Cross-examining a biomechanical engineer.

Thorough discovery and careful planning help attorneys restrict defense testimony and cross-examine the witness effectively.

For decades, lawyers tried and settled minimal-impact soft tissue cases--consumers typically got their bills paid and received something for the discomfort they experienced. These cases usually included no expert proof.

In the past few years, large insurance companies have employed biomechanical experts who testify that

* the forces from a crash were minor and are considered well below the threshold for injury causation (equivalent to receiving a slap on the back, plopping into a chair, or stepping off a curb);

* the characteristics of a crash were not consistent with causing physical harm to the claimants; and

* if the claimants were truly injured, it would have to be from some other event or cause, and further medical review is necessary.

There is a huge difference between cross-examining a fact or expert witness in a typical case and cross-examining a defense biomechanical engineer in a soft tissue injury case. In the latter, economics do not justify hiring a biomechanical engineer to rebut defense testimony.

Plaintiff lawyers should discover and restrict the testimony of defense biomechanical engineers and cross-examine them effectively. Otherwise, the testimony may seem credible to the jury.(1)

Two of the best ways to counter negative expert testimony are to present facts that contradict the expert's conclusion and to introduce more credible opinions that can be used to contradict the expert.

Always assume that a defense expert will testify that forces were insufficient to cause injury. Collect physical evidence (bumper absorbers, bent bolts, and so on) showing that the force of impact contradicts this testimony in a tangible way.

The treating physician may also be a useful resource. Before trial, educate him or her about the facts of the impact and wreck, and ask whether the trauma from this event caused the plaintiff's injury. Also ask the physician whether in his or her clinical experience there is any direct relationship between the amount of property damage and injury to an occupant of the car. A favorable opinion on either of these questions can be persuasive and useful in cross.

Discovery--interrogatories and motions in limine 

Written discovery will aid in cross. Customize specific interrogatories and requests for production for the biomechanical engineer, based on the testimony anticipated from his or her written report. Interrogatories and production requests are the most economical way to prepare to restrict testimony and to cross-examine the biomechanical engineer.

The defense engineer frequently relies on (and will sometimes cite) studies and "research" that is anecdotal rather than scientific. Plaintiff attorneys should discover every study, journal article, or written material of any type that the authors of the report relied on in coming to their conclusions.

When the written report references a "study," an interrogatory should ask, "Please state the author of the study referred to in the quote above, the title of the study, where the study was published, the citation to the study, and the page numbers of the publication in which it was published."

The plaintiff's request for production should include copies of the articles relied on by the defendant's expert. Often the "study" referred to is a paper published by the Society of Automotive Engineers (SAE). This organization does not peer-review the papers it publishes. The studies reported often do not use control groups, the participants are not randomly selected, the sample size is too small or demographically unbalanced for statistical or scientific validity, and the tests are not designed to control for variables that can affect outcome. Although these tests may be of interest to engineers in the field, they are not scientifically valid or reliable.(2)

Assumptions are often made by the engineer or entered into the computer program used to calculate forces. Interrogatories should ask for these assumptions, which might include using the average acceleration rather than peak acceleration, speed of separation (often assumed to be equal between vehicles), vehicle stiffness, seat back stiffness, angle of collision, and occupant position. The expert may also make assumptions about vehicle weight without including passengers and cargo. If the vehicle had honeycomb bumpers, did the expert examine them? Did he or she make any attempt to determine whether they were deformed during impact? Did the expert account for movement of the car after the impact?

Daubert v. Merrell Dow Pharmaceuticals, Inc.(3) and Kumho Tire Co. v. Carmichael(4) require the court to analyze expert opinion to determine whether it is relevant and reliable. As gatekeepers for all expert testimony, judges must focus on the factual basis for an expert's opinion and the methodology used. With this kind of potential oversight, it is wise to try restricting the scope of an expert's testimony before cross-examination.

Any biomechanical engineer testimony should be tested by filing a motion in limine to strike the expert's opinions as not scientifically valid. Challenge the opinion, and establish that the studies relied on by the witness

* were not subject to peer review;

* have no methodological validity due to the lack of random subject selection and subgroup testing for age, weight, gender, and health status;

* are not statistically valid due to the small sample size; and

* espouse theories that cannot be tested.

The motion should also argue that the opinion is not generally accepted.

Deposition--plan for cross

Some biomechanical engineers don't necessarily "play fair" and can frustrate the most skilled examiner. In discovery, deposing the defense engineer may be necessary for successful motions in limine, and it is absolutely necessary in planning the cross for trial. Planning the cross in writing is critical.

The cross-examination plan for such a witness must answer two critical questions: What can be reasonably accomplished with this cross, and what can be elicited from the witness that can be used effectively in closing argument?

Broadly stated, cross-examination has three goals: to prove facts or theories favorable to the plaintiff's case, to show that the witness respects the opinion or qualifications of another witness, or to discredit the expert's testimony.

To prove pro-plaintiff facts or theories, show that the witness agrees with certain facts proven by the plaintiff's witnesses that are elemental to the case. These facts may include

* gender, age, and size of the plaintiff;

* weight of the cars;

* area of property damage;

* report of injury at the scene;

* findings by emergency medical technicians and emergency room staff;

* diagnosis by the treating physician; and

* authoritativeness of journals or learned treatises that might be used for impeachment.

If part of the proof depends on the weight given to the opinion of the treating physician or another witness, get the cross-examined witness to admit respect for the plaintiff witness's opinion, training, or qualifications.

Finally, discredit the witness's testimony by showing that it is unreliable because of the facts it's based on; the witness's education or training; the testimony of less biased, more competent witnesses; or common sense.

For example, cross questions may emphasize that the engineer is not a physician; doesn't know how to read an X-ray; has no training in anatomy, orthopedics, neurology, or neuroanatomy; didn't physically inspect the cars; didn't examine the plaintiff; didn't palpate for spasm; didn't know the position of the plaintiffs head at impact; didn't know the position of the headrest; didn't know whether the plaintiff anticipated impact; or isn't qualified to contradict a medical opinion.

Trial--control the expert

The witness may not be interested in what is fair or even what is true. He or she may have been extensively prepared by defense counsel and may have more experience at cross than you do. Writing out the questions and anticipating the possible response from an uncooperative witness are the first steps to controlling the witness at trial.

The written plan and the oral cross should avoid open-ended questions such as those beginning with "why," "how," and "please explain". Control is best maintained by asking about facts, not conclusions, and asking about only one fact per question. Although some lawyers spend hours conducting a cross-examination, such crosses are rarely as memorable as those that are simple and brief.

The keys to simplicity are

* questions that are short and use precise words and sentence structure, avoiding jargon;

* questions that clearly communicate a point to the jury; and

* questions that are easily repeated if the witness is not responsive.

Asking short, fact-based questions does not come naturally to trial lawyers, who often rely on pace, tone, and volume rather than precise structuring of questions. Pace, tone, and volume cannot by themselves control an uncooperative witness. If a witness might admit multiple, uncontradicted facts, still limit the questions to one fact apiece, but ask them sequentially so the witness is agreeing to multiple facts.(5)

Announcing a change of subject matter alerts both the jury and the witness--and facilitates control. To signal the jury that the next question is going to be about medical findings in hospital records, for instance, say, "Let me ask you about what the emergency room records say about Mr. Smith's neck."

Although it might go against the grain, you should generally avoid questions that directly attack a witness's opinion, or you will lose control of the examination. The witness will never agree to conclusions that favor the plaintiff or that will undermine his or her opinion; the biomechanical engineer is likely to restate direct testimony and make his or her points again.

If asked, "You don't think anyone in a wreck like this can be hurt, do you?" the expert is unlikely to answer the question with a simple yes or no but is likely to provide a litany of reasons why or why not. Instead, attack the facts or assumptions underlying the opinion.

Counter damaging testimony

Although it is possible that the court will restrict the biomechanical engineer's testimony, you should anticipate the worst-case scenario: that the judge allows testimony on

* velocity of the vehicles

* change in velocity experienced by the plaintiff

* similar forces experienced by people in everyday situations

* research showing that these forces are insufficient to cause injury.

Can a trial lawyer effectively cross-examine an engineer on measurements of velocity or change in velocity? No, that would probably result in a loss of control and the witness's restating damaging direct testimony. Even if the testimony is technically correct, will the jury understand the subtleties and distinctions made?

Your larger problem may not be testimony on the change in velocity, but the expert's statements regarding the similar forces experienced by people in everyday life. For example, "this was the same force as someone plopping down in a chair" or "the same force that you experience when someone gives you a slap on the back" or "the same force that you experience when stepping off a curb."

"Similar forces" testimony should be countered by showing jurors that the facts have been overstated. A combination of contradictory facts and opinions can do this.

For example:

* Elicit testimony from the treating physician that, under the right circumstances, any of these activities could cause injury.

* Elicit testimony from the biomechanical engineer that many factors could affect injury and the extent of injury, including gender, age, position of head or other body part at impact, body size and position, whether impact is anticipated, or preexisting condition/prior injury.

* Use testimony from the engineer to establish that the forces in the wreck were different from those experienced in, for instance, stepping off a curb, because of whether impact was anticipated, the angle of force/collision, or the position of the head at impact.

* Pose an example of, say, stepping off a curb every day for 20 years with no problem, then stepping off and turning an ankle. The engineer may agree (in deposition first, then in cross) that in the example, injury may not occur the first time or the first 100 times, but it may occur the 101st time.

Discovery depositions may also be used to prepare a counterattack to damaging trial testimony.

Federal Rule of Evidence 803 (18) provides as follows:

   To the extent called to the attention of an expert witness upon
   cross-examination or relied upon by the expert witness in direct
   examination, statements contained in published treatises, periodicals, or
   pamphlets on a subject of history, medicine, or other science or art,
   established as a reliable authority by the testimony or admission of the
   witness or by other expert testimony or by judicial notice. If admitted,
   the statements may be read into evidence but may not be received as
   exhibits.

The best treatise is always one the expert or witness recognizes as authoritative, although he or she need not have relied on it. However, it is necessary for the expert (or another expert) to testify that the treatise is a reliable, generally recognized authority.

The treatise can then be used effectively in cross. The attorney needs to know everything in the article, not just a small excerpt, annotation, or summary of major points, because other language in the article could be used by the expert to undermine the cross.

Begin preparing by identifying which specific conclusions of the article to use for cross. Break each conclusion down into as many individual facts as are relevant to the plaintiffs wreck or injury.

At trial, ask the witness, "Would you agree that..." for each fact in the plaintiffs case that corresponds to one supporting the article's conclusion. After getting the expert to agree with the litany of facts, ask the biomechanical engineer about the favorable conclusion in the treatise; at this point, the expert will probably "run" (or disagree) with it.

Then ask, "Mr. Smith, are you testifying today that you disagree with the authoritative treatise [name it[, which clearly states on page xx ... [read statement from treatise]?"

Sometimes the expert will be evasive again; if so, follow up with a question such as, "Mr. Smith, are you simply unwilling to acknowledge the truthfulness of this statement taken from the authoritative [name of treatise] that [statement from the treatise]?"

For example, assume that the following conclusion is factually appropriate for a case: "Approximately 29 percent of the subjects exposed to 4 km/h speed changes experience whiplash-associated disorders, with cervical symptoms and headaches predominating."(6)

This would be an effective series of questions to use in cross-examining the defense biomechanical engineer:

Q. You have testified that the change in velocity for this case was approximately 3 mph?

Q. That would be the same as 5 km/h?

Q. And you have also testified in this trial that no injury can occur at this change in velocity, haven't you?

Q. And you are absolutely sure about that opinion?

Q. No question at all?

Q. And you have relied on some studies to support that conclusion, haven't you?

Q. And there is no study contrary to your opinion?

Q. My client, Ms. Jones, is 27 years old, isn't she?

Q. She was struck from behind?

Q. She was unaware of the collision?

Q. She was subjected to a change in velocity of 5 km/h?

Q. She reported neck pain and headache at the scene and to doctors in the emergency room, didn't she?

Q. And if the medical personnel called that neck pain "cervical symptoms," you would know what they meant?

Q. Isn't it true that 29 percent of women in this age range who are struck from behind at 4 km/h, and were unaware of the collision, will sustain cervical symptoms and headaches?

(The witness runs.)

Q. Mr. Smith, are you testifying in this courtroom today that you disagree with the authoritative journal Archive of Physical Medicine Rehabilitation, which in an article titled "Clinical Response of Human Subjects to Rear-End Automobile Collisions," published in January 1998, clearly states on page 72, "Approximately 29 percent of the subjects exposed to 4 km/h speed changes experience whiplash-associated disorders, with cervical symptoms and headaches predominating?"

(The witness runs.)

Q. Mr. Smith, are you simply unwilling to acknowledge the truthfulness of this statement, taken from the authoritative journal Archive of Physical Medicine Rehabilitation, which clearly states on page 72, "Approximately 29 percent of the subjects exposed to 4 km/h speed changes experience whiplash-associated disorders, with cervical symptoms and headaches predominating?"

At this point in the cross-examination, the attorney could continue repeating the conclusion if the witness continued to be evasive, but the jurors will surely get the point.

Cross-examination tips

Don't be rude. One of the basic purposes of cross is to discredit a witness's testimony, not the witness. The jury may find this witness more appealing than any of the lawyers. An attack should be considered only when the evidence is conclusive and only after weighing the potential risk of alienating some or all jurors. It should never be personal.

Don't ask about, or even touch on, the expert's opinion. If given an opportunity--for example, if questioned about the formulas he or she used--the witness will restate all his or her testimony from direct or make points that were left out. If questions open the door to the witness's opinion, the attorney loses control of the cross.

Ask only about facts. Don't ask about conclusions. This is harder than it sounds, but writing out the questions allows quick identification of those that would allow the expert to run.

If the answer is nonresponsive, repeat the question. Ask about facts, using short and simple sentences, and the witness's evasion will become apparent to the jury.

Know when to stop. Once an adverse expert provides a favorable response or a concession, move on. Persist, and the witness will "correct" the testimony or qualify it so as to eliminate its usefulness.

Worth reading

Cross-examination

1. Peter Megaree Brown, The Art of Questioning: Thirty Maxims of Cross-Examination (1987).

2. Roger Haydock & John Sonsteng, Cross-Examination: Trial Theories, Tactics, Techniques (1994).

3. Thomas Mauet, Fundamentals of Trial Technique (1992).

4. Larry S. Pozner & Roger J. Dodd, Cross-Examination: Science & Techniques (1993).

5. Alexander Tanford, Keeping Cross-Examination Under Control, 18 Am. J. Trial Advoc. 245.

Low-impact causation

1. J.R. Brault et al., Clinical Response of Human Subjects to Rear-End Automobile Collisions, 79 Archive Physical Med. Rehabilitation 72(1998).

2. L. Jakobsson et al., Analysis of Head and Neck Responses in Rear-End Impacts--A New Human-Like Model, Volvo Safety Report (1994).

3. L. Olsson et al., An In-Depth Study of Neck Injuries in Rear-End Collisions, International IRCOBI Conference on Biomechanics of Impacts, Bron-Lyon, France (1990).

4. G.A. Ryan et al., Neck Strain in Car Occupants: Injury Status after 6 Months and Crash Related Factors, 25 Injury 533 (1994).

The following sources are routinely relied on by defendants.

1. W.E. McConnell et al., Biodynamic Research Corp., Analysis of Human Test Subject Kinematic Responses to Low Velocity Rear End Impacts (Soc'y of Automotive Engineers Paper No. SP-975, 1993).

2. W.E. McConnell et al., Biodynamic Research Corp., Human Head and Neck Kinematics After Low, Velocity Rear End Impacts--Understanding "Whiplash," Proc. of 39th STAPP Car Crash Conf. (1995).

Notes

(1.) Although you may think you have "won" a tenacious cross-examination, jurors may think otherwise.

(2.) See Michael D. Freeman et al., Discrediting Defense Experts in Whiplash Cases, TRIAL, Mar. 1999, at 62; Bruce H. Stem, Putting the Brakes on the Low-Speed Collision Defense, TRIAL, Jan. 2000, at 30.

(3.) 509 U.S. 579 (1993).

(4.) 526 U.S. 137 (1999).

(5.) This technique can also be tedious and need not be applied to all portions of every witness's cross. It is the preferred technique to deal with witnesses who run or are evasive. For an exhaustive discussion of this technique, see LARRY S. POZNER & ROGER J. DODD, CROSS-EXAMINATION: SCIENCE & TECHNIQUES (1993).

(6.) John R. Brault et al., Clinical Response of Human Subjects to Rear-End Automobile Collisions, 79 ARCHIVE PHYSICAL MED. REHABILITATION 72 (1998).

Phillip H. Miller practices in Nashville, Tennessee.