Using Biomechanical Testimony Effectively to Combat the Soft Tissue Injury Cases

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Using Biomechanical Testimony Effectively to
Combat the Soft Tissue Injury Cases

• MaryJane Dobbs, Marcus, Brody, Ford, Kessler
  Sahner, L.L.C.
• Roseland, New Jersey
• June J. Essis, Fineman, Krekstein Harris, PC,
  Philadelphia, Pennsylvania
• Bradley W. Probst, MSBME, ARCCA Inc., Pittsburgh,
  Pennsylvania

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The Good News

• By June J. Essis

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WHAT DO BIOMECHANICAL ENGINEERS DO

• Apply engineering principles, the principles of
  mechanics, to biological systems, i.e., the human
  body, with the specific facts of an accident
• Provide information about forces generated in the
  accident

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LOW IMPACT CASES

• Testimony has been admitted to establish that
  the forces generated by the accident were not
  sufficient to cause the injury alleged.

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TESTIMONY IS ADMITTED WHEN . . .

• Expert is qualified
• Expert has experience and training
• Testimony is relevant and reliable
• Material generally accepted in scientific
  community
• Valentine v. Grossman, 283 A.D.2d 571, 724
  N.Y.S.2d 504 (2001)

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QUALIFIED TO GIVETESTIMONY IF

• Education
• Experience and training
• Reviewed facts of the case
• Pleadings
• Written discovery responses/depositions
• Photographs
• Accident report
• Medical records
• Maele v. Arrington, 45 P.3d 557 (Wash. Ct. App.
  2002)

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RELIABILITY ISESTABLISHED BY . . .

• Setting forth the methodology
• Explaining the calculations
• Relying on factual events as reported by
  plaintiff
• Reviewing medical articles
• Utilizing studies/tests that were conducted by
  the expert or scientific community
• Baerwald v. Flores, 930 P.2d 816 (N.M. Ct. App.
  1997), certiorari denied, 122 N.M. 589 (1997)

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MECHANICAL ENGINEER, MEDICAL DOCTOR AND/OR
ACCIDENT RECONSTRUCTIONIST

• Can testify if he/she has
• Education
• Experience and/or
• Training
• in Biomechanics

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QUALIFIED EXPERT

• Can testify about
• Forces involved in the accident
• Impact forces have on the human body
• Cannot testify about
• Plaintiffs specific claimed injuries

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Maybaum v. Rakita, 2002 Ohio 5338 (Ohio Ct. App.
2002)
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Mitchell v. Glimm, 819 So.2d 548 (Miss. Ct. App.
2002)
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Wilson v. Rivers, 593 S.E.2d 603 (S.C. 2004)
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STANDARDS FOR THE ADMISSIBILITY

• No different than the standards for the
  admissibility of any other expert testimony

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IN DETERMINING ADMISSIBILITY, COURTS FOCUS ON . .
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• 1) The credentials of the expert
• 2) Whether expert relied on education,
  experience, training and experiments to arrive at
  the opinion
• 3) Whether the testimony is reliable and relevant
• 4) Whether the methodology generally accepted in
  the scientific community
• 5) How the expert arrived at the calculations
• 6) The material and/or literature utilized
• 7) Whether the expert reviewed the case material