Example of a Motion in Limine to Exclude Testimony at Trial of a Bio-Mechanical Engineer

Motion in limine to preclude biomechanical engineer

MOTION IN LIMINE

This memorandum of law is offered in support of Plaintiff's motion in limine to preclude the Defendant's biomechanical engineer from testifying at trial that the forces to which Plaintiff Samuel LaMott was exposed in the motor vehicle collision of November 25, 1992 were insufficient to cause his injuries on the grounds that:

(1) an engineer is not competent to testify as to medical causation of injury;

(2) the use of biomechanical engineering principles to determine that a specific injury cannot occur to a specific individual in a specific accident has not been generally accepted in the scientific community, and as a result has been rejected by numerous courts throughout the nation as not meeting either Frye or Daubert admissibility standards; and

(3) the engineer cannot rely on purported biomechanical engineering studies to negate the possibility of Mr. LaMott's injuries because:

• Courts have found that the studies have not been generally accepted within the relevant scientific community;

• The studies fail to take into account the crash victim's particular physical condition and vulnerabilities to injury;

• The studies are not reliable because they are designed to set probabilities of injury based on a typically insufficient sample size of participants and as such can never rule out the possibility of injury;

• The studies were not conducted under circumstances sufficiently similar to this accident.

In the event this Court is not convinced from the information contained in this memorandum of law that the biomechanical engineer's testimony should be precluded, given Plaintiff's objection to the introduction of novel scientific expert testimony, the Court must hold a hearing to explore whether the proffered expert testimony withstands Frye scrutiny.

FACTS

On November 25, 1992, Samuel LaMott was driving his 1987 Chevrolet Celebrity on Delancy Street in Brooklyn. The road was wet. When Mr. LaMott was about seven car lengths from the traffic light at Clinton Street, he saw the traffic light change from yellow to red. He slowed down and came to a complete stop in the left lane, the first and only car at the intersection.

After Mr. LaMott was stopped for about 30 seconds to a minute, Jim Bateman drove his 1987 Ford pick-up truck into the rear of Mr. LaMott's vehicle, damaging the right side more than the left. Mr. LaMott did not see the truck before the collision. He described the impact as “hard,” stating that he “jerked front and back,” and that his head hit the steering wheel, “went all the way back and hit the seat.” The jolt was enough to propel Mr. LaMott's hat over the seat and into the rear of the car.

Immediately after the accident, Mr. LaMott was confused. And while still at the scene, he began to feel pain in his neck, head, lower back, and shoulder.

Defendant Bateman testified that he was traveling on Delancey Street at about 25 mph, hit the brakes when he realized Mr. LaMott's vehicle was stopped, skidded on the wet roadway, and crashed into LaMott's vehicle. Bateman estimated his speed at the moment of impact as a mere 5 mph, but the repair estimate for Mr. LaMott's vehicle listed damage to: both rear bumper extensions, impact strip, right and left tail-lamp housings, lens, moldings, right and left backup lights, license-plate housing, rear finish panel, right quarter panel, right rear bumper absorption and trunk lid. The vehicle was totaled.

As a result of this accident, Mr. LaMott suffers head, neck, and back injuries including post-concussion syndrome with severe cognitive deficits, severe headaches, and post-traumatic stress disorder. Defendant contests the severity of Mr. LaMott's injuries.

Defendant's Proposed Expert Testimony

Defendant has designated John Biomech, a supposed “biomechanical engineer,” to testify in this case. According to the pre-trial disclosure, he may testify:

• regarding the kinematics, kinetics, and Plaintiff's alleged injuries as a result of the crash;

• regarding the damage to the vehicles “as this relates to their biomechanical analysis;”

• the nature and extent of Plaintiff's alleged injuries, and quantification of the occupant's kinematics, including Plaintiff's head kinematics;

• that “the head dynamics to which Mr. LaMott was exposed in the collision are well below the levels associated with causation of a cerebral concussion/brain injury;” and

• regarding the role of occupant restraint systems and occupant kinematics in accident conditions such as in the subject accident and the role of these factors as they relate to Plaintiff.

Essentially, Defendant's expert will testify that the forces to which Mr. LaMott was exposed in the motor vehicle collision of November 25, 1992 were insufficient to cause his injuries.

The disclosure further states that the expert base his opinions on medical records and diagnostic tests, examination and/or analysis of the damage to the vehicles, photographs, accident reconstruction data, crash-testing data, “materials and publications,” and “their respective career experiences and research, including but not limited to research involving human subjects and dummy testing and research, and related biomechanical studies and research.”

As the Court will see, this type of evidence is what biomechanical engineers typically provide--evidence that has been unable to withstand scrutiny of courts throughout the nation. The purported scientific premises biomechanical engineers attempt to foist on courts and the juries has, for the most part, been exposed as unreliable, unaccepted “junk science.”

(1)

An Engineer Is Not Competent To Testify

As To Medical Causation Of Injury

According to the qualifications listed in Defendant's pre-trial disclosure (and information we have garnered), Dr. Biomech is not a medical doctor. He has no medical training and is not qualified to render a diagnosis or examine a patient. Yet he purports to review Samuel LaMott's medical records and diagnostic films to proffer medical opinion that Mr. LaMott's injuries could not have been caused by this accident. (This is particularly ludicrous given that there is not one scintilla of evidence that any other event or pre-existing condition caused these injuries.)

Neither a mechanical engineer nor a biomechanical engineer is a doctor and neither is competent to testify as to medical causation of a particular plaintiff's injury. It has been so held in Arizona, California, Delaware, Florida, Indiana, Massachusetts, Ohio, South Dakota, Tennessee, Texas, Virginia, Washington, and the Sixth Circuit. The respective analyses are slightly different, but the conclusion is invariably the same.

In Smelser v. Norfolk Southern Ry. Co., 105 F.3d 299, 46 Fed. R. Evid. Serv. 468, 1997 FED App. 0033P (6th Cir. 1997), it was the plaintiff who proffered a biomechanical engineer to testify that a shoulder belt, not a lap belt, failed in an automobile accident, causing him injury. The Sixth Circuit found the expert's opinion as to causation should have been excluded because it went beyond his expertise in biomechanics, and also lacked reliability. This was in part based on the biomechanical engineer's admission:

“. . . that biomechanics are qualified to determine what injury causation forces are in general and can tell how a hypothetical person's body will respond to these forces, but are not qualified to render medical opinions regarding the precise cause of a specific injury. He acknowledged that each individual person has his own tolerance level, and therefore, admitted he could testify only in general terms, i.e., that “X” forces would generally lead to “Y” injuries and “Y” injuries are consistent with those the plaintiff claims to have suffered.” [Emphasis added.]

Impressive credentials are no substitute for a medical (or even chiropractic) license. The plaintiffs' expert in Gammill v Jack Gammill v. Jack Williams Chevrolet, Inc., 972 S.W.2d 713, Prod. Liab. Rep. (CCH) P 15362 (Tex. 1998), a professor of mechanical engineering who, like the expert designated here, had “conducted research in mechanics, dynamics, biomechanics, vehicle occupant kinematics, and vehicle occupant restraint systems” (id. at 716), while qualified to opine whether a seatbelt was defective, lacked any qualifications to testify as to the cause of an infant's death in a car crash.

In Cromer v. Mulkey Enterprises, Inc., 254 Ga. App. 388, 562 S.E.2d 783 (2002), causation testimony was precluded despite the biomechanical engineer's Ph.D. in physics, his 22 years of university study of the behavior of materials under different levels of stress, impact, and assault, his participation in seminars on low-speed automobile accidents, and his authoring a book on low-speed impacts and biomechanics.

Even if the expert has some medical education, this does not qualify him to render an injury-causation opinion. In Salerno v. Tudor, 2002 WL 120608 (Cal. App. 1st Dist. 2002), unpublished/noncitable the biomechanical engineer, who had taught anatomy at Davis Medical School and worked in the spine clinic at California Davis Medical Center, testified that there was “no mechanism for a herniation--herniated disk” in the subject rear-end collision. Ruling this was improper, the appellate court stated:

Since Liptai was not a medical doctor, she was improperly providing the jury with assistance in determining the ultimate issue: whether the force could have caused Salerno to suffer a herniated disk. She had a specialized knowledge about the forces caused by the accident, but she did not have the training and experience to testify that Salerno did not suffer a herniated disk. [Emphasis added.]

The biomechanical expert in Combs v. Norfolk and Western Ry. Co., 256 Va. 490, 507 S.E.2d 355 (1998), besides being a professor of engineering, science and mechanics, and the director of biomedical engineering at Virginia Polytechnic Institute, had a bachelor's degree in mechanical engineering, a Ph.D. in biomedical engineering, and a master's degree in medical science. Yet the Virginia Supreme Court found he should not have been allowed to opine as to whether the plaintiff could have ruptured a disk in the subject car accident. Recognizing that the very concept of allowing this type of testimony purports to elevate the biomechanical engineer's opinion over that of a physician who has examined, diagnosed and treated plaintiff, and equating the proposed testimony to practicing medicine (without a license) the Virginia Supreme Court wrote:

The practice of medicine includes the diagnosis and treatment of human physical ailments, conditions, diseases, pain, and infirmities. See Code §54.1-2900. The term “diagnose” is defined as “to determine the type and cause of a health condition on the basis of signs and symptoms of the patient.” Mosby's Medical Dictionary 480(5th ed.1998). Thus, the question of causation of a human injury is a component part of a diagnosis, which in turn is part of the practice of medicine.

Schneck was qualified at trial as an expert in the field of biomechanical engineering and he was competent to render an opinion on the compression forces placed on Combs' spine at the time of the incident. However, Schneck was not a medical doctor and, thus, was not qualified to state an expert medical opinion regarding what factors cause a human disc to rupture . . .

Likewise, in Doherty v. Municipality of Metropolitan Seattle, 83 Wash. App. 464, 921 P.2d 1098 (Div. 2 1996), the Washington Court of Appeals affirmed preclusion of a biomechanical engineer's testimony regarding medical causation in a head-on collision case despite the engineer's ten years as Deputy Coroner in Los Angeles, nine years as a Research Engineer at a medical school, experience teaching a course on “The Biomechanics of Injury in Motor Vehicle Accidents,” and service as an Assistant Chairman of the U.S. Department of Transportation Committee on Head & Neck Injury.

In Kelly v. McHaddon, 2001 WL 209858 (Del. Super. Ct. 2001), another rear-end collision case, the defense biomechanical engineer had an advanced degree in “medical engineering,” which he asserted was the equivalent of 11/2 years of medical school. The Court nevertheless refused to permit him to testify regarding the cause (or lack thereof) of the plaintiff's injuries, stating:

The Court's holding today recognizes a simple irrefutable fact: biomechanical engineers are not doctors. As Dr. Ford acknowledged during voir dire, biomechanical engineers cannot treat injuries, cannot recommend treatment, cannot interpret (at least from a medical perspective) diagnostic studies and, indeed, under Delaware law, cannot practice medicine in any manner. 24 Del. C. §1720. If the Court was to allow Dr. Ford to testify regarding the cause of the plaintiff's injuries, the Court would be sanctioning a result which would permit both plaintiffs and defendants in personal injury cases to present only the testimony of biomechanical engineers with respect to proximate case. The testimony of physicians would be unnecessary because biomechanical engineers could address all causation issues, including the medical issues. The Court cannot countenance this result. (Id.)

The expert's testimony was thus limited to “the forces implicated by a particular accident and their effect upon the human body generally.” (Id.)

Other decisions precluding a biomechanical engineer from testify as to medical causation of the plaintiff's injuries include:

• Clemente v. Blumenberg, 183 Misc. 2d 923, 705 N.Y.S.2d 792 (Sup 1999) (finding a biomechanical engineer “lacks the training and experience to testify that plaintiff did not sustain serious injuries”);

• Fraser v Bernard, Sup Ct, Genesee County, Oct 18, 2000, Index No 47082 (writing “To expect these non medical experts to resolve a medical dispute defies logic.”)

• Rizzi v. Mason, 799 A.2d 1178 (Del. Super. Ct. 2002), judgment aff'd, 843 A.2d 695 (Del. 2004) (excluding opinion that the loads placed on the plaintiff's spine were significantly less than the loads required to cause permanent injuries);

• Benjamin v. Appliance & Refrigeration Services, Inc., 2002 WL 1308405 (Del. Super. Ct. 2002), (biomechanical engineer unqualified to rebut physician's testimony that a rear-end collision caused plaintiff's concussion);

• Rybaczewski v. Kingsley, 1998 WL 200227 (Ohio Ct. App. 6th Dist. Lucas County 1998), on reconsideration in part, 1998 WL 372723 (Ohio Ct. App. 6th Dist. Lucas County 1998) (holding “The most that [the biomechanical engineer ] should have been permitted to testify to was the amount of force appellant experienced in the accident.”);

• Mattek v. White, 695 So. 2d 942 (Fla. Dist. Ct. App. 4th Dist. 1997) (finding it “elementary” (at 943) that an expert in biomechanics and accident reconstruction was not qualified to give opinion that a motorist did not suffer permanent injury);

• Etienne v Staples, Case No: 01-2 2000-CA-2695 (Circuit Ct., Alachua County, Florida, September 12, 2003) (finding that injury causation analysis was an area specifically reserved for qualified health care practitioners);

• Benge v City of Palestine, Cause No. 3771 (Dist. Court, Anderson County, Texas, April 4, 1997) (finding biomechanical/aerospace engineer lacking the training, knowledge, skill and expertise to establish causation in motor vehicle accident cases);

• Yorston v Bailey, CV 95-17659 (Ariz. Super Ct., Maricopa Cty., July 31, 1997) (opinion there was “no mechanism for injury” or that neck injury was unlikely because the forces were so low, held to be “clearly inadmissible” and “improper opinion testimony”);

• Graham v Davis, Cause No. 02D01-0103-CT-98 (Allen County Superior Court, Indiana), (finding the proposed expert, “and any other biomechanical engineer is not qualified to testify that the accelerations and forces present in this particular accident are not consistent with causing injury to the occupants in the automobile”);

• King v. Danek Medical, Inc., 37 S.W.3d 429 (Tenn. Ct. App. 2000) (biomechanical expert not qualified to give opinion calling for medical expertise in defective pedicle screw case);

• Maroney v. Aman, 1997 SD 73, 565 N.W.2d 70 (S.D. 1997) (Biomechanical expert's opinion as to whether a stroke was traumatically induced was properly excluded);

• Com. v. Neverson, 35 Mass. App. Ct. 913, 619 N.E.2d 344 (1993) (affirming court's refusal to allow professor of biomechanics to testify as to medical consequences of a child's fall).

Dr. Biomech has no better credentials than the biomechanical engineers in these cases. And as can be discerned from the pre-trial disclosure, the proffered testimony--that the forces exerted upon Samuel LaMott in the accident “are well below the levels associated with causation of a cerebral concussion/brain injury” (meaning they were not enough to cause his injuries)--is no different from the causation testimony in these cases. It is respectfully submitted that the result should be no different here and that John Biomech's testimony must be precluded.

(2)

Exactly What Forces the Biomechanical Engineer will say Were Exerted upon Plaintiff and How They Were Calculated Must be Explored Before He Can Testify

The cases cited above, for example, Kelly v. McHaddon, 2001 WL 209858 (Del. Super. Ct. 2001), tell us that a biomechanical engineer may testify regarding the forces created by an impact. But in Kelly, the plaintiff never challenged the methodology by which the expert arrived at a determination of forces exerted on the plaintiff. However, it is plaintiff's position here that while defendant's proposed expert, or indeed, any biomechanical engineer, is generally qualified to testify as to the gravitational forces, or change in velocity, the method used to calculate these forces must be shown to be reliable. That is, the calculation itself is subject to scrutiny. The biomechanical engineers in the following cases were all precluded, in whole or in part, precisely because the methods used to calculate the forces of the impact were found to be faulty.

Clemente v. Blumenberg, 183 Misc. 2d 923, 705 N.Y.S.2d 792 (Sup 1999);

Bonilla v. New York City Transit Authority, 295 A.D.2d 297, 742 N.Y.S.2d 903 (2d Dep't 2002);

Whiting v. Coultrip, 324 Ill. App. 3d 161, 258 Ill. Dec. 111, 755 N.E.2d 494 (3d Dist. 2001), as modified on denial of reh'g, (Sept. 12, 2001);

Schultz v. Wells, 13 P.3d 846 (Colo. Ct. App. 2000);

Azzano v. O'Malley-Clements, 126 Ohio App. 3d 368, 710 N.E.2d 373 (8th Dist. Cuyahoga County 1998);

Tittsworth v. Robinson, 252 Va. 151, 475 S.E.2d 261 (1996)

Brock v. Artis, (45C01-9602-CT-00344, Cir. Ct, Indiana 1998).

In Clemente, the expert calculated the delta-V by reviewing repair bills and photographs of the damaged portions of the vehicles, then comparing the cost of repair with a chart entitled “Bumper Performance Repair Costs, 5 mph Crash Tests.” Since the repair bill was consistent with the chart, the expert adopted a delta-V of 5 mph. As a result of the Frye hearing, the court found that this method of determining delta-V was unreliable. The expert disregarded the actual facts of the case as testified to at deposition. Indeed, the expert was forced to admit that according to the credible evidence, the delta-V was at least twice what he had calculated. Obviously, if here Dr. Biomech intends to arrive at a delta-V for this accident using this method, his calculations as well should be disregarded. Yet given the pre-trial disclosure thus far, no one knows what those calculations or methods are.

The proposed biomechanical engineer in Whiting also used photos of vehicle damage and repair estimates, along with deposition testimony to determine the g-forces exerted on the plaintiff, there in a side-impact collision. The Illinois appellate court found that “There is no evidence in the record that use of photographs and repair estimates is a generally accepted method in the field of engineering for determining g-forces.” The flaw in the expert's determination of delta-V in Brock were numerous, the court noting no accident reconstruction, no identification of any specific crash testing or computer programs, but rather a “simple guess” based on photos and repair estimates.

Likewise, if defendant's expert purports to arrive at an estimate of delta-V or g-forces by “eyeballing” two-dimensional photos of the outside of the vehicle, estimating crush-damage in inches, and feeding the information into a computer program that he did not develop, this method too, must be dismissed as unreliable. Tittsworth, Brock.

In Azzano the biomechanical engineer concluded that the rear-end collision there was “probably bumper to bumper,” an assumption based solely on his review of crash test data he had obtained from the Internet, bumper standards issued by the federal government, and a crash test he conducted using two different model and year cars than the ones involved in the subject accident. Not surprisingly, the appellate court found that the admission of the expert's testimony was an abuse of discretion.

Also to be explored here will be whether all relevant factors were considered, if any testimony is based on assumptions, and whether those assumptions are valid. As the court noted in Tittsworth opinion testimony is inadmissible--not merely subject cross-examination--“ if the expert has failed to consider all the variables that bear upon the inferences to be deduced from the facts observed.” (252 Va. at 154, citations omitted.) See also, Morales v. Petito, 2000 WL 1679443 (Ohio Ct. App. 8th Dist. Cuyahoga County 2000) (Where the expert failed to provide any information as the basis of his opinion, the decision to exclude testimony, after an evidentiary hearing, was affirmed on appeal.)

In a very short opinion, the Second Department in Bonilla v. New York City Transit Authority, 295 A.D.2d 297, 742 N.Y.S.2d 903 (2d Dep't 2002) upheld the preclusion of the defense expert after a Frye hearing. The decision indicates that the expert was offered as an “accident reconstructionist” on the issue of damages, but that is not entirely accurate. The transcript of that Frye hearing reveals that the expert was both a mechanical engineer and accident reconstructionist offered to prove the defendant's contention that the impact was only two to three mph, discredit the plaintiff's position that the defendant was traveling 30-40 mph at impact, opine as a occupant movements, the g-forces exerted on human beings in auto accidents, and the likelihood of injury. This expert presented studies on low speed impacts for the court's review. The trial court found; (1) that the evidence was novel; (2) that the expert's opinion was based on insufficient data and/or conflicting data; (3) that the opinion was not scientifically reliable; and (4) that admission of the testimony would be confusing to the jury.

As discussed above, defendant's pre-trial disclosure states in very general terms that Dr. Biomech will testify regarding the forces of the impact, but it is silent as to exactly how much force Dr. Biomech will say was exerted, the direction of such force (or forces), and how he calculated such forces. It provides no clue either as to what factors Dr. Biomech considered in quantifying the forces, what formula he employed to calculate them, and what assumptions, if any, he made. We have no idea if he will claim that different forces were applied to the different parts of the body that were injured here. Given that Plaintiff is completely in the dark as to what this testimony might be, the prejudice in allowing Dr. Biomech to testify is manifest. Indeed, having not committed himself to any details in the current pre-trial disclosure, the witness would be free to change and tailor his calculations based on the evidence adduced on the plaintiff's case without the Court or Plaintiff ever knowing it. This simply should not be countenanced.

Neither Plaintiff nor the Court, in the exercise of its gate-keeping function, can be kept on the edge of our seats as to what Dr. Biomech will say until the very moment he presents his opinions to the jury. It is only after this Court is satisfied that the methodology used in calculating the g-forces (or delta-V) is reliable and comports with the evidence, and Plaintiff is given the opportunity to fully prepare for cross-examination, that the jury should be permitted to hear what Dr. Biomech has to say.

(3)

The Use of Biomechanical Engineering Principles to Determine That an Injury Cannot Occur to a Particular Individual in a Specific Accident Has Not Been Generally Accepted in the Scientific Community, and as a Result Has Been Rejected by Courts Throughout the Nation as Not Meeting Either Frye or Daubert Admissibility Standards

In New York, when proffered evidence purports to be scientific or technical, whether or not an objection is made, the Court must review the evidence before it is received at trial, to ascertain whether it is scientifically or technically reliable and “generally acceptable” in the scientific community to which belongs. Frye v. U.S., 293 F. 1013, 1014, 34 A.L.R. 145 (App. D.C. 1923); People v. Wesley, 83 N.Y.2d 417, 611 N.Y.S.2d 97, 633 N.E.2d 451 (1994); Clemente v. Blumenberg, 183 Misc. 2d 923, 705 N.Y.S.2d 792 (Sup 1999). The Court may look to opinions from other jurisdictions to make this determination. Lahey v. Kelly, 71 N.Y.2d 135, 524 N.Y.S.2d 30, 518 N.E.2d 924 (1987); People v. Scoon, 303 A.D.2d 525, 756 N.Y.S.2d 100 (2d Dep't 2003), leave to appeal denied, 100 N.Y.2d 624, 767 N.Y.S.2d 408, 799 N.E.2d 631 (2003) and leave to appeal denied, 1 N.Y.3d 541, 775 N.Y.S.2d 246, 807 N.E.2d 296 (2003).

Opinions discussing the use (and misuse) of biomechanical engineers are numerous. They reveal that typically, a defense biomechanical engineer (either on his own or with the help of an accident reconstructionist also hired by the defendant) calculates the change in velocity (delta-V) in an accident and the gravitational forces (g-forces) generated on the vehicle occupant. He then correlates that data (which we will assume for the moment is reliable and based on facts in evidence) with the results of various crash test studies. Almost invariably, the conclusion is that because the g-forces in crash tests performed on a few volunteers did not produce any injuries (that were reported), then the accident that is the subject of the lawsuit could not have caused the plaintiff's particular injuries. The purpose of the exercise, then, is to negate the possibility of injury to anyone in the world (and any personal-injury plaintiff) based on the data generated by very few individuals. (It is similar to asserting, for example, that because 150 test subjects were unable to lift 100 lbs., no one in the world could lift 100 lbs.)

It is widely recognized, however, that this methodology constitutes novel scientific evidence.

Whiting v. Coultrip, 324 Ill. App. 3d 161, 258 Ill. Dec. 111, 755 N.E.2d 494 (3d Dist. 2001), as modified on denial of reh'g, (Sept. 12, 2001);

Clemente v. Blumenberg, 183 Misc. 2d 923, 705 N.Y.S.2d 792 (Sup 1999);

Bonilla v New York City, Index No. 8441/96 Sup. Ct., Kings County (transcript of Frye hearing) affirmed, 295 AD2d 297 (2d Dept 2002);

Suanez v. Egeland, 353 N.J. Super. 191, 801 A.2d 1186 (App. Div. 2002);

Schultz v. Wells, 13 P.3d 846 (Colo. Ct. App. 2000);

Brock v Artis, 45C01-9602-CT-00344 (Cir Ct, Lake County, Indiana July 16, 1998);

Yorston v Bailey, (CV 95-17659, Ariz. Super Ct, Maricopa County, Arizona, July 31, 1997);

Etienne v Staples, Case No: 01-2 2000-CA-2695 (Circuit Ct, Alachua County, Florida) (September 12, 2003);

Benge v City of Palestine, Cause No. 3771 (Dist Court, Anderson County, Texas, April 4, 1997).

In Brock the expert himself conceded “that the use of human occupant experiments to study the potential for physical injuries resulting from low velocity impacts is a novel science.” The courts in the other cases listed reached the same conclusion. Moreover, in every one of these cases, as well as others cited in this memorandum, testimony identical to what Defendant here intends to proffer has been rejected as not meeting either Frye or Daubert admissibility standards.

For example, the trial court in Schultz found that “there is no agreement, far from it, in the engineering field or in the automobile industry concerning whether there is such a threshold [of injury],” and that there was “‘clearly no general acceptance in the engineering field’ of either the underlying theory or the techniques of the study to establish that the theory is valid.” The Colorado Court of Appeals found the trial court's analysis and resultant exclusion of the biomechanical engineer was proper.

The Georgia Court of Appeals in Cromer v. Mulkey Enterprises, Inc., 254 Ga. App. 388, 562 S.E.2d 783 (2002) was of the same opinion, stating:

We find limited evidence in the record that the field of biomechanics incl

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