Obtaining better outcomes in medical litigation – Lesson 6

Pattern questions

Excerpted from Medical Proof of Whiplash
by Steven R. Young and Michael Melton

Trial jurors have changed in recent years, and television is the cause. Since the CSI series began airing on television, jurors have come to believe that every case involves science, and that the party who has no science has no case.

Plaintiffs rarely use biomechanical experts, believing them to be the tools of the defense. In this age, such an assumption plays right into the defense’s hand and ignores the jury’s expectations. If the defense is the only party talking science in the context of the accident, the plaintiff in this post-CSI world loses.

The plaintiff must engage a biomechanical expert to study the forces and motions in the crash, and the application of those forces and motions to the human anatomy and physiology. The jury expects it, and it makes the plaintiff’s case stronger. If we have no way to counter the “science” the defense presents through a biomechanical expert, we might as well go home.

To effectively present a biomechanical expert, trial counsel must understand what a biomechanical investigation consists of. The biomechanic examines the accident data to determine how the vehicles moved and how the occupants moved inside the vehicles at the time of impact. This is based on applying the laws of physics to the physical evidence of the accident.

Next, the expert reviews the plaintiff’s injuries. Injury to the human body occurs when a force applied to an anatomical structure surpasses the failure limits of that structure. The science of injury biomechanics relates the forces of a traumatic event to the tolerance level of the anatomical structure. Doing so allows the biomechanical expert to determine whether there were any injury-causing mechanisms and if the forces involved in the accident were of the magnitude and severity to cause the Plaintiff’s injuries. This is done for each injured body part.

Next, counsel and the biomechanic must determine what graphics and materials will be necessary to powerfully portray for the jury what happened in the crash. The biomechanic must explain the types of motions and forces each injured body part undergoes in a regular setting, and compare the motions and forces of the subject accident to tests involving humans, cadavers and anthropomorphic test dummies. This becomes compelling to the jury when it understands how and why the plaintiff suffered such severe injuries, even when property damage does not seem serious.

Important questions to ask your expert to prepare for trial:

•      How did the crash occur

•      How did the plaintiff move inside the car during the crash?

•      What does the injury pattern reveal about the cause of the injury?

•      Is the injury pattern consistent with the accident described?

•      What forces was plaintiff subjected to in the crash?

The following direct examination covers common topics on which your biomechanical expert might testify. Some questions are repeated throughout the examination to give context to the discussion and to lay a foundation for admission of the expert’s testimony on a particular point. You may modify or omit these questions at trial if your expert already has covered this material adequately during the course of your examination.

Use Note: Cross-references

Each set of questions below contains a cross-reference to a relevant medical/scientific study located in Part III of this text (e.g., [See §1105.15 for medical literature related to this portion of the examination.]). These cross-references may suggest additional lines of questions or research. Cross-references to medical illustrations refer to the section in the book where the illustration first appears. For example, “Fig. 205.2.2” can be viewed in §205.2.2.

§1639.6.2   Witness Examination

  • Neck Ligaments Are Weakened After Auto Collision

        [See §1105.15 for medical literature related to this portion of the examination.]

Q:    During a collision, do the individual vertebrae of the spine move rapidly or slowly?

Q:    How extreme are the movements?

Q:    While the vertebrae are moving, what holds the spine together?

[A:   Ligaments.]

Q:    What happens to the ligaments when subjected to these forces?

[A:   Whiplash causes significant weakening of the ligaments.]

Q:    How much weaker are ligaments subjected to these forces than a ligament that has not been so strained?

Q:    Is there a sequence of events that occurs after injury to ligaments that causes chronic pain and disability after a crash?

Q:    What is that sequence?

[A:   The sequence is as follows:

  1. The violent stretching of the ligaments causes subfailure injuries to the ligaments and nerve receptors in the ligaments.
  2. This weakening of the ligaments may lead to altered joint motion and loading patterns, compressing the joint tissues.

  3. This compression can result in inflammation, pain, and accelerated degeneration of the joint tissue, resulting in osteoarthritis of the neck.]

Q:    What are “subfailure” injuries?

Q:    How are these injuries manifested in the ligaments?

Q:    Does that cause Plaintiff any pain?

Q:    Do subfailure injuries to the ligaments restrict plaintiff’s movement?

Q:    How?

Q:    Why is that?

Q     How are these injuries manifested in the nerve receptors in the ligaments?

Q:    Does that cause Plaintiff any pain?

Q:    Do subfailure injuries to the nerve receptors in the ligaments hinder plaintiff’s ability to move?

Q:    How?

Q:    Why is that?

Q:    How have these hindrances to Plaintiff’s ability to move led to altered joint motion?

Q:    Is this permanent for Plaintiff?

Q:    Have you found that after the accident, Plaintiff was exhibiting altered loading?

Q:    What is altered loading?

Q:    Why is that a problem?

Q:    What do you mean “compressing joint tissues?”

Q:    How have Plaintiff’s injuries to her ligaments and nerve receptors in the ligaments affected Plaintiff’s range of motion?

Q:    Have you conducted “range of motion” testing on Plaintiff after the accident?

Q:    How do you do that?

Q:    What did your testing disclose?

Q:    How will that affect Plaintiff long-term?

Q:    Why is that?

Q:    What is the likelihood of Plaintiff getting significantly better?

  • Effect of Posture and Head Position During Rear-End Crashes

        [See §1105.48 for medical literature related to this portion of the examination.]

Q:    What assumptions do automotive design engineers use in designing car safety features?

[A:   Modern cars are designed for the 50th percentile person.]

Q:    What do you mean, a “50th percentile person?”

Q:    What if you are taller or shorter than the 50th percentile, will the car protect you as much as if you are of “average” height?

Q:    What is the 50th percentile of height for Americans?

Q:    What assumptions do design engineers make about the way occupants position themselves in the car?

[A:   Engineers assume that occupants sit in the seats in the way they are intended.]

Q:    How do engineers intend occupants to sit in the seats when they are designing them?

[A:   Head restraint properly adjusted, looking straight forward, with back straight, exactly in the middle of the seat, with both hands on the steering wheel.]

Q:    Why would someone sit in a position different from the assume position?

[A:   No one always sits like that. While driving we turn our head to monitor traffic, we talk to someone next to us, we change the radio station.]

Q:    What effect does head position and body position that do not conform to the engineer’s assumption have on the likelihood of injury during a crash?

[A:   Researchers have identified out of body position and posture as a potential risk factor for injuries from low speed collisions.]

Q:    Do you know how fast Defendant was traveling when he crashed into the rear of Plaintiff’s car?

Q:    Is that considered a low speed crash?

Q:    Was Plaintiff looking straight forward when Defendant crashed into her?

Q:    Where was Plaintiff looking?

Q:    How do you know that?

Q:    Was Plaintiff’s back straight when Defendant crashed into her?

Q:    What position was Plaintiff’s back in?

Q:    How do you know that?

Q:    Was Plaintiff exactly in the middle of the seat when Defendant crashed into her?

Q:    Where was Plaintiff positioned on the seat Defendant crashed into her?

Q:    How do you know that?

Q:    Did Plaintiff have both hands on the steering wheel when Defendant crashed into her?

Q:    Where was her right hand?

Q:    Where was her left hand?

Q:    How do you know where her hands were?

Q:    What height was Plaintiff’s head restraint when Defendant crashed into her?

Q:    For someone of Plaintiff’s height, is that properly adjusted?

Q:    What is a proper adjustment for a head restraint for someone that is Plaintiff’s height?

Q:    How do you know the position of Plaintiff’s head restraint when Defendant crashed into her?

Q:    What effect did Plaintiff’s head position have on the likelihood of her sustaining injury when Defendant crashed into her?

Q:    Why was she more likely to suffer injury because her neck was in flexion position?

Q:    Why does the S-shaped curve become more pronounced in the flexion position?

Q:    How does the more pronounced S-shaped curve put more stress on the lower segments of the cervical spine?

Q:    How does greater stress translate into the type of injuries that Plaintiff reports?

Q:    What is axial compression you referenced?

Q:    Why is it worse in the flexion position?

Q:    Mechanically, how does that explain the injuries Plaintiff suffered?

  • Abnormal Posture Increases Risk of Whiplash Injury

        [See §1105.21 for medical literature related to this portion of the examination.]

Q:    Please describe the movement phases the cervical spine passes through during whiplash trauma.

[A:  S-curvature (from the head lagging behind the thorax), C-curvature (from overall extension of the head/neck complex), and rebound after the head makes contact with the head restraint.]

Q:    I would like to focus on the first phase that you described as “S-curvature.” What is that?

Q:    Please look at Exhibit __ [illustration of whiplash phases]. What is that?

Q:    Does that accurately depict the S-curvature, C-curvature, and rebound phases?

Q:    Your honor, I move Exhibit __ into evidence. May I show a blow up of Exhibit __ to the jury?

Q:    Please indicate on Exhibit __ the three phases you just described.

Practice Pointer:

Get your expert out of the witness chair.

It is important to get your expert out of the witness chair and into a standing posture with a pointer in his hands. If you can clothe the expert with the aura of “teacher,” you have invested him with credibility. The jury accepts information from a teacher readily; a gunslinger-witness is a different thing altogether in the jury’s eyes.

Q:    In your field, are there words to describe different types of posture?

Q:    What are those?

Q:    What is Lordosis?

Q:    Can you illustrate for the jury what an “abnormal inward (forward) curvature of the vertebral column” is?

Q:    So you are describing is what some call a “hollow back?”

Q:    What is kyphosis?

Q:    Please illustrate for the jury what an “abnormal backward curve to the vertebral column” is.

Q:    Is that what is called a “hump-back,” or a “hunch-back?”

Q:    In discussing posture, what does “straight” mean?

Q:    Can these different postures have an effect on the susceptibility to injury during the first phase (S-curvature) of whiplash trauma?

Q:    Has testing, or studies been performed to determine whether these abnormal postures have an effect on the likelihood of injury during whiplash?

Q:    Please describe the tests for the jury.

Q:    Now let’s talk about that testing in the context of what happened to Plaintiff in the crash.

Practice Pointer:

Transitional statements give notice to judge and witness to pay attention.

This is not a question, but it serves as a transition for the judge and jury, to signal that you are moving from a theoretical discussion to the reality of the case the jury has to decide.

Q:    Did you take any steps to determine whether Plaintiff has an abnormal spinal curve?

Q:    What did you do?

Q:    What did you find?

Q:    How severe is that abnormality?

Q:    What happens during a whiplash injury to someone with [kyphotic, etc.] posture?

Q:    Why are injuries to the posterior ligaments increased over those suffered by a person with normal posture?

Q:    What are the facet joints?

Q:    Are those the bumps we feel if we run a finger down someone’s spine?

Q:    When you said “lateral anatomic region,” what is that?

Q:    What did you mean when you said “ligament elongation”?

Q:    Where are the ligaments that elongate in the lateral anatomic region of the facet joints?

Q:    Please show the jury on the diagram what those ligaments are.

Q:    Why does abnormal posture increase ligament elongations in the lateral anatomic region of facet joints?

Q:    Do the different posture abnormalities change the location of ligament elongation?

Q:    Please describe where the areas are.

[A:   Straight posture increases the ligament elongation magnitudes in the lateral region at C5–C6 and C6–C7 levels. Kyphotic posture increases elongation magnitudes from the C4–C5 to C6–C7 levels.]

Q:    What do you mean by these “C’s”?

Q:    So with the abnormality Plaintiff has, where would she suffer greater stretching of her ligaments in her neck if someone crashed into her from behind?

Q:    Does whiplash injury occur because of direct impact or due to loading patterns initiated by differential movement between the head and torso?

Q:    What is “differential movement of the head and torso”?

[A:   It is a rapid, forward motion of the thorax that causes an S-shaped curvature of the cervical spine, with flexion in the upper segments and extension in the lower segments.]

Q:    What is the thorax?

Q:    What is the cervical spine?

Q:    What is an S-shaped curvature of the cervical spine that forward movement of the thorax causes?

Q:    What is flexion?

Q:    What is extension?

Q:    How does this differential movement of the thorax and cervical spine, in the presence of an abnormal posture, create increases in the ligament elongation?

Q:    Is there a greater risk for whiplash injury the more the abnormal posture is?

Q:    Can you estimate the likelihood of Plaintiff suffering injury in this crash with her abnormal spine, even though the force appears minor?

Q:    What is that likelihood?

  • Injury Threshold of Rear-End Collisions

        [See §1105.24 for medical literature related to this portion of the examination.]

Q:    What is a shear force?

Q:    Is there differential movement or shear force present in a person who is in a whiplash movement?

Q:    Describe the shear movements of a body in a rear-end crash.

Q:    Please look at Exhibit __ [illustration of whiplash phases]. What is that?

Q:    Does that accurately depict the S-curvature, C-curvature, and rebound phases?

Q:    Your honor, I move Exhibit __ into evidence. Thank you. May I show a blow up of Exhibit __ to the jury?

Q:    What is “differential movement of the head and torso”?

[A:   It is a rapid, forward motion of the thorax that causes an S-shaped curvature of the cervical spine, with flexion in the upper segments and extension in the lower segments.]

Q:    What is the thorax?

Q:    What is the cervical spine?

Q:    What is “an S-shaped curvature of the cervical spine” that forward movement of the thorax causes?

Q:    What is flexion?

Q:    What is extension?

Q:    What effect do these shear forces have on the lower spine?

[A:   They can stretch or tear the spinal ligaments.]

Q:    Have any tests been performed to determine whether there is an injury threshold for the spinal ligaments?

Q:    Please describe that testing.

[A:   Researchers used six human cadaver cervical spines for the experiments. On each spine, they measured the range of motion of each vertebral segment before and after each test. By doing so, they were able to determine the amount of ligament stretch that occurred during the test. The specimens were tested at four different acceleration levels: 3.5, 5, 6.5, and 8 g. These are the acceleration levels that would be found in low speed collisions.]

Q:    What were the findings of the testing?

Q:    What is ligamentious stretching?

Q:    What is the C5-C6 spinal segment?

Q:    Is that the region of Plaintiff’s neck that she has identified as having pain in?

Q:    What do you mean by “5 g”?

Q:    Please look at Exhibit __ [see Figure 1105.24b]. Do you recognize what that is?

Q:    What is it?

Q:    Does it fairly and accurately depict the facet capsular ligaments?

Q:    Your honor, I move Exhibit __ into evidence. May I show it to the jury?

Q:    What do the arrows on Exhibit __ point to?

Q:    Are those the ligaments subjected to elongation or stretching during the shear motion you described earlier?

Q:    What is the greatest mode of injury in the lower cervical spine?

[A:   Extension.]

Q:    So the conclusion that 5 g is the injury threshold means that in a crash with more than 5 g of acceleration applied to a person, injury at the C5–C6 level is expected?

Q:    What would you expect with higher accelerations, such as Plaintiff was subjected to?

[A:   The injuries spread to all intervertebral levels of the lower cervical spine from C4–C5 to C7–T1. The extension mode of injury may suggest the onset of subfailure injuries of the anterior longitudinal ligament and anterior annulus fibers, in addition to facet joint impingement. Clinical evidence supports these injury mechanism hypotheses.]

  • Low Back Pain After Whiplash: the Mechanism of Injury

        [See §1105.26 for medical literature related to this portion of the examination.]

Q:    Sir, what is a shear force?

Q:    When someone is hit in a rear-end crash, is his or her body subjected to shear forces?

Q:    How?

Q:    Please look at Exhibit __. [See Figure 11-5.26a.] Your honor, this is a medical illustration of two vertebrae. Sir, do you recognize what Exhibit __ depicts?

Q:    What does Exhibit __ depict?

Q:    Is it a fair and accurate depiction of the shear forces that occur when one part of the spine moves in one direction while another part of the spine moves in a different direction?

Q:    Your honor, I move Exhibit __ into evidence. May I display Exhibit __ for the jury?

Q:    What do the arrows on Exhibit __ represent?

Q:    What effect do shear forces have on the soft tissues that hold the spine together?

Q:    How are those soft tissues depicted on Exhibit __?

Q:    How are the soft tissues that hold the spine together injured in a rear-end collision?

Q:    What do you mean “axial forces” when you describe the forces that a spine is designed to withstand?

Q:    And the shear forces are those such as depicted in Exhibit __?

Q:    Are shear forces considered an unnatural movement of the cervical spine?

Q:    Is it shear forces that cause whiplash injuries to a neck during a rear-end collision?

Q:    Does a similar injury mechanism occur in the lumbar spine?

Q:    Please look at Exhibit __. [See Figure 11-5.26b.] Your honor, this is a medical illustration of two vertebrae. Sir, do you recognize what Exhibit __ depicts?

Q:    What does Exhibit __ depict?

Q:    Your honor, I move Exhibit __ into evidence. May I display Exhibit __ for the jury?

Q:    What does the first segment in the illustration depict?

Q:    What does the second segment in the illustration depict?

Q:    What does the third segment in the illustration depict?

Q:    What happens when the normal curve of the lumbar spine straightens?

Q:    How does the straightening of the lumbar spine stretch the spinal ligaments?

Q:    What is the effect of stretching the spinal ligaments in the lumbar spine area?

Q:    So a whiplash mechanism can occur in the lower back?

Q:    Can someone suffer whiplash injuries to their lower back?

Q:    What is the mechanism that causes injury in the lower spine?

[A:   The car seat rapidly accelerates into the occupant’s spine, causing the thoracic and lumbar curves to straighten.]

Q:    In a rear-end collision, what is the magnitude of force or acceleration that the occupant of the car is subjected to?

[A:   The car seat exerted about 1500 Newtons (approximately 337 pounds) of force in a fraction of a second.]

Q     What is a Newton?

[A:   A Newton(N) is a unit of measure that describes the amount of force placed on an object—in this case, the cervical spine. One Newton is equal to 4.44 pounds of force.]

Q     What do you mean “One Newton is equal to 4.44 pounds of force”?

Q:    What is “force”?

Q:    Explain for the jury the forces that were on Plaintiff during the rear-end crash.

Q:    How innervated is this area of the spine?

Q:    What is innervation?

Q:    What role does this plays in the origination and development of lumbar pain after whiplash injury?

Q:    Has testing determined what the least shear load would be that will cause soft-tissue injuries in the lumbar region?

[A:   A shear load as low as 1200 N.]

Q:    What is a “g”?

Q:    How many g’s are necessary to produce 1500 Newtons?

[A:   5 gs.]

Q:    In terms of miles per hour, what is the speed of impact necessary to produce 5 gs?

[A:   8 miles/hour.]

Q:    So during an 8 mph collision, the seat back of a car exerts enough force to injure the connective tissue of the lumbar spine?

  • How Injury to the Cervical Spine Can Cause Jaw Dysfunction

        [See §1105.27 for medical literature related to this portion of the examination.]

Q:    Plaintiff complains of TMJ pain as a result of the rear-end crash. What is the TMJ?

Q:    During a rear-end collision, is there abnormal jaw motion or excessive forces on the jaw?

[A:   No.]

Q:    Is your opinion supported by biomechanical studies and tests?

Q:    When a person moves their jaw, what muscles are activated?

[A:   Functional jaw movements are the result of coordinated activation of jaw as well as neck muscles.]

Q:    What muscles and structures are involved in moving the jaw?

[A:   Simultaneous movements in the temporomandibular, atlanto-occipital, and cervical spine joints.]

Q:    What do you mean by the temporomandibular joint?

[A:   The joint between the head of the lower jawbone and the temporal bone.]

Q:    What is the temporal bone?

[A:   It is the thick bone forming the side of the human cranium that also encases the inner ear.]

Q:    What is the occipital bone?

[A:   A saucer-shaped membrane bone that forms the back of the skull.]

Q:    What is a membrane bone?

[A:   Any bone that develops within membranous tissue without previous cartilage formation.]

Q:    By the cervical spine joints, are you referring to the neck area?

Q:    Does natural jaw function require a healthy state for both the mandibular and the head-neck motor systems?

Q:    Does an injury to any of the joints you’ve described pose a threat to normal jaw function?

Practice Pointer:

Foundation in basic anatomy lets jury reach its own conclusion about Plaintiff’s injury.

By the time you get to this question, the jury already has concluded that forces causing injury to any of these structures would derange jaw function. Building the foundation with identification of the structures, so the jury can draw its own conclusion, is more powerful than just having the expert tell the jury what you want them to know. It is more powerful to “show” rather than “tell.”

Q:    Is there a way of detecting whether a whiplash victim suffers from significantly different movement patterns from an uninjured person?

Q:    What type of tests can be administered to determine if there is a significantly different movement pattern?

Q:    What does a self-paced continuous maximal jaw-opening/closing movement show?

Q:    What does a paced continuous maximal jaw-opening/closing movement in time with a metronome set at 50 beats/minute show?

Q:    What does unilateral chewing of 3 pieces of chewing gum show?

Q:    How do the jaw movement patterns in Plaintiff differ from uninjured persons?

[A:   Healthy subjects show a slight degree of cervical spine extension between each opening and closing of the jaw. This neck motion was completely absent for Plaintiff.]

Q:    Did neck trauma compromise Plaintiff’s natural jaw function?

Q:    How?

[A:   Plaintiff had smaller mandibular and head movement amplitudes and disturbed coordination between mandibular and head movements during rhythmic jaw activities.]

Q:    Does that mean there is a change in Plaintiff’s motor control of jaw function following the accident?

Q:    Is it possible to separate the jaw from the rest of the head and the neck functoin?

Q:    How does abnormal cervical spine functioning have a direct and serious effect on the movement of the jaw?

Q:    Is it your opinion from a biomechanical standpoint that Plaintiff’s abnormal jaw motion resulted in damage to Plaintiff’s TMJ?

Q:    Is the pain due to damage to Plaintiff’s TMJ chronic?

  • Immune System Responses After Whiplash

        [See §1105.28 for medical literature related to this portion of the examination.]

Q:    Are there markers in the body whose presence indicate the body has suffered trauma?

Q:    What are they?

[A:   Immune functions were once thought to be involved in protecting the body from pathogens, but we now know that the immune system also plays a role in inflammation and recovery from injury.]

Q:    How does that allow you to determine if an injury has occurred?

[A:   The body releases certain markers of injury and inflammation. Cytokines are intracellular signaling proteins that are released from various cells following infection or inflammation. The cytokine interluekin-6 (IL-6) is considered an early marker of acute inflammation.]

Q:    What are cytokines?

[A:   A wide variety of proteins produced by many different cells in the body that control every aspect of body defense. Cytokines activate and deactivate white blood cells and immune defense cells, increase or decrease the functions of the different immune defense cells, and promote or inhibit a variety of body defenses.]

Q:    How would the presence of cytokines indicate an injury such as whiplash?

[A:   Injury to ligaments and joints results in increased immune function in those tissues. An increased release of cytokines and chemokines can disrupt the normal growth of the joint tissues, resulting in degeneration of the joints and chronic pain.]

Q:    What are chemokines?

[A:   A group of cytokines that promote inflammation by enabling white blood cells to adhere to the inner surface of blood vessels, migrate out of the blood vessels into the tissue, and be chemically attracted to the injured or infected tissues of the body.]

Q:    Have any studies been conducted concerning immune response to Whiplash-Associated Disorder?

Q:    How were the tests conducted?

[A:   Within three days after the injury, scientists drew blood and again 14 days after the collision. The blood samples were tested for a wide variety of immune markers. The whiplash patient samples were compared to patients with multiple sclerosis (MS), patients with acute ankle sprain, and a group of healthy control subjects.]

Q:    What were the findings of this study?

[A:   1. Whiplash patients showed a systemic increase of pro-inflammatory TNF-a and IL-6 and an increase in anti-inflammatory IL-10.

        2. These cytokine elevations returned to normal levels within 14 days.

        3. Patients with ankle sprain showed cytokine elevations similar to those exhibited by whiplash patients, indicating similar injury mechanisms.

        4. The immune system responses in whiplash were not similar to those shown in MS patients.]

Q:    Can testing for biological markers in the blood serum demonstrate whether whiplash injuries result in trauma to the tissues of the cervical spine?

Q:    Have such tests proven that whiplash injuries result in trauma to the tissues of the cervical spine?

Q:    What is the consequence of findings that biological markers in the blood serum following whiplash-related injury are the same as for ankle sprain?

[A:  These injuries show trends similar to those shown by patients with ankle sprain, indicating that ligaments may be damaged in whiplash injuries.]

Q:    Was testing performed on Plaintiff to determine if immune markers in the blood serum were present?

Q:    Is it possible 14 days after a whiplash injury to test for the presence of immune markers in Plaintiff’s blood serum?

Q:    Why not?

Q:    But testing has shown that whiplash injury is an actual injury by the blood serum markers you have described?

  • Facet Joint Mechanics in Rear-End Collisions

        [See §1105.37 for medical literature related to this portion of the examination.]

Q:    What are the typical symptoms of whiplash injury?

Q:    Is it possible to detect these symptoms by physical examination?

Q:    Is it possible to detect these symptoms by conventional medical imaging?

Q:    Is it possible to rule out these symptoms by physical examination?

Q:    Is it possible to rule out these symptoms by conventional medical imaging?

Q:    Has biomechanical research provided any models of what happens in a whiplash injury?

Q:    For example?

[A:   Anterior elements of the neck can be torn, posterior elements can be crushed. Post-mortem studies have shown the spectrum of lesions that might, and can, befall a patient. These include contusions and fractures of the zygapophysial joints, and tears of the cervical discs.]

Q:    What are facet joints?

Q:    During a whiplash movement, can facet joints be injured?

Q:    How?

[A:   Approximately 100 milliseconds into the collision, the cervical spine undergoes an S-shaped curve, where the upper spine experiences flexion and the lower cervical spine undergoes extension. This S-shaped curve is caused by the simultaneous compression of the spine when the occupant’s body moves up the seat back, and the forward motion of the torso when the car seat pushes into the occupant.]

Q:    Please look at Exhibit __. [See Figure 1105.37a.] For the record, your honor, Exhibit __ is a four-element drawing purporting to show the S-shaped progress the witness is describing.

Q:    Do you recognize what Exhibit __ is?

Q:    What is it?

Q:    Does it fairly and accurately depict the movement of the spine during a rear-end collision?

Q:    Your honor I move Exhibit __ into evidence. May I display it to the jury?

Q:    I would like to talk with you about each figure in Exhibit __ so the jury understands what it depicts.

Q:    What does the first figure show?

Q:    What does the arrow at the bottom of the first figure indicate?

Q:    What does the second figure show?

Q:    At what time point in time in the crash is the second figure?

Q     What is a millisecond?

Q:    What is it that causes the spine to straighten 50 milliseconds into the crash?

Q:    What forces are at work on the spine at 50 milliseconds into the crash?

Q:    What is compression?

Q:    Where does the compression occur 50 milliseconds into the crash?

Q:    Please look at the third figure in Exhibit __. What does that depict?

Q:    At what point in time in the crash is the third figure?

Q     How long is 100 milliseconds?

Q:    What is extension in the lower spine?

Q:    What causes extension in the lower spine 100 milliseconds into the crash?

Q:    What forces are at work on the spine at 100 milliseconds into the crash?

Q:    Why does the head remain in the same position 100 milliseconds into the crash?

Q:    There are two arrows at the bottom of the third figure in Exhibit __. What do those represent?

Q:    Which figure in Exhibit __ depicts the S-curve you spoke of?

Q:    What part of the spine does Exhibit __ depict?

Q:    What part of the spine is the cervical spine located in?

Q:    So the upper part of the neck experiences flexion?

Q:    What is flexation?

Q:    Extension of the lower neck means what?

Q:    What causes the S-shaped curve?

[A:   The simultaneous compression of the spine when the occupant’s body moves up the seat back, and the forward motion of the torso when the car seat pushes into the occupant.]

Q:    How was this motion determined?

[A:   By high-speed x-ray video of the whiplash motion in a test subject at approximately 5-mph.]

Q:    Where does the movement in the lower neck occur?

[A:   Between the 5th and 6th cervical vertebrae.]

Q:    Do the facet joints move naturally when there is no force applied?

[A:   Yes, both the anterior- and posterior-most regions of the facet joint slide.]

Q:    Do they move differentially?

Q:    What does this varying kinematics at the two ends of the facet joint result in?

[A:   A pinching mechanism.]

Q:    Please look at Exhibit __ [Figure 1105.37b]. Your honor, this is a depiction of the movement of two independent planar surfaces.

Q:    Do you recognize what Exhibit __ depicts?

Q:    What does it depict?

Q:    Your honor, I move Exhibit __ into evidence. Thank you, may I display it to the jury?

Q:    Please look at the figure A in Exhibit __. What does that show?

Q:    What do you mean “normal facet position?”

Q:    Please look at figure B in Exhibit __. What does that show?

Q:    What do you mean by “pinching?”

Q:    Please tell us what those motions do to the tissues of the neck.

Q:    What effect does the S-curve in the neck during an accident have on the tissues of the neck?

[A:  The temporal local flexion of the occipito-atlanto-axial complex distracts the posterior structures with a concomitant compression of the anterior structures of the upper cervical spine.]

Q:    What is temporal local flexion?

Q:    What is the occipito-atlanto-axial complex?

Q:    What are posterior structures of the neck?

Q:    What tissues are located in the posterior structure of the neck?

Q:    How does localized flexion of the occipito-atlanto-axial complex distract the posterior structures?

Q:    What does distracting the posterior structures by localized flexion of the occipito-atlanto-axial complex do?

[A:   Compresses the anterior structures of the upper cervical spine.]

Q:    What is the anterior structure of the upper cervical spine?

Q:    What does “compression of the anterior structures of the upper cervical spine” mean?

Q:    How does this overstretch the dorsal region which includes the upper cervical musculature and ligament complexes?

Q:    How much nerve tissue is there in this area of the body?

Q:    What effect does stretching of these innervated soft tissue structures have on a body?

Q:    What effect does the pinching action in the lower cervical spine have on these tissues?

[A:   Compromises the integrity of the synovium, thus causing neck pain.]

Q:    What is the synovium?

[A:   A thin membrane in synovial (freely moving) joints that lines the joint capsule and secretes synovial fluid.]

Q     What do you mean when you say, “Compromises the integrity of the synovium?”

Q:    How does neck pain result from compromising the integrity of the synovium?

  • Analysis of Real World Car Crashes

        [See §1105.38 for medical literature related to this portion of the examination.]

The table contained in §1105.38 can illustrate the statistical reality of injury in rear-end crashes for your jury. The table tabulates 72 real-world rear-impact collisions. The subjects included a mix of people with and without injury, and with and without litigation. All collisions were from one to three years old when the study occurred. The data for analysis was compiled by a questionnaire that the vehicle occupant answered, medical records, and police reports. For each collision, the author calculated an approximate dV (Delta V), or velocity change, for the “target” vehicle. The following examination can lay the foundation for admission of the chart for use at trial:

Q:    Do you know what SAE is?

Q:    How do you know what SAE is?

Q:    What is SAE?

Q:    Are you a member of SAE?

Q:    What does SAE do?

Q:    Does SAE have a publication or journal to document the work of its members?

Q:    What is that journal called?

Q:    Do biomechanical engineers, such as yourself, use the studies published in the SAE journal in their work?

Q:    How?

Q:    Does SAE also present conferences and programs where biomechanical engineers present their studies and findings for peer review?

Q:    Do you attend these conferences and programs?

Q:    Are you familiar with an SAE publication for one of its conferences held in 1999 where a study was presented of 72 real world impacts – an initial investigation into injury and complaint factors?

Q:    Please look at Exhibit __. For the record, your honor, Exhibit __ is a table from a biomechanical engineering study of 72 real world rear-impact collisions.

Q:    Do you recognize what Exhbit __ is?

Q:    Is that the study presented in March 1999, to the Society of Automotive Engineers International Congress and Exposition?

Q:    Are you familiar with this study?

Q:    Is this study considered authoritative in the automotive engineering field?

Q:    What does the table show?

You can now extract the data, by examination that is most pertinent to your facts and circumstances.

  • Human Response to Low Speed Impact

        [See §1105.39 for medical literature related to this portion of the examination.]

Q:    Does a rear-end collision affect everyone the same?

Q:    Is the response of the automobile occupant in a rear-end collision predictable?

Q:    Why is that?

[A:   Some patients can experience sizable accelerations from such collisions and report no symptoms; others can be in lower-speed impacts and suffer long-term pain and disability.]

Q:    Are women more likely to suffer whiplash injuries than men are?

Q:    Why?

Q:    What individual subject variables predict symptoms after the collision.

[A:   Ratio of head to neck size; patient neck strength; and the distance between the head and the head restraint.]

Q:    Please look at Exhibit __ [see figure in §1105.39] For the record, your honor, this is graph of symptom distribution from human testing following rear-end collisions.

Q:    Do you recognize what Exhibit __ is?

Q:    What is Exhibit __?

Q:    Your honor I move Exhibit __ into evidence. Thank you, may I display it so the jury can see it?

Q:    What does the gradient on the right hand side of the graph measure?

Q:    What do the different colors on the columns represent?

Q:    What is the body region portion of the graph for?

Q:    Please tell the jury what the table teaches us about injuries following a rear-end crash?

  • Social and Crash Factors in Whiplash

        [See §1105.40 for medical literature related to this portion of the examination.]

Q:    Are you aware of studies that evaluated whiplash patients’ demographics and accident details to determine the effect on recovery?

Q:    How large was the sampling for the study?

Q:    What did the study assess?

[A:   Gender, age, marital status, employment, income, and number of dependents. As well, the researchers examined the type of crash, the type of vehicle the subject was in, the severity of the crash, the seatbelt use, and the speed limit at the location of the crash. Additional attention was noted if there were reports of injuries in addition to whiplash.]

Q:    What factors were found to play a role in delayed recovery from injury in a rear-end crash?

[A:   Gender.]

Q:    How did Gender affect recovery from injury in a rear-end crash?

[A:   Women were 15% slower at recovering than were men.]

Q:    What other factors were found to play a role in delayed recovery from injury in a rear-end crash?

[A:   Age.]

Q:    How did Age affect recovery from injury in a rear-end crash?

[A:   Age had a dramatic effect on recovery. For every decade increase in age, the time to recovery was slowed by 14%.]

Q:    What other factors were found to play a role in delayed recovery from injury in a rear-end crash?

[A:   Having dependents.]

Q:    How did having dependents affect recovery from injury in a rear-end crash?

[A:   Having dependents slowed recovery by 11%.]

Q:    What other factors were found to play a role in delayed recovery from injury in a rear-end crash?

[A:   Not having full-time employment.]

Q:    How did having full-time employment affect recovery from injury in a rear-end crash?

[A:   Not having full-time employment increased recovery time by 12%.]

Q:    What other factors were found to play a role in delayed recovery from injury in a rear-end crash?

[A:   Being a passenger.]

Q:    How did being a passenger affect recovery from injury in a rear-end crash?

[A:   Being a passenger was also more risky than being the driver—passengers were 19% slower to recover.]

Q:    Why were passengers slower to recover?

[A:   Passengers are less likely to be aware of an impending collision, and are not able to shield their necks from injury.]

Q:    Are there limitations to the study?

  • Human Factors in Whiplash

        [See §1105.41 for medical literature related to this portion of the examination.]

Q:    Are you aware of studies determining an accident victim’s susceptibility to cervical spine injuries from a collision, based on analysis of the Volkswagen Accident Database?

Q:    Tell us about the study.

Q:    Has this study been peer-reviewed?

Q:    By which organizations?

[A:   SAE and Insurance Institute for Highway Safety.]

Q:    How was the study conducted?

[A:   Researchers analyzed the Volkswagen Accident Database and assessed gender, age, height, and weight of the injured. Researchers were looking for trends that could be used to conclude both the risk and frequency of certain factors influencing whiplash injuries.]

Q:    What are human factors?

Q:    Did the research and study demonstrate that human factors do play a role in the risk and frequency of whiplash injuries?

Q:    I am placing in front of you Exhibit __. [Seetable in §1105.41.] For the record, your honor, this is a plotting of the research into human factors in the study we’re talking about.

Q:    Do you recognize what Exhibit __ is?

Q:    What is it?

Q:    Is the information used in Exhibit __ demonstrative of the basis for the opinions you are expressing here today?

Q:    Your honor, I move Exhibit __ into evidence. Thank you, may I display it for the jury?

Q:    It appears from the table that despite the larger number of male occupants involved in rear-end collisions, females suffered greater injuries. Why is that?

Q:    It also appears from the table that the risk of injury in women is twice as high. Why is that?

Q:    Are there other factors of greater risk for women in rear-end accidents?

[A:   The risk of injuries to women increases with an increase in height, but with men no correlation was found. The higher height group is concentrated with men, just as the lower height group is concentrated with women.]

  • Vertebral Artery Stretching During Whiplash

        [See §1105.47 for medical literature related to this portion of the examination.]

Q:    What is the vertebral artery?

[A:   It is the first branch of the subclavian artery; divided into four parts.]

Q:    What is a subclavian artery?

[A:   It supplies blood to the neck and arms.]

Q:    Where is it located?

Q:    Have biomechanical or engineering studies been performed to determine the effect of the whiplash mechanism on the vertebral artery?

Q:    Tell us about those studies.

Q:    What did the studies conclude about Vertebral Artery Stretching during whiplash?

[A:   The maximum VA elongation during the whiplash trauma significantly correlated with the horizontal acceleration of the sled. The VA exceeded its physiological range by 1.0, 3.1, 8.9, and 9.0 mm in the 2.5, 4.5, 6.5, and 8.5-g trauma classes, respectively.]

Q:    What is elongation?

Q:    What is horizontal acceleration?

Q:    What do you mean by physiological range?

Q:    What is the problem with exceeding a physiological range?

Q:    Do you have an opinion whether the forces present in the collision in this case, were sufficient to cause Plaintiff’s vertebral artery to exceed its physiological range?

Q:    What physical symptoms follow the forces stretching of a vertebral artery, such as Plaintiff suffered?

Q:    Are these consistent with the complaints Plaintiff makes here?

  • Effect of Rigid Seats During Rear-End Crashes

        [See §1105.48 for medical literature related to this portion of the examination.]

Q:     In low-speed impacts, does seat rigidity have an effect on the occurrence of injury?

Q:    Are there studies that support this?

Q:    What are the engineering or biomechanical studies that support this?

Q:    How does a rigid seat interact with the person sitting on it during an accident?

[A:   A rigid seat creates a sharp ramping effect on the body.]

Q:    Can the occupant’s body move straight backwards in a stiff seat during a rear-end crash?

Q:    Why not?

Q:    If the occupant cannot move straight back, how does a body move in a stiff seat during a rear-end crash?

[A:   The occupant moves up the seat.]

Q:    What effect does the rigidity of the seat have?

[A:   The more rigid the seat, the sharper the ramping.]

Q:    Does a rigid seat transfer more force to a body during a rear-end crash, or less force?

[A:   In terms of neck moment, shear and axial compression forces reveal that the axial compression force applied to the cervical spine is approximately 150 N [33.8 pounds of force] with the rigid seat around 100 ms in the early phase of impact, which is about twice greater than the standard seat.]

Q:    How do you account for the force being twice what one would have using a standard seat?

Q:    Was the seat in Plaintiff’s car considered a rigid or a normal seat?

Q:    So you conclude what about the effect of the seat in Plaintiff’s car concerning the forces she was subjected to?

  • Elastic Seats and Injury During Rear-End Crashes

        [See §1105.48 for medical literature related to this portion of the examination.]

Q:     In low-speed impacts, does seat elasticity have an effect on the occurrence of injury?

Q:    Are there studies that support this?

Q:    What are the engineering or biomechanical studies that support this?

Q:    How does an elastic seat interact with the person sitting on it during an accident?

[A:   Elastic seats allow too much bounce, causing rapid rebound of the occupant’s torso.]

Q:    What does “bounce” mean in a rear-end crash?

Q:    Is that a problem?

Q:    How does that happen?

[A:   At approximately 100 ms, the torso has compressed the elastic seat to its greatest amount, and the seat then springs forward, accelerating the torso with it. The head is moving backwards at the same instant, creating a large difference in speed between the torso and the head. This can result in very large shear forces on the spine.]

Q:    How long is a millisecond?

Q:    So this is almost at the instant of the crash, Plaintiff fully compressed the seat?

Q:    How much force does an elastic seat spring forward with?

[A:   The shear force is 241 N [54 pounds] with the standard seat around 110 ms when the rebound of the torso has occurred, which is roughly 1.6 times greater than the value of 152 N [34.2 pounds] with the rigid seat.]

Q:    What is a Newton?

Q:    What is the difference between 241 Newtons that Plaintiff was subjected to, and the expected 152 Newtons?

  • Seat Belts and Injury

        [See §1105.56 for medical literature related to this portion of the examination.]

Q:    What effect do seat belts have in moderate energy crashes?

Practice Pointer:

Avoid phrase “minor impact”

I don’t like to use the phrase, “minor impact” because it sends the wrong message to the jury that the crash was not serious. I instead try to use the word “moderate” because it does not precondition the jury’s thinking.

Q:    Why do seat belts increase the frequency of soft-tissue injuries?

Q:    How does that happen?

[A:   In addition to the backward-forward movement of the head in a typical rear-end collision, seat belts add rotational forces to the head.]

Q:    Has the likelihood of susceptibility to soft tissue injury due to wearing belts been scientifically documented?

Q:    Where?

Q     What were the findings of that study?

[A:   Belted patients were 1.58 times more likely to suffer cervical strain than unbelted patients.]

Q:    Was Plaintiff wearing a seat belt when Defendant crashed into the back of her?

Q:    How do you know?

Q:    I would like to talk to you about the injuries Plaintiff suffered in the crash and ask you if the injuries are consistent with those found to be caused by wearing seat belts in low-speed crashes.

  • Breast Injuries

        [See §1105.56 for medical literature related to this portion of the examination.]

Q:    Plaintiff and her doctor told us about her breast injury. Is that injury consistent with wearing her seat belt?

Q:    What are the breast injuries that researchers have found due to seat belt use?

[A:   Cysts or bands of increased density, indicative of contusions, lipid cysts, and calcifications of the breast tissue.]

Q:    What is a contusion?

Q:    Is that bruising?

Q:    Is a contusion always visible on the skin surface?

Q:    Is there evidence of a contusion in Plaintiff’s left breast?

Q:    What is that evidence?

Q:    What is a cyst?

Q:    How does a cyst form?

Q:    Can trauma prompt cyst formation?

Q:    What do you mean a “band of increased density?”

Q:    How do these bands of increased density form?

Q:    Can trauma prompt increased density formation in the breast?

Q:    What are lipid cysts?

Q:    What is calcification of the breast tissue?

Q:    Is Doctor Casey’s report of calcification of breast tissue consistent with a seat belt-caused breast injury?

Q:    Is there a risk of fat necrosis from such an injury?

Q:    What is fat necrosis?

Q:    Is there evidence from Doctor Casey’s report that Plaintiff is suffering fat necrosis?

  • Heart and Sternal Injuries

        [See §1105.56 for medical literature related to this portion of the examination.]

Q:    What is the sternum?

Q:    Is there a risk of sternal fracture from a seatbelt injury?

Q:    What is the mechanism for that injury?

Q:    Is there an incidence of some degree of pericardial or myocardial trauma, from sternal injury?

Q:    What is the pericardial?

Q:    What is the myocardial?

Q:    So we are talking heart injury?

Q:    Please describe for us what those injuries are.

  • Pediatric Cervical Spine Injuries

        [See §1105.57 for medical literature related to this portion of the examination.]

Q:    Is a child’s spine the same as an adult spine?

Q:    How does a child’s spine differ from an adult’s?

[A:   A child’s head is a disproportionately large mass with relatively underdeveloped neck musculature.]

Q:    What do you mean “disproportionately large mass”?

Q:    How does a large head and undeveloped neck muscles effect the bending moment of a child’s neck in a rear-end collision?

Q:    What anatomical structures in the neck predispose a child’s cervical spine to greater mobility than that seen in adults?

Q:    When you say the upper three to four cervical spine segments, do you mean the vertebrae?

Q:    Are the ligaments in a child’s neck different that in an adult’s neck?

Q:    What do you mean “relative elasticity” of the cervical ligaments?

Q:    What do you mean “relative laxity” of the cervical ligaments?

Q:    How does the relative elasticity and laxity of the cervical ligaments affect a child’s susceptibility to injury in a rear-end crash?

Q:    What other differences are there in a child’s spine from an adult spine?

Q:    What are “posterior joint capsules?”

Q:    How are a child’s posterior joint capsules different from an adult’s?

Q:    How does this affect a child in a rear-end crash?

Q:    Are there any other differences in a child’s spine and an adult’s spine?

Q:    What are cartilaginous end plates?

Q:    How does the difference in a child’s cartilaginous end plates affect the risk of injury to a child in a rear-end crash?

Q:    What is a neural arch?

[A:   A structure arising dorsally from a vertebral centrum and enclosing the spinal cord.]

Q:    By “vertebral centrum,” do you mean the main body of the vertebra?

Q:    What does “dorsally” mean?

Q:    Can you draw a picture of what you are talking about on the board?

Practice Pointer:

A bad artist makes a good expert.

Get your expert out of the witness chair, with pen in hand. If the expert can’t draw very well, all the better—it humanizes your witness. He’s like almost everyone else on the jury.

Q:    At what age does the child’s spine change to become more “adult-like”?

Q:     What are these changes?

Q:     Because of the differences in a child’s spine, does that mean that child is not at risk in a rear-end collision?

Q:    What poses a risk of injury for a child?

[A:   Rapid deceleration or hyper flexion-extension mechanisms, lethal distraction or shear forces with significant cord ischemia or infarction may occur.]

Q:    What is a lethal distraction?

Q:    What do you mean “shear forces”?

Q:    How do shear forces cause significant cord ischemia?

Q:    What is infarction?

[A:   Localized necrosis resulting from obstruction of the blood supply.]

Q:    What is the mechanism by which this happens?

Q:    Did Little Jimmy have a vertebral fracture?

Q:    Can these injuries happen even if there is no vertebral fracture?

Q:    In your opinion, do the mechanics you have described support Doctor Casey’s diagnosis of Little Jimmy’s injuries?

  • Airbag Injuries

        [See §1105.58 for medical literature related to this portion of the examination.]

Q:    What kind of car was Plaintiff in when Defendant crashed into her?

Q:    Was Plaintiff’s car equipped with airbags?

Q:    Did the driver’s side airbag deploy on impact?

Q:    How do you know?

Q:    Do you know how airbags for a 1999 Nissan Altima work?

Q:    How do you know this?

Q:    Please tell the jury how airbags in a 1999 Nissan Altima deploy.

Q:    Have measurements been conducted to determine the velocities with which airbags deploy?

Q:    Who conducted those measurements?

[A:   National Highway Traffic Safety Administration (NHTSA).]

Q:    What did the NHTSA determine the average velocity of an airbag deploying was?

[A:   144 mph.]

Q:    Were all velocities the same?

Q:    What where the maximum velocities the NHTSA reported?

[A:   211 mph.]

Q:    Does the severity of a collision affect the velocity of the airbag itself?

Q:    Why not?

Q:    Did I ask you to calculate the force with which an airbag deploys in a 1999 Nissan Altima?

Q:    Did you do so?

Q:    How did you do so?

Q:    What did you calculate the force to be?

Q:    Is that enough force to cause injury?

Q:    Did you make a biomechanical determination as to the cause of Plaintiff’s injury?

Q:    How did you do that?

Q:    How did looking at Plaintiff’s photograph of the imprint of “Nissan” on her forehead help you determine the cause of her injury?

Q:    Does the airbag module cover for a 1999 Nissan Altima have the same size lettering as that imprinted on Plaintiff’s forehead?

Q:    How did you determine that?

Q:    What are the risk factors for injury by a deploying airbag?

Q:    Is Plaintiff shorter than the average person?

Q:    Did Plaintiff sit closer to the air bag deployment module than the average person?

Q:    How did you determine that?

Q:    What injuries did you determine Plaintiff suffered from the airbag deployment?

Q     How did the airbag deployment cause Plaintiff’s eye injuries?

Q     How did the airbag deployment cause Plaintiff’s broken arm?

Q     How did the airbag deployment cause Plaintiff’s facial injuries?


The above advice came from…

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  • Whiplash cannot successfully be faked.  Page 79

  • Pain is due to organic causes, not psychological disturbances.  Page 77

  • Serious neck injury can occur with only minor vehicle damage.  Page 4

  • 90% of head restraints do not protect occupants from injury.  Page 83

  • Seat belts increase the incidence of cervical strain.  Page 84

  • A turned head greatly increases the incidence and severity of injury.  Page 215

  • Litigation does not ‘cure’ whiplash symptoms.  Page 81

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