Expert Witness Profiler

Category: Biomechanical Engineering Expert Witness

  • Biomechanical Engineering Expert Witness’ Opinion Supported by Industry-Approved Methods

    Biomechanical Engineering Expert Witness’ Opinion Supported by Industry-Approved Methods

    On November 6, 2022, the Plaintiff, Jean Joyce Lejeune, was driving a 2021 Toyota Camry westbound on I-10. The Plaintiff alleged that while she was traveling, an 18-wheeler switched lanes and collided with her vehicle. The parties disputed which vehicle deviated from its respective lane. The Defendant, Moses Nganga Rugu, was the driver of the 18-wheeler. Rivatex Transport, Inc. owned the truck, and American was the insurer.

    Defendant American hired Richard V. Baratta and intended to present him as an expert in biomedical and/or biomechanical engineering to testify at trial. The Plaintiff asserted that Baratta’s opinion was “bought and paid for” and challenged the methodology underlying his conclusions. Additionally, the Plaintiff argued that Baratta was not qualified to render biomechanical or biomedical opinions and that his opinions were not based on sufficient facts or data.

    Biomechanical Engineering Expert Witness

    Richard V. Baratta is a registered professional engineer licensed in Texas as a mechanical engineer, and biomedical specialist. He is also a licensed professional engineer in Florida, Louisiana, Illinois, Alabama, New York, Indiana, Georgia, Oklahoma, Colorado, and Mississippi.

    He has been qualified as an expert in biomechanics and accident reconstruction over sixty times, including in the Western and Southern Districts of Texas. Baratta earned three degrees in Biomedical Engineering from Tulane University, including a masters’ degree and a doctorate degree.

    Get the full story on challenges to Richard Baratta’s expert opinions and testimony with an in-depth Challenge Study. 

    Discussion by the Court

    Plaintiff initially claimed injuries at the scene, went to the emergency room, and was released that same night. Plaintiff sought treatment eleven days later and is seeking over $1.8 million in future medical expenses. Defendant challenged the nature and extent of Plaintiff’s alleged injuries. Defendant has retained Baratta to address what forces and mechanisms might have been at play, or were non-existent, with respect to the incident. Plaintiff argued that Baratta is not qualified because of his methodologies that formed his opinions. Plaintiff did not appear to challenge Baratta as an expert biochemical engineer.

    Plaintiff’s Position

    Plaintiff challenged Baratta’s review of the photographs, and argued that Baratta is not an expert in interpretation of photographs. This argument is nonsensical to the Court. Experts commonly review photographs to form opinions. 

    She also complained that Baratta relied on a Uniform Vehicle Traffic Crash Report, Autostats data, Plaintiff’s deposition relative medical summary, but did not appear to challenge the use of this information. Plaintiff complained that Baratta did not rely on the estimate of the actual body-shop mechanic but relied on another repair estimate and challenges whether the author of that estimate was qualified.

    Plaintiff specifically challenged Baratta’s opinions because he did not rely on statements made by Trooper Matthew Gaspard in his deposition, or statements made by Defendant, Rugu. Also, Plaintiff challenged Baratta’s methodology because he did not inspect the accident scene, take measurements, determine the applicable “G-forces” involved in the accident, take any “delta-v” presented, render mathematical computations, measure crush damage, render or account for any methodology supporting his opinion, personally inspect the subject vehicles, determine Plaintiff’s actual levels, determine the angular approach of the alleged tortfeasor’s vehicle, weigh the vehicles involved, determine the speed or impact speed, conduct any tests to determine reliability, determine crush profiles, conduct or perform methodology to the facts, outline any of the principles of engineering to the facts, indicate that his opinions have been subject to peer review, and/or indicate whether his “methodology” is capable of being repeated.

    Defendant’s Position

    Defendant remarked that Baratta’s report indicated that he relied on and considered the Uniform Crash report, body camera footage, relevant statements made to the investigating officer, Plaintiff’s and the Officer’s depositions, damage photographs, an inspection of Plaintiff’s vehicle, statistical data of Plaintiff’s vehicle, an EDR report for Plaintiff’s vehicle, the Vehicle Control History report for Plaintiff’s vehicle, evaluation of that data through sophisticated and industry accepted crash analysis programs, and Plaintiff’s medical records.

    Applying the principles of crash analysis to the facts of this case, and basing his opinion on industry-approved, peer-reviewed, and testable methods, Defendant argued that a review of the relevant and accurate data will assist the trier of fact. 

    Analysis

    The Court reviewed Baratta’s report and considered Plaintiff’s complaints and found that they were unfounded, lacked specificity and authoritative support, and some were falsely presented to the Court. Additionally, Plaintiff’s complaint tends to bear on the weight of Baratta’s opinion rather than its admissibility. Furthermore, Plaintiff will be able to cross-examine Baratta as to his opinions and how he arrived at them at the trial of this matter.

    Held

    The Court denied Plaintiffs’ motion in limine to exclude the testimony of Richard Baratta.

    Key Takeaway:

    The trial court has broad latitude in determining the admissibility of expert testimony. Rejection of expert testimony is the exception rather than the rule, and the Court’s role as gatekeeper “does not replace the traditional adversary system and the place of the jury within the system.” Instead, vigorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof are the traditional and appropriate means of attacking shaky but admissible evidence.

    Case Details:

    Case Caption: Lejeune V. American Inter-Fidelity Exchange Et Al
    Docket Number: 2:23cv1364
    Court: United States District Court for the Western District of Louisiana, Lake Charles Division
    Order Date: January 29, 2025
  • Testimony of the Biomechanical Engineering Expert Witness About the Dangers of Inclined Sleepers Limited

    Testimony of the Biomechanical Engineering Expert Witness About the Dangers of Inclined Sleepers Limited

    For over 10 years, Fisher-Price sold a product called the Rock ‘n Play Sleeper (RnP). The Plaintiff, Ameena Brown, argued that the defective design of the RnP was to blame because her infant son, A.B., had died from sleeping in it. The dangers of this inclined sleeper product were widely debated in this case.

    It all started when A.B.’s mother, Plaintiff Ameena Brown, was gifted a secondhand Rock ‘n Play for A.B. During naptime and overnight sleep, Ameena would place A.B. supine in the RnP, which she kept in the living room.

    On January 15, 2018, the day before A.B.’s death, there was nothing out of the ordinary about A.B.’s health or demeanor. At approximately 6:00 AM the next morning, Ameena awoke and went to check on A.B. A.B. was found dead in the Rock ‘n Play.

    Erin Mannen’s investigation found, among other things, that inclined
    sleepers can cause infants to roll from their back to their stomach or side and that once the infant is in this compromised position, the infant is at a heightened risk of suffocation. Defendants asserted that Mannen “ignored” studies commissioned by Fisher-Price that reached results contrary to her own and moved to exclude Mannen’s opinions.

    Biomechanical Engineering Expert Witness

    Erin Mannen is a biomechanical engineer who specializes in infant biomechanics and is the Director of the Boise Applied Biomechanics of Infants (BABI) Laboratory. She has published several peer-reviewed papers on the subject and won the American Society of Biomechanics Early Career Achievement Award for this work.

    Want to know more about the challenges Erin Mannen has faced? Get the full details with our Challenge Study report. 

    Discussion by the Court

    It is noteworthy that A.B. suffered from several medical problems resulting from his premature birth, including hypertonicity. A.B. also suffered from developmental delays. Brown placed A.B., clothed and swaddled, on his back in the RnP. Sometime during the night, A.B. came to be on his side. When Brown awoke, she discovered A.B. “stiff.” Emergency services were unable to revive A.B.

    Mannen’s report considered the effect inclined sleep products have on an infant’s ability to roll from their back, an infant’s ability to correct a compromised position after rolling, the rate at which an infant attempting to correct its position would fatigue, and the consequences those compromising positions would have on an infant’s breathing.

    Mannen Qualifies As An Expert On Biomechanics

    Mannen’s testimony would also show the use of an inclined sleeper makes it harder for an infant to correct a compromising position. Mannen’s report also touched on the topic of rebreathing. Defendants contended that: (1) Mannen did not qualify as a medical doctor and cannot give medical opinions; (2) Mannen failed to account for the specific conditions present in this case, thus preventing any of the findings of her studies from being applied to the instant set of facts; and (3) Mannen’s studies did not support her conclusion and did not utilize reliable methodology.

    The Court found that her knowledge, skill, experience, training, and education meet the level of qualification required under Daubert. In other words, Defendants did not meaningfully contest Mannen’s qualifications as an expert on biomechanics.

    The specific causation testimony that Defendants objected to concerned the following conclusions: (1) rebreathing and its impact; (2) the design of the RnP facilitated A.B. turning his head and coming into contact with the soft mesh siding of the RnP; (3) A.B. died from either positional asphyxiation or suffocation; and (4) the RnP caused A.B.’s death. Defendants argued that Mannen’s lack of medical expertise precluded her from opining on the topics of rebreathing and A.B.’s cause of death. Defendants further asserted a blanket objection to “any other specific causation opinion.” Plaintiffs contended that Mannen does not offer any medical opinions, and all of her opinions regarding specific causation are based on her expertise in biomechanics.

    Mannen’s Causation Testimony Is Generally Admissible

    Defendants argued Mannen’s opinion on rebreathing should be excluded because she does not qualify as a pulmonologist and improperly relied on the report of another expert, Michael D. Leshner.

    The Court held that Mannen’s lack of qualification as pulmonologist does not necessarily preclude her from opining on rebreathing, as an expert may rely on the reports of other experts to help form the basis of their own opinion.

    Her opinion, formed based on her analysis of Leshner’s data, states “in a side-lying or a 90-degree head turn situation, [ ] an infant would experience significantly increased CO2 inhalation simply due to the design of the product.”

    Mannen synthesized that data generated by Leshner’s report; considered her peer-reviewed research, her inspection of the product, and her own expertise in biomechanics; and concluded that the environment created by placing an infant in the RnP creates “a dangerous CO2 rebreathing and/or suffocation scenario.”

    Due to the deficiencies in that other Leshner’s methodology, the Court held that Mannen may not rely on Leshner’s report.

    The Court struck Mannen’s conclusion that “in a side-lying or a 90-degree head turn situation, an infant would experience significantly increased CO2 inhalation simply due to the design of the product” because it was calculated with the data from Leshner’s unreliable methodology.

    The Court concluded that Mannen’s other conclusions regarding whether an infant would be at risk for rebreathing in the RnP were based on her examination of an RnP, her peer-reviewed research, and her expertise as a biomechanical engineer. Accordingly, Mannen’s testimony regarding rebreathing that does not rely on Leshner’s methodology is admissible.

    Mannen’s Studies Sufficiently Fit The Instant Facts and are Admissible

    Mannen’s various studies examined infants and their muscle activity when placed at various inclines. Mannen studied healthy infants wearing only a diaper.

    On the night of his death, A.B.’s limbs were restricted by a swaddle and layers of clothing. A.B. also suffered from hypertonicity, a condition of excessive muscle tone that may limit an infant’s range of motion.

    Defendants argued that these variations between the facts surrounding A.B.’s death and Mannen’s studies prevented Mannen’s opinion from possessing the requisite fit to be admissible.

    Mannen concedes she did not study infants who were clothed or swaddled, or any infants suffering from hypertonicity. Nevertheless, her studies and report explain how an infant previously unable to roll on his own may have been able to roll because of the incline present in the RnP. Further, her report explains how once A.B. rolled to his side, he may have been unable to reposition and would have struggled to breathe correctly. The Court held that these explanations are relevant to the ultimate issue in this case—how the RnP’s design may have contributed to A.B.’s death. 

    Defendants posited that Mannen, relied on tests that did not involve persons with the victim’s characteristics. However, the Court found that Mannen had a basis on which to assert that her conclusions regarding the risk of rolling for infants not suffering from hypertonicity could be applied to A.B. Mannen, provides an “ordinary infant” standard and applies that standard to an infant less susceptible to injury; thus, there is no additional susceptibility to injury that would invalidate her conclusions as applied to A.B.

    Mannen’s Studies Employed Reliable Methodology

    Defendants argued Mannen’s “easier-to-roll” hypothesis is unsupported by the studies she cites.

    As to Mannen’s conclusion that a side-facing infant would come into contact with the side of the RnP, leading to an increased risk of suffocation, Defendants argued that Mannen’s demonstration using a soccer ball in place of an infant “is not based on any recognized methodology for examining potential respiratory compromises.”

    Mannen’s studies—the 2019 Consumer Product Safety Commission study (the “CPSC study”) and the studies identified as “Wang 2020” and “Wang 2021″—examined the effects of sleep surfaces on an infant’s muscle activity to determine “if the design of inclined sleep products impacted suffocation risk from a movement and body position perspective.”

     While conducting the CPSC study, Mannen studied ten infants placed on sleeping surfaces with increasing levels of incline. Mannen and her team monitored body position and muscle activity. Mannen subsequently conducted a similar study involving 15 infants, and published those results in peer-reviewed journals as the Wang 2020 and Wang 2021 studies.

    Those studies found that infants placed in inclined sleepers experience different muscle activity and body position compared to infants on flat surfaces. Mannen opined that those differences make it easier for an infant to roll from supine to prone—a roll that necessitates the infant being on his side if only for a brief moment—which places the infant at greater risk of maneuvering into a compromised position.

    The studies were not intended to measure the frequency infants rolled when placed in inclined sleepers, but rather the inclined sleeper’s biomechanical effect on an infant’s ability to roll.

    Held

    The Court found that Mannen explained her methodology; addressed what each finding means generally and in relation to A.B.’s case; considered potential errors within the studies; and subjected both the Wang 2020 and Wang 2021 studies to peer review.

    Moreover, Defendants appeared to misinterpret Mannen’s use of a soccer ball in her opinion. 

    Defendants contend “that test, however, which involved manipulating a soccer ball by hand in a [RnP], is not based on any recognized methodology for examining potential respiratory compromises, and the test appears to have used a [RnP] model with an additional pad…” Mannen, however, did not perform a test with a soccer ball. Rather, she used the soccer ball in a series of pictures to demonstrate how something approximately the size of an infant’s head would be positioned after a 90-degree turn.

    Mannen’s use of a soccer ball as a stand-in for an infant’s head appeared reasonable to the Court. As the soccer ball’s utilization was illustrative rather than substantive, that illustration is admissible.

    The Court concluded that many of Defendants’ challenges relate to credibility and may be dealt with during cross-examination of Mannen. It was decided that Mannen may testify regarding rebreathing only to the extent that she relies on peer-reviewed studies or her own expertise; accordingly, Mannen’s rebreathing testimony may not touch on Leshner’s Report or any conclusions reliant on his methodology.

    Key Takeaway:

    Mannen utilized her expertise in biomechanics to opine on: (1) how the RnP design allowed A.B. to turn onto his side; (2) how the RnP design made it more difficult for A.B. to correct his position once on his side; (3) the risk of rebreathing and suffocation created by the RnP; and (4) the increased fatigue caused by an infant unable to correct his position. None of those opinions offer a medical opinion. All those opinions are either the direct product of Mannen’s expertise, or her reasonable reliance on the reports of other experts. Thus, Mannen’s lack of medical expertise does not preclude her from offering those opinions.

    Case Details:

    Case Caption: Ameena Brown V. Fisher-Price, Inc.
    Docket Number: N20C-01-067
    Court: Superior Court of Delaware, New Castle
    Order Date: December 20, 2024
  • Biomechanical Engineering Expert Witness’ Opinions About the UTV Industry Admitted

    Biomechanical Engineering Expert Witness’ Opinions About the UTV Industry Admitted

    Stephen J. Ratcliffe has brought a lawsuit against BRP, the manufacturer, and Tidd’s Sport Shop, Inc. (Tidd’s), the dealer, of a 2019 Can-Am Maverick X3, a utility terrain vehicle (UTV), asserting negligence and strict liability claims arising out of an incident in which Ratcliffe’s UTV rolled onto its side and crushed his arm. The Plaintiff is pursuing design defect and failure-to-warn theories of recovery. During discovery, by report dated September 8, 2022, Ratcliffe designated Dr. Robert J. Nobilini, a professional engineer, as an expert witness.

    BRP U.S., Inc. (BRP) filed a motion in limine to exclude the engineering opinions of Nobilini on the ground that they violate the constraints of Federal Rule of Evidence 702 and the caselaw implementing Daubert and Kumho.

    Of Nobilini’s thirteen discrete opinions, BRP specifically focuses on his conclusions that “(i) humans—like Plaintiff—have a natural protective response to extend one’s hand/arm during a UTV rollover; (ii) BRP’s warnings were inadequate or ineffective to prevent the natural protective response; and (iii) the lack of an adequate restraint system to prevent the occupant’s arm from leaving the roll cage during a rollover made the Subject Vehicle unreasonably dangerous for its intended use.”

    BRP’s motion includes many catchphrases for expert disqualification. (“unreliable and unscientific opinion testimony,” “no presumption of admissibility,” “untested and demonstrably false,” “inapplicable research studies and misleading, irrelevant and anecdotal videos, rather than testing or literature”). However, when analyzed, the crux of its argument against Nobilini’s testimony is that it is unreliable because he failed to test his opinions about alternative designs. BRP rejected Nobilini’s analogy to the response in a trip-and-fall and describes the analogy as a “classic apples to oranges comparison.”

    Biomechanical Engineering Expert Witness

    Robert J. Nobilini performs mechanical and biomechanical engineering investigations and analyses of accidents. He offers expert testimony related to slip, trip and fall accidents, automobile accidents, industrial accidents, sports and amusement related accidents, and the safety and failure of products. He  is a member of numerous professional societies, including the American Society of Mechanical Engineers, the American Society of Biomechanics, and the Society of Automotive Engineers.

    Want to know more about the challenges Robert Nobilini has faced? Get the full details with our Challenge Study report. 

    Discussion by the Court

    The Court noted that BRP has, rightly, not questioned Nobilini’s qualifications as a professional engineer. After all, Nobilini is well-qualified as a mechanical engineer with a concentration in biomechanics.

    The Court found BRP correct in its assertion that Nobilini does not refer to any studies that corroborate his view that a person would naturally extend an arm to break a fall specifically during a UTV rollover. Nevertheless, the Court does not view Nobilini’s proposed testimony as his own ipse dixit. Instead, Nobilini based his biomechanical opinion on three studies of the biomechanics of what people typically do when they are falling from a standing position. 

    Further, Nobilini viewed twenty-six YouTube videos in which the occupants put their arms out in all-terrain vehicle rollovers and a safety video by Polaris Industries, a BRP competitor, in which the Polaris representative confirmed that “[s]ometimes the natural response is to put your hand out, like you’re falling.” Nobilini also reviewed after-market products, including arm and wrist restraints, designed to restrain users of such vehicles from extending their arms outside the roll cage in the event of a rollover.

    The Court held that Nobilini has presented a reliable basis for his conclusions that Ratcliffe’s rollover accident was analogous to a fall, and, according to academic studies of the biomechanical response to falling, that a person’s natural response is to extend his or her arm to break a fall. Further, based on cumulative evidence, Nobilini articulates a reasonable basis for his opinions that the UTV industry generally was aware of the risk presented by this natural human response, that BRP specifically was aware of this risk, and that the UTV industry had developed safety features to mitigate this risk.

    Held

    The Court has concluded that Robert Nobilini’s proposed testimony meets the requisite “threshold of reliability,” and therefore it “should be presented to a jury and ‘tested by the adversary process—[by] competing expert testimony and active cross examination.’”

    Therefore, the Court dismissed without prejudice Defendant BRP’s motion in limine to exclude the opinions of Robert J. Nobilini.

    Key Takeaway:

    BRP averred that “at its core, all of Nobilini’s opinions flow from one untested and demonstrably false premise—that belted and restrained vehicle occupants instinctively reach out in rollovers.” BRP pointed out that Nobilini has “never done a scientific study of this question” and asserted that his opinion “runs counter to published literature directly on point.”

    However, Nobilini articulates a reasonable basis for his opinions that the UTV industry generally was aware of the risk presented by this natural human response, that BRP specifically was aware of this risk, and that the UTV industry had developed safety features to mitigate this risk.

    Case Details:

    Case Caption: Ratcliffe v. BRP United States, Inc.
    Docket Number: 1:20cv234
    Court: United States District Court for the District of Maine
    Order Date: November 05, 2024
  • Biomechanical Engineering Expert Witness fails to provide a “scientific connection” to the issue at bar

    Biomechanical Engineering Expert Witness fails to provide a “scientific connection” to the issue at bar

    On February 7, 2020, Mauricio Gonzalez-Lopez, who was then a 37-year-old employee of V-coin, Inc. (“V-com”), was at V-corn’s warehouse unloading a tractor-trailer owned by Perfect Trading, Inc. (“Perfect Trading”) and operated by its driver, Ding Yi (“Yi”). Defendants Perfect Trading and Yi (“Defendants”) maintained that Yi remained in his truck throughout the entire unloading of the trailer and only when a V-com employee returned the driver’s paperwork and alerted him that his truck was unloaded did he begin to pull the truck forward so that a V-corn employee could shut the trailer doors. When the tractor-trailer began moving away from the docking area, Plaintiff was walking out of the truck with a box.

    The Plaintiff alleged that due to the truck’s sudden movement forward, he lost his balance, stumbled, and fell out of the truck causing injury to his right foot. In contrast, although there was video surveillance of the incident, Defendants offered Kirk Lawrence Thibault’s expert opinion to support their theory that Plaintiff jumped, rather than fell out of the truck.

    Plaintiff Mauricio Gonzalez-Lopez filed a Daubert motion to  exclude the testimony of Kirk Lawrence Thibault, PhD, D-IBFES,  a biomechanical engineer, pursuant to Rule 702.

    Biomechanical Engineering Expert Witness

    Kirk Lawrence Thibault has a Bachelor’s of Science from the University of Pennsylvania as well as a Master’s Degree in Doctorate in Bioengineering from the University of Pennsylvania.

    He is the President of Thibault Scientific, LLC which specializes in the following areas of injury analysis: Transportion (motor vehicles, pedestrians, bicycles), Recreation and athletic trauma, Product liability, Premises liability, Pediatric injury biomechanics and Impact and crash testing and analysis.

    Intrigued by the Gonzalez-Lopez V. Perfect Trading, Inc. Et Al objections to Kirk Lawrence Thibault’s testimony? Explore other disputes over his expert opinions through our in-depth Challenge Study.   

    Discussion by the Court

    Thibault’s expert report explained that a “sudden change in velocity of one’s planted foot relative to one’s center of mass may momentarily disturb one’s dynamic stability such that one may lose one’s balance and fall forward. … If one could not step to reestablish a stable base of support, one might fall forward, resulting in a reflexive, protective response that manifests as extending one’s arms forward.” As Thibault described, the video did not demonstrate a loss of balance, but rather, showed “that [Plaintiff’s] body remained stable and upright throughout the entire event. He took active, deliberate steps with his left and right leg to position his body at the edge of the trailer. He squatted and then pushed off with both feet to hop off the trailer and jump to the ground.”

    In addition, Thibault noted there was no evidence of injuries, such as to Plaintiff’s upper extremities or to his face, torso, and lower extremities, suggesting that Plaintiff had lost his balance and fallen forward out of the trailer to the ground. In sum, Thibault concluded: “the trailer began to move forward slowly and, in response, Mr. Gonzalez-Lopez stepped to the rear edge of the trailer and jumped to the ground, where the heel of his right foot contacted the ground and sustained a fracture of the calcaneus.”

    Thibault did not derive his expert opinion from any scientific facts pertaining to Plaintiff’s fall or jump

    In this case, Defendants explained that Thibault’s opinion was based on the review of 14 specific references, in addition to his education, training, and experience. Those 14 references appeared to be the video surveillance footage, pleadings, discovery materials, medical records, witness statements, and an inspection of the docking area. As Plaintiff correctly pointed out, Thibault did not derive his expert opinion from any scientific facts pertaining to Plaintiff’s fall or jump such as his approximate height, weight, BMI, center of mass, or speed of the truck. The Court observed that Thibault did not factor in or calculate changes in velocity relative to mass or utilize any other mathematical formula or methodology that could be tested. Moreover, despite Thibault’s assertion that his analysis relied on “data and methodologies…published in peer-reviewed journals and texts,” it was unclear what those sources were. 

    Thibault’s opinion did not satisfy the precondition of providing a “scientific connection” to the issue at bar

    Thibault’s opinion was based on his observation of the video footage and review of discovery from this case rather than from any scientific methodology. Thus, it did not satisfy the precondition of providing a “scientific connection” to the issue at bar. In any event, the video footage of the incident itself was the best evidence of what occurred. Moreover, the Court requires expert testimony generally in situations where a jury of laypersons lacks sufficient knowledge or understanding of the subject matter to form a reasonable opinion. Expert testimony covering an area known and within the comprehension of the layperson is generally not helpful to the trier of fact and thus is inadmissible.

    The Court held that Thibault’s conclusion pertained to a subject matter that was familiar to a layperson: that a “sudden change in velocity of one’s planted foot” could cause a person to lose balance and fall forward. After seeing the surveillance video, based on its own experience and knowledge, the jury could assess for itself whether Plaintiff had lost his balance and involuntarily fallen or purposely and voluntarily jumped off the truck.

    Thibault did not address if Plaintiff “jumped to the ground” as the result of a deliberate decision

    Defendants sought to establish that Plaintiff’s injuries were consistent with and proximately caused by a jump rather than a loss of balance because Defendants assumed that “jumping” reflected a deliberate choice not to stay in the truck until it came to a stop. However, Thibault did not (nor could he) opine that because Plaintiff did not lose his balance and instead jumped, Plaintiff must have had the opportunity to proactively choose his course of action despite the truck’s sudden movement.

    Thibault did not address whether Plaintiff “jumped to the ground” as the result of a deliberate decision or felt compelled to do so by the unexpected forward motion of the truck in the opposite direction that he was walking. Therefore, even assuming Plaintiff jumped, Thibault’s testimony did not assist a jury in determining whether Plaintiff’s injuries were proximately caused by his own decision to exit the truck or because the sudden movement of the truck necessitated him to jump off.

    Held

    The Court granted Plaintiff’s Daubert motion to exclude the testimony of Defendants’ expert Kirk Lawrence Thibault because Thibault’s testimony did not rely on scientific methodology or assist the trier of fact.

    Key Takeaways:

    1. Helpful to the Trier of Fact: The Court requires expert testimony generally in situations where a jury of laypersons lacks sufficient knowledge or understanding of the subject matter to form a reasonable opinion. Expert testimony covering an area known and within the comprehension of the layperson is generally not helpful to the trier of fact and thus is inadmissible since it did not satisfy the precondition of providing a “scientific connection” to the issue at bar.
    2. Reliability: Thibault did not derive his expert opinion from any scientific facts pertaining to Plaintiff’s fall or jump such as his approximate height, weight, BMI, center of mass, or speed of the truck. The Court observed that Thibault did not factor in or calculate changes in velocity relative to mass or utilize any other mathematical formula or methodology that could be tested. Moreover, despite Thibault’s assertion that his analysis relied on “data and methodologies…published in peer-reviewed journals and texts,” it was unclear what those sources were.

    Case Details:

    Case Caption: Gonzalez-Lopez V. Perfect Trading, Inc. Et Al
    Docket Number: 2:21cv12906
    Court: United States District Court, New Jersey
    Order Date: April 02, 2024
  • Biomechanical Engineering Expert Witness’ Testimony As to General Causation of Injuries held to be Permissible

    Biomechanical Engineering Expert Witness’ Testimony As to General Causation of Injuries held to be Permissible

    Plaintiff Ernst Nicolas suffered severe injuries to his cervical spine, lumbar spine, right knee, and left shoulder in a motor vehicle accident that took place on September 1st, 2018, on JF Kennedy Blvd at the intersection with 63rd Street, in Jersey City. Nicolas was a rear seat passenger in a Lyft vehicle when a truck owned by Defendant ABF Freight Systems, and driven by Randy Rivers, rear-ended a Chevrolet Cobalt, which then collided with the Lyft vehicle.

    Defendant conceded liability when Plaintiff filed a lawsuit. The only remaining issue in this case is to determine the extent of damages resulting from the accident.

    Defendant retained a biomechanical engineer, William Bussone to assess the following:

    • the severity of the collision
    • the forces imparted to the body of the Plaintiff as a result of the accident
    • the absence of any mechanism to cause any permanent injury to the cervical spine, thoracic spine, lumbosacral spine and/ or extremities
    • whether the subject accident caused the alleged injuries

    Plaintiff filed a Daubert motion challenging Bussone’s testimony because he is not a licensed medical doctor. For the reasons set forth below, the Court rejected the Daubert challenge against Bussone’s testimony.

    Biomechanical Engineering Expert Witness

    William Bussone is a biomechanical engineer with an M.S. in Mechanical Engineering (from Virginia Tech) and a B.S. in Biomedical Engineering (from Michigan Tech). He has testifying experience and more than 15 years research experience in biomechanics, accident reconstruction, and human injury / tolerance to mechanical load.

    Discussion by the Court

    Plaintiff alleged that Bussone lacked the requisite qualifications to comment on the diagnosis, treatment or prognosis of an injured person. According to the Plaintiff, Bussone was unqualified to provide testimony as to medical causation.

    Bussone is Unqualified to Comment on any Area of Medicine

    The Court noted Bussone’s significant experience in the field of biomechanical engineering. After all, Bussone engaged in research regarding injury biomechanics for more than fifteen years. He read and analysed the medical records to evaluate the extent, distribution and severity of injuries as they related to biomechanical analysis. Bussone has a bachelor’s degree in biomedical engineering and a master’s degree in mechanical engineering. He has conducted research on “human tolerance to impact and acceleration loading in vehicles” and published the findings in peer-reviewed articles.

    The scope of Bussone’s proposed testimony concerned the general causation of injuries in motor vehicle accident cases, such as this one. Defendant asserted that it had no intention to have Bussone opine about the diagnosis, treatment or prognosis of any injury.

    The Court subsequently held that Bussone’s expert testimony was permissible as biomechanical experts are permitted to opine as to general causation since he will not be opining on Plaintiff’s particular alleged injuries and medical care.

    Bussone’s Opinions are not Based on Sufficient Facts and Data

    Both parties disagreed about whether Plaintiff’s alleged injuries were caused by the accident. Plaintiff was of the opinion that Bussone’s conclusions warranted exclusion on that basis. The Court, citing In re Fosamax Products Liability Litigation 645 F. Supp. 2d 164 (S.D.N.Y. 2009), observed that the jury will be the judge of whether Plaintiff’s alleged injuries were caused by the accident and it was the jury’s responsibility to assess what weight to be given to the proffered testimony.

    Expert testimony is excluded when speculative, conjectural, or based on unrealistic assumptions implying bad faith. The Court found Bussone’s opinions grounded in adequate facts and data, lacking signs of bad faith

    Held

    The Court denied Plaintiff’s motion to strike the testimony of William Bussone.

    The Court has not arrived on an outcome for this case since the remaining issues involved in this case still await resolution.

    Key Takeaways:

    1. Expertise and Qualifications Matter: The Court noted Bussone’s significant experience in biomechanical engineering, including over fifteen years of research in injury biomechanics. His educational background in biomedical and mechanical engineering further solidified his qualifications.
    2. Scope of Testimony: Bussone’s testimony focused on the general causation of injuries in motor vehicle accident cases, avoiding specific diagnoses, treatments, or prognoses of injuries, which were beyond the scope of his proposed testimony.
    3. Sufficiency of Facts and Data: Expert testimony must be based on sufficient facts and data to be admissible. The Court found no indications of speculation, conjecture, or bad faith in Bussone’s conclusions.

    Case Details:

    Case Caption: Nicolas V. ABF Freight System Et Al
    Docket Number: 1:19cv6513
    Court: United States District Court, New York Eastern
    Citation: 2024 U.S. Dist. LEXIS 41661
    Order Date: January 24, 2024
  • Slip Resistance Testing Conducted by Biomechanical Engineering Expert Witness Deemed Reliable

    Slip Resistance Testing Conducted by Biomechanical Engineering Expert Witness Deemed Reliable

    The Plaintiffs alleged that on December 24, 2020, Dr. Bruce Bunting slipped and fell outside the automatic exit doors at the CVS Store. Bunting claimed that he slipped on “slick and wet concrete that resulted from a mixture of salt and water.” The Plaintiffs alleged that CVS Pharmacy, LLC created the slick surface by “spreading the salt on a wet and warm day, which caused it to make the ground unsafe and slippery.” According to the Plaintiffs, the CVS Store was “negligently kept, maintained, and operated, creating an unreasonable risk of injury to invitees,” including Bunting. As a result of the fall, Bunting allegedly suffered a “closed fracture dislocation of his right ankle” that required surgery. The Plaintiffs further alleged that CVS’ negligence caused Bunting to suffer “serious bodily and emotional injuries and damages, including physical pain, suffering, emotional distress, inconvenience, loss of the enjoyment of life, and medical expenses.”

    One of CVS’ designated expert witnesses was Alexandra Maddox, a mechanical engineer and biomedical engineer. Maddox’s expert report detailed her investigation, including slip resistance testing she conducted on January 19, 2023, on the incident walkway surface at the CVS Store, and provided her opinions regarding the slip resistance of the walkway surface. According to Maddox, the salt and water solution that Bunting described slipping on “was less lubricating than water on a walking surface, and created greater slip resistance than water alone.” She stated that the incident walking surface was reasonably safe for pedestrian traffic and concluded that there was lack of sufficient evidence to support the claim that the incident walkaway caused Bunting’s fall.

    As part of her slip resistance testing, Maddox used an English XL Variable Incident Tribometer (“VIT”), a device used for slip resistance testing in different environments. A VIT is designed to yield coefficient of friction (“COF”) measurements that correlate to the likelihood of slip incidents occurring on a given surface. Maddox used a VIT that Excel Tribometers, the manufacturer of the English XL VIT, calibrated three days before her field test. Maddox then field calibrated the VIT the day before her field test. According to CVS, Maddox’s VIT was validated and calibrated in accordance with American Society for Testing and Materials (“ASTM”) standard F2508. Maddox also applied American National Standards Institute (“ANSI”) standard A1264.2, which recommends a COF of 0.5 or greater for walking surfaces in the workplace under dry or wet conditions. CVS asserts that Maddox “obtained slip resistance measurements under both wet and dry scenarios” pursuant to ANSI A1264.2. Consistent with the VIT device manual, Maddox used only water for the wet testing. Maddox concluded that the walkway surface had a COF of 0.64 ± .03 when dry and 0.51 ± .03 when wet.

    Plaintiffs’ filed a motion to strike all opinion testimony of Defendant’s Expert Witness Alexandra Maddox.

    Biomechanical Engineering Expert Witness

    Alexandra Maddox holds a Bachelor’s degree in Biomedical Engineering and is in the process of completing her Doctorate in Aerospace Engineering at the University of Cincinnati. During her tenure at Boston Scientific as a Biomedical Engineer, she gained comprehensive experience in medical device production, covering development, design, manufacturing, and production phases. In her undergraduate research, Maddox specialized in tissue biomechanics related to airway collapse during sleep apnea, earning recognition with the University of Cincinnati’s Biomedical Engineering Student Award for exceptional research. Additionally, she provided technical expertise to the U.S. Government as a Post-Doctoral Researcher at the University of Maryland Applied Research Lab for Intelligence and Security, focusing on testing and evaluating voice analytic tools and other biometric devices for personal vetting purposes. She works as a Biomechanical Engineer for CED Technologies, Inc.

    Discussion by the Court

    The Plaintiffs argued that Maddox was not qualified under Rule 702 to provide expert testimony regarding the slip resistance of the walkway surface at the CVS Store citing his lack of qualifications as a licensed professional engineer, a certified safety specialist, a certified Variable Incidence Tribometrist, or even a human factors expert, besides being inexperienced in testing
    or evaluating walking surfaces for slipperiness. Plaintiffs added that neither Maddox’s ongoing work as a PhD. student pertained to walkway surfaces or testing of materials nor did her Occupational Safety and Health Administration (“OSHA”) accreditations in general industry standards reflect an expertise
    in walkway safety because they were minimally focused on walkway safety and fall protection.

    CVS argued that Maddox was qualified under Rule 702 to offer expert opinions on the slip resistance and reasonable safety of the walkway surface because he did qualify as a Certified English XL Tribometrist (“CXLT”) besides possessing a valid CXLT Certificate. CVS added that it was illogical for the Court to deem Maddox unqualified to perform slip resistance testing using a VIT when the company that manufactures the very device that she used has certified that she is qualified to do so.

    It was worth noting that Maddox had a bachelor’s degree in biomedical engineering, had nearly completed her Ph.D., and has completed two accredited courses in OSHA general industry standards, including walkway safety leading the Court to conclude that Maddox was qualified under Rule 702 to offer opinion testimony regarding the slip resistance of the walkway surface at the CVS Store. Maddox obtained her CXLT certification “following
    classroom and field training provided by” the manufacturer of the VIT that Maddox later used to perform a field test of the walkway surface at the CVS Store. The Court held that Maddox’s status as a CXLT rendered her able to help the jury determine the slip resistance of the walkway surface at the CVS Store and, in turn, whether CVS was negligent in its treatment of the walkway surface.

    Plaintiff called Maddox’s VIT testing methodology “unreliable flawed science”. Plaintiff argued that ASTM F2508 failed to establish a safe threshold value for a walkway surface because it was based on VIT measurements from young adults walking in a straight path on a level surface,whereas the incident involved Bunting who was 73 years old at the time of the incident and was stepping over a door onto a slanted surface; its test subjects walked in shoes that were not representative of all shoes; its use fell short of implying proper validation and calibration under all combinations of test materials and walkway surfaces; and it failed to purport to address all safety concerns associated with its use. In addition to citing recent studies and publications, the Plaintiffs also pointed that ASTM withdrew ASTM F1679—a VIT testing standard that ASTM originally published in 2004—because it lacked precision and bias testing back in 2006. Plaintiff added that Maddox did not demonstrate that she complied with ASTM’s calibration requirements to use a VIT. CVS rejected the Plaintiff’s suggestion that ASTM F2508 cannot be used to determine the reasonable safety of a walking surface, considering ASTM F2508 did not purport to establish what did and what did not constitute a safe walking surface.

    CVS also argued that the studies relied upon by the Plaintiffs to assert the unreliability of VIT testing merely recommended accounting for variability in slip resistance measurements, as Maddox’s measurements did. As for the Plaintiffs’ argument about the withdrawal of ASTM F1679, CVS noted that Maddox did not depend on this standard, and a federal court had previously rejected this argument, affirming the reliability of VIT testing. CVS further asserted, contrary to the Plaintiffs’ suggestion, that the manufacturer of Maddox’s VIT had calibrated the device three days before her field test, and Maddox herself had field-calibrated the same device the day before the test. Moreover, CVS argued that Maddox had conducted her testing in accordance with the VIT manual and her training, producing “reliable” and “reproducible” results. CVS concluded that the Plaintiffs’ challenge to Maddox’s conclusions was more appropriately characterized as cross-examination material and not a valid basis for seeking to exclude her opinions under Rule 702 and/or Daubert.

    The Court noted that the Plaintiff could not successfully identify any such instance where the federal court found VIT testing to be an unreliable methodology. The Court found that various arguments made by the Plaintiffs regarding VIT testing went to the weight of the evidence instead of its admissibility. For example, Maddox’s reliance on ASTM F2508 did not render her methodology unreliable considering ASTM F2508 is an international standard that is intended to establish the procedures for validation,
    calibration, and certification of VITs or the studies and publications cited by the Plaintiffs to raise concerns about VIT testing did not establish her testimony to be excludable. These sources discussed the need to
    consider measurement uncertainty when interpreting VIT testing results which Maddox accounted for by testing the surface at different locations and presenting the slip index values as “mean ± standard deviation.”

    Held

    The Court denied the Plaintiff’s motion to strike all opinion testimony of Defendant’s Expert Witness Alexandra Maddox.

    The Court has not arrived on an outcome for this case since the remaining issues involved in this case still await resolution.

    Key Takeaways:

    The Court closely examined Alexandra Maddox’s qualifications under Rule 702 to provide expert testimony, recognizing her background in biomedical and aerospace engineering, ongoing pursuit of a PhD, and completion of accredited courses in OSHA standards as sufficient qualifications despite lacking specific certifications like a licensed professional engineer or certified safety specialist. Maddox’s certification as a Certified English XL Tribometrist (CXLT) was deemed significant, bolstering her credibility in slip resistance testing, especially given the manufacturer’s training and certification process. While Plaintiffs critiqued Maddox’s methodology, particularly regarding calibration and adherence to standards such as ASTM F2508, CVS defended her approach, highlighting compliance with manufacturer guidelines and industry standards. The Court distinguished between challenges to the admissibility of Maddox’s testimony and arguments regarding the weight of the evidence, considering concerns about reliability and adherence to standards as affecting the latter. Maddox’s reliance on ASTM F2508, despite its limitations, was deemed acceptable as it aimed to establish procedures for validation and calibration of Variable Incidence Tribometers (VITs), which Maddox followed in her testing methodology. Moreover, the Court noted Maddox’s efforts to address measurement uncertainty by testing surfaces at different locations and presenting slip index values with statistical measures like mean and standard deviation, demonstrating awareness of and mitigation against potential sources of error in her testing. Overall, the Court’s ruling underscores the importance of evaluating expert testimony based on qualifications, methodology, adherence to standards, and consideration of measurement uncertainties while recognizing the distinction between challenges to admissibility and weight of evidence.

    Case Details

    Case Caption: Bunting Et Al V. District Of Columbia Cvs Pharmacy, LLC
    Docket Number: 1:22cv766
    Court: United States District Court, District of Columbia
    Citation: 2024 U.S. Dist. LEXIS 21129
    Order Date: February 7, 2024