25 Fla. L. Weekly Supp. 42a
Online Reference: FLWSUPP 2501KNAPInsurance — Uninsured motorist — Evidence — Expert — Plaintiff’s motion to exclude testimony of defendant’s expert with regard to severity of impact in two rear-end collisions and inadequacy of those forces to create injuries claimed by plaintiff is granted — Testimony will not assist trier of fact in understanding evidence or determining a fact in issue — Further, there is insufficient scientifically reliable data on which to base certain of the opinions; methods used with respect to certain opinions are not product of reliable principles; and probative value of expert’s opinions is substantially outweighed by danger of unfair prejudice
DAVID C. KNAPP, Plaintiff, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, a foreign corporation; and LOGAN K. ATKINSON, Defendants. Circuit Court, 18th Judicial Circuit in and for Brevard County. Case No. 05-2015-CA-044031-XXXX-XX. March 22, 2017. Charles Roberts, Judges. Counsel: Andrew B. Pickett, Alpizar Law, LLC, Palm Bay, for Plaintiff. Lester A. Lewis, Daytona Beach, for Defendant State Farm.
ORDER GRANTING PLAINTIFF’S DAUBERT/FRYEMOTION TO EXCLUDE THE TESTIMONYOF DAVID GUSHUE, Ph.D
THIS CAUSE came before the Court upon Plaintiff’s Daubert/Frye Motion to Exclude the Testimony of David Gushue, Ph.D, the Defendant’s Biomechanical Expert, on January 3, 2017. Having considered the Motion, the depositions of Dr. Gushue, the testimony of Dr. Gushue at the hearing, the affidavit of Charles Edward Bain, the relevant legal authority, and the written closing arguments of counsel, the Court makes the following findings of fact and conclusions of law:
This case involves damages resulting from two motor vehicle crashes. The first crash occurred on February 24, 2014, wherein the Plaintiff was the driver of a vehicle that was struck from behind by a vehicle operated by Logan Atkinson, an uninsured motorist. The second crash occurred on August 14, 2014, wherein the Plaintiff was a driver of a vehicle that was struck from behind by a vehicle operated by Brandon Jutras, an uninsured motorist. The Court has previously granted a partial summary judgment on liability to include causation of some loss, injury, or damage.
Dr. Gushue was deposed on August 5, 2016, and provided 5 opinions with respect to the February 24, 2014 motor vehicle crash and 4 opinions with respect to the August 14, 2014 motor vehicle crash. The opinions are as follows:
A. February 24, 2014 Motor Vehicle Crash
#1. “On February 24, 2014, Mr. David Knapp was the belted driver of a 2010 Ford Fusion when the front of a 1998 Ford Escort ZX2 came into contact with the rear of the Ford Fusion.” (Gushue depo-David Knapp case, page 18, lines 5-9).
#2. “The severity of the subject incident is consistent with a Delta V below ten miles per hour and an average acceleration below 3.6 G for the subject Ford Fusion in which Mr. Knapp was seated.” (Gushue depo-David Knapp case, page 18, lines 14-18).
#3. “The forces applied to the Ford Fusion during the subject rear-end event would tend to move Mr. Knapp’s body back toward the seat back structures. The motions would have been limited and well controlled by the seat structures and the three-point restrain system.” (Gushue depo-David Knapp case, page 19, lines 1-7).
#4. “The forces applied to Mr. Knapp’s cervical spine as a result of the subject incident were not of significant magnitude and direction to create an injury mechanism for the claimed cervical spine injuries.” (Gushue depo-David Knapp case, page 21, lines 1-2).
#5. “The forces applied to Mr. Knapp’s lumbar spine as a result of the subject incident were not of a sufficient magnitude and direction to create an injury mechanism for the claimed lumbar spine injuries.” (Gushue depo-David Knapp case, page 25, lines 19-24).
B. August 14, 2014 Motor Vehicle Crash
#1. “On August 14, 2014, Mr. David Knapp was the belted driver of 2010 Ford Fusion when the front of a 2012 Kia Forte came into contact with the rear of the Ford Fusion.” (Gushue depo-David Knapp case, page 44, lines 13-16).
#2. “The severity of the subject incident is consistent with a Delta V significantly below 7.8 miles per hour with an average acceleration below 2.4 G for the subject Ford Fusion in which Mr. Knapp was seated.” (Gushue depo-David Knapp case, page 44, lines 18-22).
#3. “The forces applied to the Ford Fusion during the subject rear-end event would tend to move Mr. Knapp’s body back toward the seat back structures. These motions would have been limited and well controlled by the seat structures in the three-point restraints system.” (Gushue depo-David Knapp case, page 47, lines 8-14).
#4. “The forces applied to Mr. Knapp’s cervical and lumbar spine as a result of the subject incident were not of sufficient magnitude and direction to create and injury mechanism to exacerbate Mr. Knapp’s spinal condition/injuries.” (Gushue depo-David Knapp case, page 52, lines 3-8).
The Court’s ruling is that Dr. Gushue is not permitted to testify or offer opinions in this case. The Court finds that Dr. Gushue’s testimony will not assist the trier of fact in understanding the evidence. Under Section 90.702, Florida Statutes, an expert may testify “if the technical or other specialized knowledge will assist the trier of fact in understanding the evidence or in determining a fact in issue.”
With respect to opinion number one as to each crash:
“On February 24, 2014, Mr. David Knapp was the belted driver of a 2010 Ford Fusion when the front of a 1998 Ford Escort ZX2 came into contact with the rear of the Ford Fusion.” (Gushue depo-David Knapp case, page 18, lines 5-9). “On August 14, 2014, Mr. David Knapp was the belted driver of 2010 Ford Fusion when the front of a 2012 Kia Forte came into contact with the rear of the Ford Fusion.” (Gushue depo-David Knapp case, page 44, lines 13-16))
the Court finds that these are not opinions that require expert testimony to assist the trier of fact in understanding the evidence or determining a fact in issue under Section 90.702, Florida Statutes.
Further, with respect to opinion number two as to each crash:
“The severity of the subject incident is consistent with a Delta V below ten miles per hour and an average acceleration below 3.6 G for the subject Ford Fusion in which Mr. Knapp was seated.” (Gushue depo-David Knapp case, page 18, lines 14-18). “The severity of the subject incident is consistent with a Delta V significantly below 7.8 miles per hour with an average acceleration below 2.4 G for the subject Ford Fusion in which Mr. Knapp was seated.” (Gushue depo-David Knapp case, page 44, lines 18-22).
the Court finds that this opinion does not assist the trier of fact in understanding the evidence or determining a fact in issue under Section 90.702, Florida Statutes. The Court also finds that the probative value of this evidence would be substantially outweighed by the danger of confusion of the issues under Section 90.403, Florida Statutes. Further, the Court finds that there is insufficient scientifically reliable data on which to base these opinions. See Carrier v. Ramsey, 714 So. 2d 657 (Fla. 5th DCA 1998) [23 Fla. L. Weekly D1802a]; Delta Rent-A-Car, Inc. v. Rihl, 218 So. 2d 469 (Fla. 4th DCA 1969). Moreover, the Court finds that with respect to opinion number two as to each crash, expert opinion is not necessary, and Dr. Gushue’s opinions would invade the province of the jury.
With respect to opinion number three as to each crash:
“The forces applied to the Ford Fusion during the subject rear-end event would tend to move Mr. Knapp’s body back toward the seat back structures. The motions would have been limited and well controlled by the seat structures and the three-point restrain system.” (Gushue depo-David Knapp case, page 19, lines 1-7). “The forces applied to the Ford Fusion during the subject rear-end event would tend to move Mr. Knapp’s body back toward the seat back structures. These motions would have been limited and well controlled by the seat structures in the three-point restraints system.” (Gushue depoDavid Knapp case, page 47, lines 8-14).
the Court finds that this opinion does not assist the trier of fact in understanding the evidence or determining a fact in issue under Section 90.702, Florida Statutes.
With respect to opinions number four and five as to the first crash and opinion four as to the second crash:
“The forces applied to Mr. Knapp’s cervical spine as a result of the subject incident were not of significant magnitude and direction to create an injury mechanism for the claimed cervical spine injuries.” (Gushue depo-David Knapp case, page 20, lines 21-24, page 21, lines 1-2). “The forces applied to Mr. Knapp’s lumbar spine as a result of the subject incident were not of a sufficient magnitude and direction to create an injury mechanism for the claimed lumbar spine injuries.” (Gushue depo-David Knapp case, page 25, lines 19-24). “The forces applied to Mr. Knapp’s cervical and lumbar spine as a result of the subject incident were not of sufficient magnitude and direction to create and injury mechanism to exacerbate Mr. Knapp’s spinal condition/injuries.” (Gushue depo-David Knapp case, page 52, lines 3-8).
the Court finds that these opinions are based on insufficient facts or data and that the methods used are not the product of reliable principles. See Dempsey v Shell Oil Co., 589 So.2d 373 (4th DCA 1991). The Court finds that testing done on cadavers, cadaver spines, and in controlled crashes are not comparable to real world collisions. Furthermore, there is a difference between the situation in a controlled test when a subject knows he or she is going to be in a collision and a real world collision in which an individual does not know that a collision is about to occur. There is no way to quantify the various factors of the live human being and then opine that an individual was or was not injured in a low speed impact based on scientific testing done on cadavers or cadaver parts. See Tittsworth v. Robinson, 252 Va. 151, 475 S.E.2d 261 (1996)
Should the Frye standard be applied in this case, Dr. Gushue’s opinions would still be inadmissible. “Frye requires the trial judge, as gatekeeper, to draw three conclusions before allowing an expert to testify. The judge must: 1. Determine whether the proposed testimony will assist the jury in understanding the evidence or in determining a fact in issue; 2. Decide whether the expert’s testimony is based on a scientific principle or discovery that has gained general acceptance in the particular field in which it belongs; and 3. Determine whether a particular witness is qualified as an expert to present opinion testimony on the subject in issue.” State v. Demeniuk, 888 So. 2d 655, 658 (Fla. 5th DCA 2004) [29 Fla. L. Weekly D1971a]. The Court finds that under a Frye analysis, Dr. Gushue’s opinions would be excluded because they would not assist the jury in understanding the evidence or determining a fact in issue.
Notwithstanding the admissibility pursuant to either Daubert or Frye, the evidence must still pass an analysis pursuant to Section 90.403, Florida Statutes, which provides: “Relevant evidence is inadmissible if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of issues, misleading the jury, or needless presentation of cumulative evidence.” The Court finds that the probative value of Dr. Gushue’s opinions is substantially outweighed by the danger of unfair prejudice and confusion of issues.
Having considered the Motion, the depositions of Dr. Gushue, the testimony of Dr. Gushue at the hearing, the affidavit of Charles Edward Bain, the relevant legal authority, and the written closing arguments of counsel, it is hereby
ORDERED AND ADJUDGED that Plaintiff’s Daubert/Frye Motion to Exclude the Testimony of David Gushue, Ph.D, is hereby GRANTED.
