Trial Tactics and Procedure

In practice, the defendant’s law firm often provides the biomechanical engineer expert disclosure, pursuant to CPLR 3101(d), at the end of discovery or at some latter point before the trial. Plaintiff is then faced with a decision: should he wait to make an objection to the trial judge, or should he make a formal pre-trial motion in limine to either the trial judge or the TAP judge in the county where the case is assigned?

Depending on the jurisdiction, and the judge, the plaintiff must make certain decisions to defeat the defendant’s proposed biomechanical expert. The plaintiff is then forced to delay his trial and to reschedule his expert in order to hold a Frye or Daubert hearing concerning the admissibility of the expert after the jury is picked. This places tremendous pressure on the trial judge, the attorneys, the parties, and the schedule of experts for the actual trial.

The case law in the Appellate Division governing the admission of testimony of a biomechanical engineer differs; therefore, the practitioner must be well read in the law as it pertains to both allowing biomechanical engineers to testify and as to causation of injuries based on the amount of impact of the vehicle in which plaintiff is an occupant during the accident.

In Santos v. Nicolos the defendant proffered an expert with an undergraduate degree in mechanical engineering and physics, a master’s degree in physics, a medical degree, and a postdoctoral fellowship in biomechanical engineering.1 Importantly, although the expert had obtained a medical degree, he was not licensed to practice medicine and had never practiced medicine for more than a three-month residency.2

The court recognized the importance of some amount of medical practice to properly testify to the causation of an injury and, therefore, decided “the testimony should be precluded on the ground that a biomechanical engineer is not a doctor and is therefore not qualified to testify about the causal relationship between a motor vehicle accident and the injuries that the person sustained.”3

In other cases, however, courts have allowed biomechanical experts to testify. Gaona-Garcia v. Gould involved a biomechanical engineer who was licensed as a doctor in England and had also practiced in that country.4 Worrell v. Boubacar involved an expert who obtained his medical degree in a foreign country.5 Both decisions are brief and many details concerning the proffered experts are omitted. As such, it is impossible to determine whether the experts involved in those cases had any experience with biomechanical engineering, causation issues, or a medical practice.

The First Department has not ruled on whether a biomechanical engineer can testify as to the causation of a plaintiff’s injuries. The practitioner should be aware that in the Second Department the precedent of Plate v. Palisade Film Delivery Corp. finds that a biomechanical engineer is qualified to give opinion testimony regarding whether the force of impact in an accident would have caused injury.6

In Santos Justice Kern rejected Plate and another precedent, Cardin v. Christie, because those decisions omitted valuable information concerning the expert’s citation to specific scientific literature.7 Both of those decisions also omitted any discussion regarding the extent of the expert’s medical practice. The issue the court appeared to focus on in precluding defendant’s expert from testifying at trial was that expert’s lack of a medical degree/license or a lack of practical medical experience.

The Second Department’s decision in Plate ultimately concluded that a biomechanical engineer is “qualified to testify regarding whether the force of the impact in the subject accident could have caused a serious injury or exacerbated a preexisting injury to the plaintiff’s cervical spine….”8 the court did not hold that a biomechanical engineer could testify as to whether a plaintiff in a particular accident did or did not suffer a particular injury due to that specific accident.

Therefore, based on the ruling in Plate, a plaintiff in the Second Department should argue at the motion in limine phase of a Frye hearing or at the trial stage that the defendant’s proffered expert should not be permitted to relate his or her general findings regarding the force involved in the accident and its effects on a person’s body to a particular case in question.

Even if deemed qualified as an expert, a defendant’s expert should be prevented from testifying if he failed to examine the plaintiff or the vehicles involved in the accident, or failed to personally obtain critical information involved in the accident while drafting his or her report. The practitioner should closely scrutinize the report of defendant’s expert, as it is often filled with conclusions without foundation in fact or substance.

The report often lists materials relied upon by the expert in his opinion and a closer look can reveal misleading citations. A good cross examination or presentation at a Frye or Daubert hearing should include questions like: “Did defendant’s expert ever conduct a physical examination of the plaintiff?” “Did the expert review each and every medical record of Plaintiff to determine severity of the injuries?” or “Did the expert review the actual MRI images or just the reports?” Even if the answer to some of these questions is yes, most biomechanical engineers are not medical doctors and should be deemed unqualified to interpret the limited amount of medical records they did review.

More important is the fact that most defendant’s biomechanical engineers fail to examine the actual cars involved in the accident. They usually make their determination from photographs produced during the discovery stage and no independent examination is conducted.

The failure to know the plaintiff’s size, sex, and positioning in the car prior to the accident and during the accident is also a cause for rejection of a proffered expert. Biomechanical engineers often rely on studies conducted by independent agencies or insurance companies. It has recently come to light, though, that most of these studies feature only male subjects. Not until 2013 did tests include female subjects.

Further, the weight of the vehicle, the vehicle’s contents, the seatbelts, and any modifications to the vehicle are other areas where the defendant’s expert should not be allowed to testify without having made a personal examination of the vehicle. Defendant’s experts often use national averages and estimates regarding weights of cars and individuals without gaining the exact figures, making it impossible to verify their expert calculations. In short, if there is no personal examination of the car, there is no way to verify the accuracy of the description of the vehicle and its occupants and then there is no way to verify the accuracy of the expert’s calculations.

By raising these issues concerning the many assumptions made in the proffered expert report, it is easy to make the argument that the prejudicial effect of any testimony of a biomechanical expert surely outweighs any true probative value, especially since the witnesses and the medical doctors presented at trial, by both plaintiff and defendant, will testify as to causation in any hotly contested case.

In addition to blanket assumptions concerning the occupants in the cars and the cars themselves, biomechanical engineers often cite to large volumes of work or lengthy articles without references to particular pages, paragraph numbers or other narrowing citation.

If a plaintiff looks into the structure of some of the sources provided by biomechanical engineers, he would discover there are often limited subjects in a study, such as 5 or 10 subjects involved in an accident. Therefore, the lack of reference to specific citations within the articles, to ideas or specific areas of concern, the lack of subject validation including age, sex, weight, position in the car, complaints of injury, and treatment of injury, support an argument that Defendant’s expert is not qualified to testify at the time of trial and, consequently, should be precluded.

Conclusion
A plaintiff must object as soon as possible to the proffered testimony of a defendant’s biomechanical engineer. The report provided by the defendant’s expert should be looked at closely with an eye towards cross examination during the motion stage, hearing stage, or at the trial stage. A good destruction of the defendant’s expert’s credibility and the basis of his facts surely will cause the court to question the validity of the defendant’s expert and call in to question the partiality and prejudice of the defendant’s expert in attempting to discredit the plaintiff’s claim of causation of a serious injury.

The First Department has yet to rule on this question, and reliance on the Second Department decision of Plate is in most cases improper since the cases are usually fact-specific and various courts have rejected Plate for its lack of clarity. Even if the court follows Plate, this case does not support an argument that defendant’s expert should be permitted to testify to the causation of the plaintiff’s particular injuries, but only allows an expert to testify as to the general causation of non-specific injuries.

A lack of independent investigation, insufficient knowledge concerning necessary facts involved in performing the defendant’s expert’s calculations, and a failure to relate arguments and conclusions within that report to specific sections within their peer review material support a plaintiff’s argument to the trial court that a defendant’s expert biomechanical engineer should be precluded from testifying at the time of trial.