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Judge blocks crash force expert, case settles

Peter Vieth//October 24, 2013

Judge blocks crash force expert, case settles

Peter Vieth//October 24, 2013

TShortly after a judge ruled to keep out testimony about the forces involved in a highway rear-ender, the victim of the crash settled his head injury claim for $2.45 million, according to lawyers for the victim.

The case appears to mark a victory for plaintiffs’ lawyers facing scientific evidence purporting to show that the forces of a crash were not great enough to have caused the claimed injuries.

Defense lawyers say scientific crash force testimony can expose exaggerated claims, but lawyers for crash victims call such evidence “junk science.”

The ruling could expand the scope of a 1996 Virginia Supreme Court opinion in which a “biomechanics” expert was excluded, in part because his G-force tests were not substantially similar to the accident at issue, according to lawyers involved.

Richmond lawyers John C. Shea and Roger T. Creager represented the plaintiff.

Because of confidentiality terms in the settlement, the lawyers did not disclose the name of the case, court or judge involved.

The accident involved hard-to-discern injuries, the victim’s lawyers acknowledged, with “some of the classic challenges that most mild traumatic brain injury cases have,” Shea said.

The case began with a relatively minor afternoon rear-ender on Interstate 95 in Richmond, according to the report. “It was not a horrible collision,” Shea said.

The plaintiff, a 49-year-old construction project manager, had to bring his pickup truck to a halt because of a traffic tie up. The pickup was hit from behind by an asphalt spreader truck which left 140 feet of skid marks leading to the impact. The pickup’s rear bumper and tailgate were hit – the left side of the bumper was bent and the truck bed was damaged.

The damage amounted to $5,000 to $6,000, according to defense attorney Stephen A. Horvath of Fairfax.

The plaintiff reported he felt somewhat dazed, but got out of his truck. He photographed the damage to his truck and the skid marks, and even used a measuring wheel in his truck to gauge the length of the skid marks.

The plaintiff told a state trooper he did not need an ambulance.

As he left the scene, however, the plaintiff did not feel well and went to the emergency room at Richmond’s VCU hospital. There, he reported jaw and neck pain, a severe headache, confusion and nausea. Doctors kept him overnight for observation.

A CT scan of the head was normal. He was discharged with a diagnosis of cervical strain and concussion.

The plaintiff saw his family doctor two days later for headaches and neck stiffness.

Four days after the accident, the plaintiff’s wife found him disoriented at the bottom of the stairs at his home. He was transported to John Randolph hospital in Hopewell where he was diagnosed with post-concussion syndrome. Another CT scan of the head was normal.

After discharge, the plaintiff continued to have problems with headaches, confusion, nausea and balance.

Approximately a month after the accident, a neurologist diagnosed the plaintiff with a severe concussion. MRIs were essentially normal, with some possible indications of head trauma.

The plaintiff was on leave from work for about three months. His job was both physically and intellectually demanding, Shea said.

On return to work, he had difficulty focusing, was short-tempered and had other new problems, according to the report. He was laid off a month later. He never returned to employment.

About three months after the collision, a neuropsychiatrist diagnosed a mild-to-moderate traumatic brain injury resulting in numerous impairments. Testing showed impaired short-term memory, processing, perception and problem solving. A neuropsychologist diagnosed a cognitive disorder and an adjustment disorder with depressed mood.

An optometrist diagnosed visual impairments due to post-traumatic vision syndrome.

All of the plaintiff’s healthcare providers concluded his impairments were permanent and caused by the collision. The neuropsychiatrist determined the plaintiff was disabled and would need future medical care.

“He had some good lay witnesses who were prepared to describe his changes from before and after the wreck,” Shea said.

Future medical costs would be $1 million and lost wages totaled more than $1.4 million, according to the plaintiff’s experts.

Despite the undisputed rear-end collision, the defense did not concede liability. The driver of the asphalt truck prepaid a fine for following too closely, but the defense hoped the jury would credit the driver’s explanation that traffic stopped so suddenly he was unable to brake his truck in time.

The main battle centered on the plaintiff’s claims of injury, however. All five of the defense experts concluded the plaintiff sustained no brain injury, had no permanent problems from any brain injury, required no brain injury treatment or any other future medical care and was fully capable of working.

A defense neuropsychologist provided a differential diagnosis of adjustment disorder with mixed emotional features versus major depression with anxiety. The defense experts said the plaintiff’s problems were emotional in nature, not caused by the collision.

The defense noted the plaintiff had a long history of taking a narcotic pain medication for a leg injury.

The defense challenged admissibility of NeuroQuant imaging studies used by the neuropsychiatrist, arguing the new technology had not yet achieved sufficient scientific reliability.

The plaintiff dropped the issue, so the judge was never asked to decide the NeuroQuant question, according to the lawyers’ report.

The judge did rule in the plaintiff’s favor on the question of biomechanical testimony, however, but only after extensive briefing and two hearings.

It’s an emerging and developing issue around the country, Creager said.

The defense offered Dr. Harry Smith of Texas, who is both a medical doctor and a civil engineer. He and an assistant took estimates of the crush damage to the plaintiff’s truck and plugged them into a software program known as “EdCrash.”

The EdCrash program determined the force applied to the truck was only two or three times the normal force of gravity, according to the lawyers’ report.

After taking depositions of Smith and his assistant, the plaintiff’s lawyers argued their opinions were inadmissible accident reconstruction testimony and involved “unknowns, missing variables, guesswork, averages” and lacked sufficient foundation.

“These experts are just guesstimating,” Creager said. “The reality is you’ve got a guy here who only looked at pictures of the struck vehicle and made estimates of the force involved and concluded the plaintiff could not have sustained a brain injury,” he said.

Because of the doctor’s qualifications and the use of scientific terminology, the testimony can be persuasive, Creager said. “It’s pretty strong stuff,” he said.

The plaintiffs’ lawyers cited cautionary opinions from the Supreme Court of Virginia, but the defense said none of those opinions had involved a biomechanical expert who was both an engineer and a medical doctor.

The defense said Smith should be allowed to testify regarding his science-based injury causation analysis. Smith is one of the few experts in the field who has both medical knowledge and engineering knowledge, Horvath said.

“His resume is really impressive,” Horvath said.

The judge first determined to allow Smith to testify, Horvath said. Three days before the scheduled trial, however, the judge changed his mind.

The judge ruled no expert would be allowed to testify regarding the speed, movements and forces involved in the collision except in order to render a medical opinion. The judge also barred evidence asserting that any biomechanical determinations, studies or calculations established that the collision forces could not have caused the alleged injuries, according to the plaintiff’s legal team.

“We wanted to make sure this type of junk science does not get accepted,” Creager said, in describing his team’s efforts to keep Smith out of court.

Horvath disputed the “junk science” claim. He said the plaintiff’s expert used the same EdCrash software and the same techniques to analyze the accident.

“Dr. Smith does not rely upon alleged ‘junk science,’” Horvath wrote in a brief.

“The accident was not ‘reconstructed.’ It was a simple rear-end collision. Dr. Smith just used the basic laws of physics to determine the ‘G forces’ involved in the accident,” Horvath wrote.

Horvath also said the judge’s ruling was not entirely clear cut. The ruling would still have allowed Smith to provide medical opinions regarding causation and regarding force used to support a medical opinion, he said.

The case settled the morning after the judge’s decision to bar Smith’s testimony, the plaintiff’s lawyers reported.

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