This is a case under the Federal Employers’ Liability Act (“FELA”) to recover damages for personal injuries Plaintiff Rachael Snider alleged that she sustained during the scope of her employment working as a conductor for the Defendant railroad.
Union Pacific has offered the testimony of Dr. Jeffrey P. Broker. Snider sought to exclude Broker’s testimony on the basis that he is unqualified and utilized an unreliable methodology.
Biomechanics Expert Witness
Dr. Jeffrey Palmer Broker holds a Ph.D. from the University of California at Los Angeles in Biomechanics and Motor Control. He is an associate professor of biomechanics at the University of Colorado at Colorado Springs, the owner of the consulting firm Echelon Biomechanics, and an advisor in sport biomechanics to the United States Olympic Committee.
He has published dozens of articles, books, chapters, and review articles, and testified as an expert witness in other FELA cases.
The Court found that Broker is qualified to provide his biomechanical analysis. He has a Ph.D. in biomechanics and motor control and has extensive experience, including in publishing and testifying, on topics in that field. However, to the extent Broker attempts to offer expert testimony on medical topics, like the nature of Snider’s preexisting back injury and its likely role in her current pain, he is unqualified to do so.
He has no medical expertise and may only opine on matters relating to biomechanics. Likewise, Broker is not qualified to opine on Snider’s credibility, such as implying she is exaggerating her symptoms or misrepresenting when they began.
Lastly, Union Pacific agreed that Broker cannot opine on or analyze Union Pacific’s internal rules, such as regarding handholds on stairs. The Court agreed that Broker is not qualified as an expert in railroad rule interpretation and may discuss Union Pacific’s rules only as necessary to provide context to the biomechanical aspects of his analysis.
B. Reliability
Snider next argued that Broker’s opinions are unreliable because he based them on inaccurate photographs of the stairs in question, he did not conduct any biomechanical testing, and his method is not scientific.
Snider’s critiques of Broker’s analysis are well-taken. Importantly, Broker himself admitted that in two of his three reports, he relied on inaccurate photographic depictions of the stairs in question that showed significantly more anti-slip material on the steps than existed at the time of the accident. However, he claimed that this error did not change his ultimate conclusion that Snider was responsible for the fall due to overstepping, not due to slipping on the step regardless of how much anti-slip material was worn away. Ultimately, Broker’s mistaken reliance on inaccurate photographs as well as Snider’s other critiques about the lack of hands-on testing Broker performed go to credibility, not admissibility.
Broker adequately explained the scientific basis for his methods as being rooted in biomechanics such that the Court is convinced he employed a sufficiently reliable methodology.
Snider will be free to criticize his methods and explore his purported mistakes on cross-examination, and her own expert will be able to explain why he believes the additional testing he conducted resulted in a better analysis that Broker’s. The Court declined to exclude Broker’s testimony in its entirety.
Held
The Court granted in part and denied in part the Plaintiff’s motion to exclude the testimony of Jeffrey Broker.
Key Takeaway
When making the reliability inquiry, the Court should focus on principles and methodology, not on the conclusions that they generate. However, conclusions and methodology are not entirely distinct from one another. Trained experts commonly extrapolate from existing data.
Plaintiff Kai Evers commenced this diversity action against Defendants Bella Logistics, Inc. and Bradley Hoffman (collectively, “Defendants”) alleging that Hoffman, while acting in the scope of his employment for Bella Logistics, Inc., negligently operated a commercial tractor-trailer and caused the parties’ motor vehicles to collide.
Plaintiff filed a motion in limine seeking to preclude Defendants from calling Kevin K. Toosi, M.D., Ph.D. as an expert witness.
Bioengineering Expert Witness
Kevin Khashayar Toosi, M.D., Ph.D. is a biomechanical forensic engineer and consultant, with a bachelor’s degree in engineering and master’s and doctoral degrees in bioengineering from the University of Pittsburgh.
Toosi also has post-doctoral fellowships in physical medicine and rehabilitation as well as urology from the University of Pittsburgh. Toosi received his medical degree in 1994 from Mashhad University of Medical Sciences in Iran and “went on to practice medicine as a Primary Care Physician for more than five years” prior to attending the University of Pittsburgh.
Toosi has more than thirty years of experience in the areas of clinical medicine, injury biomechanics and injury causation.
Plaintiff sought to preclude Toosi from testifying as to whether the accident at issue “caused or contributed” to Plaintiff’s injuries because “(1) he lacked the qualifications to render the medical causation opinions contained in his report, and (2) his opinions are not based on sufficient facts or data and therefore fail the reliability requirements of Federal Rule of Evidence 702.”
Toosi’s Qualifications to Opine about Medical Causation
The Court found that Toosi is qualified to testify about medical causation because he does indeed have medical training. Moreover, there is no basis to, as Plaintiff suggests, order the blanket preclusion of Toosi’s testimony.
Plaintiff also overlooked the multiple New York state court decisions finding Toosi qualified to opine about medical causation.
Accordingly, as the rejection of expert testimony is the exception rather than the rule, “vigorous cross-examination” and “the presentation of contrary evidence” are the appropriate remedies for Plaintiff’s objections to Toosi’s qualifications, rather than preclusion.
The Reliability of Toosi’s Opinion
Plaintiff argued that “Toosi lacked critical factual information when forming his conclusions” because “he did not inspect either vehicle, visit the accident scene, review repair records, or examine photographs of the damaged side of Defendants’ vehicle.”
The fact that Toosi did not visit the accident location did not render his opinion unreliable. At bottom, Plaintiff’s contentions go to the weight of the evidence and are a subject for cross-examination, not admissibility. The Court held that Toosi’s opinion therefore rests on reliable principles and methods and reliable application of those principles and methods for purposes of his expert testimony.
Toosi’s Opinion Is Relevant to the Case and Will Assist the Trier of Fact
Toosi’s opinion is certainly relevant to the issues in this case. His specialized expertise in biomechanics, an issue that is complex and technical, is one that will also assist the jury in understanding causation of injury. The parties may disagree as to the conclusions reached by Toosi, “but ultimately the jury will be the judge of whether Plaintiff’s alleged injuries were caused by the accident, and it is the jury’s responsibility to assess what weight to give the proffered testimony as it attempts to answer this question.”
Held
The Court denied Plaintiff’s motion in limine to preclude Defendants from calling Kevin K. Toosi, M.D., Ph.D. as an expert witness.
Key Takeaway
Expert engineering testimony may rest on scientific foundations, the examination of which invokes the Daubert factors directly, but may also rest on the personal knowledge or experience of the engineer.
Plaintiffs alleged that Defendants former Washington County Sheriff’s Office (“WCSO”) Deputy Defendant Jeffrey Aaron Edwards (“Edwards” or “Deputy Edwards”) and former WCSO Deputy Brian Mizelle (“Mizelle” or “Deputy Mizelle”) used excessive force against them during a March 2, 2022, attempt to transport Plaintiff Gary Thomas (“Thomas”) to the Washington County Courthouse. The factual circumstances in this case primarily surround the transportation of Plaintiff Thomas from a patrol vehicle to the Washington County Courthouse and Plaintiff Mary Moore’s aggressively lunging at Edwards during that attempt, which caused her to be properly struck by Edwards.
Thomas was placed under arrest by Deputy Edwards and was being transported inside the courthouse with the assistance of Deputy Mizelle when Moore interfered with Thomas’ arrest. Thomas became injured while he resisted arrest requiring Edwards and Mizelle to use force to maintain safety and control of this incident.
Defendants Edwards, Barnes, and Mizelle offered the testimony of Albert Vangura to opine on the biomechanics of the interactions between Edwards and Plaintiffs, the cause of Plaintiffs’ injuries, and the position of Edwards’s hand when he struck Moore.
Plaintiffs filed a motion in limine to exclude the testimony of Vangura.
Biomechanics Expert Witness
Albert Vangura is an engineering professional with nearly forty years of experience in biomechanical and human factors evaluations, product design and development, manufacturing, and testing.
He holds a Master of Science Degree in Bioengineering from the University of Pittsburgh, a Bachelor of Science Degree in Exercise and Sports Science, and an Associate of Science Degree in Mechanical Engineering Technology, both from The Pennsylvania State University.
In their motion in limine to exclude Vangura’s opinions and testimony, the Plaintiffs argued that Vangura’s report and opinion lacked any reliable or recognized methodology; therefore, the Court should exclude them.
The Court found that Vangura’s testimony lacked reliability. Vangura did not identify methods or principles underlying his ”bioengineering and biomechanical engineering investigation and analyses.” In fact, when asked about his methodology, Vangura responded that he used the ASTM E620-18. The ASTM E620-18 is not a methodology. It is three pages of standards about forensic or technical reports an expert can use in any field. In other words, it tells the expert how to write their report, not the methodology the expert should follow.
Moreover, Vangura used one of the cited sources in his report, and he misapplied it. Specifically, Vangura cited Accidental Injury, a book that “looks at the applied biomechanics of accidental injuries.” Vangura used findings from Accidental Injury to analyze Moore’s facial injuries. It is undisputed that Defendant Edwards struck Moore in the face intentionally; thus, “observations from accidental injuries” are irrelevant and inapplicable. This fact undermined the reliability of Vangura’s report.
Biomechanics experts frequently address causation issues, but experts addressing causation must demonstrate how and why they eliminated other causes when reaching their conclusions. Vangura never mentions if or how he eliminated other causes when he opines on proximate cause.
Relevance
Plaintiffs argued that Vangura’s testimony consisted of common sense observations. Vangura spent most of his report narrating and characterizing the video evidence, which requires no specialized knowledge and is within the function of the jury. Beyond the video narration, Vangura’s discussion and findings included opinions and testimony about the biomechanics of walking. Vangura admitted that he made findings by simply ”watching this video,” a factfinding exercise that is well within the jury’s function.
The Court found that these findings “risk ‘supplanting a jury’s independent exercise of common sense’ and its role of determining the facts.”
Qualification
Plaintiffs argue that Vangura is not qualified to opine about law enforcement tactics and practices or the parties’ injuries and medical conditions. Vangura has an associate’s degree in mechanical engineering technology, a bachelor’s in exercise and sports science, and a master’s in bioengineering but no medical degree. Moreover, Vangura is not qualified to speak on proximate cause because his testimony rests on opinions about law enforcement tactics and practices.
The Court found that Vangura’s testimony about the proximate cause of injuries in products liability cases does not qualify him to testify to proximate cause in an excessive force case, especially when his testimony goes beyond the purview of biomechanics and leads to hypotheticals about the necessity of arrests and an officer’s use of force.
The Court also found that Vangura’s report consisted of improper opinions on the parties’ injuries. The parties agreed that biomechanical experts cannot make independent medical diagnoses or offer opinions about the specific causes of an injury.
Lastly, the Court found that Vangura is not qualified to opine about whether Thomas was conscious after falling down the courthouse stairs despite consulting Thomas’s medical records. Vangura has not demonstrated that he has any knowledge, education, or training to (1) determine whether a person is conscious based on video evidence or (2) assess the relationship between loss of consciousness and a traumatic brain injury. Thus, Vangura is not qualified to opine on this topic.
Held
The Court granted the Plaintiffs’ motion in limine to exclude the testimony of Albert Vangura.
Key Takeaway:
Expert testimony may be admissible even though it does not rely on anything like a scientific method. But the expert must explain how his experience leads to the conclusion reached. why his experience is a sufficient basis for the opinion. and how his experience is reliably applied to the facts. Vangura failed to demonstrate how his experience as a biomechanics expert specializing in products liability and vehicle crashes led him to his conclusions, why that experience suffices to support his findings in an excessive force case, or how he applied that experience to the video evidence here.
Case Details:
Case Caption:
Moore Et Al V. Barnes Et Al
Docket Number:
2:23cv56
Court Name:
United States District Court, North Carolina Eastern
This case arises from a January 2023 automobile accident. On April 16, 2023, Plaintiff Gina Martin was driving eastbound on Interstate I-10, nearing the Chef Menteur exit in New Orleans, Louisiana, when Defendant Micah Cunningham crashed his truck into the rear of Martin’s vehicle. Martin alleged that she suffered various severe injuries as a result of this collision.
Plaintiff retained Dr. David J. Barczyk, D.C as an expert witness in the field of biomechanics in order to opine about the causation of Martin’s injuries.
Defendants filed a motion in limine to exclude the testimony of Barczyk arguing that Barczyk lacked the qualifications and expertise to render opinions regarding medical causation. The Court granted in part and denied in part the Defendants’ motion in limine to exclude the testimony of David J. Barczyk.
Even though the Court found that Barczyk is qualified to opine on the medical causation of Plaintiff’s musculoskeletal injuries, the Court nonetheless excluded his testimony as to the same. The Court found that Barczyk’s testimony with respect to medical causation would be inadmissible because it would not reflect a reliable application of methodology to the facts of this case.
Martin requested that this Court reconsider its prior ruling which precludes Barczyk from testifying as to the medical causation of Plaintiff’s alleged injuries.
Biomechanics Expert Witness
David Barczyk is licensed in Louisiana as a chiropractor and continues to practice as a chiropractor in the office that he established. Barczyk has postdoctoral training in neurology and training in crash biomechanics.
He has received over 350 hours of neurological training and is a diplomate of the American Chiropractic Neurology Board. He has several certifications in biomechanics and has attended over a dozen trainings. Barczyk has given a number of lectures on topics in biomechanics.
With respect to whether Barczyk reliably applied his methodology, the Court held that Plaintiff has still failed to establish that Barczyk has done so. Plaintiff explained that “following the completion of the physical examination and examination of the medical history of Plaintiff, Barczyk was in position to render a reliable opinion regarding causation.” Plaintiff then stated that “Barczyk was able to eliminate previous and alternative causes of Plaintiff’s condition.”
However, Plaintiff’s argument missed the point. Whether Barczyk was in a position to offer reliable testimony does not establish that he reliably applied his methodology to the facts of this case. And, even if he had done so, the Court held that his report fails to demonstrate as much. For example, Barczyk failed to demonstrate how or why he was able to eliminate alternative causes for the Plaintiff’s condition. The Court is thus left with the Plaintiff’s and Barczyk’s own assurances that Barczyk reliably applied his methodology. These subjective assurances do not establish admissibility.
With respect to Barczyk’s qualifications to opine on the medical causation of Plaintiff’s alleged traumatic brain injury, Plaintiff’s arguments for reconsideration are likewise unavailing. Plaintiff restated Barczyk’s qualifications, which the Court has already found to be insufficient. Plaintiff further stated that Barczyk has performed research, testing, and clinical practice with respect to brain injuries. But she cited no examples of Barczyk’s publications, research, or clinical experience.
However, the Court did clarify that, given Barczyk’s expertise in biomechanics, Barczyk is qualified to “testify as to the amount of force he believes was generated by the subject collision and the observed effect of such force on a hypothetical human body in a comparable accident.”
Held
The Court denied the Plaintiff’s motion for reconsideration of the Court’s ruling limiting Dr. David Barczyk’s testimony regarding medical causation.
Key Takeaway:
Whether Barczyk was in a position to offer reliable testimony does not establish that he reliably applied his methodology to the facts of this case. The Court is thus left with the Plaintiff’s and Barczyk’s own assurances that Barczyk reliably applied his methodology. These subjective assurances do not establish admissibility.
Please refer to the blog previously published about this case:
This case arises from a January 2023 automobile accident. On April 16, 2023, Plaintiff Gina Martin was driving eastbound on Interstate I-10, nearing the Chef Menteur exit in New Orleans, Louisiana, when Defendant Micah Cunningham crashed his truck into the rear of Martin’s vehicle. Martin alleged that she suffered various severe injuries as a result of this collision.
Plaintiff retained Dr. David J. Barczyk, D.C as an expert witness in the field of biomechanics in order to opine about the causation of Martin’s injuries.
Defendants filed a motion in limine to exclude the testimony of Barczyk arguing that Barczyk lacked the qualifications and expertise to render opinions regarding medical causation.
Biomechanics Expert Witness
David Barczyk is licensed in Louisiana as a chiropractor and continues to practice as a chiropractor in the office that he established. Barczyk has postdoctoral training in neurology and training in crash biomechanics.
He has received over 350 hours of neurological training and is a diplomate of the American Chiropractic Neurology Board. He has several certifications in biomechanics and has attended over a dozen trainings. Barczyk has given a number of lectures on topics in biomechanics.
Barczyk produced two expert reports regarding Plaintiff’s injuries. The first report, dated December 3, 2024, sets out Plaintiff’s treatment history since the accident.
The report concluded with a summary, in which Barczyk stated that Plaintiff’s injuries to her cervical and lumbar spines, her shoulder, and foot are causally related to the accident. In addition, Barczyk stated that the accident produced an injury mechanism for Plaintiff’s brain.
The second report, dated March 18, 2025, is identical to the first report with respect to its discussion of the biomechanics of Plaintiff’s accident and its conclusions on medical causation.
Barczyk’s Qualifications
Plaintiff proffered Barczyk as a qualified expert in chiropractic medicine and biomechanics. It should be noted that Barczyk has a doctoral degree in chiropractic medicine, is a board-licensed chiropractor, and has practiced chiropractic medicine since 1994.
Although Barczyk does not have a formal degree in biomechanics, he has extensive training. His CV attests that he has attended over a dozen trainings in biomechanics and has attained several certifications.
It should be noted that the Plaintiff did not cite any case holding that a chiropractor could testify to medical causation.
Medical Cause of Plaintiff’s Alleged Brain Injury
While the Court found that Barczyk was qualified to opine on the medical causation with respect to Plaintiff’s musculoskeletal injuries on the basis of his chiropractic expertise, it is not satisfied that Barczyk is qualified on the basis of his chiropractic expertise to testify as to the medical cause of Plaintiff’s alleged brain injury.
After all, Barczyk’s training and diploma do not amount to a medical degree.
Moreover, Plaintiff cited no evidence that Barczyk has conducted research with respect to the brain injury that Plaintiff allegedly suffered or that, as part of his chiropractic practice, Barczyk diagnoses or treats brain injuries or orders diagnostic tests in connection with brain injuries.
With respect to Barczyk’s expertise in biomechanics, the Court likewise found that Barczyk was not qualified to opine on the medical cause of any of Plaintiff’s injuries on that basis.
In sum, on account of his chiropractic expertise, the Court found that Barczyk is qualified to opine on the cause of Plaintiff’s musculoskeletal injuries. However, he is not qualified to opine on the cause of Plaintiff’s brain injury.
On account of his expertise in biomechanics, Barczyk is qualified to opine on the effects of the force that the accident generated on the hypothetical human body but is not qualified to opine on the medical causes of Plaintiff’s injuries.
The Reliability of Barczyk’s Opinions
As for Barczyk’s opinions as to the medical causes of Plaintiff’s musculoskeletal injuries, Barczyk’s analysis initially describes the mechanism of injury as the result of “impact in a rear end crash.” But there are no additional facts regarding the specifics of the accident in this case.
The Court found that Barczyk’s analysis is generalized and therefore any conclusion applying his analysis to the facts of this case is unreliable.
The Court also noted that, in the “Occupant Risk Factor” section of his report, Barczyk identified certain risk factors particular to Plaintiff. He cited several sources for the risk factors that he identified. However, his discussion in that section is terse, cursory, and conclusory.
Barczyk does not explain how Plaintiff’s characteristics serve as risk factors in this case or the role they played in causing her injuries. Again, the Court is left with nothing but Barczyk’s own assurances that he has reliably analyzed the risk factors.
Whether Barczyk’s Testimony Would Be Cumulative
Federal Rule of Evidence 403 provides that a district court “may exclude relevant evidence if its probative value is substantially outweighed by a danger of . . . needlessly presenting cumulative evidence.”
Without the benefit of hearing the evidence that Plaintiff will have introduced at trial, the Court finds that it would be premature to exclude Barczyk’s testimony as cumulative at this juncture.
Held
The Court granted in part and denied in part the Defendants’ motion in limine to exclude the testimony of David J. Barczyk.
Key Takeaway:
While the Court has focused on the reliability of Barczyk’s opinions with respect to the medical causes of Plaintiff’s musculoskeletal injuries, the defect in Barczyk’s analysis which renders these opinions unreliable equally characterizes his opinion as to the cause of Plaintiff’s alleged brain injury. Accordingly, that opinion is also excludable as unreliable pursuant to Rule 702. However, the Court will not exclude Barczyk’s general discussion on the mechanisms of injury typically associated with rear-end collisions.
Case Details:
Case Caption:
Martin V. National Interstate Insurance Company Et Al
This automotive product liability case arises from a rear-end collision involving a 2020 Honda Odyssey (“subject vehicle”) that resulted in serious injuries to Plaintiff James Assey. On June 16, 2021, Plaintiffs James and Joan Assey were traveling in the subject vehicle on Interstate 26 near Columbia, South Carolina, at approximately 55 miles per hour when the subject vehicle was rear ended by a 2018 Dodge Charger traveling approximately 101-108 miles per hour at impact (the “subject accident”).
Plaintiffs contended that the subject vehicle contained defects that caused or contributed to Assey’s injuries. Specifically, the subject vehicle’s occupant restraint and protection systems, including, but not limited to, its seating system, airbag system, seat belt and head restraint, failed to provide safe and reasonable protection in an allegedly foreseeable rear end collision.
Plaintiffs originally asserted claims for strict liability (design and manufacturing defect), negligence (design and manufacturing defect), negligent failure to warn, and loss of consortium.
Michael Markushewski has extensive experience in crashworthiness, occupant crash protection, emergency escape, crash safety and survival, and life support engineering. His career has focused on the research, design, testing and evaluation of vehicular and aircraft seating systems, seat belt restraint systems, inflatable restraints, ejection seats, crashworthy seating systems and protective devices.
He is co-inventor of two (2) patents addressing occupant crash protection devices and seat design.
Over his career Markushewski has been lead investigator and crash reconstructionist in the evaluation of occupant protection system performance in military and civilian aircraft and automotive ground vehicle mishaps to determine the mechanisms of injury. He has worked with the U.S. Army in the development of advanced seating and restraint systems to protect soldiers from mine-blast related injuries. He has also worked with the National Hockey League to research, develop and test designs to improve player safety.
Bruce Distell is a board-certified diagnostic radiologist with fellowship training in body, spine, and orthopedic imaging. He graduated from Muhlenberg College in 1982 with a B.S. degree and from the University of Pennsylvania School of Medicine in 1986. He completed his radiology residency and fellowships at Duke University and is currently the Section Chief of the Department of Radiology at Cape Fear Valley Health Systems and the Academic Department Chair of the Methodist University Cape Fear Valley Medical School. Distell is also an assistant professor at the Campbell University School of Osteopathic Medicine. According to Distell’s report, 90% of his time is spent on clinical work, such as reading x-rays, CTs, MRIs, and other imaging modalities, and 10% of his time is dedicated to teaching and administrative duties.
Motion to Exclude the Expert Testimony of Michael Markushewski
Defendant argued that Markushewski’s opinions failed to meet the reliability requirements of Rule 702 because he relied on data about seat belt performance during 35-mile-per-hour frontal impact barrier crash tests using a fifteenth percentile dummy, and the accident was a rear-impact collision involving a larger than fiftieth percentile driver.
According to Defendant, these “substantial differences render Markuskewski’s opinions speculative and unreliable.”
The Court concluded that the issues Defendant raises regarding Markushewski’s methodology are fodder for cross examination and did not render Markushewski’s opinions unreliable.
Motion to Exclude the Expert Testimony of Bruce Distell, M.D. Regarding Biomechanics
Defendant contended that Distell’s report is an improper rebuttal opinion under Rule 26(a)(2)(D)(ii) of the Federal Rules of Civil Procedure and, furthermore, argued alternatively that Distell is not qualified to give expert opinions related to biomechanics.
Regarding the timeline, despite a July 12, 2024 deadline for identifying expert witnesses, the Plaintiffs identified Distell on September 18, 2024. In contrast, Defendant’s expert had reviewed Assey’s medical imaging and concluded that Assey had pre-existing conditions that placed him at an increased risk of spinal injury and that there was no evidence of a hyperextension injury to the deep flexor muscles of his upper thoracic spine. However, Distell rebutted these conclusions by opining that Assey’s underlying spinal morphology would not have placed him in a higher risk category to suffer this type of injury, and also opined that Assey would not have sustained injuries but for his lower thoracic spine being positioned above the top of the seat back.
Defendant argued that because he is a diagnostic radiologist trained in interpreting medical images, Distell is not qualified as a biomechanic to testify regarding the causal impact of Assey’s position within the Subject Vehicle.
As a result, the Court concluded that Distell’s opinion that Assey would not have been injured but for his lower thoracic spine being positioned above the top of the seat back is an improper rebuttal opinion. Moreover, even if this improper rebuttal opinion was not prejudicial to Defendant, as Plaintiffs argue, the Court agreed with Defendant that Plaintiffs have not shown that Distell is qualified to offer an opinion on biomechanics.
Furthermore, beyond the conclusory argument that Distell’s training as a diagnostic radiologist qualifies him to testify as to causation, Plaintiffs have not shown that Distell has the knowledge, skill, experience, training, or education to provide opinions in biomechanics.
Held
The Court denied Defendant’s motion to exclude the testimony of Michael Markushewski.
The Court granted Defendant’s motion to exclude the testimony of Bruce Distell.
Key Takeaways:
First, Distell is not a biomechanic, and furthermore does not have experience in designing a motor vehicle. Therefore, Plaintiffs have not shown that Distell has the knowledge, skill, experience, training, or education to provide opinions in biomechanics.
Markushewski’s testimony should “be attacked by cross examination, contrary evidence, and attention to the burden of proof, not exclusion.”
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.
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.
James Maples, the Plaintiff, filed a lawsuit against Union Pacific Railroad Company, Inc., the Defendant, under the Federal Employers’ Liability Act (“FELA”), alleging on-the-job injuries stemming from when a wheel broke and detached from the utility vehicle he operated. Union Pacific acknowledged responsibility for the wheel detaching from the utility vehicle but disputed that it caused any harm to Maples. Maples sought partial summary judgment on Union Pacific’s affirmative defenses, encompassing issues such as mitigation, apportionment of fault, failure to join a party, pendency of another related action, accord and satisfaction, arbitration and award, discharge in bankruptcy, duress, estoppel, failure of consideration, fraud, illegality, injury by fellow servant, laches, license, payment, release, res judicata, statute of frauds, statute of limitations, and waiver. Additionally, Maples aimed to exclude expert testimony from Union Pacific’s medical expert, Earl Peeples, and biomechanical expert, Jeffrey Broker.
Orthopedic Surgery Expert Witness
Dr. Raymond Earl Peeples, MD, graduated from the University of Oklahoma College of Medicine. Following his medical education, he completed a Straight Surgical Internship at Baptist Memorial Hospital. Subsequently, he pursued Orthopaedic Surgery Residency at the University of Oklahoma Health Sciences Center. Further enhancing his expertise, Peeples underwent a Hand Surgery and Microsurgery Fellowship at the University of Colorado Health Sciences Center’s Office of Graduate Medical Education. Currently, Raymond Peeples works at Peeples Medical Legal Consulting. His extensive medical education, residency, and fellowship experiences contribute to his qualifications as a medical expert in the field.
Biomechanics Expert Witness
Dr. Jeffrey Palmer Broker, Ph.D., received his Ph.D. in Biomechanics and Motor Control from the University of California, Los Angeles. He holds a B.S. in Mechanical Engineering from California Polytechnic State University. Broker specializes in Biomechanics of Injury, and Accident Causation. His expertise extends to areas like Cycling (control and falls, dynamic simulations, equipment failures) and Sports and Recreation Equipment. Broker has been the owner of Echelon Biomechanics. He also serves as an Associate Professor in Biomechanics at the University of Colorado.
Discussion by the Court
Summary judgment was denied concerning the mitigation and apportionment affirmative defenses. However, for the remaining affirmative defenses, summary judgment was granted, as Union Pacific explicitly stated its intention not to present them. Union Pacific retains the option to seek reconsideration if Maples introduces evidence that opens the door for these defenses.
Summary judgment was denied on the mitigation affirmative defense as it was determined that the question of whether Maples acted reasonably to mitigate his damages should be decided by a jury. This decision was based on the recognition that the failure to mitigate the loss of earnings is a valid affirmative defense in FELA cases. A genuine dispute existed regarding Maples’ capability to perform work beyond what he had undertaken since the accident. It was emphasized that the FELA does not exempt claimants from the obligation to seek suitable employment, and FELA Defendants have the right to a jury instruction on mitigation when the record supports it. In this case, the record indicated that Maples might not have adequately sought other jobs, potentially failing to mitigate damages.
Summary judgment was denied on the apportionment affirmative defense due to the existence of a genuine factual dispute regarding whether Maples’s back injuries pre-existed from the date of the accident. It was emphasized that FELA Defendants bear liability solely for damages resulting from their negligence. Therefore, the apportionment affirmative defense was deemed appropriate in this context.
Maples’s motion to exclude Peeples from offering expert testimony on secondary gain or malingering, Maples’s credibility, and Matthew Gornet‘s deposition testimony was denied as moot. It is worth noting that Plaintiff raised arguments against Peeples’ suggestions of Dr. Gornet doing something improper, illegal or unethical in this case.
This decision arose as Union Pacific affirmed its lack of intention to elicit trial testimony from Peeples on these specific issues. However, Maples retained the option to seek reconsideration if Union Pacific alters its course and expresses an intent to present testimony on these matters.
The Court acknowledged that Peeples, a medical doctor specializing in orthopedic surgery, was deemed qualified to testify about medical causation. This recognition was supported by the precedent set in Harris v. Ladd, No. 5:09CV00179 JLH (E.D. Ark. Jan. 25, 2012), where it was established that a Defendant’s medical expert has the right to testify that the physical injuries for which the Plaintiff seeks compensation were not caused by the accident.
The motion to prevent Peeples from expressing opinions on the reasonableness of the work restrictions prescribed by Maples’s doctor was denied based on Peeples’ qualification to provide such testimony. The Court noted that disagreements with a treating physician’s course of treatment could be addressed during cross-examination.
Peeples was permitted to testify about Gornet’s charges and liens, as the Court recognized that his specialized knowledge could assist a jury in making credibility determinations regarding these issues.
Maples’s motion to exclude Broker’s expert testimony was denied, as the Court found that Broker’s opinion was not “so fundamentally unsupported that it can offer no assistance to the jury.” This determination stemmed from Broker’s qualifications as a Ph.D. specializing in the biomechanics of injuries and accident causation. The Court deemed Broker’s testimony admissible, particularly his assertion that biomechanically, Maples’s low back injury was inconsistent with the forces exerted during his accident.
Held
The Court granted in part and denied in part Maples’ motion for partial summary judgment. The Court also denied Maples’ motions to exclude the testimony of Union Pacific’s experts Earl Peeples and Jeffrey Broker.
The Court has not arrived on an outcome for this case since the remaining issues involved in this case still await resolution.
Key Takeaways
In the legal proceedings between Maples and Union Pacific under the Federal Employers’ Liability Act (FELA), expert testimony played a crucial role. The Court allowed testimony from Earl Peeples, a medical doctor specializing in orthopedic surgery, on matters related to medical causation.Additionally, the Court permitted Peeples to testify about Gornet’s charges and liens, acknowledging Peeples’ specialized knowledge as beneficial for the jury in assessing credibility on these issues.
Similarly, the Court allowed Jeffrey Broker, a Ph.D. specializing in biomechanics, to provide expert testimony. Despite Maples’ attempt to exclude Broker’s testimony, the Court found that Broker’s opinion was not fundamentally unsupported and could offer assistance to the jury. The Court highlighted Broker’s qualifications in biomechanics of injuries and accident causation, particularly noting his assertion that Maples’s low back injury was biomechanically inconsistent with the forces exerted during the accident. In both instances, the Court’s decisions reflected a careful consideration of the experts’ qualifications and the relevance of their testimony to the case.
