Is an Expert Witness Required to Discuss the Force of a Collision?

Imagine a typical rear-end collision.  There is some damage, but not much.  Plaintiff (no matter which car) says it felt like a bomb going off, the defendant says it felt like a mosquito bite or that she did not even know there was contact.  Where there is minimal, or perhaps no, property damage, photographs of the vehicles can be very persuasive.  But before either party may argue whether the forces experienced in the collision were sufficient to cause injury, must they retain and disclose an accident reconstruction and biomechanical expert?  Some locally say yes, some no.  This issue is part of a pending appeal before the Supreme Court of Nevada, docket 58504.

Here is my guess:  neither side needs an expert.  Why? Consider repeated Illinois decisions on this topic. “The plaintiff argues that absent expert testimony on the correlation between vehicular damage and the plaintiff’s injuries, photographs of the parties’ damaged vehicles are inadmissible at the trial….”[1] Illinois caselaw rejects the argument that expert testimony is always required before arguments about the forces involved in a collision may be admitted into evidence.

When the trial court makes a decision to admit pictures [of impact damage], it has to determine whether the photographs make the resulting injury to the plaintiff more or less probable. The court must determine whether the nature of the damage to the vehicles and the injury to the plaintiff are such that a lay person can readily assess their relationship, if any, without expert interpretation.[2]

Ferro v. Griffiths refused “to adopt a rigid rule that proscribes the admission of pictures without an expert.”[3] This is not the deciding factor. “The critical question in admitting these photographs is whether the jury can properly relate the vehicular damage depicted in the pictures to the injury without the aid of an expert. This is an evidentiary question that the, trial judge must resolve.” Ferro concluded the trial court did not err in admitting the damage photographs.

The pictures were introduced to show why minimal damage to plaintiff’s vehicle was relevant to the nature and extent of plaintiff’s injuries. Ferro testified that the impact to the van was “very heavy,” causing his body to move back and forth and hit the oxygen tank. Dr. Cusick testified that Ferro did not have any additional bruising to his chest after the accident. The photographs depicted the physical damage to both vehicles as a result of the accident. Under these facts, the trial judge could properly have found that the pictures, by themselves, were relevant to prove the matter at issue was more or less probable.[4]

Fronabarger v. Burns applied the same standards and also concluded the trial court did not err in admitting photographs of post-impact damage.

Upon a review of the pictures and the record of the proceedings, we find that a jury could assess the relationship between the damage to the vehicles and the injury to the plaintiff without the aid of an expert. The photographs were introduced to show why minimal damage to the vehicles was relevant to the nature and extent of the plaintiff’s injuries. In this case, the plaintiff sought chiropractic treatment for an entire year for her lower back pain, while she was still able to participate in her bowling league three nights a week. The photographs depicted relatively minor damage to the plaintiff’s vehicle and no damage to the defendant’s vehicle. The trial court could properly have found that the photographs were relevant to prove that the plaintiff’s injury was more probable or less probable.[5]

Ford v. Grizzle also applied same standards to reach the same conclusion.

In this case, we cannot say that the trial court abused its discretion by admitting the photographs without expert testimony. Upon a review of the photographs and the record of the proceedings, we find that a jury could assess the relationship between the damage to the vehicles and the plaintiff’s injuries without the aid of an expert. The photographs depicted some damage to the defendant’s vehicle and no damage to the plaintiff’s vehicle. The photographs were introduced to show why minimal damage to the vehicles was relevant to the nature and extent of the plaintiff’s injuries, as stated by both Dr. Pentella and Dr. Jenkins at the trial. The trial court could have properly found that the photographs were relevant to prove that the plaintiff’s injury was more or less probable.[6]

Illinois is not alone in permitting evidence of this nature absent expert testimony. This same logic has been adopted in Alaska,[7] Delaware,[8] Indiana,[9] Maryland,[10] New Jersey,[11] New York,[12] Rhode Island,[13] Vermont,[14] Virgin Islands,[15] and Washington.[16] New Jersey as even created a cautionary jury instruction to address this type of evidence.

“[W]here photographs of vehicle damage are admitted, the trial judge should remind the jury that some bad accidents result in little injury, that some minor accidents result in serious injury, and that, therefore, the level of damage to a vehicle is but one factor to be considered, along with all of the other evidence, in determining the level of plaintiff’s injuries resulting from the accident.”[17]

This is not to say that experts are never necessary. They may in fact be very beneficial to explaining the how and why of certain cases in in the right fact pattern. Still, my guess is they are not absolutely necessary in every case. Being the firm believer in Murphy’s Law that I am, the Supreme Court will now show just how wrong I am.

[1] Ford v. Grizzle, 924 N.E.2d 531, 540 (Ill. App. 2010).
[2] Ferro v. Griffiths, 836 N.E.2d 925, 929 (Ill. App. 2005).
[3] Id. at 930.
[4] Id.
[5] 895 N.E.2d 1125, 1130 (Ill. App. 2008).
[6] 924 N.E.2d 531, 540-41 (Ill. App. 2010).
[7] Marron v. Stromstad, 123 P.3d 992, 1009 (Alaska 2005) (“We are unaware of any other jurisdiction which has adopted a rule that collision evidence is per se inadmissible without expert testimony, and we decline to do so.”).
[8] Eskin v. Carden, 842 A.2d 1222, 1232-33 (Del. 2004).
[9] Flores v. Gutierrez, 951 N.E.2d 632, 638-39 (Ind. App. 2011).
[10] Mason v. Lynch, 878 A.2d 588, 598-601 (Md. 2005) (ruling that the collision photographs could be admitted into evidence absence expert testimony).
[11] Brenman v. Demello, 921 A.2d 1110, 1120-21 (N.J. 2007) (concluding that expert testimony is not required when a party seeks to admit into evidence photographs of a vehicle involved in a car accident when the extent of the plaintiff’s injuries are at issue).
[12] O’Brien v. Barretta, 843 N.Y.S.2d 399, 401 (App. Div. 2007) (“The trial court providently exercised its discretion in admitting both the photographs and the testimony, as both were relevant to show the force of impact, and therefore helped in determining the nature or extent of injuries and thus related to the question of damages.”) (internal edits omitted).
[13] Accetta v. Provencal, 962 A.2d 56, 62 (R.I. 2009) (“[T]his Court once again declines 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.”).
[14] Fagnant v. Foss, 2013 VT 16.
[15] Corriette v. Morales, 50 V.I. 202, 208-09 (2008).
[16] Murray v. Mossman, 329 P.2d 1089, 1091 (Wash. 1958).
[17] Brenman, 921 A.2d at 1121.