Proving that someone is hurt is often easier than proving how someone got hurt. Creative defense counsel can muddy what may otherwise seem?to be clear liability cases with causation issues, potentially deflecting fault. It may make a big difference.The burden of proving causation can get complicated. Sometimes it gets expensive. An expert in biomechanics may become essential to the success of the case, whether in challenging a significant defense or providing proof needed to win it otherwise.
What impact can testimony involving biomechanics have on the case?
Biomechanics is the study of the mechanics of a living body, especially the forces exerted by muscles and gravity on the skeletal structure.The mechanism of a client’s injury can have a tremendous impact on liability. A failure of safety equipment may result in an otherwise avoidable injury or death.What may seem to be a simple negligence case against an opposing driver, when examined from a product liability perspective, may actually be a viable action against the manufacturer of the vehicle the injured client occupied. In product liability matters, biomechanics are often involved in disproving technical defenses as well, such as testimony regarding alternative designs in the market and whether such technology could have prevented the injuries in issue—or resulted in other injuries.
In addition to identifying additional causes of action and potential defendants, you may need biomechanical proof to counter a defense. Bio- mechanical proof may show that an injury would have happened regardless of the use of a seatbelt. According to the 2007 Edition of the Kentucky Trial Court Review, a seat belt defense was raised in 44 cases between 199 and 2007, prevailing against the plaintiff in 34 of those cases. When it prevailed, the average apportionment to the plain- tiff was 37 percent.1
Investigate the potential mechanisms of injury
So what does one do from the start of the case? In investigating the mechanism of injury, all facts and circumstances surrounding the incident should be considered. Limitations of safety equipment and the movements of occupants and objects involved in the accident need study and documentation. As might be expected, preservation of all available evidence is a primary concern.This includes documentation of available evidence of injury, or the absence thereof, on the client. Photographing and charting this fleeting evidence is essential. Subtle bruising or friction burns may ultimately defeat an instruction on comparative negligence for failure to wear a seatbelt.
Thoroughly document the vehicles involved. Cases often turn on specific measurements of intrusion into the cabin of the vehicle. Consider whether damage to the interior of the vehicle may have been caused by an occupant or item within it. Examine safety equipment in the vehicle. Document all interior damage. Document the final position of loose objects at rest in the cabin. In significant cases, the vehicles involved should be purchased and secured with the chain of custody of this evidence preserved.
Is biomechanics ‘junk science’?
Many of us have encountered the defense ‘expert’ testifying on questionable theories and principles of biomechanics.This expert may allege that the forces generated in a low impact collision cannot produce any injury, or that the forces involved in the client’s collision could not have produced the particular in- jury suffered. Some will argue that the forces at work in low impact collisions are no greater than the stresses and strains put on our bodies every day. A host of resources exist to help expose the weaknesses in such experts and their testimony.2 Much work has gone into debunking self-serving ‘studies’ on low impact/soft tissue injuries that garnered results favorable to the insurance and defense industry. However, beyond this controversial element of the field of biomechanic experts, reputable witnesses and sound science exists.
Qualifications for Admission of Biomechanical Opinion: Beware Daubert & Bass!
Given controversy surrounding the introduction of biomechanic testimony at trial, one thing is certain in a case involving testimony in this field: a Daubert challenge is likely.The Kentucky Supreme Court adopted the principals underlying the Daubert decision in Goodyear Tire and Rubber Company v.Thompson, 11 S.W.3d 575 (Ky 2000).3 Using Goodyear as a guide, one will need to ensure that the expert’s testimony can be defended on the basis by which it was tested, whether the theories are subject to peer review and publication, etc. Proceed cautiously, and be certain that your expert is well prepared for a Daubert/Goodyear challenge.
As to the seatbelt defense in Kentucky—perhaps one of the most commonly litigated biomechanics issues—the Supreme Court of Kentucky permitted accident reconstructionist, Ken Agent, to testify that “the plaintiff would not have had the injuries that he did had he been wearing a seatbelt.” Tetrick v. Frashure, 119 S.W.3d 189 (Ky2003).The Tetrick court disregarded an argument that Agent’s testimony, was in fact, medical opinion, instead accepting Agent’s contention that the use of a seatbelt would have prevented the plaintiff’s impact with the forward interior of the vehicle that ultimately was the injury- producing secondary impact.
The Tetrick court reiterated its holding in Bass v.Williams, Ky.App., 839 S.W.2d 559 (1992), that to qualify as an expert witness concerning the seat belt defense, “the witness must possess sufficient training, special knowledge or skill to testify on the subject dealing with the effect of non-usage of seatbelts in collisions.” Id. at 566. What must be shown is a causal relation between the claimant’s failure to wear a seatbelt and the degree of subsequent injury.” Last, in an unpublished opinion, the Kentucky Court of Appeals affirmed a trial court’s ruling that struck a physical medicine/rehabilitation physician’s testimony, with regard to whether the failure of the injured person’s use of
a seatbelt had an impact on causation of the injury.The court found that?the physician did not have requisite experience with seatbelts.The court conversely permitted the opinion of a defense forensic engineer and biomechanics consultant, Steven Batterman, who opined that the plaintiff’s severe injuries would have been prevented had a seatbelt been worn.4
How do you find a biomechanics expert?
Many colleges and universities across the country offer graduate courses in biomechanical engineering.The field of biomechanics is?not limited to engineers, however. Physicians with trauma practices, from surgeons to emergency physicians, may have specialized training in forensic medicine and biomechanics. When looking for this expert, consider focusing on the specific injury suffered by your client, as well as the specific suspected mechanism of injury. Research resources dealing with such injuries or devices. One place to begin educating yourself on biomechanical issues that may lead to the discovery of favorable published experts in the field of biomechanics is the Society?of Automotive Engineers.5 Another starting point is The American Society of Mechanical Engineers. It has the Journal of Biomechanical Engineering, which may lead to potential experts for consultation.6 Beware, however, that some information available from these resources may be argued as industry or defense biased.
As always, when engaging an expert, be advised to seek references from fellow KJA members or other counsel having previously worked with the expert. Use the KJA’s List- Serv to network and discover helpful information about the person under consideration. Request references?and background information on any expert with whom you are interested in working. In this field, it is of significant importance to determine, prior to engagement, whether your potential expert’s testimony has been excluded by a successful Daubert/ Goodyear challenge. Confirm the expert’s schedule of fees and document pertinent terms concerning payment and billing before engagement. Conduct as significant a background check as your resources permit. Last, consider requiring a confidentiality agreement from the expert. Remember, your experts can make or break your case. Choose wisely!7
1 Kentucky Trial Court Review,Year in Review 2007,Tenth Edition, Page 41.
2 For an excellent discussion on how to address and debunk these studies, see The Low Speed Impact Defense, How?to Put the Brakes on Its Use, Bruce H. Stern, The Advocate, January/February, Volume 27, Number 1. See also Fariello, Sal, Plaintiffs’ Lawyers Guide to Minor Impact Cervical and Lumbar Injuries., 2001, Litigation One.
3 In Goodyear Tire and Rubber Company v. Thompson, 11 S.W.3d 575 (Ky 2000), the Kentucky Supreme Court pronounced:
The factors that a trial court may apply in determining the admissibility of an expert’s proffered testimony include, but are not limited to (1) whether a theory or technique can be and has been tested; (2) whether the theory or technique has been subjected to peer review and publication; (3) whether, with respect to a particular technique, there is a high or known or potential rate of error and whether there are standards controlling the technique’s operation; and (4) whether the theory or technique enjoys general acceptance within the relevant scientific, technical or other specialized community.
4 Total Distribution Services, Inc. v. CSX Transp., Inc. 2003 WL 1227217, (Ky. App. 2003).
5 The Society of Automotive Engineers can be found at www.sae.org.This organization serves as a reference point for literally hundreds of papers and articles involving biomechanical principles and studies, as well as texts written for use in the medical and legal industry.
6 The American Society of Mechanical Engineers can be found at www.asme. org.This web site has a searchable database of abstracts from its Journal of Biomechanical Engineering.
7 This installment of Expert Advice is an update and supplement to a topic originally appearing in the November/December 2003 Edition of The Advocate.
(Originally published in the May/June 2008 issue of The Advocate)