Admitted Liability: Plaintiff is NOT Always Entitled to Damages

Author: Emily Straub

Witness credibility can make or break a case. This is especially true in an admitted liability, damages only lawsuit. The Court of Appeal’s recent opinion in Christ v. Schwartz, 2016 WL 4255012, demonstrates the worst case scenario for a Plaintiff in an admitted liability case where Plaintiff loses all credibility in the eyes of the jury.


Susan Christ and her husband, Jon Christ, filed a personal injury action against Dwayne Schwartz, following an automobile collision. Ms. Christ sought damages for alleged neck injuries and fibromyalgia. Mr. Christ sought damages for loss of consortium.
Mr. Schwartz admitted total liability for the automobile collision. He was traveling at a speed of 10 miles per hour when he sideswiped Ms. Christ’s vehicle in an attempt to pass a bus. Ms. Christ did not hit anything during impact, but claimed to have immediate pain in her neck, shoulder, and back. By the time Plaintiffs filed their lawsuit, Ms. Christ was alleging whiplash. Sometime after the lawsuit ensued, Plaintiff alleged she also developed fibromyalgia from the accident. Medical tests revealed no objective proof of either injury. Plaintiffs’ case for damages relied solely upon subject evidence, i.e., Ms. Christ’s testimony.

Ms. Christ testified she could no longer perform any household services as a result of her injuries, and could not lift more than five pounds. She also claimed she could not wash her face or brush her teeth without first doing yoga. Mr. Christ testified his wife’s injuries negatively affected their relationship because such injuries prevented them from participating in activities they enjoyed doing together. He also testified he could not touch areas of Ms. Christ’s neck, back, and shoulders without causing her pain.

During the course of trial, a variety of interesting facts came to light that directly impeached Ms. Christ’s credibility. The defense presented sub rosa video that showed Ms. Christ carrying a full-size garbage can, picking up dogs, and holding a hefty purse. It also showed Mr. Christ touching Ms. Christ’s back without the slightest reaction from her. The jury heard medical expert testimony, which confirmed there was no objective evidence to corroborate Plaintiff’s claimed injuries. The defense also introduced evidence of Plaintiff’s pre-incident neck injuries and complaints of pain which mirrored her current neck complaints. Plaintiff’s post-incident medical treatment proved to be spotty and her diagnoses questionable. Furthermore, the jury learned Plaintiff did not follow her doctors’ treatment orders.
While the jury entered a verdict in favor of Plaintiffs, it did not award Plaintiffs even $1 in damages. Plaintiffs moved for a new trial on the grounds the Court erred in admitting (a) photographs of automobile damages without the foundation of a biomechanical expert, and (b) evidence of Mr. Christ’s past infidelity. Plaintiffs also argued a new trial was proper because the jury erred in failing to award any damages. The motion was denied and Plaintiffs appealed.


Affirmed. The Court of Appeal concluded the trial court did not abuse its discretion in admitting the evidence in question because, among other reasons, there was no reasonable probability the outcome of the case would have changed with the exclusion of such evidence.

The trial court record provided an abundance of examples where Plaintiffs’ credibility was impeached by the defense. In consideration of this evidence the Court determined there was an ample basis for the jury to conclude Plaintiffs were not telling the truth. Accordingly, the jury’s refusal to award damages was deemed justified.

The Take-Away:

Whether you stipulate to liability or not, be sure to explore all avenues toward possible impeachment of the Plaintiff’s credibility. In cases where there is no objective proof of Plaintiff’s alleged injuries, issues of credibility become all the more important because Plaintiff must convince the jury to award damages based on subjective evidence alone. In those instances, Plaintiff’s credibility can be the deciding factor between an award of damages and no recovery.

ABOUT THE AUTHOR: Emily Straub is an associate at Tyson & Mendes LLP. She specializes in personal injury, employment, professional liability, and business litigation. Contact Emily at (858) 263-4111 or

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