But I Barely Hit Him!

The initial telephone call from defense counsel to commercial vehicle operator is commonly met with the surprised exclamation, “But I barely hit him!” The allure of this argument, that a minor accident cannot possibly have caused all of a plaintiff’s claimed injuries, is enticing enough, though it of course requires expert testimony to prove. Enter the biomechanical expert, a professional with training and qualification in both engineering and medical sciences presumably well-suited to opine on what injuries might be caused by what forces on the body.

In the recent case of Parker v. NGM Insurance Company, plaintiff sought to exclude defendants’ biomechanical expert by way of a Daubert challenge. The suit arose from a rear-end accident and made its way from state court to federal court based on diversity jurisdiction. In the course of discovery, defendants’ biomechanical expert opined that:

In summary, Mr. Parker was involved in a low speed rear-end impact followed by a very low speed frontal impact. His low back was subjected to forces that would not cause injury. Mr. Parker may have been startled by the event and experienced reflexive muscle strains. Any symptoms that he had would have abated within days without medical treatment. Any diagnoses, and subsequent investigations and treatments related to DDD [degenerative disc disease], are not causally related to the subject event.

In other words, he barely hit him! And what is often the first thing a commercial vehicle operator offers in defense of himself? Why, pictures, of course! Thus, it should come as no surprise that, in reaching his conclusion, the expert viewed still photographs of the plaintiff’s vehicle. However, the expert did not go to the accident scene, did not inspect the vehicles, and did not speak to anyone who repaired the vehicles. Neither did he view pictures of the defendants’ vehicles.

Rather, the expert obtained a complete front bumper system for a defendants’ vehicle model and an undamaged rear clip of for plaintiff’s vehicle model. He then mounted those components in a hydraulic bumper test machine and used the machine to push the components together in horizontal motion until the damage exceeded that of plaintiff’s vehicle. This test generated a bumper to bumper force profile which was then incorporated into a collision simulation model using an impact mechanics-based numerical algorithm. This algorithm generated the speed, acceleration, and delta-v figures that served as the basis of the expert’s opinion. In support of the reliability of this testing method, the expert offered four studies, each of which the court dissected and found issue with (and each of which were authored by employees of the expert’s company). Holding that some objective, independent validation of the expert’s methodology is required, the court found the expert’s opinion on force unreliable.

This, of course, led to his conclusions on causation also being found unreliable, with the additional finding that the expert had made too many assumptions in reaching his conclusion, including plaintiff’s posture in the driver’s seat, whether plaintiff’s seatbelt locked upon impact, the type and quality of seats in plaintiff’s vehicle, and the position of plaintiff’s headrest. Thus, although qualified, the biomechanical expert was precluded from offering expert opinion at trial.

Parker v. NGM Insurance Company

Eric Winder Sella
esella@mblb.com