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Biomechanics Opinion Of Low Speed Crash Sufficiently Scientific? (NY)

October 25, 2017

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The biomechanics of vehicle occupants involved in low-speed collisions is a potential defense to personal injury claims.  However, any proffer of expert biomechanical testimony should be prepared to meet the test for admissibility, i.e. proof that the opinion is based upon generally accepted principles and methodologies.
<span style="font-family: Calibri;"><span style="font-size: medium;">In <a href="http://blog.wcmlaw.com/wp-content/uploads/2017/10/Dovberg.pdf">Dovberg v. Laubach</a><i>, </i></span><span style="font-size: medium;">the plaintiff was involved in a low speed chain reaction motor vehicle accident.  After securing summary judgment against the defendants on the issue of liability, the parties proceeded to a damages-only trial.  Prior to trial, defendants served an expert disclosure notice advising that they were going to call a biomechanical engineer/board-certified surgeon to opine that the force generated by the accident could not have caused the plaintiff’s knee injuries.  The disclosure notice indicated that the proposed testimony was based on deposition testimony and on the plaintiff’s medical records.  It also noted that the doctor’s opinion was based on scholarly works that had gained general acceptance in the field.  Plaintiff’s counsel filed a motion in limine to preclude the testimony because it made no reference to any empirical data or peer-reviewed journals, studies, treatises, or texts.  The lower court denied the motion, the doctor testified at trial, and the jury concluded that the accident was not a substantial factor in causing the alleged injuries.</span></span>
<span style="font-family: Calibri; font-size: medium;"> </span><span style="font-family: Calibri;"><span style="font-size: medium;">On appeal, the Second Department reversed the lower court’s decision and found that the defendant’s expert failed to pass the<i> Frye </i></span><span style="font-size: medium;">test.  Specifically, the defendants failed to establish that their expert’s opinion was based on generally accepted principles and methodologies.  They noted that the rule does not require the majority of the scientific community to agree with the expert’s conclusion but, rather, the scientific community must accept the principles and methods used in evaluating the clinical data used to come to his conclusions.  The court concluded that the defendants failed to describe the methods used by their expert in drawing his conclusions and failed to provide specifics for the publications relied on including the authors, years of publication, and contents of the works.  The court also faulted the proffer for failing to provide a description of the methodology used to determine the force of the accident and the biomechanical engineering principles applied in formulating his opinion that her knees could not have contacted the dashboard.</span></span>
<span style="font-family: Calibri; font-size: medium;"> Thanks to Georgia Coats for her contribution.</span>
For more information, contact Denise Fontana Ricci at <a href="mailto:dricci@wcmlaw.com">dricci@wcmlaw.com</a>.
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