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For years, defense lawyers in minor-impact automobile collision cases have attacked the credibility of the plaintiff’s claims of soft-tissue injury with pictures of property damage. They display photographs of the plaintiff’s car and argue that the lack of visible damage means that the plaintiff could not have been seriously hurt. Swayed by this seemingly reasonable argument, jurors and judges often award sums smaller than the plaintiffs deserve. A 2001 opinion from the Delaware Supreme Court reminds plaintiffs lawyers that the argument isn’t reasonable and that victims still can get properly compensated in minor-impact/soft-tissue cases. In Davis v. Maute,the plaintiff, Rosetta Davis, suffered injuries to her neck, back, and ribs after the defendant, Franz Maute, ran a red light and collided with the rear passenger side of Davis’ car. Davis incurred $6,207 in medical expenses for orthopedic treatment and physical therapy. At trial, defense counsel offered photos showing apparently light damage to Davis’ car and repeatedly referred to the collision as a “fender bender.” In summation, counsel argued that Davis’ significant injuries could not have been caused by this mere “fender bender.” The jury awarded Davis $8,766, which included her medical expenses (and which the trial judge later raised to $12,000). On appeal, Delaware’s highest court found that, absent expert testimony, the trial court erred in allowing defense counsel to imply that minimal property damage to the plaintiff’s car necessarily translated to minimal personal injuries to the plaintiff. Instead, the court found that such an argument amounted to “unguided speculation” because the causal connection between damage to a car and injury to the car’s occupants is not within “the common knowledge of laymen.” If the defense wished to make the connection based on principles of automotive construction and physics, it should have offered testimony from an appropriate expert, such as a biomechanical engineer. But that did not happen in Maute.Instead, the appeals court concluded that the trial court erred in not providing cautionary instructions to the jury after defense counsel characterized the accident as a fender bender and after the photos were admitted. Critically, the Delaware court based its decision in Mauteon a rule of evidence similar to Maryland’s Rule 5-701. DRAWING INFERENCES Maryland Rule 5-701 states that a lay witness may offer only those opinions or inferences that are (1) rationally based on the perception of the witness and (2) helpful to a clear understanding of the witness’s testimony or the determination of a fact in issue. While this rule seems to make clear when an expert is required to draw inferences, the application of the rule isn’t consistent. Courts agree that an expert is required where the subject of the testimony is so specific to a body of scientific or professional learning that it is beyond the knowledge of the average person. Conversely, experts are not required on matters that fall within the common knowledge of jurors. But the line between what is and what is not a matter of common knowledge varies from judge to judge. In drawing this distinction between lay witness and expert, the Mautecourt relied in part on the scientific literature discussing the relationship between vehicular damage and bodily injury. That literature reveals, for example, that newer cars are built with “crash zones” designed to absorb the force of a collision, leaving little trace of an impact on the car, but not necessarily as little impact on the occupants. Ultimately, the Mautecourt recognized that what lawyers have often labeled as simple actually requires understanding of mechanical engineering, automobile design, physics, and even biology. (Of course, this argument flows both ways: By the same logic, plaintiffs counsel should not argue, absent expert testimony, that severe property damage implies severe personal injury.) BRING ON THE MOTIONS Two years after the Delaware decision, the Mautelogic should be defeating this defense strategy elsewhere. Yet so far there are no reported cases in the District or Virginia establishing a bar to the admissibility of accident photos in minor-impact/soft-tissue cases. In a May 6 opinion, the Maryland Court of Special Appeals did affirm the admission of such photos in Mason v. Lynch.The opinion draws no bright lines on this topic, but instead concludes that the admissibility of these photos and counsel’s related argument lies in the sound discretion of the trial court. Then what should a plaintiffs attorney do? Where defense counsel has not named a competent biomechanical or other causation expert — and where the case does not justify the cost of the plaintiff hiring an expert — plaintiffs counsel should make sure to file a pretrial motion in limineto exclude this type of unreliable evidence. Plaintiffs lawyers need to remember that most judges are skeptical of minor-impact/soft-tissue cases. Many seem to believe that low-impact collisions produce low-impact injuries and that juries can decide this causation issue on their own. As such, the goal of the plaintiffs lawyer is to adduce evidence for the court that the mechanics of car collisions and the force that collisions bring to bear on car occupants is a highly specialized subject. Counsel needs to argue that without expert testimony, the theories asserted by the defendants are speculative at best. The motion to exclude evidence should cite to Mauteand to Rule 5-701 (or a similar evidentiary rule). Practitioners should also include references to medical or biomechanical literature, of which there is a great deal, establishing the lack of correlation between low property damage and resulting physical injuries. They can locate this information by conducting a search under www.WebMD.com. Another helpful reference is “Biomechanics of Lumbar Spine Impact Injuries Due to Low Speed Rear-End Collisions,” an article by professor Tina Chu of the New Jersey Institute of Technology. The filing of a torrent of such motions by plaintiffs counsel could only serve to help curtail the bias against minor-impact/soft-tissue cases currently held by most judges and juries. Marc R. Emden is a Rockville, Md., trial attorney representing clients in Maryland and the District in the areas of personal injury, criminal law, and identity theft. He can be reached at [email protected].

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