3 Motions in Limine
to Exclude Junk Accident Reconstruction Science
With points and authorities.
by Steven R. Young and Michael R. Melton
Excerpted from Medical Proof of Whiplash
§1541.1 Form: Motion in Limine to Exclude Junk
Science and Related Evidence of Accident Reconstruction as a Matter
of Law
[Insert caption.]
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,
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.
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:__________________________________
(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:
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
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.
