The Admissibility Of Vehicle Photographs And The Correlation Of Minimal Damage With Minimal Injuries - DD 12/03

Defense Digest

The Admissibility Of Vehicle Photographs And The Correlation Of Minimal Damage With Minimal Injuries

In Davis v. Maute , 770 A.2d 36 (Del. 2001), the Supreme Court of Delaware altered a long standing rule on the issue of whether photographs of a vehicle involved in a crash were admissible in order for jurors to determine whether minimal property damage to a vehicle was co-extensive with minimal personal injury to the vehicle's occupant and prompted a flurry of challenges to defense efforts to refute a plaintiff's claims of significant injuries from low impact/minimal damage accidents.  In Davis, the defendant ran a red light and collided with the rear passenger side of a car driven by the plaintiff.  Although the tortfeasor defendant acknowledged that he was liable for the accident, the parties could not agree on the extent to which the crash caused the plaintiff's personal injuries.  The plaintiff contended that she sustained serious personal injuries because of the collision. 

During the trial on damages, the plaintiff offered expert medical evidence that the crash caused her to twist suddenly to her right, which in turn produced permanent injuries to the muscles and soft tissue in her neck, back, and ribs.  The defendant tortfeasor countered with expert testimony that, although the plaintiff had suffered permanent soft tissue injuries, the injuries were not serious, and some symptoms were due to a pre-existing arthritic condition.  With $6,270.00 in stipulated medical expenses, the jury returned an award of $8,766.00, which included the agreed-to medical expenses.  On request for additur, the trial court increased the jury's award to $12,000.00 subject to the defendant tortfeasor's consent. 

The plaintiff was dissatisfied with the additur and appealed to the Delaware Supreme Court, arguing that remarks made by defense counsel during trial and photographs admitted into evidence which showed the extent of physical damage to the plaintiff's vehicle were, respectively, improperly made and admitted into evidence.  Despite a pretrial ruling in favor of the plaintiff restricting references to the severity of the physical damage to the plaintiff's vehicle, defense counsel referred to the accident on multiple occasions as "a fender bender."  The plaintiff's counsel objected at trial to defense counsel's reference to the accident as a "fender bender" in violation of the pre-trial ruling in limine, but the trial judge decided that any resulting prejudice would be neutralized by a general instruction to the jury to decide the case based only upon evidence admitted during trial.

In defense counsel's cross-examination of the plaintiff, the trial judge allowed the defense to introduce photographs of apparently minimal damage to the plaintiff's car, ruling that the photographs were relevant and admissible to show "the facts of the event," but not to argue that the accident could not have caused serious personal injury to the plaintiff based upon the depiction of very minimal damage to the plaintiff's vehicle.  Toward the end of his cross-examination of the plaintiff, defense counsel held one of the photographs up for the jury to see.  Later in his closing, defense counsel again referred to the accident as a "fender bender." 

On appeal, the plaintiff asserted that the defense should not have been permitted to describe the magnitude of the damage to the plaintiff's car unless the defense could introduce expert testimony linking the extent of the physical property damage to the plaintiff's own personal injuries.  The plaintiff argued further that a defendant should not be permitted to introduce evidence concerning the physical damage to a plaintiff's vehicle unless the evidence was relevant on a basis other than supporting the improper inference. 

The Davis Court held that a party in a personal injury case may not argue that the seriousness of personal injuries equates with the extent of physical damage to the vehicles unless the party produces admissible competent expert testimony on the existence and degree of such correlation.  The Supreme Court of Delaware agreed with the trial judge's prohibition of the defendant's argument that minimal damage to the plaintiff's car correlated with minimal personal injuries to the plaintiff, because to allow otherwise would sanction "unguided speculation."  The Supreme Court was careful to point out that the same holding would prevent plaintiff's attorneys from arguing that the plaintiff's injuries were serious because physical damage to the plaintiff's car was severe without expert testimony on the linkage.  Applying the principle that counsel may not argue by implication what cannot be argued directly, the Supreme Court decided that defense counsel's reference to the accident as a "fender bender" was not proper because it had no basis in admissible expert testimony.   On this aspect of the case, the Supreme Court found that the trial court should have cured the effect of defense counsel's improper arguments by striking the offending comments from the record immediately and by instructing the jury then that there was no correlation between the extent of damage to the plaintiff's car and the extent of her personal injuries.

In what has caused some degree of consternation among defense counsel and plaintiff's attorneys alike, the Supreme Court held further that the admission of photographs to show minimal damage to the plaintiff's car suffered from the same infirmity as defense counsel's reference to the accident as a "fender bender."  The defense counsel argued that the photographs of the minor damage to the plaintiff's car were admissible because they supported a common sense presumption that the plaintiff's subjective complaints were not believable.  The Davis Court acknowledged that jurors may generally use their common sense to decide a case, but they are not permitted to speculate on issues that are outside the general knowledge of lay people.  The Supreme Court also recognized that photographs of a plaintiff's car could be admissible on some other valid basis besides supporting the minimal damage/minimal injury inference and held that "photographs of the plaintiff's car are not per se inadmissible."  However, because the risk that the jury would make improper inferences from the photographs without expert support substantially outweighed the probative value of the photographs because the trial court did not provide an immediate appropriate limiting instruction and because the only possible reason for introduction of the photographs was to allow the jury to draw the minimal damage/minimal injury inference, the Davis Court held that the trial court committed reversible error in not providing an appropriate limiting and curative jury instruction.  The Supreme Court went on to decide that, for these reasons, a new trial was warranted. 

In Kelly v. McHaddon , 2001 Del. Super. LEXIS 60, in a precursor ruling, Judge Slights of the Superior Court of Delaware tackled what he viewed was a case of first impression in Delaware where the plaintiff challenged a biomechanical engineering expert's expertise to render an opinion regarding the cause of the plaintiff's injuries. The plaintiff argued that only a medical doctor could offer an opinion on whether a particular impact caused a particular injury. The defendant's biomechanical engineering expert was not a medical doctor.  The defendants also proffered a medical expert who relied upon the biomechanical engineer's opinion in reaching his own medical opinion concerning causation.   Reviewing cases from other jurisdictions, the court agreed with the reasoning in one line of cases that a biomechanical engineer may testify about forces created by an impact and the general effects on the human body caused by those forces, but not about the specific cause of a plaintiff's particular medical problems.  The trial judge in Kelly refused to allow the biomechanical engineer to testify about the cause of the plaintiff's injuries because to do so would be to countenance the parties presenting only biomechanical engineering experts to testify about proximate cause, including medical issues.  Instead, the court allowed the biomechanical engineer to testify regarding forces implicated by particular impact and their effects upon the human body generally, while the medical expert was permitted to testify about his reliance upon the biomechanical engineering expert's conclusions regarding the force of the impact and the general nature of injuries resulting from such forces.  The medical expert was not permitted to reference the biomechanical engineering expert's opinions regarding the plaintiff's specific injuries, but rather, only other evidence in the case concerning the plaintiff's injuries. 

In the aftermath of Davis, Delaware attorneys grappled with the issue of what type of expert was necessary to support introduction of photographs to make the correlation between the extent of a vehicle's physical damage and the extent of an occupant's personal injuries. 

In Mulford v. Haas , 2001 Del. Super. LEXIS 172 (Apr. 25, 2001), the plaintiffs presented a chiropractor and a neurosurgeon to testify that the plaintiffs suffered soft tissue injuries.  The defendants intended to call a biomechanical engineer to testify that the collision could not have caused the injuries that the plaintiffs suffered.  The plaintiffs moved in limine to limit but not exclude the biomechanical engineer's testimony.  Judge Slights agreed with the plaintiffs that the defense expert should be prevented from testifying about the likelihood that the accident caused the plaintiffs' injuries and from referencing literature concerning injuries suffered by others in low-impact car accidents.  However, the defense biomechanical engineering expert was allowed to testify as to the forces generated by the impact and the effects upon the human body caused by such forces.  Thus, he was permitted to testify that the forces exerted upon the spinal structures in the instant accident would be less than those generated by day-to-day lifting or bending activities.  The defense biomechanical engineering expert relied upon photos of the involved vehicles, providing the evidentiary basis for defense counsel to argue that the low-impact incident did not cause injury to the plaintiffs.  Apparently, plaintiffs' counsel failed to object to such a defense argument  (which the trial judge would likely have sustained given his ruling in Kelly, supra), especially where no medical opinion was presented by the defense that the plaintiffs' injuries could not have been caused by the accident. 

In Sloan v. Davis , 2001 Del. Super. LEXIS 535 (Dec. 19, 2001) (Mem. Op.),  Judge Slights faced squarely the issue of what expert foundation is required to support the admission of photographs of vehicles and other evidence offered to prove the force of impact of a motor vehicle collision and the extent of injuries to the vehicle's occupants.  The defendant intended to offer evidence consisting of photographs of both vehicles involved in the accident, repair estimates for the vehicles' damages, and lay testimony regarding the speed of the car at impact and the force of impact generated by the collision.  The defendant proposed to admit this evidence through an orthopedic surgeon who relied upon the photos and related evidence when formulating his medical opinions for trial.  The plaintiff moved in limine to exclude all evidence relating to force of impact and vehicle damage because the defendant did not lay the foundation for admission of such evidence with competent expert testimony.  The orthopedic surgeon did not have the training or experience in the field of biomechanical engineering, except for a three-hour course on impact-to-injury analysis taught by a trauma surgeon at a university.  The court determined that neither the university course nor any other aspect of the orthopedic surgeon's training specifically addressed the correlation between vehicle damage and force of impact.  The surgeon relied upon the plaintiff's medical records, the police accident report, photos of the vehicles, statements made by the plaintiff during a defense medical examination, and the monetary amount of damage to the plaintiff's vehicle without deployment of the vehicle's airbag to support his general sense that the accident was low impact and the injury a low-trauma injury.  Judge Slights reviewed MIST ("Minor Impact Soft Tissue") cases before the Supreme Court's opinion in Davis v. Maute, and noted that defendants generally displayed enlarged photos of vehicles showing minor damage while urging jurors to rely on their common sense to conclude that a plaintiff could not have sustained serious or any injury because of the accident. The court would generally admit the photos into evidence without expert foundation on the basis that jurors were capable of drawing lay inferences regarding the extent of the impact from photos showing vehicle damage.  Both parties were routinely permitted to describe the accident, including the force of impact, and the courts would generally permit evidence concerning property damage estimates. Judge Slights then reviewed the new requirements in Davis v. Maute, stating that a proper expert foundation was needed before a party could argue that vehicle damage was probative of injuries sustained by an occupant.  The court noted that Davis did not address specifically the nature of the expert testimony needed to support the damage-to-injury inference, requiring only that the expert must be "competent."  Judge Slights concluded that the competency of an expert had to be determined by Delaware Rule of Evidence 702.   Because the orthopedic surgeon acknowledged that he lacked scientific expertise to opine what a person within a passenger compartment experienced based upon photographs, he could offer no empirical guidance to correlate vehicle damage and force-of-impact with injury.  Because of the admitted lack of scientific expertise, the orthopedic surgeon's opinions regarding the photos was deemed inadmissible.  The court went on to state that correlating vehicle damage, force-of-impact, and physical injury involved more than common sense - even common sense enhanced by medical training.  The  court held that only an individual with specialized training and experience in the science of motor vehicle crashes could correlate vehicle damage and force-of-impact, and that without such foundation, photographs and other evidence showing the extent of physical damage were not admissible to correlate vehicle damage and impact or vehicle damage and injury.  Although the court found the orthopedic surgeon without sufficient expertise to interpret photographs, the court noted that a physician could determine by other means the extent of a trauma to a person for purposes of medical diagnosis.  Specifically, the court interpreted Davis as not preventing a physician from relying upon and testifying about a plaintiff's description of her body's reaction to impact in a car accident to form and then express a medical opinion about the causal effect between impact and injury.  The trial judge went on to consider under what circumstances a party can testify concerning the speed of the vehicles at the time of collision or the force of the impact.  The defendant wanted to testify that he tapped the plaintiff's bumper while going no more than five miles per hour.  The plaintiff objected, arguing that a biomechanical engineer was required to support the low-speed minimum injury inference.  The court held that evidence concerning the speed of the vehicles at impact, when offered regarding the extent of injuries sustained by an occupant, must be accompanied by expert testimony.  Rejecting the plaintiff's claim that only a biomechanical engineer could provide such testimony, the court reiterated that whether a particular impact caused a particular injury ultimately required an opinion from an expert trained in the healing arts who may properly rely upon biomechanical engineering opinions, but not necessarily.  Unfortunately for the defendant in Sloan, although the court found the orthopedic surgeon qualified to testify, the court could not discern anywhere in discovery the existence of an opinion from the surgeon that the plaintiff's complaints were consistent with a particular amount of impact. 

In Hovis v. Hughes , 2001 Del. Super. LEXIS 534 (Dec. 28, 2001), the defendant in a motion for a new trial argued that photos excluded from evidence at trial should have been admissible because two of the plaintiff's treating physicians testified that the higher the energy generated by the force of impact, the more likely that an occupant would sustain significant injury.  The defendant wanted to argue the converse.  The photos were excluded because the defendant had failed to present competent expert testimony with respect to the relationship between the vehicle damage and injury, as depicted in the photos.  Although the defendant proffered competent expert testimony addressing the correlation between force-of-impact and injury, the defendant failed to present a witness who was expert in the assessment of vehicle property damage and its relationship to injury.  None of the defendant's experts were competent in the evaluation of vehicle damage and injury such that admissibility of the photos would have been highly prejudicial. 

In Rizzi v. Mason , 799 A.2d 1178 (Del. Super. Ct. 2002), Judge Jurden of the Superior Court of Delaware denied a defense motion for a new trial or remittitur following a jury award to the plaintiff where the defendant stipulated before trial that liability was conceded, and that only causation and damages remained at issue.  The plaintiff alleged that the defendant's negligent operation of her motor vehicle caused her to suffer cervical disk and soft tissue injuries.  Before the trial, the judge excluded the expert testimony of the defense biomechanical engineer who sought to testify, based upon scientific analysis, that the loads placed on the plaintiff's cervical and lumbar spines during the car accident were equal to or less than loads which the plaintiff's spine experienced during daily activities, and that those loads were significantly less than loads necessary to produce permanent injury to spinal structures. The biomechanical engineer's opinions were deemed inadmissible because the defense did not offer expert medical testimony that would make the engineer's opinion concerning the degree of force relevant for the jury's consideration.  The medical expert was not prepared to opine that everyday forces could not have caused an injury to the plaintiff, or one to the extent complained of by the plaintiff.  The trial judge required expert medical testimony establishing a correlation between the force or lack thereof generated upon impact and the plaintiff's injuries because, without medical testimony, and relying only upon biomechanical engineering opinions, the defense argument amounted to a request for jurors to make an improper inference under Davis v. Maute .

The trial court in Rizzi also excluded the biomechanical engineer's opinion because the engineer based his opinion on studies of normal spines, not spines already injured as the plaintiff's was.  (Prior to the accident, she injured her cervical spine and had disk surgery.)  The defense acknowledged that the plaintiff's spine was not "normal" at the time of the collision.  Accordingly, the trial court deemed the biomechanical engineering evidence regarding causation of the plaintiff's injuries inadmissible because the proffered testimony was based upon studies of normal spines and because the biomechanical engineer was not a medical doctor and was, therefore, unqualified to give opinions concerning the medical cause and degree of the plaintiff's injury.

The trial court rejected as an additional basis for a new trial the defense contention that it was error to exclude photographic evidence of the lack of damage to the parties' respective vehicles.  The court concluded under Davis v. Maute that without competent expert evidence to relate the extent of physical injury to the force of the impact and to any correlating personal injury, such evidence was necessarily inadmissible. 

Before Davis, plaintiffs and defendants routinely introduced photographs of vehicles into evidence to argue that the severity, or lack of severity of vehicle damage equated to the severity or lack of severity of an individual's injuries.  The Supreme Court of Delaware in Davis changed all that by requiring expert testimony to support the admission of photographs into evidence.  The Davis Court accepted the proposition that lay jurors are not necessarily equipped to determine that minimal damage equals minimal or non-existent injury, or vice-versa, despite arguments by counsel that jurors can use their common sense to do so. 

The Davis decision is essentially the result of arguments based upon the now well known Daubert decision requiring expert testimony on matters outside the ken of lay people and requiring further that expert testimony be founded upon scientific principles.  The practical effect of Davis is to drive up the cost of defending a MIST case because biomechanical engineering opinions are expensive.  Insurers now need to determine whether it pays to obtain a biomechanical engineering opinion plus a medical expert's opinions in defense of a case of low value when to do so increases defense costs with the attendant risk of a jury trial still looming.  Perhaps the money is better spent toward actual settlement of the case.  Certainly insurers doing business in the state of Delaware must now take such matters into consideration. 

Davis and its progeny do teach certain things:  1) ultimately, a medical expert is required to render an opinion at trial correlating force, or lack of force, and the plaintiff's specific injuries; 2) a biomechanical engineer may testify about forces created by an impact and the general effects on the human body caused by those forces, assuming it is based upon proper scientific expertise, principles and methodology, but such experts may not testify whether or in what degree the accident caused the plaintiff's particular medical problems; 3) a medical expert may testify whether and to what degree an accident caused the plaintiff's specific injuries without basing the opinion on a biomechanical engineer's opinions, assuming the medical expert has sufficient and proper training and has independent testimony and evidence elsewhere in the case, such as the plaintiff's own testimony concerning what happened to him inside the vehicle compartment during the accident; 4) utilization of a biomechanical engineer is likely necessary to secure the admission into evidence of photographs to permit opinion concerning the force of impact and the extent of physical vehicular damage to physical forces operative on human beings generally; and 5) utilization of biomechanical engineers is practically necessary to secure the admission into evidence of vehicle photographs because medical experts typically lack expertise training in the correlation of vehicle damage depicted in photos with occupant injury.

Litigants in Delaware should shortly receive further guidance from the Delaware Supreme Court on the foregoing issues.  The Rizzi case was scheduled to be argued before the Supreme Court of Delaware en banc in early August.   Litigants anticipate, or at least hope for the elucidation of more specific criteria for expert opinions and the admissibility of photographs in motor vehicle accident cases. 

*Kevin is a shareholder and the managing attorney of our Wilmington, Delaware office.  He can be reached at (302) 552-4302 or kconnors@mdwcg.com .