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Shaw Chiropractic
A Medical-Legal Newsletter for Personal Injury Attorneys
by Dr. Steven W. Shaw

McConnell Barred From Testifying

A Texas court recently barred Whitman McConnell from testifying in a case regarding a cervical strain injury in which the plaintiff was awarded $330,000 in damages. You may recall the name McConnell as the principle researcher in the most recent and heavily cited low speed research papers involving rear impact crash tests. These papers were the topic of our last newsletter. Whitman McConnell, MD is a physician and accident reconstructionist with the San Antonio based Biodynamics Research Corporation. The defense team hired McConnell as the expert witness expecting his testimony to be irrefutable due to his published articles and extensive curriculum vitae.

The plaintiff’s lawyer derailed the defense lawyers strategy by arguing the admissibility under a 1995 Texas Supreme Court Ruling (E.I. du Pont Nemours vs. Robinson, 923 S.W.2d 549) which established a six part threshold test for determining the admissibility of expert testimony. The high court ruling, in turn, adopted the federal court ruling in the high profile case of Daubert vs. Merrell Dow Pharmaceuticals Inc., 509 U.S. 579. If you recall this was the case in which Dow argued that there was no clear scientific evidence linking silicone leakage from breast implants and the diseases claimed by the plaintiffs.

In the Robinson case the expert witness, Dr. Whitcomb, held several college degrees and had written numerous books and articles on the topics on which he was to testify. After deposition of the doctor du Pont filed a motion to excude his testimony, alleging that his opinions were speculative and not reliable. The trial court held a pretrial hearing on du Pont’s motion and found in du Pont’s favor on the following points. They said that Dr. Whitcomb’s testimony:

1. was not grounded upon careful scientific methods and procedures;
2. was not shown to be derived by scientific methods or supported by appropriate validation;
3. was not based upon scientifically valid reasoning and methodology;
4. was not shown to have reliable basis in the knowledge and the experience of his discipline (horticulture);
5. was not based upon theories and techniques that had been subjected to peer review and publication;
6. was essentially subjective belief and unsupported speculation;
7. was not based upon theories and techniques that the relevant scientific community had generally accepted; and
8. was not based upon procedure reasonably relied upon by expert in the field.

The basis for invoking Robinson in the side swipe involving Dr. McConnell was that Dr. McConnell had not performed any mathematical calculations and that he had not practiced medicine since 1979. Several other plaintiff attorneys have used Robinson in similar cases in Texas recently.

Although some attorneys dismiss the other cases where accident reconstruction/biomechanical engineering testimony has been disallowed merely as flukes, others believe the Robinson ruling marks a watershed event in personal injury law and that it will pose a serious problem for insurance companies that are increasingly relying upon accident reconstruction analysis in low velocity auto accident, particularly rear end impacts. It is reported that the routine analysis can cost the carriers $4,000-$7000 each.

Whatever the long-term impact of the Robinson decision on expert testimony may be, it is clear that lawmakers are genuinely interested in removing junk science from the courtroom and that academic credentials and research experience will not exempt the experts from close scrutiny by judges. And that will be the to the distinct advantage of those genuinely injured in auto accidents, as well as those at risk for injury in the future. True science, after all, has always demonstrated that whiplash injury is a very real public hazard. It’s now known to result in approximately 200,000-300,000 disabled Americans each year. It should rightfully be taken seriously from a clinical standpoint, and a crash prevention and crashworthiness standpoint.

The approaches used in this case by plaintiff’s attorney will clearly need to be adapted to our state laws. However, it does represent an interesting twist and may prove valuable to those diligent attorneys willing to put the time and effort to defend their client’s rights. The significant variables which are present in the acquisition of accident reconstruction data and it’s relationship to the human body subject the expert opinions to much scrutiny. The extrapolation of this data beyond reasonable parameters suggests that a pseudo-scientific result has been arrived upon. Using the information from the Robinson case along with the data provided in our previous newsletters and argument can be made to either limit or exclude the expert opinions of accident reconstructionists and biomedical engineers.

The information in this newsletter was taken from a recent article published by Dr. Art Croft of the San Diego Spine Research Institute who is both a physician and accident reconstructionist. Special thanks to Dr. Croft for his contribution and continued efforts towards the dissemination of relevant medical legal information.