From ExactSource- Rules Regatding Admission of Expert Witness Testimony

T H E S T A T E R U L E S O F

A D M I S S I B I L I T YA Survey of How Expert Testimony Is Admitted In All 50 StatesWith Emphasis on Accident Reconstruction and Biomechanics

ExactSource, an industry leader in forensic engineering talentacquisition, is often tasked with the difficult job of finding candidatesfrom all disciplines who possess a unique blend of skills and expertise.

When searching for forensic engineers our clients often request candidates whose background allows them to qualify to testify as an

expert witness.

Unfortunately, there is no standard formula to determine whether or not a forensic engineer can qualify on a particular topic in a particular court.

This e-book is intended to function as a tool to assist both forensicengineering firms and potential candidates. You’ll find this 50-State

Guide to Expert Admissibility as a useful reference tool when makingan initial decision about whether to take a project or how to staff aparticular job. This is not meant to be a definitive guide to expert

admissibility in every situation and certainly should not beused as a substitute for competent legal advice from

an attorney in your jurisdiction.

T A B L EO F C O N T E N T S

4 Alabama

5 Alaska

6 Arkansas

7 Arizona

8 California

9 Colorado

10 Connecticut

11 Delaware

12 Florida

13 Georgia

14 Alabama

15 Alaska

16 Arkansas

17 Arizona

18 California

19 Colorado

20 Connecticut

21 Delaware

22 Florida

23 Georgia

24 Connecticut

25 Delaware

26 Florida

27 Georgia

28 Alabama

29 Alaska

30 Arkansas

31 Arizona

32 California

33 Colorado

34 Connecticut

35 Delaware

36 Florida

37 Georgia

38 Alabama

39 Alaska

40 Arkansas

41 Arizona

42 California

43 Colorado

44 Connecticut

45 Delaware

46 Florida

47 Georgia

48 Connecticut

49 Delaware

50 Florida

51 Georgia

52 Connecticut

53 Delaware

54 Florida

51 Georgia

A L A B A M A

Daubert, Frye or other. Frye/Rules of Evidence*1

License Required Yes**2

Accident Reconstruction Yes**3

Biomechanics Yes**4

*The Alabama courts have not abandoned the Frye test of admissibility; however, theyalso consider the Rules of Evidence which requires the witnesses to be qualified and helpful to

the trier of fact.**An engineering expert witness only needs a license when testifying about work that

can only be legally done by a professional engineer. The witness does not have to be licensed inAlabama, but in some jurisdiction of the U.S.

1 Courtaulds Fibers, Inc. v. Long, 779 So. 2d 198 (2000)2 Arthur v. Bolen, 41 So. 3d 745, (2010)

3 Gooden v. City of Talladega, 966 So. 2d 232, (2007)4 CSX Transportation, Inc. v. Miller, 46 So. 3d 434 (2010)A P U B L I C A T I O N

O F E X A C T S O U R C E

A L A S K A

Daubert, Frye or other. Daubert5

License Required No6

Accident Reconstruction Yes7

Biomechanics Yes8

Tests conducted in preparation for a trial should be peer-reviewed to ensure they pass aDaubert challenge. No side in a trial may have more than three expert witnesses unless given

special permission by the court. An expert witness retained or employed to give testimony in acase must file a pre-trial report at the direction of the court with a complete statement of all

opinions to be given, information or data used to form the opinions, any exhibits to be offered insupport of their opinions, the witness’s qualifications, a list of all publications by the witness inthe previous ten years, the compensation to be paid for the study and testimony, and a list of

other trials and depositions given in the previous four years.

5 State v. Coon, 974 P. 2d 386 (1999)6 Little Susitna Construction Co. v. Soil Processing, 944 P. 2d 20

7 Marron v. Stromstad, 123 P.3d 992 (2005)8 Cable v. Shefchik, 985 P. 2d 474 (1999) A P U B L I C A T I O N

O F E X A C T S O U R C E

A P U B L I C A T I O N O F E X A C T S O U R C E

A R I Z O N A

Daubert, Frye or other. Frye*9



Biomechanics Yes12

*The Frye test does not apply to experts who reach their conclusions through “inductivereasoning based on his or her own experience, observation, or research.” Only when using novel

scientific principles or procedures developed by others is it necessary for an expert to pass a Fryehearing.

9 Logerquist v. Mcvey, 196 Ariz. 470 (2000)10 Bliss v. Treece, 134 Ariz. 516 (1983)

11 Lohmeier v. Hammer, 148 P.3d 101 (200612 Lohmeier v. Hammer, 148 P.3d 101 (2006


A R K A N S A S



Accident Reconstruction Yes*15

Biomechanics **

*Expert accident reconstruction testimony is only allowed in situations where there areno eye witnesses, the eye witness testimony is contradictory, the eye witness would not be able

to understand what caused the accident, or the jury would not be able to draw their ownconclusions.

**There is no case law on biomechanics testimony to date, but occupant kinematicsevidence has been allowed.16

13 Green v. Alpharma, Inc., 373 Ark. 378 (2008)14 Parker Construction Co. v. Aldridge, 312 Ark. 69 (1993)

15 Drope v. Owens, 298 Ark. 69 (1989) and Southern Farm Bureau Cas. Ins. Co. v. Daggett, 354 Ark. 112 (2003)16 Carr v. GMC, 322 Ark. 664 (1995)


C A L I F O R N I A

Daubert, Frye or other. Other: Kelly-Frye*17

License Required No**18


Biomechanics Yes20

*The Kelly-Frye test is basically the Frye test with two additional requirements: (1) thewitness must be qualified in the field they offer testimony in, and (2) the methods used to gatherdata must also meet the general acceptance rule. The Kelly-Frye test only applies to new science.

**To be declared an expert, a witness does not need any particular license, but mustdemonstrate specialized knowledge in their field.

17 People v. Kelly, 17 Cal. 3d 24 (1976)18 People v. King, 266 Cal. App. 2d 437 (1968)

19 Pannu v. Land Rover North America, Inc., 191 Cal. App. 4th 1298 (2011)20 Soule v. GMC, 8 Cal. 4th 548 (1994)


C O L O R A D O

Daubert, Frye or other. Other: Rules of Evidence*21



Biomechanics Yes24

*Colorado Rules of Evidence, Rule 702 governs the admissibility of expert testimony in Colorado. It requires the testimony to be based on reliable scientific principles, the witness to be qualified in their field, and that the testimony

will be helpful to the jury in understanding the facts. Reliability is judged by a flexible list of factors: (1) if the techniques used to gather data can be tested, (2) if the techniques have been subjected to peer review, (3) the rate of error, (4) if the technique has been generally accepted, (5) the relationship between the expert’s technique and other more established methods, (6) the existence of supporting literature, (7) uses for the technique outside of litigation,

(8) types of error generated by the technique, and (9) if the techniques have been accepted in other similar cases. The expert’s qualifications and helpfulness are more straightforward criteria and will be judged by the court.

Colorado also requires experts that have been retained to offer testimony to submit pretrial summaries of their opinions, methods, exhibits, qualifications, and all previous trials they’ve offered testimony for in the previous four years.

21 People v. Shreck, 22 P.3d 68 (2001)22 Huntoon v. TCI Cablevision, Inc., 969 P.2d 681 (1998)

23 Wark v. McClellan, 68 P.3d 574 (2003)24 Schultz v. Wells, 13 P.3d 846 (2000)


C O N N E C T I C U T

Daubert, Frye or other. Daubert*25



Biomechanics Yes28

*Connecticut added three requirements to the original Daubert four: (1) if the testimonyis objective, (2) if the witness can explain their testimony in a way that helps the jury, and (3) ifthe expert’s methodology was developed solely for litigation or has other uses. These additional

factors are awarded less weight than the Daubert factors but can be important when the reliabilityof the evidence is otherwise difficult to determine. The validity of the methodology is more

important than an expert’s qualifications.

25 Klein v. Norwalk Hospital, 299 Conn. 241 (2010)26 Sovereign Bank v. Licata, 116 Conn. App. 483 (2009)

27 Hicks v. State, 287 Conn. 421 (2008)28 DiPietro v. Farmington Sports Arena, LLC, 123 Conn. App. 583 (2010)


D E L A W A R E


License Required Yes*30


Biomechanics Yes**32

*Delaware requires that engineers be licensed in a state, not necessarily Delaware, to offer expert testimony.**Delaware has very strict guidelines on how they judge biomechanics testimony. The courts recognize biomechanical testimony that demonstrates what forces may have acted on a body and what effects those forces may have had. If

attempting to prove injury causation, the testimony must provide definitive evidence that specific physical forces caused the precise injury to the particular person. This testimony can contradict medical testimony when the physics of the event clearly differ from what the medical testimony claims happened. One example of these strict guidelines was a car accident case where the Delaware Supreme Court threw out biomechanical testimony despite the unquestioned qualification of the

expert and his methods, because the victim of the accident had undergone back surgery for pain prior to the crash. The courts decided that because the biomechanics expert had not reviewed the victim’s prior medical history and did not take

this “abnormal” body condition into account, his testimony was invalid.

29 M.G. Bancorporation v. LeBeau, 737 A.2d 513 (1999)30 24 Del. C. §2802A

31 Bell Sports, Inc. v. Yarusso, 759 A.2d 582 (2000)32 Eskin v. Carden, 842 A.2d 1222 (2004)


F L O R I D A

Daubert, Frye or other. Frye33

License Required No*34



*The Florida law says that a witness may be qualified as an expert if they have a professional degree from a college or university and has had special professional training and experience, or if the individual is possessed

of special knowledge or skill about a subject. For engineering testimony, the witness is expected to be licensed unless extremely qualified.

**Biomechanics experts are allowed to testify about the forces in an accident and how a body may react, but they are strictly prohibited from testifying about the extent of an injury that an individual may have suffered

in an accident. A witness must have a medical degree to testify to specific injury causation.37

33 Marsh v. Valyou, 977 So. 2d 543 (2007)34 Florida Rules of Civil Procedure Rule 1.390

35 Goldberg v. Florida Power and Light Co., 899 So. 2d 1105 (2005)36 Griffen v. Kia Motors Corp., 843 So. 2d 336 (2003)

37 Mattek v. White, 695 So. 2d 942 (1997)


G E O R G I A




Biomechanics Yes*41

*Biomechanics expert prevented from testifying because he had not investigated eitherthe vehicle or the victim.

Go Dawgs!

38 Mason v. Home Depot U.S.A., Inc., 283 Ga. 271 (2008)39 Agri-Cycle LLC v. Couch, 284 Ga. 90 (2008)

40 State Auto Property & Casualty Co. v. Matty, 286 Ga. 611 (2010)41 Brown v. Hove, 268 Ga. App. 732 (2004)


H A W A I I

Daubert, Frye or other. Rules of Evidence*42



Biomechanics Yes45

*Hawaii’s rules of evidence dictate that an expert witness’s testimony must meet fivecriteria to be permissible in court: (1) the testimony must be helpful to the jury, (2) it must aidthe jury’s understanding of the facts, (3) the underlying theory must be valid, (4) the correct

procedures must be used to gather the data, and (5) any procedures used to gather data must beperformed properly.

42 State v. Samonte, 83 Haw. 507 (1996)43 Tabieros v. Clark Equipment Co., 85 Haw. 336 (1997)

44 Wemple v. Dahman, 103 Haw. 385 (2004)45 Udac v. Takata Corp., 121 Haw. 143 (2009)


I D A H O




Biomechanics Yes49

*Idaho uses their Rules of Evidence as the test of admissibility. The main requirement isthat the evidence be helpful to the jury. The courts will also inquire about the principles andmethodology behind the expert’s opinion and whether they are testable and peer reviewed.

46 Weeks v. E. Idaho Health Services, 143 Idaho 834 (2007)47 Jones v. Jones, 117 Idaho 621 (1990)

48 Chapman v. Chapman, 147 Idaho 756 (2009)49 Chapman v. Chapman, 147 Idaho 756 (2009)


I L L I N O I S




Biomechanics Yes53

*In Illinois, the Frye standard is mainly applied to the methodology and principles behindthe testimony, instead of the expert’s conclusions.

50 People v. Mckown, 236 Ill. 2d 278 (2010)51 Somers v. Quinn, 373 Ill. App. 3d 87

52 Zavala v. Powermatic, Inc., 167 Ill. 2d 542 (1995)53 Fronabarger v. Burns, 385 Ill. App. 3d 560 (2008)


I N D I A N A





*Part (b) of Indiana’s Rule 702 states that “Expert scientific testimony is admissible onlyif the court is satisfied that the scientific principles upon which the expert testimony rests arereliable.” The Indiana courts regard the Daubert factors as “helpful, but not controlling,” on

judging the reliability of expert witness testimony.**Biomechanics testimony is not allowed to testify about causation, only the physical

forces involved and reaction of a body.

54 Steward v. State, 652 N.E.2d 490 (1995)55 Hammond v. Indiana H. B. R. Co., 175 Ind. App. 644 (1978)

56 Witte v. Mundy, 820 N.E.2d 128 (2005)57 Witte v. Mundy, 820 N.E.2d 128 (2005)


I O W A

Daubert, Frye or other. Other*58



Biomechanics Yes61

*Iowa has an ad hoc approach to admitting expert testimony.62 They usually look fortestimony to be reliable and understandable. For especially novel or complex science, they do

identify the Daubert factors as general guidelines. Typically, a Daubert challenge is only properfor expert scientific testimony. Technical and other non-scientific evidence does not have to pass

the Daubert criteria.

58 Ranes v. Adams Labs., Inc., 778 N.W.2d 677 (2010)59 Ranes v. Adams Labs., Inc., 778 N.W.2d 677 (2010)

60 Nichols v. Schweitzer, 472 N.W.2d 266 (1991)61 Oelwein Community School District v. Williams, 2003 Iowa App. Lexis 531 (2003)

62 State v. Hall, 297 N.W.2d 80 (1980)


K A N S A S




Biomechanics *

*There is no case law on the admissibility of biomechanics evidence in Kansas.

63 Kuhn v. Sandoz Pharmaceuticals Corp., 270 Kan. 443 (2000)64 Cline v. Kansas Gas & Electric Co., 182 Kan. 155 (1957)

65 McElhaney v. Rouse, 197 Kan. 136 (1966)


K E N T U C K Y




Biomechanics Yes69

Experts must disclose how much they are being compensated for their testimony.

66 Toyota Motor Corp. v. Gregory, 136 S.W.3d 35 (2004)67 Kentucky Revised Statutes § 322.010

68 Gorman v. Hunt, 19 S.W.3d 662 (2000)69 CSX Transportation, Inc., v. Begley, 313 S.W.3d 52 (2010)


L O U I S I A N A




Biomechanics Yes73

70 State v. Foret, 628 So. 2d 1116 (1993)71 State v. Pelt, 448 So. 2d 1294 (1984)72 State v. Pelt, 448 So. 2d 1294 (1984)

73 Taylor v. Progressive Security Insurance Co., 33 So. 3d 1081 (2010)


M A I N E





*The rules of evidence require judges to consider if (1) the expert is qualified, (2) thetestimony is relevant, and (3) the testimony will assist the trier of fact. Indicators of reliability

include whether the testimony (1) has been peer-reviewed, (2) if other similar studies have beendone, (3) if other experts support the methods used in the testimony, (4) the expert’s

qualifications, and (5) if there is a scientific basis for causation.**There is no specific case law about biomechanics, but occupant kinematics has been

approved by the Maine courts.

74 Searles v. Fleetwood Homes of Pa., Inc., 2005 ME 94 (2005)75 State v. Caron, 2011 ME 9 (2011)

76 State v. Irving, 2003 ME 31 (2003)77 State v. Caron, 2011 ME 9 (2011)


M A R Y L A N D




Biomechanics Yes81

*The Frye examination in Maryland also covers the methods and theories behind theexpert’s testimony. Testimony can also be excluded on lack of relevancy or qualification.

78 Blackwell v. Wyeth, 408 Md, 575 (2009)79 Vroom v. Arundel Gas Co., 262 Md. 657 (1971)

80 Charles County Commissioners v. Johnson, 393 Md. 248 (2006)81 Nissan Motor Co. v. Nave, 129 Md. App. 90 (1999)


M A S S A C H U S E T T S


License Required No**83


Biomechanics Yes85

*Massachusetts still acknowledges general acceptance as the most critical factor forjudging expert testimony. Only when an expert’s testimony involves science that lacks generalacceptance is a Daubert hearing necessary. There are five foundational requirements for expert

testimony: helpfulness, qualifications, reliability of facts and data, reliability of process andtheory, and that the process/theory is applied to the facts/data reliably.

**The law does not include testimony as part of the practice of engineering that requiresa license, but there are no cases where an unlicensed engineer was allowed to give testimony.

82 Commonwealth v. Lanigan, 419 Mass. 15 (1994)83 Leibovich v. Antonellis, 410 Mass. 568 (1991)

84 Commonwealth v. Merry, 453 Mass. 653 (2009)85 Commonwealth v. Power, 76 Mass. App. Ct. 398 (2010)


M I C H I G A N

Daubert, Frye or other. Daubert/Frye*86




*Michigan incorporates both the Frye and Daubert admissibility standards into their ruleof evidence. Testimony must pass a Daubert challenge, and if it is novel evidence, the testimony

must be proven to be based on science that has achieved general acceptance in its field.**Biomechanics experts are not allowed to testify about the precise cause of a specific

injury, or, in the case of product liability, the safety of a proposed improvement of a product.

86 Clerc v. Chippewa County War Memorial Hospital, 477 Mich. 1067 (2007)87 People v. Hawthorne, 293 Mich. 15 (1940)

88 People v. Feezel, 486 Mich. 184 (2010)89 Hershey v. Black and Decker, 2008 Mich. App. Lexis 1919


M I N N E S O T A

Daubert, Frye or other. Frye+*90

License Required No**


Biomechanics Yes92

*Along with general acceptance, Minnesota requires that evidence found through theexpert’s use of scientific technique must be grounded in reliable science. Essentially, the

techniques that experts use to investigate an issue at trial must be scientifically valid.**Minnesota law does not include expert testimony as part of the practice of engineering

requiring a license, but the case law seems to indicate almost all expert engineering testimonywas given by registered engineers.93

90 State v. Traylor, 656 N.W.2d 885 (2003)91 W.G.O. ex rel A.W.O. v. Crandall, 640 N.W.2d 344 (2002)92 Malith v. Soller, 2010 Minn. App. Unpub. Lexis 552 (2010)

93 Minn. Statute § 326.02


M I S S I S S I P P I


License Required Yes*95


Biomechanics Yes97

*Experts wishing to provide engineering testimony in Mississippi must obtain a limitedlicense in Mississippi. To qualify for a limited license, the expert needs to be licensed as an

engineer in another jurisdiction.

94 Miss. Transportation Commission v. McLemore, 863 So. 2d 31 (2003)95 Miss. Code Annotated § 73-13-3

96 Denham v. Holmes, 60 So. 3d 773 (2011)97 Hyundai Motor America v. Applewhite, 53 So. 3d 749 (2011)


M I S S O U R I




Biomechanics Yes101

*The Missouri statutes require that the court determine (1) if an expert is qualified, (2) ifthe testimony will help the trier of fact, (3) if the testimony is based on data and methods foundreliable by other experts in the field, and (4) if the court finds the testimony otherwise reliable.

98 State Board of Registration for the Healing Arts v. McDonagh, 123 S.W.3d 146 (2003)99 Yantzi v. Norton, 927 S.W.2d 427 (1996)100 Hayes v. Price, 313 S.W.3d 645 (2010)

101 Eltiste v. Ford Motor Co., 167 S.W.3d 742 (2005)


M O N T A N A




Biomechanics Yes105

*Only novel scientific evidence is subject to a Daubert challenge, but all scientificevidence must be deemed admissible as stated in Montana Rules of Evidence, Rule 702.

Montana’s Rule 702 is equivalent to the Federal Rule 702 which requires that the witness bequalified, the evidence be reliable, and the testimony be relevant to the case.

102 Hulse v. DOJ, Motor Vehicle Division, 1998 MT 108 (1998)103 Hammer v. State, 2007 Mont. Dist. Lexis 131 (2007) affirmed by Montana Supreme Court

104 Perdue v. Gagnon Farms, Inc., 2003 MT 47 (2003)105 Davis v. Church of Jesus Christ of Latter Day Saints, 244 Mont. 61 (1990) Overruled on other grounds


N E B R A S K A




Biomechanics Yes109

106 Schafersman v. Agland Coop., 262 Neb. 215 (2001)107 Northern Natural Gas Company v. Beech Aircraft Corp., 202 Neb. 300 (1979)

108 Ford v. Estate of Clinton, 265 Neb. 285 (2003)109 Shipler v. GMC, 271 Neb. 194 (2006)


N E V A D A




Biomechanics No**113

*The Nevada Rule 702 has three prongs to test admissibility: (1) that the witness is qualified, (2) that their knowledge will assist the trier of fact, and (3) that they only testify to matters within their field of expertise.

The most important factor is whether or not their testimony will assist the jury. To be helpful, expert testimony must be based on reliable methodology. Courts determine reliability by examining if the testimony is (1) within a recognized field of expertise, (2)

testable and has been tested, (3) published and subject to peer review, (4) generally accepted within the scientific community, and (5) based on “particularized facts rather than assumption, conjecture, orgeneralization…” If the testimony is based on an experiment the court is also required to consider (1) if the experiment was controlled by known standards, (2) if the testing conditions were similar to the conditions of the original incident, (3) if there was a known error rate, and (4) if it was developed just for the litigation the expert

was involved in. **Biomechanics testimony was thrown out in a case as unreliable because the party producing the witness failed to provide any evidence that biomechanics was within a recognized field of expertise. Also, the witness failed to offer any scientific basis

for his opinion as he did not investigate the events of the accident or attempt to reconstruct them.

110 Higgs v. State, 222 P.3d 648 (2010)111 Hallmark v. Eldridge, 189 P.3d 646 (2008)

112 Sheriff, Clark County v. Burcham, 198 P.3d 326 (2008)113 Hallmark v. Eldridge, 189 P.3d 646 (2008)


N E W H A M P S H I R E




Biomechanics Yes117

*A Daubert hearing is only necessary in cases where the evidence is based on sciencethat is not “taken for granted”.

114 Baker Valley Lumber v. Ingersoll-Rand Co., 148 N.H. 609 (2002)115 Marcotte v. Peirce Construction Co., 111 N.H. 226 (1971)

116 Mclaughlin v. Fisher Engineering, 150 N.H. 195 (2003)117 Vautour v. Body Masters Sports Industries, 147 N.H. 150 (2001)


N E W J E R S E Y




Biomechanics Yes121

*New Jersey Rule 702 has three requirements: that the testimony is reliable, helpful tothe trier of fact, and that the witness is qualified. Reliability can be established through general

acceptance or use of the testimony in other judicial decisions.

118 Hisenaj v. Kuehner, 194 NJ 6 (2008)119 Alliance for Disabled in Action, Inc., v. Continental, 371 NJ Super. 398 (2004)

120 Campione v. Soden, 150 NJ 163 (1997)121 Hisenaj v. Kuehner, 194 NJ 6 (2008)


N E W M E X I C O




Biomechanics Yes125

122 Lee v. Martinez, 96 P.3d 291 (2004)123 Baerwald v. Flores, 122 NM 679 (1996)

124 Harrison v. ICX, 98 NM 247 (1982)125 Baerwald v. Flores, 122 NM 679 (1996)


N E W Y O R K




Biomechanics Yes129

126 Parker v. Mobil Oil Corporation, 2006 Slip Op 7391 (2006)127 Caprara v. Chrysler Corporation, 52 NY 2d 114 (1981)

128 Soto v. NY City Transit Authority, 6 NY3d 487 (2006)129 Mathis v. NY Health Club, Inc., 288 AD2d 56 (2001)


N O R T H C A R O L I N A




Biomechanics Yes133

*The North Carolina Rule 702 requires expert testimony to be (1) reliable, (2) given by aqualified witness, and (3) relevant to the issue at trial.

130 Howerton v. Arai Helmet, Ltd., 358 NC 440 (2004)131 Howerton v. Arai Helmet, Ltd., 358 NC 440 (2004)

132 NC Gen Stat. 8C-1, Rule 702133 Floyd v. McGill, 156 NC App. 29 (2003)


N O R T H D A K O T A




Biomechanics **

*North Dakota only requires that expert testimony be helpful to the trier of fact andpresented by a qualified witness. There are no specific requirements for qualification, and North

Dakota encourages a very liberal admissibility policy.**There is no case law on the admissibility of biomechanics, but kinematics evidence has

been allowed by North Dakota courts.137

134 State v. Hernandez, 2005 ND 214 (2005)135 Endresen v. Scheels Hardware and Sports Shop, 1997 ND 38 (1997)

136 Wolf v. Estate of Seright, 1997 ND 240 (1997)137 Usry v. Theusch, 521 NW 2d 918 (1994)


O H I O




Biomechanics Yes141

138 Terry v. Caputo, 115 Ohio St. 3d 351 (2007)139 Metropolitan Life Insurance Company v. Tomchik, 134 Ohio App. 3d 765 (1999)

140 Lanham v. Wilson, 1991 Ohio App. Lexis 3820 (1991)141 Lee v. Mendel, 1999 Ohio App. Lexis 3892 (1999)


O K L A H O M A




Biomechanics Yes145

142 Christian v. Gray, 2003 OK 10 (2003)143 Howlett v. Mayo’s Inc., 186 Okla. 651 (1940)144 Snyder v. Dominguez, 2008 OK 53 (2008)

145 Nash v. GMC, 2007 OK Civ. App. 11 (2007)


O R E G O N

Daubert, Frye or other. Rules of evidence+Daubert+*146

License Required Yes**147


Biomechanics Yes149

*The Oregon Supreme Court identified 17 factors that courts can use to judge thereliability of scientific evidence:

146 Jennings v. Baxter Healthcare Corporation, 331 Ore 285 (2000)147 Oregon Revised Statutes §672.005

148 Dyer v. R.E. Christiansen Trucking, 318 Ore 391 (1994)149 Hayes v. Huard, 108 Ore. App. 289 (1991)

1. General acceptance2. Expert’s qualifications3. The use which has been made of the technique4. Rate of error5. The existence of supporting literature6. The novelty of the technique7. The extent to which the technique relies on the subjective interpretation of the expert8. The existence of standards governing the expert’s methodology

9. Presence of safeguards in the expert’s methodology10. Analogy to other scientific techniques whose results are admissible11. Acceptance among other experts in the field12. The nature and breadth of the inference adduced13. The clarity and simplicity with which the technique can be described and explained14. The extent to which the basic data are verifiable by the court and jury15. The availability of other experts to test and evaluate the technique16. The probative significance of the evidence in the case17. The care with which the technique was employed

**To testify, an expert needs to obtain a temporary Oregon engineering license.


P E N N S Y LV A N I A




Biomechanics Yes153

150 Grady v. Frito-Lay, Inc., 576 Pa. 546 (2003)151 Kuisis v. Baldwin-Lima-Hamilton Corp., 457 Pa. 321 (1974)

152 McManamon v. Washko, 2006 Pa. Super 245 (2006)153 Raskin v. Ford Motor Company, 2003 Pa. Super 441 (2003)


R H O D E I S L A N D




Biomechanics *

*There is no case law on biomechanics in Rhode Island.

154 DiPetrillo v. Dow Chemical Company, 729 A.2d 677 (1999)155 Owens v. Payless Cashways, 670 A.2d 1240 (1996)

156 Frias v. Jurczyk, 633 A.2d 679 (1993)


S O U T H C A R O L I N A




Biomechanics Yes160

*To be admissible in South Carolina, expert testimony must be (1) beyond the knowledgeof the average juror, (2) the expert must be qualified, and (3) the testimony must be reliable. To

judge reliability, the courts look at whether the methods used by the experts were (1) peerreviewed, (2) used in applications outside of the present litigation, (3) monitored to ensure

quality results, and (4) consistent with recognized scientific laws and procedures.

157 Watson v. Ford Motor Company, 389 SC 434 (2010)158 Baggerly v. CSX Transportation, Inc., 370 SC 362 (2006)159 Baggerly v. CSX Transportation, Inc., 370 SC 362 (2006)

160 Wilson v. Rivers, 357 SC 447 (2004)


S O U T H D A K O T A




Biomechanics Yes164

161 Supreme Pork, Inc., v. Master Blaster, Inc., 2009 SD 20 (2009162 Mulder v. Tague, 85 SD 544 (1971)

163 Vansteenwyk v. Baumgartner Trees & Landscaping, 2007 SD 36 (2007)164 Maroney v. Aman, 1997 SD 73 (1997)


T E N N E S S E E

Daubert, Frye or other. Rules of Evidence/Daubert*165



Biomechanics Yes168

*Tennessee’s Rules of Evidence govern the admissibility of expert testimony, but thecourts have acknowledged the Daubert factors as helpful guidelines to determine the reliability

of the testimony.

165 McDaniel v. CSX Transportation, 955 SW 2d 257 (1997)166 Martin v. Sizemore, 78 SW 3d 249 (2001)

167 Flax v. Daimler Chrysler Corporation, 272 SW 3d 521 (2008)168 Brown v. Crown Equipment Corporation, 181 SW 3d 268 (2005)


T E X A S


License Required Yes170


Biomechanics Yes172

169 E.I. du Pont de Nemours & Co. v. Robinson, 923 SW2d 549 (1995)170 Texas Occupations Code 1001.003

171 TXI Transportation Company v. Hughes, 306 SW3d 230 (2010)172 Shipley v. Holt Texas, Ltd., 2010 Tex. App. LEXIS 3773 (2010)


U T A H




Biomechanics Yes176

*Utah does not require evidence to have gained general acceptance to be deemedadmissible, however, if evidence has attained general acceptance then it is almost alwaysadmissible. Utah does require that expert testimony be based on science with “inherent

reliability” which means that the underlying scientific principles and methods must be reliableand the derived evidence must be helpful to the trier of fact.

173 Phillips ex rel. Utah State Department of Social Services v. Jackson, 615 P.2d 1228 (1980)174 Crafts v. Hansen, 667 P 2d 1068 (1983)

175 Ryan v. Gold Cross Services, 903 P 2d (1995)176 SBD v. State (State ex rel. ZD), 2006 UT 54 (2006)


V E R M O N T




Biomechanics *

*To date, there is no case law on the admissibility of biomechanics testimony in Vermont.

177 USGen New England, Inc., v. Town of Rockingham, 2004 VT 90 (2004)178 South Burlington School District v. Calcagni-Frazier-Zajchowski Architects, Inc., 138 VT 33 (1980)

179 Smith v. Gainer, 153 VT 442 (1990)


V I R G I N I A



Accident Reconstruction Yes**182

Biomechanics Yes***183

*Virginia has its own state test called the Spencer Standard. The court must “make athreshold finding of fact with respect to the reliability of the scientific method offered, unless it

is of a kind so familiar and accepted as to require no foundation to establish the fundamentalreliability of the system, such as fingerprint analysis.”

**Accident reconstruction testimony is rarely admissible in Virginia. The speed of thevehicles in the accident specifically cannot be testified to in Virginia.

***Biomechanics engineers are not allowed to testify to injury causation. An expert musthave a medical doctor’s license to diagnose and discuss the cause of specific injury.

180 Spencer v. Commonwealth, 240 Va. 78 (1990)181 Va. Code Annotated §54.1-400

182 Brown v. Corbin, 244 Va. 528 (1992)183 Hollingsworth v. Norfolk Southern Railway Company, 279 Va. 360 (2010)


W A S H I N G T O N




Biomechanics Yes187

184 Medcalf v. Department of Licensing, 133 Wn.2d 290 (1997)185 Channel v. Mills, 77 Wn. App. 268 (1995)

186 Keller v. City of Spokane, 146 Wn. 2d 237 (2002)187 Ma’Ele v. Arrington, 111 Wn. App. 557 (2002)


W E S T V I R G I N I A




Biomechanics Yes191

188 Wilt v. Buracker, 191 W. Va. 39 (1993)189 Gentry v. Mangum, 195 W. Va. 512 (1995)

190 Estep v. Mike Ferrell Ford Lincoln-Mercury, Inc., 223 W. Va. 209 (2008)191 Estep v. Mike Ferrell Ford Lincoln-Mercury, Inc., 223 W. Va. 209 (2008)


W I S C O N S I N




Biomechanics Yes195

*Evidence in Wisconsin is admissible if (1) it is relevant, (2) the witness is qualified, and(3) the evidence will assist the trier of fact. Reliability of the evidence is not a factor in

determining its admissibility; instead, reliability goes to weight.

192 Rico v. Riva, 2003 Wi. App. 182 (2003)193 Wisconsin Statute §443.01

194 Franz v. Brennan, 150 Wis. 2d 1 (1989)195 Gaertner v. Holcka, 219 Wis. 2d 436 (1998)


W Y O M I N G


License Required No*197



*There is no license requirement, but in matters dealing with product failure or liability,experts are required typically to be very familiar with the specific brand and model of product at

issue. Witnesses must also be qualified in every area in which they plan to give testimony.**There is a case where biomechanical evidence is allowed, but there are no cases in

Wyoming in which a biomechanical expert has given testimony.

196 Bunting v. Jamieson, 984 P. 2d 467 (1999)197 Herman v. Speed King Manufacturing Company, 675 P. 2d 1271 (1984)

198 Werner Enterprises v. Brophy, 2009 WY 132 (2009)199 Hurley v. PDQ Transport, Inc., 6 P 3d 134 (2000)


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