IN THE CIRCUIT COURT OF THE
NINTH JUDICIAL CIRCUIT, IN AND
FOR ORANGE COUNTY. FLORIDA
JOANNA T. PEACHER,
Plaintiff, CASE NO.: Cl-96-6122 DIVISION: 34
v.
MILDRED SHACHTMAN COHN.
Defendant. /
ORDER GRANTING PLAINTIFF'S FRYE MOTION
THIS CAUSE came before the Court for hearing on September 19, 2003, for
consideration of Plaintiff's Frye Motion. This Court, having reviewed the motion. Defendant's
response, the testimony presented, argument of counsel, the court file, all documents submitted
by the parties, and being otherwise fully advised herein,
HEREBY FINDS AS FOLLOWS:
The parties were involved in a collision in which the front of Defendant's vehicle
collided with the rear of Plaintiffs vehicle. Plaintiff was subsequently diagnosed with a
herniated lumbar disc and this litigation ensued. Plaintiff seeks to exclude the testimony of
Defendant's expert, Thomas M. McNish, M.D., M.P.H., concerning his injury causation analysis
on the basis that it does not satisfy the test for admissibility under Frye v. United States, 293 F.
1013 (D.C. Cir. 1923). Based upon his analysis, Dr. McNish opines the collision did not cause
the injury to Plaintiff's lower back.
Dr. McNish presents a very impressive curriculum vitae. He holds a bachelor's of
science degree in engineering, a master's degree in public health, and a medical degree. He was
trained as a pilot in the United States Air Force Academy, and he continued to be employed with
the military in the medical field. He has also received education in accident reconstruction and
crash survival investigation. Presently, Dr. McNish is employed as a consultant and researcher
with Biodynamic Research Corporation (BRC), which performs testing and research in the field
of biomechanics, and studies how forces affect the body in terms of injuries.
Dr. McNish is board certified in family practice and aerospace medicine. Although he
received some medical training in specialty areas as part of his training in family practice, which
included orthopedics, neurology, and radiology, he has never trained or practiced exclusively in
those specialty areas during his career.
Subsequent to the adoption of the evidence code, the United States Supreme Court
adopted a liberal test for determining the admissibility of expert testimony in Daubert v. Merrell
Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). Florida courts, however, continue to adhere to
the higher standard of reliability set forth under the earlier test for admissibility under Frye.
Brim v. State, 695 So. 2d 268, 271 (Fla. 1997).
Section 90.702, Florida Statutes (2002) requires that in order for a court to allow expert
opinion testimony regarding a scientific principle, the judge must determine whether it will assist
the jury in understanding the evidence or determine a fact. When it is new or novel, the judge
must decide whether such testimony is based on a scientific principle that is '"sufficiently
established to have gained general acceptance in the particular field in which it belongs.'"
Ramirez v. State, 651 So. 2d 1164, 1167 (Fla. 1995) (citation omitted). This is commonly
referred to as the "Frye test." Id. The burden is on the proponent of the evidence to prove
admissibility under Frye by a preponderance of the evidence. Ramirez, 651 So. 2d at 1168.
Next, Section 90.702, Florida Statutes (2002) requires the judge to determine whether the
witness is qualified as an expert to present testimony on the issue. Ramirez, 651 So. 2d at 1167.
If the judge allows the expert testimony into evidence, it is up to the jury to accept or reject the
expert's opinion. Id.
Defendant first contends there is nothing new or novel about the injury causation
analysis; therefore, Frye does not apply. Defendant maintains Dr. McNish's testimony is merely
his "pure opinion;" therefore, it is not required to meet the Frye test.
Dr. McNish did not physically examine the parties' vehicles or the Plaintiff in this case.
Thus, in order to begin his injury causation analysis, he reviewed various forms of information
from the incident, including testimony of the participants, photographs of the vehicles, repair
estimates of the vehicles, and Plaintiffs medical records. Dr. McNish also utilized available
databases as to the dimensions and weights of the vehicles involved. His methodology begins
with determining how the parties' vehicles moved in terms of direction and speed as the result of
the collision for purposes of establishing the accelerations that created the forces applied to the
vehicle's occupant. This involves a mathematical calculation of the change in velocity of the
vehicle, which is referred to as the "deltaV," and it is based upon Newton's laws of motion.
Next, Dr. McNish considers the occupant kinematics, which refers to the movement of
the occupant as a result of the changes in the motion of the vehicle. Basically, this determines
what effect the deltaV forces had on the occupant and ascertains what type offerees or stressors
were applied to different parts of the occupant's body. Based upon the tolerance levels for a
specific part of the body. Dr. McNish determines the injury potential. This involves the use of
biomechanics, which requires the understanding of the magnitude, direction, and rate of stress
and resulting strain of human tissue. He also utilizes publications regarding standardized tests
performed on other vehicles involving similar forces with human occupants, cadavers, and
anthropomorphic dummies, under controlled situations and then comparing the results of those
tests to the event being analyzed.
Finally, Dr. McNish compares the injury potential to the occupant's medical records and
clinical course to determine whether the injury matches the mechanisms that occurred during the
event. If he is unable to determine that the mechanisms are related to the injury, his opinion is
that the injury was not caused by the forces in the accident. For example. Dr. McNish utilizes
his knowledge of the studies in which controlled testing was performed that used a low deltaV,
which caused no injuries to the human subjects, and comparing the similarly low deltaV he
determined in the instant case to opine that forces involved in the collision did not cause
Plaintiff's lumbar injury.
Although this Court will acknowledge that the scientific principles in the fields of
engineering, biomechanics, and medicine utilized by Dr. McNish are not new or novel, this
Court is unable to conclude that the injury causation analysis, which incorporates the principles
in those scientific fields, is not a new or novel scientific principle. Defendant maintains the
analysis became formalized shortly after World War II and is commonly utilized in aeronautics
and product safety design. While that may be true, this Court finds that the use of that
methodology to study and determine the causes of physical injuries in a given case, based upon a
comparison to injuries sustained to a limited group of dissimilar human occupants subjected to
collisions involving unidentical forces in a controlled environment, is a new and novel science.
This is particularly true where the scientific calculations involved were derived in significant part
by proportions determined from photographs of the vehicle. Dr. McNish's opinion and
conclusion is based upon a combination of many different scientific principles and is not based
solely upon personal experience or training. Accordingly, his scientific methodology is required
to meet the Frye test. See United States Sugar Corp. v. Henson, 787 So. 2d 3, 15-16 (Fla. 1st
DCA 2000) (courts rarely take judicial notice of a scientific technique or methodology and it is
only where its evidential force emerges from the twilight zone that courts may take judicial
notice of its uncontroverted validity).
Defendant claims there is no Florida case law applying or mandating the application of
the Frye test to the fields of accident reconstruction, biomechanical engineering, occupant
kinematics, or injury causation analysis. Defendant relies on several cases to support the
argument that Florida courts frequently accept experts in those fields when they are qualified to
give their opinions on these subjects. See e.g., Nash v. General Motors Corp., 734 So. 2d 437
(Fla. 3d DCA 1999) (kinematics expert who held dual degrees in engineering and medicine was
competent to testify that occupant's head did not strike metal post near windshield but instead
projected out window and struck hood of other car for purposes of injury causation based upon
his investigation and understanding of kinematics); Nathanson v. Houss, 717 So. 2d 114 (Fla. 4th
DCA 1998) (Trial court abused its discretion in finding doctor with extensive experience in
medicine and biophysics was not qualified to render opinion of whether slow-speed, rear-end
collision caused plaintiffs herniated disk. Doctor's experience included work with the Air Force
and NASA studies involving human tolerance and effects of acceleration on body, work in
highway traffic and safety, and authored books on crashworthiness of vehicles and crash
injuries.); Houghton v. Bond, 680 So. 2d 514 (Fla. 1st DCA 1996) (testimony of doctor qualified
as expert in accident reconstruction, occupant kinematics, and biomechanics allowed to testify
regarding forces acting upon occupant without seatbelt as compared to occupant with seatbelt
using figures produced in study to determine such forces; witness was allowed to explain basis
for opinion).
Conversely, the Fifth District Court of Appeal has held it was not an abuse of discretion
for the trial court to determine an experienced accident reconstructionist was not qualified to
testify regarding his opinion that the parties' collision did not generate sufficient force to cause
physical injury to the plaintiff, based merely on his review of photographs of the vehicle,
depositions, and the accident report. See Carrier v. Ramsey, 714 So. 2d 657 (Fla. 5fh DCA
1998). None of the foregoing cases, however, involved a challenge under Frye.
A Frye examination is necessary only when the reliability of the evidence is challenged
by the party against whom it is offered. Hadden v. State, 690 So. 2d 573, 580 (Fla. 1997).
"Although section 90.702 governs the general admissibility of expert testimony, the statute is
'silent as to any requirement that there be general acceptance of a newly developed scientific
technique or principle. ...'... Thus, an objection under section 90.702 does not raise or
preserve an objection under Frye." Henson, 787 So. 2d at 12. While the cases cited by
Defendant appear compelling, none involve a challenge under Frye, which is the issue presently
before this Court. See Kaelbel Wholesale, Inc. v. Soderstrom, 785 So. 2d 539, 549 (Fla. 4'h DCA
2001) (simply because a court qualifies a witness as an expert and that witness testifies to the
methodology and opinion does not support a conclusion such methodology and opinion is
accepted in the scientific field; such proposition is completely contrary to Frye).
Initially, Defendant was unable to present this Court with authority that has examined
Dr. McNish's injury causation analysis under Frye, however, supplemental authority from
another jurisdiction was later presented, in which a trial court approved similar testimony under a
Frye challenge concerning injury causation analysis offered by Dr. Harding, who is a colleague
of Dr. McNish at BRC. See Delahunt v. Kenderdine, No. 02-00379 (N.Y. Sup. Ct. 2003). In
Delahunt, the court found Dr. Harding's injury causation analysis to be reliable within the
scientific community based upon his testimony that the use of damage estimates and photographs
are similar to those records relied upon by experts in his field as trustworthy and accurate. Id.
In Florida, the Frye test is utilized to guarantee the reliability of new or novel scientific
evidence. Brim, 695 So. 2d at 271. "A bald assertion by the expert that his deduction is
premised upon well-recognized scientific principles is inadequate to establish its admissibility if
the witness's application of these principles is untested and lacks indicia of acceptability."
Ramirez v. State, 810 So. 2d 836, 844 (Fla. 2001). In determining general acceptance within the
scientific community, a court "must consider the quality, as well as quantity, of the evidence
supporting or opposing a new scientific technique." Brim, 695 So. 2d at 272. In doing so, the
court may consider other sources presented, including scientific publications and judicial
opinions, and "decide for itself whether the theory in issue has been 'sufficiently tested and
accepted by the relevant scientific community.'" Ramirez, 810 So. 2d at 844. Because it appears
the New York court found the injury causation analysis to be reliable and accepted in the
scientific community based solely upon Dr. Harding's assertion to that effect, this Court does not
find Delahunt persuasive.
In the instant case, Defendant presented this Court with the videotaped testimony of
Dr. McNish, his affidavit, and various articles published in the scientific community addressing
human responses involving occupant kinematic response to low speed impacts, and analysis
regarding low back pain, injury, and stresses and strains. Defendant also provided descriptions
of academic curriculums involving accident research, mechanical engineering, and aerospace
medicine. An affidavit from Charles A. Berry, M.D., M.P.H. and the deposition of
Michael D. Freeman, D.C., was also presented. Plaintiff presented the live testimony of Charles
Nuckolls, PhD, a professor of mechanical engineering.
Based upon the testimony of Dr. McNish and Dr. Nuckolls, this Court finds their dispute
pertains in large part to their conflicting opinions and conclusions concerning the application of
the injury causation analysis, which is of no concern to this Court when considering a challenge
under Frye. See Berry v. CSX Transp., Inc., 709 So. 2d 552, 567 (Fla. 1st DCA 1998) ("Frye
allows opposite opinion testimony from experts relying upon the same generally accepted
scientific principles and methodologies."). Rather, this Court is charged with the responsibility
of determining whether the expert opinion at issue is based on scientific methods, processes, and
data that is generally accepted within the relevant scientific community.
Dr. McNish explained his injury causation analysis involves an engineering analysis of
the event; a biomechanical portion of the analysis, which simply applies the physical sciences to
a body; and then the medical analysis of the clinical course of the individual. He stated they are
then combined to determine how the forces experienced during the event relate to the injury.
Thus, his injury causation analysis is unique because it meshes the fields of engineering and its
related sciences with the field of medicine. Accordingly, there is more than one relevant
scientific community involved in this case; specifically, the engineering community and the
medical community.
Dr. McNish testified that the controlled studies upon which he relied for comparison to
his results of the injury causation analysis in the instant case were not epidemiological studies.
Epidemiology is a well-established branch of science and medicine, and the reliability of expert
testimony that is based upon epidemiological studies is generally a fit subject for judicial notice.
Berry, 709 So. 2d at 566-67. "The widespread acceptance of epidemiology is based in large part
on the belief that the general techniques are valid." Id. at 567.
The studies used by Dr. McNish in his methodology are descriptive studies that are
relevant and accepted in the community of scientists and engineers who analyze how injuries
relate to different types of stressors and forces and potential injury-causing events, and how to
design systems to try to minimize injury to humans. He testified that the scientific area involved
uses these studies to determine vehicle safety regulations and designs. No evidence or testimony
was presented, however, that the medical community relies on these studies, or the injury
causation analysis that utilizes them in its methodology, for use in determining the cause of
injury to the lower back, particularly when there was no physical examination performed by the
expert giving the opinion. Accordingly, this Court is not satisfied by the preponderance of the
evidence that Dr. McNish's opinion is based upon accepted scientific principles and
methodology in the medical community for purposes of rendering a medical opinion as to the
cause or etiology of a physical condition, injury, or disease.
Moreover, "while courts will go a long way in admitting expert testimony deduced from
a well-recognized scientific principle or discovery, the thing from which the deduction was made
must be sufficiently established to have gained general acceptance in the particular field in
which it belongs." Frye, 293 F. at 1014 (emphasis added). In the instant case, Dr. Nuckolls
testified that the use of photographs of the vehicles to determine the deltaV in ascertaining the
forces that were applied is not generally accepted in the scientific community. Although Dr.
Nuckolls was unable to cite on cross-examination any scientific articles that state the use of
photographs is inappropriate for this purpose; likewise, this Court finds nothing in the literature
provided by Defendant that used photographs of the vehicles to calculate the deltaV for purposes
of ascertaining the forces applied to the vehicles and its occupants in the injury causation
analysis.
Based upon the photographs and his own simulated test using similar vehicle parts,
Dr. McNish used proportions rather than exact measurements of the vehicle's pistons in
calculating the deltaV in this case. Further, this Court finds Dr. Berry's affidavit unpersuasive
because although he approves the injury causation analysis and its methodology, he fails to state
that his approval includes the use of photographs and proportions as an acceptable method to
calculate the deltaV in the analysis. Accordingly, this Court is not satisfied by the
preponderance of the evidence that this part of the methodology used by Dr. McNish, from
which he ascertained the deltaV, is sufficiently established to have gained general acceptance in
the relevant scientific community of engineers and biomechanics.
Based upon the foregoing. Defendant fails to meet her burden of proving the injury
causation analysis upon which Dr. McNish bases his opinion has gained general acceptance in
the medical community, or that the methodology utilized in calculating the deltaV is sufficiently
established to have gained acceptance in the field of engineering and its related sciences. The
only Florida case directly on point is in accord. See Etienne v. Staples, No. 01-2000-CA-2695
(Fla. 8fh Cir.Ct. Sept. 12, 2003) (injury causation analysis failed to meet Frye test where plaintiff
failed to show it was acceptable in scientific community to calculate deltaV based merely on
examination of photographs, repair estimates, and crash studies, and failed to show injury
causation analysis was generally accepted in medical community).
It is, therefore, ORDERED and ADJUDGED that Plaintiffs Frye Motion is
GRANTED and Dr. McNish's testimony regarding his injury causation analysis shall not be
allowed.
DONE and ORDERED in Chambers at Orlando, Orange County, Florida, on this 25
day of September, 2003.
/s/ DONALD E. GRINCEWICZ
Donald E. Grincewicz
Circuit Court Judge
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing Order was furnished by U.S.
Mail to Thomas P. Hockman, Esquire, 2670 West Fairbanks Ave., Winter Park, Florida 32789;
and Philip Turner King, Esquire, and Jeffrey W. Kirsheman, Esquire, P.O. Box 712, Orlando,
Florida 32802, on this 26 day of September, 2003.
/s/ DARLENE MAHALERIS
Judicial Assistant