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Morgan v. Girgis

May 16, 2008

SANDRA MORGAN AND PHILLIP MORGAN, PLAINTIFFS,
v.
SHOKRY F. GIRGIS, DEFENDANT.



The opinion of the court was delivered by: William C. Conner, Senior D.J.

OPINION AND ORDER

Plaintiffs Sandra Morgan ("Morgan") and Phillip Morgan bring suit against defendant Shokry F. Girgis for negligence and related claims. The action arises out of an automobile accident on an exit ramp of the Hutchinson River Parkway in the Town of Harrison, New York. Morgan was driving her car on the ramp when a car operated by defendant collided with her car from behind. As a result of the accident, Morgan claims to have suffered injuries including: "cervical subluxation and bulging discs at the C3-4, C4-5 and C5-6 levels, requiring surgery consisting of cervical discectomy, bone fusion and instrumentation in the spine . . . ; post-surgery Horner's Disease on the right side of her face and right eye; and a tear of the labrum of the left shoulder." (Pl. Mem. Supp. Mot. Preclude Test. at 2.)

Defendant seeks to introduce at trial the testimony of a biomechanical engineer, Robert S. Fijan, Ph.D. ("Dr. Fijan"), who is expected to testify that this collision would not have generated enough force to cause the injuries of which Morgan now complains. Plaintiffs move to exclude Dr. Fijan's testimony on the grounds that it lacks sufficient factual basis and that Dr. Fijan is not qualified to offer an expert opinion on the cause of Morgan's injuries because he is not a medical doctor. For the following reasons, the motion is granted in part.

DISCUSSION

I. Governing Law

FED. R. EVID. 702, which governs the admissibility of expert testimony, 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.

Rule 702 requires a district court to serve a "gatekeeping" function by ensuring that "'an expert's testimony both rests on a reliable foundation and is relevant to the task at hand.'" Amorgianos v. Nat'l R.R. Passenger Corp., 303 F.3d 256, 265 (2d Cir. 2002) (quoting Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 597 (1993)); see also Ruggiero v. Warner-Lambert Co., 424 F.3d 249, 253 (2d Cir. 2005). The court must first determine whether the proffered testimony is relevant within the meaning of FED. R. EVID. 401 -- that is, whether it has "any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." Amorgianos, 303 F.3d at 265 (internal quotation marks and citations omitted). The court should then apply the criteria of Rule 702 to determine whether the evidence is sufficiently reliable. Id. In Daubert, the Supreme Court provided several factors for evaluating the reliability of scientific evidence.*fn1 These include: whether the theory or technique involved "can be (and has been) tested," whether it "has been subjected to peer review and publication," the technique's "known or potential rate of error" and whether the theory or technique is generally accepted in the relevant scientific community. Daubert, 509 U.S. at 593-94.

Notwithstanding these specific criteria, the Second Circuit has observed that "the Daubert inquiry is fluid and will necessarily vary from case to case." Amorgianos, 303 F.3d at 266. The purpose of the inquiry is "to ensure that the courtroom door remains closed to junk science while admitting reliable expert testimony that will assist the trier of fact." Id. at 267. To be admissible, the "expert's analysis [must] be reliable at every step," although a "minor flaw in an expert's reasoning . . . will not render an expert's opinion per se inadmissible." Id. The proponent of the proffered expert testimony bears the burden of demonstrating its admissibility by a preponderance of the evidence. Celebrity Cruises, Inc. v. Essef Corp., 434 F. Supp. 2d 169, 175 (S.D.N.Y. 2006).

II. Dr. Fijan's Qualifications and Report

Dr. Fijan is a mechanical engineer specializing in biomechanics. (Pl. Mem. Supp. Mot. Preclude Test., Ex. A ("Fijan Report")).*fn2 He holds a Ph.D. and an M.S. in mechanical engineering from the Massachusetts Institute of Technology and a B.S.E. in engineering science from the University of Florida. (Id.) He served as an assistant professor in the Department of Mechanical Engineering and Applied Mechanics at the University of Michigan from 1990 to 1994. (Id.) From 1994 to 2002 he worked as an engineer in the private sector, during which time he "[p]articipated in full-scale vehicle-to-vehicle crash tests and vehicle sled tests including positioning of anthropomorphic test dummies and analysis of dynamic data." (Id.) He has also "[p]erformed hundreds of analyses related to motor vehicle accident reconstruction, occupant kinematics, injury mechanics and human injury tolerance." (Id.) Dr. Fijan presently works as an independent engineering consultant and expert witness. (Id.)

Dr. Fijan has prepared an "accident reconstruction and biomechanical analysis" of the accident that is the subject of this case. (Id.) The Report is based on Dr. Fijan's review of the police accident report, repair estimates for Morgan's car, copies of photographs of Morgan's car, information the parties have disclosed pursuant to FED. R. CIV. P. 26, transcripts of Morgan's and defendant's depositions and Morgan's medical records. (Id.) Dr. Fijan also made use of information about the cars involved in the accident, such as "vehicle-specific geometry, inertia and stiffness information." (Id.)

At the time of the accident, Morgan was driving a 1998 Acura Integra LS, and defendant was driving a 1999 Lincoln Town Car. Dr. Fijan estimates that, with Morgan in it, the Acura weighed approximately 2,808 pounds and, with defendant and his passenger in it, the Lincoln weighed approximately 4,326 pounds. (Id.) According to the police report, the passenger's-side front bumper of defendant's car made contact with the driver's-side rear bumper of Morgan's car. (Id.) The police report indicated either no damage or "superficial" damage to Morgan's car; Morgan later received estimates of $313.70 and $510.63 to repair damage to the rear bumper and back panel of her car. (Id.) Both cars were driven away from the scene of the accident. (Id.) Defendant testified that his car was undamaged. (Id.)

Dr. Fijan's analysis is based on the change in a vehicle's speed that occurs during a collision. This change is know as "delta-V." (Id.) There is a linear relationship between delta-V and the "post-impact residual crush" observable in a vehicle. (Id.) As Dr. Fijan explains:

In cases where substantial residual crush can be observed and estimated for one or both vehicles . . . such crush measurements can be used along with appropriate estimated vehicle stiffness parameters to ascertain the delta-V sustained by a vehicle during an impact. When residual crush is nonexistent, these methods can still be used to determine an upper bound for the delta-V associated with an impact. (Id. (emphasis in original)). Dr. Fijan obtains vehicle stiffness parameters from the results of publicly available crash tests, such as those performed by the National Highway and Traffic Safety Administration, the Consumers Union and the Insurance Institute for Highway Safety. (Id.) Based on the estimated stiffness parameters, weights and impact orientations of the vehicles involved here, Dr. Fijan estimates that defendant's car was traveling at approximately five miles per hour when it ...


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