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revision and are superseded by the advance sheets and bound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.