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Defense's Biomechanical Expert Gets "Fryed" (NY)

June 3, 2010

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<p style="text-align: justify;">In <em><a href="http://blog.wcmlaw.com/wp-content/uploads/2019/01/Imran-v.-R-Barany-Monuments-Inc.pdf">Imran v. R Barany Monuments Inc</a>, </em>the Appellate Division, Second Department applied the <em>Frye</em> standard in precluding an expert's trial testimony and set aside a defense verdict.  The Plaintiff was involved in a four-vehicle collision, where she sustained injuries to the cervical and lumbar regions of her spine and both knees. At trial, the defendants presented testimony of a biomechanical engineering expert, who testified regarding the change in velocity of a vehicle during a collision (“<em>delta-v</em> forces”). Relying on photographs of the plaintiff’s vehicle, and a crash test involving the same make and model of vehicle, the expert concluded that the impact of the second front-most vehicle to plaintiff’s vehicle would not have caused the plaintiff’s injuries to the lumbar region of her spine or her knees.</p>
<p style="text-align: justify;">The jury returned a verdict in favor of the defendants on the issue of damages, finding that the plaintiff did not sustain a serious injury under either the permanent consequential limitation of use or significant limitation of use categories of Insurance Law § 5102(d) as a result of the accident. Subsequently, the plaintiff moved to set aside the jury verdict on the issue of damages in the interest of justice and for a new trial, arguing, <em>inter alia</em>, that the expert's testimony on causation should have been precluded. The Supreme Court granted the motion, and the defendants appealed.</p>
<p style="text-align: justify;">The Appellate Division, Second Department, relied upon the <em>Frye (293 F 1013, 1014)</em> standard and agreed with the lower court’s decision to grant plaintiff’s motion.   Pursuant to established New York law, an expert’s opinion must be based on facts in the record or personally known to the witness. The accepted techniques, when properly performed, must generate results accepted as reliable within the scientific community generally. <em>C</em>ourts will generally admit expert testimony that’s deduced from well-recognized scientific principles or discovery, as long as the thing from which the deduction is sufficiently established to have gained general acceptance in the particular field in which it belongs.  Finding that a proper foundation was lacking for the admission of the expert’s testimony, the court found that the expert should have been precluded from testifying because he did not calculate <em>delta-v</em> forces of all vehicles involved, the crash tests he used differed from the accident, and the simulations used dummies with different weights than plaintiff.  A new trial was ordered.</p>
<p style="text-align: justify;">It is easy to focus on the favorable conclusion proffered by your own expert, but a seasoned litigator will focus not only on the results, but the process.  Having a keen understanding of presentment of the expert at trial can avoid the consequence of calling an expert that reached an unreliable conclusion.</p>
Thanks to Margaret Adamczak for her contribution to this post.

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