Scenario 1: Keep It Out

Ticket Issued To A Plaintiff

In seeking to exclude evidence of a traffic ticket, the starting point is the following principle of law: "In actions to recover for injuries sustained allegedly as a result of the negligent operation of a motor vehicle, evidence of prior criminal convictions for the same acts is generally excluded, either because of the often perfunctory nature of the 'criminal' proceedings in such cases ..., or because of traditional reasons as to variations in parties, procedures, and the like." Lepucki v. Lake County Sheriff's Dept., 801 N.E.2d 636 (Ind. Ct. App. 2003). In Lepucki, the plaintiff, Maria Lepucki and a police officer collided while the officer was on an emergency call. Another police officer investigated the crash and issued Maria a traffic citation for failure to yield to an emergency vehicle. Maria was found guilty of the Class C infraction at a criminal bench trial and was ordered to pay $1.00 plus court costs. The Lepuckis then filed a civil action against the Lake County Sheriff's Department, where the trial court allowed the investigating officer to testify to the fact that he issued the citation. Id. at 638.

The appellate court reversed holding that the admission of evidence pertaining to the citation was reversible error. Id. at 639. The court based its decision on two evidentiary principles, hearsay and undue prejudice. Regarding hearsay, the Lepucki court found that Maria's traffic infraction was not within the scope of IC § 34-39-3-1 or Ind. Evidence Rule 803(22) which provide exceptions to the hearsay rule for felony convictions. Id. Furthermore, the court found that the prejudicial effect of the citation outweighed its probative value, in violation of Ind. R. Evid. 403. The Lepucki court reasoned that the jury, provided with the applicable statute on failure to yield, was to consider the negligence of both parties and decide for themselves whether the plaintiff, in fact, failed to yield the right of way. Id. at 639-40.

Another avenue to pursue in excluding traffic tickets from trial is that such evidence involves impermissible opinion testimony. The defining principle on police officer's opinion testimony contained in police reports can be found in Lee v. Dickerson, 183 N.E.2d 615 (Ind. Ct. App. 1962): "[S]tatements contained in a report compiled by a police officer concerning the cause of or responsibility for an injury to the person or property are properly excluded from evidence on the basis that it constitutes an opinion or conclusion as distinguished from a statement of fact and/or that it represents statements made by someone else which were given to the investigating officer rather than the reporting officer's own personal observations." In other words, Indiana law provides that "facts" contained in a police report are admissible, but not conclusions or opinions. Dale v. Trent, 256 N.E.2d 402 (Ind. App. 1970). "Conclusions and opinions are not admissible because they invade the province of the jury or the court to make its own determinations." Id at 407. The portion of the police report concerning the contributing or primary cause of any motor vehicle crash are inadmissible. Specifically the statements provided by the witnesses which are hearsay. As such, any testimony proffered by a police officer as to fault must be excluded. See, Prange v. Martin, 629 N.E.2d 915 (Ind. App. 1970) (Court found that police officer's opinion on causation based solely on the account of drivers at scene of accident should not have been admitted, but because defense counsel did not object at trial, it was not a reversible error on appeal).

No Ticket Issued To A Defendant

Lastly, and just as dangerous to a plaintiff's case is a defendant's attempt to elicit testimony that a traffic citation was not given to the defendant. The danger here is that a jury may presume that the defendant did not do anything wrong if he was not given a ticket. While there is very little Indiana case law on this point, the principles mentioned above are just as applicable in the "non-ticket" situation. Other jurisdictions have dealt with the issue and reached results similar to Lepucki in the context of the inadmissibility of non-citation testimony. Brown v. Royalty, 535 F.2d 1024, 1028 (8th Cir. 1976). In Brown, there was a motion in limine granted concerning officer testimony of the fact that no traffic ticket was issued. Id. at 1026. Still, the defense counsel in Brown took advantage of every possible opportunity to suggest to the jury that, in fact, his client had not received a traffic ticket. Id. at 1028. The court found defense counsel's mere allusion to the fact that no traffic ticket was issued against his client to be prejudicial and worthy of granting a new trial. Id. Citing to and applying Brown's rationale, to a non-citation issue, the court in Cunningham v. Washington Gas Light Co., CIV. A. No. 86-2392, 1988 WL 90400, at *1 (D.D.C. August 11, 1988) held that "[t]he danger that a jury will accept a non-conviction as determinative outweighs any probative value that such evidence may hold." See also, Ingrum v. Tucson Yellow Cab Co., 642 P.2d 868, 872 (Ariz. App. 1981) ("The fact of citation or non-citation of a driver by the investigating law enforcement officer is inadmissible in an action for negligence."); Simpson v. Robinson, 361 A.2d. 387, 389 (Pa. Super. 1976) ("We conclude that it was error to admit into evidence testimony that defendant did not receive a traffic citation after the accident.").

In examining the case law concerning admissibility of traffic citations, it is apparent that more than one argument may be successful in excluding such evidence from trial. Hearsay, undue prejudice and impermissible opinion testimony are all valid issues to be raised in a motion in limine. Gauging the success of these arguments is dependent on the specific facts of a case. Facts may exist where it is difficult to keep this evidence out. Or perhaps the circumstance are such that the plaintiff wants to use a traffic citation against a defendant at trial, hence scenario 2.

Scenario 2: Let It In

You are now representing a client involved in an auto crash case on a foggy wet day where liability is hotly contested. The battle revolves around a "he said, she said" argument concerning who ran the stop sign, your client or the defendant? The investigating officer was on the scene just a few minutes after the collision, and while there were no eye witnesses, the officer took detailed measurements of the skid marks and the positions of the vehicles and concluded that it was the defendant driver who ran the stop sign. The defendant pleaded guilty to the citation issued by the officer and paid the appropriate fine. Now you want to introduce the traffic citation at trial and/or call the police officer to testify that in his opinion the defendant driver ran the stop sign. With your previous experience on how crucial this type of evidence can be in convincing the jury, you are sure that getting this into evidence can win the case.

So now the question is how does one get this evidence in front of the jury? The same issues of hearsay, undue prejudice, and opinion testimony are still in play, but in this scenario there are a couple of facts working to the plaintiff's advantage. First, regarding hearsay, is the fact that the defendant pleaded guilty to the citation and paid the fine. He did not plead nolo contendre, nor was he convicted at trial. Thus, the defendant has, in essence, made an admission that he ran the stop sign. Such a party admission against interest is not hearsay. The Lepucki court noted that had Maria admitted to the traffic citation, that fact would have been admissible as a statement by a party-opponent. Ind. Evid. R. 801(d)(2). Lepucki. 801 N.E.2d at 640, n.3. Thus, the distinction between checking the box no lo contendre, or guilty on a traffic citation may decide whether the ticket is or isn't admissible. In this scenario, it is not hearsay and may come into evidence.

Even if the traffic ticket is not hearsay, there is still the issue of whether its admission into evidence violates Ind. R. Evid. 403. A court could still find that the probative value of admitting the ticket into evidence is outweighed by the prejudicial effect it will have on the defendant. A court's application of Rule 403 is certainly a discretionary call, and opinions cut both ways on this issue. Still, an argument can be made that the defendant in this scenario is not unduly prejudiced. While a citation for failure to yield may give rise to negligence per se, it does not equal liability per se. Pontious v. Littleton, 255 N.E.2d 684, 690 (Ind.Ct.App. 1970). The Pontious court held that a failure to yield the right-of-way does not make a party liable per se. "[S]uch a party may rebut the prima facie evidence of negligence by presenting evidence that his acts were the acts of a reasonably prudent man under the same or like circumstances and further to place liability on the party violating the statute his violation of the statute must be shown to be the sole proximate cause of the collision or of his own injuries, and under which condition he could not recover." Id.; see also Osterloo v. Wallar ex rel. Wallar, 758 N.E.2d 59, 62-63 (Ind.Ct.App. 2001). Here, the defendant can claim that he acted reasonably under the foggy conditions which limited visibility at the time of the crash. Additionally, the defendant can claim that even if he did run the stop sign the plaintiff has a duty to slow down in the foggy and wet weather conditions and that the defendant's negligence is not the sole proximate cause of the accident. Nevertheless, when it comes to Rule 403, each case is unique with the question of unfair prejudice somewhat of a wild card.

What if the judge rules that the traffic citation in this situation is hearsay and/or violates Rule 403? The plaintiff may still be able to accomplish the same objective through opinion testimony offered by the police officer. Before the police officer's opinion on who was at fault can come into evidence, he must be qualified as an expert. Witte v. Mundy ex rel. Mundy, 820 N.E.2d 128, 135 (Ind. 2005). Whether a police officer is an "expert" is a wide open question. A police officer who has years of experience in handling auto crashes and filled out thousands of police reports may have enough experience to render the officer an expert. Still more helpful is if the officer has had some training in accident reconstruction. Koziol v. Vojvoda, 662 N.E.2d 985, 990 (Ind.Ct.App. 1996). For an officer's opinions to be admissible it generally must be based on something more than just witness statements. In Koziol, in addition to speaking with the parties, the officer examined the lighting conditions in the area, completed a thorough accident report, observed the intersection and then based on the grade of the roadway and other factors, formed the opinion that the defendant was at fault. Id. at 991. Therefore, in this scenario it is helpful that shortly after the collision the officer took measurements and made detailed observations about the position of the vehicles. Despite the ambiguity of qualifying an officer as an expert, if the officer does qualify as an expert, he can provide opinions as to the ultimate issue of fact before the jury. "Evid. Rule 704(a) provides that testimony in the form of an opinion or inference otherwise admissible is not objectionable merely because it embraces an ultimate issue to be decided by the trier of fact." Id. at 990. Depending upon the experience and training of the officer, a judge may be inclined to let his opinion on fault come into evidence.

Indianapolis in particular, nicknamed the "Crossroads of America", is a major hub for cross-country freeway traffic, with trucks heading north, south, east, west and all points of the compass on Interstates 65, 69, 70 and 74. In 2006 there were well over 1,600 injuries caused by truck crashes in Indiana, including 140 fatalities.

Injuries and the subsequent recovery periods from truck accidents involving small vehicles can also be far more serious than small vehicle accidents for a number of reasons, primarily from the fact that a loaded semi can weigh up to 40 tons. Also, such accidents often occur at a high rate of speed, trucks and semi tractor-trailers are harder to control in bad weather and they have large blind spots. Any and all of these factors can lead to serious accidents.

The FDA sent a warning letter to Bayer in August 2008 demanding a campaign to correct misleading direct to consumer marketing which had been promoting the use of YAZ for conditions other than those for which it had obtained FDA approval. YAZ had been approved for birth control, for women who suffered from premenstrual dysphoric disorder PMDD (a markedly depressed mood, anxiety or tension affective lability and persistent anger or irritability) and for the treatment of moderate acne vulgaris in women who also desire pregnancy prevention. The advertising in question seemed to give the message that YAZ was indicated for PMS ( a much milder constellation of symptoms than PMDD) and all severities of acne rather than the specific approved indications. The FDA also sent a warning letter to correct misleading advertising to Berlex labs, the original producer of Yasmin in 2003. Bayer acquired the rights to market Yasmin in 2006. In February of 2009 Bayer settled with the FDA and the attorneys general of 27 states to mount a $20,000,000 campaign to correct the misconceptions it had created. The corrective ads ran from February through late July 0f 2009. During the period of ads labeled misleading by the FDA, YAZ sales nearly tripled from the 262 million in 2007 sales.

Between 2004 and late 2008 over 50 deaths have been reported to the FDA in users of YAZ or Yasmin. These deaths have usually been due to arrhythmia, intracardiac clots, pulmonary embolism (venous blood clots passing through the heart and into the lungs), and stroke. The have been reported in women under the age of 50 and as young as 17. Many of these fatalities have been noted to have elevated blood potassium which may be the cause for some of the fatal cardiac rhythm disturbances.

YAZ is the best selling BCP in the US with an 18% market share and sales of 616 million dollars in 2008. Yasmin has sales of 382 million in 2008 accounting for an 11% market share. These two drugs alone account for nearly a third of all BCPs sold in the US.

Although often associated with Shaken Baby Syndrome, Diffuse Axonal Injury (DAI) is a growing area of plaintiff's personal injury law, especially in low impact cases like whiplash following an automobile accident.

DAI occurs when the white matter of the brain, which is composed of nerves called axons, is suddenly and violently shaken, twisted, or torqued in some way. Injury occurs because the unmoving brain lags behind the movement of the skull, causing brain structures to tear at a microscopic level.

Basically, the skull moves violently while the stationary brain stays in place, causing diffuse and sometimes extensive tearing of nerve tissue throughout the brain. This event can also cause brain chemicals to be released, causing additional injury and axonal death radiating outward from the tear. This disturbance in the brain can produce temporary or permanent widespread brain damage, coma, or death.

Most troubling for attorneys is the fact that many of these DAI injuries are not accompanied by a loss of consciousness, skull fracture or intracranial bleeding, thus the difficulty of proof at trial.

Research seems to indicate that DAI actually occurs in two phases: the stretching and tearing of the axons at impact and biochemical changes at the cellular level that may result in edema or swelling that occurs at a later time, perhaps as long as several weeks later.

The actual consequences of DAI - even those resulting in mild or moderate alteration of brain function injury - can be as catastrophic and disabling as any other type of brain injury. A person with this injury can experience a plethora of functional impairments, depending on what parts of the brain were torn in the accident. Usually the person will have changes causing irritation or agitation as a hall mark sign and the higher cognitive functions such as memory, communication, understanding and emotion can be affected globally or individually.