(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this bus accident/personal injury case and its proceedings.)
The following blog entry is written from a defendant’s position as trial approaches. Reviewing this kind of briefing should help potential plaintiffs and clients better understand how parties in a personal injury case present such issues to the court.
Brad Small is the defense expert on accident reconstruction and biomechanics. Mr. Small testified that he reviewed Mr. Awad’s deposition and discovered several significant errors in Mr. Awad’s calculations. First, Mr. Awad used the wrong mathematic equation to calculate Ms. Chance’s pedestrian speed. (Small deposition, pages 85 to 86.) Second, Mr. Awad also reversed the location of the initial bus/pedestrian contact area or ICA because Awad drew his diagram of the intersection upside down, with north at the bottom and south at the top. (Small deposition pages 74 to 75.), Third, Mr. Awad is overheard on his video taped inspection of the intersection telling Mr. Jones that he has comparative fault here because Ms. Chance stepped out into the crosswalk on the DON T WALK phase of the signal.
Mr. Awad’s opinions are based on mathematically incorrect equations, conjecture and unwarranted assumption at best and outright fabrication at worst. Expert opinion testimony, to be admissible, must be based on at least some objective, independent validation of the expert’s methodology. The expert’s assurances that he has utilized generally accepted scientific methodology are insufficient when the expert’s calculations are shown to be incorrect (based n the wrong equation) and based on an upside down diagram that places the area of impact in the wrong location.
More important, where the expert can be heard informing his principal (John Jones) that the plaintiff was at fault for entering the intersection of the DON’T WALK phase of the green light (CVC 21456 (b)), there is no rational basis for allowing this expert to misrepresent the facts and testify in a manner inconsistent with his earlier in time, candid opinion on the issue of whether Ms. Chance was into the street on the WALK or on the DON’T WALK phase of the signal.
Expert opinion testimony based on factual assumptions that are not supported by the evidence are improper. Jennings v. Palomar Pomerado (2004) 114 Cal.App.4??h 1108. Experts are not allowed to express opinions carte blanche. Summers v. A. L. Gilbert Co. (1999) 69 Cal.App.4th 1155. 1178; Kelly v. Trunk (1998) 66 Cal.App.4th 519, 523-525. Where as here, the proffered testimony of an expert is based on flawed math and unwarranted assumption, the real danger is that such testimony will mislead the jury, confuse the jury and under any circumstance will fail to assist the jury in a proper or meaningful manner. Mr. Awad should be precluded from testifying based upon the foregoing and upon CEC 352 and CEC 801(a).
For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.