Sacramento Brain Injury Lawyer Blog

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this brain injury/car accident case and its proceedings.)

A camera is not the same as the human eye, and film is not the same as the retina of the eye. The limitations of the camera-film system as a simulator of human vision are particularly acute under low luminance conditions. William Hyzer has written extensively on this subject. Hyzer's criticisms have been relied upon by plaintiffs accident reconstructionist Miles Apuni in this case. As Hyzer notes, a principal difficulty is the limited dynamic luminance range of photography as compared with that of the eye.

Perceptual-cognitive issues also are often misleading with nighttime photographs. The normal field of view for humans is close to 180 degrees in all directions, but a camera only captures a small portion of the visual field, much less than the person who actually sees things the picture or video is trying to replicate. Thus, such photographs artificially concentrate the viewer into the restricted field and artificially enhance the visibility of the key object or condition being depicted.

A photograph is a static representation of a slice of time, whereas the accident sequence itself is very dynamic. The human eye is designed to optimally perform at high levels of illumination. Therefore, cameras and videos tend to make things brighter to allow people to see the target of the illustration. Also, in an auto accident, the driver does not expect the hazard to appear, but observers of a video which tries to replicate the accident know the hazard is coming and the animation or video artificially changes the viewer's perceptions in a way far different from what actually occurred in the field.

A photograph might be offered to show 200 feet from the intersection and so the person looking at it knows what to look for and scrutinizes what can or cannot be seen, but this is not at all what happens in reality. The driver never knows the hazard is coming, can see a much wider field, and is moving at the time. These problems, along with the camera's inability to replicate the human eye, all make the demonstration unrealistic and highly prejudicial.

Continue reading "Car Accident Victim From Sacramento Sues City For Traumatic Brain Injury, Part 8 of 8" »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this brain injury/car accident case and its proceedings.)

Pictures in various forms (e.g., engineering drawings, artist's renderings, computer-generated displays, photographs) are commonly used in court. Photography is one of the most commonly used forms of visual presentation in court, because they assist the trier of fact in understanding injuries, the vehicles, the scene, when offered for that purpose. Jurors tend to believe that what they see in a photograph is what they would have seen had they been there themselves at the time the photograph was taken. And here, photographs and other depictions are central to issues in this auto accident case.

This belief is reinforced by their own experience, since most of them have probably taken photographs at one time or another. Unfortunately, most jurors have little knowledge about photography, hence little understanding of the possible problems and limitations.

Many experts now try to offer into evidence nighttime photographs, videos, and even computer-generated displays purporting to show the visibility available to an individual in a particular situation. Relative to verbal explanations of the results of a reenactment, these displays are regarded as a great improvement, but they present a number of problems that are seldom dealt with or even acknowledged by the individuals seeking to introduce this evidence.

Generally, daytime photographs will serve their purpose if they are sufficiently clear and are not distorted with the use of special lenses, filters, and arguments over such photographs are often not sufficient to keep them fairly out of evidence.

Continue reading "Police Officer Sued For Causing Brain Damage To Sacramento Car Accident Vcitim, Part 7 of 8" »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this brain injury/car accident case and its proceedings.)

THE NIGHT TIME PHOTOGRAPHS AND VIDEOTAPING ARE MISLEADING AS TO THE ACTUAL LIGHTING, WHAT THE PARTIES COULD SEE AND NOT SEE, AND THEREFORE SHOULD NOT BE VIEWED BY THE JURY IN THIS BRAIN INJURY CASE.

Photographs submitted as evidence should never be accepted as true and accurate or substantially similar representations without subjecting them to critical examination. The legitimate manipulation of photographic imagery is as old as photography itself. Retouching and restoring photographs has been an art form for over a century. Special effects for image manipulation methods are used throughout the entertainment industry and in Hollywood.

Consequently, it is not unusual for an attorney to legitimately ask whether a photograph or video has been doctored "in some way," to emphasize certain details or subdue others. Photoshopping or eliminating images from photos or videos is a common art form now practiced by people on laptops with current software throughout society, especially with digitally recorded images.

Elements within an image can be fabricated, enhanced, distorted, shifted, cloned, erased or transferred quite easily, without a trace. The images can be "brightened up" or "darkened" with a turn of a knob, defying detection or scientific scrutiny. The camera never lies, or so it used to be.

Continue reading "Experts At Issue In Brain-Damaged Sacramento Woman's Accident Case, Part 6 of 8" »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this brain injury/car accident case and its proceedings.)

Evidence Code § 402 allows the Court to hear and determine the question of the admissibility of evidence outside the presence or hearing of the jury. See, Mike v. Atchison, Topeka & Santa Fe Ry. Co. (1975) Cal.App.3d 436, 448. In addition to excluding highly prejudicial evidence, the Court may instruct opposing counsel to avoid mention of the evidence in question during trial or in argument to the jury; and to direct persons under their control (counsel's associates, clients, witnesses, etc.) likewise to avoid such mention. L.A. Sup.Ct. Rule 8.92; see, Grimshaw v. Ford Motor Co. (1981) 119 Cal.App.3d 757, 793, 174 Cal.Rptr. 348, 371.

Expert opinions are not proper when offered by a lay witness. Evidence Code § 800. See, Jambazian v. Borden (1994) 25 Cal.App.4th 836, 848. Examples of inadmissible lay opinion evidence include testimony on causation [Stickel v. San Diego Elec. Ry. Co. (1948) 32 Cal.2d 157, 165], legal conclusions [Osborn v. Mission Ready Mix (1990) 224 Cal.App.3d 104, 113-144] and matters beyond common experience [People v. Williams (1992) 3 cal.App.4th 1326, 1332-33].

This would include a statement by Black that the video or photographs of the auto collision "fairly and accurately depicted" what he saw that night, because they cannot. They do not substantially replicate the field of vision he had, where his focus was, or the lighting condition his eyes would have received. If allowed, through a witness or an expert, such evidence would be totally unfair to the brain-damaged plaintiff.

Continue reading "Jury Awards Huge Damages To Brain-Damaged Sacramento Woman After Collision, Part 5 of 8" »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this brain injury/car accident case and its proceedings.)

THIS MOTION SEEKS TO EXCLUDE TESTIMONY WHICH WOULD MISELEAD THE JURY. THE VIEOS AND ANIMATIONS AND NIGHTTIME PHOTOGRAPHY THE DEFENSE AND THEIR EXPERTS HAVE CONJURED UP IS NOT SUBSTANTIALLY SIMILAR TO THE CONDITIONS ON THE NIGHT IN QUESTION, IS HIGHLY PREJUDICIAL, IS GROSSLY MISLEADING, AND LACKS FOUNDATION. IT MUST BE EXCLUDED

The Court has inherent power to grant a motion in limine to exclude "any kind of evidence" which could be objected to at trial, either as irrelevant or subject to discretionary exclusion as unduly prejudicial. Clemens v. American Warranty Corp. (1987) 193 Cal.App.3d 444, 451; Peat, Marwick, Mitchell and Co. v. Superior Court (1988) 200 Cal.App.3d 272, 288. Evidence Code § 350 states that "(n)o evidence is admissible except relevant evidence."

ONLY RELEVANT EVIDENCE IS ADMISSIBLE

This Court must act in limine to exclude improper evidence to ensure a fair trial in this brain injury case.

Evidence Code § 352 states the court may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury. A number of courts have approved of the use of Section 352 to exclude prejudicial, wasteful or confusing evidence. See, People v. Cardenas (1982) 31 Cal.3d 897, 904 (prejudicial evidence); People v. Sanders (1995) 11 Cal.App.4th 475, 514 (undue consumption of time); People v. Wagner(1982) 138 Cal.App.3d 473, 481 (jury confusion).
(See Part 5 of 8.)

Continue reading "Sacramento Car Accident Victim Sues City For Her Brain Damage, Part 4 of 8" »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this brain injury/car accident case and its proceedings.)

Ella Lee has been fully evaluated by many top independent medical experts to assess her brain injury, and has had a Life Care Plan assembled with the help of these experts by Patti Green, a highly respected life care planner. The future medical care costs for Ella Lee are in excess of $8,750,000. Her past medical bills are in excess of $430,000.

The defense experts estimate the cost of future care to be in the area of $5,000,000, but they have provided no life care plan through their experts. Instead, the defense takes the position that maybe Ella Lee is faking, and is a malingerer. However, their best expert on the subject acknowledges that her condition is just as likely to be quite real, and severe brain injury patients like Ella Lee often cannot control their emotions and make sense as accurate historians. Given Ella Lee's pre-existing condition with mental illness, as a result of the new and devastating overlay of significant brain trauma, she know non-functional and requires the help the experts contend is needed.

To sum up the case which will be presented at trial, Ella Lee is seeking economic damages only. She will prove that the auto accident is the fault, in whole or in part, of Sacramento Police Officer Paul Black. Therefore, he is jointly and severally responsible for her economic damages. The City of Sacramento will contend the accident was completely the fault of Mr. Choo, and further will contend that Plaintiff's injuries and economic damages claimed are overstated and not credible. Mr. Choo will contend, like Plaintiff, that the accident is in whole or in part the fault of S.P.D. Officer Paul Black. No one contends that Ella Lee is at all responsible for the accident or her damages. She was blame-free, stopped behind the Choo vehicle, minding her own business when the crash occurred.

Continue reading "Sacramento Woman Suffers Catastrophic Brain Trauma After Collision With Police Officer, Part 3 of 8" »