Motion in limine to preclude biomechanical engineer 


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.




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.”



 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 seat belt 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.



 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.



 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 includes a technique of determining if specific injuries result from specific accidents, let alone that that technique has reached a scientific stage of verifiable certainty. 


At least six New York justices presented with the pertinent scientific objections have excluded this type of testimony. Justice Maltese in Clemente v Blumenberg, 183 Misc 2d 923 (Sup Ct, Richmond County 1999) found that whether he applied the Frye test or Daubert criteria, the data and methodology employed by the biomechanical engineer was not “generally accepted in the relevant scientific or technical community to which it belongs.” As a result the biomechanical engineer's testimony was severely limited. On those same grounds, Justice Hubsher in Bonilla v New York City Transit Authority, Index No. 8441/96 Sup. Ct., Kings Cty. affirmed, 295 AD2d 297 (2d Dept 2002) excluded the biomechanical engineer/accident reconstructionist from testifying at all. Preclusion also resulted in Fraser v Barnard, Sup Ct, Genesee County, October 18, 2000, Index No. 47082/99; Pagels v PVS Chemicals, Inc., Sup Ct, Erie County, Index No. 5466/97; LaMasa v. Bachman, Sup Ct, New York County, April 1, 2004, Index No. 129996/93; Chaffin v Hamburg School Car Service, Inc., Sup Ct Erie County, November 5, 2004, Index No. 6324/2002. 


Not only has the biomechanical engineer's methodology been called into question, but the crash test studies and other biomechanical writings--to the extent the engineers have bothered to identify them--have been scrutinized and rejected as either irrelevant or unreliable for a number of reasons, which we proceed to demonstrate.



 Defendant's Expert Cannot Rely on Purported 

 Biomechanical Engineering Studies to Negate 

 The Possibility of Mr. LaMott's Injuries 


As already discussed, biomechanical engineers typically rely on crash test studies to form their opinions that a plaintiff could not have sustained injury in the car accident that is the subject of the lawsuit. As we can see from Defendant's pre-trial disclosure--stating his expert will base his opinions on “materials and publications,” and research involving human subjects, dummy testing and related biomechanical studies--this case is no different. Thus far, we had been kept in the dark as to the precise studies Dr. Biomech will purportedly rely on. 


The Court must realize however, that the vast majority of studies to which biomechanical engineers typically refer have already been analyzed and substantially rejected by other courts, on a number of grounds. Thus if Defendant's expert is to testify, he must first identify the studies he intends to use, present them to the Court, and convince the Court that these studies, unlike the studies consistently rejected by other courts, somehow withstand Frye scrutiny. We are confident that Defendant's expert will be unable to do so.



 Defendant Will Not Be Able to Show That Any Biomechanical Studies Have Been Generally Accepted Within the Relevant Scientific Community for The Purpose of Determining Likelihood of Injury to a Particular Person 


The following cases have rejected biomechanical engineering testimony and the biomechanical literature and/or studies upon which the testimony was founded. 


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


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


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


Cromer v. Mulkey Enterprises, Inc., 254 Ga. App. 388, 562 S.E.2d 783 (2002); 


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


Graham v Davis, Cause No. 02D01-0103-CT-98 (Allen County Superior Court, Indiana); 


Rizzi v. Mason, 799 A.2d 1178 (Del. Super. Ct. 2002), judgment aff'd, 843 A.2d 695 (Del. 2004); 


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


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


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


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); 


In forming his analysis of impacts and how they affect the human body, the expert in Cromer used data published by the Society of Automotive Engineers, cadaver tests and volunteer tests, as well as various books that addressed the movements and injury mechanisms of the human neck. Affirming his preclusion, the Georgia Court of Appeals found that these materials were inconclusive and reference thereto ineffective: 


“Simply mentioning that there have been ‘cadaver tests’ or that volunteers have been filmed in low-speed accidents does not answer the question. No information was provided that scientific studies have been performed to show how much force and movement it takes to herniate a disk or to tear a rotator cuff. No treatises or cases from other jurisdictions were introduced to support Cromer's position.” [Emphasis added.] 


The expert in Whiting was also criticized. His statements that “the way an individual's body responds to traumatic incident is analyzed and reported to a great extent in biomechanical literature,” (which he relied upon to reach his conclusions) was meaningless, given his failure to submit the studies to the court, or even to identify them. See also, Azzano v. O'Malley-Clements, 126 Ohio App. 3d 368, 710 N.E.2d 373 (8th Dist. Cuyahoga County 1998) (despite expert's references to “overwhelming literature,” his failure to identify and introduce into evidence such literature rendered his opinions inadmissible, resulting in a new trial.) 


But failure to identify precise studies is not the only thing that invalidates the experts' opinions--the courts have had no compunction in rejecting even unspecified studies as either unreliable or irrelevant. For example, the expert in Suanez merely discussed before the jury, without identification or production, “biomechanical literature,” including cadaver tests and human volunteer exposure studies on military personnel. Plaintiff's attorney brought out on cross-examination that pilots and sailors in the military are generally physically capable young males, unlike the plaintiff in that case, a middle-aged woman with pre-existing degenerative conditions. The studies the expert referred to (apart from being unidentified) were simply inapplicable. Reversing judgment for the defendant and remanding the case for a new trial, the New Jersey appellate court stated: 


“The only specific scientific tests to which Thibault referred were performed either upon cadavers or upon military personnel under controlled conditions quite dissimilar from an automobile accident. Moreover, there is no indication that the persons who performed the tests or others in the scientific community have concluded that they provide a reliable foundation for drawing any conclusions concerning the physiological effects of a low-impact automobile accident upon a middle-aged woman. Thibault's further reliance upon unidentified articles by unidentified authors in various international journals did not provide any discernable foundation in scholarly literature for his opinion.” [Emphasis added.]

The Suanez decision also illustrates the most glaring flaw in the biomechanical engineer's use of crash test studies, which is:



 Crash Test Studies Cannot Take into Account a Particular Person's Physical Condition or Vulnerabilities, Meaning They Are Incapable of Predicting Whether Any Given Individual Could Be Injured in a Given Collision 


Suanez tells us that tests performed on dead people or military personnel cannot be utilized to predict injury in a middle-aged woman with a pre-existing degenerative disease. Rizzi v. Mason, 799 A.2d 1178 (Del. Super. Ct. 2002), judgment aff'd, 843 A.2d 695 (Del. 2004) (also a rear-end collision case) stands for the same premise. In that case, the biomechanical expert relied upon studies of normal spines: but the plaintiff's spine had already been injured, rendering those studies inapplicable. Admission of the expert's opinions, “because they were based on studies of normal spines, would have resulted in juror speculation, confusion and unfair prejudice to plaintiff.” 


It is Plaintiff's position that no study can account for each individual's particular physical condition or vulnerabilities. The court in Eskin v. Carden, 842 A.2d 1222 (Del. 2004), perhaps the most recent decision on biomechanical engineering testimony, would seem to agree. In that rear-end collision case, the biomechanical engineer intended to testify, inter alia, that the loadings associated with the collision were less than the loadings associated with everyday activities such as walking, bending, and lifting, placing the collision in category AIS-1 (minor transient injuries) of the “Abbreviated Injury Scale” (“AIS”) developed by the American Medical Association, the Association for the Advancement of Automotive Medicine, and the Society of Automotive Engineers. Relying on crash test studies, the expert suggested, that no human being would have suffered the injury that the plaintiff claimed to have suffered in the subject accident. 


The court, while reluctant to discount the use of all biomechanical evidence in every case, made it clear that the criteria for admissibility are unlikely to be satisfied. The court began by stating: 


The trial judge must be satisfied that the generalized conclusions of the biomechanical expert are applicable to a particular individual. For example, did the expert consider the effect of pre-existing medical conditions and the unique susceptibility of a particular plaintiff to the injuries claimed? Does the “field” of biomechanical engineering adequately test for these highly individualized characteristics and document verifiable statistical results about which an expert within the field can render a trustworthy opinion in a particular case?

The court then acknowledged the inapplicability of generalized tests to particular individuals and “the “field's ‘one-size-fits-all’ statistical range.” The court recognized “For example, if the crash test dummy or a member of the control group is replaced with an uniquely susceptible driver, those indicia of reliability become a fa[[ ccedil ]]ade.” 


The plaintiff in Eskin, unlike the volunteers in crash test studies, had previously injured her back and had undergone surgery. The expert, however, “apparently consistent with others in his ‘field’ made no attempt to take it into account the specific personal history of any injured person.” Affirming the expert's preclusion, the court further found that he “had neither the competency nor the opportunity to consider these idiosyncratic circumstances,” adding: 


No evidence of record suggests that any expert in his field [biomechanical engineering] would be competent, or would have taken the opportunity, to do so. Nothing in the record suggests that Thibault or anyone else in the field of biomechanics has performed reliable testing to validate such an opinion if proffered by an expert in his field. 


The court in Eskin recognized that crash test studies lack reliability because no one can measure the validity of their results as they may apply to an individual with a potentially “abnormal” human body. As this Court will learn during the course of this trial, Samuel LaMott has one of those “abnormal” human bodies. At the time of the accident, he suffered from not only degenerative disc disease, but also a congenital condition in his cervical spine that predisposed him to injury. For the reasons stated in Eskin, Rizzi, and Suanez, there are simply no biomechanical engineering studies to substantiate the opinion that Mr. LaMott, with his particular vulnerabilities, could not have been injured as he claims in the accident that is the subject of this lawsuit. 


If the Court is not yet persuaded that Defendant's biomechanical expert should be precluded, we now discuss the other reasons biomechanical engineering studies have been rejected.



 Crash Tests Relied Upon By Defense Biomechanical Engineers Typically Involve Too Small A Sample Size 


In Clemente, Justice Maltese reviewed and rejected as unreliable four studies on which the expert based his opinions because they involved too few test subjects. He noted correctly that the sample size was: 


. . . too small to create a statistically significant inference to make a general conclusion about the entire automobile riding population involved in rear-end collisions.

On top of that, the study volunteers were associated with either the authors or the sponsors of the studies, which may have biased the results. The court in Brock rejected two similar studies (conducted by the expert's employer, Biodynamics Research Corporation) for the same reasons, noting also that they were mentioned in peer review publications only to be criticized and refuted.



 Defendant Will Not Be Able To Show That Any Biomechanical Studies Have Been Conducted Under Circumstances Sufficiently Similar To This Accident 


Where tests or studies are involved in helping the expert reach his opinion, such testimony should be excluded unless it is proved that the conditions existing at the time of the test and the facts at issue are substantially similar. Cramer v. Kuhns, 213 A.D.2d 131, 630 N.Y.S.2d 128, Prod. Liab. Rep. (CCH) P 14321 (3d Dep't 1995); Clemente; Tittsworth v. Robinson, 252 Va. 151, 475 S.E.2d 261 (1996). Otherwise, the studies are irrelevant. 


Crash tests are performed under controlled conditions: real-life crashes are not. Administrators of such studies are required to take precautions to prevent injury. Biomechanical studies that do not involve rear-end automobile collisions, such as aeronautical, Navy pilot, and other military studies are not relevant to rear-end automobile collisions. (See, e.g., Whiting, Benge, Suanez.) Studies that involve crash test dummies or cadavers also are not relevant to real-life rear-end automobile collisions. (See, e.g., Suanez, Cromer.) Studies conducted in designing cars are not pertinent to those studies designed to make predictions as to what will not happen in a given situation. Affirming preclusion in Schultz v. Wells, 13 P.3d 846 (Colo. Ct. App. 2000), the appellate court wrote: 


Additionally, the [trial] court questioned the validity of using a series of tests designed for one purpose (designing cars) for a different purpose (assessing a threshold of applied force for injury in rear-end car accidents). Specifically, the court addressed the circumstances of the tests that did not correspond with the circumstances of a rear-end car accident. It noted the fact that the statistical sample in the tests was ‘extremely low,’ and there were ‘no controls among and between the experiments with regard to age, physical conditions [and] actual position of the body.’ Also, the court noted the “expectation factor” of knowing one is going to be hit, as opposed to being unaware of an impending collision. The court concluded that there “is great controversy in the field about the quality and comparability of these tests. 


As discussed, courts have found that participants in motor vehicle studies are normal, healthy individuals. They are moreover, unlike real-life crash victims, seated in ideal seating position, with their heads facing forward, anticipating an impact of known severity. Mr. LaMott testified that he was completely unprepared for the collision of November 25, 1992. And there is no evidence establishing exactly how he was seated or where he was looking at the moment of impact It would be error to assume he was facing forward. Also, the fact that his vehicle sustained more damage on the passenger side than on the driver's side (apparently due to Defendant's vehicle's skidding) suggests that the angle of impact was different than in controlled crash test studies. 


The circumstances and conditions of the crash in which Mr. LaMott and Mr. Bateman were involved were decidedly different than any of the crashes that were made to happen in crash test studies. The studies are unreliable and irrelevant to the issues in this case.




As Judge Maltese wrote in Clemente v Blumenberg, “A well-credentialed expert does not make invalid science valid merely by espousing an opinion.” A jury should hear only competent, reliable scientific evidence. No court should allow an expert to present speculation as a scientifically accurate opinion and a jury to be swayed by the ipse dixit of the of the expert. 


Plaintiff has demonstrated that the proposed expert testimony--to the extent it can be discerned form the pre-trial disclosure--is scientifically suspect and should be precluded. However, if the foregoing has not convinced this Court that preclusion is necessary, given Plaintiff's objection and the novel scientific nature of the testimony, the Court must at least hold a Frye hearing. At the hearing, it will be the Defendant's burden to prove that the proffered expert testimony satisfies Frye scrutiny. Hammond v. Alekna Const., Inc., 269 A.D.2d 773, 703 N.Y.S.2d 332 (4th Dep't 2000); Oppenheim v. United Charities of New York, 266 A.D.2d 116, 698 N.Y.S.2d 144 (1st Dep't 1999).