BRIEF IN SUPPORT OF WEST PALM BEACH CAR ACCIDENT PLAINTIFF’S MOTION TO EXCLUDE PHOTOS FROM EVIDENCE ON THE GROUNDS OF LACK OF FOUNDATION, IRRELEVANCE, UNFAIR PREJUDICE AND LACK OF AUTHENTICATION
I. FACTS/OVERVIEW
Insert summary of facts. For example:
This auto negligence case arises out of a rear-end accident that occurred on [date] on eastbound _____ Road. The accident occurred as West Palm Beach Car Accident Plaintiff was rear-ended while stopped for a red light on eastbound _____ Road. The offending vehicle, a GMC 2500 super-duty pickup truck towing a trailer full of lawn cutting equipment, was driven by Defendant.
As a result of the accident, West Palm Beach Car Accident Plaintiff suffered severe and permanent injuries, the most significant of which are intervertebral disc herniations at C5-C6 and T6-T7, necessitating a cervical discectomy and fusion at C5-C6.
Defendants have indicated that they intend to introduce photos depicting the damage to West Palm Beach Car Accident Plaintiff’s vehicle as a result of the accident. Defendants make no attempt to hide the fact that they intend to introduce these photos for one (improper) reason only, as stated in Defendant’s brief in support of their response to West Palm Beach Car Accident Plaintiff’s Motion for Summary Disposition:
Perhaps the best evidence on causation comes from the photos of West Palm Beach Car Accident Plaintiff’s brand new Audi after the accident. These photos clearly and unequivocally show no damage to West Palm Beach Car Accident Plaintiff’s rear bumper. To say that West Palm Beach Car Accident Plaintiff’s alleged injuries were caused by this accident defies common sense. Based upon these photos alone, there is at least a question of fact about how such an unbelievably minor bumping could cause any injuries…. Defendant respectfully submit that West Palm Beach Car Accident Plaintiff is fully aware that once a jury views these photos, the case is over.
Clearly, Defendant’s purpose in proffering these photos, or more specifically, photocopies of digital photos taken by West Palm Beach Car Accident Plaintiff’s collision insurer following the accident, is to induce the jury to speculate, impermissibly, as to a correlation between the amount of damage to the vehicle and the severity of West Palm Beach Car Accident Plaintiff’s injuries. These photos are offered without foundation and for an improper purpose. The issues in this case are the nature and extent of the injuries suffered by the West Palm Beach Car Accident Plaintiff, not the nature and extent of the damage to the vehicle West Palm Beach Car Accident Plaintiff was operating at the time of the accident. Defendant offers this “evidence” without the support of any competent expert testimony, and apparently simply expects the court and jurors in this matter to make an unguided, empirical assumption that an accident which results in relatively minor damage to a vehicle necessarily cannot result in significant injuries to an occupant of that vehicle. Such a speculative inference is impermissible under [state] law and the photos should be excluded.
Pursuant to the [State] Rules of Evidence (Rules _____), this Court has authority to limit the scope and admissibility of any evidence which is proffered at or before trial, in its discretion. Specifically, West Palm Beach Car Accident Plaintiff objects to the introduction of the questioned photographic evidence on the grounds that the defendant cannot establish a proper foundation for their admissibility.
II. LAW AND ARGUMENT
A. The Photographic Evidence Is Inadmissible Because the Defendants Cannot Establish the Required Foundation for the Admission of the Photos.
1. There Is No Foundational Testimony to Support Admission of the Photographs
[State] Rule of Evidence _____ states:
If the court determines that recognized scientific, technical, or other specialized knowledge will assist the trier of fact, to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.
To lay proper foundation for the admission of the photographs, Defendant must establish, through competent expert testimony, that the extent of damage to a vehicle somehow specifically correlates the injuries suffered by an occupant of that vehicle. Defendant will not be able to do so in this case, as the only experts they have listed as potential witnesses are physicians. Exhibit 1. None of these physicians qualify as experts in biomechanical engineering or any other field related to vehicle damage, force of impact, and the effect these variables have upon the human body.
West Palm Beach Car Accident Plaintiff’s research has revealed no published [State] case that specifically addresses the admissibility of vehicle damage photos in an auto accident case for the purpose of correlating the extent of vehicle damage with the extent of an occupant’s injuries. However, West Palm Beach Car Accident Plaintiff’s counsel was able to locate a Delaware Supreme Court case that is directly on point. Although this Court is not bound to follow this case, the opinion is certainly well-reasoned and instructive in this case.
In Davis v. Maute, 770 A.2d 36 (Del. 2001), the Delaware Supreme Court held that photographs showing minimal damage to the vehicle were inadmissible for the purpose of supporting or creating an inference – without the support of competent expert testimony – that an accident could not have caused serious personal injury to the West Palm Beach Car Accident Plaintiff. The Davis case is attached as Exhibit 2.
As in this case, the Defendant in Davis sought to introduce photos taken of the West Palm Beach Car Accident Plaintiff’s vehicle for the implied purpose of correlating the extent of vehicle damage to Davis’ injuries. The Delaware Supreme Court stated:
As a general rule, a party in a personal injury case may not directly argue that the seriousness of personal injuries from a car accident correlates to the extent of damage to the cars, unless the party can produce competent expert testimony on the issue. Absent such expert testimony, any inference by the jury that minimal damage to the West Palm Beach Car Accident Plaintiff’s car translates into minimal personal injuries to the West Palm Beach Car Accident Plaintiff would necessarily amount to unguided speculation.
Davis, supra at 40.
Based on this reasoning, the Davis court found the photos to be inadmissible. Id. at 41.
The Davis court, citing another Delaware case, Mazda Motor Corp. v. Lindahl, 706 A.2d 526 (Del. 1998), further stated: “Although jurors may generally use their common sense in reaching a verdict, they may not make unguided empirical assumptions on issues that are outside the common knowledge of laymen.” Id. The Davis court then held that the issue of correlation between vehicle damage and injury is outside the common knowledge of laymen and required competent expert testimony.
2. The Defendant Cannot Present Competent Expert Witness Testimony to Provide Foundation for Admission of the Photos
[State] Rule of Evidence ___ governs expert witness testimony. Under [State] Rule of Evidence ___, the subject matter of expert testimony may be scientific, technical, or other specialized knowledge in a recognized area of expertise. If expert testimony is elicited on the basis of a particular scientific technique or theory, that technique or theory must be sufficiently established to have gained general acceptance in its field. People v. Davis, 343 Mich. 348 (1955). Frye v. United States, 293 Fed 1013 (DC Cir. 1923).
Expert testimony must have a sufficient factual basis, and speculation is impermissible. [State] Rule of Evidence ___, Skinner v. Square D Co., 445 Mich. 153 (1994). The testimony of the expert must assist the trier of fact in the determination of a fact at issue, and may not tend to confuse or mislead the jury; the facts and data in formulating an opinion must be reliable. Amorello v. Monsanto Corp., 186 Mich. App. 324 (1990).
In Sloan v. Clemmons, 2001 WL 1735087 (Del. Super.), another Delaware case, the Delaware Superior Court addressed what the Davis court meant by “competent” expert witness testimony relative to establishing foundation for the admissibility of damage photos to show a correlation with severity of occupant injuries. The Sloan slip opinion is attached as Exhibit 3.
Sloan, like this case, involved a rear-end accident resulting in relatively minor damage to the West Palm Beach Car Accident Plaintiff’s car. The Sloan defendant sought to admit photos of the vehicle, with foundation laid by his expert orthopedic surgeon, who purportedly relied upon photos in formulating his medical opinions. In holding that the photos were inadmissible, and that defendant’s orthopedic expert was not competent to provide a foundation for the admission of the photos, the Sloan court stated:
The Court’s decision here recognizes that the correlation between vehicle damage and force of impact involves more than common sense informed by medical training. To make the correlation between vehicle damage and force of impact requires specialized training and experience in the science of motor vehicle crashes. Absent this foundation, photographs depicting vehicle damage are not admissible to support a correlation between vehicle damage and impact or vehicle damage and injury. Other evidence regarding extent of damage to the vehicles likewise is inadmissible absent the requisite expert foundation. Sloan slip opinion p. 4.
Regarding the defendant’s orthopedic expert, the Sloan court further stated:
The expert they proffer to explain the photographs and vehicle damage to the jury is an orthopedic surgeon who…offers no “empirical” guidance to explain the correlation between vehicle damage and force of impact, or vehicle damage and injury. Dr. Berner’s admitted lack of expertise with respect to the interpretation of vehicle damage renders any opinions he may have regarding the photographs inadmissible. Sloan slip opinion, p. 3.
In this case, as in Davis and Sloan, Defendant can present no expert that is competent to render foundational testimony that would permit the admissibility of the photographs that Defendant seeks to introduce in this case. Defendant’s expert, Dr. _____, is an orthopedic surgeon who is the darling of the insurance companies and defense attorneys everywhere and is perhaps the most used “IME” doctor in [State]. Dr. _____ will not qualify, nor will any of the other experts (all physicians) listed on Defendant’s witness list, pursuant to [State] Rule of Evidence ___. Davis-Frye, Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), or any other applicable test, as an expert in motor vehicle crashes, force of impact, crashworthiness, crush resistance, metallurgical fatigue, vehicle masses/velocity, impact angles, or any of the other variables that factor into a correlation between vehicular damage and injury.
Accordingly, there is absolutely no foundation for the admissibility of these photos for Defendant’s intended purpose of attempting to impermissibly induce juror speculation as to a correlation between vehicular damage and West Palm Beach Car Accident Plaintiff’s injuries. Therefore, the photos proffered by Defendant should be excluded from evidence at trial in this matter.
B. The Proffered Photos Are NOT RELEVANT Pursuant to [State] Rule of Evidence 401 and [State] Rule of Evidence 403 and Should Be Excluded
[State] Rule of Evidence 401 states:
“Relevant evidence” means evidence having any tendency to make the existence of any fact that is of consequence to the action more or less probable than it would be without the evidence.
[State] Rule of Evidence 403 states:
Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.
Photographs may be excluded under [State] Rule of Evidence 403 if their content is of such an inflammatory nature that the jury may be influenced by some factor other than the probative value of the photos. Photographs, which are merely calculated to arouse the sympathies or prejudices of the jury, are properly excluded if they are not substantially necessary to or instructive to material facts or conditions. See People v. Eddington, 387 Mich. 551, 562 (1972); see also People v. Engelman, 434 Mich. App. 204 (1990).
The photos Defendant seeks to introduce in this case do not meet the criteria of [State] Rule of Evidence 401 as demonstrated under argument “A” above. These photos – absent competent, specialized expert testimony that would establish some foundation for the argument that vehicular damage correlates with severity of the injuries – do not tend to make the existence of any fact of consequence to this matter more or less probable than it would be without the evidence.
Even if the photos were somehow relevant under [State] Rule of Evidence 401, they would still be inadmissible and conditionally irrelevant under [State] Rule of Evidence 403. As Defendant makes clear in its Response to West Palm Beach Car Accident Plaintiff’s Motion for Summary Disposition, the ONLY purpose for which the Defendant offers the subject photos is to induce impermissible speculation and prejudice by the jury: “Defendant respectfully submits that West Palm Beach Car Accident Plaintiff is fully aware that once a jury views these photos, this case is over.” see Defendant’s Response to West Palm Beach Car Accident Plaintiff’s Motion for Summary Disposition, p. 9. Defendant is correct that the photos are likely to induce the jurors to speculate as to the correlation between the damage to West Palm Beach Car Accident Plaintiff’s car and the severity of her injuries, which is entirely inappropriate, prejudicial, and prohibited by the [State] Rules of Evidence. See Skinner v. Square D, supra.
The court in Davis, supra, also ruled on the conditional relevancy, or lack thereof, of the vehicle damage photos that the defendant in that case sought to introduce under Delaware Rules of Evidence 403, which identically mirrors [State] Rule of Evidence 403:
…The admissibility of the photographs must turn on whether the risk that the jury will draw an improper inference from the photographs “substantially outweighs” the probative value of the photographs under [State] Rule of Evidence 403…we can discern no relevancy to the photographs other than to suggest that Davis could not have sustained serious injuries from an apparently minor accident, and this inference is impermissible. Davis, supra at 41-42.
There is no testimony offered to relate the injuries suffered by West Palm Beach Car Accident Plaintiff to the vehicle damage; therefore, Defendant begs an impermissible inference which is based on speculation, conjecture, and is highly prejudicial to the West Palm Beach Car Accident Plaintiff’s claim, as there is no accepted scientific evidence or testimony offered to support the claim of the defense. Therefore, [State] Rule of Evidence 403 prohibits the introduction of the evidence.
C. Defendant Cannot Authenticate the Proffered Photos, Therefore, They Are Not Admissible at Trial.
The “photographs” Defendant seeks to introduce at trial in this matter are not really “photographs,” but are photocopies of digital photos purportedly taken by West Palm Beach Car Accident Plaintiff’s collision insurer, _____. See Exhibit J to Defendant’s Response to West Palm Beach Car Accident Plaintiff’s Motion for Summary Disposition. West Palm Beach Car Accident Plaintiff has attempted to obtain originals, or at least color duplicates, from _____, but have been informed that only the photocopies are available. The photocopies are also attached to this Brief as Exhibit 4.
The photocopies are not of sufficient quality for a person to determine what is actually depicted in them. See Exhibit 4. [State] Rule of Evidence 901 governs authentication of evidence, and states:
General Provision. The requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter is what its proponent claims.
A photograph is admissible if it is relevant, authentic, and represents a reasonable and faithful reproduction of what it is intended to depict as it existed at the time of the accident. Ferguson v. Delaware Int’l Speedway, 154 Mich. App. 283 (1987).
The photocopies proffered by the Defendant are clearly not “reasonable and faithful reproductions” of West Palm Beach Car Accident Plaintiff’s car following the accident – in fact, it is impossible to determine the extent of the damage to West Palm Beach Car Accident Plaintiff’s car from these photographs. Exhibit 4. Further, Defendant will not be able to produce the originals that these photocopies were made from, as they are reproductions of digital photos taken by a _____ insurance adjuster and simply are not available. Defendant cannot authenticate these photos and therefore, the photos/photocopies are not admissible at trial.
III. CONCLUSION
Defendant’s sole, admitted purpose in proffering the subject photocopies of photos, as stated in Defendant’s Response to West Palm Beach Car Accident Plaintiff’s Motion for Summary Disposition, pg. 9, is to induce the jury to speculate, impermissibly, that the damage to West Palm Beach Car Accident Plaintiff’s vehicle somehow correlates with the severity of West Palm Beach Car Accident Plaintiff’s injuries. West Palm Beach Car Accident Plaintiff, sustained cervical and thoracic disc herniations as a result of this accident, which have resulted in cervical fusion surgery that has left West Palm Beach Car Accident Plaintiff permanently restricted.
Defendant offers nothing in the way of foundation for these photos. They have not named an expert that is competent or qualified to testify as to any supposed correlation between vehicle damage and extent of injury. Dr. _____, the orthopedic “IME” expert, obviously is not qualified under any standard to render foundational testimony for these photos.
Finally, there are no “photographs” – what Defendant seeks to introduce are merely photocopies, and poor quality ones at that – of digital photos takes by an insurance adjuster. As the Court can see from the copies of the subject photos attached as Exhibit 4, it is impossible to determine what is depicted. There is no authentication for these items and they are unreliable as a matter of law.
WHEREFORE, West Palm Beach Car Accident Plaintiff respectfully requests that this Honorable Court grant their Motion in Limine and enter an Order excluding the proffered photos/photocopies from evidence at trial.