I recently took the deposition of a Biomechanical Engineer in a rear end collision case. He is a university professor who has made a second career doing expert witness work for insurance defense lawyers.  In essence he ends up with the opinion “that since the  forces acting on [the plaintiff] in the accident  were very low, relative to forces experienced in daily living, my conclusion is that the accident is not  a likely source of significant forces acting on [plaintiff’s body].”  

I have now seen two reports from this expert and the conclusions as well as most of the reports are exactly the same language. He is cookie cutting his reports and testimony to destroy legitimately  injured plaintiffs in low impact rear end collisions.

The next two posts assist in destroying a biomechanical engineer using his own and other peer reviewed studies. We begin by discussing what biomechanically happens to the spine in a rear end collision.

Occupant Motion In Rear End Collisions. In the words of defense biomechanical expert Allan Tencer, there are four motion phases affecting the spine (mostly the cervical spine) in a rear end collision. As each phase presents different motions of the occupant, each phase has a different injury-causing mechanism. The four phases  are explained by Tencer et al. below. (For a simpler analysis see Four Phases of Whiplash).

Retraction Phase. In the retraction phase, the upper torso is pushed forward by the seat back while the occupant’s head remains nearly stationary. Consequently the cervical spine takes on an S-shape by forcing the lower part of the neck (C5-C7) into a pronounced  extension while the upper part is in flexion.  The retraction phase ends when the maximum neck flexion and torso extension (maximum relative translation of the head and torso) is reached. This is an important injury mechanism as a pressure spike in the spinal canal is caused by the rapid  translation between C1  flexion with respect to T1  extension during retraction. See The Neck Injury Criteria (NIC) (developed to quantify the risk of whiplash injury during the four phases of whiplash).

Extension Phase. The extension phase begins after the head reaches maximum translation and then is pulled forward by the thorax. The rotation causes the upper cervical motion segments to join the lower motion segments in extension orientations. An important injury mechanism associated with this motion is hyperextension. Injury potential is measured by the extension movement beyond normal range of motion.

Rebound Phase.  The rebound phase occurs after the occupant’s head contacts the head restraint. Head restraint rebound causes the highest head translational acceleration to occur, as well as peak axial and shear forces. The cervical spine is known to be particularly vulnerable to injury when significant torque movements are combined with significant shear axial forces.

Protraction Phase. The protraction phase occurs after rebound when differential motion between the head and torso are reversed. This phase becomes significant when the forward motion of the upper torso is arrested  as the “seat belt begins to tense over the pelvis and the thorax… when the body returns to its original position, producing a violent flexion of the neck.” NIC.  Mechanisms associated with this motion are similar to those in the retraction and extension phases when the cervical spine translations form  an S-shape toward full flexion. A pressure spike in the spinal canal  is discussed in the NIC.

Pressure on Cervical Spine. The NIC  states  the highest pressure oscillations are are in the “shift from the s-shape to the extension, and the highest pressures were registered at the level of the C4 vertebra during the s-shape.” Now the “most accepted cause of whiplash injuries … is hyperextension… in the lower part of the neck during the formation of the s-shape (vertebrae C5, C6, and C7).” Tests by Panjabi et al. (and others cited by NIC) reveal intervertebral  movements exceeded physiological limits, which causes “lesions in the capsular ligaments and facet joints at the  C5-C6 level.”

In the next post we discuss factors that provide the foundation for cross examination or the biomechanical engineer.

Post Footer automatically generated by Add Post Footer Plugin for wordpress.

Recently  two things happened to lead to this post on Professionalism.  First I received a haircut from Charlotte a young hair stylist in training. Second, I read a law review article by Professor John Nivala, Zen and the Art of Becoming (and Being) a Lawyer, 15 UPS L. Rev. 387 (1991). Professor Nivala draws from his reading of Zen and the Art of Motorcycle Maintenance to discuss practicing law at the highest level. Here I draw from Charlotte and Professor Nivala to discuss Professionalism in the practice of law. By Professionalism  I mean doing what you do at the highest level.

Passion. The first requirement for Professionalism is passion. A  professional loves what she does. With young Charlotte being a hair stylist is her first career choice. She is a college graduate choosing to be a professional hair stylist. The best lawyer is a lawyer who loves what she does. This means she is passionate about helping  people through legal representation.

Immersion. The  professional immerses herself in her work. She forgets about all else except her project. She becomes one with her work. I observed young Charlotte in this zone of immersion while she focused on my hair. A Lawyer at her highest level enters a zone of focus where she loses track of time, she loses track of outside stimulus, and there is no separation between her and her work.

Creative. There is no road map or set pattern for a professional. Charlotte was cutting a man’s hair for the first time. My hair grows different ways in different places. She made decisions as she cut on how to style based on what she had learned and on her creative instinct. The result was a great haircut. The lawyer practicing at her highest level does so without set instructions. Rather the nature  of the material determines her thought and writing, which simultaneously changes the nature of the material she produces. See Nivala.

Growing. When I reflect on Charlotte it is clear she is evolving. She will continue to grow. She will continue to create. According to Professor Nivala the able lawyer is an artist capable of improvisation. Although grounded in tradition, the able lawyer responds to every new situation in a way she is open to new viewpoints and solutions. Thus, the practice of law for the professional is an art. An art that commits the lawyer to “a lifetime of continuous adaptation and learning.” Like young Charlotte the professional lawyer produces quality through passionate immersion with a disciplined imagination.

Post Footer automatically generated by Add Post Footer Plugin for wordpress.

In most personal injury cases a significant factor of case value is non-economic damages, also referred to as general damages. Juries are instructed to provide compensation for non-economic damages if they are demonstrated at trial.

In most states general damages include disability, pain and suffering,  loss of enjoyment of life and disfigurement.  A knowledgeable lawyer breaks down these elements separately and assigns a value to each. This makes sense as each element if present requires separate compensation.

Disability. Disability is present when the injured person lacks the ability possessed before the injury to perform work or tasks of living.  In a disability situation this is usually because of range of motion limitations or strength deficits resulting from the injury. Disability may be physical, but it can also be mental (such as in a brain injury case).

Pain and Suffering. Pain and suffering compensates for physical (pain component) and mental (suffering component) problems resulting from the injury. We all know what pain is having learned this as babies.  Suffering is the emotional component of mentally dealing with the injury.

Loss of Enjoyment of Life. To understand why loss of enjoyment of life is a separate element of general damages consider disability compensates for the inability to lead a normal life.  Pain and suffering compensates for the physical and mental discomfort of the injury.  Neither compensate for the loss of specific artistic, athletic, or unique skills possessed and lost, or loss of the ability to perform at the same level, because of the injury. Thus, when plaintiff has lost the ability to actualize special talent possessed before injury the jury is instructed to provide compensation.

Disfigurement. This is apparent to the jury. Disfigurement includes a scar,  a missing external body part and/or physical changes resulting from the injury.

Past, Present and Future. The jury is instructed to provide compensation for any element of general damages from injury to trial, for what exists at trial, and for what will exist into the future.  Significant perssonal injury cases usually involve an element of general damage that is permanent. Here the life expectancy of the injured person is considered. Usually the younger the plaintiff the more value to the injury. This is because of a longer life expectancy for enduring the element of the general damage.

Money as Compensation. The only way the law provides for compensation for personal injury damages is by way of a jury verdict in the amount of money the jury collectively believes is fair and reasonable given the injury. At times we read about a significant jury verdict.  In the abstract without knowing the facts this may seem like too much.  In reality the verdict amount is rarely too much. The injured plaintiff will always trade the amount of the verdict for their condition before the injury. Nonetheless,  a money verdict gives dignity to the injured plaintiff and represents a statement from the community that a negligent person is  financially responsible for their negligence. This makes us a civilized society.

Post Footer automatically generated by Add Post Footer Plugin for wordpress.