Wednesday, November 23, 2011

Low Speed Impacts in Atlanta

Medical causation must be proved to a reasonable degree of medical certainty and cannot be based on mere speculation. Cannon v. Jeffries, 250 Ga. App. 371, 372 (1) (551 S.E.2d 777) (2001).

A common misconception is that there is a correlation between damage to a car and occupant injury. To my knowledge there have been no published articles that show such a correlation. While there has been many articles showing lack of correlation between damage and occupant injury. (Robbins, M. C. Lack of Relationship Between Vehicle Damage and Occupant Injury. Society of Automotive Engineers, 1997;970494, Detroit, MI., and many others are provided on the CD)

If there is no major correlation between vehicle damage and occupant injury or the cost to repair a vehicle and occupant injury. Then what determines if an occupant is injured? Based on scientific and medical literature there are two major factors that determine the occupants risk for injury. These factors are:

 1. Human risk factors or variables (age, general health, diseases that slow healing, long thin neck, prior injuries, degenerative spine disease, history of pain before the accident, osteoporosis, diabetic, muscle mass and various other conditions that would be specific for the occupant. But it must make clinical sense why it would increase the risk for injury.)

 2. Forces imposed on the occupant. (Vehicle safety rating, position in the car, type of bumper, distance from the head to the seat back, surprise of the occupant, type of seatbelt used, angle of collision, if the breaks we applied during collision, surprised by the collision, multiple collisions or if the occupants head was turned during impact. There are literally hundreds of other factors that can increase or decrease the risk of injury, and again they must make clinical sense.)

As you can see determining the factors for injury is not as simple as, “there is $1,500.00 of damage to your car so you should have X injuries”. If a 93 year old female (with osteoporosis, arthritis, obesity and diabetes) is in the same car as an 18 year old healthy college football player, no one would expect the same threshold for injury of the two occupants.

Furthermore, a scratch to a Mercedes may cause thousands of dollars in damage. While an older model vehicle may be totaled for under $1000.

There have also been many US court rulings on this issue. On of the most noteworthy is the 2001 Delaware Supreme Court ruling that, “counsel may not argue that there is a correlation between the extent of the damage to the automobiles in an accident and the extent of the occupants’ personal injuries….”.

A Georgia appellate court wrote, “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 the technique has reached a scientific stage of verifiable certainty. Simply mentioning that there have been ‘cadaver tests’ or that volunteers have been filmed in low-speed accidents does not answer the question.” (Cromer v. Mulkey Enterprises, Inc. (2002) 254 Ga.App. 388 [562 S.E.2d 783, 787].)

A New Jersey court that reviewed 17 studies submitted in support of an expert’s testimony wrote: “The record does not establish that experts in the field ‘accept the soundness of the methodology, including the reasonableness of relying on this type of underlying data and information.’ Hisenaj v. Kuehner (2008) 194 N.J. 6 [942 A.2d 769] (Hisenaj II); see also Eskin v. Carden (Del. 2004) 842 A.2d 1222, 1231.)

A Colorado appellate court, affirming a trial court’s finding that scientific studies failed to establish general acceptance of the delta v method, wrote 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].’ ” (Schultz v. Wells (Colo.Ct.App. 2000) 13 P.3d 846, 852.)

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.

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

Experts may not give opinions outside domain of science, art, or trade in which they are experts); Woods v. Andersen, 145 Ga.App. 492, 494(3), 243 S.E.2d 748 (1978) (opinion of expert regarding scientific works pertaining to his profession amounts to something more than mere hearsay.

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