you first of all good morning to the panel and i would like to reassure you that i think this is a fairly straightforward case it's a an issue that is seemingly small evidentiary problem that has become something of a foreign in the side trial lawyers and in personal injury cases as well as the  as the introduction of photographs showing minimal property damage although it does apply reversely where you have maximal property damage but mostly it's the use of photographs showing minimal property damage to a vehicle case we have photographs that show what they allege to be minimal damage to the car the rear bumper of the car judge hands her after hearing arguments  what is going to happen do i want to hope that the jury is not going to give this the credence that it deserves from the defendant's standpoint in terms of supporting their their  argument or not if you object you draw attention to it you run the risk that it's going to raise a red flag and it's going to be kind of an important issue in your mind in their mind where you want to be the other things  there may even be a whiff waiver there but i think that the the rule is not it was rest of the stuff it was not in the order and it was d that they could come in and it was i mean i understand that it's something to do i don't think that it is  stand here today and say why would why would the water make me perform use the sack yes there are hoops that have to be jumped through but they generally have some rationale behind them to expect that a judge is going to change his could have easily gone the other way and the arguments and the words that are used to justify each decision are the same in this case you know the rule is and everybody knows the rule because all it's got to be relevant and it but the other case is good and it has been allowed where they said well this is allowed because the jury can make this connection without the systems of an expert i don't understand them i don't understand how would you can make the connection without some past the money from someone qualified to make that connection that gives it to them otherwise all you're doing is allowing the jury to speculate where you know six people think one way and six people think the other the six people who are hardened of heart say well if you just get tapped in the rear you can't possibly get hurt that bad  the six people of softer heart would say jeez i remember my grandmother she got hit you know ten miles an hour and and she was put in a nursing home you know their arguments are this are are so purely speculative and based not on evidence but mean yes they take their life experiences in there with them but it's up to the jury to base it on the heavens and there was no evidence here that the speed of the impact or the nature and extent of the impact that anything to the fact that the plaintiff had prior injuries you know did that allow the jury to look at the photographs and say oh well he probably got hurt worse in those other injuries because the property damage here isn't so much  there just doesn't seem to be a basis from which a jury could even make an inference some evidence somewhere which is i think the only thing that you can hang your hat on us that is a question as a matter of law a an expert's opinion is necessary before the photograph is a lot of it's it is a it isn't always the discretion of the court for evidence to come in and subject to certain ground it's certain there are certain foundations that are necessary there are certain  standards that have to be met and you know what his first thing evidence has to be is relevant well where at the trial court has its discretion here the court would have had discretion to if they hear this protest money he he could have gone either way it would have been his discretion they met the standard by having expert testimony to make the connection from which the jury can either police or not believe the evidence or make inferences he would have the discretion still to keep them out or put them in because there are other factors in in looking at photographs for him to determine will these help the jury decide a bel my client said heavy impact he his testimony was based on definitions of those terms that were given by mr borel's white impact was hardly noticed that the medium impact was you know he had been head and heavy because he was pushed forward and that's what he testified to so he said his arms didn't fly up nobody nobody said that than happen d and there was you know damage to the back of the car mean there was damage on the bumper what does that mean in terms of how heavy the impact could have that you know could expert it was that the treating doctor right gave some testimony that related it and sometimes it's all you need otherwise if you don't have anybody who says that if you don't have somebody who says you know what there is a direct relationship between that what happened to this guy physically and the nature and extent of his injuries there's a break there somewhere or something else happened and you have it in  cases where you have preexisting injuries you know if i had a preexisting injury doctor testifies this is what it was the defendant's raise that up you know they highlight that testimony they don't have to go out and get their own guy that he's the plainest reading that or and argue he's not that hurt he had all these problems before him where is that evidence when you just show a photograph what what's just six are going to say i thought oh i look at the photograph of the well that's a hell of a crash an expert to say happy for me bringing somebody has to say that that has something to do with the injury let's say that it was a minor impact but the pla when you haven't met the foundation in your exercise your discretion you've abused her discretion and i think that's the standard for abuse of discretion pretty much most judges do not make horrible that he was pushed forward she didn't say he wasn't pushed forward you know and i mean her credibility is as much an issue with his head is going off if your foot just slipped off the brake you know i mean break or not the issue is not how much of it was it five miles an hour twenty miles an hour the issue is are these medical the images and these injuries related to this accident there was nobody there was no doctor who said he's a baby he's then were such to be introduced during the plaintiff's testimony there was no objection at that point when the defense counsel sought to publish the photographs to the jury at that time there was no objection at that point i think it's very important that i think it's required that that be done the case is clear that we said it in our brief in the cases are clear that simply filing the motion woman is not sufficient there has to be an objection made at the time that the evidence is sought to be introduced they had to be an objection at the time that the photographs were sought to be published to the jury which was at that point and there had to be an objection also at the time that the photographs went back to the jury i think that the trial i don't think it's a useless act i think it's an act it's required in the law to preserve the appeal and that was not done in this case i think on that indicated in detail the reasons why the photographs were relevant why they were coming into evidence why the jury should see them and  one thing that's been touched on is prior to any of the photographs coming into evidence or even being sought to be put into evidence by the plaintiff himself testified on direct exam that he was propelled forward with his hand going up into the air and the defendant did then testify afterwards that she was at a stop took her foot off the brake the car did not excel or rates but she went forward struck the plaintiffs car a very light in fact less sinai testified that the plaintiff told him that the plane it was taken from from the scene to the emergency room this is one piece of the puzzle in showing the jury that no the plaintiff here which i  indicated in closing arguments as well as in the brief the plaintiff here's a gaijin a pattern of exaggeration and this is one of the pieces in the puzzle to show the jury that yes this is what's going on here the trial judge was clear as an issue about the what he termed the amounts of the impact there's an issue as to what happened to the plaintiff during the impact there's actress clambers testim testimony also the trial judge was very clear that as there is no expert testimony in the cases not to be any arguments and i think this is the right way to go i think is the safe way to go when you look at the eco solar case and the other cases i think this is definitely the safe way to go when there is no expert to to say no you cannot argue that there's a correlation whether that's required in the case i don't think so but i think that is the safe way to go is that the deacon saw a case is not violated but in this case is no expert testimony so there was no argument there was no specific argument that there was a correlation what the picture showed the pictures showed was that there is an issue as to how they actually have been you should also take a look at everything else the pla says this is a case where neither of the two medical providers testified to an opinion within a reasonable degree of medical certainty that the plaintiff was injured in this accident so all we have to go off of in this case is a plan of some credibility you know the cases are they are all over the place i think that's because they're based on the specific facts of the case so you're not going to have cases that are identical they come down to the fact that the trial judge is given  discretion to admit the photograph if he or she deems it relevance and it miscible under all of the cases the trial judge in our case did that i think was extremely explicit in terms of why it's coming in and what can be done in terms of if two things i don't think make a pattern of exaggeration and one of which was true he did he did go from the scene to the emergency room but when home his mother took him right to the emergency room when he went home i mean he was on his way home at the time trying to string this through the testimony of the two doctors i think this is kind of a far reach if if you can't if you can't argue a correlation between minimal impact and injury doctors testified by evidence that position taken long before the issue of photographs even came which was during the trial i think the court appreciated how much fun you have with these discussion