3 Motions in Limine to Exclude Junk Accident Reconstruction Science

Plaintiff moves in limine for an order excluding testimony, evidence, or argument concerning accident reconstruction. Plaintiff makes this motion because the evidence is unreliable and inadmissible pursuant to established laws of this state and will create a substantial danger of undue prejudice to Plaintiff.

Plaintiff supports this motion with this Notice of Motion and Motion, the attached Memorandum of Points and Authorities, the Declaration of __________, and such other and further argument and evidence as the court receives and considers before making its ruling.

DATED:__________________________________

[Signature block]

POINTS AND AUTHORITIES

1. STATEMENT OF FACTS
[Insert summary of relevant facts.]

2. DEFENDANT’S ACCIDENT RECONSTRUCTION EVIDENCE VIOLATES THE STANDARDS ESTABLISHED BY STATE LAW [IN [insert leading case in your jurisdiction]], AND THE COURT SHOULD EXCLUDE THIS EVIDENCE UNLESS THE COURT MAKES A FINDING OF SCIENTIFIC RELIABILITY.

[Insert leading case in your jurisdiction]1 requires that a witness giving an opinion on a scientific technique, must show [List governing criteria in your jurisdiction, e.g.,]:

reliability of technique (reliability is shown where test has gained general acceptance in the particular field in which it belongs);
qualification as an expert on the subject; and
demonstrate that the correct scientific procedures were used.

Courts have held that accident reconstruction evidence is speculative and, therefore, inadmissible. For example, in Francis v. Sauve (1963) 222 Cal.App.2d 102, 114-115, the court held that reconstruction opinions such as Defendant seeks to inject in this trial are too speculative to admit:

“Applying these broad rules, California courts have approved the use of expert testimony in cases involving traffic accidents. A police officer trained and experienced in the investigation of traffic accidents and in the rendering of official reports on the facts and causes of the same, may give expert testimony as to the point of impact when his opinion is based upon his inspection of the physical evidence at the scene of the accident. (Citations.) However, his opinion as to the point of impact is not admissible when it is based on what witnesses told him rather than what he himself observed. (Citations.) On the other hand, our courts have refused to admit in evidence expert opinions in traffic accident cases where the factors involved are too varying and indefinite to constitute the basis of an opinion as, for example, where the opinion sought to be elicited dealt with the probable course of the cars after impact (citations) or with the speeds of the vehicles and the manner in which the accident occurred. (Citation.) or with the nature, points of application, magnitude and effect of forces involved in the collision of automobiles. (Citations.) The rationale of these decisions is that in this particular area, there are too many indefinite factors, including the behavior and reactions of the drivers involved, to permit a conclusion to be reached after the fact with any quantum of certainty. As the court stated in Burch v. Valley Motor Lines, Inc., supra, 78 Cal.App.2d 834, 844, the foregoing cases represent unsuccessful attempts “to reconstruct what had happened, by persons who were not eyewitnesses and with nothing on which to base their opinions but the position of the cars after they had come to rest.” [Francis v. Sauve (1963) 222 Cal.App.2d 102, 114-115 (emphasis added).]2

Reconstruction evidence lacks sufficient evidentiary foundation and is speculative. It fails to meet the [insert leading case]3 criteria, and the court should, therefore, exclude it as unfounded and incompetent, as a matter of law.

DATED:__________________________________

(SIGNED)

Cross reference: Form 1541.2 (motion attacking speculative nature of expert reconstructionist’s opinion.)

§1541.2 Form: Motion in Limine to Exclude “Accident Reconstructionist’s” Estimate of Speed of Vehicles at Time of Impact Based on Skid Marks

[Insert caption.]

Plaintiff moves in limine for an order excluding the testimony of, Defendant’s accident reconstruction expert,⁴ as to the speed of the motor vehicles based on skid marks and other facts. Plaintiff makes this motion because the opinions lack foundation, are unreliable, inadmissible, and will create a substantial danger of undue prejudice to Plaintiff.

DATED:__________________________________

(SIGNED)

POINTS AND AUTHORITIES

1. STATEMENT OF FACTS
[Insert summary of relevant facts.]

2. THE OPINION TESTIMONY OF DEFENDANT’S ACCIDENT RECONSTRUCTIONIST IS INADMISSIBLE TO ESTABLISH THE SPEED OF THE VEHICLES.

Defendant’s accident reconstructionist will offer opinions lacking foundation. He has made assumptions that will not be established by competent evidence, including [list assumptions made by expert, including, e.g.,]:

Speed of defendant’s vehicle and course of travel.
Total length of skid marks of plaintiff’s vehicle.
Plaintiff’s reaction time.
Coefficient of friction under conditions at time of collision.
Point of impact.
That defendant’s car was propelled to the location shown by the police diagram solely as a result of the impact by plaintiff’s car.

This opinion is improper, and this court should exclude it because:

_“... many of the factual assumptions made by the expert in arriving at his opinion of the speed of plaintiff’s vehicle lacked sufficient evidentiary support. The expert estimated the speed of defendants’ vehicle at impact by using “average acceleration” and an “average turning radius”; for the total length of skid marks left by plaintiff’s vehicle, the expert used Officer Ryan’s measurement of the north skid marks and the expert’s own estimate of the length of the deviated easterly skid marks; he purported to fix the point of impact by using the unmeasured deviated skid marks without evidence of their precise angle of deviation or location with reference to the intersection; and he assumed, without explanation, a certain coefficient of friction of tires upon pavement. At the very least, a “debatable justification under the law” appears for the trial judge’s determination that the expert’s opinion should have been excluded.”

Richard v. Scott, 79 Cal.App.3d 57, 64 (1978).5

Defendant’s expert has done the same thing in this matter. Much of the opinion consists of nothing more than the expert’s estimation – extrapolation without reference to actual measurements or testimony to support the opinion.⁶ Based thereon, the court should order that Defendant’s expert be precluded from offering opinion on the following matters due to lack of foundation:

DATED:__________________________________

(SIGNED)

§1541.3 Motion in Limine to Exclude “Accident Reconstructionist’s”7 Estimate of Speed of Vehicles at Time of Impact Based on the Appearance or Condition of Motor Vehicles After the Accident; Memorandum of Points and Authorities; Declaration of _______

[Insert caption.]

Plaintiff moves in limine for an order excluding the testimony of Defendant’s accident reconstruction expert, as to the speed of the motor vehicles based on photographs of the appearance or condition of the motor vehicles after the accident. Plaintiff makes this motion because the opinions lack foundation, are unreliable, inadmissible, and will create a substantial danger of undue prejudice to Plaintiff.

Plaintiff supports this motion with this notice of motion and motion, the attached points and authorities, the Declaration of __________, and such other and further argument and evidence as the court receives and considers before ruling hereon.

DATED:__________________________________

(SIGNED)

POINTS AND AUTHORITIES

1. STATEMENT OF FACTS

2. THE RECONSTRUCTIONIST’S EXAMINATION OF PHOTOGRAPHS OF THE VEHICLES IN THE ACCIDENT IS AN INSUFFICIENT FOUNDATION TO ALLOW THE RECONSTRUCTIONIST TO OFFER AN OPINION OF THE SPEED OF THE VEHICLES.

Defendant intends to offer an accident reconstructionist to opine as to the speed of the vehicles based only upon the reconstructionist’s review of photographs of the vehicles. Plaintiff objects to the opinion on the ground that the reconstructionist’s review of the photographs does not provide sufficient foundation on which to base an opinion of speed. This opinion is improper, and this court should exclude it because:

“... many of the factual assumptions made by the expert in arriving at his opinion of the speed of plaintiff’s vehicle lacked sufficient evidentiary support. The expert estimated the speed of defendants’ vehicle at impact by using “average acceleration” and an “average turning radius”; for the total length of skid marks left by plaintiff’s vehicle, the expert used Officer Ryan’s measurement of the north skid marks and the expert’s own estimate of the length of the deviated easterly skid marks; he purported to fix the point of impact by using the unmeasured deviated skid marks without evidence of their precise angle of deviation or location with reference to the intersection; and he assumed, without explanation, a certain coefficient of friction of tires upon pavement. At the very least, a “debatable justification under the law” appears for the trial judge’s determination that the expert’s opinion should have been excluded.”

Richard v. Scott, 79 Cal.App.3d 57, 64 (1978).8

Defendant’s expert has done the same thing in this matter. The opinion consists of the expert’s estimation – extrapolation without reference to actual measurements or testimony to support the opinion. Based thereon, the court should order that Defendant’s expert be precluded from offering opinion on the following matters due to lack of foundation:

DATED:__________________________________

(SIGNED)

Footnotes:

¹ See, e.g., Wyatt v. State, 23 S.W.3d 18 (Tex. Crim. App. 2000) (court has discretion to determine whether witness offered as expert possesses required qualifications to give expert opinion); Ramirez v. State, 542 So. 2d 352, 355 (Fla. 1989) (“This Court,... will accept new scientific methods of establishing evidentiary facts only after a proper predicate has first established the reliability of the new scientific method”); People v. Kelly, 17 Cal.3d 24 (1976) (establishing criteria for introduction of “new” science through expert witness). See generally Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993); Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999).

² See also Silverman v. Sciartelli, 2006 WL 254452 NY AD 4 Dept. 2006 (Feb 3, 2006); Texas Electric Co-Op v. Dillard, 171 S.W.3d 201 (Tex. 2005); Carignan v. New Hampshire Intern. Speedway, Inc., 151 N.H. 409, 858 A.2d 536 (2004).

³ See, e.g., Wyatt v. State, 23 S.W.3d 18 (Tex. Crim. App. 2000) (court has discretion to determine whether witness offered as expert possesses required qualifications to give expert opinion); Ramirez v. State, 542 So. 2d 352, 355 (Fla. 1989) (“This Court,... will accept new scientific methods of establishing evidentiary facts only after a proper predicate has first established the reliability of the new scientific method”); People v. Kelly, 17 Cal.3d 24 (1976) (establishing criteria for introduction of “new” science through expert witness). See generally Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993); Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999).

⁴ In some states, this motion can be made to exclude the testimony of a traffic officer on the same basis. See, e.g., Arricale v. Leo, 744 N.Y.S. 2d 109 (2002); Johnson v. Attkisson, 722 SW2d 390 (Tenn. 1986).

⁵ See also Kingsbury v. Hickey, 56 Ore. App. 492, 642 P.2d 339 (1982).

⁶ In Practice: Use experts “estimates” and assumptions to exclude testimony. This motion attacks the reconstructionist at the heart of the junk science. The reconstructionist “makes up” or “estimates” the information necessary to arrive at the conclusion needed, i.e., that the Delta v. is less than 5. Carefully scrutinize the deposition testimony for all “estimates” and assumptions the reconstructionist makes to support his opinion. Ask about the references relied on by the witness, and review them yourself. Often, you will find that the total opinion is unfounded. Use this motion as a mechanism to educate the judge as to what is going on and the reasons the opinion is so prejudicial (more prejudicial than probative) under the rules of evidence. See, e.g., California Evidence Code §352; Colorado Rules of Evidence, Rule 403; Illinois Evidence Code §403; Michigan Rules of Evidence, Rule 403; Ohio Rules of Evidence, Rule 403.

⁷ In some states, this motion can be made to exclude the testimony of a traffic officer on the same basis.

⁸ See also Kingsbury v. Hickey, 56 Or. App. 492, 642 P.2d 339 (1982).

Steven R. Young is different from other litigators because he takes cases to trial. Since 1983, when he tried his first case, Mr. Young has taken more than one hundred cases to trial, with most of these tried to a jury. His no-nonsense approach to case preparation and motion practice has resulted in numerous multi-million dollar verdicts and settlements in favor of his clients. Mr. Young practices in Irvine, California.

Michael R. Melton has been immersed in the field of whiplash injuries for more than a decade. He wrote and published his first book, The Guide to Whiplash, in 1995. The following year, he started a newsletter for professionals who work with personal injury cases, the Injury Resources Monthly. In recent years Mr. Melton has written and produced a variety of materials in different media that make it easy to explain injuries to lay people. Mr. Melton is the owner of BodyMind Publications (www.injuryresources.com).

They are the authors of Medical Proof of Whiplash, from which this article is excerpted.