Handling The Minor Property Damage
Accident: Miracles Can Happen by James K. MacAlister
James K. MacAlister, (Saointz, Kirk & Miles, Baltimore) is a graduate of the University of Baltimore Law School, Magna Cum Laude, 1984 and Frostburg State College, Cum Laude, 1979. He is admitted to practice before Maryland state and federal courts since 1985 and is admitted but on inactive status in PA and NJ. His has a general practice concentrating in Personal Injury and Workers’ Compensation Claims. He is a member of MTLA member and has written two amicus briefs and testified before Legislative Committees. He is also a member of the MTLA President’s Club as a Contributor. He has lectured and written for MICPEL on preparation and trial of a personal injury case.
It was Marcus Tillius Cicero who said,
“when you have no basis for an argument, abuse the plaintiff.” This strategy, con- ceived long before anyone spilled McDonald’s coffee or heard of so called “lawsuit abuse,” is the hallmark of what has become a pox on trial lawyers’ houses: the minimal property damage accident. Is there a plaintiff’s lawyer who has
never been vexed with a credible client, credible medicals, credible lost wages and credible residual pain, only to have the case rendered “un-credible” when the jury finds out there was little or no damage to the cars? To say that juries aren’t buying minor property damages cases is an un-
derstatement. Once they’re shown the photographs or an estimate, or hear that the car wasn’t badly damaged, jurors stop listening. See Mason v. Lynch, 151 Md. App. 17, cert granted 374 Md. 582 (2003) (plaintiff ’s verdict for $“0.00”). Before tackling how to defend against this defense, it is important to examine it for what it is. The nucleus of the argu- ment is rooted in the supposed, innate “commons sense” of fact finders - that for personal injury to occur, there must be property damage. But the argument runs deeper than a mere “questioning” the credibility of injuries. It is, to be blunt, an accusation that the accident victim and
the health care providers who rendered treatment are not telling the truth – be- cause nobody could have been injured in such a minor accident.
Those looking for a magic cure all for what ails minor property damage claims are not going to find it here. These cases are difficult to try and even harder to win. There is, however, a three pronged plan that may help save these cases: 1) employ evidentiary or tactical devices to minimize taint or to exclude the information; 2) rebut the inference that the client is lying by bolstering the credibility of the claim; and 3) debunk the “common sense” no- tion with expert testimony.
LEGAL/PROCEDURAL DEVICES
Exclude Evidence/Limit Argument There are some jurisdictions that bar
“any inference by the jury that minimal damage to the plaintiff’s car translates into minimal personal injuries to the plaintiff” unless there is expert testimony on the subject. Davis v. Maute, 770 A2d 36, 40 (Del. 2001) (issue not “within the knowl- edge of experts and not within the common knowledge of laymen”). Mary- land is not one of those jurisdictions. In a May 2003 opinion, the state’s interme- diate appellate court found no error stemming from the admission of photo- graphs depicting minor property damage. Mason v. Lynch, supra. So, too, it upheld the lower court’s de- cision to permit closing argument based upon photographs that “showed minimal damage to appellant’s vehicle.” Keep in mind that Mason is pending before the Maryland Court of Appeals, where it has been briefed and argued. Until that Court issues its decision, it is wise to examine Mason’s holding closely.
Photographs It should be noted that not every pic-
ture is admissible. Rather, the rules require that it be authenticated by “a witness with first-hand knowledge that the photograph
10 Trial Reporter Fall 2003
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