Plaintiff's Motions In Limine Regarding Lack Of Visible Property Damage And Minor Impact Photographs

V I R G I N I A :

IN THE CIRCUIT COURT OF THE COUNTY OF FAIRFAX
Plaintiff


v.


Defendants


 
PLAINTIFF ' S NOTICE AND MOTIONS IN LIMINE REGARDING LACK OF VISIBLE
PROPERTY DAMAGE AND MINOR IMPACT PHOTOGRAPHS

PLEASE TAKE NOTICE that on _________________ at 10:00 a.m., or as soon thereafter as counsel may be heard, the Plaintiff, by counsel, will move this Court for hearing on the attached Motion in Limine.

Respectfully Submitted,

By: _________________________________

Attorneys for Plaintiff

V I R G I N I A :

IN THE CIRCUIT COURT OF THE COUNTY OF FAIRFAX
Plaintiff,


 


Defendants


Case No.
PLAINTIFF ' S MOTIONS IN LIMINE REGARDING LACK OF VISIBLE PROPERTY
DAMAGE AND MINOR IMPACT PHOTOGRAPHS

COMES NOW, Plaintiff, by counsel, and hereby moves this Court to grant her Motion in Limine.

Evidence and Argument Regarding Lack of Significant Property Damage and Lack of Significant Injury to the other Occupants of the Cars in the Accident Must be Excluded.

At the trial of this matter, Defendant should be prevented from arguing or offering any defense based on the proposition that Plaintiff could not have been seriously injured in this accident due to either the minor damage to the parties' automobiles or the limited personal injury of the other occupants of the automobiles in the accident.

Due to the relatively minor property damage to the parties' automobiles, and the fact that none of the other passengers in the automobiles were seriously injured, counsel for the defense will likely attempt to argue that plaintiff could not have been seriously injured in the accident. Such argument is improper in the absence of expert testimony.

Expert opinion is allowed when the witness offered expert has some particular knowledge or experience, not common to the world, which assists the fact finder in resolving an issue. Bradley v. Poole, 187 Va. 432 (1948). It follows then, that a lay witness must testify to facts, and cannot give opinions or conclusions. Hot Springs Lumber & Mfg. Co. V. Revercomb, 110 Va. 240 (1909). Correlating property damage to personal injury necessarily requires some particular knowledge or experience. None of defendant's expert designations indicate that an expert will correlate property damage to personal injury. Therefore, defendant cannot offer an argument or make a defense correlating the two at trial. Nor can he admit the photographs of the vehicles for such purpose.1

The Supreme Court of Delaware recently held, that in the absence of expert testimony, a party may not directly argue that there exists a correlation between the degree of personal injuries and the damage to the automobiles. Davis v. Maute, 770 A.2d 36, 40 (2001). Davis involved a low impact automobile accident and claims of substantial personal injury. Davis at 40. Defendant did not offer expert testimony to correlate the property damage to personal injury. Davis at 40. At trial, defense counsel argued that the accident was a "fender bender" and offered photographs of the parties' vehicles for the consideration of the jury. Davis at 40-41. The court held that as defense counsel could not correlate property damage to personal injury without expert testimony, both his characterization of the accident as a "fender bender" and his offer of the photographs for admission were improper. Davis at 41-42. The court held that the characterization and the offer were an attempt to argue by implication that which counsel could not argue directly. Davis at 41-42.

The facts of the present matter are analogous to those in Davis. Plaintiff claims a substantial injury following an accident with relatively minor property damage. Defendant cannot argue that the accident was a minor fender bender and offer the photographs in an attempt to prove it. In the de bene esse deposition of Plaintiff's physician, a defense expert, Dr. Bruno acknowledged that a number of factors beyond property damage are important to gauge the severity of an accident, including but not limited to: (1) the design of the bumper on each car, (2) the ability of the bumper to absorb the impact, (3) the type of headrest and support provided the upper torso by the seat, (4) the position of the body at impact, and (5) the extent to which the injured person was prepared for the impact.2 The same analysis applies to any argument which attempts to correlate the injuries of others in the vehicles to plaintiff's injuries. Defendant's likely argument, that plaintiff could not have been seriously hurt if no one else was badly hurt, inherently requires an expert opinion.3 However, none of defendant's expert designations indicate that defendant's experts will offer such an opinion. Consequently, the argument would be improper.

Therefore, defendant should be prevented from making any argument or offering any defense correlating plaintiff's injuries with either the property damage or the injuries of the other occupants of the automobiles, or otherwise referring to the collision as "minor" or a "fender bender." But See: Maybaum v Rakita, 2002 Ohio 5338; 2002 Ohio App. LEXIS 5359 (2002) (unpublished) The damage to each vehicle was minimal, with the driver's expert testifying that the vehicle damage would have been consistent with a barrier impact of approximately two miles per hour. The appellate court found that the extent of damage to a vehicle was often an excellent indicator of the extent of injuries suffered. The admissibility of the photographs was within the sound discretion of the trial court. There was no concern that the jury could have been unduly prejudiced by the photographs, because there was ample expert testimony proffered by both parties.

WHEREFORE, Plaintiff respectfully requests that her Motions in Limine be granted, and that Defendant not be allowed, through the Court or otherwise, to give or make the arguments as outlined above.

Respectfully Submitted,

By: _________________________________

Law Offices of Jeremy Flachs

Jeremy Flachs, Esq.

Jeremy.Flachs@Flachslaw.com

Attorneys for Plaintiff

1 The photographs of defendant's car shows little visible damage. Yet an estimate of $1,125.17 (attached hereto, Exhibit 1) was generated to repair the car. If the photos are admitted, the repair estimate should be admitted.

2 Significantly, one of the defense doctors also acknowledged that he had no information on any of these aspects of the accident and had not used them in developing his opinions.

3 This is particularly relevant where plaintiff had a pre-existing degenerative condition which made her susceptible to injury.

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