Excluding Defense
MIST Experts
Records to subpoena, deposition outline, practice pointers.
by Steven R. Young and Michael R. Melton
Excerpted from Medical Proof of Whiplash
The defendant’s biomechanical expert (and the defendant’s orthopaedist) pose the greatest problem for counsel trying a MIST case or a TBI resulting from retraction mechanism case. [“Retraction mechanism injury” is the better description of the mechanism of whiplash. “Whiplash” is the defense industry euphemism for the injuries caused by the retraction mechanism.] The most effective way to counter the evidence from these witnesses is to prevent them from testifying. To exclude the testimony, you must conduct a deposition that demonstrates the “expert” is unqualified to give expert opinion.
§1531.2 Subpoena Records
To prepare for the biomechanical expert’s deposition, review the expert’s resume and send subpoenas to each school the expert attended and to any schools or institutions at which the expert claims to teach.
Subpoena the following records from each university the biomechanical expert witness attended:
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The entire student file for [Biomechanical Expert], including class transcripts and grades received;
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All materials concerning post-graduate degree dissertations or theses by [Biomechanical Expert] related to: Ph.D. in Biomechanical Engineering and/or MS Engineering;
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Course Catalog for Engineering Department for the years to ; and
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Course Catalog for Biomechanical Engineering Department for the years to .
Practice Pointer:
Catalog reveals nature of course work
The reason for requesting the course catalog is to
learn the nature of the courses the expert took. Reviewing the types of
courses the Expert took may reveal that the Expert took no courses
relevant to the opinion that the Expert is offering. Often, a course’s
title may sound relevant, but reference to the catalog will show the
course is not relevant. Don’t use this at the deposition to impeach, but
save it for the motion in limine to preclude the expert’s testimony.
Subpoena the following records from any university or institution at which the expert claims to teach or to have taught at previously.
- The entire personnel file, including employment contracts, reviews, payroll and other information concerning [Biomechanical Expert] (who claims to be a professor teaching [Biomechanical Engineering] and [Mechanical Engineering] at this institution).
- Course Catalog for Engineering Department.
§1531.3 Deposition Outline
Caution:
Save impeachment evidence for trial
Deposition is not the time to cross-examine an
expert with impeachment evidence. Impeachment only counts at trial.
Impeachment during deposition does nothing but educate the expert, give
the expert notice of what you have on him, and allow the expert to
prepare to deflect the impeachment evidence at trial. If you have
impeachment evidence on the expert, keep it in your briefcase to use at
trial. Many attorneys have an irresistible impulse to impeach during
deposition. Resist the impulse.
Q: Please define “Delta V.”
Practice Pointer:
Velocity, not speed
“Delta V” means change of velocity. Some speak of
it as a change of speed. It is not. Velocity is a vector quantity, and
speed is a scalar value.
Q: Define “acceleration pulse.”
Practice Pointer:
Brief explanation of “acceleration pulse”
If I hit a brick wall doing 100 mph, my car’s
speed goes down immediately—a negative acceleration. The time during
which the negative acceleration (deceleration) occurs is the “pulse.”
When I hit the wall, the negative acceleration pulse is very brief,
perhaps 60 milliseconds. In 60 milliseconds my car goes from 100 mph to
zero mph. You can imagine what happens to the car, or to me if I am
without an air bag and seatbelt. Contrast this with my deceleration from
100 mph when I gently apply the brakes: the negative acceleration pulse
is several seconds, not milliseconds. My car comes to a gradual
stop with no injuries.
When a defendant strikes a stationary
plaintiff’s car from the rear, plaintiff’s car accelerates from an
initial zero mph to a higher speed. Physicists measure acceleration in
g’s. A “g” is a “gravity.” Gravity, according to Einstein, is actually a
function of acceleration. One g means an acceleration of 32.2 feet per
second per second; this is the same rate at which you accelerate in free
fall. Five miles per hour converts to 7.35 feet per second. If a
rear-ended car accelerates from zero to 5 mph in 0.100 seconds, we
divide 7.35 by 0.100 and we get 73.5. We divide 73.5 by 32.2 (the value
of one g) and we get 2.28 g’s. This value, 2.28 g’s, is the average
acceleration of the plaintiff’s car. The peak acceleration would
be about double the average, that is, about 4.6 g’s is peak
acceleration.
Volvo has conducted many tests on retraction
mechanism injuries and how to mitigate them in rear-end crashes. In its
research, Volvo found the shape of the acceleration pulse is quite
significant because a narrower pulse (acceleration occurring over less
time) increases the relative movement of the lower cervical spine before
the head contacts the headrest. Olsson, Ingemar, et al, Volvo Safety
Report, An In-Depth Study of Neck Injuries in Rear End Collisions,
1990 International IRCOBI Conference, September 12- 14, 1990, Bron,
Lyon, France, p. 10.
What is considered by some to be most
significant in producing neck injury is not head acceleration, but lower
neck acceleration at the T1 vertebra. This acceleration, which is
greater in magnitude than the acceleration of C1 or the head center of
gravity during the initial stages of the crash, gives rise to the
so-called retraction injury mechanism.
Q: Did you estimate the acceleration pulse for this crash?
Practice Pointer:
Longer acceleration pulse, lower average acceleration
Because stretching the time lessens the severity
of the crash, the crash can be “hard” and end very soon, at 100
milliseconds or much “softer” and end at 125, 150 or even 200
milliseconds. The longer the acceleration pulse, the lower the
average acceleration (and usually the lower the peak acceleration),
and presumably the less severe the crash as far as neck injury potential
is concerned.
Q: What did you estimate the acceleration pulse for this crash to be?
Q: Tell me all factors you considered to estimate the acceleration pulse.
Q: What period did you use to calculate the acceleration pulse?
Q: Why did you select that period?
Q: Why did you not select a longer period?
Q: Isn’t it true that if you select a longer period that the acceleration pulse is lower?
Q: Likewise, isn’t it true that if a shorter period is used, the acceleration pulse is greater?
Q: Isn’t it true that unless you actually instrument the car, you have no idea exactly what the shape of the acceleration pulse will be?
Q: Did you use the Insurance Institute for Highway Safety crash test databases in any aspect of your work on this case?
Q: Which database?
Q: Did you calculate Energy Equivalent Speed (EES)?
Practice Pointer:
“Barrier equivalent speed”
EES is also referred to as Barrier Equivalent
Speed. Some think of it in terms of the speed at which a body impacts
another object. A higher EES does not correlate with increased injury
potential. If you show a jury a photo of the rear end of a car which is
ostensibly undamaged versus a photo of a car which is obviously severely
crushed, intuition would suggest that the severely crushed car should be
the one in which the driver was more likely to suffer injury. Not always
true! This is another reason why photos of the rear of a plaintiff’s car
are misleading to a jury if the photos show little damage. The
less-damaged car can be the result of the more injury-producing crash
event for the driver. Volvo’s studies found there is no correlation
between the duration of neck injury symptoms and the EES. Volvos with
some of the worst damage and largest EES values had the least driver
retraction mechanism injuries, probably due to deflection of the seat
back rearward and resulting attenuation of the retraction mechanism
response. Olsson, Ingemar, et.al., Volvo Safety Report, An
In-Depth Study of Neck Injuries in Rear End Collisions, 1990
International IRCOBI Conference, September 12-14, 1990, Bron, Lyon,
France, p.7.
Volvo issued numerous press releases stating
that retraction mechanism injury is most likely to occur in low speed
collisions. Fallon, Jeannine and Hammond, Fred, Press Release, Volvo
Head Restraints Receive Top Honors From IIHS—Again, Release No.
V7-24, April 1997, Volvo Cars of North America, Inc. (EP). Volvo and the
Insurance Institute for Highway Safety, which is supportive of Volvo’s
retraction mechanism research (Insurance Institute for Highway Safety,
Whiplash Injuries Much Less Likely to Occur in Cars with New
Seat/Head Restraint Combination, Advanced Crash Tests Show, IIHS
News Release, December 8, 1998. (EP)), know full well that lack of
apparent bumper damage does not mean the driver could not have been
hurt, and it may actually mean he was more likely to have sustained
retraction mechanism injury than would have been the case in a more
severe rear end impact.
Q: Did you utilize any data or information from Neptune Engineering?
Practice Pointer:
“Stiffness data” is unreliable
Neptune Engineering sells A/B stiffness
coefficient data which is based on certain assumptions about the onset
of damage speed (although for a few vehicles the onset of damage speed
is known from IIHS tests). Depending on how these assumptions are
manipulated, the values of the A/B coefficients for a particular car can
fluctuate substantially. Because of the intrinsic unreliability of
stiffness data at very low speeds, no reputable accident
reconstructionist would use such data in a case where there is almost no
permanent, measurable crush. Although the
Q: What type of front bumper did Defendants’ car have? [Honeycomb bumpers, foam core bumpers?]
Q: Do you know if Plaintiff’s car had energy-absorbing bumpers?
Q: Did you measure the “stroke” of the energy absorbing bumper isolators in Defendant’s car?
Practice Pointer:
Bumper damage unrelated to injury
This series of questions relating to damage and
bumpers is important. Many defense experts erroneously or deceitfully
assert that a particular crash could not have produced sufficient
“energy transfer” to cause injury because the rear of the plaintiff’s
car doesn’t appear to be seriously damaged. Some even go so far as to
make such opinions from photographs of the cars. Matsushita, et al
“tested human volunteers at a 3 mph Delta V, and six of them
experienced neck pain for up to four days.” Matsushita, et al, X-Ray
Study of the Human Neck Motion Due to Head Inertia Loading,
Technical Paper #942208, Society of Automotive Engineers, 1994, page 63.
A Delta V of 3 mph results from a barrier crash of about 2 to 2.5 mph.
Every production vehicle can tolerate such a crash without any bumper
damage.
In a crash, the cars don’t necessarily
absorb energy equally. When energy is “absorbed” work is done on the
metal to crush it. The stiffer car will crush less than the softer car,
but the stiffer car, although ostensibly not crushed, can have a very
severe acceleration pulse felt in the passenger compartment. Volvo has
recognized this and has declared that crash pulse shape is more
important in injury assessment than energy transfer. Olsson, Ingemar,
et.al., Volvo Safety Report, An In-Depth Study of Neck Injuries in
Rear End Collisions, 1990 International IRCOBI Conference, September
12-14, 1990, Bron,
Q: Do you know if Plaintiff’s vehicle was equipped with onboard crash event recorders built into the main computer?
Q: Do you know what an automotive onboard black box is?
Q: What is it?
Q: Do you know whether either Plaintiff’s vehicle or Defendant’s vehicle had a black box?
Q: Did either vehicle have a black box?
Q: Do you know whether any party took steps to collect data from the onboard black box for either vehicle?
Q: Were you able to recover any information from either onboard black box?
Q: What data were you able to recover?
Q: Did you use the data in making your calculations?
Q: Did you choose to reject data from the onboard black box in making your calculations?
Q What information did you elect not to use in making your calculations?
Q: Why did you decide not to use data from the on board black box?
Q: Did you examine any onboard equipment from Defendant’s vehicle?
Q: Did you examine any onboard equipment from Plaintiff’s vehicle?
Q: Did you calculate acceleration pulse for the crash between Plaintiff and defendant?
Q: What factual data did you collect to enable you to calculate acceleration pulse for the crash between Plaintiff and Defendant?
Q: Do you know what “backset” is?
Practice Pointer:
Headrest position
A backset is the horizontal gap between the back
of the head and the headrest. The backset is important because the
distance the plaintiff’s head travels in the retraction mechanism injury
bears a significant role in the severity of the retraction.
Q: How does backset affect the severity of the impact of a subject’s head against a headrest? Did you collect any data concerning the backset for Plaintiff immediately before the crash?
Q: Did you make any assumptions about the backset for Plaintiff immediately before the crash?
Q: State all the assumptions you made about the backset for Plaintiff immediately before the crash?
Q: State the basis for each assumption you made about the backset for Plaintiff immediately before the crash.
Q: Did you perform an accident reconstruction for the crash?
Q: Identify each crash dynamic that is a component of the accident reconstruction you performed.
Q: Describe the condition of the Plaintiff’s automobile.
Q: Describe the condition of the Defendant’s automobile.
Q: Did you calculate the Delta V for the crash?
Q: List all physical evidence that you relied on to calculate the Delta V for the crash.
Q: State all assumptions you made in connection with the Delta V calculation.
Q: Tell me how you performed the calculation of Delta V for the crash.
Q: In your opinion of the Delta V for the crash, what is the margin of error?
Q: What is your opinion of the Delta V for the crash?
Q: Did you perform a crash injury reconstruction?
Practice Pointer:
Study of occupant kinetics
Crash injury reconstruction is a study of occupant
kinetics, i.e., the forces on, and movements of, the bodies inside the
car during the crash. Many “laymen” with no medical training purport to
render a medical opinion in terms of the mechanism of injury. At the
deposition, get every bit of this evidence out that you can. At trial,
move to exclude it all on the ground that the biomechanical expert
cannot render a medical opinion because he lacks medical training. The
predicate for exclusion is that the biomechanical expert has not taken
any relevant medical courses. So the next question is:
Q: Please tell me all courses, seminars or other training you have had in the area of 1) anatomy, 2) physiology, 3) anatomical kinetics?
Q: Did you review any doctor’s diagnosis of injuries resulting from the crash?
Practice pointer:
Grounds for excluding testimony
An expert can rely on the opinions of other
experts, and on hearsay and other inadmissible evidence. In the area of
crash injury reconstruction, you need to have the expert catalog
everything the expert has seen and considered. This is essential as an
exclusion tool. If the expert has not considered any doctor’s diagnosis
or records, you need to tie the expert down to this, and then make this
the basis of excluding the crash injury reconstruction. Likewise, when
you are preparing your case for trial, you need to assure that you have
an expert that either has the medical training to testify to crash
injury reconstruction, or that the necessary medical materials and
supporting opinions from a doctor are in the hands of your expert.
Q: Did you identify any injury mechanisms arising from the crash in relation to estimated Delta V that explain how the injuries diagnosed by the doctor were caused by the crash?
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.
