Proper Use of Accident Reconstruction and Biomechanical Experts In Personal Injury Litigation

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1 CLM 2017 Southeast Conference November 2-3, 2017 Atlanta, GA Proper Use of Accident Reconstruction and Biomechanical Experts In Personal Injury Litigation I. General Overview of the Different Types of Experts used in Personal Injury Litigation Accidents can happen. In fact, accidents happen very frequently. But certain questions arise from those accidents, such as Who is liable?, What happened at the scene of the accident?, What are the injuries sustained by the parties?, How much are my damages? In most personal injury cases an attorney will retain the services of an expert to assist with valuation of the action or to assist with a determination as to causation. The type of expert depends on the type of issue to be resolved. The focus of this presentation is on the use of Accident Reconstruction and Biomechanical experts. The most frequently utilized experts for personal injury cases are: a. Accident Reconstruction Accident Reconstructionist(s) are experts trained in accident reconstruction engineering and physics. A Reconstructionist uses information and resources obtained at the scene to reconstruct an accident in an effort to determine how the accident occurred. Reconstructionist use a wide array of mathematics and specialized aspects of vehicle technology to provide an in-depth collision analysis of the accident. The Reconstructionist can resolve issues such as speeds, collision severity, visibility, avoid-ability, driver behavior and other causal factors. b. Biomechanical Expert Biomechanical experts generally have formal training in both engineering mechanics and tissue injury. These experts can offer opinions on topics including injury mechanism, accelerations/forces applied to the occupant, occupant motion, restraint use and effectiveness, and driver identification.

2 c. Maintenance Specialist A Maintenance Specialist is normally used in trucking accidents. These specialists determine whether the trucking companies performed the required maintenance on their trucks and kept proper maintenance records prior to an accident. d. DOT Regulation Specialist The Department of Transportation ( DOT ) regulations expert ensures that certain products are tested for safety prior to its use. DOT specialists can evaluate the accident scene and offer opinions as to whether regulations were properly followed prior to an accident. e. ECM and EDR Specialist An Electronic Control Module (ECM) and Event Data Recorder (EDR) are usually found in automobiles and are activated by a collision event. The National Highway Traffic Safety Administration (NHTSA) defines an EDR as a function or device installed in a motor vehicle to record technical vehicle and occupant information for a brief period of time before, during and after a crash for the purpose of monitoring and assessing vehicle safety system performance. Specialists in this field are utilized to interpret and explain the information obtained from the ECM or EDR. Often times an Accident Reconstructionist or a Biomechanical Expert will rely on the information retrieved from the ECM or EDR in their investigations. f. Medical Doctors and Specialist The type of injuries sustained in an accident will determine what type of medical doctor or specialist you will utilize. Doctors and Medical Specialists are often used as expert witnesses to testify as to the extent of the claimant/plaintiff s injuries. g. Economic Experts An Economist is used in personal injury cases when present value calculations must be made for damage awards. For example, if a claimant/plaintiff requests damages for future loss wages an Economist is used to estimate the amount. Although most Courts will not require their testimony, Economists are helpful for attorneys to discuss settlement or prepare for trial. 2

3 II. Use of Experts during the Initial Claims Stage Immediate Investigation of the Accident Scene Survey the Scene/Document Physical Evidence. Claimant/Plaintiff files a claim with its car insurance company involving a motor vehicle accident. Once an insurance company is notified of an accident, the claims adjuster will immediately begin to investigate. An accident investigation is the process of determining the root causes of the accident, injuries and property damage. A claims adjuster will determine how he/she tailors the investigation depending on the nature and severity of the accident, the insurance policy and whether the accident involved property damage, injuries, or both. Once the claims adjuster determines that coverage exists, the adjuster may request documentation during the investigation from the insured, including but not limited to: a copy of the police report, a list of witnesses, actual location of the accident scene, photos of the scene and vehicle taken immediately after the accident, inspection of the car for damages, medical releases, and information regarding injuries. A recorded statement will be taken from the insured describing the events of the accident and information of all parties involved. All of this information is used to determine, liability, estimated damages, and injuries. After the claims adjuster s initial investigation, disputes may arise between the involved parties regarding liability, damages, and injuries. These disputes often arise in the form of a personal injury claim or suit. Depending on the actual dispute, the insurance company or the parties attorneys may consider the use of an expert. Because experts are in most situations not immediately retained after an accident occurs, it is very important that the initial investigation by the claims adjuster is done properly. That includes gathering and preserving the evidence of the accident. Reconstructionist Analysis. An accident reconstruction is a scientific approach to solving questions of how and why an accident occurred. By using widely accepted Vehicle Accident Investigation and Reconstruction techniques, we can scientifically answer the following questions: Did excess speed contributed to the accident? Did the vehicle s air bag and seat belt systems functioning properly? Did the driver have enough time to perceive the hazard and avoid the collision? Were the vehicle s braking and/or steering systems functioning properly? Were there any other factors that caused or contributed to the accident? A number of tasks are performed as part of a typical accident reconstruction. These tasks include: i. Surveying the Scene We have the capability to digital map a loss location (or intersection) and capture physical evidence using surveying equipment. Physical evidence may include pre and/or post impact skid marks, point of impact, vehicle rest positions, debris, gouges, and fluid spills. ii. Examining Vehicles During our examination, an accident reconstructionist will photograph, measure, and document vehicle damage 3

4 a. Confirm airbag deployment and identify occupant contact marks with interior vehicle components, b. Confirm Indications of seat belt, c. Confirm Indications of turn signal or headlight use (only possible if bulb in question is located in an area that was damaged), a stretched filament indicates that this turn signal was illuminated at the time of impact. d. Retrieve pre-crash black-box data from downloadable vehicles e. Review post impact photographs provided by police, insured, claimant, or other interested parties. iii. Performing Calculations and Analysis As part of our analysis, an accident reconstructionist will utilize crush measurements to model vehicle crush and calculate crash related change in velocity, a. Use the location of physical evidence captured during our survey to Define pre and postimpact vehicle motion and calculate pre-impact vehicle speeds, b. Analyze downloaded black-box data. (Note: Although the data shown below is the type of data typically captured in downloadable vehicles iv. Creating Video Simulations We have the ability to utilize calculated data in a representative 3D simulation at the client s request Retention of an expert. Experts should be retained as soon as possible. As discussed previously, the expert can be more useful when the physical evidence is easily obtainable. In most cases, experts are not retained until later due to cost considerations. An attorney or claims handler should evaluate whether retaining an expert would benefit their case prior to expending costs. If the cost of an expert witness would not justify the means, then another approach should be discussed. A good expert should be viewed as someone who reduces costs for the overall case. The use of an expert can help attorneys narrow critical issues. Experts can help to strengthen an attorney s legal strategy or shed light on its problem areas. This can help an attorney and their clients to make appropriate decisions for potential settlement and trial. Hiring an expert as a consultant can potentially lower costs in personal injury litigation. If an attorney is not sure an expert is necessary to provide a report or testify they may retain an expert s services as a consultant for the case. Attorneys usually hire consultants in the initial stage of a case for help to develop legal strategies and discovery requests. III. The Benefits and Common Pitfalls when using an Accident Reconstructionist and/or a Biomechanical Expert in a Personal Injury Action a. Benefits. How can an Accident Reconstructionist help me in litigation? An Accident Reconstructionist/ Biomechanical Expert can offer many benefits in a personal injury case. They can investigate the scene and generate a recreation of the accident to demonstrate liability and cause of injuries sustained. This can help with developing legal strategies. Accidents happen in unique ways. Test and demonstrations by Reconstructionist can educate a fact-finder to understand how an accident occurred. Make sure your Reconstructionist evaluate all of the information available prior to testing as the courts have devoted a higher level of scrutiny as to admissibility of recreations. Welch v. Keene Corp., 31 Mass. App. Ct. 157, 166 (1991); Terrio v. McDonough, 16 Mass. App. Ct. 163, 173 (1983). 4

5 Knowledge is power. During the discovery phase, Reconstructionist can provide information to help attorneys formulate discovery requests and deposition questions to resolve the underlying issues. For example, if there is a question about liability or any contributing factors that caused the accident, such as weather, a Reconstructionist can provide a demonstration of the most likely scenario along with possible alternatives. Understanding all of the possible alternatives is essential to the preparation of a personal injury case. Furthermore, this information could possibly lead to early settlement discussions or strengthen trial strategy. After an investigation of the accident, Reconstructionist will prepare an in-depth collision analysis report. This report contains the expert s findings that include liability, cause of injuries sustained, and damages. The collision report along with the Reconstructionist testimony during trial can give fact-finders a better understanding of what occurred during the accident. Obviously, by the time the case reaches trial both sides may retain their own Reconstructionist to offer opinions supporting its own theory of the case. At that point the fact-finder will make its own determination based on the testimony provided for which expert is more convincing. b. Common Issues/Pitfalls. In 1993, the U.S. Supreme Court handed down the seminal case Daubert v. Merrell DowPharmaceuticals 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed. 2d 469, (U.S. Jun 28, 1993) (NO ). This case began a wide-ranging debate about the rules that govern expert testimony in state and federal courts. The four Daubert criteria for evaluating the admissibility of expert testimony are: (1) whether the methods upon which the testimony is based are centered upon a testable hypothesis; (2) the known or potential rate of error associated with the method; (3) whether the method has been subject to peer review; and (4) whether the method is generally accepted in the relevant scientific community. As of today s date, many states have either adopted the Daubert standard, distinguished it, or have rejected it. Some Courts have questioned whether an accident reconstruction is a field of expertise. In Wilson v. Woods, 163 F.3d 935, 937 (5th Cir. 1999), the Appellate Court affirmed a trial court decision in which the trial court stated: The Court is concerned, as it has been directed to be concerned, by Daubert and its progeny, about the proliferation of so-called expert witnesses. This Court personally is not convinced that there is any such thing as an accident reconstructionist as an expert field under the rules and guidelines set forth by the Supreme Court in Daubert. In many cases, you will be faced with Daubert motions to exclude your expert s testimony. Hence, there is a necessity for attorneys to choose their expert carefully. Attorneys should make sure that the expert has the proper qualifications, pays attention to detail and provides sufficient information to scientifically reconstruct the accident, provides an expert opinion in their area of expertise, and provides expert opinion based on the facts. (See Expert Witnesses: Motor Vehicle and Accident Reconstruction Cases 4.6) A well informed and prepared accident reconstruction expert will help you to defeat a Daubert motion. Do not use a Reconstructionist that relies only on personal conclusions or speculation and not on verified and tested scientific analysis. See Demaree v. Toyota Motor Corp., 37 F. Supp. 2d 959, (W.D. Ky. 1999) ( While [the expert] declared himself at trial to be a beacon in the night, crossexamination suggested that he was rather a voice in the wilderness.... Not only is the [airbag inflation 5

6 threshold speed] opinion unique to [this expert], unpublished, unverified, and untested, it is not supported by any analysis which the trial court can identify as scientific. His opinion is essentially speculative.... Speculation is not science and Daubert mandates the rejection of such opinions. ) Make sure the Reconstructionist is qualified. The reconstruction of a motor vehicle accident almost invariably involves the application of physics, but may involve other scientific disciplines as well, such as acoustics, biology, chemistry, civil engineering, electrical engineering, or mechanical engineering. (See Massachusetts Continuing Legal Education, Inc Massachusetts Expert Witnesses Chp. 7). A Reconstructionist should be prepared to discuss any alternative hypothesis of the accident. A Reconstructionist must be provided will all available information, facts, documents, discovery and deposition testimony in a case to avoid errors in their analysis. The more prepared the expert, the better he/she will be able to survive during cross-examination. If an attorney decides to use a Reconstructionist or Biomechanical expert to testify, please make sure to avoid the common mistakes below. According to Expert Witnesses: Motor Vehicle and Accident Reconstruction Cases 5:2, the top lawyer pitfalls involving a Biomechanical expert as a witness are as follows: 1.Arguing too small or unimportant a point of either engineering or ergonomics medicine (while in the process not making sure the jury even understands the bigger issues involved). 2. Not getting your biomechanics expert enough information with which to work with. 3. Expecting the biomechanics person to do too much (hard to do, I know, but it can still happen). 4. Getting a proper background check (on both your expert and opposing counsel s expert). According to this article, section 4:7, the top lawyer pitfalls involving Accident Reconstructionist (AR) as witnesses are as follows: 1. Not understanding enough about physics to understand what the AR is trying to tell you. 2. Trying to argue physics with the AR in a vain attempt to impress the jury. 3. Getting too caught up in the details you forget where you need to be with the case. 4. Not fully investigating the AR and their background. 5. Not giving your AR enough information or holding something back from them. 6

7 IV. Conclusion Each accident will have unique characteristics. If there are unresolved issues in personal injury cases about liability, damages, or injuries, retaining an Accident Reconstructionist or Biomechanical Expert may help an attorney to narrow down the issues and prepare a legal strategy. Reconstructionist can provide recreations/demonstrations and information that can give the parties a better picture of the accident, which could potentially lead to successful settlement discussions. 7