This post is supposed to be about a New Jersey Supreme Court decision on whether expert testimony for the admission of photographs of car or truck damage as probative to a plaintiff’s damages/injuries.
But I’m hijacking this post. Because people see to want to know how to get a property damage photograph into evidence and the questions you have to answer this witness. How do I know? I saw it in our traffic analytics. I’m not sure why that made sense but I want to give people what they want. So here we go:
How to Admit Photograph of Property Damage Pictures
Q: Are you familiar with this photograph?
A: Yes, I am.
Q: Can you describe what is shown in the photograph?
A: It shows the property damage picture to my vehicle after the crash.
Q: Was this photograph taken by you or someone you know?
A: I took the picture.
Q: Is this picture of your vehicle after the crash a true and accurate representation of you vehicle after the car crash with David Johnson on March 1, 2023
Q: Is this photograph a fair and accurate depiction of what you saw at the time?
A: Yes, it is.
Q: Does this photograph accurately represent the scene as you recall it?
A: Yes, it does.
Q: Did you alter or manipulate this photograph in any way (2023 question we ask)?
A: No, I have not.
Q: Is this photograph a true and accurate representation of what it purports to depict?
A: Yes, it is.
Q: Your Honor, I would like to offer this photograph Exhibit A. We have established the foundation for its authenticity through the testimony of Mr. Davis, who took the photograph and can identify what is depicted in it. We ask that the photograph be admitted into evidence and made part of the record.”
Brenman v. Demellon
In Brenman v. Demellon, is a New Jersey Supreme Court decision on whether expert testimony for the admission of photographs of car or truck damage as probative to a plaintiff’s damages/injuries.
Simple facts: 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 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 they should leave this question to the discretion of the trial court.
After an award of zero damages, the Plaintiff appealed, I’m sure with bitterness. 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.
Bumper tap lawyers love Davis v. Maute because they want to keep out photographs of the crash because you want to say what is important is what happened inside the vehicle. If you have a serous accident case with serious property damage, you want those pictures into evidence.
Supreme Court Reverses
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, a dissenting opinion that urged a per se rule requiring expert testimony before the admission of property damage photos.