Opinion
12842/12
06-29-2016
Sawran Singh, Plaintiff, v. Aslam Siddique, Defendant.
For Plaintiff: Edward J. Anthony, Esq. 233 Fifth Avenue, Suite 4A New York, NY 10016 For Defendant: Steven Balson-Cohen, Esq. Russo & Toner, LLP 33 Whitehall Street New York, NY 10004
For Plaintiff: Edward J. Anthony, Esq. 233 Fifth Avenue, Suite 4A New York, NY 10016 For Defendant: Steven Balson-Cohen, Esq. Russo & Toner, LLP 33 Whitehall Street New York, NY 10004 Debra Silber, J.
Recitation, as required by CPLR 2219(a), of the papers considered in the review of plaintiff's motion in limine to preclude defendant's expert from testifying at trial Papers Numbered Motion and Exhibits Annexed 1-20 Answering Affirmation and Exhibits Annexed 20-40 Reply Affidavits Other: Exhibits admitted into evidence at hearing 41-4
Upon the foregoing cited papers, the Decision/Order on this application is as follows:
In this action, plaintiff Singh was driving a vehicle which was hit from behind by a vehicle driven by defendant. The accident took place on October 24, 2011 on one of the roads inside Kennedy Airport. Plaintiff claims he sustained various injuries, including injuries to his neck and back. He had a lumbar discectomy, which is claimed to have been necessitated by this accident. A jury rendered a verdict on March 22, 2016 on the issue of liability, concluding that defendant was solely responsible for the happening of the accident. Counsel requested that the court disband the jury due to scheduling issues with regard to the damages portion of the trial. This court then scheduled and held a hearing on June 13, 2016, on plaintiff's motion in limine, which seeks an order precluding defendant's expert, Dr. Kevin Toosi, a biomechanical engineer, from testifying as to his opinions as to the forces involved in the accident and that the plaintiff could not have sustained any of the claimed injuries in the subject accident. Dr. Toosi testified at the hearing, out of the presence of a jury. He was examined by plaintiff's attorney and defendant's attorney. For the following reasons, plaintiff's motion to preclude Dr. Toosi's testimony at trial is granted. The court concludes, for the reasons which follow, that he may not testify at the damages trial in this action. Plaintiff's Motion in Limine to Preclude the Expert's Testimony
In support of the motion, plaintiff's counsel provides an affirmation, a copy of the expert's report, a copy of the expert's curriculum vitae, the transcripts of plaintiff's EBT, defendant's EBT, five case decisions on the issue of the admissibility of the opinions of biomechanical engineers, an article from a professional journal on photogrammetry which summarizes a presentation made by the authors to an annual meeting of the Association for the Advancement of Automotive Medicine in October 1992, an undated article from a newsletter for personal injury attorneys which reviews a scientific paper on "whiplashjournal.com" on "delta -v," and an article written by a chiropractor from a 2010 issue of "Dynamic Chiropractic." The attorney for the defendant did not object to the articles on the basis of their not being in admissible form, but objected to them on the basis that they are outdated and thus inaccurate.
Described therein as the Journal of Whiplash and Related Disorders, a peer-reviewed journal.
The gist of the plaintiff's argument in support of a preclusion order is that Dr. Toosi's opinions are unreliable, conclusory and lack foundation. Counsel avers that since Dr. Toosi did not inspect either car, did not see any photos of the defendant's vehicle, did not see the damage repair estimates for either of the vehicles and based his calculations on data from a different vehicle than plaintiff was driving, his conclusions are not reliable as they lack a proper foundation. In addition, counsel claims that Dr. Toosi's failure to consider the size or position of the plaintiff in the vehicle, the condition of the tires or of the roadway or plaintiff's medical records makes the witness' conclusions speculative. Finally, plaintiff's counsel argues that the witness was unable to cite a study that conclusively correlates the delta -v force with bodily injuries in motor vehicle accidents.
Defendant's opposition to the motion
In opposition to the motion, defendant has submitted an affirmation from counsel, an excerpt from a book entitled "Reference Manual on Scientific Evidence," Dr. Toosi's report and curriculum vitae, and seventeen judicial decisions. Plaintiff's counsel did not object to the court's considering the excerpt from the book.
The primary argument proffered in support of the expert being permitted to testify is that controlling legal authority has concluded that biomechanical engineering principles are generally accepted in the scientific community and all four Departments of the Appellate Division have opined that biomechanical engineers are proper expert witnesses even if the witness does not have a medical degree. Counsel argues that the alleged deficiencies in Dr. Toosi's information about this accident are "at best, material for cross-examination." Moreover, counsel alleges that "plaintiff's counsel has submitted the same old tired points and authorities proffered by the plaintiff's bar wherein counsel, ignor[es] a wealth of Appellate case law." Finally, defendant's counsel claims the plaintiff's motion is deficient in that it fails to include an expert affidavit to "support the now discredited position about biomechanical engineers."
Standard of Review
"[W]hile courts will go a long way in admitting expert testimony deduced from a well-recognized scientific principle or discovery, the thing from which the deduction is made must be sufficiently established to have gained general acceptance in the particular field in which it belongs." Frye v U.S., 293 F 1013, 1014 [DC Cir 1923]. Therefore, a Frye hearing is held to determine "whether the accepted techniques, when properly performed, generate results accepted as reliable within the scientific community generally" (People v Wesley, 83 NY2d at 422). See also Styles v General Motors Corp., 20 AD3d 338, 341 (1st Dept 2005) (even when each test on a vehicle was generally accepted, the combination of the two tests to one vehicle must also be generally accepted); Frye v U.S., 293 F 1013 [DC Cir 1923]; People v Wesley, 83 NY2d 417 [1994]). The Court of Appeals has recently applied this analysis, re-affirming that New York is a Frye state, in Sean R. v BMW, 26 NY3d 801 (2016).
The authors of one article have created a list of five "prongs" for a Frye hearing, all of which must be satisfied to permit the testimony. They are:
Glick and O'Loughlin, The Rise of Biomechanical Experts at Trial, NYSBA Journal Nov/Dec 2010 at 49.
1. The witness is competent in the field of expertise that he purports to address at trial;
2. The expert testimony is based on scientific principles or procedures which have been sufficiently established to have gained general acceptance in the particular field in which it belongs;
3. The processes and methods employed by the expert in formulating his or her opinion adhere to accepted standards of reliability within the field;
4. The proffered testimony is beyond the ken of the jury; and
5. The expert's testimony is relevant to the issues and facts of the individual case.
With regard to the testimony of biomechanical engineers in trials involving motor vehicle accidents, there are two principles which are, at this point in time, undisputed. The first is that the accepted techniques in biomechanical engineering, when properly performed, generate results accepted as reliable within the scientific community. See Shifrel v Singh, 61 AD3d 401 [1st Dept 2009] (biomechanical engineer permitted to testify that it was unlikely that plaintiff's left shoulder impacted the steering wheel); Valentine v Grossman, 283 AD2d 571 [2d Dept 2001] (biomechanical engineer should have been allowed to testify that the force in the accident was insufficient to cause a herniated disc); Cocca v Conway, 283 AD2d 787 [3rd Dept. 2001]; lv. denied, 96 NY2d 721 [2001] (witness allowed to testify that the impact between the vehicles did not have enough force to cause the injuries claimed by the plaintiff); Martell v Chrysler Corp., 186 AD2d 1059 [4th Dept 1992] (plaintiff properly permitted to call biomechanical engineer to testify in products liability action). See also Sands, Richard M., Using Biomechanical Science in Labor Law and Premises Cases, NYLJ 11/3/10.
The second principle is that, in the few New York appellate decisions on the subject, there are none which have affirmed a trial judge's decision to preclude a biomechanical engineer without first holding a hearing outside the presence of the jury. See White v Luna, 139 AD3d 939 (2d Dept 2016). Defendant's expert Dr. Kevin K. Toosi
Dr. Toosi emigrated to the United States after obtaining a medical degree in 1994 and practicing general medicine for five years in Iran. He decided to change careers when he came to the U.S. and received his B.S., Master's and a Ph.D (in 2011) in bioengineering, all from the University of Pittsburgh, where he is now an adjunct professor. His curriculum vitae states that he also is a consultant and is the President of Pittsburgh Biomechanics, LLC. Dr. Toosi is not a licensed medical doctor in any state of the U.S.
In Dr. Toosi's curriculum vitae, he lists awards and honors he has received, articles he has participated in writing and presentations he has made at conferences. Only one of the seven articles he has co-written has anything to do with motor vehicle accidents. The others are about bladder walls in rats and cows and injuries to the hands from typing. The article on motor vehicle accidents is an article that was published by the Society of Automotive Engineers in 2009 and addresses the topic of shoulder ligament injuries; as Dr. Toosi was a student at the time, his name is listed last of the four authors. The list of presentations comprises topics involving rat and cow bladders and injuries to the wrist and fingers from keyboarding. There are two presentations listed (of sixteen) about automobile accidents, one about lower extremity injuries in low speed motor vehicle accidents, and one about upper extremity injuries in low speed motor vehicle accidents. The last of these is stated to have been published on the website of the American Society of Biomechanics, from their August 2015 conference. However, if it was once available, it is not available any longer, and the link provided by Dr. Toosi states that the shared file has been removed.
The court concludes that the witness is hardly an expert in the biomechanics of motor vehicle accidents.
The Hearing
At the hearing, Dr. Toosi endeavored to explain how he reached the conclusions in his report. His report is dated June 26, 2014, and is an exhibit to the motion papers, as is his curriculum vitae. The conclusions on page 12 of his report are that, within a reasonable degree of scientific certainty, Mr. Singh's alleged neck and back injuries "cannot reasonably be attributed to the subject accident," as "the loads and mechanisms required to cause traumatic injuries to Sawran Singh's spine were not present in the accident." At the hearing, he testified that plaintiff's injuries were due to degenerative changes compatible with his age and/or repetitive loads during his activities of daily living.
Dr. Toosi testified that he performed an analysis to determine the "delta-v" force, that is, a measure of the severity of a traffic collision, which is defined as "the change in velocity between pre-collision and post-collision trajectories of a vehicle." He testified that he used two different methods, the "momentum method" and the "crush energy analysis," although he stated that either one would alone be sufficient. He did his calculations on a spreadsheet, and did not use any of the software marketed for this purpose.
For the momentum method, the differences between the speeds of the two vehicles is the number sought to be determined. Dr. Toosi testified that while the speeds of each of the two cars is not known, he was able to determine that the difference in speed between the two vehicles could not have been more than 15 miles per hour because the defendant's airbags did not deploy. He acknowledged that defendant probably did not hit the plaintiff's car with the center front of his 2001 Lincoln Town Car, and stated that he calculated the angle at 160 degrees, 180 being a "straight on" hit with the center front bumper. Dr. Toosi did not establish to the court's satisfaction that defendant's airbags would have deployed if the "closing speed" were higher. He did not have any data about the Lincoln Town Car for this model year or any other year, nothing to indicate what speed would cause the airbags to deploy, what angle would cause the airbags to deploy, or even that the defendant's car had airbags.
It is common knowledge that airbags are designed to deploy when the front of a car impacts something. However, the closing speed is not the only factor, as the "stiffness" of the object hit (brick wall or orange rubber cylinder), the weight of the vehicles, the design of the airbag control module and the angle at which the car is hit are also factors.
See "Airbag Deployment Criteria" by scientists at the Institute of Risk and Safety Analysis, 2014 at irsa.us/publications.
Defendant was driving a 2001 Lincoln Town Car with livery plates which he testified at his EBT that he had purchased used, and that he did not remember what year he purchased it, but estimated it at either 2007 or 2008 (EBT Page 12). During the trial, defendant could not remember the features of the car, as he has owned many cars, and more than one at a time. When he was asked on the witness stand about the damage to his car after this accident, he testified that it did not have much damage, although it was towed from the airport, and since it is his business to know about cars, he knew how to have it declared a "total loss" so he could get a new car. He did not take any pictures of the damage, nor did he get a written estimate of the cost to repair the car.
When asked at the hearing how he knew that the car even had airbags, Dr. Toosi testified that, as a livery cab, it had to have an inspection sticker, and the New York State Inspection protocol requires a check of the airbags by means of a check of the airbag sensor light. Puzzled, the court inquired of Dr. Toosi if he was sure about that, and he answered that he was. However, he was incorrect. As is clearly stated on the New York State Department of Motor Vehicle's website, which the court takes judicial notice of, if the airbag warning lamp is on or is not working, the inspector will inform the vehicle owner, but this is only for the owner's information and is not cause for failing the inspection or denying the owner an inspection sticker.
"Your vehicle's Air Bag Warning Lamp will be checked for proper operation. You will be informed if the vehicle's air bag warning lamp is on or is not working. This is an advisement only and not cause for rejection."
See https://dmv.ny.gov/brochure/new-york-state-vehicle-safetyemissions-inspection-program.
In addition, it appears that the vehicle in question, a 2001 Lincoln Town Car, was recalled for having a defective airbag frontal sensor control module, and the notification on the National Highway Traffic Safety Administration website states "the crash sensor may have been assembled with one or more of the screws that mount the circuit board in the housing missing. If some or all of the screws are missing the performance . . . could be affected and in some cases, less than the intended level of protection in the event of a crash." There was a free repair for owners who took their cars to an authorized dealer, but as defendant bought the vehicle used, it is not known if this vehicle was repaired.
NHTSA Campaign number 00V412000.
The second method Dr. Toosi employed to conclude that the force of the impact was insufficient to cause the plaintiff's injuries was described by Dr. Toosi as a "crush analysis." In order to determine the forces involved in the accident, Dr. Toosi examined six color photos of the plaintiff's car taken after the accident. These were marked Exhibit 6. They indicate that the plaintiff was driving a SUV-type vehicle, which was hit from behind and somewhat to the left. The plaintiff's EBT and the Port Authority police report (Exhibit 5) reveals that the plaintiff's vehicle was a 2004 Chrysler Pacifica. The impact was to the liftgate, left of center, and at the rear bumper, with force sufficient to break off the bumper and crumple the rear quarter panel over the rear wheel and around the gas tank cover.
Exhibit 4 is the plaintiff's repair estimate prepared shortly after the accident by an appraiser hired by American Transit Insurance Company, defendant's insurer. The estimated cost of repair is $7,379. The new parts needed include the rear bumper, the rear lamp, the rear lift gate, rear body panel and the left outer panel.
Dr. Toosi testified that he did not know how tall the plaintiff is, what he weighed on the date of the accident, where his headrest was positioned, where his seatbelt was positioned or how far the seat was from the steering wheel. He was unfamiliar with the design of the interior of the vehicle. Of course, these factors, as well as the position of the seat and the headrest relate to the severity of the injuries to the vehicle occupants.
See, for example, Lower Back and Neck Strain Injuries: The Relative Roles of Seat Adjustment and Vehicle/Seat Design, reprinted at http://www-nrd.nhtsa.dot.gov/pdf/esv/esv16/98S6W29.PDF.
Dr. Toosi testified that the crush analysis utilizes in its calculation the depth of the "crush" at its deepest point and the stiffness coefficient for the vehicle. He explained that the calculation of the transfer of kinetic energy from the faster "bullet" vehicle to the plaintiff's vehicle enables him to determine the velocity of the vehicles and the "closing speed," which is the difference in their speeds, and, from this, the severity of the impact. He then stated that from looking at the photos, he determined that the crush in the rear quarter panel of plaintiff's car was two and a half inches. He was aware that the lift gate was the target of the impact, and the damage to the rear quarter panel was from crumpling, or accordion-like movement, but he testified that this is how this analysis is done, by measuring the deepest dent, no matter how it is caused. He explained that the way one determines the biggest dent is to compare photos of the damaged car to photos of a new vehicle of the same model, and that this is how a "crush analysis" is done, and is a generally accepted methodology in the field of biomechanical engineering.
For the stiffness coefficient, Dr. Toosi acknowledged that he could not obtain an exact number for the plaintiff's vehicle, and that he used a "cohort," which is a procedure accepted in the field. Exhibit 8 is the article he footnoted in his report at footnote 9, which he testified supports his claim that this is the common practice. It is titled "Updating the Vehicle Class Categories" and is published by SAE International as Paper 960897 (1996). This report points out that vehicles had changed significantly between the 1980's and 1990's, particularly from rear-wheel drive to front-wheel drive, as well as in the size and design of vehicles, so the SAE paper published in 1984 had become outdated.
Similarly, the abstract for SAE Paper 2010-01-1581, "Updating Generic Crush Stiffness Coefficients for Accident Reconstruction," states that the twenty-year-old paper which Dr. Toosi used is outdated, due to new vehicle types and other design changes. The abstract on the SAE website further states "New generic crush stiffness coefficient values were calculated [for this paper] to better represent newer vehicles produced between 1990-1999 and 2000-2009. The crush stiffness coefficients were calculated for each category for the entire population of the data used. The data was broken into different decades in which the vehicles were produced. After the analysis was performed, it was noted that crush stiffness values showed an upward trend for newer vehicles." Thus, one would expect a 2004 vehicle would have a higher crush stiffness coefficient than a 1994 vehicle. Surely Dr. Toosi could have used the numbers developed and published by the SAE in 2010 rather than those from 1996.
Dr. Toosi testified that he used the 1996 report's "multipurpose vehicle category Class 2" for the stiffness number , and his estimate of the depth of the biggest dent to calculate the change in velocity. It was also his opinion that the plaintiff's vehicle had its rear bumper at the same height as a passenger car's. There was no evidence for this conclusion, as the plaintiff's vehicle appears to be a SUV and defendant's vehicle was a sedan. Surely some basic information about the plaintiff's car could have been put into evidence. In fact, footnotes number one and two in Dr. Toosi's report states that he looked at the specifications on the internet for the plaintiff's vehicle and defendant's on edmonds.com, but he did not go to the manufacturer's website to get primary source information, nor did he print anything out and bring it to court.
In the 1996 report, the frontal stiffness number ("A" pound force) for this category of vehicle is 219.60 (Page 8 of Exhibit 8) but in the 2010 study, which the witness did not use, for cars manufactured between 2000-2009, frontal crash stiffness for this category of vehicles for the "A" pound force is 436.9.
Exhibit 7 is an article submitted by plaintiff on measuring "crush." Counsel used it to cross examine the witness on his methodology in determining the crush measurement. Therein, the authors explain the technique of photographing the damaged car and an undamaged car from the same distance and with the same lens, placing stickers (dots) on certain specified places on each car and a cone on top, and then overlaying the photos and lining up the dots and the cone. This permits a measurement of the "crush," as this writer understands it, using an additional overlay of a grid with ruler-type measurements. The witness testified that this is an outdated technique, but he did not bring any articles or treatises with him to demonstrate the current technique. He testified that he could determine the crush in the plaintiff's vehicle by looking at the photographs he was provided. The court finds this statement to be less than credible.
Kullgren, Lie and Tingvall, Photogrammetry for Documentation of Vehicle Deformations - A Tool in a System for Advanced Accident Data Collection, Vol. 26, No. 1, Accident Analysis and Prevention 1992.
Once he reached his numerical conclusions, Dr. Toosi then analyzed the way plaintiff, who was inside the front car, must have moved due to the impact. Dr. Toosi concluded that it was clear to him that the force that plaintiff was subjected to in this accident was only 3Gs, the same amount of force that one would experience in a bumper-car ride at an amusement park.
During his cross examination of the witness, plaintiff's counsel asked Dr. Toosi for copies of any scientific studies which supported his ultimate conclusion that during the second accident, the one between the plaintiff's body and his car, as opposed to the first accident, that is, the one between the two cars, the plaintiff, a person whose size, weight, position in the vehicle and state of health were unknown to Dr. Toosi, could not have sustained the reported injuries to his neck and back. He responded that he had not traveled from Pittsburgh with anything except a copy of the report he prepared for this case.
Discussion
It must be noted that the Court of Appeals has opined that this analysis is not really a Frye inquiry, but an "admissibility question applied to all evidence - - whether there is a proper foundation - - to determine whether the accepted methods were appropriately employed in a particular case." Parker v Mobil Oil Corp., 7 NY3d 434 [2006], citing People v Wesley, 83 NY2d 417 [1994].
In Cornell v 360 West 51st Street Realty, 22 NY3d 762, the court explains "a court may exclude the opinion if there is simply too great an analytical gap between the data and the opinion proffered." In addition, the court in Cornell describes Parker as having "clarified rules for the foundation necessary to admit expert evidence." "where the tendered scientific deduction has been deemed generally accepted as reliable, there remains a separate inquiry applied to all evidence. This inquiry is whether there is a proper foundation — to determine whether the accepted methods were appropriately employed in a particular case." Ratner v McNeil-PPC, Inc., 91 AD3d 63 (2nd Dept 2011). Put another way, the issue before the court is whether the processes and methods employed by the expert in formulating his or her opinion adhere to accepted standards of reliability within the field.
The inquiry here is thus with regard to "prongs 1 and 3" in the list referred to above. These are: 1) The witness is competent in the field of expertise that he purports to address at trial; and 3) The processes and methods employed by the expert in formulating his or her opinion adhere to accepted standards of reliability within the field. The court finds the other three "prongs" are satisfied in this matter.
To be clear, as to prong No.2, the court finds the field of accident reconstruction, and the methods of calculating the forces involved in an accident, and even how much force was applied to bodies inside the car, is generally accepted in the scientific community.
Ordinarily, with a proper foundation for the biomechanical engineer's opinions, whether the witness' assumptions (such as the data collected or not collected and the expert's calculations thereon) render his findings unreliable is an appropriate topic for cross-examination and the jury should decide how much of his testimony to believe, if any. While there is no question that the formulas Dr. Toosi utilized to calculate the delta-v force are generally accepted in the field of biomechanical engineering, the court finds that, in this action, the issue is not only whether the numbers which Dr. Toosi plugged into the formulas may be challenged on cross examination, but whether his methods adhere to accepted standards of reliability. The court finds that his methods do not adhere to accepted standards of reliability. For example, while he testified that he used the average weight of occupants the age of the people in the vehicles to determine the weight of each vehicle (mass is an element of the delta-v equation) that method is known in the field to not be appropriate. In an article Dr. Toosi is surely aware of, the authors state "A vehicle specific value of the stiffness parameter B should be used. Direct measurement of crush measurements and vehicle mass (including the best estimates of fluid loss) should be used. Similarly, the mass of occupants and cargo should be measured directly rather than estimated from 50th percentile values."
The sensitivity of the calculation of v (delta-v) to vehicle and impact parameters, R. Pride, D. Giddings, D. Richens, D.S. McNally, Accident Analysis and Prevention 55 (2013) 144—153.
The court finds that Dr. Toosi is neither competent nor sufficiently experienced in his claimed field of expertise to testify. In this matter, and on the specific facts in this case, Dr. Toosi not only made errors in obtaining the data for his calculations, but he could not show one peer-reviewed item of scientific literature to validate the methods he used to conclude that the forces of this accident could not have caused the injuries which plaintiff reports he sustained.
In his report, if Dr. Toosi cited any peer-reviewed and recent studies which would demonstrate that his methodology is generally accepted in the scientific community for the purpose of determining injuries in car accidents, he did not annex any copies, nor did he state which of his 53 footnotes do so, and he did not bring a copy of any such study to court. While his report has 53 footnotes, with a few exceptions, they do not appear to be relevant. He footnotes a physics textbook, online information for the two cars, the outdated 1996 study of vehicle categories discussed above, materials about spinal disc injuries and degenerative disc disease and several articles about MRIs. Only a handful of the listed articles were published within the last ten years. His testimony that there is plenty of research to support his methodology was purely conclusory. Dr. Toosi did not bring copies any of the cited materials to court to offer into evidence in support of either his methodology or his conclusions when he was asked for them on cross-examination. Therefore, the court must conclude that Dr. Toosi's opinion that the accident did not cause or contribute to plaintiff's injuries lacks sufficient foundation.
An essential component of Dr. Toosi's analysis was based on his claim that the change in vehicle velocity ("delta-v") is an accurate crash severity metric to estimate the risk of injury to occupants in motor vehicles. Plaintiff's counsel made an issue in his motion to preclude, and on cross examination, that Dr. Toosi was unable to cite a single study that conclusively correlates the delta-v force with bodily injuries in motor vehicle accidents.
As an aside, a recent study was done which concluded that in specified circumstances, other methods of analysis are superior to the delta-v analysis. In October 2015, a study was published which used data from over one hundred thousand vehicles which were in accidents. They used four different metrics, and found that, for seat-belted drivers, "both OIV (occupant impact velocity) and VPI (vehicle pulse index) were significantly better predictors of serious injury than delta-v." However, this study was conducted solely on vehicles with Event Data Recorders manufactured by General Motors which were in frontal collisions with airbag deployment. A study done earlier, which was only on 200 vehicles, found no significant difference in accuracy between delta-v and OIV, but this study included passengers as well as drivers and may not have differentiated between those wearing seatbelts and not, and while that study also used the Event Data Recorders in the cars, they have become more accurate in the years between the two studies. Science is constantly developing new facts and new theories, a fact nobody can dispute.
Ada Tsoi and Hampton Gabler, Evaluation of Vehicle-Based Crash Severity Metrics, Traffic Injury Prevention 16 (sup2):S132-S139 ú October 2015. Available through reasearchgate.net.
D. J. Gabauer, H. C. Gabler, Comparison of delta-v and Occupant Impact Velocity Crash Severity Metrics Using Event Data Recorders, Center for Injury Biomechanics, Virginia Tech 2006. Published at http://www. ncbi. nlm. nih. gov/pmc/articles/PMC3217488/
While defendant's counsel claims that decisional law now supports allowing a biomechanical engineer to testify, this assertion is not entirely accurate. Decisional law only supports allowing a biomechanical engineer to testify if he or she first establishes that the processes and methods employed in formulating his or her opinion adhere to accepted standards of reliability within the field. For example, in Santos v Nicolos, 24 Misc 3d 999, (Sup Ct Bx Cty 2009) appeal dismissed 65 AD3d 941 (1st Dept 2009), the court precluded the testimony of a biomechanical expert who sought to testify that the plaintiff's injuries could not have been caused by a low-impact rear-end collision, finding that the methods used by the proposed expert were not established to be "generally accepted" in the scientific community. The First Department dismissed the appeal because a Frye ruling is an evidentiary one, which is "generally reviewable only in connection with the appeal from the judgment rendered after trial." However, the Court went on: "were we to reach the merits of the appeal, we would affirm" Santos, 65 AD3d 941 (1st Dept 2009).
In conclusion, not only did Dr. Toosi use speculative information about the defendant's vehicle and outdated information about the plaintiff's vehicle, while merely speculating about the number of inches of "crush" from a photo, and testify that this was the correct data to plug into the formulas to calculate the relative speed of the two vehicles, when asked for evidence of the reliability of his methods from a learned treatise or peer-reviewed article, he was empty-handed. Trial courts have been relatively uniform in expecting persuasive authority on this issue. See, for example, White v Grocery Haulers, Inc., 2014 NY Misc. LEXIS 738 (NY Co Sup Ct) where the court states "Dr. Kaplan's testimony that there is plenty of research to support his methodology was conclusory."
With respect to the argument of defendant's counsel that in order to make a proper motion in limine, which in this case was with regard to a witness whom defendant's counsel had previously served a 3101(d) notice for, that plaintiff needs a expert affidavit to controvert the report, the court must point out that, as an application for a Frye hearing may be oral, an expert's affidavit is not a prerequisite. See State v Metz, 241 AD2d 192, 198, (1st Dept 1998) ("Generally, the function of a motion in limine is to permit a party to obtain a preliminary order before or during trial excluding the introduction of anticipated inadmissible, immaterial, or prejudicial evidence or limiting its use.") Further, as Justice Saxe states in a recent decision "the CPLR does not contain any time limitations applicable to motions in limine, and there are no general rules dictating their content" (see Sadek v Wesley, 117 AD3d 193, 203 [1st Dept 2014]).
Conclusion
Accordingly, based on the testimony adduced at the hearing, plaintiffs motion to preclude the testimony of Kevin K. Toosi Ph.D. at the upcoming damages trial is granted.
This shall constitute the decision and order of the court. Dated: June 29, 2016 Hon. Debra Silber, J.S.C.