Lohmeier v. Hammer – 12/12/2006

December 19, 2006

Arizona Court of Appeals Division One Holds That Trial Court Did Not Abuse Its Discretion In Admitting The Expert Testimony, Without a Frye Hearing, of a Biomechanical Engineer To Opine That Defendant Did Not Cause Plaintiff’s Physical Injury, And Invites The Arizona Supreme Court to “Reconsider Log

Lohmeier v. Hammer (12/12/06): Division One Holds That Trial Court Did Not Abuse Its Discretion In Admitting The Expert Testimony, Without a Frye Hearing, of a Biomechanical Engineer To Opine That Defendant Did Not Cause Plaintiff’s Physical Injury, And Invites The Arizona Supreme Court to “Reconsider Logerquist”

Plaintiffs William and Barbara Lohmeier appealed a jury verdict in favor of Defendant Juanita Hammer on their claims arising from a motor vehicle accident in which Hammer admitted rear-ending the Lohmeiers but disputed causation and damages. Mr. Lohmeier alleged that the accident caused injuries to his lumber and cervical spine, as well as his shoulder, and that he was more susceptible to injury due to preexisting medical conditions. At trial, over the Lohmeiers’ objection, Hammer presented the expert testimony of Dr. Joseph Peles, a biomechanical engineer, who opined that the forces involved in the collision were not sufficient to have caused Mr. Lohmeier’s injuries. In response, the Lohmeiers presented the testimony of Dr. Immerman, a licensed chiropractic physician, who criticized the small sample groups of the studies cited by Dr. Peles as well as the absence of any biomechanical studies involving subjects with preexisting conditions similar to Mr. Lohmeier.

The jury returned a verdict in favor of Hammer, and awarded no damages to the Lohmeiers. The trial court awarded most of Hammer’s expert’s fees to Hammer, who had submitted an offer of judgment the Lohmeiers had rejected. The Lohmeiers filed a motion for a new trial, which the court denied.

The Lohmeiers appealed several evidentiary issues, all of which were affirmed, but the court spent the bulk of its analysis on whether the trial court erred by allowing a biomechanical engineer to testify as to the causation of Lohmeier’s physical injuries.

The Court analyzed the admission of Dr. Peles’ testimony, which it ultimately affirmed, at length. The Lohmeiers argued on appeal that the trial court erred in admitting his expert testimony because Dr. Peles was not qualified to testify on medical causation, because his testimony was admitting without being subject to the analysis set forth in Frye v. U.S., 293 U.S. 1013 (D.C. Cir. 1923), and because Dr. Peles never examined Mr. Lehrmeier.

Applying abuse of discretion to the trial court’s decision to admit Dr. Peles’ testimony, the Court first concluded that under Arizona law, Dr. Peles was qualified to give expert testimony, as “it is not necessary that an expert witness be a medical doctor in order to offer testimony regarding causation of physical injuries so long as the trial court has properly determined that the expert has specialized knowledge that will assist the jury in its resolution of that issue” as required by Arizona Rule of Evidence 702. The court noted this is a fact-specific question, and that in this case, Dr. Peles was retained to testify about his construction of the accident, his calculations of the forces involved in it, and his opinion as to whether such forces could cause injury to the human body. Dr. Peles has a bachelor’s degree in mechanical engineering from Vanderbilt, a master’s degree in bioengineering from Arizona State, and a Ph.D. from Arizona State in bioengineering with a specialty in injury biomechanics. He also had extensive personal experience in conducting accident reconstruction analysis and as a Ph.D. student, had performed research regarding spinal injuries, had conducted mechanical testing on cadaver spines to study how different loading conditions result in injury and had developed computer models of the human spine to study injury production and stability. Under these circumstances, his knowledge was significantly greater than that of an ordinary juror and would be helpful to the jury in determining causation.

The Court, albeit somewhat reluctantly, concluded further that pursuant to Logerquist v. Mcvey, 196 Ariz. 470, 1 P.3d 113 (2000), the trial court did not err in refusing to subject Dr. Peles’ testimony to a Frye examination. The court reviewed the Frye, Logerquist, and “Daubert trilogy” extensively, and stated that under Logerquist, in which the Supreme Court interpreted Arizona Rules of evidence 702 and 703 and rejected Daubert, the Frye test is not always applicable. Rather, a Frye examination is “applicable when an expert witness reaches a conclusion by deduction from the application of novel scientific principles, formulae, or procedures developed by others. It is inapplicable when a witness reaches a conclusion by inductive reasoning based on his or her own experience, observation, or research. In the latter case, the validity of the premise is tested by interrogation of the witness; in the former case, it is tested by inquiring into general acceptance.” (emphasis added) (citing Logerquist, Ariz. 196 Ariz. at 490, ¶ 62, 1 P.3d at 133).

Here, Dr. Peles’ reconstruction and biomechanical analysis of the accident was based on a “combination” of deductive reasoning based on accepted physics principles and inductive reasoning from his own personal research and calculation. However, when the trial court denied the motion in limine, it did not did so without any substantive explanation. The Court reasoned that “the trial court might have denied the Lohmeier’s request for a Frye hearing either because it (1) found that the scientific theories Dr. Peles relied upon were not novel, or because it (2) found that his testimony stemmed from ‘inductive reasoning’ based on his own ‘experience, observation, or research.’” In the absence of an explanation, the Court gave the trial court the benefit of the doubt and affirmed the admission of Dr. Peles’ testimony because doing so based on the latter reasoning is consistent with Logerquist. (The Court cited non-Arizona cases to conclude that the trial court would have erred if it had determined, sua sponte, that Dr. Peles’ testimony was based on scientific principles that were “generally accepted,” not novel, and therefore not subject to Frye, particularly in light of Dr. Immerman’s testimony criticizing the principles).

Judge Weisberg authored the opinion; Judge Orozco and Judge Norris concurred.