Laccetti v. Ellis

NOTICE: All slip opinions and orders are subject to formal
revision and are superseded by the advance sheets and bound
volumes of the Official Reports. If you find a typographical
error or other formal error, please notify the Reporter of
Decisions, Supreme Judicial Court, John Adams Courthouse, 1
Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-
1030; SJCReporter@sjc.state.ma.us

22-P-466 Appeals Court

KRISTIANA LACCETTI vs. STEVEN G. ELLIS.1

No. 22-P-466.

Middlesex. December 8, 2022. - March 20, 2023.

Present: Milkey, Ditkoff, & Englander, JJ.

Motor Vehicle, Investigation of accident. Evidence, Photograph,
Expert opinion, Medical report, Admitted de bene. Witness,
Expert. Insurance, Motor vehicle personal injury
protection benefits.

Civil action commenced in the Superior Court Department on
December 12, 2017.

The case was tried before David A. Deakin, J., and a motion
to alter or amend the judgment was considered by him.

Jeffrey Simons for the plaintiff.
Douglas L. Price (Stephen Ryan also present) for the
defendant.

1 During the pendency of the Superior Court action, the
defendant changed his last name from Alexandredacosta to Ellis.
At trial, on the joint motion of the parties, the trial judge
recaptioned the case to reflect the defendant's new legal name.
2

DITKOFF, J. The plaintiff, Kristiana Laccetti, appeals

from an amended judgment after a jury trial in the Superior

Court awarding her only $2,000 in damages for personal injuries

sustained in a motor vehicle accident. We conclude that, even

in the absence of expert testimony, the extent of property

damage resulting from a motor vehicle collision is relevant to

the likelihood and degree of personal injury. With that

understanding, we conclude that the judge acted within his

discretion in admitting photographs of the damaged vehicles at

trial and in allowing defense counsel to argue a correlation

between the property damage from the collision and personal

injuries sustained by the plaintiff. Further concluding that

that the plaintiff's additional arguments were not properly

preserved, we affirm.

1. Background. a. The accident. On May 21, 2015, at

approximately 8:30 P.M., the plaintiff, approximately twenty-

four years old, was traveling on Storrow Drive when another

vehicle (not driven by the defendant) abruptly cut in front of

her and stopped, forcing the plaintiff to slam on her brakes.2

2 Our description of the accident is hindered by the limited
record on appeal provided by the appellant. We have been
provided with only five of the fourteen exhibits, and notably
have not been provided with the plaintiff's medical records or
medical bills. We are also missing all of the plaintiff's
testimony on direct examination and most of the plaintiff's
testimony on cross-examination, most of the medical expert's
testimony, the plaintiff's closing argument, and the jury
3

In response, the defendant, who was traveling behind the

plaintiff at the time, slammed on his brakes but nonetheless

rear-ended the plaintiff. The parties exited their vehicles to

assess the damage and called 911.

At trial, the parties offered different descriptions of how

the accident unfolded. The plaintiff testified that the

defendant rear-ended her before she made contact with the

vehicle in front of her. Although she did not know how fast the

defendant was traveling before the accident, the plaintiff

testified that the defendant rear-ended her vehicle with enough

force to push her into the vehicle in front of her. The

plaintiff did not characterize the accident as minor and

testified that her vehicle sustained a moderate amount of damage

from the collision. The plaintiff testified that she suffered a

concussion, a neck injury, an increase in migraine headaches,

and an exacerbated back injury as a result of the accident.

By contrast, the defendant testified that he was driving

twenty-five miles per hour in "very heavy" traffic on Storrow

Drive when he first observed the plaintiff's vehicle, which was

also traveling that same speed. He testified that there was

approximately a one- to two-vehicle distance between the front

instructions after closing argument. See Ravasizadeh v.
Niakosari, 94 Mass. App. Ct. 123, 126 n.10 (2018) ("it is the
appellant's burden to produce a full record on appeal").
4

of the defendant's vehicle and the back of the plaintiff's

vehicle. The defendant testified that he observed the plaintiff

hit the vehicle in front of her before he slammed on the brakes

and rear-ended the plaintiff. The defendant testified that, at

the time of impact, he was traveling no more than ten miles per

hour.

In any event, as the parties waited for police and

emergency medical services to arrive on scene, the plaintiff and

the defendant briefly confronted the driver who made the erratic

lane change. Shortly thereafter, that driver fled the scene and

was not identified. Emergency medical personnel arrived on

scene to evaluate the plaintiff, and she was transported by

ambulance to Massachusetts General Hospital. In the months and

years after the accident, the plaintiff received various medical

treatments, including by a neurologist for headaches and

cognitive difficulties, a chiropractor, multiple physical

therapists, and multiple types of doctors for chronic neck and

back pain and worsening migraines.

Whether these various medical conditions were preexisting

or were caused or exacerbated by the accident was highly

contested at trial. The defendant's expert apparently opined

that the plaintiff had preexisting migraines and lumbar spine

disease that were neither caused by nor exacerbated by the

accident. In comparing magnetic resonance images (MRI) of the
5

plaintiff's lumbar spine after the accident to MRIs of her

lumbar spine before the accident, the medical expert testified

that they were "very similar."3 The medical expert testified

that, as a result of the accident, the plaintiff did not suffer

a concussion or post-concussive syndrome and that, "at most, in

[his] opinion, she suffered a mild neck sprain." He further

testified that the plaintiff's exacerbated migraine headaches

and back pain were not necessarily related to the accident.

b. Procedural background. In December 2017, the plaintiff

sued the defendant for negligently rear-ending her, seeking

damages for her out-of-pocket medical expenses, lost wages,

diminished earning capacity, pain and suffering, and emotional

distress.4 The plaintiff's civil action cover sheet suggests

that she was seeking damages in the neighborhood of $350,000.5

Prior to trial, the plaintiff filed a motion in limine to

preclude references to or photographs of the property damage

caused by the collision. Photographs of the plaintiff's vehicle

depicted a dented bumper and trunk and a slightly dented license

3 These images were admitted at trial.

4 She also alleged negligent infliction of emotional
distress, but the parties stipulated to the dismissal with
prejudice of that count.

5 Because the plaintiff's closing argument was not
transcribed, we do not know what damages were argued to the
jury.
6

plate. Photographs of the defendant's vehicle depicted a

cracked grille with the vehicle's hood slightly popped up.6

At the hearing on the motion in limine, the parties

disagreed on whether these photographs of the damaged vehicles

could be admitted at trial and the extent to which defense

counsel could argue a correlation existed between property

damage from the motor vehicle accident and personal injuries

sustained by the plaintiff. After the hearing, the judge denied

the plaintiff's motion and in a margin endorsement limited what

defense counsel could argue at trial. The judge ruled that

"[d]efense counsel may argue that serious injury is more likely

the more serious the collision but may not argue that serious

injury is unlikely to result [from] less serious collisions."7

At trial, the plaintiff objected to the admission of the

photographs. Similarly, during the plaintiff's cross-

examination, the plaintiff's counsel objected to a description

of the property damage sustained by the plaintiff's vehicle in

the collision.

The jury found that the defendant negligently injured the

plaintiff and awarded her $10,000 in damages. Following the

6 We have been provided with only five of the nine
photographs that were ultimately admitted in evidence.

7 The defendant does not challenge the trial judge's ruling
as being too restrictive. Accordingly, we do not reach this
question.
7

return of the verdict and entry of judgment, the defendant filed

a motion to amend the judgment. Consistent with G. L. c. 90,

§ 34M, the trial judge reduced the plaintiff's damage award by

the $8,000 she received as personal injury protection insurance

benefits.8 This appeal followed.

2. Admission of the photographs. "Evidence is relevant if

(a) it has any tendency to make a fact more or less probable

than it would be without the evidence and (b) the fact is of

consequence in determining the action." Laramie v. Philip

Morris USA Inc., 488 Mass. 399, 412 (2021), quoting Mass. G.

Evid. § 401 (2021). "A trial judge has 'substantial discretion

to decide whether evidence is relevant.'" Commonwealth v.

Mason, 485 Mass. 520, 533 (2020), quoting Commonwealth v.

Scesny, 472 Mass. 185, 199 (2015). On appeal, we review the

"admissibility of photographic evidence" for an abuse of

discretion. Commonwealth v. Huang, 87 Mass. App. Ct. 65, 77

(2015), quoting Commonwealth v. Tassinari, 466 Mass. 340, 349

(2013).

Here, the judge acted within his discretion in admitting

photographs of the damaged vehicles because they were relevant

to the extent of the plaintiff's personal injuries sustained in

the collision. See Mason v. Lynch, 388 Md. 37, 53 (2005) (judge

8 The plaintiff raises no challenge on appeal to this
reduction.
8

has discretion to admit "photographs and testimony, showing or

describing vehicular damage or the nature of the impact, [that]

are relevant with respect to the personal injuries suffered in a

motor vehicle accident"). Photographs of the plaintiff's

vehicle depict minimal front-end damage and slight rear-end

damage, and photographs of the defendant's vehicle depict

minimal front-end damage. These photographs were relevant to

assist the jury in determining the extent of the plaintiff's

injuries and whether her ongoing medical issues were a likely

result of the accident or of preexisting conditions. See Flores

v. Gutierrez, 951 N.E.2d 632, 638 (Ind. Ct. App. 2011)

(photograph depicting "damage, or lack thereof, to [plaintiff]'s

vehicle had some tendency to prove or disprove facts relating to

his personal injury claim"). Given that there was no dispute as

to the authenticity of the photographs and no dispute that the

defendant rear-ended the plaintiff, the photographs "depict[ing]

the condition of the rear of plaintiff's car -- the place where

her car was struck by defendant's car" were particularly

relevant. Brenman v. Demello, 191 N.J. 18, 34 (2007).9

9 The photographs were likely relevant for other purposes,
such as assisting the jury with determining the credibility of
witnesses, the speed of the collision, and the order of contact
between the vehicles involved in the collision. See Davis v.
Maute, 770 A.2d 36, 41 (Del. 2001) ("photographs of the
plaintiff's car could conceivably serve some valid purpose other
than supporting the minimal damage/minimal injury inference").
9

It is not contested -- and indeed, is undeniable -- that it

is possible for an automobile accident that results in minor

vehicle damage nevertheless to cause serious physical injury.

Likewise, it is undeniable that an automobile accident that

results in major vehicle damage may not cause serious physical

injury. On appeal, the plaintiff presents several purported

studies (not presented to the trial judge) suggesting that the

relationship between vehicle damage and the likelihood of

serious physical injury is complicated and is not a direct

correlation. The plaintiff then argues that it "is not true

that severe injuries are more likely in severe accidents and

less likely in less severe accidents," and that the topic

"requires expert testimony to guide the jury on their

consideration of the issue at trial." Accordingly, the

plaintiff argues that the photographs showing minor vehicular

damage must be excluded, in the absence of expert testimony.

We disagree with this reasoning. We acknowledge that

Delaware adopted this rule on the ground that "any inference by

the jury that minimal damage to the plaintiff's car translates

into minimal personal injuries to the plaintiff would

necessarily amount to unguided speculation." Davis v. Maute,

770 A.2d 36, 40 (Del. 2001). Accord Dunn v. Riley, 864 A.2d

In light of our holding, however, we need not reach this
question.
10

905, 908 (Del. 2004). A few years later, however, the Delaware

Supreme Court retreated somewhat, stating that "Davis should not

be construed broadly to require expert testimony in every case

in order for jurors to be permitted to view photographs of

vehicles involved in an accident" and that "Davis should be

limited to its facts, recognizing that there may be many helpful

purposes for admitting photographs of the vehicles involved in

an accident where those purposes do not require supporting

expert opinion." Eskin v. Carden, 842 A.2d 1222, 1233 (Del.

2004). The Delaware courts have not since returned to this

issue in published opinions.

Whatever the state of Delaware law is, the rule set forth

in Davis has not been followed in other States. Rather, most

courts believe that "a jury is ordinarily quite capable of

correlating outward appearance of damage with likelihood and

extent of injury." Christ v. Schwartz, 2 Cal. App. 5th 440, 450

(2016). As the Maryland Court of Appeals (now the Supreme Court

of Maryland) explained, "That there may be some automobile

accidents, in which very minor impacts lead to serious personal

injuries, and vice versa, does not mean that evidence concerning

the impact is irrelevant to the extent of the injuries.

Relevancy under the rule involves probabilities; complete

certainty is not ordinarily required." Mason, 388 Md. at 58.

Similarly, the New Jersey Supreme Court acknowledged the
11

existence of "those instances where slight force causes grave

injury," but held that "there is a relationship between the

force of impact and the resultant injury, and the extent of that

relationship remains in the province of the factfinder."

Brenman, 191 N.J. at 32. Indeed, "the majority of state courts

. . . have held that the admission of photographs of vehicles

involved in a collision without supporting expert testimony is

within the trial judge's discretion." Christ, supra at 448.

See Marron v. Stromstad, 123 P.3d 992, 1009 (Alaska 2005)

(rejecting "the rigid approach represented by [Davis]"); Flores,

951 N.E.2d at 639 (judge acted within discretion in admitting

photographs given "the commonsense relationship between property

damage and personal injury"); Rish v. Simao, 132 Nev. 189, 195-

196 (2016) (rejecting proposition "that supporting testimony

from a certified biomechanical engineer or other expert must be

offered before a defendant will be allowed to present a low-

impact defense"); Accetta v. Provencal, 962 A.2d 56, 62 (R.I.

2009) ("declin[ing] to adopt a rule that would require expert

testimony to accompany admission into evidence of photographs of

vehicles that have been involved in a motor vehicle accident");

Corriette v. Morales, 50 V.I. 202, 209 (2008) ("photographs

showing damage to a plaintiff's vehicle are relevant to the

nature and extent of a plaintiff's personal injuries, even where
12

property damage is no longer an issue in the case" [footnote

omitted]).

We agree with the majority rule. "[T]here is a

relationship between the force of impact and the resultant

injury, and the extent of that relationship remains in the

province of the factfinder." Brenman, 191 N.J. at 32. It does

not follow from the undeniable fact that an accident can result

in minor vehicular damage and serious physical injury that the

extent of the vehicular damage is irrelevant to the extent and

likelihood of physical injury. To the contrary, in the ordinary

run of cases, a jury is free to accept (or, for that matter, to

reject) the commonsense notion that more vehicular damage from a

collision makes serious physical injury more likely. Of course,

the plaintiff was "free to offer expert proofs for the purpose

of showing that there [was] no relationship between the extent

of the damage and the cause and severity of the resulting

injuries." Id. at 21. Such expert testimony, however, was not

required, either to make that argument or to make the contrary

argument. See Flores, 951 N.E.2d at 638 (plaintiff declined to

present expert testimony). Accordingly, the judge acted within

his discretion in admitting photographs of the damaged vehicles

and in allowing defense counsel to argue that there could be a

relationship between the vehicular damage and the personal

injuries sustained by the plaintiff.
13

3. Other contentions. The plaintiff's remaining arguments

were not preserved on appeal, at least on the limited record

provided to us. See Weiner v. Commerce Ins. Co., 78 Mass. App.

Ct. 563, 568 (2011) (issues not raised in trial court are

waived). In denying the plaintiff's motion in limine, the judge

expressly limited the scope of what defense counsel could argue

at trial. On appeal, the plaintiff asserts that defense counsel

exceeded this limitation by effectively arguing that minor

accidents cannot cause serious personal injury. Although the

judge's order did not allow this line of argument, the

transcript provided contains no objection to defense counsel's

opening statement or closing argument. Accordingly, this issue

is not before us. See Aleo v. SLB Toys USA, Inc., 466 Mass.

398, 406 n.14 (2013).

The same problem adheres to the plaintiff's challenge to

the defendant's medical expert's testimony. The expert

testified that, in his experience, high velocity accidents are

more likely to result in whiplash "[a]nd lesser degrees as low

velocity accidents are minimal damage to cars." When the

plaintiff objected, the trial judge noted that the defendant had

not yet laid a proper foundation for this opinion but "allow[ed]

the answer right now to stand de bene subject to a motion to

strike if you're not able to establish the proper foundation."

At least on the limited record before us, the plaintiff never
14

moved to strike or otherwise alerted the trial judge that she

felt that the foundation was not laid. Where evidence is

admitted de bene subject to a motion to strike and "the [party]

failed to renew [the] motion to strike," the party "must

therefore be held to have waived any rights to have the evidence

struck." Wilborg v. Denzell, 359 Mass. 279, 283 (1971). Accord

Conway v. Planet Fitness Holdings, LLC, 101 Mass. App. Ct. 89,

101 (2022), quoting Hoffman v. Houghton Chem. Corp., 434 Mass.

624, 639 (2001) ("The consequence of the failure properly to

object at trial is to waive the issue on appeal"). Accordingly,

this issue, as well, is waived.

Amended judgment affirmed.