April 25, 2019 Feature

Advanced Digital Scanning Technologies Win with Modern Juries

By Brad Robinson

Many complex personal injury cases are decided by winning the battle of the experts. Although an attorney’s paramount concerns should be to ensure that his or her expert’s opinions are based on a reliable foundation and are the product of a thorough analysis, the method of presentation of an expert’s opinions should not be overlooked and can be as important as the opinions themselves.

Today’s juries expect visually persuasive evidence reminiscent of what they have seen on shows like CSI. As technology advances, judges also are scrutinizing digital simulations and presentations more strictly to ensure that they accurately portray scientifically valid evidence and are not simply flashy renditions designed to entrance the jury with visual appeal instead of substance. Advanced digital 3-D scanning technologies, including hand-held Mantis scanners and 3-D CT and X-ray imagery (collectively “ADS”) can be a powerful jury tool when presenting biomechanical injury analyses in personal injury cases. And when 3-D scanning techniques are merged with 3-D CT scan images, the opportunity to demonstrate the injury as it happened in the subject setting becomes a reality.

Biomechanical Injury Analysis and Advanced Digital 3-D Scanning Techniques

The parties in personal injury cases often agree about what injuries a plaintiff sustained in a particular accident or event. The dispute more frequently centers on how the injuries occurred or what particular mechanisms, force applications, or bodily impacts caused them. This is where biomechanical injury causation analysis plays a vital role. Biomechanical experts examine an incident to determine how an injury occurred and if the injury could have been mitigated or avoided altogether. Specifically, biomechanical injury causation analysis involves comparing the mechanical forces involved in an incident with the body’s injury tolerances to determine the potential for an injury and thereby establish causation.

When parties present competing theories about the cause of a plaintiff’s injuries, the ability to convince the jury to adopt your causation theory often will determine the outcome of the case. For example, in automobile crashworthiness cases, frequently at issue is whether (1) the crash forces alone were so extreme that they exceeded the occupant’s tolerance for injury; (2) the vehicle was defectively designed and allowed an otherwise avoidable injury to occur; or (3) the occupant misused available safety equipment, which limited the equipment’s ability to protect the occupant. Integral to making this determination is learning how the occupant moved and interacted with the vehicle environment as the crash occurred, and ADS offers biomechanics previously unavailable methods to solve this puzzle and convincingly present that information to the jury.

Advantages over Historically Used Techniques

High-resolution handheld scanners first emerged in the 1990s and became affordable to the masses in the 2000s; however, the quality of the images has improved significantly in the last 10 years. 3-D CT scans also were first available in the late 1990s and early 2000s, but recent improvements in computer processing and chip speeds provide much more detailed images and allow articulation of the images to better match the facts of a particular case. Even today, the combined use of 3-D scanning with superimposed 3-D CT imagery is not widespread and is considered cutting-edge technology.

Prior to the advances that made the biomechanical use of ADS possible, biomechanic experts were constrained to rely on crash tests or generic computer simulations when presenting their opinions to the jury. Crash tests are a helpful tool, but they are limited by the parameters of the test, which may not align with the crash circumstances at issue, and by the biofidelity and sizes of the crash test dummies. Crash simulation programs have their own limitations and can restrict a biomechanic to choose from a finite number of generic vehicles and occupant sizes that do not appropriately match the evidence in the case. ADS allows the expert to create to-scale, three-dimensional digital scans of the actual damaged subject vehicle at issue. The damaged vehicle scans can then be dimensionally compared to undamaged exemplar vehicles. ADS also gives the expert the ability to place dimensionally accurate scanned surrogates in damaged or undamaged vehicle environments. The use of these scans in lieu of generic computer renderings allows the expert to demonstrate to the jury with greater clarity what actually occurred in the dynamic crash event and more effectively explain away implausible alternate theories proffered by the other side.

ADS also helps defeat arguments from opposing counsel that your expert’s analysis and presentation should be excluded because they do not depict evidence that is substantially similar to the vehicle and occupant at issue. For example, in an automotive case, the expert’s simulation cannot be attacked for using a generic sedan whose dimensions may favor their conclusion when the simulation program does not offer an option that more closely resembles the subject vehicle. The expert is also not constrained to using generic digital surrogates whose height and weight do not appropriately match the plaintiff’s and who may fit differently in the vehicle.

ADS in Practice

To illustrate how these technologies work in practice, envision a case in which a rear-seated occupant sustains a unique lumbar spinal fracture in a severe frontal crash. The plaintiff alleges that the occupant was properly belted, but the seat bottom and safety belt did not adequately protect her in a foreseeable crash. Conversely, the defendant argues that the vehicle featured a robust design offering excellent safety, but the occupant was misusing the safety belt by placing it under their arm or behind their back. ADS allows the biomechanic to create a to-scale presentation featuring a substantially similar surrogate seated in an exemplar vehicle with the same seat and safety belt that the plaintiff used. The biomechanic can then ask the surrogate to move as the plaintiff would have moved under dynamic crash conditions and create multiple scans with the shoulder belt in all three positions to demonstrate the belt fit and the occupant’s kinematics in each scenario. The scans record the actual belt position on the surrogate as they move in the vehicle and depict the exact movements and dimensions of a real person who accurately represents the plaintiff.

Contrast that with presentations using a crash dummy or with computer simulations using a generic image of a small occupant. The 3-D scans provide much greater detail, accuracy, and realism that will resonate with the jury. Advanced digital 3-D CT scans or X-rays of the actual plaintiff’s bony structures can be superimposed onto the surrogate scan and used in tandem. This combination allows the biomechanic expert to demonstrate where the belt was positioned in relation to the site of the spinal injury using the actual plaintiff’s own bony structures. In other words, with integration of the plaintiff’s to-scale CT imagery, the plaintiff’s own scaled radiographic imagery data can be superimposed on the scanned surrogate, thereby placing the surrogate model on location and in position to sustain the injury at issue.

A Powerful Tool in Front of the Jury

ADS techniques provide credible and persuasive visuals to jurors. They offer the expert a previously unavailable level of precision and alleviate restrictions inherent to accident reconstruction and simulation software. By basing your expert’s work on scans of the actual evidence at issue in your case, you increase the likelihood that your expert’s trial presentation will stand up successfully to Daubert, Frye, or other evidentiary challenges. At the same time, your expert’s presentation appears more convincing to the jury because it allows the biomechanic to show the jury, and not just tell them, how the occupant was wearing the belt during the crash and how the fracture injury occurred using the actual evidence at issue in the case—not a generic rendering. The choice to use additional technologies at trial can be a difficult one for any trial lawyer, but advanced digital scanning technologies can be an incredibly effective way to present biomechanical injury causation analysis to the jury, and it could be the game changer that wins your case.

Brad Robinson

Senior Attorney, Hartline Dacus Barger Dreyer LLP

Brad Robinson is a senior attorney with Hartline Dacus Barger Dreyer LLP in the firm’s Dallas, Texas, office, where he currently serves as national counsel for product manufacturers and sellers. He can be reached at brobinson@hdbdlaw.com. Robinson and Dr. Lars Reinhart of Biodynamic Research Corporation presented about the advanced digital scanning techniques discussed in this article at TIPS’s 2018 Emerging Issues in Motor Vehicle Product Liability Litigation seminar in Phoenix, Arizona, on April 4–6, 2018.

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