From the desk of Jeffrey D. Eberhard: Biomechanical engineers study the physics and mechanics of human biological material, including how much force it takes to cause a failure in bone and other human tissue. Biomechanical engineer testimony is often helpful in personal injury cases, especially low-impact auto accidents. However, some states do not allow biomechanical engineers to testify as experts. While Oregon trial courts have allowed biomechanical engineers, such as Bradley Probst, to testify as experts, the matter has only recently been decided at the appellate level. Read on to see how the Oregon Court of Appeals ruled when asked to consider whether a biomechanical engineer can offer an expert opinion as to whether a car accident could have caused a plaintiff’s injuries.these questions.
Claims Pointer: In this case, the Oregon Court of Appeals upheld a trial court ruling that biomechanical engineer, Bradley Probst was qualified to testify as an expert and that his methodology scientifically valid. Even though Probst only examined photos of the cars involved in the accident and the plaintiff’s medical records, his testimony was still admissible expert opinion. Furthermore, even though Probst was not a registered engineer, that fact alone did not bar him from testifying.
Durette v. Virgil, 272 Or App 545 (July 22, 2015)
Cindy Durette was on the way to the Oregon Coast when her car was rear-ended while stopped at a red light. Durette did not experience any pain immediately after the accident, but by the following day, she was experiencing back and neck pain. Durette sought chiropractic treatment shortly thereafter for headaches, neck and back pain, pain in her right arm, blurred vision, and balance problems. Plaintiff had been treated for neck and back pain off and on since the 1990s. Durette had been involved in another accident in 2004 which caused her back and neck pain until 8 months before being rear-ended. Durette sued the driver of the other car, Darcy Virgil, who admitted that she was negligent in causing the accident.
The case went to trial before a jury. Durette made a motion in limine to exclude testimony of Virgil’s biomechanical engineer expert, Bradley Probst, who would testify that Durette’s alleged injuries could not have been caused by Virgil. Durette argued that Probst’s testimony was inadmissible expert opinion for the following reasons: (1) that it would be illegal to let Probst testify because he was not licensed as an engineer in Oregon; (2) that a biomechanical engineer lacks the expertise to testify regarding medical causation; and (3) even if Probst was qualified to testify, he lacked a foundation to make an opinion regarding causation because he relied only on photographs of the cars involved in the collision and perhaps the testimony of Durette.
The trial court held a pre-trial hearing in order to determine whether a jury would be permitted to hear Probst’s testimony. Probst testified at length about his training and education, including several courses in medicine at Tulane Medical School in addition to biomechanical engineering courses for his masters and Ph.D. He explained that as a biomechanical engineer, he did not diagnose injuries, but rather that he analyzed the scientific facts surrounding an accident such as how materials (including organic materials) hold up under certain forces. He further elaborated that rather than diagnose whether an injury exists, his expertise concerns whether certain forces and conditions are capable of causing injury.
Despite Plaintiff’s urging to the contrary, the trial court allowed Probst to testify because he was qualified and his methodology was scientifically-based. After hearing from Plaintiff’s expert, a mechanical engineer (who analyzed the bumper and opined that Probst’s analysis was incorrect), and a physician, the jury deliberated and found unanimously for the defendant, Virgil. Durette appealed.
On appeal, Durette argued that the trial court erred in allowing Probst to testify because his methodology was not scientifically valid, that Probst was unqualified, and that his testimony was unfairly prejudicial. The Court of Appeals first pointed out that it had already held in another case that Probst’s methodology was scientifically valid. Second, Durette argued that the testimony was irrelevant because the tests that Probst relied upon for his opinion were not part of the litigation. The Court refused Durette’s argument because if the jury believed his opinion, then his opinion that the collision could not have caused Durette’s injuries would be relevant to whether Plaintiff was injured. Third, as to Probst’s qualifications, the Court held that Probst did not need a license in Oregon to testify as an expert because he was not “practicing” as an engineer as that term is defined by Oregon statute. Furthermore, contrary to Durette’s argument, Probst did not need to have medical expertise in order to render his opinion because it was not a medical diagnosis. Finally, the Court concluded that the value of Probst’s testimony was not outweighed by any unfair prejudice resulting from a jury being unduly influenced by Probst’s reliance on science (i.e. polygraphists). The Court of Appeals affirmed the trial court’s ruling allowing Probst to testify. Thus, the Court of Appeals allowed the defense verdict to stand.
Case updates are intended to inform our clients and others about legal matters of current interest. They are not intended as legal advice. Readers should not act upon the information contained in this article without seeking professional counsel.