Motion in Limine Regarding Property Damage

The question is whether defense lawyers should be allowed to show pictures to the jury of the property damage to the vehicles in a motor vehicle crash to argue that the plaintiff could not have been seriously injured because the physical damage to the vehicles appears insignificant.

The law in Maryland, and in most states, is that this is a decision to be made by the trial judge.  This motion attempts to persuade the trial judge that the pictures should be shown to the jury.

IN THE CIRCUIT COURT FOR BALTIMORE COUNTY, MARYLAND

CRYSTAL SMITH – Plaintiff
v.
MARGARET A. WILSON – Defendant

CASE NO.: 03-C-02-21532

Motion in Limine to Exclude Testimony Regarding the Property Damage to the Vehicles

Plaintiff, by her attorneys, Ronald V. Miller, Jr., Laura G. Zois, and Miller and Zois, LLC, requests that this Court preclude evidence of the photographs of the vehicles involved in the subject accident because expert testimony is required to correlate the property damage and Plaintiff’s alleged injuries. In further support, Plaintiff states as follows:

I. Relevant Facts

This is a personal injury case involving an auto accident. During the course of discovery, the Defendant has produced copies of photographs of the Defendant’s vehicle and the Plaintiff’s vehicle (Exhibit A). Plaintiff does not, however, deny that there was minimal damage to the rear of her vehicle or even that this was a relatively low impact collision. Defendant claims that there was no property damage at all to her vehicle. It is anticipated that Defendant will attempt to introduce into evidence the extent of property damage sustained by both vehicles in this accident as well as a description by the Defendant as to the level of the impact between the vehicles.

II. Law [Note: After this motion was drafted, the Maryland Court of Appeals specifically addressed this issue in 2005 in Mason v. Lynch.]

Expert testimony is required “when the subject of the inference is so particularly related to some science or profession” that it is beyond the knowledge of the average layman. Hartford Accident and Indemnity Co. vs. Scarlett Harbor Associates Limited Partnership, 109 Md. App. 217, 257 (1996), aff’d on other grounds, 346 Md. 122 (1997) (citing Virgil vs. Kash ‘N’ Karry Service Corp., 61 Md. App. 23, 31 (1984), cert. denied, 302 Md. 681 (1985). If the evidence on an issue is such that it would require the jurors to engage in nothing more than “sheer speculation,” the issue may not be submitted to the jury. See DeSua vs. Yokim, 137 Md. App. 138 (2001) (quoting appellee’s brief).

If photos and or testimony of damage are to be permissible, the Defendant must provide expert testimony to the link between the two because it creates a “complicated medical question” and without such testimony, it creates an invitation to speculation. A complicated medical question occurs when one or more of the following are present: (1) significant passage of time; (2) the impact of the initial injury on one part of the body and trauma in some remote part; (3) the absence of any medical testimony and (4) a cause and effect relationship that is not part of common lay experience. S.B Thomas, Inc. V. Thompson, 114 Md. App. 357, 382 (1977).

In Davis v. Maute, 770 A.2d. 36 (Del. 2001), the Supreme Court of Delaware held that: (1) 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 the damage to the cars, unless the party can produce competent expert testimony of the issue; (2) counsel may not argue by implication what counsel could not argue indirectly,” i.e., may not characterize the accident as a fender-bender or otherwise downplay the seriousness of the accident; and (3) the court erred in admitting the photographs of the Plaintiff’s car without a specific instruction limiting the jury’s use of the photographs. Id. at 38-41.

III. Legal Argument

Under Maryland Rule 5-702, any attempt to argue that the victim’s injuries are more or less probably depending upon the amount of damage to the motor vehicles should be based on scientific evidence regarding the type and degree of force necessary to produce the specific injuries alleged as compared to the type and degree of force that is consistent with the property damage.

So the issue of whether there exists a correlation between a small amount of property damage and the likelihood of the plaintiff’s injury does not simply constitute a complicated scientific question. Rather, it constitutes a mixture of several complicated scientific questions: (1) How much force was necessary to produce the amount of damage to the plaintiff’s car; (2) How is that force transmitted through the car, and how much force was thereby exerted on the plaintiff; and (3) What is the minimum, threshold force that is necessary to cause Plaintiff’s herniated disc?

A. How much force was necessary?

This issue involves such matters as the strength of metal and rubber, the construction of a bumper, the materials that are used to construct a bumper (and, importantly, the interior of a bumper), how a bumper acts during a collision, and the construction and materials of the side walls of a car. It involves issues of engineering, physics, design, and chemistry. Moreover, the force that would produce a given amount of damage varies from vehicle to vehicle.

B. How is that force transmitted through the car?

The issue of the amount of force is one issue and there is another issue as to how much force was inflicted on the Plaintiff in the accident. This question, in turn, involves how force and energy are transmitted though rubber, metal, and fabric, dissipated through the transmission, and applied to a human body at the opposite end of the car from the impact. The issue clearly involves issues of physics and engineering. A lay jury cannot look at an amount of property damage and conclude how much force was exerted on the plaintiff. Moreover, there is also the scientific issue of whether the lack of substantial damage to the bumper indicates that the plaintiff was subjected to a greater amount of force than that to which the plaintiff would have been subjected if there were substantial damage.

The issue is whether the rear part of the car had been crushed or warped, force and energy would have been absorbed in the crushing or warping, or because the rear part of the car was not bent, all of the energy of the impact was transmitted through the car and onto the plaintiff’s body.

C. What is the minimum, threshold force that is necessary to produce an injury to the plaintiff?

Finally, but most importantly, there is the question of what is the minimum, threshold force that is necessary to produce an injury to the human body — or, more precisely, the specific injuries claimed to have been suffered by the plaintiff. The human body is one of the most complicated contraptions in the universe. Nobel Prizes have been won for explorations as what causes human injuries and maladies. The concept of the causation on an injury is quintessentially a matter of expert testimony. The mechanics of a body’s movement in a collision, and the effects on the spine, ligaments, muscles, tendons, and blood vessels is also a matter of expert testimony. The issue involves questions of medicine and biomechanical engineering. This point particularly applies to the defense’s anticipated argument while holding up a photo of the property damage, and ask the jury, “Does anyone here believe that any person could possibly have been injured in this accident?”

IV. Conclusion

The issue of whether there is a correlation between the amount of property damage and the likelihood of injury would be a good subject for a Ph.D. dissertation. The study would involve studies of a large number of actual cases, along with assistance from physicists and engineers who would analyze the construction of the vehicle and calculate the amount of force produced by the collision and transmitted on the plaintiff. But a lay juror does not have the tools to translate amount or degree of property damage to the Plaintiff’s injuries. A juror cannot look at a photograph, speculate as to how much force was caused by the collision, speculate as to how the force was transmitted through the car, speculate as to how a human body behaves during a collision of the type involved in the case, and speculate as to what causes an injury and what is the minimum force needed to cause that injury.

WHEREFORE, the Plaintiff respectfully requests that this Honorable Court:

1. Instruct all parties, counsel, and witnesses expected to testify that no person is to refer to, interrogate, or attempt to convey or suggest to the jury, directly or indirectly:
   1. The amount of force between the two vehicles;
   2. The speed of the striking vehicle;
   3. The amount of damage or lack thereof to either vehicle;
   4. Any correlation between the force of the impact and the Plaintiff’s injuries;
   5. To precluded from introducing any photographs of either vehicle at the trial of this matter.

Respectfully submitted,
Miller & Zois, LLC

Ronald V. Miller, Jr.
Laura G. Zois
1 South St, #2450
Baltimore, MD 21202
(410)779-4600
(410)760-8922 (Fax)
Attorneys for the Plaintiff

Certificate of Service

I hereby certify that a copy of the foregoing Motion in Limine to Exclude Testimony Regarding the Property Damage to the Vehicles was sent via U.S. Mail, first-class, postage prepaid.

IN THE CIRCUIT COURT FOR BALTIMORE COUNTY, MARYLAND

O R D E R

Upon consideration of the Plaintiff’s Motion in Limine to Exclude Testimony Regarding the Property Damage to the Vehicles; it is this _________ day of _____________, 2006, by the Circuit Court for Baltimore County, Maryland, hereby

ORDERED, that the Plaintiff’s Motion is GRANTED; and it is further

ORDERED, that Defendant is precluded from referring to, interrogating, or attempting to convey or suggest to the jury, directly or indirectly:

1. The amount of force between the two vehicles;
2. The speed of the striking vehicle;
3. The amount of damage or lack thereof to either vehicle;
4. Any correlation between the force of the impact and the Plaintiff’s injuries;
5. To precluded from introducing any photographs of either vehicle at the trial of this matter.

JUDGE

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