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The use of biomechanical expert testimony in Louisiana courts has evolved over the last few years. A recent decision from the Louisiana Fifth Circuit Court of Appeal provides an example of the changing standards for the admissibility of biomechanical expert testimony and its relation to medical causation.

In Pollard v. 21st Century Centennial Ins. Co., 21-65 (La. App. 5 Cir. 12/23/21), 334 So. 3d 1013, writ denied, 2022-00163 (La. 4/20/22), the defendants argued that the underlying accident involved a minor rear-end impact not likely to cause injury. The defendants hired a biomechanical expert who was also a medical doctor. The expert performed an “impact severity analysis” to determine the force of impact in the collision.

The expert concluded that the accident involved a minimum damage collision; he relied upon the “force reflection method” and test data at his crash test facility to determine how fast the rear-ending vehicle would have traveled to cause the damage present on the plaintiff’s vehicle. Based upon his findings, the expert opined that the plaintiff was not seriously injured in the collision. He went further to testify that specific injuries could not have been caused by the forces involved.

The Fifth Circuit noted the same expert was previously excluded in a case that went to the Louisiana Supreme Court in Blair v. Coney, 2019-00795 (La. 4/3/20), reh'g denied, 2019-00795 (La. 7/9/20), 298 So. 3d 168, where the Court found the expert’s testimony to be based upon insufficient facts or data. In Blair, the Supreme Court found the expert’s testimony should be excluded because he did not (1) inspect either vehicle involved in the collision; (2) speak with the damage appraisers; (3) know the plaintiff’s body position at the time of the accident; (4) inspect plaintiff’s vehicle for variance from the test-vehicle or (5) interview the plaintiff. Thus, his testimony failed to meet the requirements of C.E. art. 702(A)(2).

Citing the Blair decision, the Louisiana Fifth Circuit in Pollard concluded that the expert “relied on the same [improper] methodology in reaching his conclusions.” Therefore, the appellate court found the trial court erred in denying a motion in limine to exclude the expert’s testimony. Although the expert cited to peer-reviewed literature to support his conclusions, the evidence revealed that “most of the research and articles” he cited were either written by him or one of his employees.

Effective January 1, 2021, Louisiana amended La. R.S. 32.295.1, which now allows the admission of a plaintiff’s failure to wear a seat belt as a factor to be considered in comparative fault. Defendants will seek to use biomechanical experts to prove that the failure to use a seatbelt substantially caused or contributed to the damages.

Biomechanical testimony may be allowed. However, as shown in Pollard, biomechanical opinions which lack sufficient inquiry to match the analysis to the real-world impact will be treated with skepticism. Taking Blair and Pollard together, the courts appear to resist expert biomechanical opinions which seek to definitively resolve medical causation which often involves subjective elements and credibility determinations reserved for the trier of fact.

It is certain that defendants will continue to advance the “low impact” argument because force-of-impact testimony is a relevant factor in determining causation or extent of injuries. See, e.g., Merrells v. State Farm Mutual Auto, Ins. Co., 33-404 (La. App. 2 Cir. 6/21/00), 764 So. 2d 1182. What is less than certain is the role of the biomechanical expert. Following the Fifth Circuit’s decision in Pollard, the Louisiana Supreme court denied the defendant’s writ application 4 to 3, with all three dissenters advising they would have granted the writ. Issues surrounding the use and scope of testimony from biomechanical experts appear far from settled.

The United States Attorney for the Eastern District of Louisiana recently announced that two defendants, Doniesha Gibson and Erica Lee, had been sentenced for crimes related to staging automobile collisions with tractor-trailers. The sentences were announced as part of a criminal investigations known as "Operation Sideswipe." The years-long operation has produced multiple pleas and convictions, including a guilty plea from an involved attorney last year.

Gibson admitted that she was a passenger in a staged accident that occurred on October 15, 2015. A co-defendant intentionally drove the vehicle she occupied into a bus on the interstate. Gibson retained an attorney and filed a suit for damages. Claims related to this accident later settled for $667,500.00

Lee also admitted to filing a suit to claim injuries after the driver of the vehicle she occupied intentionally crashed into a tractor trailer on September 6, 2017. The claims for this suit settled for $30,000.00

United States District Judge Sarah S. Vance sentenced Gibson to 17 months incarceration plus 3 years of supervised release and ordered Gibson to pay restitution in the amount of the settlement. Lee was sentenced to serve 3 years of probation and 100 hours of community service. She was also ordered to pay restitution.

While “Operation Sideswipe” did not involve the typical claimants, it reminds of the need for vigilance in assessing accident claims.

We previously reported that the Louisiana Supreme Court issued Orders suspending prescriptive, peremptive and abandonment periods for thirty days in the wake of Hurricane Ida. Governor John Bel Edwards has now issued a Proclamation. In addition to other actions, the Proclamation provides that legal deadlines applicable to “legal proceedings in all courts, administrative agencies, and boards” are suspended until September 24, 2021.

The Proclamation also authorizes hotels and motels to cancel reservations which would result in the displacement or eviction of first responders, health care workers, or anyone performing disaster-related work.