Putting the brakes on the low-speed collision defense.

Defense experts routinely testify that the plaintiff could not have been injured in a low-speed crash. Plaintiff lawyers can show the court why that opinion is unreliable.

Defendants and insurers are aggressively pursuing defenses in cases involving "minor" collisions in an effort to escape liability for their clients' negligence. In the past, defense attorneys stood behind large photographs of the vehicles and argued that the plaintiff could not have been injured in such a minor crash. Today, in support of that argument, defendants hire biomechanical engineers and accident reconstruction experts to assert this defense.

Too often, these experts manipulate data and misuse scientific studies to support their opinions. It is imperative for plaintiff attorneys to understand the misinformation these experts generate and to effectively counter their arguments so that clients receive the compensation to which they are entitled.

The issue in low-speed collisions is whether the forces applied to the occupant were sufficient to cause injury. The defense approach requires a two-step analysis. First, the expert calculates the forces applied to the occupant and then compares them with published studies that used human volunteers to determine whether various forces were sufficient to cause injury. Both parts of this analysis are fraught with miscalculations.

The first step requires the engineer to calculate the delta V (the change in velocity of the plaintiff's vehicle as a result of the collision) and the forces generated in the impact. Second, the expert cites to studies to "prove" that with a specific low delta V or g force, injuries do not occur. (One g is the force of the Earth's gravity.)

The engineering papers that these experts most often rely on are

* Low Speed Rear-End Collision Testing Using Human Subjects, by D.H. West and others;(1)

* Human Head and Neck Kinematics After Low Velocity Rear-End Impacts: Understanding "Whiplash," by Whitman E. McConnell and others;(2)

* Human Subject Kinematics and Electromyographic Activity During Low Speed Rear Impacts, by Thomas J. Szabo and Judson B. Welcher(3);

* Data and Methods for Estimating the Severity of Minor Impacts, by Mark N. Bailey and others;(4) and

* Acceleration Perturbations of Daily Living: A Comparison to "Whiplash," by Murray E. Allen and others.(5)

In all of these studies except Allen's, human volunteers are subjected to low-speed collisions, usually from no more than 3 mph to 5 mph.

Once having determined that the delta V or g forces in a collision were less than those experienced by the volunteers in the studies, the defense expert concludes that the plaintiff could not have suffered the injuries claimed because the forces applied were minimal.

The quality of the experts retained by defendants varies. In an effort to reduce costs, insurance companies often retain retired police officers or accident reconstruction experts who crudely calculate the forces applied to the plaintiffs vehicle and then compare those forces with the low-speed collision studies. Many of these experts have no qualifications or experience in the field of biomechanics. Even qualified, trained biomechanical engineers often misinterpret data, give misleading calculations of the relevant data, and misuse the scientific literature.

For example, one defense forensic expert service calculates only the average delta V or g force applied to the vehicle, as opposed to the peak force. Generally, the average force in a collision is only about half the peak force.

Similarly, these experts fail to calculate the forces applied to the plaintiff, rather than the vehicle, during the crash. To calculate these forces, the expert must know the exact location of the plaintiff in the seat, the location of the headrest, the distance between the plaintiffs head and the headrest, whether the plaintiff was looking straight ahead or to the left or right, whether the plaintiffs head was upright or bent, and the stiffness of the seat and seat back. Usually the defense expert does not have these data.

Some defense experts misuse computer programs when calculating the delta V. Terry Day, creator of EdCrash and Crash III--two programs typically used by defense experts--specifically warned, "These programs are best suited for studying collisions in a tested range for delta V, approximately 10-40 mph. Results outside this range may be suspect."(6) Nevertheless, defense experts continue to use these computer programs in low-speed collision cases.

Even when the expert is qualified and the calculations accurate, the plaintiff attorney must pay careful attention to how the expert uses test data. It is invalid for the expert to conclude that because a limited number of volunteers did not suffer injury in controlled experimental crashes, a specific plaintiff in a real-world crash could not suffer injuries.

In experimental testing, even with human volunteers (usually men), the occupant is usually aware that a collision is going to occur in the near future. Also, these experiments are controlled, with occupants usually sitting straight and looking forward. Headrests are set for optimal protection. In the real world, the occupant may be a woman, short or tall, heavy or underweight, and may not always sit straight and look forward.

Most low-speed collision studies have used young, healthy volunteers with no preexisting spinal deficiencies. For example, the West study used men ranging from 25 to 43 years old who were of normal physical condition for their ages. None had any preexisting spinal deficiencies. Allen used eight healthy subjects, four men and four women, who were between the ages of 19 and 50.

The attorney must determine whether the factual circumstances of the plaintiffs case are similar or dissimilar to the test methodology used in the studies. In a collision, the occupant's physical characteristics and body position--as well as the absence, presence, and location of a headrest--can greatly affect the injuries sustained. These variables account for why some people in a crash suffer serious injuries, while others walk away unharmed.

Dissimilar facts

The testimony of the defense biomechanical expert in these cases can have a devastating impact on a plaintiffs chances of success at trial. When the plaintiff can demonstrate that the facts of the case are dissimilar from the studies the defense experts rely on, the court can and should bar the experts from testifying.

When the plaintiff attorney receives the biomechanical expert's report, the attorney must request copies of the raw data generated by the expert, calculations made, learned treatises relied on, and documents reviewed. Plaintiff counsel should also obtain reports and deposition or trial testimony transcripts of the expert from previous cases.

With this information in hand, counsel is in a position to depose the defense expert. The goal is to show that the plaintiffs case is dissimilar from the tests described in the studies. In addition to focusing on the shortcomings of the studies, it is useful to ask the expert how many study volunteers were subjected to the same amount of force as the plaintiff was. For example, if the delta V in the plaintiffs collision was 6.1 mph, the attorney should ask the expert how many subjects in the studies were subjected to collisions with a delta V of 6.1. In this way, counsel can limit the number of subjects on which the expert can legitimately claim to rely.

The aim is to lay a foundation for filing a motion in limine to bar the expert from testifying. There is substantial case law to support this motion.

In General Electric Co. v. Joiner, the U.S. Supreme Court ruled that when experts base their opinions on studies, the facts and circumstances of the case must be similar to the facts and circumstances of the studies.(7) The trial court in this case had barred the testimony of the plaintiffs experts in a case involving workplace exposure to chemical PCBs, finding that the animal studies the experts relied on were so dissimilar to the facts of the case as to violate the standard enunciated by the Court in Daubert v. Merrell Dow Pharmaceuticals, Inc.(8)

The Joiner Court, in upholding the trial court decision and reversing the Eleventh Circuit, held:

   Rather than explaining how and why the experts could have extrapolated
   their opinions from these seemingly far-removed animal studies, [the
   plaintiff] chose "to proceed as if the only issue [was] whether animal
   studies can ever be a proper foundation for an expert's opinion." ... The
   issue was whether these experts' opinions were sufficiently supported by
   the animal studies on which they purported to rely. The studies were so
   dissimilar to the facts presented in this litigation that it was not an
   abuse of discretion for the district court to have rejected the experts'
   reliance on them.(9)

Similar results

A number of courts have been confronted with these issues in low-speed collision cases. In Tittsworth v. Robinson, the Virginia Supreme Court considered whether a trial court erred in allowing defense expert testimony on whether a collision was sufficient to cause injury.(10)

The plaintiff had been rear-ended when stopped at a parking lot exit. Although he had no complaints of pain at the scene of the accident, several hours later he began to experience stiffness in his neck. An MRI revealed a herniated disc. The defendant called Alfred Cipriani, who qualified as an expert in the field of mechanical engineering and gravity acceleration impact analysis, and Dr. Peter Abbrecht, a biomechanical engineer.

Cipriani testified that the force experienced by the plaintiff in the collision was not greater than 1.6 gs and that such force is less than many people experience in daily activities. Abbrecht testified that the force of the accident was not enough to cause injury. Although Abbrecht testified that he had reviewed the plaintiff's medical records, including the X-rays and MRI scans, he based his opinion largely on experiments in which volunteers were exposed to 2.2 gs of force in rear-end collisions and sustained no injuries.

The plaintiff moved to strike the experts' testimony, asserting that it lacked an adequate foundation to support their opinions. The plaintiff argued that the experts relied on experiments conducted under conditions that were not substantially similar to the conditions of the plaintiff's crash. The trial court denied the motion.

On appeal, the Virginia Supreme Court stated that where tests are involved, such testimony should be excluded unless there is proof that the conditions existing at the time of the tests and at the time relevant to the facts at issue are substantially similar."(11)

The court, while acknowledging the liberalization of the admissibility of expert testimony, found that the testimony of Cipriani and Abbrecht failed to meet the fundamental requirement of similarity. The court concluded, "[T]he challenged expert testimony is speculative, is founded upon assumptions lacking a sufficient factual basis, relies upon dissimilar tests, and contains too many disregarded variables. Consequently, we hold that the testimony is unreliable as a matter of law, and, therefore, the trial court: erred in admitting it.(12)

A similar decision was rendered in Pinsker v. Cohen, in which the plaintiff moved to preclude the testimony of Thomas McNish, a physician and biomechanical engineer with Biodynamic Research Corp. (BRC).(13) It was McNish's opinion that the physical forces in the collision were insignificant and that the plaintiff could not have sustained a herniated disc. He testified at a hearing that he relied on studies conducted by his colleague Whitman McConnell. The plaintiff did not challenge McNish's qualifications but asserted that his reliance on the McConnell studies was insufficient to meet the Frye test, which held that an expert's opinion must be based on principles that are generally accepted in the relevant field.(14)

The court found that the McConnell studies were not "sufficiently broad-based or professionally challenged" to have gained general acceptance in the biomechanical engineering field. The court stated that "the small number of similarly constituted subjects is not an adequate cross-section of the population to support the conclusion reached by Dr. McNish in the McConnell studies in this case. The court also finds that the study is tainted by the subjective bias of its sponsors."(15)

A similar result occurred in Benge v. City of Palestine, in which a Texas trial court ruled that McNish

   does not have sufficient knowledge, skill, experience, training, or
   education for him to give an opinion on, first, the damage force of the
   vehicles; secondly, the dynamic biomechanical responses of the plaintiffs
   to the forces of injury; thirdly, the biomechanical forces upon any
   particular part ... of the plaintiffs' bodies, nor does he have the
   sufficient background, experience, training, knowledge, or skill to give an
   opinion on the orthopedic treatment [or] prognosis ... [of] the plaintiffs'
   medical condition, even absent an instant impact.

      So, to simply extrapolate from a study done by others to what may or may
   not have happened here, in my opinion, based upon what I have been told,
   does not meet the threshold ... recently decided by the Supreme Court.(16)

Rejected testimony

An Indiana trial court struck the testimony of another BRC expert witness, Scott Krenrich, a physician with a bachelor's degree in physics. In Brock v. Artis,(17) Krenrich arrived at his opinion as to the severity of the plaintiff's injuries after reviewing photographs of both vehicles, repair estimates for the plaintiffs vehicle, the accident report, and the plaintiffs deposition and medical records. Based on the extent of damage to the plaintiffs vehicle, Krenrich calculated the delta V at impact to be 6 to 8 mph.

However, Krenrich admitted that he did not do an accident reconstruction, nor did he identify any crash testing or computer programs he used to determine the delta V. Rather, he arrived at his opinion after looking over the photographs and repair estimates. After calculating the delta V, Krenrich compared it to the data in two BRC studies.

The Indiana trial court found that Biodynamic Research Corp. employs doctors who testify in courts throughout the country that certain injuries could not have been caused by certain low-speed impacts. The expert witnesses base these conclusions on their injury causation analysis and BRC in-house studies, such as McConnell's, and they point to the studies' publication by the Society of Automotive Engineers as evidence that they were subject to peer review.

In rejecting Krenrich's testimony, the court held,

   Dr. Krenrich conceded, and the court so finds, that the use of human
   occupant experiments to study the potential for physical injuries resulting
   from low-velocity impacts is a novel science....

      The court also finds The Society for Automotive Engineering publication
   is not a peer-review publication, nor does publication therein necessarily
   represent widespread acceptance in the relevant scientific community.

      The court finds that the BRC studies used an insufficient test sample to
   provide meaningful statistical projections about occupant response as it
   relates to the entire population.

      The testimony showed that injury causation analysis is not a recognized
   science that is taught as a separate academic discipline in institutions of
   higher learning.

      The BRC studies are not sufficiently broad based nor professionally
   challenged enough to have gained general acceptance in the relevant
   scientific community.

      Due to the small number of test subjects involved and the subjective
   bias of both the test subjects and the studies' sponsor, the studies do not
   represent an adequate cross-section of the population to support the
   purported finding of these studies that no one can sustain a long-term
   chronic injury as the result of a low-velocity impact.

      The court further finds that injury causation analysis is not the type
   of analysis that can be subject to statistical interpretation or that has a
   known or potential rate of error....

      The court specifically finds a lack of proof of any scientific validity
   of a factual connection between the damage to the vehicle and the injuries
   to, medical condition [of], and prognosis of the occupants.(18)

As a result, the court found that the minimum requirements of scientific validity and acceptance necessary to support Krenrich's testimony had not been met. The court concluded that he was not qualified to testify about injury causation and barred his testimony.

Double-edged sword

Plaintiff attorneys should keep in mind that using Daubert and Joiner to attack defense biomechanical engineers can be a double-edged sword. Using a similar strategy, defendants have moved to strike the trial testimony of a plaintiffs biomechanical engineer on the issue of whether a low-speed collision caused the plaintiffs alleged injuries.

The key to persuading the court to admit testimony of a plaintiff's biomechanical engineer is for the attorney to show that the basis for the expert's opinion is more reliable than the studies the defense experts rely on. For example, the plaintiff's expert may rely on photographs of the occupant in the vehicle, so that the calculations are specific to the case.

The expert should also limit his or her testimony to say that the forces in the collision were sufficient to cause injury. Whether or not they actually did cause injury is a matter for the medical experts, not the engineers.

Defendants' and insurers' use of a few controlled volunteer studies in low-speed collision cases constitutes a misuse of science. There is no scientific validity to testimony based on these studies. Plaintiff attorneys must aggressively attack this proposed testimony to ensure that it is barred from trial.

Notes

(1.) ACCIDENT RECONSTRUCTION J., May/June 1993, at 22.

(2.) Society of Automotive Engineers Paper No. 952724 (1995).

(3.) Society of Automotive Engineers Paper No. 962432 (1996).

(4.) Society of Automotive Engineers Paper No. 950352 (1995).

(5.) 19 SPINE 1285 (1994).

(6.) T.D. DAY & R.L. HARGENS, APPLICATION AND MISAPPLICATION OF COMPUTER PROGRAMS FOR ACCIDENT RECONSTRUCTION (Society of Automotive Engineers Paper No. 890738, 1989).

(7.) 522 U.S. 136 (1997).

(8.) 509 U.S. 529 (1993).

(9.) Joiner, 522 U.S. 136, 144-45.

(10.) 475 S.E.2d 261 (Va. 1996).

(11.) Id. at 263.

(12.) Id. at 263-64.

(13.) No. CV 95-12419 (Ariz., Maricopa County Super. Ct. Sept. 2, 1997).

(14.) Frye v. United States, 293 E 1013 (1923), superseded by statute as stated in Daubert, 509 U.S. 529.

(15.) Pinsker, No. CV 95-12419, Order Granting the Plaintiffs Motion to Preclude Testimony of Thomas McNish, at 47.

(16.) Benge v. City of Palestine, No. 3771 (Tex., Anderson County Dist. Ct. Apr. 7, 1997), Hearing on Plaintiffs' Objection to Expert Witness, at 135-38.

(17.) No. 45C01-9602-CT-00344 (Ind., Lake County Cir. Ct. July 16, 1998).

(18.) Id., Order Following Rule 702 Gatekeeper Hearing, at 3-4.

RELATED ARTICLE: Motor vehicle section steers its members toward valuable litigation resources

Finding its strength in numbers, the Motor Vehicle Collision, Highway, and Premises Liability Section provides networking, research, and educational tools for its members. It is ATLA's largest section, with more than 2,600 members.

"As was said in the most recent Godzilla movie, size does matter," says section chair Steve Laird of Fort Worth, Texas. "More members simply translates to more ideas and resources. One need only look at the voluminous exchange of information on the list serve to see that being a member of this section is important to a large number of people."

The section produces an annual membership directory and two or three newsletters a year. Recent issues of the newsletter featured articles on the low-speed impact defense, discovery against Wal-Mart, and trends in discovery tactics in lead poisoning cases.

Home page

The section's home page on the ATLA Web site (http://www.atla.org) serves as a central clearinghouse for many section resources. ATLA members can access the page by selecting "Discussion Forums" on the ATLA Web site. After logging in, select "Sections" and scroll down the list to "Motor Vehicle Collision, Highway, and Premises Liability Section." Here, members can read the latest issues of the newsletter, post messages to the list serve, and upload depositions, briefs, and discoveries to the document library.

Members will also find a collection of links to Internet sites of value on the home page. Sites listed include the American Society for Testing and Materials, the National Highway .Traffic Safety Administration, and the Society of Automotive Engineers.

"A combination of a number of things have attracted so many people to this section, such as all of these benefits and the fact that this section is progressive," Laird adds. "For example, we've just instituted practical hot tips as a broadcast fax service that will go out to our members on a periodic basis. It is full of useful information. It's news that you can use.

"We are presently working on a CD-ROM resource that will be another innovative service to benefit our members. We hope to make this CD-ROM one of the best sources for medical and engineering information and practical tips regarding connective tissue injuries. It's long overdue in the plaintiffs bar." The section hopes to have this members-only CD-ROM available late next year. More details will be released as the project progresses.

Convention roundtable

At this year's Winter Convention in San Juan, Puerto Rico, the section will hold an informal roundtable discussion on Tuesday morning, January 25, 2000. This "bring your files forum" will permit members to discuss their cases with experienced attorneys and trial consultants. The section hopes that this session will be used to discuss in detail troubling issues involving the Daubert Supreme Court decision.

Section officers in addition to Laird are Daniel Chamberlain, chair-elect, of Indianapolis; Lisa Kurtz, vice chair, of Phoenix; and Bruce Stern, secretary, of Princeton, New Jersey, who also serves as section newsletter editor.

Section dues are $40 annually. For more information about the section, contact the ATLA Sections and Litigation Groups Department at (800) 4242725, ext. 312, or visit the section's information page on the ATLA Online Web site at http://www.atla.org/members/ sections.ht.

Bruce H. Stern practices with Stark & Stark in Princeton, New Jersey. This article is adapted from one originally published in the July-August 1999 issue of The Trial Lawyer. [C] 1999, Aspen Law & Business/Panel Publishers.