Attempts by defense counsel to use “low impact” expert testimony have been met by stiff resistance from the plaintiff’s bar over the years. Pratt v. Culpepper, 2015 WL 848223 (La. App. 2 Cir. 2/27/15) is the latest example.
In Pratt, the defense asserted that the impact between the two vehicles was slight and that the defendant merely “bumped” into the plaintiff’s vehicle. Defendant argued that the force of the impact was therefore insufficient to cause the damages alleged. The jury found for the defense.
On appeal, the plaintiff alleged that the Trial Court erred in allowing expert testimony from defendant’s accident reconstruction, bio-mechanic and occupant kinematic expert. Although the defense expert was an engineer, and not a medical doctor, he was allowed to testify that, more likely than not, the plaintiff was uninjured as a result of the impact. He testified that the vehicle was designed to absorb the impact of the level experienced. There was no damage to the rear bumper absorber. The expert was careful to clarify that he was not definitively testifying that the plaintiff was uninjured.
Plaintiff cited to a string of cases holding that force-of-impact testimony cannot be used to prove the extent of injuries. However, the Pratt Court reasoned that a Court is to evaluate all of the evidence and that the force-of-impact may prove relevant depending on the facts of a particular case. In its analysis, the Pratt Court cited to the First Circuit’s decision of Fussell v. Roadrunner Towing and Recovery, Inc.,99-0194 (La. App. 1 Cir. 3/31/00), 765 So.2d 373, writ denied 00-1264 (La. 6/23/00), 765 So.2d 1042, which indicated that force-of-impact testimony may be relevant, especially where severe injuries are alleged in low-force accident. The Pratt Court declined to follow a recent Third Circuit opinion in Godchaux v. Peerless, Ins. Co., 13-1083 (La. App. 3 Cir. 6/4/14), 140 So.3d 187, which held that force-of-impact testimony cannot be used to prove a lack of causation.
While the Pratt Court does indicate that force-of-impact expert testimony may be allowed, its decision was simplified under the facts of the case where the plaintiff’s attorney, after challenging the defense expert, called the defense expert to the stand as a “hostile witness” during the plaintiff’s case-in-chief.