OPINION

JOHN E. BABIARZ, JR., JUDGE.

This automobile accident case, in which liability was admitted, was tried to a jury which awarded plaintiff Francis X. Garneski $4,000.00. Plaintiffs have moved for a new trial claiming improper comment by counsel during opening statement and improper comment by the defendant during her testimony. Plaintiffs also claim that the jury's award was inadequate under the circumstances of the case. Defendant has moved to tax costs since the award was less than an offer of judgment made pursuant to Superior Court Civil Rule 68.

The accident on which this case is based occurred at an intersection controlled by a traffic light. Plaintiff Francis X. Garneski made a left turn on a green light and was struck by defendant Corine Teromina who had a red light. In opening statement plaintiffs' counsel so described the accident, as did Garneski during his testimony. Defense counsel, in opening, agreed with this description and added that defendant had braked before impact. Teromina said the same thing from the witness stand stating further that the vehicles had sustained only minor "scratches."

The average person at this stage might wonder what the problem is. Legal cognoscenti, however, know better. The problem is Davis v. Maute, 770 A.2d 36 (Del. 2001). In that case the Delaware Supreme Court held that, without expert testimony, counsel may not argue, and in fact may not even hint, that minor property damage to a vehicle indicates minor force at impact leading to a conclusion of minor injury. To be fair, the Court also ruled that severe property damage is not an indication of substantial force at impact supporting a conclusion of serious injury, again absent expert testimony to that effect. In addition, the Court held that where photographs of damaged vehicles are introduced for some other purpose, the trial Court must instruct the jury not to draw any conclusion about a plaintiff's injuries based on the jury's observation of vehicle damage. No expert testimony was presented by either party on this issue.

Plaintiffs first complain about defendant's testimony that she braked before impact. This they say amounts to an improper comment about the forces involved at impact, violating the ruling in Davis v. Maute, supra. Davis, however, does not prohibit all evidence which bears on force of impact. It prohibits only the use of vehicle damage to draw conclusions about that force. The jury is still free to draw conclusions about force of impact based on other evidence. Moreover, Davis does not prohibit a jury from drawing the common sense conclusion that minor impact tends to indicate minor injury and that major impact tends to indicate major injury.

In this case Garneski's description of the accident, which doesn't mention Teromina's braking, implies greater force than may have actually occurred at impact. Teromina's testimony about braking is, therefore, proper rebuttal.

Second, plaintiffs complain about Teromina's testimony that the vehicles sustained only scratches. This was factually incorrect, and at plaintiffs' request, agreed to by defendant, the Court informed the jury that the damage sustained by the vehicles was more substantial than scratches. The Court also instructed the jury that it should draw no conclusions about plaintiff's injuries based on any notion it might have about vehicle damage. At no time did defense counsel argue or even suggest that the jury should draw such a conclusion. Since the Court instructed the jury as required by the Davis case where photographs of damaged vehicles are in evidence, there could have been no unfair prejudice resulting form Teromina's reference to "scratches."

Finally, plaintiffs suggest that a new trial should be granted because Teromina intentionally defied a ruling that she should not testify about property damage. Plaintiffs say that Teromina, a high school teacher, has no excuse for not understanding and adhering to the Court's ruling. Perhaps, but it is difficult to bridle common sense and the comment may have only been Teromina's way of conveying that impact was minor. In any event, the Court is satisfied that its curative instruction was effective and all that was required. Plaintiffs' claims regarding braking and property damage are without merit.

Plaintiffs also complain that the $4,000.00 verdict was inadequate because Mr. Garneski had to have a spinal fusion some time after the accident. There was ample evidence, however, for the jury to conclude that this accident was not the proximate cause of his need for spinal surgery. A defense expert so testified. In addition, there was evidence that Garneski had suffered several previous back injuries, most of which led to various compensation claims including one in which he claimed permanent injury. It was also proven that plaintiff lied about these claims and other material matters relating to his medical history. The jury was well justified in rejecting his claims of serious permanent injury resulting from the accident.

Plaintiffs' motion for a new trial is Denied.

Since the jury's award was less than an offer of judgment tendered by defendant pursuant to Superior Court Civil Rule 68, defendant has moved to tax certain costs. Plaintiffs contend that the motion is untimely because it was filed more than ten days after final judgment. Super.Ct.Civ.R. 54(d). This is manifestly incorrect since the motion was filed while plaintiffs' motion for a new trial was pending. Judgment in this case does not become final until disposition of that motion. Super.Ct.Civ.R. 54(a).

Defendant claims the following costs:

1. John B. Townsend, III, M.D., $1,600.00. Dr. Townsend testified as a defense medical expert. His fee is reasonable and is allowed as a taxable cost.

2. Transcript costs for deposition of Dr. Raskin and Dr. Burdick, $403.51. These were plaintiffs' medical experts whose testimony was presented at trial by deposition. Defendant's costs for transcripts are not recoverable.

3. Pierre Le Roy, M.D., $900.00. Dr. Le Roy was called by defendant as a fact witness, testifying about previous treatment rendered to Garneski. The fee paid by defendant for his appearance at trial is not a taxable cost. Defendant is allowed costs in the amount of $1,600.00.

IT IS SO ORDERED.