek to exclude the photographs.
In these cases, the pictures are almost invariably admitted into evidence and the defense lawyers display large blow-up photographs of the cars involved and argue that the lack of significant damage means that the plaintiff could not have been seriously hurt in the accident. If there is an objective finding, such as a herniated disc, the defense attorneys argue that the condition was preexisting, not related to the accident, or that the plaintiff’s doctors were not properly reading the diagnostic findings.
The best response to this is to warn the jury in opening statements that they can expect to see the photographs blown up and pointed to time and time again. This prepares the jury for the evidence and takes some of the sting out of the defense’s case. Just as importantly, fight the instinct of running away from the photographs. Admit that there was minimal property damage. Instead of pointing endlessly to the literature that demonstrates a lack of a correlation, literature that bores a jury to tears and, while well-founded is counterintuitive to many jurors, we point out that extraordinary injuries sometimes happen in ordinary accidents.
Explain that while such an occurrence is rare, it is often the rare cases that make it to the jury (as any first year law student knows from the remarkable cases that find their way into their textbooks). I think juries understand the concept that most cases settle and the strange ones are the cases that make it to trial.
In Maryland and other states that have a similar rule of law, photographs are not automatically admitted into evidence. Rather, it is up to the judge’s discretion in each individual case to determine whether the pictures would be of assistance to the trier of fact. Accordingly, you should still file a motion in limine to exclude photographs of the property damage to the vehicles when appropriate.
If you do these things and the plaintiff is credible to the jury and there is quality medical evidence to support the injury claim, there is a fine chance that a jury will ignore the minor property damage and award fair compensation for a plaintiff’s injuries.