Metropolitan News-Enterprise

 

Thursday, October 25, 2018

 

Page 4

 

Court of Appeal:

Surgeon’s Expert Testimony on Force of Car Crash Was Improper

 

By a MetNews Staff Writer

 

The Court of Appeal for this district has held that an orthopedic surgeon should not have been permitted to testify as to the severity and effects of the impact in a car crash case because his conclusions were based on his lay interpretation.

The unpublished opinion, filed Tuesday, was penned by Justice Gail R. Feuer of Div. Seven.

Plaintiff Tom Miglas sued A-Able, Inc., an extermination company doing business as Fume-A-Pest & Termite, after a pickup truck owned by the company rear-ended Miglas’s Lexus while traffic was stopped on the 101 freeway. Both vehicles could be driven from the accident scene.

Later, Miglas developed back pain and underwent a spinal fusion surgery.

The defense’s expert, orthopedic surgeon James Kayvanfar, testified at trial, based on photographs of the two vehicles, that the Lexus’s bumper absorbed most of the impact. He further opined that an earlier, similar accident which had injured the plaintiff’s spine and resulted in a prior spinal fusion surgery was the true cause of his pain.

A jury awarded the man just over $1,000, and awarded his wife, Regina Miglas, $500 for loss of consortium. Miglas appealed from the judgment after being denied his motion for a new trial based on Kayvanfar’s testimony.

Pre-Trial Ruling

Before trial, Los Angeles Superior Court Judge Mary Ann Murphy granted a motion in limine preventing Kayvanfar from testifying as to biomechanical opinions or describing the collision as a “minor accident.” (Feuer noted that the parties used “biomechanics” and “accident reconstruction” interchangeably to refer to Kayvanfar’s opinion, but that the exact terminology was immaterial to the decision.)

At trial, Miglas’s expert, neurological surgeon Robert S. Bray, opined that the A-Able accident was the proximate cause of the plaintiff’s pain, having exacerbated his previous injury. He added that “if an accident happens and the head goes back and forth forcefully it can accelerate that injury.”

During a subsequent break in the trial, Murphy noted that Bray “just testified that the way the accident happened, the head bent back and forth forcefully and he just got into biomechanics and a biomechanical opinion.”

She told the defense:

“So I’m backing out the ruling on that motion in limine about the biomechanical. Your expert can now do that....He just opened the door. You just heard the sound of a door opening with that testimony.”

Kayvanfar’s Testimony

Kayvanfar testified:

“The small pickup truck sustained relatively minor damage to its bumper, the front bumper. And Mr. Miglas’s vehicle sustained damage to the bumper of the vehicle.

“And based on the images that I reviewed, there was a significant amount of energy that was dissipated in that impact by his bumper. In essence, the bumper performed as expected and protected the vehicle and its occupant from the impact.

“And as a result, the amount of force that would have been transferred to the occupant of Mr. Miglas’s vehicle would have been a relatively very small force.”

Referencing a photograph of Miglas’s bumper, he said:

“So the significance of the picture is that this bumper absorbed significantly more energy in the impact than the other vehicle. Mainly, it[] performed its job. It was designed to absorb the energy instead of transferring the energy to the vehicle and its occupant.”

Speculative Opinions

Feuer wrote:

“Dr. Kayvanfar’s opinions that the bumper absorbed and dissipated most of the energy, and that minimal force was transferred to Miglas during the collision, lacked factual foundation and was speculative. As Miglas argued, a biomechanics expert, working with an accident reconstructionist, would have calculated, among other things, the speed of the vehicles, the change in the vehicles’ velocity, and the forces on Miglas’s neck. Dr. Kayvanfar did not conduct any of these scientific analyses, instead basing his opinions on the photographs showing damage to the vehicles’ bumpers and foam coming from Miglas’s bumper.”

She went on to say:

“The trial court failed to perform its gatekeeping responsibility to ‘make certain that an expert, whether basing testimony upon professional studies or personal experience, employs in the courtroom the same level of intellectual rigor that characterizes the practice of an expert in the relevant field.’…

“Further, Dr. Kayvanfar’s lay assessment of photographs of the vehicles, offered under the guise of an expert opinion on application of force to Miglas’s vehicle, did not relate ‘to a subject that is sufficiently beyond common experience that the opinion of an expert would assist the trier of fact.’ ”

Door Remained Unopened

The jurist wrote:

“The trial court concluded Dr. Bray opened the door to Dr. Kayvanfar rendering opinions on biomechanics because Dr. Bray ‘testified that the way the accident happened, the head bent back and forth forcefully and he just got into biomechanics and biomechanical opinion.’ The trial court later stated, ‘Dr. Bray testified about the mechanism of [the] accident such that you would think he was a biomechanic[s] person.’

“However, this does not accurately reflect Dr. Bray’s testimony….Dr. Bray did not offer any opinion about ‘the way the accident happened,’ the ‘mechanism’ of the accident, or the force of the impact on Miglas’s neck. He only opined that adjacent segment disease can be accelerated ‘if an accident happens and the head goes back and forth forcefully.’ (Italics added.) It was for a biomechanics or accident reconstruction expert to say whether the force from this particular accident caused Miglas’s head to go back and forth forcefully. This was not part of Dr. Bray’s testimony.”

The case is Miglas v. A-Able, Inc., B276461.

Anne M Huarte, Matthew B.F. Biren and Andrew G.O. Biren of the Biren Law Group in Los Angeles represented the Miglases on appeal. Mitchell C. Tilner and Steven S. Fleischman of Horvitz & Levy in Burbank, and Zojeila I Flores of the Law Offices of Wolf & O’Connor in Woodland Hills were counsel for the defendant.

 

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