Brief Supporting Motion To Exclude Photos

BRIEF IN SUPPORT OF PLAINTIFF’S MOTION TO EXCLUDE PHOTOS

FROM EVIDENCE ON THE GROUNDS OF LACK OF FOUNDATION, IRRELEVANCE,

UNFAIR PREJUDICE AND LACK OF AUTHENTICATION

I. FACTS/OVERVIEW

Insert summary of facts. For example:

This auto negligence case arises out of a rear-end accident that occurred on [date] on eastbound _____ Road. The accident occurred as Plaintiff was rear-ended while stopped for a red light on eastbound _____ Road. The offending vehicle, a GMC 2500 super-duty pickup truck towing a trailer full of lawn cutting equipment, was driven by Defendant.

As a result of the accident, Plaintiff suffered severe and permanent injuries, the most significant of which are intervertebral disc herniations at C5-C6 and T6-T7, necessitating a cervical discectomy and fusion at C5-C6.

Defendants have indicated that they intend to introduce photos depicting the damage to Plaintiff’s vehicle as a result of the accident. Defendants make no attempt to hide the fact that they intend to introduce these photos for one (improper) reason only, as stated in Defendant’s brief in support of their response to Plaintiff’s Motion for Summary Disposition:

Perhaps the best evidence on causation comes from the photos of Plaintiff’s brand new Audi after the accident. These photos clearly and unequivocally show no damage to Plaintiff’s rear bumper. To say that Plaintiff’s alleged injuries were caused by this accident defies common sense. Based upon these photos alone, there is at least a question of fact about how such an unbelievably minor bumping could cause any injuries…. Defendant respectfully submit that Plaintiff is fully aware that once a jury views these photos, the case is over.

Clearly, Defendant’s purpose in proffering these photos, or more specifically, photocopies of digital photos taken by Plaintiff’s collision insurer following the accident, is to induce the jury to speculate, impermissibly, as to a correlation between the amount of damage to the vehicle and the severity of Plaintiff’s injuries. These photos are offered without foundation and for an improper purpose. The issues in this case are the nature and extent of the injuries suffered by the Plaintiff, not the nature and extent of the damage to the vehicle Plaintiff was operating at the time of the accident. Defendant offers this “evidence” without the support of any competent expert testimony, and apparently simply expects the court and jurors in this matter to make an unguided, empirical assumption that an accident which results in relatively minor damage to a vehicle necessarily cannot result in significant injuries to an occupant of that vehicle. Such a speculative inference is impermissible under [state] law and the photos should be excluded.

Pursuant to the [State] Rules of Evidence (Rules _____), this Court has authority to limit the scope and admissibility of any evidence which is proffered at or before trial, in its discretion. Specifically, Plaintiff objects to the introduction of the questioned photographic evidence on the grounds that the defendant cannot establish a proper foundation for their admissibility.

II. LAW AND ARGUMENT

A. The Photographic Evidence Is Inadmissible Because the Defendants Cannot Establish the Required Foundation for the Admission of the Photos.

1. There Is No Foundational Testimony to Support Admission of the Photographs

[State] Rule of Evidence _____ states:

If the court determines that recognized scientific, technical, or other specialized knowledge will assist the trier of fact, to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.

To lay proper foundation for the admission of the photographs, Defendant must establish, through competent expert testimony, that the extent of damage to a vehicle somehow specifically correlates the injuries suffered by an occupant of that vehicle. Defendant...