Minor Assumptions Can Tank an Expert Opinion, Blaming Judges of Bias Won’t Help

Making even minor assumptions provides an opening to attack the credibility of an expert witness opinion; blaming the past exclusion of expert opinions on the bias of judges may not be an effective counter-strategy. At least not in this whiplash case.

In Blair v. Coney et al., 2019-cc-00795 (La. 2020), the plaintiff, George Blair, sued Mary Coney, her employer and insurance company after Coney's Ford Escape struck Blair's Honda Civic while he was stopped at a traffic signal. Blair claimed that the collision caused injuries to his neck and back and sought damages for physical pain and suffering, mental pain, anguish, distress, medical expenses and loss of enjoyment of life.

Coney and the other defendants retained Dr. Charles E. “Ted” Bain, a low speed accident reconstruction expert witness as well as an expert in biomechanics and injury causation analysis, trained in Traffic Accident Reconstruction at Northwestern University, with a degree in nuclear engineering and board certified in emergency medicine and family medicine, formerly practicing medicine in Texas.

According to the Louisiana Supreme Court's decision in the case, Dr. Bain had served as an expert witness in over 200 cases,¹ previously with a less than stellar record, having at times had his opinions and methods found unreliable in both Louisiana courts and federal district courts in the state, although he was generally qualified as an expert in those courts.

The district court was less than stellar itself. In initially granting Blair's motion to exclude Dr. Bain's expert opinion, the court cited no reasons for its judgement, failing to comply with state law.² Coney appealed and the First Circuit Court of Appeal remanded the case for compliance. The district court then issued an opinion casting doubt on Dr. Bain's qualifications, but specifically excluding his testimony because the court found it based on insufficient facts, specifically stating:

To allow Dr. Bain to testify to the degree in which Plaintiff suffered injury from the accident without examining his prior medical history or Plaintiff himself, would, in the opinion of this Court, not be based on sufficient facts. Further, Dr. Bain's undergraduate degree in nuclear engineering and his experience as a general practitioner in family and emergency medicine would not assist the trier of fact to understand the evidence or to determine a fact in issue.

Coney then sought supervisory review. The court of appeals reversed the district court's exclusion of Dr. Bain's testimony without providing any legal analysis, except to reference Adams v. Baptiste, 2013-0299 (La. App. 1 Cir. 3/7/13), 2013 WL 10343229, in which the court had previously reviewed Dr. Bain's testimony in a similar case from the district court and found as well that Dr. Bain's opinions met the state's Daubert standards.

Plaintiff Blair then appealed to the state Supreme Court.

The Supreme Court noted Dr. Bain's review of the police report and accident photos, damages estimates to specific parts of the cars, his rental of the exact make and model vehicles and his use of data from 100+ quasistatic collision tests his firm had conducted in the past — all of which he used to come to his estimate of a six mile per hour collision. From that estimate, Dr. Bain drew his conclusion that, with Blair in a “slightly flexed seat position” at the time of impact, he was not injured by the collision.

During his deposition, Dr. Bain was asked what he relied on to reach his conclusion that Blair was in such a “slightly flexed” position, to which Dr. Bain responded:

[Dr. Bain]	Well, he's the driver. He's — — He's an average to a large size guy. His buttocks are in the seat; he's got his right foot on the brake. He said he's initially looking at his phone, so his head is turned downwards and rightwards slightly, assuming the phone is in his right hand.    His back would be against the seat back. He's a big — — For a Honda Civic, he's a big guy in a small car, so I know roughly or relatively what his position in the vehicle is. Now if you're going to ask me the exact angle of his [SIC] or neck or his arm or whatever, I don't know it.
[Mr. Koloski]:	Okay. And you don't know if he has his torso turned at all?
[Dr. Bain]:	I would be — — I highly doubt that. He said he's looking at his phone. You don't have to turn to your right to look at your phone.
[Mr. Koloski]:	Okay. But this is an assumption you're making, it's not — — you weren't there so you don't know?
[Dr. Bain]:	Correct.

The state Supreme Court noted that Dr. Bain did not know Blair's body position, inspect the actual vehicles involved in the collision, did not speak to the damage appraiser, and based his calculation of the impact on Blair's body in part on black and white photographs, repair estimates and descriptions of the accident. The court found that Blair's testimony that he was looking at his phone at the time of the accident contradicted Dr. Bain's supposition about Blair's posture. In the words of the Court, Dr. Blain's opinion was “nothing short of conjecture.”

Finding that the court of appeal erred in reversing the district court's ruling to exclude Dr. Bain's testimony, the state Supreme Court reversed the court of appeal and reinstated the district court's exclusion of Dr. Bain's testimony.

Making assumptions, even assumptions that may seem trivial, can of course leave an expert report open to attack, but underlying issues can also add to the dynamics. In this case, the expert witness had a history within the state courts, and accusations of bias could have played their own parts. Louisiana's court system is no less susceptible to bias and preferential treatment than any other state.

Dr. Bain, educated in Canada and a resident of Texas, had testified that subjective injuries such as Blair's create a “huge problem for reliability” because “[w]e know [litigation is] a tremendous driver for subjective complaints.” Opposing counsel seized on the testimony, arguing in its motion to exclude Dr. Bain's testimony that he had “assumed” Blair was lying about his injuries, implying that his testimony would be biased.

When asked if he had ever been excluded, Dr. Bain stated that he had never been excluded as a witness due to his qualifications. Opposing counsel characterized that as “incorrect”, and Dr. Blain amended his answer. He then expressed the opinion that he was excluded due to “[t]he bias of the judge.”

The state Supreme Court decision only footnotes these claims of bias; it's legal analysis found only that Dr. Bain's testimony was unreliable due to his assumption about Blair's posture.

Not to disparage the Louisiana court system, but there could be some posturing here. Whatever else, accusing judges of bias is not recommended.