Second Judge Excludes Testimony of Engineer
by Dr. Gary Farr on 20 April 2002
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Second Judge Excludes Testimony of Engineer
Chiropractors and personal injury attorneys are having serious problems settling their personal injury cases. This is because insurance companies across the country have found many engineers are willing to swear under oath that patients could not have been injured because the forces involved in the collision were too minor.
However, the tide is turning. In September 1997, a second Arizona judge excluded the key testimony of an engineer. The engineer was prohibited from stating that the forces applied to a patient's back as a result of a collision were so insignificant that the patient's back could not have been injured.
An article in the November 1997 issue of The Chiropractic Journal, discussed the first Arizona case in which the key testimony of an engineer was excluded. The attorney in the second case used the same arguments that were successfully used the first time around. But there was a huge difference between the two cases.
In the second case, State Farm used its senior Arizona defense lawyer together with an engineer/physician from Biodynamic Research Corporation. In spite of this firepower, the plaintiff's lawyer was able to clearly prove that the engineer's opinion was essentially "junk science."
the plaintiff's attorney has provided copies of all of the affidavits and pleadings in this case. A 133-page document set will be made available to chiropractors and personal injury attorneys for use in developing and arguing their own cases.
Included in this material are the following:
- An affidavit from Mark Reassure, Ph.D., Arizona State University Professor of Statistics, who analyzed the validity of the articles which engineers commonly rely upon to base their opinion. These articles are authored by McConnell, Szabo, West and Seigmund. Dr. Reiser concluded that because the number of these subjects in these articles is so few (four to seven individuals) the test results cannot be extrapolated to the general population. Dr. Reiser lists other key criticisms.
- An affidavit from Steven Daum, the Legal Administrator for the Society of Automotive Engineers(SAE), the organization which published the above-listed articles relied upon by the engineers. Mr. Daum states the SAE does not analyze the methodology or statistical analysis utilized in the articles, and the SAE does not attest to the scientific validity of these articles. The fact that the articles were not peer-reviewed casts serious doubt upon their reliability.
- Interrogatories which prove that State Farm has given approximately $7 million to Biodynamics Research Corporation since 1990, a fact which led the judge to conclude that "the study is tainted by the subjective bias of its sponsors." McConnell's two key studies were performed at this company's research facility. Not surprisingly these studies concluded that the injuries, if any, from low-speed impacts are very minor and transitory.
Affidavits which show that the test subjects were employees of Biodynamics Research Corporation.- A five-page written ruling from the second judge explaining in detail why he excluded the engineer's testimony
- A sample nine-page, referenced report from a chiropractor to an attorney which lays out the format for criticizing the engineer's opinion and which incorporates the arguments used successfully in litigation
Lawyers and chiropractors who have utilized this material have had great success in defeating the arguments made by the insurance engineers. Doctors are invited to make copies of the materials and supply sets to the attorneys with whom they work.
(To obtain a set of the documents, mail a check for $35 to Alan M. Immerman, D.C., 8229 North 53rd St., Paradise valley, AZ 852563.)
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