Sheila Harper’s vehicle was struck by a Ford F-350 driven by Michael LaBeau at an intersection on the Naval Construction Battalion Center in Gulfport, Mississippi on August 10, 2021.
Michael LaBeau was acting within the course and scope of his employment with the United States Navy when the accident took place. Harper filed an administrative complaint under the Federal Tort Claims Act, before filing this lawsuit against the United States.
She designated her treating physician, Dr. George Salloum, as an expert witness. The United States asked the Court to exclude Salloum’s opinion that the surgeries he performed on Harper’s shoulders were causally connected to the accident. Harper asked the Court to strike the expert testimony of the United States proposed expert witness, Evan McConnell, who was designated as an expert in the fields of accident reconstruction and biomechanical engineering.
Harper argued that McConnell provides medical opinions that are outside his field of expertise. She further asserts that his opinions are unreliable because he did not visit the accident scene, inspect the parties’ vehicles, conduct interviews concerning the accident, or “perform any physical or virtual crash reproductions.”
The United States argued that Salloum’s causation opinion should be excluded because he did not rule out other possible causes of Harper’s shoulder injuries, and he did not know that she had undergone two rotator cuff surgeries on her right shoulder prior to the accident at issue. It was further asserted that Salloum was not aware of “Harper’s significant history of serious falls requiring various treatments.”
Accident Reconstruction Expert Witness
Evan McConnell holds a B.S. degree in Bioengineering and an M.S. degree in Biomedical Engineering, and he is a registered professional engineer in the states of Georgia, Alabama, and Tennessee. He is also an Accredited Traffic Accident Reconstructionist through the Accreditation Commission for Traffic Accident Reconstruction (ACTAR #3600) and a certified XL Tribometrist. McConnell has extensive experience in analyzing the dynamics and biomechanics involved in numerous accidental events, including low- and high-speed auto accidents, slip and fall events, and workplace injuries, among others.
Orthopedic Surgery Expert Witness
George Salloum joined Bienville Orthopaedic Specialists in 2001. He specializes in sports medicine along with reconstructive surgery of the shoulder and knee. Salloum uses an arthroscopic and muscle sparing approach to the knee and shoulder, resulting in shorter hospital stays and more rapid rehabilitation. He has been at the forefront of the latest techniques in balancing knee replacements, including consulting with implant companies on both techniques and devices as well as teaching and lecturing other surgeons on the newest balancing techniques. He has extensive experience in robotic knee replacements.
Salloum is board certified by the American Board of Orthopaedic Surgery with a Certificate of Added Qualification in Orthopaedic Sports Medicine. He completed his internship and residency at the University of Mississippi Medical Center, Department of Orthopaedic Surgery and Rehabilitation in 2001. Salloum sees patients at the Biloxi and Gulfport locations and is accepting new patients.
Discussion by the Court
Harper’s motion to strike the United States’ expert witness Evan McConnell
McConnell prepared a seventeen-page report supported by numerous citations to peer-reviewed literature, a simulation of the angle of impact, photographs he reviewed, and two charts depicting compressive loads on the spine. He explained that he did not visit the scene of the accident because his review of the accident report and “Google Earth overviews of the accident site” revealed that “there were no specific roadway factors at this location that would influence the dynamics of the contacting vehicles in such a way as to affect the subsequent biomechanical analysis.”
He researched vehicles similar to Harper’s Chevrolet using the National Highway Traffic Safety Administration’s Crash Investigation Sampling System.
Using the data he retrieved, he “concluded that the subject Chevrolet likely experienced a primarily rearward-directed delta-V of up to but no more than 7 mph in the accident.” The lack of airbag deployment further supported this determination.
Harper claimed that she suffered injuries to her head, arms, wrists, neck, and shoulders in the accident. While reviewing Harper’s medical records to determine injuries diagnosed in her medical records, he concluded that “the contact between the left-rear of the Ford [driven by LaBeau] and the left-front of the Chevrolet [driven by Harper] would have been expected to result in a primarily rearward-directed change in speed (delta-V) of up to 6 miles per hour (mph) for the Chevrolet.”
Whether McConnell Offers Inappropriate Medical Opinions
Most courts that have addressed this issue have determined that biomechanical engineers are qualified “to render an opinion as to the forces generated in a particular accident and the general types of injuries those forces may generate,” but they are not qualified to offer opinions as to specific causation, i.e., “the precise cause of a specific injury.”
The Court held that McConnell’s opinions pertain to general causation, such as the forces that an occupant of a Chevrolet would be subjected to in the car accident at issue. He has not issued any specific opinions concerning the cause of Harper’s injuries.
Whether McConnell’s Opinions Are Reliable And Relevant
Harper argued that McConnell’s opinions are unreliable and unhelpful due to his failure to visit the scene of the accident, interview witnesses, inspect the parties’ vehicles, or “perform any physical or virtual crash reproductions.”
McConnell has explained that an inspection of the scene of the accident was not necessary due to the road conditions and nature of the accident. He has also testified that the use of photographs in the field of accident reconstruction “is a well-accepted, repeatable, and reliable methodology supported by peer-reviewed literature,” and he cited peer-reviewed articles supporting this methodology in his report. The Court found that McConnell’s opinions are supported by sufficient facts and data as well as an accepted peer-reviewed methodology. Furthermore, his testimony will assist the Court in determining the amount of force generated by the accident.
The United States’ Motion To Exclude Salloum’s Causation Testimony
Salloum offered the following opinion: “Within a reasonable degree of medical probability, I feel that the motor vehicle collision caused the left shoulder rotator cuff tear and the recurrent rotator cuff tear to the right shoulder and aggravated. Likely pre-existing carpal tunnel syndrome bilaterally. I anticipate no future medical costs with regards to these injuries at this point.”
He further opined that she reached maximum medical improvement for both of her shoulder surgeries on October 13, 2022.
During his deposition, Salloum testified that he did not have access to Harper’s medical records and treatment history when formulating his opinion, so he could only rely on the medical history provided by Harper. Salloum testified that he was aware Harper had previous surgery on her right rotator cuff, and his medical records reflect that she informed him of that prior surgery.
The Court has not found any basis in the record for excluding Salloum’s opinion that the accident caused Harper’s left shoulder injury. Furthermore, there is testimony and evidence before the Court indicating that Salloum was aware of Harper’s pre-existing right shoulder injury when he determined that the right shoulder injury that he surgically repaired was caused by the accident. Finally, while there is some confusion regarding Salloum’s treatment and opinions concerning Harper’s right shoulder, there is no danger of confusing or providing prejudicial information to a jury in the present case, and the Court will be in a better position to consider the United States’ arguments concerning Salloum’s testimony at trial.
Held
- The Court denied the motion to strike expert witness Evan McConnell filed by Plaintiff Sheila Harper.
- The Court denied the motion to exclude causation testimony of George Salloum filed by Defendant United States of America.
Key Takeaways:
- McConnell’s opinions pertain to general causation, such as the forces that an occupant of a Chevrolet would be subjected to in the car accident at issue. He has not issued any specific opinions concerning the precise cause of Harper’s injuries.
- The United States has not identified any record of prior injury to Harper’s left shoulder that Salloum should have considered before opining as to the causation of Harper’s left shoulder injury. Harper’s other accidents and injuries appear unrelated to her shoulder injuries; thus, at this time, the Court cannot fault Salloum for failing to consider them.
Case Details:
| Case Caption: | Harper V. The United States Of America Et Al |
| Docket Number: | 1:23cv197 |
| Court: | United States District Court for the Southern District of Mississippi, Southern Division |
| Order Date: | September 23, 2024 |
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