When evidence is not properly represented, it deprives jurors of the opportunity to fully weigh the facts. If such an error is allowed to proceed uncorrected, it could be grounds for a mistrial or a retrial.
That’s what happened in the case of O’Connor v. George, before the Montana Supreme Court.
The facts preceding plaintiff’s filing a lawsuit are fairly straightforward. Plaintiff was in her vehicle, stopped at a railroad crossing in September 2011. Suddenly, a vehicle driven by defendant rear-ended her.
Both vehicles sustained minor damage. However, plaintiff alleged she suffered serious physical injuries.
In most rear-end crash cases, there is a presumption of liability on the rear driver. That means the burden of proof is on them to show why they shouldn’t be liable. That’s because even if the vehicle ahead stopped abruptly, drivers are expected to maintain an assured clear distance.
Here, defendant driver conceded liability. What she challenged was the causation of plaintiff’s injuries and the extent. She asserted the impact of the crash was not substantial enough to result in the kind of injuries plaintiff claimed.
In taking the case to a jury, an important piece of evidence were photos of both vehicles post-crash. Although the amount of property damage and the degree of personal injury aren’t always directly correlated, such can be relevant.
However in this case, when photos of the accident were requested during the discovery phase, what was received from defendant’s insurance company were images from another accident defendant was in a year after this one. In the second accident, defendant struck a bird traveling about 60 mph.
This discrepancy wasn’t revealed until just before trial, when defendant under oath testified that the images seen were actually of the “bird crash.” She explained the insurance company kept getting the two incidents mixed up and were trying to lump the two into one claim. She eventually switched insurers over the mistake, which the company could never seem to rectify.
Plaintiff had not conducted discovery specifically on those photos, but they had been stipulated by the defense as being relevant to the case. In learning they did not depict the actual accident in question, plaintiff opposed the motion to keep the photos as evidence. Trial court denied this motion, though did offer a cautionary jury instruction indicating property damage doesn’t necessarily determine personal injury.
When plaintiff was called to witness stand, she was shown photos and asked if that depicted the damage of defendant’s car. She answered in the affirmative, though she wasn’t told those were actually images of the “bird crash.” However, defendant on the stand testified those images did not reflect the damage to her car from the traffic accident in question. They were instead from the “bird crash.”
When plaintiff counsel later moved for a mistrial, defense counsel defending the choice not to remove the photos from evidence, pinning the blame on plaintiffs for failing to conduct discovery on the photos.
Jurors did ultimately decide the case in favor of plaintiff – but awarded her only $4,000 – far less than the $17,000 she sought.
She filed a request for a retrial, arguing the photos of the wrong crash had prejudiced her case and credibility on the stand. Trial judge rejected this request. Although it found the defense failure to disclose the bird damage photos “disturbing,” it stated plaintiff failed to show how she was prejudiced. The Montana Supreme Court reversed.
Justices agreed that defense counsel was able to confuse jurors and make it appear plaintiff was not credible by manipulating the evidence. Although trial court held that jurors likely have based damage finding on other things, the state high court said jurors were entitled to make a decision based on accurate evidence.
As such, the trial court’s denial of retrial was reversed and the case was remanded for a new trial.
Call Associates and Bruce L. Scheiner, Attorneys for the Injured, at 1-800-646-1210.
O’Connor v. George, Sept. 15, 2015, Montana Supreme Court
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