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Exclusion of Expert’s Video Simulation, Because Its Probative Value Was Substantially Outweighed By The Possibility Of Unfair Prejudice, Is Not An Abuse Of Discretion Because The Simulation Could Have Caused Jury To Improperly Defer To Expert’s Opinion

Rocco J. Carbone
Marshall Dennehey Warner Coleman & Goggin, P.C. - Jacksonville Office

January 3, 2014

Previously published on January 2, 2014

Coddington v. Nunez, 2013 Fla. App. LEXIS 14140 (Fla. Dist. Ct. App. 2d Dist. 9/4/13)

In this automobile accident case, the Fourth District Court held that a trial court’s exclusion of a video simulation—because its probative value was substantially outweighed by the possibility of unfair prejudice—was not an abuse of discretion as it could have caused the jury to improperly defer to the opinion of the expert. See § 90.403, Fla. Stat. (2011). The defendants sought to introduce opinion testimony of their expert, an accident reconstructionist, regarding speed, as well as the direction of movement of the driver’s body within the vehicle. A computer program developed by the United States government was used to produce the simulation. The expert testified that the computer program was based on the laws of physics; he entered the weights of the vehicles and the distances the vehicles traveled after impact into the program, which determined the vehicles’ speeds at the time of impact. Further, the program produced a video simulation based on the data entered.

The defendants intended to introduce the video simulation and have the expert testify to the speed the plaintiff was going at the time of impact. The plaintiff filed a motion in limine to exclude both the expert’s opinion testimony and the video simulation as scientifically unreliable for two reasons. First, the cars depicted in the video were not those involved in the accident; second, it was unclear whether the development of these computer programs involved the use of accidents with the same features as the instant accident.

The trial court excluded the video simulation and prohibited the expert from giving any opinion testimony as to the speed of the plaintiff’s vehicle and the theory that the plaintiff’s seat belt disengaged for three reasons. First, the prejudice of showing the video simulation outweighed the probative value of the evidence. Second, the methods and procedures used by the expert were not generally accepted in the engineering community. Third, the methods would more probably than not lead to an unreliable result and, as such, would be excluded as unreliable. The expert was permitted to offer opinion testimony, but not based on the results of the computer simulation.

The Fourth District Court held, “[a] trial court’s ruling on a section 90.403 issue will be upheld on appeal absent an abuse of discretion.” Ramirez v. State, 810 So. 2d 836, 843 (Fla. 2001). Here, there was no abuse of discretion because “[t]he trial court concluded ‘that the results depicted in the simulation might be right, but the jury is likely to place undue and extraordinary emphasis on the simulation’ and ‘it could very well lead the jury to defer to the opinion of the expert.’” However, the court did reverse due to the trial court’s exclusion of the expert’s opinion testimony regarding the speed of the vehicle and the movement of the plaintiff’s body inside the vehicle. The court relied on Gen. Motors Corp. v. McGee, 837 So. 2d 1010, 1038 (Fla. 4th DCA 2002), which stated, “Even assuming that the video of the crash test was inadmissible in evidence, [the expert] still could have relied on the test to give his opinion . . . .”; see also § 90.704 (“The facts or data upon which an expert bases an opinion or inference may be those perceived by, or made known to, the expert at or before the trial.”).


The views expressed in this document are solely the views of the author and not Martindale-Hubbell. This document is intended for informational purposes only and is not legal advice or a substitute for consultation with a licensed legal professional in a particular case or circumstance.

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