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Durette v. Virgil

Court of Appeals of Oregon

July 22, 2015

Cindy DURETTE, Plaintiff-Appellant,
Darcy J. VIRGIL, Defendant-Respondent

Argued and Submitted February 12, 2015

C104897CV. Washington County Circuit Court. D. Charles Bailey, Jr, Judge.

Michael H. Bloom argued the cause for appellant. With him on the briefs was Michael H. Bloom, P.C.

Glenn E. Barger argued the cause for respondent. With him on the brief were Westin T. McLean and Barger Law Group PC.

Before Nakamoto, Presiding Judge, and Egan, Judge, and Wilson, Senior Judge.


Page 640

[272 Or.App. 546] WILSON, S. J.

Plaintiff appeals a judgment in a motor vehicle accident personal injury action resulting

Page 641

in a jury verdict for defendant. She contends that the trial court erred in admitting the testimony of an expert witness who opined--based on his analysis of photographs of, and a repair estimate for, plaintiff's vehicle after the collision--that the collision could not have produced the forces necessary to cause the claimed injuries to plaintiff's neck and back. We conclude that the evidence was relevant and that the record was sufficient to show the validity of the expert's methodology. We further conclude that the witness was qualified to render the opinions that he gave. Finally, we conclude that other evidence presented to the jury after the OEC 104 hearing at which the trial court made its evidentiary ruling did not affect the admissibility of the expert's testimony. Plaintiff also assigns error to the trial court's denial of her motion for a new trial on the ground that the court erred in admitting the expert's testimony. That error is not reviewable because it is based on alleged errors committed during trial. Accordingly, we affirm.


On August 14, 2008, plaintiff was stopped at a stop-light when defendant rear-ended her car. Plaintiff did not have any head, neck or back pain on the day of the collision. She went forward with her plans to drive to Lincoln City the following day to spend a week vacationing with her father. By the day after the collision, plaintiff began to experience pain in her neck and upper back. When the pain did not subside, she cut her vacation short and returned home to begin chiropractic treatment. Plaintiff received chiropractic care for headaches, neck pain, pain down her right arm, blurred vision, and balance problems.

Plaintiff had experienced back and neck pain for which she had received treatment off and on since the early 1990's. She had been in another collision in 2004 in which her car had been struck from the side at the rear. She had been symptom free for about eight months before the August 14, 2008, collision.

[272 Or.App. 547] Defendant admitted that she was negligent in causing the collision. The only issue tried to the jury was plaintiff's noneconomic damages, for which she sought $7,500. The first question on the verdict form was: " Was the defendant's negligence a substantial factor in causing injury to plaintiff?" The jury answered unanimously, " no."

Plaintiff had moved in limine to exclude the testimony of defendant's expert, Bradley Probst, raising several grounds for her objection. First, she argued that because Probst is not licensed as an engineer in the State of Oregon, it would be a crime for him to testify about his analysis and opinions. Second, plaintiff argued that Probst was not qualified to opine that the forces in the collision could not have caused her injury. She did not assert that Probst lacked qualifications as a biomechanical engineer. Rather, plaintiff's counsel explained:

" The challenge will be not as much to the qualifications of a biomechanical engineer, because there really is no degree or certification for such a thing. The challenge is to an expert, who is not a medical expert and has no training in medicine except a couple classes in anatomy and neurophysiology, can say, let alone any expert, that a force did not injure a person in a particular motor vehicle collision."

Third, plaintiff contended that, even if Probst was qualified to reach such an opinion, he lacked a foundation for doing so when he relied only on photographs of the damage to plaintiff's car and, perhaps, on plaintiff's testimony about the damage to her car and the repairs performed.

At plaintiff's request, the trial court conducted an OEC 104 hearing outside the presence of the jury.[1] In that hearing, Probst described his education, which included a Bachelor of Science in mechanical engineering, a Master of Science in biomedical engineering, and all work for a Ph.D. in biomedical engineering except defense of his thesis. Probst testified that, as part of his course work, he took courses in anatomy, physiology, and neurophysiology with medical students at Tulane Medical School. He

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also took courses in [272 Or.App. 548] bone mechanics, orthopedic biomechanics, human tissue, tissue engineering, material science, and other biomedical engineering courses at the Tulane engineering school. Probst testified that, throughout his career, he has " worked and trained and mentored under licensed medical doctors as well."

Probst testified at some length about the field of biomedical engineering:

" I guess I need to define what a biomedical engineer is. It seems like there's always a very large misconception of what a biomedical engineer is, what I'm actually doing. I'm not diagnosing an injury. That's stating whether an injury does or does not exist. I'm taking at face value what the medical records show, and what I'm doing is an engineering analysis. I'm performing, in essence, structural engineering on the human body. So I'm not performing a medical diagnosis. I'm strictly performing * * * biomedical engineering analyses on the human body.
" So I'm treating the human body as a mechanical structure, applying engineering techniques, material science techniques, laws of physics, science and engineering to understand how a material responds to a force. That's engineering. An engineer can look at a material, put a force on it and understand how it responds. It's very common that engineers apply this to living materials or biologic materials. We can understand how wood reacts to a force. Wood was a living material at one point in time. Sometimes we still use it. There's treehouses and various things like that. So engineers can understand how a material responds to a force.
" So my background, obviously the mechanical engineering aspect, allows me to understand the material * * * values of these vehicles and how those materials respond to force and how crush occurs or how damage or how some type of failure occurs to the vehicle.
" Once we know what's occurring to the vehicle, we can understand how that occupant is going to respond, again, based upon the laws of science, physics and engineering, and we can also confirm this through scientific studies and peer-reviewed publications. We look how the occupants respond, and again we look to see what kind of forces are placed on these objects, if you will, or this material, how [272 Or.App. 549] does that material respond? Does that material fail? And we're simply saying whether or not something can or cannot occur based upon the laws of physics."

Probst described his methodology in analyzing whether a particular collision could have produced the injuries claimed:

" [W]e do use, again, accepted methodologies. These are peer-reviewed, published, scientifically accepted methodologies of how [to] perform what is known as a biomedical injury assessment analysis. Again, we're looking at the causal relationship, not whether an actual injury does exist. We're looking to see if an event can cause an outcome, if you will. So we use these accepted techniques. Again, we're looking at the severity of the incident, the direction of impact, things of that nature, to understand how the vehicle would respond.
" Then we look at specific information about this individual: how they were seated, their height, their weight, their--the type of seat that was in the vehicle, their restraints, and we're going to understand how they move in response.
" Once we know how they move in response, then we can understand what kind of forces are actually placed on individual joints and individual tissues. We can compare that to not only known human tolerance values of when failure occurs, but we can look at this unique individual. We know information about this individual, about what they can and cannot do, what their body can withstand, what their personal values, tolerance values are. So we can compare * * * what they can do to the forces involved in this event to see, did this reach a threshold where some type of material damage could occur.
" Then, as a final step, we look, again, just like any type of study where we're using the scientific method, we look for external validation. So we've analyzed this specific case. Now we go out and look to

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see what else is out there in the world that has been published, that has been tested to see if other researchers arrive at the same types of conclusions that we have arrived at."

Probst acknowledged that he is not licensed as a physician and is not qualified to prescribe or give advice [272 Or.App. 550] about treatment for injuries.[2] He declined, however, to concede that he was not " qualified to render diagnoses for people that have been injured in a collision" :

" No, that's not correct. Again, part of what biomedical engineers do is research. Any car you drive has to be tested to make sure it is safe to actually be road-worthy. Biomedical engineers work on that, set the standards, understand, again, this material science of when does failure occur.
" And so part of that research, we do tests. We conduct tests. We want you to understand what is actually occurring. So we might place * * * a crash test dummy in a car and crash it. You have to understand the results. If we use live, human subjects, we have to understand the results as well.
" Well, if you're looking at the results, that, in essence, is making a diagnosis. Did something occur? It's simply semantics. We're looking at, again, did some type of failure occur to this tissue of the human body? You could call it a diagnostic, but it's research. It's an analysis of a process of what is occurring."

Plaintiff's counsel confronted Probst about his qualifications to opine whether the force in a collision was sufficient to cause injury: " Because you can determine what force is necessary to damage the human body, you're qualified to determine whether force was sufficient ...

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