Section 8.14 Injury or Damage Issues

• Library: Sources of Proof (2014 Ed.)

5. (§8.14) Injury or Damage Issues

Demonstration of an injured area of the body during trial may be most striking. This may be accomplished through a showing of the actual injured area if presented in a dignified manner. Fravel v. Burlington N. R.R., 671 S.W.2d 339 (Mo. App. E.D. 1984). This approach involves a discretionary judgment by the trial court balancing the potential for prejudice against the aid of the evidence in resolving disputed issues. Deveney v. Smith, 812 S.W.2d 810 (Mo. App. W.D. 1991), recognized that, while a jury should ordinarily be permitted to see the injury allegedly caused by the defendant, this should be allowed only if it can be accomplished in a dignified manner. When a dental patient claimed nerve injury from the extraction of wisdom teeth, it was within the discretion of the trial court to deny him the opportunity to show the jury that a needle could be stuck through his tongue without producing pain. The mother of an injured child, however, was permitted to demonstrate the physical therapy she performs on her daughter—manipulation of the daughter’s limbs—in Lester v. Sayles, 850 S.W.2d 858 (Mo. banc 1993), on the basis that a jury should be entitled, subject to trial court discretion, to see the injuries the defendant allegedly caused. Demonstrations of injuries are similarly permissible in criminal actions. State v. Ford, 867 S.W.2d 681 (Mo. App. E.D. 1993).

Enlarged photographs of the injury were approved in Henson ex rel. Lincoln v. Board of Education of Washington School District, 948 S.W.2d 202, 207 (Mo. App. E.D. 1997). Photographs and X-rays of the injury at various stages, showing healing progress or lack of it, would be helpful. Golian v. Stanley, 334 S.W.2d 88 (Mo. 1960); Helming v. Dulle, 441 S.W.2d 350 (Mo. 1969). Comparative X-rays contrasting normal and injured areas, pins, nails, other orthopedic devices, braces, corsets, canes, and crutches can all be illustrative of issues bearing on injury or damages questions. See Hampton v. Rautenstrauch, 338 S.W.2d 105, 110 (Mo. 1960). Handling of X-rays by jurors and the marking of them for emphasis can generally be better accomplished with the use of positive prints, although they sometimes lose some quality in the process.

The trial court’s failure to admit an X-ray of the plaintiff before her injury was reversible error in Darnaby v. Sundstrom, 875 S.W.2d 195, 199 (Mo. App. S.D. 1994). Approval has been given to a physician’s demonstrative utilization of a Zimmer...