Opinion
Civil Action No. 99C-01-293 SCD
Submitted: April 5, 2001
Decided: May 11, 2001
Gary S. Nitsche, Esquire Weik, Nitsche Dougherty.
Keith E. Donovan, Esquire Swartz, Campbell Detweiler.
Dear Counsel:
The plaintiff in this personal injury, automobile accident case has filed a motion for a New Trial or Additur, as a result of a $1,000.00 jury verdict after two days of trial. The defendant admitted negligence.
The plaintiff's makes two arguments in support of her position.
First, she argues that the Court erred in not asking the "extended voir dire questions, concerns (sic) the issues of property damage and soft tissue injuries." Plaintiff quotes a reference from a law review article authored by Professor Valerie Hans related to juror biases as they effect soft tissue injury cases. In the article, Professor Hans concludes that there is a need for expansive voir dire to ferret out preconceptions about fraudulent soft tissue injury cases.
Plaintiffs' motion, p. 3.
VALERIE P. HANS AND NICOLE VADINO, WHIPPED BY WHIPLASH? THE CHALLENGES OF JURY COMMUNICATION IN LAWSUITS INVOLVING CONNECTIVE TISSUE INJURY, 67 Tennessee Law Review 579 (2000).
Id. at 586.
Defendant responds that the Court "did not simply refuse to ask the questions. Instead, the Court modified some of the questions, combined some of the questions, and refused to ask some of the questions." The end result of the process was that the Court attempted to cover the areas of concern raised by the plaintiffs."
The panel was asked the following voir dire questions, in addition to the routinely asked questions:
1. Have you or a close family member been involved in a lawsuit either as a plaintiff or as a defendant where a claim for personal injuries was made?
2. Do you have any thoughts about Tort Reform or lawsuit reform which would impair your ability to be a fair and impartial juror.
3. Do you have any religious, ethical or moral beliefs or concerns that would prevent you from awarding money to an individual if the evidence supports such an award?
It is hard to address the plaintiffs argument because it is unspecific. How did the questions asked fail to meet the plaintiffs concerns? I am satisfied that the questions asked were sufficient to determine whether or not a jury had any bias such as to justify excusing that individual for cause.
The second argument advanced by the plaintiff relates to the admission of the photographs of the vehicles involved in the collision. The photographs, which were addressed in an unsuccessful motion in limine, do not show any perceptible evidence of damage as a result of the collision.
The plaintiff argues that admitting the photographs was impermissibly prejudicial to the plaintiff because it was not accompanied by expert testimony. She cites "an abundance of scientific and medical literature that criticizes the often-made defense argument that minimal damage to a vehicle translates into minimal personal injuries to the occupant." Since the trial of this case the Supreme Court has addressed the issue of photographs admitted in evidence without a specific instruction limiting the jury's use of the photographs.
Plaintiffs' motion.
Davis v. Maute, Del. Supr., 307, 2000, Veasey, C.J. (Mar. 30, 2001).
As in Davis v. Maute, the plaintiffs attorney sought to limit the use of the photographs which were admitted in evidence. She also sought to limit argument which would suggest that the degree of damage to the vehicle is related to the extent of injury. The photographs were admitted without a determination that the risk of an improper inference outweighs the probative value.
Id. at 8.
In view of Davis v. Maute, the request for a new trial must be GRANTED.
IT IS SO ORDERED.