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Trial Tips - The Biomechanical Expert for the Defense

December 8, 2014
By: Frank Scahill

The New York State Trail Lawyers sponsored a CLE class entitled "How To Attack the 'Junk Science' of the Defense Biomechanical Expert" on October 9th limited to Plaintiff's counsel. The announcement noted: "This program is open only to plaintiffs-only attorneys. All registrants will be asked to sign an affidavit prior to entering the program." The program promised attendees would:
Learn to identify the fallacies and absurd assumptions of the defense biomechanical expert, and how to expose them with crucial litigation and cross-examination techniques.
Learn how to defeat the "Seat Belt Defense" in auto cases with real-world data.
Learn how to prove injury causation in personal injury, TBI and medical malpractice cases using national hospital and crash injury data contained in US government databases.
The seminar was given by Michael D. Freeman, Ph.D. an Affiliate Professor of Epidemiology and Psychiatry at Oregon Health and Science. This is the same person who co-authored "From Good Hands to Boxing Gloves: How Allstate Changed Casualty Insurance in America."

Why the urgency to defeat the testimony of a biomechanical expert for the defense? Obviously the testimony of a qualified biomechanical expert based on proven scientific analysis is effective and admissible in New York. Recent appellate cases have shown the trend that the biomechanical expert is allowed to testify without the necessity for a FRYE hearing (see Vargas v. Sabri 115 A.D.3d 505 N.Y.A.D. 1 Dept. March 13, 2014).

In Valentine v. Grossman 283 A.D.2d 571 (2d Dept. 2001), the Court held, "The trial court erred in excluding the testimony of the second biomechanical on relevancy grounds. That expert testified that, in his opinion, the difference between the force applied in the studies conducted on living people and the force generated in this collision was not significant. The testimony was clearly relevant. It tended to make the defendants' contention, that the accident was not severe enough to have caused the injuries sustained, more probable (see People v. Fagan, 215 A.D.2d 686, 687, 628 N.Y.S.2d 118). The weight to be accorded this expert testimony is a matter to be determined by the jury (see Coates v. Peterson & Sons, 48 A.D.2d 890, 369 N.Y.S.2d 503). This testimony was also admissible because it was probative of the central issue of the case (see Crisci v. Sadler, 253 A.D.2d 447, 676 N.Y.S.2d 646).

Does science work for the defense in a Courtroom? It does for us. Take a glance at the attached transcript from a 2013 trial in Queens. The jury found for the defense on this case on a claim where the injuries alleged result in arthroscopic surgery of the right knee and arthroscopic surgery of the right shoulder. The debate will go on in this subject matter. However, juries appreciate demonstrative evidence and on the right case a biomechanical expert can win the day.

Read the transcript here.

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