Adams v. Chapin Sheldon, et al

Filing 175

MEMORANDUM ORDER DENYING re 172 MOTION for New Trial filed by Ashley Adams. Signed by Judge Leonard P. Stark on 8/31/2012. (rpg)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE

ASHLEY ADAMS,
Plaintiff,
Civ. No. 04-251-LPS

v.
JO ELLEN CHAPIN SHELDON,
Defendant.

MEMORANDUM ORDER

Pending before the Court is Plaintiff Ashley Adams' Motion for New Trial. (D.I. 172)
For the reasons set forth below, the Court will DENY the motion.
BACKGROUND

On April 20, 2004, Ashley Adams ("Plaintiff') filed suit against Jo Ellen Chapin Sheldon
("Defendant") for damages resulting from an automobile collision that occurred on April 23,
2002 (hereinafter "the accident" or "April 2002 accident"). (D.I. 1, 15) The Court held a pretrial
conference on August 3, 2011. (See Tr. Aug., 3, 2011 pretrial conference) (hereinafter "PTC
Tr.") A four-day jury trial was held in August and September of2011. (See Tr. Aug. 30-31 and
Sept. 1-2, 2011 trial) (hereinafter, "Trial Tr., [date]") The jury rendered a verdict finding
Defendant negligent in a manner that proximately caused an automobile accident between
Plaintiffs and Defendant's vehicles. (D.I. 167) However, the jury also found that Plaintiff did
not suffer injuries and damages proximately caused by Defendant's negligence. (Id.) Plaintiff
filed her new trial motion on September 12, 2011. (D.I. 172)

LEGAL STANDARDS
Federal Rule of Civil Procedure 59(a)(1)(A) provides:
The court may, on motion, grant a new trial on all or some
of the issues- and to any party- as follows:
after a jury trial, for any reason for which a
new trial has heretofore been granted in an
action at law in federal court ....
Among the most common reasons for granting a new trial are: (1) the jury's verdict is against the
clear weight of the evidence and a new trial must be granted to prevent a miscarriage of justice,

see Roebuck v. Drexel University, 852 F.2d 715, 717 (3d Cir. 1988); (2) newly discovered
evidence exists that would likely alter the outcome of the trial, see Bohus v. Beloff, 950 F.2d 919,
930 (3d Cir. 1991); (3) improper conduct by an attorney or the court unfairly influenced the
verdict, see Greenleafv. Garlock, Inc., 174 F.3d 352, 363 (3d Cir. 1999); or (4) the jury's verdict
was facially inconsistent, see Mosley v. Wilson, 102 F .3d 85, 90 (3d Cir. 1996). See also

Zarow-Smith v. New Jersey Transit Rail Operations, 953 F. Supp. 581, 584 (D.N.J. 1997).
The decision to grant or deny a new trial is committed to the sound discretion of the
district court. See Allied Chemical Corp. v. Darjlon, Inc., 449 U.S. 33, 36 (1980). Where the
ground for a new trial is that the jury's verdict was against the great weight of the evidence, the
court should proceed cautiously, because such a ruling would necessarily substitute the court's
judgment for that of the jury. See Klein v. Hollings, 992 F.2d 1285, 1290 (3d Cir. 1993).
Although the standard for grant of a new trial is less rigorous than the standard for grant of
judgment as a matter of law - in that the court need not view the evidence in the light most
favorable to the verdict winner - a new trial grounded on the verdict being against the great

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weight of evidence should only be granted where "a miscarriage of justice would result if the
verdict were to stand," the verdict "cries out to be overturned," or where the verdict "shocks [the]
conscience." Williamson v. Consolidated Rail Corp., 926 F.2d 1344, 1352-53 (3d Cir. 1991).
Moreover, "[w]here the subject matter ofthe litigation is simple and within a layman's
understanding, the district court is given less freedom to scrutinize the jury's verdict than in a
case that deals with complex factual determinations." Id. at 1352.

PARTIES' CONTENTIONS
Plaintiff advances two arguments in support of her motion. First, Plaintiff claims that the
jury's verdict regarding damages was contrary to the evidence presented at trial. Second,
Plaintiff contends that "reference and/or testimony concerning [certain accident] photographs
violat[ed] the Court's [pretrial] order[,] [which] constituted reversible error." (D.I. 172 at 1)
Specifically, Plaintiff claims to have been unfairly prejudiced by references made by Defendant's
expert, Dr. Katz, to photographs showing minimal damage to the vehicles involved in the
accident. Plaintiff seeks a new trial to attempt to recover at least $5,573.06 in "hospital related
bills." (Id. at 6)
Defendant opposes the motion. (D.I. 173) In response to the first issue, Defendant
argues that Plaintiff is misconstruing the testimony of defense expert Dr. Katz, who, in full
context, opined that Plaintiff did not suffer injuries that were proximately caused by the April
2002 accident. Hence, in Defendant's view, the jury's finding that Plaintiff was entitled to zero
damages was not contrary to the great weight of the evidence. (See id. at 3, 7) With respect to
the second issue, Defendant contends that the photographs were properly used for impeachment
purposes and, in any event, any error was harmless. (See id. at 7)

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Below, the Court addresses- and rejects- both of Plaintiffs' grounds for a new trial.
THE JURY'S FINDING OF NO DAMAGES

Plaintiff claims that the following damages were proximately caused by the April 2002
accident: 1) a C7lamina fracture; 2) a herniated disc; and 3) costs accrued in obtaining treatment.
(D.I. 172 at 3) Defendant's expert, Dr. Katz- who testified by deposition- opined that
Plaintiffs injuries did not result from the accident. Instead, Dr. Katz testified that, based on the
evidence he reviewed, "there's no indication that [the injuries] w[ere] caused by" the accident.
(Trial Tr., Aug. 31, 2011 at 208) In particular, Dr. Katz testified that the C7lamina fracture was
a chronic condition and that any herniated disc was not caused by or even associated with the
accident. (!d.) Dr. Katz further opined that the treatment Plaintiff received from April 2002
through the time ofhis testimony (in August 2011) was not required as a result ofthe accident.
(Jd.)

Furthermore, as Defendant explains, Dr. Katz testified that Plaintiffs cervical fracture
was most likely old and that her treatment and prescriptions before and after the accident were
indistinguishable. (D.I. 173 at 3) (citing Trial Tr., Aug. 31,2011 at 193-95, 209-10) He further
opined that the medical records he reviewed did not show Plaintiffs condition was different
immediately after the April accident from what it had been before the accident. (Trial Tr., Aug.
31, 2011 at 209)
To the extent Dr. Katz opined that Plaintiff suffered injury caused by the April2002
accident, his opinion was based on "history," by which Dr. Katz meant it was based in substantial
part on what Plaintifftold him and told her treating physicians. (Trial Tr., Aug. 31, 2011 at 233,
239) Thus, to the extent the jury found that Plaintifflacked credibility, the jury was likewise free
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to reject any opinion of Dr. Katz based on Plaintiffs self-reporting. See Reed v. Gerbec, 1999
WL 1442021, at *1-2 (Del. Super. Sept. 24, 1999) (denying motion for new trial following jury
verdict of zero damages- despite defendant's expert's agreement that plaintiff suffered soft
tissue injury- where "the credibility of the Plaintiff was very much at issue," in part because
plaintiff was a "symptom exaggerator").
Here, Plaintiffs credibility was very much in dispute. Among many other things, it was
undisputed that Plaintiffhad been involved in another automobile accident on February 19, 2002,
just two months before the accident giving rise to this lawsuit. (See D.I. 172 at 4) One ofthe
issues the jury had to consider was whether, assuming Plaintiff had been injured in 2002,
Plaintiffs injuries were due to the February accident and/or the April accident. Additionally, as
Defendant explains:
The jury also heard that plaintiff denied previous symptoms,
treatment or use of narcotics when questioned at her deposition, all
of which was untrue. The jury was in the best position to
determine credibility of the plaintiff. If it found she was not
credible, then it was permitted to find that plaintiff did not prove
that any complaints or physical findings she had after the April
2002 accident were caused by that accident.
(D.I. 173 at 5-6) The Court agrees with this assessment.
The jury was free, as it was instructed, to believe or disbelieve Dr. Katz's testimony, in
whole or in part, just like that of any other witness. (See D.I. 163 at 22 (final jury instruction:
"Expert testimony should receive whatever weight and credit you think appropriate, given all the
other evidence in the case.")) 1 Plaintiffs experts, Dr. Damon Carey and Dr. Peter Bandera,
offered opinions different from Dr. Katz's (see Trial Tr., Aug. 30,2011 at 138, 215), and the jury

1

There was no objection to this instruction. (See D.I. 155 at 25 (joint proposed jury
instruction); Trial Tr., Aug. 31,2011 at 246))
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was free to believe or disbelieve their testimony as well.
In this regard, it is noteworthy that Dr. Katz testified that "[i]f somebody says they hurt,
they hurt." (Trial Tr., Aug. 31, 2011 at 237) The jury, having watched Plaintiff testifysomething Dr. Katz, of course, did not do - could have reasonably reached a different
conclusion. Specifically, the jury could have reasonably concluded that Plaintiff was not hurt by
the April 2002 accident. See Reed, 1999 WL 1442021, at *2 ("[T]he jury could have reasonably
based its verdict for the Defendant on the evidence concluding that Plaintiff had not suffered
anything other than minimal damage. The jury could have reasonably concluded that Plaintiffs
complaints were not credible and therefore rejected [the defense expert's] opinion that Plaintiff
suffered a soft tissue injury. An award of zero damages is not inconsistent as a matter of law
with a finding of negligence which was a proximate cause of injury to the plaintiff."). 2
The jury's determination that the April2002 accident did not proximately cause
Plaintiffs damages is not against the great weight of the evidence. The verdict does not
constitute a miscarriage of justice, shock the conscience, or cry out to be overtumed. 3

2

Thus, for reasons similar to those discussed by the Court in Reed, 1999 WL 1442021, at
*1, this case is distinguishable from Maier v. Santucci, 697 A.2d 747, 748-49 (Del. 1997), on
which Plaintiff relies heavily. In Maier, the Delaware Supreme Court held:
where the evidence conclusively establishes the existence of an
injury, however minimal, a jury award of zero damages is against
the weight of the evidence .... [O]nce the existence of an injury
has been established as causally related to the accident, a jury is
required to return a verdict of at least minimal damages.
Id. Here, however, the jury found that the evidence did not establish the existence of an injury or
damages proximately caused by the accident, and the Court concludes that the record lacks
conclusive evidence to the contrary.
3

See Young v. Frase, 702 A.2d 1234, 1236-37 (Del. 1997) ("Under Delaware law,
enormous deference is given to jury verdicts . . . . It follows that, in the absence of exceptional

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Accordingly, Plaintiff's first argument does not provide a meritorious basis for granting a new
trial. See Young, 702 A.2d at 1237 ("As long as there is a sufficient evidentiary basis for the
amount of the award, the jury's verdict should not be disturbed by a grant of additur or a new
trial as to damages.").

THE PHOTOGRAPHS
Plaintiff argues that Defendant improperly used photographs of the April 2002 accident
during her examination ofDr. Katz, Defendant's expert witness. (D.I. 172 at 1) The
photographs at issue (hereinafter, "the photographs" or "photos") depict Plaintiff's and
Defendant's vehicles after they were involved in the accident and show minimal physical damage
to those vehicles. (D .I. 54 at 8) Plaintiff contends that Defendant's use of the photos at trial was
contrary to governing Delaware law, violated the Court's rulings in the instant case, and was
unfairly prejudicial. (PTC Tr. at 6)
The Court disagrees with each of Plaintiff's contentions. Explaining the reasoning for
these conclusions requires setting out, in some detail, the pretrial and trial proceedings relating to
the photographs.
The Court first confronted the issue of the photographs during the pretrial conference,
during which it heard argument on Plaintiff's motion to exclude the photos from trial. The Court
denied Plaintiff's motion, stating:
To the extent the plaintiff doesn't want Dr. Katz to testify
about the photographs of the accident, that request is denied.
He may rely on the photographs. They will be in evidence,

circumstances, the validity of damages determined by the jury should likewise be presumed.
Accordingly, a jury award should be set aside only in the unusual case where it is clear that the
award is so grossly out of proportion to the injuries suffered as to shock the Court's conscience
and sense of justice.") (internal quotation marks omitted).
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and he will be allowed to, if he wishes, render an opinion as
to the impact of those photographs on his opinion on the issues
on which he is qualified to opine.
(PTC Tr. at 51-52) The Court added that it would consider giving a limiting instruction to the
jury as to the purposes for which the photographs were being admitted. (Id.) After the Court's
ruling, Plaintiffs counsel stated, "as to Dr. Katz, I understand" that "the photograph testimony
can" be used. (PTC Tr. at 59) In a subsequent letter to the Court, Plaintiffs counsel reiterated
his understanding that "Your Honor allowed photographs of the Plaintiffs vehicle over
Plaintiffs objection." (D.I. 158) Also, consistent with the Court's invitation, he submitted a
proposed limiting instruction. (Id.

t

During the pretrial conference, before ruling on Plaintiffs motion to exclude the photos,
the Court inquired as to what would happen with Dr. Katz's testimony if the Court decided to
exclude the photos, as the photos were one of the bases for Dr. Katz's opinions. (PTC Tr. at 26)
Defense counsel explained that Dr. Katz's deposition had not yet been taken. Therefore, Dr.
Katz could testify in the deposition "as to what portion of his opinion is based on photographs
and what is based on all of the variety of records that he reviewed." (Id.; see also id. at 37)

4

Plaintiff states that she is not seeking a new trial based on a contention that the Court's
pretrial ruling on the photographs was erroneous. (D.I. 174 at 1) Confusingly, however, Plaintiff
continues to insist that admission of the photographs was impermissible under the Delaware
Supreme Court's ruling in Davis v. Maute, 770 A.2d 36 (Del. 2001). (Id.) This is the very issue
the Court addressed - and resolved against Plaintiff- during the pretrial conference.
Specifically, the Court held that Davis' applicability had to be evaluated in light of the Delaware
Supreme Court's subsequent ruling in State Farm v. Enrique, 3 A.3d 1099 (Del. 2010).
Consistent with Enrique's directive that "photographs of [a] plaintiffs car are not per se
inadmissible," id., this Court held that the photographs could be used in the instant trial for
limited purposes (PTC Tr. at 51-52). In fact, however, Defendant did not actually use the photos
at trial for any purpose, as they were never shown to the jury, never admitted, and never the
subject of any argument by counsel to the jury. As explained below, there was merely passing
reference to the photos in the deposition testimony of Dr. Katz that was read to the jury.
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The Court further asked counsel, "do you need some sort of framework by which the two
of you will confer following a deposition as to which portions are going to be designated and if
anybody has objections to them?" (Id. at 37) Defense counsel responded:
We normally play the entirety [of the deposition] with the
exception of any objections on which we would have to ask your
Honor to rule in advance .... I will let [Plaintiffs counsel] speak
for himself on that but normally we just play it for the jury and let
the jury hear what it [the witness] has to say.

(!d.)
Then Plaintiffs counsel addressed the issue:
Insofar, your Honor, as the testimony of the doctors are concerned
or the witness is concerned, if your Honor can decide these
motions in limine ... before ... we take these depositions, then
obviously that would alleviate ... whatever we have because we
would obviously abide by your Honor's ruling ....
(!d. at 39-40)
When the Court asked Plaintiffs counsel whether his "intent would be that the entirety of
the video deposition other than objected to portions would be played," counsel replied:
Except for if I object. Yes. Usually, that is what we generally do.
We just play the whole thing, except the problem, of course, is it is
difficult with Dr. Katz because he has got so much of this in there
that we probably have to object. I would have to do a standing
objection at the beginning so I do not have to object 20 times. And
then, your Honor, if you decided, but- but we would, of course,
chop it off. If that is the way it has to be done, that is the way it
has to be done.
(!d. at 40)
At a later point in the pretrial conference - in the course of granting Plaintiffs motion to
exclude evidence of character or prior conduct, including references to Plaintiffs alleged drugseeking behavior and forgery of prescriptions - the Court instructed:

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At the upcoming depositions of the doctors, therefore, the parties
will have to work together to ensure that if you all think you need
to question the doctors about these materials that are now excluded
from evidence that those portions of the deposition will need to be
segregated in a way that they will not be shown to the jury.

(Id. at 51)
The parties took Dr. Katz's deposition during the four weeks between the pretrial
conference and the trial. At the very start of the trial, counsel advised the Court that Dr. Katz's
deposition testimony would be offered by videotape, that the parties had been working to resolve
objections, and that Plaintiffhad remaining objections to Dr. Katz's testimony. (Trial Tr., Aug.
30, 2011 at 3-5) Just before trial began, the Court confirmed that the parties were "all aware of
the ruling as to what use could be made ofthe photographs and what use cannot." (Id. at 13-14)
The Court further elicited the parties' agreement that Plaintiffs proposed limiting instruction
would be given at the time the photos were shown to the jury and as part of the final jury
instructions. (See id.; see also Trial Tr., Aug. 31, 2011 at 146)
Immediately before opening statements, Plaintiffs counsel raised "a concern about the
photographs so far as they're related to Dr. Katz." (Trial Tr., Aug. 30, 2011 at 75-76) In
essence, Plaintiff did not want defense counsel to refer to the photos in her opening statement.

(See id.) Defense counsel agreed not to do so, and she did not do so.
At the end of the first day of trial, the parties argued Plaintiffs objections to Dr. Katz's
deposition testimony. (Id. at 249-53) Plaintiffs counsel explained that he had just one objection
to the Katz testimony, limited only to the questions and responses contained at pages 15-18 of the
deposition transcript. (Id. at 251-53) Twice counsel confirmed that he had no other objections to
Dr. Katz's testimony. (Id. at 252 (confirming "sole objection") (emphasis added), 253 (agreeing
with Court's statement "there is no objection to any other portion of the Katz testimony from
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either party") (emphasis added)) The Court sustained Plaintiffs "sole objection," expressly

detailing "that is the objection that is from Page 15, Line 19 through Page 18, Line 10." (!d. at
253)
The next morning the parties advised the Court that the video version of Dr. Katz's
deposition could not be properly edited in time so, instead, the parties would each read their
designated portions of the deposition into the record in front of the jury. (Trial Tr., Aug. 31,
2011 at 2-3) Specifically, defense counsel would read the questions she had asked during the
direct examination ofDr. Katz (with a stand-in reading Dr. Katz's responses) while Plaintiffs
counsel would read the questions he had asked during the cross-examination of Dr. Katz (with
the same stand-in reading the responses).
There was also some discussion as to whether the photographs would actually be used to
impeach Plaintiff, as the Court's pretrial ruling had permitted. Plaintiffs counsel asserted that he
did not "think there will be any reason to cross-examine my client on these photographs because
she will readily admit it is not a major accident." (!d. at 6) The Court stated that it agreed that
"if she [Plaintif:fJ gets up and admits to everything, it may be that she can make it irrelevant to
have the photos." (!d. at 8) That is, ifPlaintifftestified that the accident did not involve a major
impact between the two vehicles, there might be no need to impeach her with the photographs
(notwithstanding Plaintiffs prior description of the accident as having involved a "strong"
impact).
Subsequently, during her direct examination, Plaintiff gave the following testimony:
Q.

Was this a major accident in any way whatsoever?
The accident itself. The car, the impact itself.

A.

No, the impact was not a major accident.

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(Id. at 63)

During a break that followed the completion of Plaintiffs direct testimony and most of
her cross-examination, the Court inquired as to whether defense counsel still intended to use the
photographs with Plaintiff. (Id. at 144) Defense counsel requested the opportunity to show
Plaintiff and the jury the photos. (Id. at 145-46) After hearing further argument, and explaining
that the issue presented a "difficult" "discretionary call," the Court ruled that it would not permit
the photos to be shown to the jury. (!d. at 150)
The Court elaborated:
Ms. Christman [defense counsel] may cross-examine Ms. Adams
[Plaintiff] on what type of impact was there. And if the answers
are not consistent with what we heard on direct and Ms. Christman
wants me to reevaluate my ruling, I will; but if the answers are
consistent with what I heard on direct today, then my ruling on the
photos not coming in will stand.
(Id. at 150-51)

The Court's revised ruling relating to the photographs- which was necessitated by the
substance of Plaintiffs testimony at trial, which unexpectedly differed from what she had
previously stated about the impact on her vehicle from the accident - was limited to Plaintiffs
testimony and the admissibility of the photos. While the ruling also had arguable implications
for the forthcoming testimony of Dr. Katz- implications that would, ideally, have been
perceived by the parties and drawn to the attention of the Court - it did nothing to alter the
Court's ruling on what remained the "sole objection" to Dr. Katz's testimony.
After the Court gave its revised ruling, defense counsel completed her cross-examination
of Plaintiff. A portion of that examination was as follows:

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Q.

. .. [D]o you remember me in your deposition
asking you about the impact involved in the
accident? . . . And what do you remember
happening in the accident? And your response was
I was struck very hard; is that correct?

A.

I was struck very hard.

Q.

And you now agree that that testimony was not
correct. This was a very minor, mild impact;
correct?

A.

Mild impact. (Nodding yes.)

Q.

And you agree that what you told Dr. Katz and what
you told Dr. King about the type of impact was not
accurate; correct? When you told them it was a
very strong impact and that you were hit by a
vehicle traveling at a high rate of speed, that that
was wrong; is that correct?

A.

That's correct.

(Trial Tr., Aug. 31,2011 at 155-56) In full compliance with the Court's revised ruling, counsel
did not use, display, or even reference the photographs during her examination of Plaintiff.
After Plaintiff completed her testimony and Defendant testified, Defendant then called
Dr. Katz to testify by deposition transcript. (See id. at 175) As agreed, defense counsel began to
read the questions and answers from her portion of the deposition, none of which had been

objected to by Plaintiff (Trial Tr., Aug. 31, 2011 at 175-83) The still unobjected to deposition
testimony, which defense counsel read to the jury, included the following questions and answers:
Q.

. . . Did you also have the opportunity to review
some photographs that showed the plaintiffs
vehicle after the accident?

A.

Yes.

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Q.

And I then when you saw them they were probably
black and white photographs, but I'll show you a
couple of photographs now that are color
photographs that you can also show to the jury.
When you reviewed the black-and-white
photographs, did you see any evidence of damage
on those photographs?

A.

I did not. Again, I commented they were
photocopies, so black and white copies of the color,
and so I couldn't- I couldn't discern any damage.

Q.

I'm going to show you what is A-009 and A-009A
and 9A actually shows the entire rear of plaintiffs
vehicle and 9 shows a close-up of the rear did you
see that?

A.

Yes.

(!d. at 183-84)
At this point, Plaintiffs counsel interrupted the reading of the transcript and the Court
met with counsel at a sidebar. Plaintiffs counsel began, "[t]his is all supposed to be stricken."
(Trial Tr., Aug. 31, 2011 at 184) The Court responded that defense counsel had not yet reached
the portion ofthe testimony that was the subject ofPlaintiffs sole objection, pages 15-18. Then
the Court added: "I think what happened is in light of my ruling today we did not go back and
amend what should be read from this deposition. But at this point, I think we should, we should
strike the portions relating to the photographs." (!d.) After hearing further from both sides (still
outside the presence of the jury), the Court instructed defense counsel to stop reading the portion
of the transcript at which she had been stopped and to pick up with the portion that followed all
of what Plaintiffhad initially objected to; i.e., she was to begin reading again at page 18, line 11.

(!d. at 185) After the Court explained to the jury "we're going to skip a few pages now," defense

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counsel proceeded precisely in accordance with the Court's direction. (Jd.) 5
Even though Plaintiffs counsel had a copy of the Katz deposition transcript in front of
him, at no point did he identifY any other portions of the Katz testimony to which he now
objected. Instead, just as Plaintiffs counsel had not attempted to amend his objections following
the Court's revised ruling regarding the photos, now again he failed to amend his objections to
the Katz testimony. Thus, the Court was not asked to- and did not- make any rulings about the
remainder of the still unobjected to Katz testimony. Consequently, defense counsel eventually
read the following question and answer to the jury:
Q.

And then in terms of determining whether either the
fracture or the herniated disc came from the incident
on April23, 2002, do her statements to you and
others about the force of the impact versus what
shows up in the photographs have any meaning in
determining what caused her problems?

A.

Just answer that specific question. The force of the
impact as available indicators, no, it would not
explain it, and obviously many more things than just
looking at the pictures goes into it. Looking at the
patient, doing examinations, et cetera, but the
answer IS no.

(Jd. at 207)

Even after this portion of testimony was read, with its reference to Dr. Katz's review of
the photographs, Plaintiffs counsel did not object, ask that the testimony be stricken, nor even
request another sidebar. Instead, after defense counsel had completed reading Katz's direct

5

As already excerpted above, the Court stated during the sidebar, "I think we should, we
should strike the portions [that had just been read] relating to the photographs" and both parties
agreed. (Trial Tr., Aug. 31, 2011 at 184) Then the Court added: "Certainly stop reading it. Do
you want us to strike the last page? All the jury has heard, he saw photographs." (Jd. at 184185) Nothing was actually stricken, and Plaintiff never again requested that the Court strike this
or any other portion of Dr. Katz's testimony.
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testimony, the Court called the parties to sidebar and observed that defense counsel "had a spot
where there was reference to the photograph ... [and] I thought you [defense counsel] handled
that fine. We don't need to draw more attention to it." After this, the transcript shows Plaintiff's
counsel volunteering, "Yes." (!d. at 211)
Still at sidebar, the Court advised Plaintiff's counsel that it appeared there was at least
one additional question and answer that Plaintiff's counsel intended to read which would again
mention the photos. Plaintiff's counsel stated that he wanted to read that excerpt to the jury, and
defense counsel did not object. (!d. at 211-12) Thus, in the course of reading his portions of the
testimony to the jury, Plaintiff's counsel put in the record the following question and answer:

Q.

Now, doctor, you were asked about the photos and
the question about the impact and so forth. You
agree with me of course that every person is
different as far as their physical makeup is
concerned, their condition, their susceptibility to
being injured and so forth; correct?

A.

Yes.

(!d. at 219)

There was no reference by either side to the photographs at any subsequent point during
the evidentiary portion of the trial or during closing arguments. Then, during deliberations, the
jury sent a note to the Court: "Were there pictures of both cars involved in accident of 4/23/02?
Are they available for review?" (Trial Tr., Sep. 1, 2011 at 114) With the agreement of the
parties, the Court responded to the note as follows: "In response to your questions, you are
instructed to make your decision based on the evidence before you. The evidence is closed.
Nothing further may be introduced into evidence at this point." (Id. at 117)
Plaintiff argues that "[t]he reference to photographs was a prejudicial and crucial error as

16

evidenced by the jury's request to see the photographs." (D.I. 172 at 2 (emphasis added); see
also D.I. 174 at 4 ("The fact that Dr. Katz's reference to the photos was not harmless error is re-

enforced by the fact that the jury requested to see the photos. They heard Dr. Katz's improper
testimony concerning the photos and they apparently relied on that testimony .... ")) Plaintiffs
conclusions are entirely unsupported by what actually occurred. To the contrary, it seems
obvious from the note that the jury was uncertain whether photos of the vehicles even existed.
At minimum, this strongly suggests that Plaintiff was not at all prejudiced by the four passing
references (all of which are excerpted in their entirety above, and one of which was read to the
jury by Plaintiffs counsel himself) to the photos during the reading of Dr. Katz's testimony. 6
As is evident from the foregoing, lengthy recitation of the proceedings relating to the
photographs, at no point did defense counsel violate any order or instruction of the Court.
Indeed, Defendant never attempted to show the photos to the jury; all three references to the
photos that she read to the jury were contained in portions of Dr. Katz's deposition testimony

that were not objected to by Plaintiff Plaintiffs "sole objection" to three pages of that
deposition was sustained and defense counsel did not read those three pages to the jury.
At worst, the problem that arose was that neither the parties nor the Court thought to
revise the Katz deposition designations in light of the Court's revised ruling earlier that day
regarding the use of the photographs. If this is what occurred, Plaintiffs counsel is at least as
responsible for the oversight as anyone else. In all events, the Court finds that nothing that
occurred with respect to the photographs remotely warrants a new trial.

6

It follows that, even assuming there was error in the handling of the issues relating to the
photographs (and the Court concludes that there was not), such error would have been harmless.

17

CONCLUSION
For the reasons stated above, Plaintiff's Motion for New Trial (D.I. 173) is DENIED.
The Clerk of Court is directed to enter judgment in favor of the Defendant and
against Plaintiff and to CLOSE the case.

August 31,2012

UNITED STATES DISTRICT JUDGE

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