Biomechanical Evidence Admissible?

Generally, the admissibility of biomechanical expert testimony at trial has been permitted, as long as the Rule 702 requirements of relevance and reliability have been met and he/she qualify under the factors articulated in Daubert.

In recent years, Texas courts have agreed that biomechanics is a science, and an accepted topic in the field of mechanical engineering, as indicated by the existence of conferences and journals devoted to the topic, as well as courses taught at major university engineering departments.

Here are a few Texas cases addressing different parameters of the admissibility of biomechanical expert testimony at trial:

Curry v. ENSCO Offshore Co., 54 Fed. App’x 407 (5^th Cir. 2002)–Safety director was qualified to testify as an expert in marine safety, despite defendant’s arguments that the expert was not qualified as a biomechanical expert, as long as he did not specifically testify as to the cause of the industry, but only about industry safety standards.　

　

Gammill v. Jack Williams Chevrolet, 972 S.W.2d 173 (Tex. 1998) - Mechanical engineer expert was not qualified to testify about design defects in an automobile as cause of injury b/c, as designer of fighter planes and missiles, he had no training or experience in the design or manufacture of automobiles or their relevant components. However, defense additional mechanical engineering expert was qualified to testify based upon his research of vehicular restraint systems, prior testimony in numerous similar cases, and authorship of 100 journal articles, 125 conference papers, 45 technical reports and 2 books summarizing his research.

Gainsco County Mutual Insurance v. Martinez, 27 S. W. 3d 97 (Ct. App. Tex. 2000) - Biomechanical expert permitted to testify about Plaintiff’s existing bone spurs and other evidence to suggest degenerative disc disease, to corroborate expert neurologist’s testimony that Plaintiff’s injury was not related to the accident. Court excluded testimony from biomechanical expert about the length of time it took to develop bone spurs and the immediate symptoms one would expect to see from a significant spinal injury, asserting a lack of medical training on the part of the expert to make this conclusion.

City of Paris, Texas v. McDowell, 79 S.W.3d 601 (Ct. App. Tex. 2002) - Biomechanical expert testimony permitted as long as submission of all requested information relative to the expert was made available to the opposing party in a timely manner. Failure to supplement discovery responses with requested information regarding expert witnesses is grounds for excluding testimony of expert witness under Federal and Texas Rules of Civil Procedure.

Reynoso v. Ford Motor Co., (Not Reported in F. Supp. 2d, 2005 WL 5994183 S.D. Tex., 2005) - Biomechanical expert testimony was reliable, and, therefore, admissible, when expert relied on publications other than his own in forming his conclusions about causation, inspected the subject vehicle and accident scene photos, and performed a test in a simulated driver’s seat to demonstrate causation of Plaintiff’s injury.

Hernandez v. Swift Transp. Co., Inc.(Slip Copy, 2010 WL 3211058 W.D. Tex.) - Biomechanical expert testimony was admissible since expert was not attempting to recreate the accident on the day it happened, but was opining on the injury expected to be sustained by the driver in the accident at bar, and expert had degrees a bachelor’s degree physiology, a PhD. in human physiology and a Bachelor of Medicine and Bachelor of Surgery (akin to an M.D. in the U. S.).

Recap

The testimony of biomechanical experts is admissible and widely accepted in Texas courts, provided the expert meets relevance and reliability standards under 702. Evidence of the expert’s educational background and research and/or work experience in biomechanics, through published books, journals or articles is generally used to prove reliability of an expert’s testimony.

An expert’s testimony will also be considered more reliable if it is based upon outside sources of information and can corroborate testimony of a medical expert. Relevance will be established by what information the expert has that will assist the trier of fact.

So consider the following factors to help your position:

• Does the expert's training and experience render him more than qualified to testify as a biomechanical expert?
• Does his report rely on outside sources that corroborate his  testimony that the plaintiff's injuries did not result from the accident?  　
• Does he go beyond his expertise and address the diagnosis of the plaintiff?

These are just a few thoughts to consider when evaluating the admissibility of biomechanical evidence; however, I often add the intangible impression that photographs of the accident give to a jury.

If there is a low impact case with minor damage, the biomechanical evidence is helpful; however, if the photographs really look bad, even if the physics prove that the biomechanical forces could not cause the injuries the in question, don't use the biomechanical issues.

Unless, the damages are really out of sight, then you have to use whatever reliable evidence that helps, right?

　

Stipulating to Liability Excludes Facts of the Accident

Suppose the facts of the accident are simply without dispute. Your driver clearly caused the collision and the injuries are really bad.

This post does address the question of disputing liability while preserving the dispute over causing the injuries. This post is about keeping out damning evidence of the accident facts. For now, my points are focused just on the legal issues of excluding all of the facts of the accident which are simply too prejudicial for a jury to see and hear.  

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Federal Rules of Evidence, Rule 403 provides a way that a court may exclude relevant evidence if the probative value of the evidence is substantially outweighed by certain dangers to the litigants, including; unfair prejudice, confusion of the issues or misleading of the fact finder.

Other consideration include undue delay of trial, waste of the court’s time, or needless presentation of cumulative evidence. The courts are granted such power, to exclude relevant evidence, if to facilitate justice or to keep the trial within bounds. For example

Negligently SLOW DRIVERS in Louisiana!!!

While there are statutory maximum speed limits, there are no statutory minimum speed limits in Louisiana. In recent years there have been attempts to institute minimum speed limits but no law has ever been passed setting a minimum speed limit.

The closest thing to a statutory minimum speed limit is set forth in La R.S. 32:64, which mandates that drivers cannot drive so slowly as to impede traffic. The law does not set a specific minimum speed.

32:64. General speed law

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"B. Except when a special hazard exists that requires lower speed for compliance with paragraph A of this section, no person shall operate or drive a motor vehicle upon the highways of this state at such a slow speed as to impede the normal and reasonable movement of traffic. ...."

This  statute essentially mandates that vehicles must  not drive too slowly under the circumstances. Well, thanks but that's not very helpful. There are  few cases that help us understand what is "too slow".

There is one case from 1975 that indicates that operating a tractor at 10 mph in a 70 mph zone was too slow and was a violation of RS 32:64.