Impact Evidence Admissibility Update Honorable Joseph R. Slights, III

Davis v. Maute, 770 A.2d 36 (Del. 2001)  Background: In opening statements at trial, Maute’s counsel described the automobile accident as a “fender-bender” 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. 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) 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)  Court Rules: Counsel’s arguments: Counsel’s 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)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) 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)“And counsel may not argue by implication what counsel may not argue directly.” (Id. at 40) Photographs: 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)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)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)  “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.”

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 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 (Del. Super. July 13, 2009)  Issue: The Defendant sought to exclude photographs depicting the damage to Drejka’s vehicle and testimony regarding the forces of impact she experienced.The Defendant sought to exclude photographs depicting the damage to Drejka’s vehicle and testimony regarding the forces of impact she experienced. The motion was granted in part and denied in part. 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 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. 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)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 (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 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. 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)  Issue: State Farm appealed the Superior Court’s decision admitting three photographs of the damaged automobiles into evidence. 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 FarmFirst, 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.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: 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)). 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) 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: The Supreme Court affirmed - The Supreme Court affirmed - 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. 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. 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. 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 Enrique’s knees hit the dashboard. Therefore, the limiting instruction complied with Davis. (Id. at *3)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 (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.” 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.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. 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. The court admonished defense counsel when he crossed examined Plaintiff Adams in an attempt to establish the collision’s minimal impact.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 (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: 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))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 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)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 Defendant’s single reference to a “minor accident” was not enough to mislead the jury (Id. at *1)The Defendant’s single reference to a “minor accident” was not enough to mislead the jury (Id. at *1) Plaintiff declined the curative instructionPlaintiff declined the curative instruction

Marafet v. Fiala, 2003 WL  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.

Thomas v. Lagola, 2003 WL (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.”

Cuonzo v Shore, 958 A.2d 840 (Del. 2008) Emphasizes proper disclosure of evidence in the pretrial stipulation 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. 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.” 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.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 (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.”

Sloan v Clemmons, 2001 WL (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. “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. 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. 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.

Hovis v. Hughes, 2001 WL (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.  “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.”