Opinion
4:10-cv-136-WGH-TWP
10-16-2012
PAULA M. WALLER, Plaintiff, v. WAL-MART TRANSPORTATION, LLC and DAVID M. CLEMENTS, Defendants.
ORDER ON MOTION TO EXCLUDE EVIDENCE
OF THE DAMAGE, OR LACK THEREOF, TO
THE VEHICLES INVOLVED IN THE WRECK
This matter is before the Honorable William G. Hussmann, Jr., United States Magistrate Judge, on Plaintiff's Motion to Exclude Evidence of the Damage, or Lack Thereof, to the Vehicles Involved in the Wreck filed on June 20, 2012. (Docket No. 31). Defendants' Brief in Opposition was filed on June 28, 2012. (Docket No. 33). No reply brief has been filed.
The Magistrate Judge, being duly advised, hereby DENIES the motion.
As specified in Defendants' Brief In Opposition, the overwhelming weight of authority, including case law in Indiana, holds that evidence showing minimal or no damage to accident vehicles is relevant and probative to the question of physical harm allegedly caused to the plaintiff. See, specifically, Flores v. Gutierrez, 951 N.E.2d 632, 638 (Ind.App., 2011). The Magistrate Judge concludes that the probative value of the photographs is not substantially outweighed by the danger of unfair prejudice. As the court has held in Flores, the nature and extent of the aggravation of a plaintiff's pre-existing back problem is not a matter purely within the medical realm requiring only expert testimony. The jury will be allowed to determine in this case whether the Plaintiff's subjective complaints of fact are credible based upon fact testimony, the Plaintiff's own description, the expert opinions of physicians, physical evidence, and their own everyday experiences and common sense. The weight to be afforded to these photographs and other testimony remains with the jurors.
Therefore, the Motion to Exclude Evidence is DENIED.
____________________
William G. Hussmann, Jr.
United States Magistrate Judge
Southern District of Indiana
Electronic copies to: Christopher M. Barry
CRAIG KELLEY & FAULTLESS
cbarry@ckflaw.com
David W. Craig
CRAIG KELLEY & FAULTLESS
dcraig@ckflaw.com
Scott Anthony Faultless
CRAIG KELLEY & FAULTLESS
sfaultless@ckflaw.com
Renea Elaine Hooper
SCOPELITIS GARVIN LIGHT
HANSON & FEARY PC
rhooper@scopelitis.com
Michael Brian Langford
SCOPELITIS GARVIN LIGHT
& HANSON
mlangford@scopelitis.com