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The plaintiff’s bar calls it junk science, but New Jersey’s highest court says expert testimony based on data from low-impact crashes with human test subjects was properly admitted in a fender-bender case that ended with a paltry jury verdict. A unanimous Supreme Court ruled Thursday, in Hisenaj v. Kuehner , A-86-06, that the trial judge’s determination of the scientific reliability was not an abuse of discretion and should not have been reversed by the Appellate Division. The ruling, though narrow, has the potential to spur automobile-negligence defense lawyers’ use of biomechanical engineering evidence which gauges the relationship between force and resulting impact on the human body. Such evidence, could seriously undercut plaintiffs’ medical experts’ testimony, as it did in this case. A jury handed up a modest $50,000 verdict for Hajrie Hisenaj, whose car was rear-ended in a low-speed crash in Mount Olive on March 2, 1998. Though property damage was minor, Hisenaj claimed the accident caused her degenerative disc disease and bulging and herniated discs. Over her lawyer’s objection, Judge W. Hunt Dumont admitted the testimony of defense expert Harold Alexander that the 8-mile-per-hour collision could not have caused the injuries. He based his opinion on 17 studies, conducted over a 34-year period, using 203 volunteers to recreate similar accidents. None of the subjects suffered chronic injuries as a result. Hisenaj’s lawyer, Edison solo Steven Sona, asserted the studies lacked scientific reliability and complained that the test subjects included no women of her age with degenerative disc disease. The jury found Hisenaj suffered significant limitations as a result of the accident but did not suffer permanent injury. Her award was thus small. She appealed, arguing Alexander’s testimony constituted a net opinion because it relied exclusively on the change in velocity to her vehicle caused by the collision and ignored other factors that would help determine whether the accident could result in a chronic injury. The Appellate Division conducted its own evidentiary review of the expert testimony, found it not scientifically reliable and reversed the ruling. Judge Joseph Lisa said the record “contains no evidence that the seventeen studies are generally recognized and relied upon in the scientific community as authoritative.” The Court on Thursday said the Appellate Division had overstepped its bounds by expanding the record and making its own finding, under N.J. Rule of Evidence 702, that the evidence lacked sufficient scientific reliability. “The Appellate Division . . . engaged in an unconstrained review that included material not part of the evidentiary record and argument that went beyond that which was advanced before the trial court,” Justice Jaynee LaVecchia wrote for the Court. “Under the circumstances of the present admissibility issue as litigated before the trial court, neither the Appellate Division nor this Court should rehabilitate the record against admissibility that was presented at trial.” LaVecchia said the outcome of the challenge might have been different had the record below been more developed. “[W]e recognize that the relationship between the studies and literature on which Dr. Alexander relied and Dr. Alexander’s opinions in this matter could be attacked as tenuous,” Lavecchia wrote, noting the appeals court cited several potential flaws in Alexander’s reliance on the 17 studies when extrapolating his opinions about Hisenaj’s injuries. “Those flaws, if developed in a trial record, might convince a trial court to exclude expert testimony from a biomechanical engineer concerning the likely injuries that a particular plaintiff would suffer as a result of a low-impact, vehicle-on-vehicle collision. However, we are compelled to restrict ourselves to the record made before the trial court,” she said. LaVecchia noted that the appeals court found that Alexander’s testimony “relayed only his personal views about the reliability of the studies, and not how the scientific community at large regarded the studies.” But she said he had provided more foundation for his views than the appeals court gave him credit for. He cited studies published in academic journals which, although not conclusive on the question of general acceptance in the scientific community, were not countered by contrary evidence. “Based on that meager record made before the trial court, we are persuaded that the court’s admissibility determination did not contribute an abuse of discretion,” Lavecchia concluded. The lawyer for defendant Amanda Kuehner says he’s pleased with the result. “Our position was abuse of discretion was the appropriate standard,” says Michael Devins, of McElroy, Deutsch, Mulvaney & Carpenter in Morristown. The case had drawn an amicus curiae appearance from the Association of Trial Lawyers of America-New Jersey. ATLA lawyer Bruce Stern, of Stark & Stark in Lawrenceville, argued that the studies Alexander used were designed to create safer automobiles – not to judge the viability of a personal injury claim. “Most people are not hurt in 5-mph crashes, but these tests were not designed to extrapolate that way,” Stern says, adding that insurance companies are increasingly using biomechanical engineering evidence to create a perception in jurors that an accident with minor damage to vehicles could not have caused serious bodily injury. “It plays into the juror bias that’s out there,” he says. Stern says he takes solace in LaVecchia’s remark that a more developed record might lead a trial court to come to a different conclusion about the scientific reliability of biomechanical engineering evidence. Hisenaj’s lawyer, South Orange solo Michelle Munsat, says she is disappointed the Court declined to rule definitively on the admissibility of such evidence. She says the Appellate Division had properly pointed out that the studies Alexander relied on were inapposite to the case.

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