Ortiz v. Smith ( 2020 )

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
Luz Ortiz,
Plaintiffs,
Vv.
C.A. No.: N18C-03-279 FJJ
eae a a a
KATHERINE LEE SMITH,
URGENT AMBULANCE SERVICE, )
INC., and EDS TRANSPORTATION )
SYSTEMS, INC. )
)
Defendants. )
DECISION ON PLAINTIFF’S MOTION IN LIMINE TO EXCLUDE
BIOMECHANICAL TESTIMONY — GRANTED; ON PLAINTIFF’S
MOTION IN LIMINE EXCLUDING MEDICAL TESTIMONY
REGARDING A PRIOR ACCIDENT - DENIED
Plaintiff Luz Ortiz (“Ortiz”) has brought the instant negligence lawsuit against
Defendant Katherine Lee Smith and her employers (collectively “Defendants”) for
injuries Ortiz suffered due to an automobile accident which occurred on March 30,
2016 (the “accident.”) While driving home from work on the date of the accident,
Ortiz was traveling westbound on Hygeia Drive in Newark, Delaware. While Ortiz
was stopped at a light waiting to merge onto Ogletown Stanton Road, her Chevrolet
Cobalt was rear-ended by a Ford Econoline van being driven by Defendant Smith,
acting within the scope of her employment for Ambulance Service, Inc. & EDS
Transportation Systems, Inc.
Defendants have submitted testimony from two experts in this matter. First,
Defendants have provided biomechanical expert testimony based on a Report
authored by Dr. Sebastian Bawab, PhD and Dr. Michael Woodhouse, PhD.
Defendants have separately submitted medical expert testimony (“Medical
Testimony”) of Dr. David T. Yucha, MD. Plaintiff has filed a Motion in Limine to
exclude the biomechanical testimony. The Plaintiff has also moved to exclude Dr.
Yucha from testifying about injuries that Ortiz sustained in a prior motor vehicle
accident in 2011. For the reasons stated herein, the Plaintiff's Motion is GRANTED
as to the biomechanical testimony, and the biomechanical testimony will be
excluded. The portion of the Motion seeking to limit Dr. Yucha from testifying
about plaintiff's 2011 motor vehicle accident and treatment relating to that accident
is DENIED.
I. The Biomechanical Testimony
Defendants have proffered biomechanical testimony from Dr. Michael
Woodhouse as evidence to show that the force involved in the accident could not
have resulted in the injuries Ortiz allegedly suffered as a result of the accident. Dr.
Woodhouse prepared a 26-page Report (the “Report” or “Vector Report”) co-
authored with Dr. Sebastian Bawab, PhD., on behalf of an investigative engineering
& accident reconstruction firm called Vector Dynamics (“Vector.”) The Vector
Report assessed whether the “alleged injuries of Luz Ortiz are consistent” with the
physical impact Ortiz experienced as a result of accident. The Report states that
Vector reviewed multiple pertinent pieces of evidence as factual background for the
accident, including a police report prepared shortly after the accident, as well as
medical records describing pre-existing medical conditions Ortiz had at the time of
the accident and personal characteristics relevant to the physical impact of the
accident, including Ortiz’s height & weight. Using this information, the Report
conducted a reconstruction of the accident and determined that “the alleged injuries
[suffered by Plaintiff] are not consistent with the anatomical forces, torques, and
accelerations sustained as a result of the [accident] on March 30, 2016” and that “the
normal activities of daily living have reported bodily accelerations beyond that
which would result from vehicular accelerations possibly experienced [by Ortiz in
the accident] without any incidence of injury.”
On February 10, 2020, Ortiz filed the current Motion in Limine (“Motion”) to
exclude the biomechanical testimony from the instant litigation. The Motion also
challenges the admission of testimony relating to injuries and treatment Ortiz
received as a result of a 2011 motor vehicle accident. Defendants’ filed an
Opposition to Ortiz’s Motion on February 24, 2020.
On September 8, 2020 the Court held a hearing on the biomechanical aspect
of Plaintiff's Motion. At that hearing Dr. Woodhouse offered testimony on his
opinions, conclusions and the basis for the same. Following that hearing, the parties
each submitted an additional memorandum in support of their respective positions.
II. Admissibility of the Biomechanical Testimony is Governed by the
Daubert/Eskin Framework
Admissibility of expert opinion evidence is governed by Delaware Rule of
Evidence 702, which provides:
If scientific, technical or other specialized knowledge will assist
the trier of fact to understand the evidence or to determine a fact
in issue, a witness qualified as an expert by knowledge, skill,
experience, training or education may testify thereto in the form
of an opinion or otherwise, if (1) the testimony is based upon
sufficient facts or data, (2) the testimony is the product of reliable
principles and methods, and (3) the witness has applied the
principles and methods reliably to the facts of the case.
Delaware uses the framework set forth by the Supreme Court of the United
States in Daubert v. Merrill Dow Pharmaceuticals! to apply Rule 702.” In Delaware,
admissibility of biomechanical expert testimony for automobile accident cases under
the Daubert framework is governed by Eskin v. Carden.> Under Eskin:
[T]rial judges may admit qualified biomechanical expert
testimony regarding the physical forces involved in automobile
accidents and the effect on the human body those forces may
produce where the relevance, reliability and trustworthiness of
that testimony is established by the proffer and is not outweighed
by the danger of confusion of the issues or misleading the jury.*
' Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993).
2 MG. Bancorporation, Inc. v. Le Beau, 737 A.2d 513, 521-522 (Del.1999),
> Marla R. Eskin, Administratrix of the Estate of Robert P. Chickadel v. Barbara A. Carden, 842 A.2d
1222, 1225 (Del. Supr. Feb. 13, 2004).
4 Id. at 1225
The Delaware Supreme Court further explained that admissible
biomechanical testimony must be pertinent to the specific injuries suffered by the
person effected by an accident:
Admissible biomechanical testimony bridges the gap between the
general forces at work in an accident determined by physical
forces analysis (whether it be “physics” or “engineering”) and
the specific injuries suffered by the particular person who was
affected by those forces. The testimony must provide definitive
evidence that the physics of a particular accident did (or did not)
cause a particular injury to a particular individual. A trial judge
must closely scrutinize this testimony to be confident that it is
trustworthy, i.e., relevant reliable and validated.”
Further, the Delaware Supreme Court has held that “a trial judge may admit
biomechanical expert opinion that a particular injury did (or did not) result from the
forces of an accident only where the trial judge determines that the testimony reliably
creates a connection between the reaction of the human body generally to the forces
generated by the accident and the specific individual allegedly injured or another
determinative fact in issue.”
Ii. Ortiz’s Contentions
In her Motion, Ortiz alleges that there are several specific defects with the
biomechanical testimony that render it unreliable. Her arguments are:
5 Id. at 1228.
® Jd. at 1229 (emphasis added.)
(a) The weight, model, and speed of the vehicle Defendant Smith was driving
at the time of the accident are not in the record,
(b) The Report does not have a sufficient basis to support its contention that
the vehicle driven by Defendant Smith was moving at a speed of 7 miles
per hour when it struck Ortiz,
(c) The Report did not take Ortiz’s pre-existing medical conditions at the time
of the accident into account, and
(d) The report did not take into account the position of the Plaintiff’s head at
the time of impact.
A. The weight & model of the vehicle which struck Ortiz’s car in the crash is
included in a Collision Report.
Ortiz moves to exclude the biomechanical testimony on the basis that the
weight of the vehicles involved in the accident is not in the record. Plaintiff further
asserts that the vehicle which struck her was “not an Econoline but an ambulance
which one can assume was manufactured and placed in or on a modified van
chassis.” Defendants assert that the weight and model of the vehicles involved in the
accident were listed in an accident report prepared by Delaware state police, which
was then used by the authors of the Report in preparing their calculations.
Defendants’ Exhibit B is a State of Delaware Uniform Collision Report
(“Collision Report”) which describes the accident. The Collision Report lists the two
vehicles involved in the accident as a 2005 Chevrolet Cobalt driven by Plaintiff & a
6
2009 Ford Econoline van driven by Defendant Smith. It is clear from the Collision
Report that the vehicle which struck Plaintiff's car in the accident was a Ford
Econoline van. Chart A of the Vector Report indicates that the Econoline van driven
by Smith weighed 5,319 Ibs., while Ortiz’s Chevy Cobalt weighed 3,216 lbs. These
exact vehicle weights are not reflected in the Collision Report, which only
generically refers to the weight of both vehicles as “10,000 Ibs. or less.” The generic
weights of the vehicles involved in the accident, however, are readily accessible, and
Ortiz’s contention that the calculations in the Vector Report did not accurately reflect
the weight of the vehicles is unpersuasive. This component of the Vector Report
does not weigh against admitting the Defendants’ biomechanical testimony. Any
challenge to the gross weight of either vehicle involved in the accident can be
addressed on cross-examination.
B. There is sufficient support for the Report’s claim that the Defendant’s van was
traveling at a speed of 7 MPH when it struck Ortiz’s vehicle.
Ortiz next claims that the Vector Report’s contention that the “Econoline
impacted the rear of the Cobalt at a closing speed of 7 [miles per hour]” is
unsupported by the record. In their opposition papers, Defendants contend that “the
[Vector] Report provides a detailed analysis of how [the striking speed of the
Econoline van driven by Defendant Smith] was determined based on vehicle damage
and supported expert calculations.”
The Vector Report states that McHenry Simulation Model Collision Accident
Reconstruction software from 2019 “was used to perform an accident reconstruction
in order to determine the forces and movement” involved in the crash, and that
“based upon the circumstances of the incident and the damage observed on the
Cobalt and their computed damages... the Econoline impacted the rear of the Cobalt
at a closing speed of 7 mph.” I find that the defense’s methodology is sufficiently
reliable to satisfy the requirements of Daubert because this methodology is typically
used by accident reconstruction experts.
C. The biomechanical testimony will be excluded because it does not account for
Plaintiff's pre-existing medical conditions
Ortiz contends that the biomechanical testimony should be excluded on the
basis that the testimony only offers generalized conclusions about the physical forces
involved in the accident, and does not take Ortiz’s individual medical history into
account. Defendant’s Opposition claims that the testimony is based on
“consideration of plaintiff's personal factors including her age, height, weight, and
medical conditions.”
The Report states that its authors considered Ortiz’s pre-existing medical
conditions at the time of the accident. Dr. Woodhouse confirmed this fact at the
hearing.’ In fact, Dr. Woodhouse described plaintiff's pre-existing condition as
7 Hearing Tr., at 9 (“[The Court]: . . . did you also review Ms. Ortiz’s prior medical history? [Dr. Woodhouse]: We
did.”)
“very extensive.”® However, upon closer examination of Dr. Woodhouse’s
testimony, it is clear that the data he relied upon does not take the Plaintiff's specific,
individualized pre-existing conditions at the time of the accident into account. Dr.
Woodhouse testified that the testing he relied upon involved crash dummies.’ Dr.
Woodhouse further acknowledged that the crash test dummies he relied upon do not
take anyone’s pre-existing physical conditions into account.!° When asked how these
tests using crash dummies account for pre-existing conditions, Dr. Woodhouse
responded that he used comparative thresholds utilized by the Federal Motor
Vehicular Safety Standards. When questioned further, Dr. Woodhouse confirmed
that the Federal Motor Vehicular Safety Standards were also based on crash
1
dummies.'! The following exchange occurred between Dr. Woodhouse and the
Court during the September 8, 2020 hearing:
THE COURT: What I'm trying to figure out is, how does
a person's preexisting condition get factored into what
they're doing?
I mean, you say your body of science can't do that, and I
understand that, based on not testing with humans in
crashes. How are they able to extract that data?
8 Td. (“[Dr. Woodhouse]: [Ms. Ortiz] had a very extensive premorbid history, and J reviewed it and they were listed
in my report. And then her post-collisional medical history was also reviewed, and that was summarized in my
report.”)
9 Id. At 12.
‘0 fd. At 34 ([The Court]: Dr. Woodhouse, let me cut to it to make sure I understand what you’re telling me. The
crash test dummies, they don’t account for anybody’s pre-existing physical condition. Is that right? [Dr.
Woodhouse]: That’s correct.”)
"Id. At35.
THE WITNESS: Judge, they cannot. They are hamstrung,
as well as I am. We have to use the instrument that's the
most validated biofidelic instrument that we have on earth.
And the only thing that we can compare it to, Judge, is a
randomized sample of humankind, and that would be how
we look at the probability of injury, whether someone is
falling in the first, second or third percentile of a
randomized distribution of a population.
In other words, all of the data relied upon by Woodhouse involved crash
dummies. As Dr. Woodhouse himself admitted, these crash dummies do not have
the characteristics of people with pre-existing conditions.'* This Court does not
believe that Dr. Woodhouse’s conclusion that the physical forces involved in the
accident were not powerful enough to cause Ortiz’s alleged injuries is sufficiently
particularized enough to Ortiz’s prior medical history to be reliable and trustworthy.
The effect of physical forces on one person may be significantly different from the
effect that the same forces would have on another person with a different medical
history. When general forces are described in the context of explaining a specific
injury, the jury may extrapolate general forces to the specific case at hand. Unless
Plaintiff's pre-existing medical history is taken into account, this can potentially be
misleading and prejudicial."
'2 Td. At 34 (“[The Court]: The crash test dummies, they don’t account for anybody’s preexisting physical condition.
Is that right? [Dr. Woodhouse]: That’s correct.”)
'3 See Rizzi v. Mason, 799 A.2d 1178, 1181-82 (Del. Supr. May 22, 2002) aff'd 843 A.2d 695 (Del. 2004)
(excluding biomechanical testimony for failing to “establish[] a correlation between the force (or lack of force)
generated upon impact and Plaintiff's injuries.””)
10
It is clear that the dummies utilized in the accident reconstruction which
formed the basis of Dr. Woodhouse’s report did not reflect any of Plaintiffs pre-
existing medical conditions. There is a significant chance that the general forces at
play in the accident would be compounded for Ortiz. “Extrapolating from general
biomechanical principles to demonstrative evidence that supports or disproves injury
to an individual may not be reliable in every case.”'* As Eskin notes, “if [a] crash
test dummy .. . is replaced with a uniquely susceptible driver, [general scientific]
indicia of reliability become a facade.”!> For this reason, the Delaware Supreme
Court has held that “a trial judge may admit biomechanical expert opinion that a
particular injury did (or did not) result from the forces of an accident only where the
trial judge determines that the testimony reliably creates a connection between the
reaction of the human body generally to the forces generated by the accident and the
specific individual allegedly injured or another determinative fact in issue.”!® Since
the record demonstrates that the dummies used do not reflect Ortiz’s specific medical
history, it is possible that Ortiz may have been a uniquely susceptible driver whose
injuries were not fully captured by the accident reconstruction. Accordingly,
Defendants have failed to establish the reliability of the biomechanical testimony.
Admitting the testimony may mislead or confuse the jury for failing to take that
'4 Eskin, 842 A.2d at 1230.
'5 Td.
'6 Id.11
possibility into account. Therefore, Plaintiff's Motion with respect to the
biomechanical testimony is GRANTED. The biomechanical testimony will not be
admitted!”
MOTION TO EXCLUDE MEDICAL TESTIMONY
In connection with this litigation, Defendants had Dr. David Yucha, MD,
perform a medical examination of Plaintiff. Plaintiff's Motion seeks to exclude Dr.
Yucha from testifying about an automobile accident in 2011 involving Plaintiff and
treatment which Plaintiff received as a result of that accident. According to Plaintiff,
the only injury she sustained as a result of her 2011 accident was to her left foot,
which required surgery. In the instant case, Plaintiff alleges that she suffered back,
neck, and knee injuries as a result of the 2016 accident, but has not alleged any
injuries to her left foot. Plaintiff argues that any testimony from Dr. Yucha
concerning her 2011 accident will be either irrelevant or unduly prejudicial, since
she has not alleged any injuries to her left foot in the present litigation.
In the report that Dr. Yucha prepared in connection with his examination of
Ortiz, he notes emergency room treatment immediately following Plaintiff's
accident on May 21, 2011 which references neck and back pain. Dr. Yucha’s Report
17 Plaintiff also argues that the biomechanical testimony should be excluded because Dr. Woodhouse’s accident
reconstruction did not take the fact that plaintiff's head was turned to the left at the time of the collision into
account. In and of itself, the failure to account for the position of Ortiz’s head at the time of the accident might not
be a basis to exclude the prosed testimony. But, when coupled with the failure to account for Plaintiff's pre-existing
medical conditions, this constitutes an additional reason to exclude the testimony. See DiVirgilio v. Eskin. 2005 WL
2249530 (Del.Super.Ct., June 29, 2005).
12
also references a July 29, 2011 EMG on Plaintiff's lower extremities. These records
and history are relevant to the causation of plaintiff's injuries. The prejudice of the
records is not outweighed by its relevance. The question of the importance of these
records and an explanation of them goes to the weight of this evidence, not its
admissibility. Plaintiff's Motion with respect to Plaintiffs 2011 motor vehicle
accident and the treatment associated with that accident is DENIED.
SO ORDERED this 26" day of October, 2020.
jp—]
Francis F. Jones, Jr4 Judge
ce: File&ServeXpress
Gary L. Smith, Esquire, counsel to Plaintiff
Amy M. Taylor, Esquire, counsel to Defendants
13