SUPREME COURT OF THE STATE OF NEW YORK. COUNTY OF KINGS: CIVIL TERM: PART x SETH PARISER, Plaintiff,

Transcription

1 SUPREME COURT OF THE STTE OF NEW YORK. COUNTY OF KINGS: CIVIL TERM: PRT x SETH PRISER, Plaintiff, Index No. - against - / TRIL/EXCERPT G MEDLLION MNGEMENT CORP, MI-TI CB CORP. and HMED HRIDI, Defendants x B E F O R E: P P E R N C E S: 0 dams Street Brooklyn, New York pril, HONORBLE FRNCOIS. RIVER, Justice of the Supreme Court, and a Jury FINKELSTEIN & PRTNERS ttorney for the Plaintiff Route 00 Newburgh, New York BY: SHRON. SCNLN, ES., Of Counsel PICCINO & SCHILL, PC ttorney for the Defendants 00 Merchants Concourse, Suite Westbury, New York 0 BY: FRNCIS J. SCHILL, ES. MIRIM KPLN Official Court Reporter

2 DR. ROBERT FIJIN-DIRECT-DEFENSE MR. SCHILL: The defendant calls Dr. Robert Fijian. (Whereupon, the witness entered the witness stand.) THE CLERK: Remain standing. Please raise your right hand. Do you solemnly swear or affirm that the testimony you are about to give to this court and jury will be the truth, the whole truth, and nothing but the truth? I do. THE CLERK: Thank you. Please have a seat. nd may we have your name and business address, please? My name is Robert Fijian, F-I-J-I--N, 0 Hyland Road, West Chester, Pennsylvania. THE CLERK: Thank you. Good afternoon, sir. Good afternoon. There's two attorneys. They're going to each get a chance to ask you some questions. The attorney who's standing will go first. What I want you to do is let him finish the question before you answer so that you're not speaking at the same time. Speak loud enough so everyone can hear you. The

3 DR. ROBERT FIJIN-DIRECT-DEFENSE attorney who's sitting down, if you see that attorney stand up, it means they're going to say "objection," so when you see that happening, just stop and look to me and I'll let you know whether you should answer the question. Okay. You have some water? Yes, I do. Thank you. That's for you. Okay, proceed. MR. SCHILL: Thank you, Your Honor. Judge, before we begin questioning Dr. Fijian, I'd ask that the Court allow Defendant's Exhibit E which has been entered into evidence by stipulation to be published to the jury. Sure, why not. Do we have it now? MR. SCHILL: Yes, Your Honor. I'm going to give Exhibit E. Both counsel have agreed to admit it, and they have agreed -- and when I say it's by stipulation, I'm saying this is a given, it doesn't have to be proven. nd what they said is that Exhibit E is a photo taken by the plaintiff at the scene of the accident with his cellphone that depicts the back of his car, the Land Rover, and the side of the other car, the

4 DR. ROBERT FIJIN-DIRECT-DEFENSE taxi, okay. So we'll give it to you. Did you want to wait for them to look at that? MR. SCHILL: Yes, Judge. Thank you. Let's pass it along, and then when you're finished looking at it, we'll start. jury.) (Whereupon, the exhibit was published to the You can give it to the officer. nd the publication is completed. R O B E R T F I J I N, after having been first duly sworn, was examined and testified as follows: DIRECT EXMINTION BY MR. SCHILL: Good afternoon, Dr. Fijian. Good afternoon. What is your occupation? I'm a consultant in accident reconstruction and biomechanics. What is accident reconstruction? ccident reconstruction is taking available information, whether it's photographs or skid marks or testimony or whatever, figuring out how vehicles moved, accelerations, velocity, whatever, during an accident. What is injury biomechanics? Injury biomechanics is the application of physics

5 DR. ROBERT FIJIN-DIRECT-DEFENSE and mechanical engineering principles to the human body, figuring out motions and forces that can cause damage to various structures of the human body. I'm sorry, what did you say that you do? I am a consultant in accident reconstruction and injury biomechanics. nd what? Injury biomechanics. Please continue. Can you give the jury a synopsis of your educational background and professional credentials and experience? Okay. I have my Bachelor's degree, undergraduate degree in engineering science from the University of Florida and my Master's and Ph.D. degrees in mechanical engineering from MIT. My -- you want me to discuss research or -- Yes, your professional credentials. My research in my graduate work at MIT was all in the area or areas of biomechanics, particularly in determining the forces that act on joints in different activities. nd also, between my Master's and Ph.D. degrees I worked one year full-time as the technical director of the BioMotion laboratory at Massachusetts General Hospital Department of Orthopedic Surgery where we -- I set up a lab

6 DR. ROBERT FIJIN-DIRECT-DEFENSE to measure patients pre-and-post operative, undergoing knee and hip surgeries and also cerebral palsy patients. fter I finished my Ph.D. at MIT, I took a position as an assistant professor in Department of Mechanical Engineering in the bioengineering program at the University of Michigan in nn rbor. There I taught courses in dynamics and control and biomechanics, and I continued my research into biomechanics and extended my work from lower extremities to studying the upper extremities, arms, elbows as well. In I left the University of Michigan, took a position at a company at that time called Failure nalysis ssociates. Now it's called Exponent. What? I didn't hear that. In -- You gave the name of the company. Failure nalysis ssociates. Now it's called Exponent. They changed the name in early 0's, I think, or something, mid 0's, I guess. nd there I continued my work in biomechanics, and I also started applying my mechanical engineering skills to accident reconstruction. nd I worked there from to 0 including spending two years in their Phoenix office where they have a building with a crash test facility, where they crash vehicles into vehicles. nd I was in charge of the biomechanics aspect of that, but also

7 DR. ROBERT FIJIN-DIRECT-DEFENSE participated in a number of crash tests, that type of thing. Since 0 I've been working as an independent consultant in accident reconstruction biomechanics. Have you testified as an expert witness in accident reconstruction and injury biomechanics in New York? Yes, I have, about fifty times. In this case, are you giving an opinion within a reasonable degree of certainty in your occupation as to accident reconstruction? re you also giving an opinion with respect to the biomechanical aspect of this case within a reasonable degree of certainty as a biomechanical engineer? case? re you providing any medical opinions in this No. You're not a medical Doctor? That's correct, that's correct. nd you are not intending to provide any medical opinion, correct? Correct. nd you're not giving any -- you're not an expert in the diagnosis of injuries? That's correct.

8 DR. ROBERT FIJIN-DIRECT-DEFENSE Or the treatment of injuries, correct? Right. Can you briefly explain what you do? I'm sorry, you said biomechanical injury? That's the expertise, biomechanical injury? Injury biomechanics, so biomechanics is simply -- injury biomechanics. It's the first time I ever heard Okay. Biomechanics is simply application of mechanical engineering principles to, let's say, life, such as trees. In the context of car accident, it's people. Injury of biomechanics is a subset of that, looking at what thresholds have to be exceeded in order to cause damage to the structures of the human body, that would be either in terms of motions or forces. MS. SCNLN: Objection, Your Honor. Didn't he just ask you whether you'd be giving opinions on medical injury and you said no? He said, am I giving medical opinions. opinions. I said no, I'm not giving any medical So injury and what causes injury

9 DR. ROBERT FIJIN-DIRECT-DEFENSE is not a medical opinion? MS. SCNLN: That's correct. I object to that, Your Honor. Do you wish to voir dire? MS. SCNLN: Yes, Your Honor. for a second. By all means. You can have a seat MS. SCNLN: Doctor, you say -- Please wait for Mr. Scanlan to be seated. MS. SCNLN: I'm sorry? Wait for him to be seated. MS. SCNLN: Oh, I'm sorry. I'll wait for Mr. Scahill to be seated. VOIR DIRE EXMINTION BY MS. SCNLN: Oh, Doctor, you have never -- you've never been schooled in orthopedics, correct? Schooled? You've never gone to school for orthopedics? I worked in the Department of Orthopedic Surgery. It's the wrong question. Have you taken any medical courses? MS. SCNLN: No. Can I continue, Your Honor?

10 DR. ROBERT FIJIN-DIRECT-DEFENSE Take it from there. Is anatomy a medical course? Well, I haven't taken -- is it anatomy or medical course? The question is going in one direction. Right, okay. I'm sure it's one medical course, you could say, medical course. Okay. Please continue. So you've not taken any medical courses, you haven't taken any classes in anatomy, correct? That's correct. I haven't taken classes in anatomy, that's correct. You haven't taken any classes in epidemiology? That's correct, although I have -- I have -- my minor is statistics. You have to both excuse me. I don't know what epidemiology is. That's why I was explaining. Epidemiology is the statistics of the spread of diseases, that type of thing. Is that what that is? MS. SCNLN: nd injury. Is it? MS. SCNLN: It's in the medical field, Your

11 DR. ROBERT FIJIN-DIRECT-DEFENSE Honor. No idea. Have you -- have you taken any classes in epidemiology? No. So you haven't taken classes in medicine, anatomy, physiology and epidemiology, correct? expert? That's absolutely correct. You've called yourself a biomechanical injury MR. SCHILL: I'll object to "called yourself." MS. SCNLN: Well, that's what he just called himself. Don't do that. MS. SCNLN: Sorry. taken orthopedics. I'm interested in perhaps if he's Have you take any orthopedic courses, Doctor? Okay, courses, or have I -- Courses, that's a question. Wasn't the word "course" -- did I hear the word "course"? MS. SCNLN: Yes, Your Honor. That's the question.

12 DR. ROBERT FIJIN-DIRECT-DEFENSE Have not taken orthopedic courses. You are an engineer, correct? I'm a mechanical engineer and a biomechanical engineer, right. MS. SCNLN: Your Honor, at this time I renew my application before we began his testimony. state it? Shall I No. I'm just thinking. No classes in anatomy, no classes in medicine, no classes in orthopedic surgery, no classes in epidemiology, no classes in anatomy. ny classes in neurology? No classes in neurology, no, I've -- in these fields I've only done research. Hematology? No. Know anything about chiropractic work? I don't know what you mean, anything about it. it. Obviously, I know something about Never studied it? Correct. Wow. What's your objection? MS. SCNLN: My objection, Your Honor, is he's not qualified to testify as to mechanics of an

13 DR. ROBERT FIJIN-DIRECT-DEFENSE injury without those qualifications, and I renew my application I made earlier. ll right. Ruling of the court is you have to ask foundational questions that permits him to offer an opinion on biomechanical injury, and I haven't heard any yet so feel free to try. seated. Please be DIRECT EXMINTION MR. SCHILL: BY MR. SCHILL: (Cont'd.) Thank you, Your Honor. What is injury biomechanics, Doctor? Injury biomechanics is -- first I said biomechanics is the application of mechanical engineering, principles of the human body. Injury biomechanics is a specific part of biomechanics that looks at tolerance thresholds for forces or motions, different parts of the human body and what causes damage to various structures in the human body. What are your qualifications in that field? In that field I have all of my doctoral research, Master's in doctoral research, the -- in MIT, working with orthopedic surgeons, publishing in the field of biomechanics and working, being employed in the Department of Orthopedic Surgery in Massachusetts General Hospital, in charge of the lab there. nd those are the kinds of things that I have for -- and general knowledge of research for both individual

14 DR. ROBERT FIJIN-DIRECT-DEFENSE parts of the human body that have testing done on them, like the knee, how large of a force is required to tear a ligament in the human knee. That's something that's part of my Master's in and Ph.D. work and those are the types of -- those are one type of area of research that I'm familiar with. I'm also familiar with biomechanics with respect to motor vehicle accidents. What types of forces do occupants experience in motor vehicle accidents and the types of damage to various structures in the human body that result from that. You understand the plaintiff in this case is claiming injury to his neck, his back and both shoulders as a result of an accident of September,, correct? That's correct. nd what is your practical experience with respect to your study and analysis of injuries to neck and back and both shoulders as a result of a motor vehicle accident? MS. SCNLN: Well, objection, Your Honor. Do you understand the question? I believe so. You can answer. With respect to motor vehicle accident, I am through -- first of all, through the principles of biomechanics, which are the same as mechanical engineering

15 DR. ROBERT FIJIN-DIRECT-DEFENSE being applied to any other thing, whether you're analyzing a car or a person, forces -- when forces are exceeded to certain parts, things break, various types of damages occur, and so that's a fundamental part of biomechanics. Specifically, for the back and the neck and the shoulders, my, my expertise, as I said, at the University of Michigan, my research was in the upper extremities, so the shoulder and the elbow, looking at forces, different activities, forces acting in the shoulder and the elbow. When there's cocontraction to multiple muscles, in muscles acting across joints, including cocontraction, which is when muscles -- opposing muscles act at the same time and increase forces on human joints. With respect to my eight years working at Failure nalysis ssociates, a lot of that was involved in analyzing and becoming familiar with the guidelines from the National Highway Traffic and Safety dministration with respect to forces that are tolerated in the crash test dummies which are replicated to be approximately human-like, and what forces are allowed to occur in the neck and the back and other parts of the body in crash tests. nd the underlying research papers that justify why -- where those numbers come from. So those are the types of -- those are the types of experiences I have with respect to the back, the

16 DR. ROBERT FIJIN-DIRECT-DEFENSE neck and the shoulders, as far as performing a biomechanical analysis. Outside of the realm of legal cases, how is biomechanical engineering used in science? Okay. Outside of legal cases, biomechanical engineering is used, for example, to design artificial hips, artificial knees. It's used to make cars safer, you know. The - most of you look like younger than I am, but anyway, used to be cars didn't have seat belts. Now they have seat belts, they have airbags. They have all kinds of collapsable steering columns. ll of that is based on biomechanical analysis of injury. reduced in motor vehicle accidents? How is injury being nd it's just by considering a motor vehicle and the occupants. The people obey the laws of physics just like everything else does. nd so biomechanics is used in designing tennis shoes, making, you know, making them more comfortable, that type of thing. There are a multitude of applications. You said you have a Ph.D. in biomechanical injury biomechanics? My Ph.D. is in biomechanical engineering. My research was all in biomechanics. I'm sorry, you have a doctorate in biomechanical engineering? Ph.D. in mechanical engineering.

17 DR. ROBERT FIJIN-DIRECT-DEFENSE Not biomechanical engineering? MIT doesn't have a department -- I wasn't asking you why. It's mechanical engineering? That's correct, yes. So there is a study called biomechanical engineering, yes? I'm not sure even that there is a study. Can you get a Ph.D. in biomechanical engineering? Does that exist? I don't know, I don't know. There may be some schools where you can. I don't know. You don't know this? I mean, I have my Ph.D. The people in my field -- Here's my question. If you have a Ph.D. in mechanical engineering, is that different than a Ph.D. in biomechanical engineering, or is my question meaningless because there's no such thing as a Ph.D. in biomechanical engineering? I know there are some programs where people can get a Ph.D. in bioengineering. Bioengineering. Okay. There may be schools

18 DR. ROBERT FIJIN-DIRECT-DEFENSE where you can get Ph.D. in biomechanics. I'm not quite sure what the titles of the diplomas would be because -- ll right. Is there such a thing as a Ph.D. in biomedical engineering? I believe so, yeah. That's not you? Correct. nd is there such a thing as a degree in biomechanical engineering? That, I don't know. I thought you just said that some, you know some programs give Ph.D.'s in that. I think there might be some biomechanics, but I'm not sure. There's a Ph.D. in biomechanics? There may be. That's not you? Correct. Yours is mechanical engineering? Correct. Okay. Do you know the difference? It has to do with -- Like between bioengineering and mechanical engineering, do you know the difference? Right. It's kind of a

19 DR. ROBERT FIJIN-DIRECT-DEFENSE philosophical difference. t MIT, where -- MIT, where I went to school, the philosophy is be founded, be grounded in a field. There are a lot of biomedical researchers at MIT that have Ph.D.'s in electrical engineering or physics, whatever it happens to be. The research is in a particular field, so people who have the top expertise in mechanical engineering apply that knowledge to solving problems in the human body. nd so, for example, in my department of mechanical engineering, there are people that develop artificial skin. That person had a Ph.D. in mechanical engineering. There are people that developed a lot of research on artificial limbs in my laboratory, everyone who had a Ph.D. in mechanical engineering. So help me with this. Cross DV's. You described injury biomechanics -- am I saying that correctly? Sure. Can you get a Ph.D. in that? I don't know. that you've coined? Is injury biomechanics a phrase Does this exist as a specialty? It is an application. Biomechanics is used in many place. Injury biomechanics

20 DR. ROBERT FIJIN-DIRECT-DEFENSE is also used. I'm just saying, are you a biomechanic who's going to give opinion on injury, but is there such a field called injury biomechanics? I believe there is, yes. You believe or you know? Well, it's not -- it's not -- for most applications it doesn't matter if there's that field or not. MS. SCNLN: Objection, Your Honor. You can't tell us if there's a degree in injury biomechanics? That's correct. So this is -- are you calling yourself an injury biomechanics? I am an expert in accident reconstruction and biomechanics. I'm not asking about accident reconstruction. problem with. ccident reconstruction, I have no nd the word injury biomechanics, that's a thing that actually exists? to be an expert in? That's what you consider yourself Okay.

21 DR. ROBERT FIJIN-DIRECT-DEFENSE We're going to take a short recess. You may follow Officer Sheppard. Please do not discuss the case. Keep an open mind and form no judgments about the case. (Whereupon, the jury exited the court room.) I'm going to ask the doctor a few questions outside of the jury's presence. If you have other questions you'd like me to ask him, let me know. You will be expecting to give an opinion on forces that need to be applied to cause injury to human body, correct? Okay. The opinions that you give on the forces necessary to cause injury to human body, you believe that you're qualified to give this opinion based on your training, education and experience? Okay. nd the opinion that you give on forces needed to cause injury to human body, is that to the general population or to every specific individual? Many of my opinions will compare, for example, this motor vehicle accident with everyday activities. So those opinions will be for the

22 DR. ROBERT FIJIN-DIRECT-DEFENSE particular individual, because it will basically be saying this individual in his everyday activities has forces on his shoulder that are X. In this accident they are one half of X. One half is less than one, this accident did not cause injury. The general principle of forces needed to cause injury, is that for a general human being, understanding the anatomy of a general human being? So it's a general principle, so would it be fair to say that your principle does not take into account an eggshell plaintiff? No, that's false, as I said. So are we beginning with the premise that every human body requires the same amount of force to cause injury? No. What I started saying before was if I take an individual, whether it's an eggshell plaintiff or a robust weight lifter, whatever it happens to be, and I look at that person in one activity that this person has performed every day for years, and then this person is in one event and I compare the force level in that event with the forces to which that body part has been exposed for decades, and I

23 DR. ROBERT FIJIN-DIRECT-DEFENSE say the force of that event are much smaller than the force, than independent of how eggshell this person is, it's pretty clear, based on that evidence, that this particular individual was not injured by these larger forces that's applied many times. doesn't make sense. So here, once, it Now, the forces applied, how do you derive the force that's applied to a specific event? Force as applied to specific event? calculation, right? I assume it's some kind of Some calculation and some is using measurements from state-of-the-art crash test dummies during events that are similar, like rear-end crash tests and such. What are the forces measured in the low back and in the neck, and what are the accelerations of the head and chest and those types of things of the -- the crash dummies are not perfect but they are made to simulate. Then I'd say, okay, you can scale it for a person's weight, but scale it appropriately and say, in a -mile per hour rear-end impact delta V, the force in the back are 0 pounds or whatever it happens to be. Okay. I'm going to need you to

24 DR. ROBERT FIJIN-DIRECT-DEFENSE wait outside for just a minute while I confer with counsel and then we'll bring you back in. Okay? (Whereupon, the witness exited the court room.) I am not in a position in the middle of a jury trial to conduct a Frei hearing as a gatekeeper role to his testimony. He's offering an opinion based on his experience, background, training, et cetera that he's qualified to give an opinion in this area. I have nothing before me that tells me the contrary, from any other expert. let him proceed. So I believe I have to I am permitted to look at whether or not his opinion has any foundation in facts or is purely speculative, but that's something that's left to your skillful cross-examination or appropriate voir dire, but the voir dire has been done. nd while he doesn't have specific trainings in anatomic orthopedic surgery, medical -- specific medical specialties, he is describing consultations with orthopedic surgeons and engaging in crash dummy studies and the like, which means I can't bar his testimony, not at this stage. It's going to have to be subject to objection on specific points and with voir dire on areas that you

25 DR. ROBERT FIJIN-DIRECT-DEFENSE believe are outside of his expertise. But he's represented that he's able to give an opinion in this expertise so I guess I leave it to you to cross-examine him. MS. SCNLN: Your Honor, if I could be heard on this. I feel he is completely not qualified to testify to anything with respect to the bio part of it. He is saying he does research now, so he hangs out with doctors, but he hasn't been schooled in it. nd there absolutely is a degree in biomechanics, because Dr. Ivancic is a doctor in biomechanical engineering and biomedical engineering. He had two Ph.D's. I understand. MS. SCNLN: But Judge, the bigger issue is you could tell from his testimony a snapshot of what he anticipates to do. He was saying, well, I'm gonna be able to say that -- he didn't use his name -- but Mr. Pariser uses his arms all the time for his job and those forces are X, and this accident was less force so we know it wasn't caused by this accident. How in the world can he say that based upon the lack of knowledge he has and lack of experience? I didn't get the impression that's what he's going to say here. MS. SCNLN: He's going to say --

26 DR. ROBERT FIJIN-DIRECT-DEFENSE Please don't interrupt me, Miss Scanlan. The impression I got was when I asked him, do his studies refer to general population as opposed to a specific, his response was it could be to a specific if the force applied is less than the force of daily activity. That's an answer that you can easily cross-examine him about if he tries to elicit it here, but I don't know what he's going to say, and I'm not going to conduct an interview on what he's going to say. You have your reports, and there's a good chunk of it that I think is probably within his expertise to testify to. MS. SCNLN: Your Honor, he's gonna be making quantum leaps, and what it's gonna force me to do -- You're going to object when you have to. MS. SCNLN: It's not good for me to object constantly in front of this jury. It looks like I'm hiding something. The procedure would be to shut them down on those areas that he's clearly not qualified. The procedure would be to ask for a Frei hearing before you select a jury. That wasn't done. I'm not conducting a Frei hearing now. I have to take him at his word that what he's speaking about is within his expertise, until an expert tells me that it's

27 DR. ROBERT FIJIN-DIRECT-DEFENSE that's not within his expertise, and I'm not there, so do the best you can. ll right. We'll take two minutes then we'll start. (Whereupon, a recess was taken.) THE COURT OFFICER: Jury entering. (Whereupon, the jury entered the court room.) ll right. Please be seated everyone. Thank you. You may continue your examination. DIRECT EXMINTION MR. SCHILL: BY MR. SCHILL: (Cont'd.) Thank you, Your Honor. Doctor, we were discussing your qualification as a biomechanical engineer and your practical experience. Can you tell the jury, first, your practical experience as a biomechanical engineer? I guess, starting, as I said, I worked for a year at Massachusetts General Hospital as the technical director of the BioMotion laboratory. lso, while I worked at Exponent, Failure nalysis ssociates, I worked with crash test dummies analyzing the types of motions that human occupants undergo during crash tests, the types of forces that they sustain during different accidents, and I guess correlate that with injuries and injury tolerance thresholds that are accepted by the federal government for various test

28 DR. ROBERT FIJIN-DIRECT-DEFENSE modalities. nd that's in addition to all of my research, both at University of Michigan and my Ph.D. work at MIT. Have you published in your field? Yes, I have. nd how many publications do you have in the field? Maybe a dozen, not a large number. Have you taught in this field? Yes, I have. Where have you taught in this field? I taught biomechanics at University of Michigan to graduate students and medical students. Now, were you requested to perform an accident reconstruction and biomechanical analysis in this case? Yes, I was. nd generate a report summarizing your findings? MS. SCNLN: Your Honor, may we approach? held at the bench.) (Whereupon, an off-the-record discussion was Please continue. MS. SCNLN: Just objection, Your Honor. Overruled. My question was, were you requested to perform an accident reconstruction and biomechanical analysis in this

29 DR. ROBERT FIJIN-DIRECT-DEFENSE case and generate a report? Okay. Now I want to ask you about the case materials that you were provided with prior to your review? Okay. You were given certain materials; is that correct? That's correct. Were you given the photographs which have been admitted into evidence as the Defendant's Exhibit and the Defendant's Exhibit E? MS. SCNLN: Objection. Unless he was sitting in the trial, how would he know? E. You'd have to show him and MR. SCHILL: That was my next question. He can't answer the question unless he was sitting in the trial and knows what and E is. MR. SCHILL: those photographs. I'd ask that he be provided Exhibit and E, sure. Mr. Scahill, please pull out and E from the evidence file and hand it to the officer. MR. SCHILL: Defendant's Exhibit B? Can I also give the officer

30 DR. ROBERT FIJIN-DIRECT-DEFENSE 0 So it's, B and E? MR. SCHILL: Let's show it to Miss Scanlan. MR. SCHILL: nd Plaintiff's and, Your Honor. nd Plaintiff's and. Those are also photographs? MR. SCHILL: Yes, Your Honor. Let's get and. nd now your question has to be asked all over again. (Document handed.) BY MR. SCHILL: Doctor, I gave you a series of exhibits that have been marked in evidence. Exhibit? Were you provided Defendant's The photographs through, were you provided an estimate of the damage to the plaintiff's vehicle, which is Defendant's Exhibit B in evidence? Defendant's Exhibit B, to me, looks like -- oh, I see, okay, okay, yes. Were you also given photograph, Plaintiff's Exhibit and? nd also Defendant's Exhibit E, the photograph of

31 DR. ROBERT FIJIN-DIRECT-DEFENSE the two vehicles at the scene? Okay. Did you also -- were you also given -- he wrote his report? You mean was he given that before MR. SCHILL: Correct. You understand the question? Please continue. report? Were you given it then before you wrote your Were you also given the plaintiff's verified bill of particulars? nd also the plaintiff's transcript of the examination before trial in this case, correct? Were you also provided medical records of the plaintiff, Mr. Seth Pariser? Now, I know you're not an expert in diagnosis of treatment, but what information did you obtain from the medical records? MS. SCNLN: Objection.

32 DR. ROBERT FIJIN-DIRECT-DEFENSE Sustained. In order to analyze this accident, did you obtain any other information with respect to the vehicles involved in the accident? What did you obtain with respect to the vehicles involved in the accident? Specifications from motor vehicle manufacturers as well, so like curb weight and dimension, length, width, that type of thing, and also crash test results both from low speed crash tests -- MS. SCNLN: Objection. -- bumper tests. To the answer? MS. SCNLN: To low speed, yes, Your Honor. The objection is premature. Remain standing, and if you have an objection to his answer, you could move to strike whatever you deem appropriate when he's done. Please continue. Okay. nd for barrier crash tests and moving barrier crash tests involving similar vehicles to those involved in the accident. MS. SCNLN: Objection. Overruled. I'm gonna ask you to break that down, what you just

33 DR. ROBERT FIJIN-DIRECT-DEFENSE talked about. You talked about specifications for the vehicles, and you said curb weight. What does that mean? Curb weight is just what a vehicle weighs with no occupants with all of the liquids. So full tank of gas, the amount of oil you're supposed to have, that type of thing. What was the curb weight for the plaintiff's vehicle, the 0 Land Rover LR? Escape? It was around,00 pounds. What about the defendant's vehicle, the Ford It's around,00 pounds. Why is that important in accident reconstruction? The reason that's important in accident reconstruction is vehicle weight very much affects the change in speed that a vehicle withstands. So, for example, an 0,000 pound tractor trailer, if it hits the back of your car when you're stopped, if it's going 0 miles an hour after the impact, it's not gonna slow down by much at all. So you will have a huge change in speed and large acceleration. The truck will have a very small one. So heavier vehicle will sustain much smaller changes in speed and accelerations than will lighter vehicle. You talked about barrier test. What does that mean?

34 DR. ROBERT FIJIN-DIRECT-DEFENSE barrier test is if there's -- most of them are flat surface, flat surface. In order to pass, in order to be able to sell a new car in the US, you have to take a vehicle and put crash test dummies in it, crash them into a wall at miles an hour, 0-miles an hour, miles an hour, those types of things. nd whether or not a car passes depends on measurement inside the vehicle, like to the crash test dummy. So if its neck has forces that are measured larger than a certain threshold, a car fails, you won't be able to sell that in the US. types of things. So those are the There are other tests that are done where a barrier they -- for a different test, they use a deformable barrier, which means the front of it is honeycomb, stiffness of a typical car, smash it into a car, turn the car upside down, see if it leaks any fuel. You all look too young for that, but in the early 0's there was a large issue of Ford Pinto, when its rear end blew up, those kinds of things. So all of these types of crash tests are required by the federal government. Continue. They are all required by the federal government, and they involve taking a car and smashing it into a barrier. There also are vehicle to vehicle crash tests as well, besides those, but anyway, those are the barrier crash

35 DR. ROBERT FIJIN-DIRECT-DEFENSE tests I was describing. You also mentioned other crash tests. I think you said there was a threshold for crash test; is that correct? Well, within crash tests the thresholds are set by the federal government. The National Highway Traffic Safety dministration sets standards for deciding whether or not cars are safe, and there are levels. Like in a frontal impact for an unbelted occupant, the force in the leg can't be more than,0 pounds or something like that. I forget the exact number but there are numbers that come from testing of cadavers and looking at motor vehicle crash tests, regular accident results, that type of thing. So there are thresholds that are known above which you're not allowed to have a car -- a car is not deemed safe if it doesn't meet these standards. case? case. Did you perform an accident reconstruction in this I performed an accident reconstruction in this MS. SCNLN: Objection, Your Honor. Overruled. nd what calculations did you use to perform -- first of all, did you use the documents which I just provided to you and the photographs and the damage estimate in performing your accident reconstruction?

36 DR. ROBERT FIJIN-DIRECT-DEFENSE nd were you able to perform an accident reconstruction from the documents that I provided you that are in evidence? nd -- MS. SCNLN: Objection. Overruled. Specifically, with respect to the damage estimate, the damage estimate that is in evidence which shows the damage to the plaintiff's vehicle at approximately,0 dollars, is that an important component of your accident reconstruction? Not the number, but the details of that verify that what you can see in the photograph is essentially what was damaged in the car, that it was the rear bumper. I'm sorry, is the damage assessment important; yes or no? Not the dollar amount. I'm sorry. He didn't ask you whether the dollar amount was important. He asked you was the damage assessment important; yes or no? It's somewhat important. Photographs are more important, but it's somewhat important.

37 DR. ROBERT FIJIN-DIRECT-DEFENSE Would you mind whenever possible to answer the question put to you and not volunteer anything not asked of you. Sure. Please continue. Is the damage description in the estimate that's in evidence important? Sure. nd why is that? It's just reenforcement that the photographs show the damage. nd as I said, it's just another source of showing the same thing that I saw in the photographs. Okay. What calculations did you perform in the accident reconstruction? In the accident reconstruction I performed calculations to determine the change in speed of each of the vehicles involved in the accident. So in this case, the Ford Escape rear-ended the Land Rover. slowed down -- The Ford Escape MS. SCNLN: Objection. Sustained. There's been absolutely no evidence anywhere in this case at all about the speed of the yellow cab, none. Understood? I didn't say there was.

38 DR. ROBERT FIJIN-DIRECT-DEFENSE I'm not speaking to you, sir. I'm speaking to the jury. Oh, I thought you were talking to me. I apologize. Please continue. MS. SCNLN: Your Honor, I ask that that testimony be stricken because he's describing the rate of speed of the Ford Escape. Is that the yellow cab? MS. SCNLN: Yes, there is no evidence as to the speed of the yellow cab, so there can be no testimony regarding the speed of the yellow cab. ll right. Please continue. Please continue, Doctor. Okay. I calculated the changes in speed of the -- of the vehicles involved in the accident -- MS. SCNLN: Objection. Vehicles, plural. Vehicles plural. It's impossible to calculate just one of them. They both are exactly the same thing, related by their weights. MS. SCNLN: Objection. You may continue. MS. SCNLN: Your Honor --

39 DR. ROBERT FIJIN-DIRECT-DEFENSE Go ahead. The problem is change in vehicle speed. I don't know what that means within his expertise. I suppose we'll find out shortly. MS. SCNLN: He said -- Your Honor, my objection is he said vehicles' change of speed. I think "S apostrophe." We're back to that original objection to that original question. Could be "apostrophe S." You'll find out in cross. Please continue. Please continue, Doctor. So basically, in the accident reconstruction community there are two methods performing accident reconstruction generally. One of them is typically in higher-speed accidents where you know the location where vehicles impact and one of them ends up, you know, 0 feet down the road on the side and the other one ends up over there. That's not what we have here. I'm just explaining that that's the kind of thing that happens sometimes. In that case you perform what's called momentum-based accident reconstruction. In this case we perform what is called a damage-based accident reconstruction where the damage to the vehicles is used to determine the changes in speed. So for

40 DR. ROBERT FIJIN-DIRECT-DEFENSE 0 a particular vehicle its change in speed will be determined -- will be related to the amount of damage that it sustains in an accident. nd an impact -- when two vehicles are in an accident an impact happens at about a tenth of a second. Typically, if you're going along miles an hour, there's an identical vehicle stopped in front of you and you hit it, after about a tenth of a second you'll sort of reach steady rate of speed. That's pretty fast, obviously, and you'll be going roughly half as fast. You might slow down from to miles an hour. You may have a, -mile per hour -- the rear vehicle that's rear ended will have -mile an hour change in speed. So those changes in speed are related to the amount of damage that a vehicle sustains in an accident. I'd be talking about. nd crushed damage is what have a side bar? MS. SCNLN: Your Honor, Your Honor, may we You may. held at the bench.) (Whereupon, an off-the-record discussion was MS. SCNLN: Can I note my objection, Your Honor? Objection overruled. Please continue. MS. SCNLN: Thank you, Your Honor.

41 DR. ROBERT FIJIN-DIRECT-DEFENSE You were discussing crushed damage. Can you describe to the jury what that means, how you use that in accident reconstruction? Crushed damage is if you would measure a vehicle before an accident then measure it after the accident, then measure the difference of -- if the right corner is pushed in inches over here, inches over there, that's the crushed damage. It's the difference between an undeformed car and deformed car. nd you know -- and in general, it may depend on exactly where it is on the vehicle. Or sometimes you may talk about average crush damage which would be averaged over like the entire back or entire front of a vehicle. Did you take into account the testimony of Mr. Pariser in your accident reconstruction? Oh, sure. I take testimony into account. Sometimes testimony violates -- So the answer was yes, right? Sure. ll right. Next question. The methods that you used to perform this accident reconstruction, are they peer-reviewed? re those methods taught in university, are they generally accepted within the field of accident reconstruction?

42 DR. ROBERT FIJIN-DIRECT-DEFENSE Those methods are definitely generally accepted in the field of accident reconstruction for at least the last 0 years, and so yes. papers? re those methods described in peer-reviewed nd does the stiffness parameter come into account? Could you describe to the jury what that is? Yeah. Stiffness is the relationship between how large the applied forces are on something and how much it gets deformed. So something that's very stiff would take larger forces to deform. So, for example, a car in Indianapolis 00 race car crashes into a wall at high speed but it has a low stiffness because it has more low stopping distance, so you'll have smaller acceleration type of thing, but the stiffness of a vehicle has to do with how large the forces are required in order to deform it. You talked about change of speed, crushed damage. Do they interact in performing accident reconstruction? How do they do that? If you perform crash tests, either vehicle-to-vehicle crash tests or vehicle-to-barrier crash tests, and you plot the change in speed that the vehicle had on one axis and the amount of crush on another axis, you get

43 DR. ROBERT FIJIN-DIRECT-DEFENSE pretty close to a straight line. you'll have no damage to your car. So below a certain level You can back in half a mile an hour, one mile an hour, whatever it is, nothing will happen to your car. If you back into the wall -miles an hour, you're definitely gonna have damage to your car. you plot it incrementally at higher velocities, it's approximate straight line relationship between crushed damage and change in speed. If Did you use crash tests data in performing your accident reconstruction analysis? Yes, I did. Why is that important -- how do you use it? You use crash test data to figure out what that relationship is for the vehicles that you're interested in. So in this case, I have a 0 Land Rover and I want to know how large do the forces have to be on the back of this 0 Land Rover in order to start smashing in the car. In the same way for the front of the Ford Escape based on crash tests, both bumper tests and vehicle-into-barrier tests and vehicle-into-vehicle tests, how large do the forces have to be to the front of the Ford Escape in order to deform it that way. You mentioned the rebound effect when the vehicles come to rest after the collision. in your analysis? Does that come into play

44 DR. ROBERT FIJIN-DIRECT-DEFENSE In mechanics there's something called co-efficient of restitution, which basically is a number that tells you how elastic this collision was or how much of the energy is lost due to an impact. If you drop something and it just sticks to the ground, all of the energy was lost. That would be a co-efficient restitution of zero. If you drop something, it bounces back to the height that you dropped it from, all of the energy was recovered, that would be co-efficient restitution of one. nd numerous vehicle-to-vehicle crash tests have been performed to show that in extremely low-impact velocities, like one or two miles per hour, the co-efficient of restitution is, let's say, a half or something, less than that. s the closing speed of the vehicles get -- the larger one approaches the miles per hour, then the co-efficient of restitution is about, and in between there's a smooth curve. That seems to fit data pretty well. Is there also a separation speed? When an accident happens, if two vehicles come together, what really matters is not necessarily whether one vehicle is stopped and the other one is moving. What really matters is the closing speed and the separation velocity. So the closing speed is how much faster the one vehicle is going than the other one. nd so, if someone's car is going miles per hour, another one is going miles

45 DR. ROBERT FIJIN-DIRECT-DEFENSE per hour, the closing speed is miles per hour. fter they hit, they will separate. So to some speed, less than miles an hour, it might be, it might be. The ratio of that separation velocity to the closing velocity is co-efficient of restitution. Zero would mean they stuck together initially. They came together, they just stuck. half would be if before the accident they're coming together miles an hour, they separate at miles per hour. In car accidents, as I said, the numbers tend to be low, low numbers,.,. or less, depending on the closing speed. Now, in this particular case, what did you learn with respect to the damage to the Land Rover from the items that are in evidence before you? Okay. To the Land Rover, the damage was predominantly to the rear bumper cover, rear bumper cover. There's a rubber rear bumper cover, and it has -- in the middle it has a little slot that covers the trailer hitch. nd there's a little piece of plastic, square piece of plastic that popped off. Underneath that there's a crack in the bumper cover. The top step pad that sticks on the bumper cover was peeled up a little bit on one side on the driver's side. nd also on the back of the bumper cover there are two rectangular reflectors that are maybe inch by inches, something like that. One of that fell off. That was the damage to the back of the Land Rover as a

46 DR. ROBERT FIJIN-DIRECT-DEFENSE result of this accident. Okay. nd did you explain crush damage before? Did the Land Rover sustain any crushed damage? Not any appreciable crush damage, no. MS. SCNLN: said appreciable. I'm sorry, objection, I think he Did it sustain any crushed damage; yes, no? No. No, it did not sustain any crushed damage? Correct. Please continue. nd crushed damage you've already described to us? Right. It's how much the vehicle was pushed in. You described that to us already? BY MR. SCHILL: Please continue. What damage did the Ford taxi sustain? The Ford taxi? MS. SCNLN: Objection. Overruled. Go ahead, Doctor.

47 DR. ROBERT FIJIN-DIRECT-DEFENSE MS. SCNLN: Your Honor, may we have a sidebar? I don't think that's necessary, no. You may answer. Okay. Based on the documents that I initially reviewed -- What documents are those again? ll of the various photos, the repair estimates, testimony. I guess those are the most relevant ones. Plaintiff's testimony, repair to the Land Rover and those photographs? Right. Okay, please continue. Based on that, the Ford Escape had no, no damage along the driver's side of the vehicle, no, no significant damage to the hood. Significant? Right. Could you define significant for us? Sure. In this case? Well, no. What the word significant means in any case. Well, significant is a pretty

48 DR. ROBERT FIJIN-DIRECT-DEFENSE clear word in general. say -- me? Significant damage, I would just I'm sorry, are you quibbling with No, sir. When you use an adjective if it's a term of art, we need to know. If it's not a term of art, I'd like you to describe it. So there either is damage, there's no damage. nd you indicated there's no significant. significant. Please describe what you mean by damage to the hood. I'd say there's no visible No visible damage to the hood. We're talking about the cab, right? bsolutely, yeah. From the view from the driver's side, you can see that the driver's head lamp assembly is intact, in position properly. can see that the -- You the driver's side -- I'm sorry, when you say view from View. Do you mean if I'm a driver inside the cab, my view, or do you mean something else? I mean, in the United States the

49 DR. ROBERT FIJIN-DIRECT-DEFENSE driver's side in the left side of the vehicle if you're standing -- If you mean left side of the vehicle, say the view from the left side of the vehicle. Right, okay. Please continue. Okay. If I may, just -- the reason I'm interested in driver's side opposed to left side, people, if they're looking from the front to the back, and driver's side is pretty clear -- Let's do it this way then. Since we're not accident reconstructionists, we'll do it this way. sides. We'll begin with the premise that a car has four Sure. is the back. The front is the front, the back Okay. Then there's the sides. Right. For the front, when you mean a part of the front that's near the steering wheel, we'll call it driver's front side. Is that -- That's fine by me, sure.

50 DR. ROBERT FIJIN-DIRECT-DEFENSE 0 When we mean the back, we'll call it the rear of the vehicle. Sure. Terrific. Can we all work with that in our questioning? MR. SCHILL: Yes, Your Honor. Okay, proceed. From the view -- looking at the photo from the view -- photo taken by the plaintiff at the accident scene, you can see the side of the front grill, but you can't see any -- You already lost us. re we on the side, the front or the back? He'll -- this view is if you would -- if you would think -- if you're at the corner and the car has four corners, if you're at the driver's side front corner of the vehicle and you move sideways away from the vehicle then a little bit rearward, that's approximately where this photo was taken from, so this photo is looking -- I'm not asking for the perception of the observant who took the picture. I'm asking for what part of the car is in view, front, back or sides? You can see the driver's side. You can see the front portion of the driver's side of

51 DR. ROBERT FIJIN-DIRECT-DEFENSE the vehicle and the hood, and part of the head lamp assembly that wraps around. of the grill. lso, you can see the side Were you able to perform -- Is the grill on the front of the vehicle? The grill is the thing on the front of the vehicle that's between the bumper and the hood. of the vehicle? Does this picture show the front Shows a portion of the front of the vehicle. It's not a front view. ll right. Does it show a portion of the front of the vehicle? Does it show a portion of either of the sides of the vehicle. Yes, it shows a portion of the driver's side of the vehicle. side of the vehicle? ll right. Does it show the other Not in this photo, no. That's the only one we're asking about.

52 DR. ROBERT FIJIN-DIRECT-DEFENSE Right. No. It shows part of the front and part of the driver's side? ll right. Next question. MR. SCHILL: Thank you, Judge. Did you also take into account the testimony of Mr. Pariser that the front grill of the taxi was cracked and the headlight on the right side was out of its socket? Well, now we're getting into material that I reviewed in trial testimony at the time of trial and time of my original report. that. I'm not sure how you want me to answer MS. SCNLN: Objection. t the time of your original report? t the time of my original report, I don't believe that Mr. Pariser said anything about -- I'll refer you to page of your ugust,, report, if that refreshes your recollection. MS. SCNLN: Objection; leading. Overruled. So my question was, did you take into account the fact that Mr. Pariser testified the Land Rover's rear bumper was hit, and he also testified that the Ford Escape's grill was cracked and there was plastic on the ground?

53 DR. ROBERT FIJIN-DIRECT-DEFENSE Oh, that, that, definitely, I took that into account, yes. nd based on Mr. Pariser's testimony and the documents that are in evidence that you described, were you able to conduct an accident reconstruction in this case? re we discussing the documents in evidence that were just presented to him that you just handed up? MR. SCHILL: He had those documents prior to -- When you say documents in evidence, it means everything, absolutely everything. MR. SCHILL: Okay. So I'd like to know what you mean by that. MR. SCHILL: nd I'll specify. Please do. The photographs, Plaintiff's photographs and that were taken at the scene of the accident by Mr. Pariser, the photographs of the damage to the Land Rover, and the property damage estimate of the damage to the Land Rover that's Defendant's Exhibit, B and E, were you able to conduct an accident reconstruction based on those materials that I just discussed, as well as the testimony of

54 DR. ROBERT FIJIN-DIRECT-DEFENSE Mr. Pariser? MS. SCNLN: Same objection. What testimony? MS. SCNLN: that I just described. The testimony -- the testimony The deposition testimony? MR. SCHILL: Is that the only testimony of the plaintiff you've seen, his deposition? t the time I read his report. I've read trial transcripts but it's not what my report was based on. Oh, you've read trial transcripts. If the questions pertain to your report, they're going to be limited to what you had to write the report. That's all I'm gonna be answering. If you're asking about writing of your report -- by the way, you only wrote one report? Two reports. There's a second report? So I suppose we need to know which report he's asking about. I guess one is earlier, one

55 DR. ROBERT FIJIN-DIRECT-DEFENSE is later? ll right. So please specify when you're asking about a report whether you mean his earlier or his later report. MR. SCHILL: By earlier report, I'm -- wrote first. By earlier, I mean whatever one he MR. SCHILL: MS. SCNLN: Correct. I'm sorry, Your Honor. I'm simply defining terms so that the question is understood by the witness and we can all understand the answer. Yes, ma'am. MS. SCNLN: May we please have a sidebar? Yes, you may. held at the bench.) (Whereupon, an off-the-record discussion was BY MR. SCHILL: Please continue. So Doctor, I was asking you whether you were able to perform an accident reconstruction in this case? Yes, I was. What were the results of your accident reconstruction in this particular case?

56 DR. ROBERT FIJIN-DIRECT-DEFENSE MS. SCNLN: Objection. More specifically, were you able to perform an accident reconstruction at the time of your earliest report? nd that's what we're going to ask you. If you want -- I don't want you to do anything except listen to my instructions and volunteer nothing. Please continue. Yes, Doctor, please continue. Okay, the accident. So I was able to perform an accident reconstruction prior to submitting my first report. What were the results of your accident reconstruction? The results of that accident reconstruction were that the change in speed sustained by the plaintiff's Land Rover was approximately miles per hour or less. Can I stop you there for a minute? How did you come to that figure? When you say miles per hour or less, how did you get to that calculation? miles per hour or less, I get to that doing two sets of calculations. First, calculation on the Land Rover and also calculations on the Ford Escape, because it's

57 DR. ROBERT FIJIN-DIRECT-DEFENSE impossible for the Land Rover to have had a change in speed unless the Ford Escape also had a change in speed. nd not just had a change in speed. The Ford Escape had to have a change in speed that was percent larger than the change of speed sustained by the Land Rover. That's just based on physics for the last 00 years. So my calculations come from crash tests, looking at how much deformation there was to the back of the Land Rover. nd I don't see any deformation to the back of the Land Rover. reflector fell off, a little part cracked. I assume, the worst case scenario, of across the back of the Land Rover, the height of the Land Rover, the entire vehicle was pushed in an inch. I used that number along with crash test results of vehicles similar to the vehicle to come up with maximum change of speed for the Land Rover of miles per hour. That corresponds to a change in speed of miles per hour for the front of the Ford Escape. nd for the Ford Escape, that corresponds to the entire front of the Ford Escape, from the front bumper all the way to the hood and the quarter panels crumpled in -inches across the entire front of the vehicle. So my calculations, based on crash tests of both vehicles, was that the Land Rover sustained an increase in speed of about miles per hour or less in this accident. MS. SCNLN: Your Honor, objection, move to strike that portion where he gives a calculation with

58 DR. ROBERT FIJIN-DIRECT-DEFENSE respect to the speed, change of speed of the Ford Escape. Denied. Please continue. You talked about laws of physics that have been used for 00 years. What do you mean by that, the laws of physics -- specifically, what laws are you talking about? The conservation of momentum, where the -- if we include the occupants, that the Land Rover weighed about,00 pounds at the time of the accident and the Ford Escape weighed about,00 pounds. nd there's no getting around it that. If the Ford Escape -- I mean, if the Land Rover had a certain increase in speed, then the Ford Escape necessarily had the opposite. It had a decrease in speed instead of increase. But the magnitude had to be percent larger than the Land Rover experienced because the Land Rover weighs about percent more than the Ford Escape. That's all I was talking about. Is there a minimum change in speed that is necessary to sustain damage? Please don't lead. We talked about change of speed. I want to ask you about damage to the Ford Land Rover. Rover. That's -- you made a mistake there, Ford Land I'm sorry, the Land Rover.

59 DR. ROBERT FIJIN-DIRECT-DEFENSE Can we do this so that no one's confused. We'll say plaintiff's car and the cab. Okay. How's that? defendant's car? MR. SCHILL: Can we say plaintiff's car and what color? Well, one is yellow and one is MR. SCHILL: Black, I believe. and defendant's car? Why don't we say plaintiff's car Yes, you could do it that way. You want to do it that way? MR. SCHILL: Is there a minimum amount of force necessary to cause damage to plaintiff's rear in this accident? I'm not quite sure what that question means. Is there -- because it's sort of two parts. amount that can cause damage? Is there a minimum re you saying you don't understand the question? Right. So rephrase. hour. You talked about a change in speed of miles per What speed is necessary to cause the damage that's shown in the photograph to the back of the Land Rover, the

60 DR. ROBERT FIJIN-DIRECT-DEFENSE 0 plaintiff's car? Oh, I see. the damage? What speed is necessary to cause You mean change in speed? You have a change in speed. s I said. I believe could be less than miles per hour. more than miles per hour. It could not have been expert? How can you say that as an accident reconstruction Because as it is, I'm already assuming more deformation than what is clearly visible in the photographs. s I was saying before, the relationship between change in speed and crush is fairly linear. nd so for miles an hour, every inch above that would be miles per hour. Increase in speed miles an hour would be an inch. would be about inches, et cetera, based on crash tests, and so that's where that comes from. I believe inch is extremely upper bound, worse case scenario, for the back of the Land Rover in this accident. You talked about crash test. I think you mentioned IIHS? That's correct. What does that stand for?

61 DR. ROBERT FIJIN-DIRECT-DEFENSE Insurance Institute For Highway Safety. Is that a body that studies crash -- that does crash analysis? That's a body that performs a lot of tests on vehicles at lower speeds than the federal government would do, like I said. The federal government requires cars crushing barriers at 0, miles an hour. There are some standards by the government about bumpers, but the federal government doesn't really perform lower speed crash tests. nd a lot of those are performed by Consumer Reports, Consumer Union, Insurance Institute for Highway Safety, IIHS. Those two groups perform tests at lower speeds. nd they say, for example, this vehicle had so much damage, this is a good car, this one is safer than another one, that type of thing. nd the National Highway Traffic Safety dministration also performed these types of tests? National Highway Traffic Safety is part of the US government, and they are the ones who design the tests that have to be done on cars that are gonna be sold in the US, and they set the criteria by which a vehicle will either pass or fail those tests. nd so they also set standards, like how -- how much impact does a bumper have to withstand for a car to be sold in the US. Those kind of things. re those bumper tests, do they have any

62 DR. ROBERT FIJIN-DIRECT-DEFENSE importance? Do they factor into your analysis? Certainly. How so? For example, when reviewing the literature in order to look at the relationship between crush and changes in speed. Vehicles change. round, the requirements of the United States were changed by the federal government. Before that time, bumpers were, what is called a -mile per hour bumper. Like the safest car of all time was a fairly inexpensive car, in terms of bumper damage. It was Ford Escort, and you could smash it into the wall at miles per hour, nothing would happen to it. That was -- and the requirement around 0 was that a car had to have what's called -mile per hour bumper. If you impact that at something that was the same height as the bumper, it had -mile per hour impact. Then there could be no damage even to the bumper. In, that number was reduced to /-miles per hour, and it's still stayed the same. Nowadays vehicles have to have at least /-mile bumper on them, which means it has to have a /-mile per hour impact without having damage to the bumper. So that's -- you know, that goes into the analysis of understanding vehicle damage and changes in speed, that type of thing. How about the different weights of the two cars. You testified the Land Rover was,00 pounds, I believe,

63 DR. ROBERT FIJIN-DIRECT-DEFENSE and the taxi,00 pounds. analysis? How does that factor into your I said with the occupant it was around,00 pounds and,00 pounds. Those go into the defendant's vehicle was much lighter and it had to have much larger changes in speed in this accident. nd also -- and therefore, it ends up, based on the crash test, that it would have had to have much greater damage to the front end than would the back of the plaintiff's car. Now, you talked about the two vehicles. Do they have different bumper heights? Did that factor into your analysis? No. Why is that important? The combination of the bumper heights and also -- well, all I know is at the time it could be due to braking. I don't know exactly what the driver of the defendant's vehicle was doing, but I do know this. Based on the damage, it's pretty clear that the grill of the trailing vehicle struck the bumper of the front vehicle, and that's bumper height mismatch. MS. SCNLN: Objection. In many -- there are a lot of studies nowadays. People worried that SUV's have higher bumpers, it's sort of

64 DR. ROBERT FIJIN-DIRECT-DEFENSE unfair when they hit cars with lower bumpers, that type of thing. There are a lot of crash tests to look into that, other ways that there's bumper height. Even if you have two identical cars, you see you're gonna rear end into somebody, you slam on the brakes, your bumper can gradually go down in front. The rear bumper, it will hit your grill. You'll have, typically, in that situation, more damage to the trailing vehicle than you would to the struck vehicle. MS. SCNLN: Objection, Your Honor. Move to strike that portion referring to any action by the cab driver. Overruled. Now, you talked about a change of speed to the Land Rover, approximately miles per hour. What happened to the Land Rover as a result of that change of speed? You mean the plaintiff's vehicle? The plaintiff's vehicle. I'm sorry. The plaintiff's vehicle, whatever speed he was travelling at, immediately before that impact, about a tenth of a second later he was travelling at a higher speed, somewhere between 0 and miles. If he was going miles per hour before the impact, after the impact he was going somewhere between and miles per hour. The maximum he could have been going was. It's somewhere between those two values due to the impact.

65 DR. ROBERT FIJIN-DIRECT-DEFENSE nd you read his testimony, correct, Mr. Pariser, the plaintiff? His deposition testimony, yes. That he was pushed forward approximately feet after the impact? In his deposition he said his vehicle was accelerated for feet due to the impact. Did that factor into your analysis? Not really, because it's meaningless, unless he would have said his vehicle was stopped at the time. If -- and also, he didn't have any testimony at his deposition of how fast he was going at the time. quantitative way to interpret that. There's not really any MS. SCNLN: Objection. Overruled. You're going to get a chance to cross, counsel. MS. SCNLN: But if we're going to finish today, Your Honor, I need to do that soon. I didn't say we're finishing today. I'm not expecting your cross-examination to take less than minutes. That's assuming he was done now. ll right. Please continue. MS. SCNLN: Thank you, Your Honor. When you talked about what happened to the Land Rover, was there a change in velocity to the Land Rover?

66 DR. ROBERT FIJIN-DIRECT-DEFENSE Please don't lead. The plaintiff's vehicle? Correct. The plaintiff's vehicle. s I said, the plaintiff's vehicle had change in speed of, at most, miles per hour. Why do you say "at most." Would it have been more than miles per hour? No. Why is that? I believe -- that, didn't you? I'm sorry, you already answered Next question. re all the opinions on accident reconstruction given within a reasonable degree of certainty as an accident reconstruction expert? Is there any other opinion with respect to accident reconstruction that we haven't discussed? I don't understand the question. I'm just trying to think. We're talking about with respect to my report; is that correct?

67 DR. ROBERT FIJIN-DIRECT-DEFENSE Your accident reconstruction in this case. We're just limiting it to the time of the report? Yes, I believe that's it. Is there something in accident reconstruction known as delta v? Could you describe to the jury what that is? Delta V, delta v is a term that's used in math or engineering, whatever, for change. So delta V is change in velocity or change in speed. That's what we're talking about, when a vehicle either speeds up or slows down due to impact. analysis. Now I want to ask you about your biomechanical How does your accident reconstruction analysis factor into your biomechanical analysis? It's impossible to perform an accident reconstruction, I mean a biomechanical analysis without having already performed an accident reconstruction analysis, otherwise it would just be guessing. Because you need to know something about how the vehicles moved around, the types of forces, acceleration and velocity that the vehicle sustained in order to determine how the occupants moved around, the types of forces they sustained, different body parts, et cetera.

68 DR. ROBERT FIJIN-DIRECT-DEFENSE Okay. So from -- you talked about change of speed sustained by a vehicle. Is that the only information that you need to conduct a biomechanical analysis or to determine the forces and motions that are subjected on a person inside the vehicle? No. You also need to know, if you want to know the forces, you know, approximately, the person's height and weight, where the person was seated in the vehicle, their restraint use. Those are things, excuse me, depending on the accident, those are factors that might be important in order to make calculations like that. You understand that Mr. Pariser was wearing his seat belt at the time of the accident? That's correct. The front seat of that Land Rover, the plaintiff's vehicle, was not a bench-type seat but an individual bucket seat? Correct. What type of calculations do you perform when you're conducting a biomechanical analysis? Biomechanical analysis involves first determining, generally, how the person moved around in the vehicle based on crash tests involving both human volunteers and crash test dummies. Given the acceleration and motions that the vehicle sustained, what would happen -- which way would the

69 DR. ROBERT FIJIN-DIRECT-DEFENSE occupant move first and how would they move if they had a seat belt on? Would they impact anything? What would the forces be experienced in different parts of their body? In this case it would be the shoulder, the neck and the back. I would calculate the forces that act in the shoulder, the neck and the back in the course of this accident, and also compare that to forces that act in the neck, in the back, in the shoulders in everyday activities, like if you lift a gallon of milk, bend over, pick up a child. How large are the forces acting in your back if you bend over to pick something up compared to how large are the forces that could have been exerted in your back in this motor vehicle accident. Those are some of the type of biomechanical calculations that I perform. Is this some type of new theory? No, this has been around for decades, many decades. This is thought and peer-reviewed? So what type of calculations could you make with respect to this particular biomechanical analysis? MS. SCNLN: Objection. s to what? Could you be more specific? Well, you said you conducted a biomechanical analysis here. Did you use rear-end crash tests as part of your biomechanical analysis?

70 DR. ROBERT FIJIN-DIRECT-DEFENSE 0 Yes, I did. nd were they important? Okay. nd what else did you do in performing your biomechanical analysis? Well, from the rear-end crash test I took measurements that are made at crash test dummies of how large the force is that's acting in the low back in a worse case scenario, -mile per hour change in speed for the Land Rover, in this case for the plaintiff's vehicle, and figured out what the force would be in the back, in the neck, the accelerations and calculated forces acting in the shoulders. nd as I said, then I compared those with various things that I discussed briefly a minute ago. Did you analyze Mr. Pariser's deposition testimony with respect to your biomechanical analysis and use his testimony as to where he was in the vehicle, what happened to him after the accident? Okay. nd how did that factor into your analysis? Well, he was a seat belted driver. nd I considered scenarios where either he was holding the steering wheel or he wasn't, and what the forces would be acting on his body in this accident as a result of the motion of the vehicle that he was in.

71 DR. ROBERT FIJIN-DIRECT-DEFENSE Okay. nd based on your actual reconstruction and the biomechanical analysis, was his motion inside the vehicle consistent with the damage to his vehicle and the change in speed that you described, miles per hour? MS. SCNLN: Objection. It's a compound question. Split it up. hour. You talked about a change in speed of miles per What happens to Mr. Pariser inside the vehicle based on a biomechanical analysis when there's a change in speed of miles per hour for the plaintiff's vehicle? Okay. n occupant inside a vehicle that undergoes a -mile per hour change in speed, which is the worst case scenario for this accident -- MS. SCNLN: Objection, objection, Your Honor. Overruled. Please continue. Okay. s a result of that, when the vehicle is pushed forward, going from 0 miles per hour to miles per hour pretty rapidly, initially the occupant moves rearward relative to the vehicle. If you had a camera, it would look like the person is pressing against the seat back, then they would recover forward initially. It would look like they're going rearward up to miles per hour. That's how much the vehicle is -- one they're stopped, the car is going forward

72 DR. ROBERT FIJIN-DIRECT-DEFENSE miles per hour, he will press against the seat back, recover forward, although energy is lost due to them interacting into the seat back and such. nd so, based on crash test dummies as well as human volunteers, they would rebound at about maybe miles per hour relative to the car. So they initially go back against -- miles per hour, come forward -- excuse me. Go back rearward at about miles per hour, maximum, recover forward at about miles per hour into the seat belt. nd seat belt forces are very small. For a rear-end impact of miles per hour, the measured seat belt force would be about pounds or less, which is a very small force relative to biomechanical criteria. So basically, you'd go back, come forward and settle about where you were before the impact happened. nd how does that translate on the forces that were impacted on Mr. Pariser's body within the plaintiff's vehicle, meaning his shoulders, and his neck, and his back? Okay. Based on crash test results using crash test dummies, because we don't measure the force, even though human volunteers have been in many hundreds of crashes, at times more severe than this, if you really want to know what the forces are, you measure in a crash test dummy. forces in the low back of a crash test dummy that's nd the comparable size to Mr. Pariser is about pounds maximum force acting in the back. nd similar type of thing. You

73 DR. ROBERT FIJIN-DIRECT-DEFENSE measure the forces on the neck and also for the shoulders. Forces acting in the shoulder, based on measurements from a crash test dummy, are about, probably, about 0 pounds or less acting in this accident. Okay. I want to break that down to the neck, the back and the shoulders. You talked about the forces that were acting upon Mr. Pariser within the vehicle from a biomechanical perspective? activity. Right. Now you also talked about the forces in everyday So can you tell us, from a biomechanical perspective the forces that were involved on Mr. Pariser's neck in this accident and what the forces are that are in everyday activities? MS. SCNLN: Objection. Can I hear the question again? (Whereupon, the requested portion was read back by the reporter.) Sustained. You came to a calculation on specifically the forces that were involved on Mr. Pariser's neck and back, correct? MS. SCNLN: Objection. Overruled.

74 DR. ROBERT FIJIN-DIRECT-DEFENSE MS. SCNLN: Your Honor, it's the same objection. It's the same question. I'm sorry. re we having an argument or something? MS. SCNLN: No, Your Honor. Please be seated. The objection to his question which -- your question is finished? MR. SCHILL: You may answer. I thought I answered yes, I did calculate the forces acting in the neck and back in this accident. So specifically asking for the neck and back, what were the forces that were acting on the neck and back in this accident? MS. SCNLN: Continuing objection. This has already been answered, hasn't it? pounds. Yeah, I gave specific numbers of Did you answer that already? Partially. I don't know if I gave the number for the neck. Do you want the number? MR. SCHILL: Yes, Judge. The number of what?

75 DR. ROBERT FIJIN-DIRECT-DEFENSE MR. SCHILL: Forces that were acting upon his neck as a result of this crash. You may answer. Okay. Well, the maximum compressing force acting on his neck in this accident was definitely less than 0 or 0 pounds, so less than 0 pounds definitely. that? So as to the neck and the back, how do you compare When you say 0, 0 pounds of force, how do you compare that with the forces of everyday activities? The forces of everyday activities are determined for the neck, for example, in two ways, or two or three ways. One of the ways those are calculated is by asking volunteers to -- they have an attachment -- this is a study by Moroney SP, the researcher of University of Michigan. They had a contraption attached to somebody's head. They basically had a pulley with weights on the end and how large a force can you pull sideways, forward, et cetera. through doing calculations of all the muscle forces, nd then figuring out what the forces were that were acting in the neck in different activities. nd that gave them maximum force somebody could apply using human voluntary contraction of the neck and those forces are larger than in this accident. nother way of comparing is looking at accelerations that people sustain when you step off a curve or plop into a chair or something like that. The forces

76 DR. ROBERT FIJIN-DIRECT-DEFENSE there are based on the acceleration you undergo and the weight of your head, which is about pounds. If you undergo acceleration of G's which is -- sneezing is something like G's, just so you know, so the forces in this accident are really not that much more than sneezing. The forces in this accident are comparable to the larger forces you would have on your neck in everyday activities, because obviously you don't do head stands. Most days you go around, you don't do anything to your neck. But stepping off a curb, those types of things, those accelerations and forces are comparable to the neck forces that Mr. Pariser sustained in this accident. pounds sounds like a lot of force. Could you explain to us how that correlates to forces in everyday activity, for example, for the back? Yeah, this was for the back. I said pounds for the back. For the back, studies are trying to figure out what the forces are in the back in everyday activities. When somebody bends over, first off all, you have a lot of muscles acting there. But the accepted method of calculating forces in the back in different activities is to use muscle electrical activity, EMT measurements, along with knowing a lot about the goniometry of the back, along with figuring out what force must be sustained by the spine in all of the muscle forces in order to have equilibrium. Even

77 DR. ROBERT FIJIN-DIRECT-DEFENSE just bending over, standing up and bending over, not holding anything, somebody who weighs about 0 pounds, 0 pounds would have 00 pounds acting in their back. If you bend over to pick something up, you can easily have or 00 pounds acting in your back, depending on exactly what angle you're at. I'm not talking about lifting hundreds of pounds. I'm talking about lifting up something that weighs pounds, 0 pounds. You bend over. So everyday activity, forces of a typical person who weighs 0, 0 pounds would be or 00 pounds acting in the back many times in any given day. upon -- So is it your testimony that the forces that acted Please don't lead. Were the forces that were acted upon Mr. Pariser in this accident greater or less than the forces that he would experience in everyday activities? In this accident he experienced forces in his back that are, at most, about a quarter of what he experienced many times every single day of his life. Is that also true to his neck? No. The forces acting in his neck are probably about comparable to the larger forces he has in everyday activities. Now, what did that analysis demonstrate with

78 DR. ROBERT FIJIN-DIRECT-DEFENSE respect to his spine and the injuries that are claimed in this accident? Well, first of all, the forces are small. The injuries that he's claiming in this accident are related to disc herniation, those types of things. nd from biomechanical tests that are performed on portions of the spine at least since about 0, people have been studying, trying to figure out how large a force you have to apply to the spine in order to have something really bad happen. nd what happens first, and I'm trying to use layman's terms, but if you take a portion of the spine, the early tests found that if you take a portion of the spine and you increase the force until some kind of damage occurs, what happens is the endplates, the vertebrae, the bones in the spine break before the disc is damaged. That's the first thing that was discovered. nd further tests were performed trying different ranges of motion -- if you -- if -- the extreme near or beyond the level that you can have the spine flex without being damaged, without damaging the ligaments and such, and then you apply a rapid compressor force. People are eventually able to find that you could, you could produce disc bulge or herniation through one application of a load, but only if the spine was extremely complexed or hyperflexed, which it wasn't at any time in this accident. MS. SCNLN: Objection.

79 DR. ROBERT FIJIN-DIRECT-DEFENSE Other tests were performed to look at what, what happens -- the disc -- if you think of the disc, there's a ring, outer ring and there's a nucleus in the middle. What types of -- what happens if you already damage the barrier between the nucleus and the outer part. nd again, they were not able, from one single load, were not able to apply to create a bulge or herniation even with a previous damage. nd so the bio, from a biomechanical standpoint, from one load, unless the spine is in an extremely flexed position, one application of a load does not produce a herniation or a bulge. MS. SCNLN: Objection. Move to strike that entire testimony. Would you like to say why? MS. SCNLN: Completely beyond the scope of his knowledge, Your Honor. continue. Overruled. ll right. Please case? How did that factor into your analysis in this Well, in this case -- and I didn't mention sort of the last set of tests, which is instead of just applying one load until you have failure, instead of -- and for the low back those loads would be on the order of a thousand pounds -- there were different -- in different specimens on

80 DR. ROBERT FIJIN-DIRECT-DEFENSE 0 the order of thousand pounds. Let's say you apply half that much on a portion of the spine but you do it tens of thousands of times, then Gordon, a researcher in, showed that you can develop herniations and bulges. nd that makes sense, or at least that explains how someone can develop a herniation or a bulge due to everyday activities. It may be any one of those individual loads which are a lot bigger than this accident but not big enough to acutely cause severe damage in one load, having tens of thousands of those applications. That is, biomechanically, how bulges and herniations develop. From a biomechanical perspective, do you have an opinion whether or not the forces involved in this accident and the change in speed that you described and the forces that were impacted upon the plaintiff caused the disc herniations that he claims to his neck or to his lower back? MS. SCNLN: Same objection. Overruled. Yes, I believe that this accident did not cause or contribute appreciably. Excuse me. He said it did not contribute appreciably. hear adverbs like that. I'm always concerned when I Contributed but not appreciably, did not contribute or not appreciable contribution. I don't know what that means.

81 DR. ROBERT FIJIN-DIRECT-DEFENSE Well, what it means is -- What I'd like you to do is "did not contribute appreciably," explain what you mean to the jury. Okay. What I -- what I mean "did not contribute appreciably" -- this is not a perfect analogy. Somebody smoking cigarettes, one puff of a cigarette did not contribute to that lung cancer, yes, because they had millions of puffs to the cigarette, which really, assuming that their cancer was caused by cigarettes, which it is sometimes, you know -- so in the same way here, this accident, I don't believe -- I don't believe you can build a device that could measure a difference between the before and after condition of his spine as a result of this accident. You can't build a device? Like a MRI would not have measured any difference before or after this accident, something like that, you know. undergo MRI after an accident. MRI -- someone can His MRI, if they would have taken MRI before the accident and MRI after the accident, there would not have been, you know, any noticeable difference in the herniation or anything like that. MS. SCNLN: Objection, Your Honor.

82 DR. ROBERT FIJIN-DIRECT-DEFENSE Yes, I'm striking that. Just completely disregard that. I'm striking it because there was no notice that we'd be hearing this opinion. Please continue. Now, did you also do an analysis with respect to Mr. Pariser's claimed injuries to his shoulders? Yes, I did. nd what was your understanding of the injuries that Mr. Pariser claimed to his shoulders as a result of the accident? Relative to the accident, Mr. Pariser underwent surgery of both shoulders -- excuse me. Now, I didn't have details of the second surgery until my supplemental report, but anyway, both of those surgeries are related to tears of the labrum of the shoulder. nd the labrum is the cartilaginous tissue that surrounds the socket of the shoulder. nd so the glenoid is the curved part and the ball is the head of the humerus. nd the humerus articulates. nd the -- and so the socket has a ring of cartilage and kind of is analogous to a meniscus in the knee, the labrum around the shoulder. nd he had a tear in the superior and the tear of his shoulder. It's called SLP tear, superior, lateral, anterior, posterior. Superior, if this is my right shoulder and this is the socket, superior means up, lateral means to

83 DR. ROBERT FIJIN-DIRECT-DEFENSE the side, anterior to posterior means from front to back. nd so he, according to diagnosis, tore his shoulder due to a force applied from the front to the back acting in his shoulder. He had a labral tear in his left shoulder. That was not exactly the same but quite similar. nd so that, that damage to the labrum is caused by having a force, a significant force. nd significant means larger than would be applied to the shoulder in everyday activities that you undergo thousands of times. That type of thing has to be an extraordinarily large force that would have forced the shoulder to move rearward relative to the socket. ll right. We're going to break there. We'll need you back tomorrow. Please be back in the jury room at M. Between now and then, don't discuss the case, keep an open mind, form no judgments about the case. You may follow Officer Sheppard. THE COURT OFFICER: Jury exiting. (Whereupon, the jury exited the court room.) * * * * It is hereby certified that the foregoing is a true and accurate excerpt transcript of the proceedings. MIRIM KPLN Official Court Reporter