Personal Injury Law

Another BRC Expert Barred

By Bruce Stern

It seems like deja vu reporting on another Court decision in which a trial judge has barred the testimony of a “biomechanical expert” employed by Biodynamics Research Corp. out of San Antonio, Texas.  This time it was the Supreme Court of Nevada and the proposed expert was Dr. Alfred Bowles II.
 
In Hallmark v. Eldridge, 124 Nev. Adv. Op. 48 (July 24, 2008), plaintiff filed suit for injuries he sustained when a vehicle owned by the defendant backed a company truck into the side of plaintiff’s car.  Plaintiff sustained two ruptured lumbar disc herniations as a result. 
 
Tradewinds Construction, the defendant in the case,  hired and presented, over plaintiff’s objection, the testimony of a physician, Alfred Bowles, II, M.D. who was credentialed and qualified as a “biomechanical engineer” to testify that the forces involved in the collision could not have caused plaintiff’s back injuries.  While the jury found defendant 100 % at fault, $200,000 for past damages which appears, from the decision, to be for “special damages” and $20,000 for future damages.  Plaintiff moved for an additor (an increase in the award) or in the alternative a new trial limited to the issue of damages.  The District Court denied plaintiff’s motion and the appeal followed.
 
Plaintiff asserted on appeal that the District Court erred in allowing Dr. Bowles to testify.  At trial, Dr. Bowles conceded on cross-examination, that he had formed his opinion without knowing the starting positions of the vehicles, the speeds at impact, the length of time that the vehicles were in contact during impact, the distances traveled, or the angle at which the vehicles collided.  Dr. Bowles also conceded that his opinion relied solely on photographs of plaintiff’s vehicle since he did not have the opportunity to examine it. 
 
The Supreme Court found that the District Court did not abuse its discretion when it determined that Dr. Bowles qualified as an expert under Nevada law.  However, the Nevada Supreme Court did find that the District Court abused its discretion when it allowed Dr. Bowles to testify “Because his biomechanical testimony and report did not assist the jury in understanding the evidence or determining a fact in issue.”  The Court found that defendant failed to introduce any evidence demonstrating: 1) that Dr. Bowles’ biomechanical opinion was capable of being tested; 2) that Dr. Bowles’ theories had been published or subjected to peer review; 3) that these types of opinions were generally accepted in the scientific community.
 
The Supreme Court concluded that the Court’s abuse of its discretion required that the matter be remanded to the District Court for a new trial limited to the issue of damages.  The Court instructed that on remand, Dr. Bowles’ evidence be excluded from consideration by the jury.

Full post as published by Traumatic Brain Injury Law Blog on August 11, 2008 (boomark / email).