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What role should biomechanical experts play in the courtroom? After hearing arguments last year in two consolidated personal injury cases, Rizzi v. Mason and Eskin v. Carden, the Delaware Supreme Court is poised to provide an answer for lawyers and judges, who have been grappling with the issue for two years. According to Richard Nelson, Pennsylvania State University professor emeritus of biomechanics, biomechanists examine how forces affect people’s bodies and typically testify about whether a litigant’s physical injuries are consistent with how an accident occurred. They are often called to render their opinions in suits arising out of automobile accidents, said Nelson, who has testified in about 70 low-impact, rear-end collision cases. “The liability issue [in such cases] is easy,” Nelson said, “but the question then is the nature of the injuries and whether they are consistent with the accident.” Thomas Buchanan, who heads the University of Delaware’s Center for Biomedical Engineering Research, agreed that biomechanists enjoy a steady diet of automobile accident cases. He identified design defect cases, patent matters and medical malpractice actions as areas of law that also lend themselves to biomechanical analysis. Delaware’s trial court judges have struggled with biomechanical evidence since 2001, when attorneys began offering biomechanists’ opinions in hopes of getting crash photos before juries. According to several practitioners and at least one Superior Court judge, the Delaware Supreme Court’s 2001 opinion in Davis v. Maute prompted the trend. DAVIS AND ITS LEGACY In Davis, the high court ruled that “counsel may not argue that there is a correlation between the extent of the damage to the automobiles in an accident and the extent of the occupants’ personal injuries caused by the accident in the absence of expert testimony on the issue.” According to Chief Justice E. Norman Veasey’s opinion, defense counsel in Davis showed a jury photographs of “apparently light damage” to a plaintiff’s car, “impliedly … to minimize personal injury damages because damage to the vehicle was minor.” Attorney Jeffrey Young of Young & Young in Dover said defense lawyers have historically used photographs showing minor vehicular damage to suggest that a plaintiff’s alleged injuries could not have been caused by a fender-bender. But since Davis, Young said, biomechanists have been brought in to “connect the dots” in order to get crash photographs before juries. Young said that while he has not had any difficulty calling biomechanical experts, he believes trial courts have been unsure how to handle such testimony without guidance from the high court. In his Oct. 31, 2003, opinion in Thomas v. Lagola, Superior Court Judge William C. Carpenter Jr. denied the defendant’s motion for a new trial filed after the jury returned a $1 million verdict for the plaintiff. The judge rejected the defendant’s contention that plaintiff’s counsel acted improperly in urging the jury to use common sense in considering the testimony of the defendant’s biomechanical expert. “The court would also use this opportunity to reflect that it is concerned about the appropriate use of biomechanical experts and the effect they may have on the fair deliberative process of the jury,” Carpenter wrote. “This is the first case where I have had such testimony, and in fairness to the defense, the court provided [the defense] significant leeway in the testimony.” Carpenter said that in hindsight, he was not sure that the permissive approach he took was appropriate. He warned that in the future, he might take a more conservative approach to the admissibility of biomechanical evidence. “The biomechanical game is an unfortunate byproduct of an attempt to solve the improper use of photographs decided in Davis which has led, I believe, in most reasonable minds, to an even worse and more costly process,” Carpenter wrote. THE CASES BEFORE THE SUPREME COURT Unlike Carpenter, Superior Court Judge Jan R. Jurden in Rizzi did not provide any leeway when the defense attempted to introduce a biomechanist’s opinion. Tried in 2002, Rizzi arose from a motor vehicle accident and resulted in a jury award of more than $340,000 for plaintiff Maria Rizzi. According to Jurden’s opinion, defendant Judith Mason wanted to introduce a biomechanist’s opinion about the cause of the plaintiff’s alleged neck injuries. Rizzi claimed she was permanently injured when Mason’s vehicle struck her vehicle, the opinion said. Mason’s liability was conceded prior to trial, and only causation and damages remained in dispute, the opinion said. Prior to trial, Jurden excluded biomechanist Peter Cripton’s opinion that the force of the impact between the parties’ vehicles was comparable to or less than “everyday” forces and was significantly less than the force necessary to produce Rizzi’s alleged injuries. The judge said Cripton’s evaluation was not admissible because no medical testimony was offered to make his opinion relevant. Last year, Louis Rizzo of Reger & Rizzo in Wilmington twice argued Mason’s case before the en banc Supreme Court. The first argument took place in early March, before retired Justice Joseph T. Walsh left the bench; re-argument was held in early August, after Justice Jack B. Jacobs joined the bench. Rizzo said he was not sure whether the change in the make-up of the bench was the reason behind the court’s request for re-argument. But he said that, like Jurden, other trial court judges have been reluctant to allow biomechanists to testify unless the biomechanist and a medical expert in a case refer to each other’s opinions and rely on each other’s findings. Rizzo said he contended before the high court that Davis should be limited to its facts and should not be read to require expert evaluation in every case, or, in the alternative, that if expert testimony is required in every case in which counsel wants to argue a correlation between the extent of the damage in an accident and the extent of parties’ injuries, a biomechanist’s opinion alone should be sufficient. Eskin involved essentially the same issues as Rizzi and was argued at the same time, Rizzo said. The high court also heard a third case, Potter v. Blackburn, with Rizzi and Eskin, but the court told counsel that it would decide Potter separately. Dubbing biomechanical evidence a “hot issue,” Rizzo said practitioners are waiting with bated breath for the Supreme Court’s take on the matter.

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