is what its proponent offers it to be.” L. Mclean, 5 MARYLAND EVIDENCE STATE AND FEDERAL §4:403.a.ii. (2001). Since it is the plaintiff who is often asked if the defense photograph “fairly and adequately” depicts the dam- age, the plaintiff should understand that the photograph might not. Not only does the camera lens sometimes gloss over a dent or buckle, but there may be interior or structural damage not readily visible. In Mason, the appellant sought review of the trial court’s decision to admit the property damage photographs. To be ad- missible, evidence must be both relevant, Md. Rule 5-401, and the court must find that “its probative value is substantially outweighed by the danger of unfair preju- dice, confusion of the issues, or misleading the jury.” Md. Rule 5-403. Mason, bal- ancing these interests, rejected a rule of per se exclusion, vesting the “admission of such evidence” to “the sound discretion of the trial court.” 151 Md. at 23-24. Just as Mason stands for the proposition that property damage photographs are not per se excluded, so too, by committing the issue to the trial court’s discretion, it does not call for their per se admission. The opinion begins its analysis with a
recognition that the defense “did not ad- mit liability and, therefore, forced appellant to carry the burden of proof on liability as well as damages.” 151 Md. at 22. Nowhere, though, is there an expla- nation as to why the defendant’s property damage photographs become more pro- bative if liability is at issue. It may be that, in a rear-end collision, minimal im- pact may suggest that the defendant was not following too closely. See Brehm v. Lorenz, 206 Md. 500 (1955) In those cases where liability is not an
issue, Mason suggests that arguments ad- vocating the admission of the photographic evidence is less compelling.
Argument of Counsel
Having upheld the admissibility of the photographs, the Mason court turned to the defense’s closing argument that the jury “should go back there, use your com- mon sense, draw on your every day experiences, look at the photographs of the vehicle, and ask yourself does it make sense, $13,000 in medical expenses.” 151 Md. App at 25. The Court began its analysis by review-
ing Farley v. Allstate Insurance Co., 355 Md. 34 (1999), a case where the Court of Ap- peals found no error in a closing argument that, without expert testimony to back it up, “cast doubt upon the reasonableness and necessity of [the plaintiff’s] medical bills,
Fall 2003 Trial Reporter 11
treatment, and lost wages.” 355 Md. at 57. The Mason court, branding the minor property damage reference a Farley-sanc- tioned effort to “cast doubt,” allowed it. 151 Md. App at 27. There are a number of is- sues generated by this holding. First, Farley is not a blanket endorsement of such comments. Among the reasons cited to affirm in Farley was counsel’s failure to “immediately object so that the trial judge could promptly rule on the matter.” 355 Md. at 59. It remains to be seen, therefore, with proper objection, if comments about minor property damage should be given the wide latitude the Court of Special Appeals afforded them. Second, defense counsel in Mason “did not attempt to make specific arguments that would call into play scientific prin- ciples that might require expert testimony.” 151 Md. App at 27. What remains unresolved is how much can be made of minor property damage before that argument shades into a quasi-scien- tific claim that injury cannot happen in the absence of property damage. Third, although the reference is some-
what cryptic, a Mason footnote alludes to a reference in a plaintiff-submitted medi- cal report “which contained the opinion that there is no correlation between the damage to a vehicle and the nature and extent of injury sustained by an occupant of that vehicle.” 151 Md. App at 25, n.2. Noting that the “jury was free to believe or disbelieve all or part of the contents of the report,” the footnote suggests that, by placing that opinion into evidence, the plaintiff may have inadvertently “opened the door,” and permitted opposing coun-
sel to question the weight the jury should give the property damage/causation opin- ion.
Property Damage Estimates
An estimate is nothing more than an opinion of vehicle damage. Without the testimony of the appraiser, the opinion is not only hearsay, Md. Rule 5-801, but it also lacks the information needed to qualify the expert’s conclusions. Md. Rule 5-702 (foundation requirements). Also, it is an opinion regarding the value of ser- vices invoiced, without a witness to testify that the amounts billed are fair and rea- sonable. Desua v. Yokim, 137 Md. App. 138, 144 (2001) It is worthy to note that not every es- timate correctly documents all the property damaged. A bumper cover may hide damage. Estimates are, as the name implies, an opinion as to what it will cost to fix the car. Often, once the repairs be- gin, additional damage is discovered. Do not assume that the insurance company’s estimator will comb the car for damage. Nor it is wise to assume that body shops will willingly assume adversarial positions to insurance companies that pay their bills and send them work.
Prior/Subsequent Injuries Evidence of prior or subsequent injury offers the jury the opportunity to believe the plaintiff that there is an injury, while awarding nothing - because the pain stems from an unrelated incident. To disprove causation, by suggesting a prior or subse-
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