Biomechanical Expert Permitted to Testify as to Forces, But Not Injuries

In a recent rear-end collision case, Neat v. Pfeffer, Supreme Court, New York County (Judge Bluth) allowed defendant’s expert Dr. Fijan, a biomechanical engineer, to testify “as to the forces involved in the accident” but not “as to whether those forces could have caused plaintiff’s injuries.”

The court reached this determination following a so-called Frye hearing to determine whether the methods Dr. Fijan used to reach his conclusion are generally accepted in the scientific community. This is the standard for the admissibility for expert testimony that applies in New York, based on the 1923 decision of Frye v. United States, 293 F 1013.

The court explained that

a Frye hearing is held to determine whether the accepted techniques, when properly performed, generate results accepted as reliable within the scientific community generally. … Frye emphasizes counting scientists’ votes, rather than on verifying the soundness of a scientific
conclusion.

After determining the force of the impact and how plaintiff’s body moved inside the taxi in which she was riding due to the impact, Dr. Fijan then concluded that those forces could not have caused her shoulder tears, knee tear, or claimed injuries to her neck and back.

The court initially held that Dr. Fijan was permitted to testify as to the accident reconstruction:

[T]he Court finds the field of accident reconstruction, and the methods of calculating the forces involved in the accident, and even how much force was applied to bodies inside the taxi, is generally accepted in the scientific community. Whether Dr. Fijan’s assumptions (relying on a single black and white photo, not taking into account that plaintiff testified the vehicle traveled two car lengths due to the impact, etc.) render his findings unreliable is for cross-examination; the jury will decide how much of his testimony to believe, if any. And so while the numbers Dr. Fijan plugged into the formulas may be challenged, there can be no serious question that the formulas are generally accepted in the field of accident reconstruction.

The court next held, however, that “Dr. Fijan could not show significant peer-reviewed literature validating the methods he used to conclude that the forces of that accident could not have caused the injuries plaintiff alleges she suffered.”

Citing to, among other things, Dr. Fijan’s lack of medical training, the court reasoned:

Some of Dr. Fijan’s cited literature came from the National Highway Traffic Safety Administration (NHTSA); it has done numerous studies with crash test dummies, many of which have led to important safety improvements in vehicles. However, while these studies have been based on biomechanics, as stated earlier, the dummies are based upon the 50th percentile in height and weight, not a woman of plaintiffs height and weight. Besides, even if plaintiff happened to be the size of a NHTSA crash dummy, Dr. Fijan failed to show that NHSTA studies reliably predict what force it would take to tear a rotator cuff or cause a meniscus tear, for example; crash-test dummies do not have human bones or ligaments or tendons. Some of the other literature about which Dr. Fijan testified related to sports medicine. Even if studies showed that a pitcher’s rotator cuff could only withstand so many pounds of force/stretching before tearing, there was no proof that this plaintiffs rotator cuff was comparable to that of any athlete. Dr. Fijan cited to studies relied upon to build prosthetic devices and artificial joints; again, while a “normal” knee may take “x” pounds of pressure, who says this plaintiff had a normal knee? Certainly, Dr. Fijan, who is not a medical doctor, could not speak to the condition of plaintiffs body.

In sum, while the court acknowledged the utility of biomechanics in numerous areas (e.g., crime scene analysis), it held:

Dr. Fijan failed to convince the Court that his conclusion – that this accident could not have caused plaintiff’s injuries – is based on methodology generally accepted by scientists in the field of biomechanics.  Dr. Fijan cited to no peer-reviewed studies tying all these branches together – and then adding medical expertise to account for variances in the human body – in his testimony. He might do it, and other litigation consultants might do it, but in order to be admissible to a New York jury, it must be generally accepted in the scientific community at large.

The court cited to the analogous case of Santos v. Nicholas, 24 Misc.3d 999, 879 N.Y.S.2d 701 (Sup. Ct. Bx. Cty. 2009), which precluded a biomechanical expert in similar circumstances.

Share This:
(212) 227-2100