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.

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.

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.

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.

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.)

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.

Choo froze, bringing his vehicle to a stop as it straddled the #2 lane (slow lane) on the Highway 160 westbound, directly in the path of travel of Officer Black. Black then slammed on the brakes and tried to steer away from the vehicle in his path by turning his wheel to the right, skidding. He left two skid marks which are parallel, consistent with a braking skid, and inconsistent with a simple steer (yaw) as the City's expert contends occurred.

In any event, Black swerved and braked to avoid Choo' s Malibu and he slammed directly into the side of Ms. Lee's 1992 Toyota Camry. The impact was so severe, it crushed the vehicle to the midline of the occupant compartment when she was hit at 30-40 m.p.h. at impact. Only five inches of metal on the side of her vehicle stood between her and the oncoming battering ram of the front end of the police vehicle.

As a result of the impact severity, Ms. Lee was knocked to the other side of the vehicle, despite her use of the passive restraint system within the vehicle. She was rendered unconscious and was in a coma for many days following the crash. She suffered a severe brain injury, cracked hip bones, a cracked skull and subdural hematoma, large lacerations on her head, a ruptured spleen, and many other related serious and life threatening injuries.

Plaintiff offers the following Motion in Limine No. 3, regarding the following topics:
Expert witnesses for the defense trying to offer and discuss wholly misleading and not substantially similar:
(1) night-time photographs;
(2) night-time videos;
(3) animations.

Under the Evidence Code and California case law, it is clear that these topics should not be addressed by any witness at the time of trial of this brain injury case.

MEMORANDUM OF POINTS & AUTHORITIES

STATEMENT OF THE CASE

On September 9, 2005, a completely avoidable high-speed collision occurred on Highway 160 at the intersection of Royal Oaks Avenue shortly before midnight between two vehicles. Sacramento Police Officer Paul Black was rocketing down the road, eastbound, with two county probation officers in his vehicle, returning from a police matter in Roseville.

Black was either heading back to the S.P.D. station where he worked, or was responding to an officer-involved shooting matter in that general direction at 57th Street. He was not authorized to be speeding, and he testified he had no right to be doing so. According to Black, he was not driving in any emergency fashion. Therefore, it is undisputed that he had, at all times relevant, an obligation to adhere to the same rules of the road as a motor vehicle operator as any other citizen.

Archie weighed approximately 125 lbs at the time of the incident and after being discharged from the hospital dropped to a mere 95 lbs. Archie was a ghost of his prior self. Archie suffers from post-traumatic stress and depression and was diagnosed with anorexia. Even the defense neuropsychologist Sian Green agrees that Archie 's anorexia was caused by the incident. Archie lost a significant amount of muscle mass, is fatigued easily, has lost stamina and overall energy, feels physically weak and is not the same person he was before the incident.

Due in large measure to the traumatic brain injury, Archie 's personality has changed. He has lost spontaneity, is very fretful, overly apologetic, more irritable and less animated. Archie is a shadow of his former self; he does not engage with the world like he did before the incident in terms of what he is willing to undertake, his intellectual ambition, his social ambition and his career ambition. Archie is more dependent on his family to take care of his daily needs. Archie is fearful and anxious; he is uncertain of his future and whether he will return to a state of independence, that of normal twenty three year old male, which he would have had, but for defendant's negligence.

Anorexia is a life threatening illness and Archie will require future care and treatment for the remainder of his lifetime. (See Dr. Patt's report below.) Archie requires further psychiatric treatment that will exceed costs of $100,000. In light of his orthopedic injuries, plaintiff will never be able to walk or run as he used to before the incident. Archie 's hip has started to undergo arthritic changes and even the defense orthopedist agrees that Archie will indeed need two to three hip replacements in the future at $50,000 per surgery. (See Dr. Schwartz's deposition testimony below.) Archie 's future medical expenses will be in the several hundreds of thousands of dollars.

Here, defendant and two independent witnesses, Cathy and Frank Bennett, testified that defendant was stopped at the stop sign. Therefore, Archie, who was lawfully riding his bicycle in the bike lane of San Vicente Boulevard, would have observed that defendant was stopped and had a right to assume that she would stay stopped as he passed directly in front of her. Defendant had a duty to obey the stop sign and Archie had a right to assume that defendant would carry out her duty and obey the stop sign and not enter the intersection until it was safe to do so. Accordingly, there can be no comparative fault as a matter of law.

Further, defendants' argument that plaintiff could have averted the incident is completely without merit. Defendant's BMW accelerates much faster than Archie pedaling on his bicycle and the impact occurred when Archie was directly in front of defendant's BMW. Thus, in the moments before the impact, Archie was almost in front of defendant's vehicle. Based on the speed that the BMW was accelerating, Archie did not have enough time to react and take action to avoid the collision. This incident is unquestionably 100% defendants' fault.

INJURIES AND DAMAGES

Archie suffered severe and life threatening injuries and extensive damages as a result of defendant's negligence. Archie suffered a litany of devastating injuries. Archie 's right femur was pushed through the pelvic bone causing a right acetabular fracture and dislocation of the hip. Archie suffered pelvic fractures, a ruptured bladder, rib fractures, moderate brain injury with subdural hematoma and seizure, memory loss, nerve damage and significant soft tissue bruising and abrasions. Archie 's doctors told his family that they were not sure if they could save him.

Several witnesses, observing that Archie was underneath the SUV screamed at defendant to stop. Defendant, completely oblivious as to what was happening, continued on and did not stop until more than 20 feet later. Archie was pummeled against the asphalt as his body was propelled underneath the SUV all the way from the bike lane to the second lane of eastbound traffic on San Vicente Boulevard. When defendant's SUV finally came to rest, the rear wheel pinned Archie to the ground. Again oblivious, witnesses had to get the defendant's attention to reverse the SUV so that they could attend to Archie. (See deposition testimony of Cathy and Frank Bennett below.) Archie suffered massive injuries, including traumatic brain injury.

The Santa Monica Police Department determined that defendant caused the accident by failing to yield to Archie who was lawfully traveling in the bike lane at the time of the incident in contravention of Vehicle Code Section 21802 (a).

LIABILITY

Defendants do not dispute liability.

PLAINTIFF WAS NOT COMPARATIVELY AT FAULT, THEREFORE DEFENDANTS ARE 100% RESPONSIBLE FOR HIS CATASTROPHIC INJURIES AND DAMAGES

Although it may be negligence where the injured party fails to discover the danger by neglecting to look or by looking ahead without glancing to either side, the rule does not apply in situations where there is reasonable reliance on another's duty of care.

PLAINTIFF’S TRIAL BRIEF

STATEMENT OF FACTS

November 28, 2003, was Sunday of Thanksgiving weekend. Plaintiff Archie Smith, a Sacramento resident, was twenty-one years of age and was on a break from his studies as a math major at Princeton University. The weather was clear and sunny so Archie and friend Miranda Brown decided to go for a bike ride to the beach. The pair started near Veteran Avenue in Santa Monica, rode to Ocean Boulevard along the beach and then turned east on San Vicente Boulevard back towards Miranda’s home.

Defendant Sabrina Black, aged 60, had been to the manicurist, purchased holiday greeting cards and was driving her BMW X-5 SUV northbound on 11th Street on route to her home in Westwood. At approximately 2:15 p.m., defendant approached the stop sign at the intersection of 11th Street and San Vicente and intended to proceed across the intersection to the center median, where there is a break in the road for vehicles to make turns, and then turn left onto San Vicente Boulevard. Defendant stopped at the stop sign but failed to see Archie who was riding eastbound on San Vicente Boulevard in the bike lane directly in front of her at the time of impact. Defendant accelerated to make her way towards the center median and struck Archie.

The point of impact was within the bike lane. The front of defendant's SUV struck Archie 's right hip and the middle of the hood of the SUV impacted the bicycle's handlebars. After impact, Archie 's bicycle was knocked to the ground in front of defendant's SUV. Instead of immediately stopping upon feeling the impact, defendant continued to drive forward, ran over Archie with the left front tire of the SUV, and continued to drag him and his bicycle on the asphalt underneath the vehicle for more than twenty feet. (See Part 2 of 4.)

GENERAL DAMAGES
As a result of his injuries Paul has experienced severe pain and suffering and emotional distress. Paul was nearly killed on the scene as he suffered a severe skull fracture and brain hemorrhage, multiple broken ribs, spleen and liver lacerations, internal bleeding, and collapsed lung. Paul endured nine days in critical care, and continued to have pain and suffering well into his recovery. Paul continues to have complaints of periodic headaches and pains in the area where he fractured multiple ribs. The large scar on his head, and facial palsy further add to the suffering experienced by this young man after the automobile collision.

As a result of his brain injury, Paul has lost all motivation and shows signs of depression and anger. Paul often sleeps throughout an entire day, and it is frequently difficult for him to pull himself out of bed. Prior to the collision, Paul was an energetic, enthusiastic, and kind young boy. Now, he does not express himself, does not communicate well with others, and becomes angry and frustrated very easily. In short, Paul has become a different person all together.

As a 14-year-old with a brain injury, Paul's social development has been stunted. For the most part, Paul has been in homeschool programs since the collision which have further contributed to this isolation. Paul's prime years of high-school have been taken away from him, and he will never be able to make up this lost ground.

DAMAGES
As discussed above, Paul Martin suffered severe personal injuries as a result of the collision. Paul suffered a severe skull fracture, brain hemorrhage, collapsed lung, fractured pelvis, multiple fractured ribs, liver laceration, and spleen contusion and laceration. Paul nearly died on the scene after he became unresponsive and could not be intubated due to his locked jaw. The 14-year-old was air-lifted and spent nine days in critical care at University Hospital.

PAST MEDICAL EXPENSES
Mercy Air: $8,031.50

ABC Ambulance: $ 1,089.03

Valley Regional: $49,941.17

University: $ 70,752.47

Outpatient Rehab. $ 5,000.00

TOTAL $134,814.00

FUTURE MEDICAL EXPENSES & SERVICES
Paul has been diagnosed with a moderate to severe traumatic brain injury. Paul's treating physicians have recommended that he be placed in a specially designed educational learning program for children with brain injuries. Paul will need extended schooling through the age of 22 based on his condition.

Paul will require treatment in a residential neurobehavioral program to cope with his damaged motor skills.

Due to his brain injury and inability to properly care for himself, Paul will require long-term supported living after completion of school.

The investigation performed by the Gas Company's experts confirmed that the speed of Mr. Brown's Ford F-150 was 50.7 to 60.3 miles per hour. This report, prepared by Dr. Kevin Fish of the Institute of Risk and Safety Analyses, further states "We found no evidence that the traffic signals were not properly functioning at the time the subject collision occurred." The report concludes It is clearly evident that Mr. Brown caused the subject collision by violating California Vehicle Code § 21453, failure to stop for a steady circular red signal.

Although the Gas Company has not formally accepted responsibility for causing this collision, Brown could not deny fault when pressed at deposition.
Q: Do you admit that you are at fault for this accident?
A: Yes. (Whitely deposition.)

SHERRIE MARTIN CANNOT BE APPORTIONED ANY RESPONSIBILITY FOR CAUSING THE SUBJECT COLLISION

The single eye-witness to the collision, Mr. Walkup, confirmed in his statement to the California Highway Patrol that Brown was completely at fault in causing the collision. Mr. Walkup stated that he was driving his vehicle northbound on White Road and was stopped at SR-40 waiting for his light to change. He observed the Martin vehicle stopped in the westbound left turn lane and after the signal cycled, she began a normal left hand turn. Mr. Walkup stated that the Martins were in a normal turn and were not in a hurry, and that Brown "came out of nowhere eastbound on SR-40, ran the red light and collided with the Martins."