X hits on this document

113 views

0 shares

0 downloads

0 comments

44 / 47

were not wearing their lap belts. Smith also testified that Clark would not have remained squarely in the driver’s seat following the four rollovers he endured if he had not been secured by his seat belt. And Smith determined, based on repeated simulations of the rollover, that Clark’s injuries were entirely consistent with the lap belt remaining in place.

In the face of this overwhelming evidence that the lap belt remained buckled throughout the accident, Clark urges this Court to reverse the summary judgment in defendants’ favor on the strength of a post-accident photograph of the Honda’s driver’s seat. Clark maintains that this photograph “submitted to the trial court” (AOB at 30) created a genuine dispute that the lap belt unbuckled. He states that the photograph “clearly and unmistakably shows that the lap belt has little if any blood on it while the shoulder restraint and seat itself are covered in blood.” Ibid. According to Clark, “[i]t is physically impossible for blood to cover the shoulder harness and seat to the extent depicted in the photograph and not also saturate the lap belt had Clayton been wearing it after the accident.” AOB 31. He argues that a “lay juror * * * could observe that the relative lack of blood on the lap belt stands sharply in contrast to the saturation of the shoulder belt and seats” and “could draw the simple inference that the lap belt retracted and was not attached during the accident sequence.” AOB at 32.

This argument fails for at least two reasons. First, Clark’s pleadings never once drew the district court’s attention to this supposedly critical photograph. Although Clark submitted the photograph as an exhibit to Lafferty’s testimony, that testimony (and photograph) were offered only to support Lafferty’s expert opinion. NR 68, 70. Clark never argued that the photograph had any relevance independent from Lafferty’s testimony. See NR 54. As the district court correctly noted, the stricken testimony of Lafferty and Hodson was the “only evidence that Mr. Clark has presented to prove that his lap belt released during the accident sequence * * * .” NR 87:24-25 (emphasis

37

Document info
Document views113
Page views113
Page last viewedSat Dec 03 07:41:44 UTC 2016
Pages47
Paragraphs559
Words16071

Comments