Defense Biomechanical Expert

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Summary

The family doctor and the neurosurgeon both say the accident caused the injury. So you make your demand to the insurance company. The company says no…

Particularly in cases in which the stakes warrant the expense, insurance companies are turning to “biomechanical experts” who will say that an impact that fails to cause visible property damage cannot cause physical injury.

I. Background

A client comes into your office reporting an injury following an automobile accident.
She was stopped in traffic and was rear-ended. X-rays ruled out fracture. She was diagnosed in the emergency room with cervical strain and discharged with instructions for conservative care.

A visit to her family doctor resulted in a referral for physical therapy, which provided only transient relief. Developing numbness and tingling in the upper extremities led to a neurosurgical referral. An MRI reveals a C6-7 moderate bulge with possible cord compression.

The police report indicates that no property damage was sustained in the accident. Photographs from the insurance company show a pristine-appearing rear bumper on your client’s car. The family doctor and the neurosurgeon both say the accident caused the injury.

So you make your demand to the insurance company. The company says no, citing the report of its biomechanical expert who, having viewed the property damage photographs, has declared that this accident could not have caused injury.

Has this happened to you (yet)?

Particularly in cases in which the stakes warrant the expense, insurance companies are turning to “biomechanical experts” who will say that an impact that fails to cause visible property damage cannot cause physical injury.

From an expert of this type you can expect to hear such opinions as “the forces in this accident were the equivalent of flopping down in a chair” or “stepping down from a short step.” This testimony is effective and dangerous if left unchallenged. It might cause you to consider accepting a low-ball offer rather than face the expert at trial.

If an insurance company retains such an expert in your case, forget settling for anything approaching fair value. If you like the client and the case, get ready for trial. Assuming the other aspects of your case are solid, with an appealing, credible plaintiff, supportive doctors, and a clean pre-accident medical history, you can beat the defense biomechanical expert.

Overcoming this expert, however, takes solid preparation and an aggressive approach. There are two stages at which you can attack the defense biomechanical engineer.

First, you can get the expert excluded under Daubert and Kumho Tire.

Second, you can use readily available material to cross-examine the expert effectively.

The foundation for both the motion in limine and for cross-examination is obtained through document production and deposition.

II. Striking the Biomechanical Expert Through Motion in Limine

A. A Brief Primer on Daubert and Kumho

In 1923, the U.S. Court of Appeals for the District of Columbia Circuit held in Frye v. United States that the standard for admitting scientific expert witness testimony is whether the technique used by the expert is “generally accepted” as reliable in the relevant scientific community. 293 F. 1013 (D. C. Cir. 1923). This remained the standard of review for seventy years. As long as an expert was qualified within the field in which he was to testify, the expert’s testimony was generally admitted.

In 1975, Federal Rule of Evidence 702 was adopted. It provides that “if scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training or education may testify thereto in the form of an opinion or otherwise.” In Daubert v. Merrill Dow Pharmaceuticals, 509 U.S. 579 (1993), the Supreme Court revisited the Frye standard in light of Rule 702.

The Court recognized the liberalizing intent of Rule 702 and explicitly cited the Rule’s “general approach of relaxing the traditional barriers to ‘opinion’ testimony.” 509 U.S. at 588. The Supreme Court ruled that Rule 702 superceded the Frye “general acceptance” standard. The Supreme Court pronounced that the new standard required the trial judge to ensure that “any and all scientific testimony or evidence admitted is not only relevant but reliable.” Id. at 589.

In order to accomplish this, the trial judge would function the “gatekeeper”: [Applying Rule 702] involves a preliminary assessment of whether the reasoning or methodology underlying the testimony is scientifically valid and of whether that reasoning or methodology properly can be applied to the facts at issue. Id. at 592-93.

This gatekeeper obligation is your tool for attacking the admissibility of the defense biomechanical expert.

In Daubert, the trial court had to determine whether an expert in epidemiology could base his opinion testimony on a novel theory in his discipline concerning whether the drug Bendectin could cause 

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