Trying to Make a Picture Worth a Thousand Words in Auto Cases

It is widely accepted that demonstrative evidence, such as photographs can make a larger impression on a jury than testimony.  In essence, people respond to evidence that they can visualize.  In litigation, it is the attorney’s task to provide context to the jury about what they are seeing and why it is important.  In no type of case can photographs be more beneficial than in automobile accident cases.  Plaintiff’s attorneys often offer photographs showing extensive property damage to vehicles involved in an accident.  Alternatively, when the damage involved in an automobile accident is relatively minimal, defense attorneys routinely use vehicle photos to suggest to the jury that serious injuries could not have been caused by an accident involving such minimal property damage.   As much as it is common practice in auto tort cases to offer photographs of vehicle damage, it is equally common that the movant will face an objection by the opposing party, who will argue that the photographs are prejudicial to their client.  When an objection is made, it is then up to the trial judge to determine whether the photographs can be admitted.

While there is little doubt that photographs of vehicles are relevant in auto tort case, if for no other reason to assist the jury in visualizing the nature of the accident itself, there may be instances where the trial judge will determine that the photographs cause more prejudice to the opposing party than they offer in probative value.  Several years ago, the Maryland Court of Appeals reaffirmed that whether photographs of vehicle damage should be admitted is left to the sound discretion of the trial judge. Mason v. Lynch, 388 Md. 37 (2005).  In Mason, the Court upheld a trial court’s admission of vehicle photographs tending to show minimal damage, which the Plaintiff argued caused the jury to return a verdict of $0.   In doing so, the Court of Appeals reiterated that such photographs have relevance and specifically rejected the notion that expert testimony proffering a correlation between the photographs and an injury (or lack thereof) was necessary.  It concluded: “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 [MD Rule 5-401] involves probabilities; complete certainty is not ordinarily required.”

Because the Court of Appeals in Mason specifically reaffirmed that vehicle damage photos are relevant and it upheld their admission, it is often forgotten that the Court’s ultimate holding was that the admission of photographs was within the sound discretion of the trial court, and will not be overturned unless there was an abuse of discretion.  In fact, the Court made it a point to state that it will not only be very rare for an appellate court to reverse a trial court’s admission of photographs, but that it would also be rare to reverse a trial court’s refusal to admit photographs.  Attorneys, then, should not take for granted that their photographs will be admitted by a trial court.  In particular, in most State Court cases, the attorney will not know their trial judge until only days before the trial.  Accordingly, if the attorney intends to make “no damage” photos an essential element of his/her argument, then it may benefit the attorney to utilize expert testimony. 

Although medical experts can offer some opinions with regard to a correlation between photographs and an injury, a better approach may be to include the opinions of an engineer or accident reconstructionist if they are able to calculate speeds and impact forces resulting from the accident.  The force of an impact can be important to a medical expert trying to determine nature, extent, and causal relationship of a claimed injury.  The field of orthopedics, in particular, routinely utilizes “biomechanics”, the study of structure and function of mechanical systems in humans.   Orthopedic biomechanics assist medical providers in diagnosing and treating sports injuries and other orthopedic injuries to joints and bones.  By calculating the force involved in an impact, an expert can utilize his/her knowledge of biomechanical orthopedics to discern the amount of force exerted on the persons in the vehicle and even the body movements that could be caused by the force.  An individual may then be able to determine whether the forces involved were sufficient enough to have caused a claimed injury, or whether the body movements were of a kind that could have caused such an injury.

Here’s an illustration of how use of impact analysis and biomechanics can provide a jury with some much-needed context to go along with the vehicle photographs that they will see.  In Example 1, the defense has an orthopedic expert who has reviewed medical records and photographs showing minimal damage to the vehicles involved in the accident.  Perhaps the expert has even examined the plaintiff, although such an examination would only take place a year or more after the accident.  No additional evidence is available.  The expert opines that the vehicle photographs show only minimal damage, and it would not be expected that the plaintiff sustained any real injuries from such a minor accident.  Assuming the court admits the photographs and allows the testimony, cross-examination would likely require the doctor to concede that minimal impact accidents can cause significant injuries, just as high impact accidents can result in no injuries.  Further, the doctor cannot discount that the impact was so minor that the plaintiff’s body could not have jolted back and forth as he claimed, as it is outside of the doctor’s expertise.  Then, the doctor would be confronted with the fact that other medical providers who saw the plaintiff soon after the accident did diagnose injuries.  Is the expert questioning the diagnoses of these doctors, some of whom may have been E/R physicians.  Add on to this cross-examination further questioning regarding the expert’s compensation, and the jury is left to decide whether the photographs are as significant as the defense is arguing, and whether the defense doctor has been too quick to rely upon the photographs, perhaps motivated by his compensation.

Now, in Example 2, the scenario is changed in only one respect.  The defense medical expert has also had an opportunity to review the report or testimony of an engineer, who took vehicle and passenger weights, estimated vehicle speeds, and impact angles in order to mathematically determine the amount of force involved in the accident.  The engineer opines that based upon these calculations, the impact from the accident would have resulted in a force to the plaintiff that would have equated to less than a sneeze or making a fist, forces that are involved in our everyday lives.  The jury also hears this testimony.  Now, the defense doctor has been able to rely on the laws of physics to support his “common sense” impression – the force involved, as calculated by a competent expert, could not have exerted enough force upon the plaintiff to have caused his body to move in a manner that would have resulted in the claimed injury.  With this expert testimony, the trial judge is not going to exclude the photographs, and the jury will view the photographs in a new context.  While the jurors may look at “no damage” photographs and apply a common sense approach to whether the plaintiff was injured as claimed, they now have heard reasonable scientific testimony that explains the relevance of the photographs.  The plaintiff’s attorney will have a much more difficult time explaining the photographs and the expert opinions away.

In short, in Example 2, using the engineering expert and the orthopedic experts to explain the lack of injury from a biomechanics standpoint, the trial judge will assuredly allow the photographs, the jury will receive a scientifically based explanation as to why they are important, and the expert opinion may also demonstrate stark contradictions between the plaintiff’s testimony regarding impact and the laws of physics and biomechanics, hurting the plaintiff’s overall credibility.  The Defense’s opportunity for a favorable verdict increases greatly.