Before Judges Skillman, Wallace, Jr. and Wells. On appeal from Superior Court of New Jersey, Law Division, Camden County, Docket No. L-2002-96.
The opinion of the court was delivered by: Skillman, P.J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
The primary issue presented by this appeal is whether there is a reliable scientific foundation for purported expert opinion testimony by a bio-mechanical engineer that a low- impact automobile accident cannot cause a herniated disc.
Plaintiff was injured on March 31, 1994, when a car being driven by her husband on Route 130 in Pennsauken was hit in the rear by a car driven by defendant. Defendant admitted liability, and the case was tried on damages only.
A jury returned a verdict in defendant's favor, finding that plaintiff had not overcome the verbal threshold for the award of damages in an automobile negligence personal injury case. See N.J.S.A. 39:6A-8a. On appeal, we concluded that the trial court had committed reversible error by admitting into evidence a videotape depicting a car-crash dummy in a car that was struck at five miles per hour. Suanez v. Egeland, 330 N.J. Super. 190 (App. Div. 2000). Accordingly, we remanded the case for a new trial.
At the second damages trial, defendant heavily relied upon the opinion of Lawrence Thibault, an expert in "bio- mechanics" and "bio-mechanical engineering," that the "delta- V" (change in velocity) as a result of the collision between defendant's car and the car in which plaintiff was riding "was approximately five miles per hour or less," and that plaintiff's herniated lumbar disc could not have been caused by such a low-impact accident. Before trial, plaintiff asked the court to exclude Thibault's proposed expert opinion on the ground that it has no scientific basis. The trial court denied the request. At the beginning of defendant's case, plaintiff asked the court to conduct an evidentiary hearing regarding the scientific basis of Thibault's proposed expert opinion testimony, but the court concluded, based primarily on dictum in an unreported opinion of this court, that Thibault's proposed opinion testimony was admissible. Thibault then proceeded to testify before the jury that the collision between defendant's car and the car in which plaintiff was riding did not involve sufficient force to have caused plaintiff's herniated disc. The jury subsequently returned a verdict in defendant's favor, finding that plaintiff had not overcome the verbal threshold.
On appeal, plaintiff's primary argument is that defendant failed to establish the requisite scientific basis for Thibault's purported expert opinion that the subject automobile accident could not possibly have caused her herniated disc.
Preliminarily, we note that the trial court should have conducted a preliminary hearing under Rule 104 concerning the admissibility of Thibault's proposed bio-mechanical expert opinion testimony. *fn1 See State v. Harvey, 151 N.J. 117, 167 (1997), cert. denied, 528 U.S. 1085, 120 S. Ct. 811, 145 L. Ed. 2d 683 (2000); Vassallo v. American Coding & Marking Ink Co., 345 N.J. Super. 207, 217-18 (App. Div. 2001). Such a hearing would have afforded the parties and the court an opportunity to explore fully the purported scientific bases of Thibault's opinions outside the presence of the jury. However, we are satisfied that the parties had an adequate opportunity to present evidence relevant to this issue at trial and that a remand for a Rule 104 hearing would not produce any significant additional evidence regarding the scientific basis of Thibault's expert testimony.
In New Jersey, scientific evidence is admissible in a civil case if "it derives from a reliable methodology supported by some expert consensus." Harvey, supra, 151 N.J. at 168 (citing Landrigan v. Celotex Corp., 127 N.J. 404, 417 (1992); Rubanick v. Witco Chem. Corp., 125 N.J. 421, 449 (1991)). There are three ways a party offering the results of scientific evidence can demonstrate its reliability: "(1) the testimony of knowledgeable experts; (2) authoritative scientific literature; and (3) persuasive judicial decisions." Windmere, Inc. v. International Ins. Co., 105 N.J. 373, 379 (1987); see also Rubanick, supra, 125 N.J. at 432. A party offering novel scientific evidence bears the burden of demonstrating its reliability. Harvey, supra, 151 N.J. at 167.
Defendant failed to establish the required foundation of reliability for Thibault's opinion in any of these ways. Thibault is not a physician or medical researcher. His education and training are in the fields of physics and mechanical engineering, with only basic training in anatomy, physiology and pathology. Moreover, Thibault has not himself conducted or observed tests of low-impact collisions on humans. His knowledge of this subject is derived solely from literature in the field. Consequently, the reliability of Thibault's opinion turns on whether that literature provides a reliable scientific foundation for the conclusion that a low- impact automobile accident cannot cause a herniated disc.
Defendant did not introduce into evidence any of the scientific literature upon which Thibault relied. Consequently, the only information in the trial record concerning the content of that literature is Thibault's testimony.
Thibault described that literature only in very broad and general terms:
Q: [I]f you could just give us an example or run through the studies that you may have relied upon in formulating that chart?
A: Well, I guess the earliest work was done by Brinkman (phonetic) in 1961. Isolated spinal segments were taken from fresh cadavers, put in a compression machine where you can actually measure the forces to compress until the forces got to a high enough level where they actually start to cause failure of the tissue. That was done over a broad range of age groups in terms of fresh cadaveric material. And those numbers were added to over the next 30 or 40 years by a lot of other investigators.
Crash tests have been performed where we can't put instruments inside humans, human volunteers and let us measure those forces so we use dummies. And there's been about 40 years of development of high tech dummies which contain all the instrumentation we need.
. . . . And then, I guess the last is the human volunteer exposure studies that have been done, where mainly scientists like myself, although I wasn't involved in this study, have volunteered. A lot of M.D.'s and Ph.D.'s and graduate students that were asked to volunteer. In all, there were 646 human volunteers in a car subjected to rear end impacts where the Delta V's went to as high as 11 miles per hour . . . .
These were published in journals throughout the world. The studies were done in 15 different institutions in seven different countries. And that's kind of, you know, the ultimate human volunteer validation, if you will, or verification that, coupling the cadaver work, where you measure the material properties, to the dummy tests where you can put instrumentations inside at the right anatomic locations, to the ultimate simulation, which is to have the human volunteer.
No injuries, other than complaints of stiff necks at the high end, typically developing the date after, and treating basically with ibuprofen, spontaneously resolve over 72 hours. . . . There's never been reported a disk injury of any kind in 646 studies.
On cross-examination, plaintiff's counsel attempted to get Thibault to identify specific scientific literature that supports his conclusion that the subject accident could not possibly have caused a herniated lumbar disc, but the only specific tests to which Thibault referred involved either cadavers or military personnel under controlled testing conditions:
Q: Where were these studies reported? Lumbar studies?
A: I didn't bring that voluminous body of literature with me. There are probably 100 articles.