Judge William J. Haddad (Ret.)
“Admissibility of Damage Photos & Impact Evidence without an Expert in Illinois”
WITHOUT EXPERT TESTIMONY, THE ADMISSIBILITY OF DAMAGE PHOTOS (AND PERHAPS OTHER EVIDENCE SHOWING THE SEVERITY OF IMPACT) IN PERSONAL INJURY ACCIDENT CASES MAY NO LONGER BE “AUTOMATIC” IN ILLINOIS.
It is common-place in the circuit court to see motions in limine to bar admission of vehicular accident photos offered to show the extent of injuries. In personal injury claims, most states (except Delaware) tend to admit damage photos and other evidence indicating the severity of impact without expert testimony. In Illinois, the admission of such evidence is not automatic, but rather within the sound discretion of the trial court which decides whether expert testimony is required to show relevancy.
Although juries tend to accept or reject injury claims based upon the totality of the evidence adduced at trial, photographic damage photos have traditionally been a part of the equation. However, the admissibility of damages photos in a personal injury case without expert testimony is not longer “automatic” in Illinois. In DiCosola v. Bowman, 342 Ill. App. 3d 530; 794 N.E.2d 875; 276 Ill.Dec.625 (1st Dist 2003), the First District ruled that the trial court had the sound discretion to bar damage photos and repair bills offered to show an evidentiary correlation to the extent of injury caused in a minimal impact collision case, particularly where there is no expert testimony offered to show the correlation.
Since DiCosola, it is common practice for litigants to file a motion in limine barring the use of accident photos in minimal impact collisions where there is no expert to correlate the damage evidence with the injury. Indeed, such motions are now also filed in heavy impact collision cases as well.
The majority in DiCosola cited a Delaware case, Davis v. Maute, 770 A. 2d 36 (Del. 2001), which established a bright-line rule barring photographs in minimal impact injury cases without expert opinion. The Delaware bright-line standard quickly expanded to encompass other impact evidence and greater opinion testimony to support admission. Although the majority in DiCosola insisted it was not adopting a bright-line for Illinois, Justice Frossard wrote a dissent saying that it had. The latest word on this subject came last month in a “close” case decided by the Third District which distinguished DiCosola in Ferro v. Griffiths, 2005 Ill. App. LEXIS 1012, October5, 2005. As with DiCosola, strong dissent was filed in Ferro.
In DiCosola v. Bowman, 342 Ill. App. 3d 530; 794 N.E.2d 875; 276 Ill.Dec.625 (1st Dist 2003), the jury awarded $47,063 to plaintiff who injured her elbow in a minimal impact collision at a grocery store parking lot. The defendant had admitted negligence, but claimed the trial court improperly barred admission certain impact evidence, consisting of auto damage photos and repair bills, that was relevant to show the extent of the plaintiff’s injury claim. The trial judge decided that the impact evidence was “irrelevant to any issues before the court” unless the defendant could produce an expert to correlate their relationship to the extent of injury to the plaintiff’s elbow. DiCosola, 342 Ill. App 3d at 534. The court upheld the lower court ruling, stating that the trial judge had the “sound discretion” to decide issues of relevancy absent an abuse of discretion based upon an erroneous conclusion of law. DiCosola, 342 Ill. App 3d at 535.
The DiCosola court distinguished or explained two other Illinois cases, Cancio v. White, 297 Ill. App 3d. 422, 697 N.E.2d 749, 232 Ill. Dec. 7 (1998) and Maple v. Gustafson, 151 Ill. 2d 445, 603 N.E.2d 508, 177 Ill. Dec. 438 (1992). In Cancio “photos of plaintiffs’ vehicle were relevant to the nature and extent of plaintiffs’ damages… because they showed little or no damage, which is something the jury could consider in determining what, if any, injuries [plaintiff] sustained as a result of the accident.” Cancio, 297 Ill. App 3d at 433. However, the DiCosola court held that neither Cancio nor Maple established any bright line rule that photos are automatically relevant, nor did they consider the issue of expert testimony to support their admission, but rather considered the photos as relevant as part of an accumulation of other impact evidence related to the medical and physical condition of the claimants.
“There simply is no such bright-line rule that photographs depicting minimal damage to a post collision vehicle are automatically admissible to prove the extent of a plaintiffs bodily injury or lack thereof.
Indeed, in DiCosola the court specifically said that there is no bright-line rule requiring expert testimony to admit photographic evidence in minimal impact collision cases
We are not creating a bright line rule, we are rejecting a bright line rule…
We do not hold that expert testimony must always be required for such photographic evidence to be admissible. We hold that the trial court in this case did not abuse its discretion in requiring expert testimony to show a correlation between the extent of the vehicular damage and the extent of plaintiff’s injuries.
DiCosola, 342 Ill. App. 3d at 538
In her dissent in DiCosola, Justice Frossard expressed concern that the majority in DiCosola did establish a bright line rule:
I am concerned that this opinion will be interpreted as creating the following bright line rule: if a defendant wishes to minimize the injury to a plaintiffs person by offering evidence of minor damage to plaintiffs vehicle, then the defendant must introduce expert testimony demonstrating why the damage to plaintiffs vehicle is relevant to the nature and extent of plaintiffs injury.
DiCosola, 342 Ill. App. 3d at 542
Under this rule, if defendant wants to elicit direct testimony from the parties about the nature of the impact, defendant will be required to present expert testimony regarding the correlation between plaintiff’s injuries and the nature of the impact, or risk exclusion of that evidence. This rule flies in the face of common sense and everyday experience.
DiCosola, 342 Ill. App. 3d at 546
The Third District in Ferro v. Griffiths, 2005 Ill. App. LEXIS 1012, October5, 2005, issued an opinion distinguishing DiCosola. In Ferro the plaintiff suffered pericardial effusion after a rear end collision that allegedly projected his oxygen tank against his chest. The trial court admitted accident photos depicting minimal property damage without expert testimony, noting that the plaintiff claimed a “very heavy” impact. Although the outcome in Ferro differed from DiCosola, the court embraced the standard of review enunciated in DiCosola:[W]e refuse to adopt a rigid rule that proscribes the admissionof pictures without an expert. The critical question in admitting these photographs is whether the jury can properly relate the vehicular damagedepicted in the pictures to the injury without the aid of an expert. This is an evidentiary question that the, trial judge must resolve.
While this case is close, we cannot say that the trial court abused its discretion by admitting the photographswithout expert testimony. The pictures were introduced to show why minimal damage to plaintiff’s vehicle was relevant to the nature and extent of plaintiff’s injuries… 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.
Delaware’s Bright-Line Rule
Although the majority in DiCosola refused to adopt a bright-line rule barring damage photos without expert testimony in minimal impact collisions, the court partly relied upon a Delaware Supreme Court case, Davis v. Maute, 770 A. 2d 36 (Del. 2001), that did establish a bright-line rule excluding photographic evidence without expert testimony:[A] party in a vehicular personal injury case generally may not argue that there is a correlation between the extent of vehicular damage and the extent of a person’s injuries caused by the accident in the absence of expert testimony on that issue and may not rely on photographs of the vehicle(s) involved to indirectly accomplish the same purpose.
Davis, 770 A. 2d at 40
Delaware courts, since Davis, have greatly expanded the application of its bright-line rule. In Sloan v. Clemmons, No. 00C-03-176-JRS Superior Court of Del, New Castle 2001 Del. Super. LEXIS 535, the trial court, absent expert testimony, barred damage photographs, cost of repair bills, witness testimony of the speed on/before impact, and testimony of the “force of impact” (e.g. “light, medium or heavy”). Expanding the rule even further, Delaware courts rejected expert testimony from physicians and biochemical experts offered to show a correlation between property damage evidence and the plaintiff’s injuries. [See Walker v. Campanelli, 2004 Del. LEXIS 462 (Sup. Ct. 2004), and Mason v. Rizzi, 2004 Del. LEXIS 109 (Sup. Ct.). In Eskin v. Carden, 842 A.2d 1222, 1226 (Del SC 2004), the Delaware Supreme Court said:
We hold that trial judges may admit qualified biomechanical expert testimony regarding the physical forces involved in automobile accidents and the effect on the human body those forces may produce where the relevance, reliability and trustworthiness of that testimony is established by the proffer and is not outweighed by the danger of confusion of the issues or misleading the jury. We caution that even competent, qualified biomechanical testimony may not be admissible when that testimony purports to bridge the analytical gap between an engineer’s application of constants to, and a physician’s artful evaluation of, a specific individual.
Eskin v. Carden, 842 A.2d 1222, 1226 (Del SC 2004); emphasis added.
Ohio has adopted a rule similar to Delaware which was clearly evidenced in two cases:Hastie v. Dohar, 2002 Ohio 812 (Ohio 8th Dist, 2002) and Maybaum v. Rakita, 2002 Ohio 5338 (Ohio 8th Dist, 2002). In a two to one decision in Hastie, an Ohio appeals court upheld a trial court’s exclusion of accident photos without expert testimony showing the nexus between the damage and the injury.[W]hen the defense seeks to minimize the injuryto the plaintiff’s person by showing minor injury to her car, an expert may be required. We believe the facts should dictate when an expert is needed, and the answer to the expert question should be resolved by the trial court as it is a discretionary matter.
Unlike Delaware and Ohio, Maryland, New Jersey, Washington and Pennsylvania tend to support admission of impact photos in minimal collision cases without expert testimony. Maryland explicitly rejected Delaware’s bright-line exclusion rule in Mason v. Lynch, 151 Md. App. 17, 822 A. 2d 1281 (2003 Affd 2005 Md Lexis 430 (2005), where the court held that, absent a showing of an abuse of discretion, the trial court has the “sound discretion” to decide the relevancy of the photographs and argument on the extent of property damage to the accident vehicle because “their probative value was not substantially outweighed by the danger of unfair prejudice.”
Maryland found support in other states:
Other courts have been more willing to accept the trial court’s discretionary determination that the photographs were relevant to the question of damages. See Gambrell v. Zengel, 110 N.J. Super. 377, 265 A.2d 823, 824-25 (N.J. Super. 1970) (“The possibility of some inflammatory effect on the jury as compared with the relevancy of the evidence and its generally accepted admissibility is best left to the discretion of the trial court. We find no abuse of discretion.”); Murray v. Mossman, 52 Wn.2d 885, 329 P.2d 1089, 1091 (Wash. 1958) (“A trial court’s ruling that testimony received is relevant to the question of damages is not to be overridden unless an abuse of discretion is shown.”).”
Pennsylvania has long affirmed verdicts based upon what it terms a “common sense” evaluation of damage photographs in minimal damage cases without expert testimony. Cree v. Horn, 372 Pa.Super. 296, 539 A.2d 446 (1998), appeal denied by 519 Pa. 660, 546 A.2d 621 (1988).[E]xisting Pennsylvania law… has never required biomechanical expert testimony as a prerequisite to the admission of photos of vehicle damage at trial…
Our courts have long affirmed verdicts which were based upon a jury’s common sense evaluation of conflicting evidence; minimal physical damage to a vehicle is merely one means by which the evidence is tested.
McDonough v. Kesselman, No 0984 Common Pleas Court of Phil Cnty., PA, 2005 Phila. Ct. Com. Pl. LEXIS 297 June 24, 2005. See also, Brodhead v. Brentwood Ornamental Iron Co., Inc., 435 Pa. 7, 255 A.2d 120 (1969); Nitch v. Moon, 405 Pa. 474, 176 A.2d 627 (1961); Boyle v. Ward, 39 F. Supp. 545 (M.D.Pa.1941); Krouse v. Graham, 19 Cal.3d 59, 137 Cal.Rptr. 863, 562 P.2d 1022 (1977).
Some argue that Illinois has a bright line rule, like Delaware, which “automatically” bars collision photos without expert testimony. However, DiCosola expressly rejected a bright-line rule and Ferro refused to invoke it. Others argue that Illinois “tends” to favor the use of experts to introduce impact photos and evidence in these cases. Ferro seems to contradict that argument, and we see that the courts in Cancio and Maple found that collision photos were relevant to show the extent of injury without ever considering the need for an expert to explain them.
Where courts have adopted a bright line rule, like Delaware, experts were required to correlate all impact evidence, including (1) photos and repair bills, (2) testimony of speed at impact, (3) testimony of force of impact, (4) testimony of movement of objects and persons, (5) and the description of vehicle damage. And Delaware sometimes found experts unacceptable because they failed to particularly correlate a relationship between their respective sciences and the actual facts of the case. Finally, some would argue that the introduction of evidence to show the extent of impact in collision cases requires an expert, regardless of whether the damage was minimal or severe.
In conclusion, litigants should avoid filing pro forma motions in limine bearing upon the requirement of an expert to introduce impact evidence, such a photographs, in accident case. Courts will exercise discretion based upon the facts and law the particular case, rather than any so-called bright line rule.