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Expert Advice

Expert Advice on the Accident Reconstructionist

Engaging an accident reconstructionist can be an expensive, but vital, case decision. Complex crashes, multiple impact cases and mechanical failure issues are often best investigated with expert help. Deciding if you need expert assistance in proving liability is not often an easy one. Engaging an accident reconstructionist will require an early and perhaps significant economic investment in the case. A cost/benefit analysis, in conjunction with considerable other analysis, is required. Likewise, realizing that you needed expert help late in a case--perhaps when a third party liability claim surfaces mid-litigation--warrants erring on the side of getting help with most significant injury cases. Time is not on your side; document available evidence immediately The decision of whether a private expert is needed requires consideration very early in any representation. The decision to engage an accident reconstructionist is somewhat time sensitive. The reason for the immediacy of this decision is simple: opportunities for the preservation of physical evidence can be fleeting. Should this decision be deferred, you may find that your reconstructionist is unable to render opinions that will help your case. Without the requisite physical evidence upon which to base his or her expert opinions, the opinions may be unable to withstand challenge, or if they do come into evidence, may not be given much weight by your finder of fact. Comprehensive police investigations generally only take place at crash scenes involving obviously life threatening injuries and/or fatalities. Such an investigation might utilize station mapping equipment, video and photographic documentation of the scene and involved vehicles, detailed measurements, recording of witness accounts, or other evidence gathering and preservation techniques. It is unlikely that any substantive mechanical inspection will result in most cases. Available resources often determine how much of an investigation is conducted: inclement weather, other accidents, officer training and staffing issues frequently factor into the extent of the investigation performed. With serious injury cases, early documented and defensible gathering of evidence, with careful attention given to preserving the integrity and chain of custody of physical evidence, can be critical to the success of a case. Think outside the briefcase-- a reconstructionist might see more Just like counsel is taught to "think like a lawyer," reconstructionists view accidents differently than others. Considerations that may enter into a causation analysis are many. An accident reconstructionist should be able to help you with these complex liability considerations that include, but certainly are not limited to: · the positioning of vehicles at rest following the accident · the physical damage each vehicle or object involved in the collision sustained · the characteristics of the particular stretch of roadway in issue (grade, composition, curve, elevation...) · the condition of tires, safety systems, braking and lighting systems of each vehicle involved · pre-accident handling of involved vehicles · post-accident handling of involved vehicles · crush and failure analysis · visual obstructions · the impact of weather, · roadway conditions (wet, dry, icy...) · scene illumination

By Timothy D. Lange

Tim Lange, a Contributing Club member, is a partner with Benson, Byrne, Risch, Siemens & Lange, LLP in Louisville. He practices primarily personal injury and business law and litigation. He may be reached at (502) 583-8373 or [email protected]

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TheAdvocate

· speeds of the vehicles involved · skidmarks, scuff marks, or other marks left on pavement or scene surfaces · angles of impact · the effects of the physical forces involved in the collision on passengers · vehicle occupant injuries · driver distractions · traffic control devices · driver impairment, and · physical limitations of involved drivers. Your accident reconstructionist is unlikely to be an expert with respect to each consideration that may go into the reconstruction of an accident. This is especially true if the case ventures into the arena of design deficiencies and defects. No one can be expected to have mastered metallurgy, automotive mechanics, biomechanics, pharmacology, chemical engineering, mechanical engineering, and every other body of science that may come into play in a specific accident fact pattern. However, a well trained accident reconstructionist may be able to recognize the existence of issues within these fields and direct you to other experts, or at least onto the trail of other experts, to assist in the reconstruction1. How do you know when your case needs an accident reconstructionist? There is no easy answer to the question of which cases warrant a reconstructionist. You will need to perform your own causation/liability/cost/benefit analysis in determining whether you believe an accident reconstructionist is needed. Causation can be challenged in myriad ways. What may initially seem to be a clear case for liability, may turn muddy or worse. The question is simply whether the client's potential damages justify

the expense of bringing in a qualified expert. You may have to make this assessment without the benefit of medical records or opinion. This is a decision that must be made based upon the totality of the facts known about the case when hired--and a decision revisited at any point in time when causation issues surface or change. A few pennies saved can be untold dollars lost. With serious injury cases, engaging an expert, if only for purposes of an initial consultation, is money well spent, and perhaps good insurance against a malpractice claim. Remember Daubert and prepare for a challenge You will likely argue for admission of the accident reconstructionist's testimony under KRE 702 or FRE 702, each governing the presentation of scientific, technical or other special-

ized knowledge to assist the finder of fact. The line of U.S. Supreme Court cases, including Daubert2 and Kumho Tire,3 have created considerable challenges for the introduction of testimony under these evidentiary rules. The Kentucky Supreme Court has adopted the principals underlying these decisions.4 A detailed discussion of these cases is beyond the scope of this column. However, the reconstructionist's theories are subject to Daubert challenge, and your expert has to be prepared to defend his/her work under the applicable legal/scientific tests for admission into the record. As always, when engaging an expert, be advised to seek references from fellow KJA members or other counsel having previously worked with the expert. Use the KJA's ListContinued on following page

Accident Reconstruction Consultants

Providing expert accident reconstruction, site investigation and analyses for more than 15 years.

Mike Barnes uses the latest in technology for: ·AccidentReconstruction,Site InvestigationandAnalyses ·CrashSpeedComputations ·Vehicle'sEventDataRecorder (BlackBox)DownloadandAnalysis ·State-of-the-Art3DAccident Visualization/Animation/Diagrams ·ForensicMappingforCrashScenes ·AccidentSitePhotographyandVideo ·AccidentReconstructionforCases InvolvingAutos,Pedestrians, MotorcyclesandBigTrucks ·CommercialVehicle/Mechanical Inspections

Certified and accredited as an accident reconstruction specialist through A.C.T.A.R. RetiredfromtheLouisvillePoliceDepartment LicensedPrivateInvestigator

Call me; the first consultation is free Michael G. Barnes

502.412.7000 Office 502.468.0934 Cell [email protected] www.MikeBarnesARC.com

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