Defense Digest

Having an expert who is qualified to write a report and testify is not enough to get past the net opinion argument. Although biomechanical experts have the necessary credentials, courts are looking closely at the body of the expert report and the resources the expert relied upon to formulate his or her opinion.

In Suanez v. Egeland, 353 N.J. Super. 191 (App. Div. 2002), the court ruled that the biomechanical engineer could not opine that a low-impact collision could not cause a herniated disc because: (1) the expert was not a physician or medical researcher; (2) did not produce the authoritative scientific literature; and (3) there were no persuasive judicial decisions regarding his opinion. The biomechanical engineer's education and training were in the fields of physics and mechanical engineering. He did not conduct or observe tests of low-impact collisions on humans, and he derived his knowledge of this subject solely from literature in the field.

The expert relied on tests conducted on cadavers and Air Force and Army personnel. The court concluded that the biomechanical expert did not observe and/or perform any tests that would support his opinion concerning the effect of a rear-end automobile collision upon a middle-aged women with pre-existing degenerative conditions, such as the plaintiff.

In Hisenaj v. Kuehner, 387 N.J. Super. 262 (App. Div. 2006), the court was faced with a similar situation as Suanez. The defense offered the testimony of a biomechanical expert, who testified that the low-impact collision could not have caused the plaintiff's herniated discs or any serious injury. The trial judge distinguished this situation from Suanez and allowed the biomechanical engineer expert to testify before the jury because he based his opinion on 17 identified scientific studies, conducted over a 34-year period, using live volunteers consisting of 151 men and 52 women of varying ages, none of whom suffered chronic injuries after being subjected to rear-end impacts similar in magnitude to that involved in the plaintiff's case.

The biomechanical engineer had a Ph.D. in mechanical engineering, and for 19 years he was affiliated with two medical schools, where he taught orthopedic residents programs in the mechanics of injury and participated in rounds with medical doctors in the evaluation of patients. The medical rounds included trauma patients with orthopedic issues. Unlike the expert in Suanez, this expert considered himself a medical researcher.

The Appellate Division closely reviewed the 17 studies the expert relied upon in formulating his opinion. Although women are at a higher risk than men to suffer cervical flexion-extension injuries, the studies reflect much less testing on women than men. The court also stated that the test data contained relatively few middle-aged women with degenerative disc disease and probably none subjected to an impact while their head was turned, such as the situation in the plaintiff's case.

The court noted that the expert's sweeping opinion that this accident could not have caused these injuries to this plaintiff was not reasonably and reliably supported by the 17 studies. The record did not establish that experts in the field accept the soundness of the methodology, including the reasonableness of relying on this type of underlying data and information. Furthermore, the expert did not support his opinion by reference to his research. The court indicated that, without establishing that the research pertained to the structures of the spine implicated in this case and explaining the methodology and results of the research, the expert's conclusions were a net opinion.

Although biomechanical engineer experts have the credentials to make opinions regarding injuries and damages, courts seem reluctant when they opine on damages issues. Courts are more comfortable when biomechanical experts, without a medical degree, limit their opinions to the forces created by an impact and the general effects on the human body caused by such forces.

* Nadira is an associate in the firm's Cherry Hill, New Jersey, office. She can be reached at (856) 414-6072 or nkkirkland@mdwcg.com.