I would have thought the answer was Yes – and not just because I’m in the expert referral business. But I’ve just learned that, in point of fact, the answer is a resounding No. In Laccetti v. Ellis, (No. 22-P-466, Mass. App. 3/20/23), the court cited cases from seven states and the U.S. Virgin Islands to that effect and probably could have cited more. Only Delaware is (possibly) an exception.
The plaintiff was traveling on Storrow Drive (a busy old urban highway of obsolete design, for those unfamiliar with Boston) when another vehicle abruptly cut in front of her and stopped, forcing her to slam on her brakes. The defendant, traveling one or two car lengths behind the plaintiff, then slammed on his brakes, but nevertheless rear-ended her. “[A]s the parties waited for police and [EMS] to arrive on scene, the plaintiff and the defendant briefly confronted the driver who made the erratic lane change. Shortly thereafter, that driver fled the scene and was not identified.”
The parties (unsurprisingly) offered different versions of how the collision unfolded. Although the plaintiff didn’t know how fast the defendant was going before he rear-ended her, she testified that he struck her with enough force to push her into the vehicle in front of her. The defendant testified that he was driving at 25 miles per hour in “very heavy” traffic, that the plaintiff’s vehicle was traveling at the same speed, that he saw the plaintiff hit the vehicle in front of her before he slammed on his brakes, and that his speed at the moment of impact was no more than 10 miles per hour.
The nature and extent of the plaintiff’s injuries (if any) were hotly contested:
The plaintiff testified that she suffered a concussion, a neck injury, an increase in migraine headaches, and an exacerbated back injury as a result of the accident…. In the months and years after the accident, the plaintiff [was treated] by a neurologist for headaches and cognitive difficulties, a chiropractor, multiple physical therapists, and multiple types of doctors for chronic neck and back pain and worsening migraines…. The defendant's expert…opined that the plaintiff had preexisting migraines and lumbar spine disease that were neither caused by nor exacerbated by the accident,…that the plaintiff did not suffer a concussion or post-concussive syndrome,…and that, at most, she suffered a mild neck sprain.
The court made no mention of any expert testimony on behalf of the plaintiff. It is difficult to avoid the conclusion that there wasn’t any, and that the personal injury claims were based solely on the plaintiff’s own testimony and her medical records. Which is troubling, to say the least.
The plaintiff testified that her vehicle sustained “a moderate amount of damage” from the collision and filed a pretrial motion in limine to prevent the defense from introducing direct evidence to the contrary:
Photographs of the plaintiff's vehicle depicted a dented bumper and trunk and a slightly dented license plate. Photographs of the defendant's vehicle depicted a cracked grille with the vehicle's hood slightly popped up…. [T]he parties disagreed on whether these photographs of the damaged vehicles could be admitted at trial and the extent to which defense counsel could argue a correlation existed between property damage from the motor vehicle accident and personal injuries sustained by the plaintiff…. [T]he judge denied the plaintiff’s motion…[but] limited what defense counsel could argue at trial. The judge ruled that "[d]efense counsel may argue that serious injury is more likely the more serious the collision, but may not argue that serious injury is unlikely to result [from] less serious collisions.”
The jury returned a plaintiff’s verdict in the amount of $10,000 and she appealed, assigning as error the admission of the photographs. The court of appeals affirmed, and the rest of this post is an excerpt from its opinion. I’ve omitted citations (except for the Delaware case) but retained internal quotation marks, noting the state court that is the source of each quotation in brackets when necessary.
On appeal, the plaintiff presents several purported studies (not presented to the trial judge) suggesting that the relationship between vehicle damage and the likelihood of serious physical injury is complicated and is not a direct correlation. The plaintiff then argues that it “is not true that severe injuries are more likely in severe accidents and less likely in less severe accidents,” and that the topic “requires expert testimony to guide the jury on their consideration of the issue at trial.” Accordingly, the plaintiff argues that the photographs showing minor vehicular damage must be excluded, in the absence of expert testimony.
We disagree with this reasoning. We acknowledge that Delaware adopted this rule on the ground that “any inference by the jury that minimal damage to the plaintiff’s car translates into minimal personal injuries to the plaintiff would necessarily amount to unguided speculation.” Davis v. Maute, 770 A.2d 36, 40 (Del. 2001)…. A few years later, however, the Delaware Supreme Court retreated somewhat, stating that “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” and that “Davis should be limited to its facts….”
Whatever the state of Delaware law is, the rule set forth in Davis has not been followed in other States. Rather, most courts believe that “a jury is ordinarily quite capable of correlating outward appearance of damage with likelihood and extent of injury.” [Cal. App.] As the Maryland Court of Appeals (now the Supreme Court of Maryland) explained, “That there may be some automobile accidents in which very minor impacts lead to serious personal injuries, and vice versa, does not mean that evidence concerning the impact is irrelevant to the extent of the injuries. Relevancy under the rule involves probabilities; complete certainty is not ordinarily required.” Similarly, the New Jersey Supreme Court acknowledged the existence of “those instances where slight force causes grave injury,” but held that “there is a relationship between the force of impact and the resultant injury, and the extent of that relationship remains in the province of the factfinder.”
Indeed, “the majority of state courts… have held that the admission of photographs of vehicles involved in a collision without supporting expert testimony is within the trial judge's discretion.” [Cal. App.] [The Alaska Supreme Court] rejected “the rigid approach represented by Davis.” [The Indiana Court of Appeals held that] the judge acted within discretion in admitting photographs, given “the commonsense relationship between property damage and personal injury.” [The Nevada Supreme Court] reject[ed] the proposition “that supporting testimony from a certified biomechanical engineer or other expert must be offered before a defendant will be allowed to present a low-impact defense.” [And the Rhode Island Supreme Court] “declin[ed] to adopt a rule that would require expert testimony to accompany admission into evidence of photographs of vehicles that have been involved in a motor vehicle accident.” ….
It does not follow from the undeniable fact that an accident can result in minor vehicular damage and serious physical injury that the extent of the vehicular damage is irrelevant to the extent and likelihood of physical injury. To the contrary, in the ordinary run of cases, a jury is free to accept (or, for that matter, to reject) the commonsense notion that more vehicular damage from a collision makes serious physical injury more likely. Of course, the plaintiff was “free to offer expert proofs for the purpose of showing that there [was] no relationship between the extent of the damage and the cause and severity of the resulting injuries.” [N.J.] Such expert testimony, however, was not required, either to make that argument or to make the contrary argument. Accordingly, the judge acted within his discretion in admitting photographs of the damaged vehicles and in allowing defense counsel to argue that there could be a relationship between the vehicular damage and the personal injuries sustained by the plaintiff.
