IN THE SUPERIOR COURT OF THE STATE OF DELAWARE IN AND FOR NEW CASTLE COUNTY ) ) ) ) ) ) ) ) ) ) ) ORDER. Defendant s Biomechanical Expert Witness

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1 IN THE SUPERIOR COURT OF THE STATE OF DELAWARE IN AND FOR NEW CASTLE COUNTY YOLANDA S. DiVIRGILIO, v. Plaintiff, MARLA R. ESKIN, ESQUIRE, as Administratrix of the Estate of Robert P. Chickadel, deceased, Defendant. C.A. No. 02C MMJ ORDER Defendant s Biomechanical Expert Witness 1. Plaintiff has moved in Limine to exclude the testimony of Lawrence E. Thibault, Defendant s expert witness in the field of biomechanics. Plaintiff has asserted that Thibault s opinion is inadmissible under the five-part Daubert 1 test. 2. A witness may testify as an expert if: (i the witness is qualified as an expert by knowlede, skill, experience, training or education...; (ii the evidence is relevant and reliable; (iii the expert s opinion is based upon information reasonably reliedupon by experts in the particular field...; (iv the expert testimony will assist the trier of fact to understand the evidence or to determine a fact in issue...; and (v the expert 1 Daubert v. Merrell Dow, 509 U.S. 579 (1993.

2 testimony will not create unfair prejudice or confuse or mislead the jury In a personal injury action, the party arguing a relationship between the extent of injury and damage to the vehicle must produce competent expert testimony on the issue. 3 In this case, Defendant s proposed biomechanical expert, Thibault, opined: A biomechanical analysis of her injuries reveals that the documents complaints approximately ten days following the accident are not consistent with such a low speed, side-swipe vehicle contact. She complained of pain in the neck and back along with pain that went down her arm. She also complained of headaches. The Abbreviated Injury Severity scale is a systematic method used to quantify injury severity, ranging from 0 (no injury to 6 (maximum, often fatal. During the subject incident, Ms. DiVirgilio could have experienced some minor muscular strain, which is classified as an AIS-1 injury. This would be because of her reported posture during the event. Under the conditions associated with this minor accident, Ms. DiVirgilio would remain stationary relative to the interior of the vehicle, i.e., she would not appear to move rearward. Therefore, the inertial forces of the event were small and one would expect no significant injuries to Ms. DiVirgillio. Subsequent to her first visit with Dr. LaTonn on 3/1/00, there are additional reported complaints by Ms. DiVirgilio. I would e of interest in this matter if the health care providers would be more 2 Cunningham v. McDonald, 689 A.2d 1190, 1193 (Del Davis v. Maute, 770 A.2d 36, 40 (Del

3 specific and explain the thresholds for these injuries and the mechanisms of the trauma, since I am not a clinician. These injury thresholds and the associated mechanisms of these injuries could then be compared with the literature and the issue could be investigated from both the clinical perspective as well as the scientific point of view. In my opinion the accident resulted in paint scraping with minor sheet metal seam deformation to the right rear area of a 1997 Hyundai. This contact would produce little or no forward displacement of the Hyundai and a concomitant vehicle Delta-V of less than 2 mph. Under this condition the inertial force would be approximately 1-2 g s. This is equivalent to normal vehicle acceleration as one moves forward from a stoplight. The forces acting on the cervical and lumbar spine are equivalent to those generated while walking slowly. Each heel strike produces 2 g s acting through the spine. Low speed impacts to vehicles with human volunteers onboard have been studied in the field of Biomechanics. For levels of Delta-V up to 11 mph there were no injuries reported. In the study there was a population of men and women, ages 19 to 61 years and a total of 647 human exposures. 4. This Court previously has excluded Thibault s biomechanical expert testimony on the grounds that the jury would be confused or misled because the proffered testimony did not create a sufficient connection between evidence of common behavior and the specific facts of the case. 4 Admissible biomechanical testimony bridges the gap between the general forces at work in an accident determined by physical forces analysis (whether it be physics or engineering 4 Eskin v. Carden, 842 A.2d 1222, (Del

4 and the specific injuries suffered by the particular person who was affected by those forces Thibault s testimony was found to have been properly excluded: Thibault s proffered opinion was that the physical forces involved in this car accident could not have caused Carden s particular injury. Thibault sought to counter the evidence that the slight forces involved in the automobile accident did in fact cause Carden s injury. His proffered view did attempt to particularize Carden s individual response to the forces at work, by suggesting that no human would have suffered the injury about which she complained (acute lumbar spine disc herniation given that the minimum loading forces at work were consistent with ordinary daily activities such as walking, bending and lifting. Thibault s view however apparently consistent with others in his field, made no attempt to take into account the specific personal history of any injured person The Eskin analysis is applicable in this case. Although Thibault concluded that Plaintiff s minor muscular strain was a result of her reported posture during the event, there is no indication that this conclusion is based upon any scientific testing or study. Thibault does not draw anything other than a conclusory connection between the general physical forces and the alleged resulting lack of injury to Plaintiff, who was in an unusual physical position (leaning over at an angle at the time of impact in the vehicle. Further, Thibault 5 Id. at Id. at

5 refers to studies for levels of Delta-V up to 11 mph. Thibault appears to assume, without factual foundation, that the vehicle did not exceed a certain speed upon impact based solely on his observation that damage to the vehicle consisted in paint scraping with minor sheet metal seam deformation. 7. THEREFORE, the Court having found that Defendant s biomechanical expert s testimony might confuse or mislead the jury, Plaintiff s Motion in Limine is hereby GRANTED. The testimony of Lawrence E. Thibault, Sc.D. is hereby excluded. Plaintiff s Medical Records 8. The medical records provided to the Court appear to have been compiled by health care providers during the course of Plaintiff s treatment. Such records are admissible as records of regularly conducted activities pursuant to the hearsay exception in Rule of Evidence 803(6. Although the availabilty of the declarant is immaterial, the custodian of the records must testify, unless the parties stipulate otherwise. 7 Unless it is subsequently demonstrated that any of the provided medical records were prepared solely in anticipation of litigation and not for the purpose of treatment of the Plaintiff, the medical records will be admitted at trial. 7 Counsel typically enter into such a stipulation. 5

6 Dr. Atkins Testimony Relating to May 23, 2005 Note 9. A trial video deposition of Plaintiff s witness, Dr. Atkins, was taken on June 20, Immediately prior to the deposition, Defendant s counsel was first provided with a copy of Dr. Atkins May 23 report. Defendant asserts that the report changed the complexity and nature of the case and that Defendant was at a disadvantage in effectively cross-examining Dr. Atkins as a result of Plaintiff s failure to timely provide the report. 10. When the May 23 report is compared to Dr. Atkins June 27, 2001 EMG report and office records prior to June 23, 2005, it is not clear to me, not having been trained in medicine, in what particular way the May 23 report differs from the prior documents. Therefore, at this time, I cannot rule definitively as to the admissibility of the May 23 report and any resulting redactions from the trial video depositions. Upon a showing by Defendant of how the May 23 report changes the nature and complexity of the case, and how any change results in prejudice to Defendant, I will be in a position to rule. IT IS SO ORDERED this 29 th day of June, The Honorable Mary M. Johnston 6