In a recent case in Fall River, Massachusetts, Trial Judge Welch held that the victim of personal injury could not exclude the defendant’s civil engineer expert testimony as to the methodology to determine the speed of the vehicles involved in a collision. The appellate court held that Judge Welch’s decision to allow the testimony was “within the discretion of the trial judge and will be reversed only where it constitutes an abuse of discretion or error of law.” This is notwithstanding the fact that the methodology was questionable, the defense “expert” had not viewed the vehicles, and his training was in civil engineering and had only taken a class in accident reconstruction. Further, the court found that even though the “treatise” with the critical equations was not put into evidence at trial.
This case is significant in reminding us that the insurance industry, through their trial lawyers, will try multiple strategies to gain advantage. It worked here. They convinced the Court that their expert was indeed an expert; then the expert convinced the jury that based on equations or “science” what his opinion of the speed of the impact was.
There was another issue on appeal in this case regarding the jury instruction. The trial judge ruled against the plaintiff’s request for a specific instruction with respect to weather. Again, the Appeals Court, while disliking the way the trial judge gave the instruction, refused to appeal the case giving the trial judge wide latitude to give instructions to the jury. See Furtado v. Levrault, Docket Number 09-ADMS-40027.