For obvious reasons, when the damage to the cars involved in a collision is severe, the Plaintiff wants to show pictures of the damage to the jury and the defense wants to try and exclude them as irrelevant; and the opposite is true when the damage to the vehicles is minor. Personally, whenever I take a car accident case to trial in Missouri, I want the jury to see the pictures regardless if the damage is minor or major because they are going to want to see these pictures to fully understand all the circumstances about the collision. However, oftentimes pictures are excluded by the judge based on motion filed by the victim's lawyer of the insurance defense lawyer.
So what is the law in Missouri about when car damage pics can be used and when they should not be used at trial in a car accident lawsuit?
Oftentimes, if the damage is minor the defense will try to introduce evidence of property damage in an attempt to argue or infer to a jury that there is a scientific and/or medical relationship between degree of vehicle damage and degree of occupant's personal injury. It can be argued that such a conclusion would be unfounded if not supported by expert testimony establishing it, so if no expert has been identified, then the pictures are irrelevant. In this situation the Plaintiff should argue that the pictures invite the jury to unfairly speculate to the prejudice of a litigant. As the Western District has explained, a trial judge is required to consider both the degree of probative value and the degree of potential prejudicial effect. Even relevant evidence should be excluded when the potential prejudicial effect of the evidence exceeds the probative value. Stevinson v. Deffenbaugh Industries, Inc., 870 S.W.2d 851, 860 (Mo.App. 1993). Evidence is considered prejudicial if it "tends to lead the jury to decide the case on some basis other than the established propositions in the case."
Additionally, Missouri Courts Have Held that the speed of impact cannot be determined by property damage photographs. The defendant may be trying to ask the jury to conclude that the speed or force of impact itself can be determined by the testimony of witnesses or by the photographs of damage. But such a conclusion lacks reliable foundation.
In Missey v. Kwan, the Eastern District held that a police officer could not be permitted to testify as to speed of vehicles at impact, when his opinion was based on what witnesses said about the speed and on the condition of the vehicle following the impact. Missey v. Kwan, 595 S.W.2d 460, 463 (Mo.App.E.D. 1980) The Missey court noted, that while skid marks could provide a sufficient basis for estimating speed, "Such is not the case with estimates of speed based on conditions of the vehicles after impact." M
In Everett v. Bishop, the Eastern District declined to allow even an accident reconstructionist to testify as to speed of impact when his opinions was based on photographs of property damage. Everett v. Bishop, 680 S.W.2d 779, 781 (Mo.App. E.D. 1984) If evidence of property damage does not provide a sufficient basis for an expert to reach conclusions about speed or force, surely it does not provide sufficient basis for a layperson to do so.
Permitting the Jury to Speculate that Allegedly "Minor" Impact Equals Minor Injury Would Prejudice the Plaintiff
If the defendant also apparently intends to invite a jury of laypersons to take a next step and reach a medical conclusion: that the severity of injury is determined by the force of impact. Such an argument is prejudicial by definition because it would invite the jury to decide the case on the basis of a proposition which is not established - that is, the proposition that minor impact equals minor injury. This conclusion would require supporting expert testimony. Yo need to ask, has the defendant disclosed medical, biomechanical, or other experts to support it. The Defendant should not be allowed to ask the jury to assume it, based on "common sense." Missouri trial courts have properly rejected this effort. While there is apparently no Missouri appellate decision on the question, one state supreme court and two state appellate courts have refused to permit such boot-strapping on the purported basis of "common sense."
The Delaware Supreme Court in Davis v. Maute (copy attached) held that without expert testimony is was reversible error to admit property damage evidence and allow defense counsel to argue that a serious injury could not have resulted from a "minor" accident. Davis v. Maute, 770 A.2d 36 (Del. 2001). Over objection, defense counsel there was permitted to introduce evidence of the cars involved in the accident, and then bootstrap into the argument that because the property damage appeared to be minor, the injury must not have been significant. The Delaware Supreme Court reversed, concluding that the only relevance of the photographs was to suggest that the plaintiff could not have sustained serious injury from an allegedly minor accident, and stating that absent expert testimony, "any inference by the jury that minimal damage to Plaintiff's car translates into minimal personal injuries to the Plaintiff would necessarily amount to unguided speculation." Davis v. Maute, supra, 770 A.2d at 40 (emphasis added).
A New Jersey appellate court agreed in Brenman v. Demello, 383 N.J. Super. 521, 890 A.2d 741 (N.J. Super. 2006). The Brenman court concluded that "If the pertinent field of expertise has yet to establish a scientific basis for the connection, we question how a jury may be expected to draw an inference of causation in the absence of any proof, expert or otherwise."
Likewise, an Illinois appellate court has held that a decision by the trial court granting the plaintiff's motion in limine to exclude property damage photographs or testimony as to the damage caused to the vehicles was correct, holding that to do so is necessary "to avoid what amounts to the jury forming medical opinions." DiCosola v. Bowman, 342 Ill.App.3d 530, 536-37, 794 N.E.2d 875-76, 880 (2003). In so holding, the appellate court cited the Illinois Supreme Court case of Voykin v. DeDoer, which noted:
(w)ithout question, the human body is complex...In most cases, the connection between the parts of the body and past and current injuries is a subject that is beyond the ken of the average layperson. Because of this complexity, we do not believe that, in normal circumstances, a lay juror can effectively or accurately assess the relationship between prior injury and current injury without expert assistance.
The same principles apply to an attempt to correlate property damage to physical injury. Without expert testimony, there is not a sufficient basis to make such a conclusion, and attempts to have the jury supply such a scientific basis with their "common sense" should fail.
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