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DONALD L. SOLONIKA and
BONNIE 0, SOLONIKA
Plaintiffs
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION. LAW
v.
NO,: 9B.6641 199B
MONICA YETTER
Defendant
JURY TRIAL DEMANDED
PRAECIPE
TO THE PROTHONOTARY:
Please issue a Rule upon the Plaintiff to file a Complaint within twenty
(20) days or suffer a judgment of non pros.
Respectfully submitted,
,
NEALO N,',~' GO, VER i'
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By: /~, .', ' I' \.
Matttiew R. Gover, Esq.
Atty. 1.0. #47593
301 Market St. - 9th FI.
PO Box B65
Harrisburg, PA 17108-0865
(717) 232-9900
,
!ll.l!.E
TO THE PLAINTIFF:
A Rule is hereby issued upon you to file a Complaint within twenty (20)
days of service of this Rule or suffer a judgment of non pros.
DATED: (.:<- N yr
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Nealon
~:,~GoYer
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ATTORNEYS AT LAW
\01 \IARKITHRI!T''''''IIOOR
1'0. hOX K'"
IfAfUU\Mlk(i.I'A PlUM
1717j 2J2 '1'100
"AX. Ii'Ji'I 2J6.1I119
October 4, 1999
J^~II \ (, SIAl ON, III
MArllll \1/ M. r,OVF.M.
IHUAS W. N,RRY
0\\'10'. "UT!)
(IIIU\HII'IIIH I ~Sf(,1l1
Snoke Family Practice
1800 Carlisle Road
Camp Hill, PA 17011
In Re: Donald L. Solonika
Social Security #: 165-38-0946
Dear Records Custodian:
You are being served with a Notice and Subpoena for you to bring the records referred
to in the Subpoena for examination by the undersigned at the time and place indicated.
In serving upon you the Notice and Subpoena, I am proceeding under applicable
Pennsylvania Rules of Civil Procedure. A copy of the Subpoena and a Notice of Intent
to Service the Subpoena was served upon the attorney for the Plaintiff more than 20
days ago, No objections to the Subpoena have been filed.
If you would prefer, you may in advance of the deposition date send us photocopies of
the records. With such photocopies, please include your statement for the cost of
preparing the same, which we will promptly pay. In addition, you must complete the
enclosed Certificate of Compliance. Upon receipt of such photocopies and the
completed Certificate of Compliance by this office, your appearance will be canceled
and the Subpoena withdrawn. .
Your cooperation in this matter is appreciated. Should there be any questions, please
telephone the undersigned at the above number.
Sincerely,
( r~cu-~ ()~
Barbara Baker, Paralegal
NEALON & GOVER
BJBfbjb
Enclosures
DONALD L. SOLONIKA and
BONNIE O. SOLONIKA
Plaintiffs
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION. LAW
v,
NO,: 98.6641 1998
MONICA YETTER
Defendant
JURY TRIAL DEMANDED
NOTICE OF INTENT TO SERVE A SUBPOENA
TO PRODUCE DOCUMENTS AND THINGS FOR
DISCOVERY PURSUANT TO RULE 4009.21
Defendant, Monica Yetter, intends to serve Subpoenas identical to the
ones that are attached to this Notice. You have twenty (20) days from the date listed
below in which to file of record and serve upon the undersigned an objection to the
Subpoenas, If no objection is made the Subpoenas may be served,
Date: 9/13/99
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Ma thew R. Gover, Esquire'
Attorney for the Defendant
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MAR 1 3 2000 ty:)
OONALO L. SOLONIKA and
BONNIE O. SOLONIKA
COlllrr OF COMMON PLEAS
ClIMBERLAND COUNTY, PA
Plaintiffs
CIVIL AcrrON - LAW
v.
No, 98 - 6641
MONICA YEITER,
Defendant
ORDE~
AND NOW, this day of ,2000, upon consideration
of the attached Motion it is hereby ORDERED and DECREED Ihat the Plainti ffs' Motion in
Limine is GRANTED.
1.
~
DONALD L. SOLONIKA and
BONNIE 0, SOLONIKA
COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PA
Plaintiffs
CIVIL ACfION - LAW
v,
No. 98.6641
MONICA YillTER,
Defendant
PLAINTIFFS' MOTION IN LIMINE TO THE TESTIMONY OF LAWRENCE E,
THIBAULT. Sc. D,
1. The Plaintiffs are the moving party.
2, The Defendant Monica Yetter has listed Lawrence E. Thibault, Sc, D. as a
witness in regard to the above. matter. Lawrence E, Thibault. Sc.D. is a biomechanical
engineer,
3. Lawrence E. Thibault, Sc.D, prepared a report dated December 17, 1999 in
which he opined "(bIased upon the scientific analysis outline above the medical findings
regardinl! the structures in Mr, Solonika's lumbar spine and lower extremities cannot be
attributed to the collision of November 15. 1996, " (emphasis added)
4, Lawrence E. Thibault, Sc.D, is not a physician in the Commonwealth of
Pennsylvania or any other jurisdiction,
5, The appellate courts have clearly indicated that it requires a medical doctor to
opine causation of the nature that Lawrence E. Thibault, Sc, D, is opining to in this matter.
6. The Plaintiffs' Counsel has recently learned that in the case of Donna M. Nye
and Matthew Dennis Nye, by his Mother and Natural Guardian, Donna M, Nye v, Karen
y, Williams, No, 4410 S 1997 in the Court of Common Please of Dauphin County,
Pennsylvania that the Honorable Lawrence F. Clark, Jr. granted the Plaintiffs' Motion in
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D:ccmber 17, 1999
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Matthcw R. Go\'Cr
Nealon & Gover
301 Market Strcet, 9'h Floor
P.O. Box 865
Hurrisburg, P A 171 08
He: Solonik:l )', Yelter
Exponent Case No, PL12188
Cumberland County No. 98-66411998
Dear !\lr. Govcr:
Pleasc accept this letter as a biomechanics report and an evaluation of the materials associated
with the above-captioned case. In this regard, the following item have been reviewed:
1. Deposition transcript of Donald. L. Solonika
2. Deposition transcript of Monica Yetter
3. Allstate Investigation Materials
4. Repair estimate for 1987 Ford Econoline 150 Van
5. Color photocopies of photographs of subject Ford Thunderbird and Ford Van
6. Interrogatories propounded by defendant to be answered by plaint;Jf
7. Recorded Statement of Donald Solonika taken January 31, 1997
8. Recorded Statement of Monica Yetter taken November 26, 1996
9. Medical records of Donald Solonika
Accident Information (according to witness testimony and statements)
The accident in question occurred on November 25, 1996, at approximately 6: I 0 pm at the
intersection of a driveway exiting the Hampden Center parking lot and Carlisle Pike in
Mechanicsburg, Pennsylvania. At that time and location, Donald Solonika was operating a 1993
Ford Thunderbird, and Monica Yetter was driving a 1987 Ford Econoline EI50 Van behind
Mr. Solonika's vehicle. A collision occurred between the front of the Ford van and the rear of the
Ford Thunderbird, Police reported to the scene, but no accident report was available for review.
Both vehicles were driven from the scene. A repair estimate for the Ford van totaled $322.66.
I'LI;tU Illi'l BIlTO 1:')<) LTRR
M31lhew R. Go.er. Esq.
December 1'1. 1999
R~, Sol..:r.il;1 Y. 'i':\ter
Pa~c :.:
.
Mr. Solonika was 5\ years old nt the time of the subject nccident, \\'ns 70 inches tal1, anc
we;ghed 259 pounds on Mny 22, 1992.
Deposition Testimony and Recorded Stlllements of Donald Solonika
Mr. Solonika testified nt his deposition thnt he wns belted nt the time of the nccident, and his ~on
was in the pnssenger seat. It \\'ns rnining at the time of the nccident, nnd the road was wet. He
wns coming out of HWllpden Center to mnke n right tum onto eastbound Cnrlisle Pike. He
indicnted that his foot wns on the brake, nnd that his car wns angled and stopped at the red light.
Mr. Solonika stated that he "inched up just nlittle bit," stopped, nnd was stnlck in the rear. He
stated thnt upon impact. his vehicle wns pushed four feet. Mr. Solonikn testified that he thought
the damage to the Thunderbird cost $1400 to repair. He.also indicated that the damage to his
vehicle consisted of the dent on the rear tnmk, but that the damage evident in the photographs to
the right rear quarter panel had nothing to do with the subject accident. When referring to the
impact, he stated, "It threw me forward...1 came back and hit [the headrest)." He indicated that
he did not hit any other portion of the vehicle interior. He said he did not feel injured until the
next morning when he could not move his neck. He stated that a few weeks after the accident, his
lower back began hurting. His symptoms also included numbness in his hands that began six
months after the accident and sleeplessness. Mr. Solonika associated his neck and low back
problems and radiating pain and pain in his legs with the accident.
At the time of his deposition, Mr. Solonika was employed at a delivery service. At the time of
the accident, he was on disability leave for a right rotator cuff injury that occurred in May of
1996 when he fell off a ladder from a height of 10 feet. His prior job as a carpenter required
frequent heavy lifting, which he had been doing his whole life. He also had a work related injury
to his back in 1992 as a consequence of operating a jackhammer. He had surgery, but stated that
he was not experiencing any back problems at the time of the subject accident. He also testified
that the subject accident did not aggravate his shoulder.
Deposition and Recorded Statement of Monica Yetter
Ms. Yetter indicated that she was at a complete stop prior to the accident, and thnt the driveway
where the accident occurred went uphill. She testified that Mr, Solonika moved forward to make
a right turn on red, then he stopped abruptly and her vehicle struck the rear of his vehicle. She
indicated that the right side of her front bumper struck the left side of Mr. Solonika's trunk.
Vehicle Damage
Examination of the color photocopies of photographs of the Solonika vehicle reveal damage to
the left side of the vertical portion of the trunk and the left tail1ight, with slight misalignment of
the trunk lid, The photographs of the Yetter vehicle show slight damage to the right front comer
of the vehicle. The repair estimate for the Ford van included replacement of the front bumper and
repairs to the right fender.
EX"
M3tthew R. Gover, Esq,
Ce.ember 17, 1999
Re: Solo","" " Ye:w
Paze J
lliomcchanieal Analysis
Thc rear-end collision of November 25,1996, was evaluated from a biomechanical cncinccril',c
- -
IJcrspective in order to determine whether a causal relationship could reasonably exist betwec:1
the collision and Mr. Solonika's medical findings. This evaluation first required a scientific
assessment of the collision, which was based upon an analysis of the materials provided
regarding this specific incident (listed on the first pagc of this report), engineering knowledge
and understanding of mechanical deformation of vehicle structures, and vehicle-specific datu.
This specific collision was then examined in the context of what has been learned from crash
tests (involving volunteers, instrumented dummies, and cadavers), from biomechanical studies of
human tissue mechanics and tolerance to forces, and from biomechanical models of the body,
A biomechanical analysis of the subject incident depends, in part, on the diagnoses and findings
documented by clinicians in the medical record. While clinicians are trained to examine,
diagnose and treat injury, the biomechanical engineer seeks to determine the mechanism of a
particular injury through application of formal training in the life sciences, advanced
mathematics, physics and engineering, The study of the biomechanics of human injury is a
widely recognized, well-established branch of science dedicated to elucidating the mechanisms
of human injury and detennining quantitatively the thresholds at which injury to the human body
occurs. Other than proposed injury mechanisms, biomechanical analysis of the subject incident
embraces the diagnosis and treatment aspects of the medical record without challenge,
Qualitative or quantitative assessments of injury mechanism can be objectively analyzed using
principles of injury biomechanics,
The medical records of Mr. Solonika were reviewed and condensed in order to conduct a
biomechanical evaluation of the subject accident (see attaclunent), According to his deposition
testimony, recorded statement, and interrogatory responses. Mr. Solonika attributes his
complaints of neck, back, and leg pain to the subject accident.
In the absence of intrusion into the occupant compartment, the change in speed of the struck
vehicle, referred to as the delta-V, is an effective indicator of accident severity for the occupants
of the vehicle, Based on an analysis of the accident, including the photographs of the vehicles
and the statements of the drivers, the van bumper overrode that of the Thunderbird. The available
data relevant to the Ford E-series van indicates that bumper damage would occur at delta-Vs
between four and five miles per hour during centered frontal impacts. For the same delta-V in an
offset collision (such as the subject accident), one would expect to see greater damage to the
van's bumper as compared to a centered frontal impact. Therefore, the nature of this collision.
the minor damage to the van, and the available crash test data relevant to the van indicate that it
experienced a delta-V of less than five miles per hour during the subject accident. Given the
relative weights of the two vehicles and the principle of conservation of momentum. this
corresponds to a delta- V of approximately five miles per hour or less for the Ford Thunderbird.
This delta-Vis consistent with the minor crush damage to the trunk area of the Thunderbird.
Physics dictates that during a low speed rear-end collision such as the SUbject. accident, inertial =J
forces cause the occupant to move initially rearward relative to the vehicle interior, with the torso
supported by the seatback, The occupant then retums to the original position, but at a speed
EX'
Rc: S~loni;"a .... '.'.:ttcr
MoUhew R. Go,.r, Esq.
Oe.ember 17, : 9~9
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slo:::uiti~3ntlv lower than th~ initial rearwarJ motion. This is contrary 10 Mr, Solonika's te~t:mony
th;t h~ was'initially thrO\\l1 forward as a result of Ihe impact. Sin~e the Thunderbird may have
bee a angled with respect to the van, Mr. solonika may have also mOl'ed slightly laterally rdr,tive
to the vehicl.: interior. However, this lateral motion was insufficient to result in contact with any
interior structures, consistent with Mr, Solonika's testimony that he did 110t contact any portion
of the vehicle interior other than the headrest. The Abbreviated Injlll')' Scale (AIS) is a
standardized system for characterizing injury type and severity. With this system, injuries arc
scaled from 0 (no injury) to 6 (maximum, typically fatal). The forces associated with this low
speed rear-end collision have been associated with, at most, transiel1t neck strain (an AlS- I
injury).
Exponent Failure Analysis Associates (Exponent) has conducted a series of motor vehicle crash
tests to estimate the forces acting on occupants in collisions similar to those experienced by
Solonika during the subject accident, and to demonstrale occupant kinematics. These crash tests
used instnlmented vehicles and instrumented Hybrid III anthropomorphic crash test dummies to
measure the forces acting on occupants and high speed video (0 document occupant motion, The
Exponent crash tests hal'e demonstrated that the loads acting on the spine during these impacts
arc substantially lower than the thresholds for damage to the bones, ligaments and discs of the
spine, as reported in the biomechanics literature. In fact, the axial loads measured in the lumbar
region during the Exponent crash tests arc substantially lower than axial loads that act on the
lumbar spine during ordinary bending and litiing activities. This accident provided no
mechanism to permanently injure the structures ofMr, Solonika's spine,
Biomechanical studies have shown that a single application of compressive force of sufficient
magnitude to acutely herniate a spinal disc also produces concomitant acute damage to the
adjacent bony structures. Within physiologically rcasonable ranges of motion of the spine, disc
herniations without concomitant bony damage have been produced experimentally only through
repetitive compressive loading (thousands of cycles). It is noteworthy that Mr. Solonika's
medical records contain no evidence of acute damage to the bony structures of his spine,
Examples of daily activities that produce repetitive loading of the spine include walking,
bending, lifting, and standing from a seated position, It is noteworthy that Mr. Solonika's pre-
accident employment involved frequent heavy lifting, an activity that would place dramatically
higher compressive loads on the spine than the subject accident, This accident provided no
mechanism to injure Mr. Solonika's lower back, or to exacerbate his pre-existing spinal
pathologies,
--
Results from volunteer testing, conducted to study low-speed rear-end collisions, have been
consistent with and supportive of the biomechanical results from dummy testing and injury
tolerance studies. A review of published research studies shows that at least 15 research
institutions from 7 different countries have conducted a total in excess of six hundred volunteer
test exposures to low-speed rear-end collisions. These exposures were comparable to and, in
most cases, greater in severity than that of the subject accident, While the vast majority of
volunteers had no complaints after testing, a few volunteers complained of, at most, transient
muscle soreness in the neck andlor transient headache that typically resolved within a few days.
There is no evidence to suggest that neck range-of-motion was ever exceeded in any of the
:EX-
M.nhew R, Gover, Elq,
. Docember 17, 1999
Re: Solnni~. v, Yener
rJ~C S
.
voluntcer studies. None ofthc voluntecrs cxperienced bony or li~anl';ntous injury, or neural
compromise.
Conclusions
Based upon thc scientific analysis outlined above, the medical findings regarding the strueturcs
in Mr. Solonika's lumbar spinc and lowcr cxtrcmitics cannot be attributed to thc collisi"n of
Novembcr 15, 1996, Thc opinions in this report, based upon the matcrials reviewed and the
cdueation, experience, and knowlcdge of the author, are presented with a reasonable degree of
biomechanical engineering and scientific certainty. As more information becomes available, this
report may be amended or altered.
Yours truly, ),
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The Plaintiff, at the start of trial, filed a Motion in Limine to exclude the
testimony of Dr. Thibault, The crux of the Motion appears to be that since Dr. Thibault is
not a medical doctor, he is not qualified to express an opinion on the issue of causation
in the instant case, This Memorandum is filed in opposition to the Motion in Limine,
II. DISCUSSION
Despite the arguments of the Plaintiff, it is submitted that there is no hard
and fast rule in Pennsylvania that only a medical doctor may give an opinion as to
causation, Rather, it is submitted that the question is whether the proffered expert has
sufficient education and/or experience that qualifies him as an expert,
Recently, the Supreme Court had occasion to determine whether a lay
coroner could give an expert opinion as to time of death, In Miller v. Brass Rail Tavern,
lnG, 541 Pa, 474, 664 A.2d 525 (1995), a Dram Shop action was brought following the
death of Ronald A. Miller, Jr. in an automobile accident. The estate had offered the
purported expert testimony of the Clinton County Coroner, Dean Wetzler as to the time
of death of Miller. Wetzler was not a medical doctor but had served as a mortician for 27
years and as a coroner for 15 years. At the conclusion of the plaintiff's case, the trial
Court entered judgment against the plaintiff, The Court determined that there had been
sufficient evidence presented to establish that Miller had been served while visibly
intoxicated, but because there had been no evidence as to when the accident had
occurred, there was no evidence to establish causation between the serving of the
alcohol and the accident. Plaintiff had attempted to cure this defect through the
testimony of the coroner as to the time of death, which would have been within one hour
of Miller leaving the bar against which recovery was sought. The Trial Court ruled that a
2
lay coroner would not be competent to give an opinion as to the time of death. The Trial
Court stated:
As an aside to that ruling, Ihe Court at this time, even if it were to
permit him to testify as an expert, has severe reservations at this
point that he would be legally competent to provide the Court with an
estimate of the time of death, At this point the Court believes that
that has to be the province of someone with a medical degree. No
one has provided the Court with any authority to the contrary, So, I
realize I am getting ahead of myself because I have ruled that he
cannot testify as an expert, So, that would be independent of
whether he would be competent to give the opinion,
Id, at 482, 664 A,2d at 529. The Trial Court also ruled that the Coroner could not testify
because he had not been identified as an expert witness in the course of discovery. On
appeal, the Superior Court affirmed. After granting allocatur, the Supreme Court
reversed. In addressing the competency issue, the Supreme Court stated:
We disagree, and, in so concluding, find Appellant's argument and
the well reasoned dissenting opinion of Judge Wieand persuasive. It
is well established in this Commonwealth that the standard for
qualification of an expert witness is a liberal one, The test to be
applied when qualifying an expert witness is whether the witness has
any reasonable pretension to specialized knowledge on the subject
under investigation. If he does, he may testify and the weight to be
given to such testimony is for the trier of fact to determine. It is also
well established that a witness may be qualified to render an expert
opinion based on training and experience. Formal education on the
subject matter of the testimony is not required, nor is it necessary
that an expert be a licensed medical practitioner to testify with
respect to organic matters, It is not a necessary prerequisite that the
expert be possessed of all of the knowledge in a given field, only that
he possess more knowledge than is otherwise within the ordinary
range of training, knowledge, intelligence or experience, (purpose of
allowing testimony of qualified expert is to assist trier of fact with
information which the ordinary layman does not possess).
Id, at 480-481, 664 A,2d at 528 (citations omitted) (emphasis in original). In addressing
the specific qualifications of the Coroner, the Court stated:
3
As such, before Appellant even had the opportunity to qualify
Coroner Wetzler as an expert, the trial judge determined that as a
matter of law, a non-medical witness would not be qualified to render
an opinion on the time of death, The Superior Court upheld the trial
court's resolution of this issue. We, on the other hand, believe that a
mortician of twenty seven years, duly licensed by this
Commonwealth, who has also served in the dual capacity as county
coroner for fifteen years, may have specialized knowledge regarding
the time of death which would not otherwise be known to a lay
individual. Consequently, we hold that the refusal to qualify Coroner
Wetzler as an expert witness based solely upon his lack of formal
medical training was an abuse of discretion,
Id. at 483, 664 A,2d 529.
Similarly, the Commonwealth Court had occasion to consider the
qualifications of a toxicologist in Commonwealth v. Moss, 146 Pa. Commw. 330, 605
A,2d 1279 (1992). In Moss, a motorist had filed an appeal of a one-year suspension of
her driver's license following a refusal to submit to chemical testing pursuant ot 75
Pa.C.S,A, !l1547. Prior to being stopped by the police, Moss had received an injection
of Vistaril to treat a migraine headache, Moss was already taking Demerol and
apparently Vistaril can enhance the effect of Demerol. At the license suspension
hearing, Moss offered the testimony of Dr. Richard Saferstein, a forensic scientist and
toxicologist. Dr, Saferstein was not a medical doctor. After permitting the testimony of
Dr, Saferstein the Trial Court ruled that the license suspension was not proper. On
appeal, the Commonwealth Court reversed the ultimate decision of the Trial Court, but
affirmed the ruling as to Dr. Saferstein's competency, In summarizing the position of the
Commonwealth, the Court stated:
The Department argues that only a medical or osteopathic doctor
may testify as to the causal nexus between a motorist's condition
and his or her alleged inability to make a knowing and conscious
refusal to submit to chemical testing. Specifically, the Department
contends that a toxicologist would only be capable of testifying as to
4
the general, generic effects of certain drugs on humans, not the
actual effect of a particular drug on a named individual at the time of
refusal.
Id, at 336. 605 A,2d 1281,
The Court rejected the argument and found Dr. Saferstein to be
competent, In assessing the qualifications of the Doctor the Court cited in a footnote a
comment of the trial court as to witness' qualifications:
The trial court noted that a toxicologist is trained to
ascertain the effects of certain substances on the human body, They
are in the field of toxicology for the purpose of human beings and not
because of dogs or cats or gold fish or what have you. And if they
were in the field of toxiGology and had a V.M,D. degree, a
veterinarian medicine doctor, I would perhaps question the testimony
presented by Dr. Saferstein. However, he is definitely a forensic
toxicologist....
Id, fn 9.
I venture to say that there are many, many mediGal personnel... that
do not have the credentials that Dr. Saferstein has as far as the field
of toxicology is concerned,
The United States District Court for the Eastern District of Pennsylvania
permitted two non-medical doctors to testify as to the cause of a plaintiffs injuries, In
Dorsell v. American Isuzu Motors, Inc., 805 F Sup, 1212 (ED. Pa, 1992), a products
liability case was brought against American Isuzu Motors following the rollover of a
Isuzu Trooper. In support of the claim, the plaintiff called a bio-mechanical expert as
well as a safety engineer. Over objection, both experts were allowed to provide
testimony as to the cause of the plaintiff's injuries. A true and correct copy of the
Dorsell decision is attached hereto and incorporated herein by reference as Exhibit "B,"
5
The Superior Court of New Jersey has considered the qualifications of Dr.
Thibault. In Barbour v, Laural Coffee Company. Inc" plaintiff claimed to have sustained
a cervical disc injury requiring surgery as a result of a relatively minor impact. The
defense called Dr. Thibault as a witness who opined that the injury could not have been
caused by the accident. The Appellate Court affirmed. While the court indicated that
Dr. Thibault's testimony may have went beyond the scope of his qualifications, the court
noted that Dr. Thibault was "an award winning doctor of mechanical engineering with a
specialty in bio-mechanics." The court went onto state:
We need not quote in its entirety Dr. Thibault's testimony.
Dr. Thibault will surely qualify to testify as an expert
regarding whether a low-impact, such as the one in this
case, could cause a severe neck injury such as the
herniated disc that plaintiff suffered, In fact, he may have
been more qualified to testify concerning that subject than
the medial doctors who were involved with the plaintiff's care
and treatment after the accident.
A true and correct copy of the Barbour decision is attached hereto and incorporated
herein by reference as Exhibit "C." Thus, the Superior Court of New Jersey has gone
on record as saying that Dr. Thibault is perhaps more qualified than medical personnel
to testify as to the cause of injury. Moreover, the court should be more aware as to the
nature and extent of the field of bio-mechanics. Dr. Thibault will testify that the bio-
mechanical student has as much academic training as a medical doctor. After college,
the first two years of education for a medical student is virtually the same as the first two
years of post-graduate education of a bio-mechanical student, both students obtain
general anatomy and physiology courses, Thereafter, the medical student goes into
clinical training while the bio-mechanical student goes into lab work to determine the
mechanism of injury,
6
.
LAWRENCE E. THI8AUL T
Curriculum Vltao
Octobor 1998
ADDRESS:
Home:
2406 Filler's Walk
Philadelphia, Pennsylvania 19103
Department of Neurosurgery
Division of Bioengineering
Allegheny University of the Health Sciences
Broad and Vine Streets, MS 455
Philadelphia, Pennsylvania 19102 - 1192
)
Office:
..
PHONE:
Home:
Office:
E-Mail:
215-569-3849 Fax: 215-636-0679
215-762-4006 Fax: 215-762-3132
Ithibault@exponenl.com
SOCIAL SECURITY NO:
188.34-9128
DA_TE OF BIRTH:
September 23,1943, Philadelphia, PA
EDUCATION:
B,S., Drexel University, 1967
M.S., George Washington University
Sc.D., George Washington University, 1979
Thesis - The Effects of Hydrodynamically Induced
Shear Stress on Transmural Transport Processes in the
Artery Wall - Advisors, S. Yuan and J. Feir
M.A" (Honorary) University of Pennsylvania, 1984
~.
,to
"\
SCHOLARSHIPS:
Department of Defense Scholarship, U.S. Navy,
Undergraduate Engineering Education, Drexel University
National Institutes of Health Fellowship, Graduate Education
and Research in Bioengineering, George Washington
University, in a consortium with Georgetown University,
The Catholic Universityof America, and NIH
HONORS and AWARDS:
Berti! Aidman Award, International Research Council on the
Biomechanics of Impact. contributions to impact trauma
research in head injury ( macro to micro levels)
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J.awrClIl'C E. Thihault
School of Engineering and Applied Science
Philadelphia, Pennsylvania
Professor of Bioengineering in Neurosurgery and
Orthopaedic Surgery
School of Medicine
University of Pennsylvania
Philadelphia, Pennsylvania
Associate Director, Head Injury Center
Department of Neurosurgery
School of Medicine
University of Pennsylvania
Executive Director, Laboratories for Injury
Research and Prevention
Department of Bioengineering
University of Pennsylvania
Professor in Neurosurgery and
Director, Division of Bioengineering
Department of Neurosurgery
Allegheny University of the Health Sciences
1982-1995
1990-1995
1995-1998
1998-
Professor
School of Biomedical Engineering, Science and Health
Systems
Drexel University
ADMINISTRATIVE RESPONSIBILITIES:
1980-1981
Secretary, Bioengineering Department Faculty,
University of Pennsylvania
Search Committee, Chairman of Bioengineering
University of Pennsylvania
Security Committee, University of Pennsylvania
1982
1983-1986
1984-1985
1990-1991
Personnel Committee, SEAS, University of Pennsylvania
Undergraduate Curriculum Chairman, Bioengineering
University of Pennsylvania
Department Chairman, Bioengineering
University of Pennsylvania
Search Committee, Chairman, Orthopaedic Surgery
School of Medicine, University of Pennsylvania
1991-1994
1992-1994
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1995 Board of Directors, AAAM
1.:1\1 rellee E. Thih:1IJ1t
Automated Digitization of High Speed Film of Physical Model
Experiments, Wayne State University and General Motors Corp.
1986, Principal Investigator $ 25,000
Biomechanics of Neural and Neurovascular Injury
Centers for Disease Control 1987 -1990
Principal Investigator
RESEARCH EXPERIENCE AND DIRECTION:
Experimental Head Injury Laboratory - NINCDS - NIH,
1980 - 1982. Co-Principal Investigator
Determination of the Constitutive Properties of Brain
and Experimental Stress Analysis in Head Injury,
Biomechanics Department, U.S. D,O.T., NHTSA, 1982-1984,
Principal Investigator
Computerized Analysis of the Biomechanical Correlations
of Head Injury, Biomechanics Department, U.S.D.O.T., NHTSA
1982-1984, Co-Principal Investigator
Experimental Head Injury Laboratory - NINDCS - NIH
1982-1985, Co-Principal Investigator
Physical Model Experiments in Head Injury Biomechanics,
Biomechanics Department, U.S.D.O.T., NHTSA, 1985
Principal Investigator
Effects of Mechanical Stress on Matrix Synthesis in Endothelial
Cell Culture, NHLBI - NIH .
1985-1990, Co-Principal Investigator
Experimental Head Injury Laboratory, NINCDS - NIH
1985-1988, Co-Principal Investigator
Torsional Driving Point Impedance Characterization
of the Head, Ohio State University and NHTSA
1985, Principal Investigator
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Biomechanics of Human Injury (Program Project)
Centers for Disease Control, 1990-1993,
Principal Investigator.
The Head Injury Center
National Institutes of Health, NINCDS, 1990-1993
Co-Principal Investigator.
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$ 340,000
$ 200,000
$ 200,000
$ 800,000
$ 110,000
$ 750,000
$ 1,300,000
$ 37,000
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$ 780,000
$1,100,000
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$ 1 ,700,000
J.:I\Hl'lIel' E. Thihaull
Biophysical Journal
Journal of Biomechanical Engineering
Journal of Biomechanics
Journal of Neural Trauma
Journal of Neurosurgery
Journal of Orthopaedic Research
Journal of Dental Research
Society of Automotive Engineers
Association for the Advancement of Automotive Medicine
International Research Conference on the Biokinetics of Impact
Advisory Group for Aerospace Research and Development
TEACHING EXPERIENCE:
Introduction to Bioengineering (Lectures in Injury
Biomechanics)
Intermediate Biomechanics IOrioinator of Course!
Bioengineering Laboratory I IOrioinator of Course!
Momentum, Energy and Mass Transport
Applied Physical Chemistry (Recitation and Laboratory)
Advanced Transport Phenomena
Bioengineering Design for Chemical Engineering Minors
IOrioinator of Course!
Mechanical, Chemical, Materials and Electrical Design Recitation
Senior Design Thesis
Continuum Mechanics (Lecture in Injury Biomechanics)
Biofluids " (Low Reynolds Number Hydrodynamics) IOrioinator
of Course!
Special Topics in Biomechanics and Trauma IOrioinator of Course!
Biomechanics of Brain and Spinal Cord Injury IOrioinator of
Course)
FOUR COURSE SEQUENCE IN BIOMECHANICS: ( Developed for the PhD Program
at Allegheny University of the Health Sciences)
B,E.100
B.E. 200/203
B.E. 209
B.E. 350
B.E, 352
B.E.451
B.E. 462
B.E.462-465
B.E.495
B.E.510
B.E. 633
B.E. 700
B.E.899
A. Cellular and Molecular Biomechanics
B. Tissue Mechanics
C. Organ Biomechanics
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D. Whole Body Biomechanics
Supervised 90 students in B.E. 100 projects
Supervised 47 Senior Design Theses
Dissertation Committee Member:
28 students in Bioengineering
5 students in Chemical Engineering
DISSERTATIONS I THESES - SUPERVISED:
Bianchi. Annette. M.S. Thesis, University of Pennsylvania, "Physical Model Studies of
Acute Subdural Hematoma," 1983.
Hess. Karen Luke. M.S. Thesis, University of Pennsylvania, "Analytical Model for Acute
Subdural Hematoma," 1985.
Maraulies. Susan Sheps, Ph.D. Dissertation, University of Pennsylvania, "Biomechanics
ofTraumatic Coma in the Primate," 1987.
Green. Catherine, M.S. Thesis, University of Pennsylvania, "Response of Isolated
Vascular Tissue to High Strain Rate Extension," 1987.
Galbraith. James, Ph.D. Dissertation, University of Pennsylvania, "Effects of Stretch on
the Electrophysiology of the Giant Axon of the Squid," 1987.
Blum. Richard. M.S. Thesis, University of Pennsylvania, "Mechanical Properties of the
Baboon Brain," 1986. M.D., University of Pennsylvania, 1988.
Hunter. Catherine, Ph.D. Dissertation, University of Pennsylvania, "Effects of
Mechanical Deformation on the Conductance of a Lipid Bi!ayer Membrane," 1988.
Winston. Flaura, Ph.D. Dissertation, University of Pennsylvania, "The Modulation of
Intracellular Free Calcium Concentration by Biaxial Extensional Strains of Bovine
Pulmonary Artery Endothelial Cells," 1989. M.D., University of Pennsylvania 1991.
Barbee. Kenneth, Ph.D. Dissertation, University of Pennsylvania, "Mechanism for
Vascular Smooth Muscle Cell Response to Mechanical Stimuli," 1991.
Boock. Robert. Ph.D. Dissertation, University of Pennsylvania, "Vascular Response to
Mechanical Deformation," 1991.
Meanev. David. Ph.D. Dissertation, University of Pennsylvania, "Biomechanics of Acute
Subdural Hematoma in the Primate and Human," 1991.
Landsman. Adam. Ph.D. Dissertation, University of Pennsylvania, "Response of Aging
Vascular Cells to Mechanical Stimulation," 1992.
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Saatman, Kathrvn, Ph.D. Dissertation, University of Pennsylvania, "Response of an
Isolated Myelinated Nerve Fiber as a Model for Neural Trauma:' 1993.
Qmgill, Robert, Ph.D. Dissertation, University of Pennsylvania, "A Cell Culture Model for
Neural Injury ," 1994
Billiar, Kristin, M.S., An In-Vitro Model for Mechanically Induced Vasospasm, University
of Pennsylvania, 1994.
Arbooasl. Kristv. M.S., The Constitutive Properties of the Human Brain Stem,
University of Pennsylvania, 1995.
Bi!ston. Lvnne. Ph.D. Dissertation, University of Pennsylvania, "The Biomechanics of
Transient Spinal Cord Trauma," 1995
LaPlaca. Michelle, Ph.D. Dissertation, University of Pennsylvania, " Hydrodynamically
Induced Shear Stress Effects on Neuronal Cells in Culture- A Model for neural Trauma",
1996
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Goldstein. Daniel, Ph.D. Dissertation, University of Pennsylvania, "The Biomechanics of
Cervical Spine Injury", 1997.
Blackman. Brett. Ph.D. Dissertation, "The Response of Endothelial Cells to Variable
Strain Rate Loading-The Viscoelastic Behavior of the Cell Membranes", 1998
Mazuchowski. Edward, Ph.D. Dissertation, University of Pennsylvania, " Constitutive
Properties of the Human Cervical Spinal Cord", expected, 1999
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VISITING PROFESSORSHIPS:
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Georgia Institute ofTechnology
Oxford University
University of Pittsburgh
University of Virginia
Massachusetts Institute of Technology
Harvard University
Ohio State University
University of Maryland
Pennsylvania State University
Lehigh University
LECTURES BY INVITATION:
Thibault, L.E. "In-Vitro Models for Neural Injury", Naval Medical Research Institute,
Bethesda, Maryland, 1980
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Thibault, L.E. .Cardiopulmonary Bypass Device Standards: An Engineering
Perspective," American Academy of Cardiovascular Perfusion, C.C. Reed, ed., San
Francisco. California, Vol. 2,1981.
Thibault, L.E. "Biomechanics of Head Injury and Isolated Tissue Studies,"
Biomechanics Department, National Highwa'6Traffic Safety Administration, U.S.
Department ofTransportation, Washington, .C" 1(J81 ,
Thibault, L.E. "Biomechanics and Head Injury in Automotive Safety," Association
Peugeot Renault, Paris, France, 1982.
Thibault, L,E. "Dynamic Physical Model Experiments in Head Injury Research,"
Biomechanics Department, National Highway Traffic Safety Administration, U.S.
Department of Transportation, Washington, D.C., 1982.
Thibault, L.E. "Head Injury Research - An Update on the Biomechanical Aspects," U.S.
Army Aeromedical Research Laboratory, Fort Rucker, Alabama, 1983.
Thibault, L.E. "Head Injury Modeling," Winter Conference on Brain Research,
Keystone, Colorado, 1983.
Thibault, L.E. "Biomechanics and Scaling in Head Injury," General Motors, Biomedical
Sciences Department, R & D Center, Warren, Michigan, 1983.
Thibault, L.E. "Mi!d Head Injury - Tank Gunner Performance," U.S. Army, Human
Factors Engineering Meeting, New Orleans, Louisi?na, 1984.
Thibault, L.E. "Head Injury Tolerance Criteria," Transport Canada, Ottawa, Ontario,
1985.
Thibault, L.E. "Biomechanics of Diffuse Brain Injuries," Experimental Safety Vehicle
Conference, Oxford, England, 1985.
Thibault, L.E. "Physical and Analytical Models in Neural Trauma," General Motors,
Biomedical Sciences Dept., R & D Center, Warren, Michigan, 1986.
Thibault, L.E. "Isolated Tissue Models for Trauma Research," NAil, Chicago, Illinois,
1986.
Thibault, L.E. "Biomechanics and Brain Injury," Medical College of Virginia, Richmond,
Virginia, 1987.
Thibault, L.E. "Mechanically Induced Vasospasm in Brain Injury," National Institute of
Health, Bethesda, Maryland, 1987.
Thibault, L.E, "Mechanics and Cell Injury," Cardiovascular Research Center, Osaka,
Japan, 1987.
Thibault, L.E. "Physical Models and Finite Element Models in Head Injury Research,"
Georgia Institute ofTechnology, Atlanta, Georgia, 1988.
Thibault, L.E. "Ion Transport in Cell Injury," University of Pittsburgh, Pittsburgh,
Pennsylvania, 1988.
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1.:11\ rl"ll'e I':, Thih:1II1l
Thibault, L.E, "Biomechanics of Neural and Neurovascular InJury," Center for Disease
Control, Atlanta, Georgia, 1988.
Thibault, L.E. "Vascular Trauma", National Institutes of Health. Bethesda, Maryland,
1988.
Thibault, L.E. "Biomcchonics of Traumatic Coma," Joint Chids Sponsored
Biomechanics Meeting, Naval Biodynamics Laboratory, New Orleans, Louisiana, 1988.
Thibault, L.E. "Human Head Injury Tolerance Criteria," University of Maryland, 1989
Thibault, L.E. "Cellular Injury", Division of Injury Control and Epidemiology, CDC,
Atlanta, Georgia, 1989.
Thibault, L.E. "A Study of Improved Head Injury Tolerance Criteria", NHTSA,
Washington, D.C., 1989.
Thibault, L.E. "Wound Healing- Cellular Response to Mechanical Stress", NIH,
Bethesda, Maryland, 1990
Thibault, L.E. "Analytical Models for Head Injury", Ohio State University, Columbus,
Ohio, 1990
Thibault, L.E. "Calcium Transport in Injured Neural Tissue", Institut National De
Recherche Sur Les Transports et Leur Securite, ~yon, France, 1990.
Thibault, L.E. "CNS Trauma: The Biomechanics of Brain Injury", University of Virginia,
1990.
Thibault, L.E. "Head Injury in the Automotive Environment", World Congress on
Emergency and Disaster Medicine, Montreal, 1991
Thibault, L.E. "Biomechanics of Human Injury", AAAM, 1991
Thibault, L.E. "Stress Coupled Transport", Harvard University, 1993
Thibault, L.E. "Cell Membrane Permeability as a Function of Mechanical Strain", M.I.T.,
1993
Thibault, L.E. "Biomechanics of CNS Trauma", AAAM, 1993
Thibault, L.E. " Advances in Neurotrauma Research ", College of Physicians, Phila.,
PA 1995
Thibault, L.E. " Mechanoporation of Cell Membranes", NIH, Bethesda, 1996
Thibault, L.E. " Mild Traumatic Brain Injury", State Farm Insurance, Princeton, NJ,
1997
Thibault, L.E. " Head Injury and Head Protection", Kawasaki, Phoenix, AR, 1997
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Thibault, L.E. .. Biomechanics and Forensic Pathology", Research Committee,
Pennsylvania Department of Public Health, Philadelphia, 1998
Thibault, L,E. .. Pediatric Head Injury ", St. Christopher's Hospital For Children,
Phi!adelphia, 1998
PATENTS:
Hemoglobin-Oxygen Equilibrium Curve Analyzer, Patent Number 4,209,300
Apparatus for Mechanically Stimulating Cells, Patent Number 4,851,354
Safety Propeller, Patent Number (Pending)
Automated Eye Exam - The Pupi!ometer, Patent Number (Pending)
Computer Based Test for Cerebral Concussion, Patent Number (Pending)
Improved Football Helmet, Patent Number (Pending)
BOOKS I CHAPTERS IN BOOKS I EDITORSHIPS:
Thibault, L.E., ed. Proceedinos of the 35th Annual Conference on Enoineerino in
Medicine and Bioloov, Vol. 24, Philadelphia, PA, AEMB, Bethesda, MD, 1982.
Thibault, L.E., ed. "Advances in Bioengineering." , American Societv of Mechanical
Enoineers, New York, NY, 1982.
Gennarelli, T.A. and Thibault, L.E., "Biomechanics of Head Injury," Neurosuroerv, R.H.
Wilkens and S. Rengachary, eds., McGraw-Hili, 1983; Chapter 178.
Gennarelli, T.A. and Thibault, L.E" "Biological Models of Head Injury," Central Nervous
Svstem Trauma, NINCDS, J. Polishock and D. Becker, eds., 1985; pp. 392-405,
Chapter 25.
Thibault, L.E. and Gennarelli, T.A., "Biomechanics and Craniocerebral Trauma,"
Central Nervous Svstem Trauma, NINCDS, J. Poulishock, and D. Becker eds., 1985;
pp. 370-390, Chapter 24.
Thibault, L.E. and Gennarelli, T.A., "Biomechanics in CNS Trauma", Central Nervous
Svstem Trauma. NINCDS, 1990.
Thibault, L.E., " Isolated Tissue and Cellular Biomechanics" in " Accidental Injury:
Biomechanics and Prevention", eds. Nahum, A. and Melvin, J., Springer-Verlag, 1993.
Thibault, L.E. and Barbee, K.A. " The Biomechanics of Cellular and Tissue Injury ", in
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" AccidenlallnJury: Biomechanics and Preventron .. in .. Accidental Injury: Biomechanics
and Prevention", 2nd edition. eds. Nahum, A and Melvin, J, Springer-Verlag, in
preparation
Thibault, L.E., Thibault, K., Kurtz, S.. Giddings, V. and Runge, C. .. Pediatric Head
Injury" in .. Accidental Injury: Biomechanics and Prevention" 2nd edition, eds. Nahum,
A. and Melvin, J., Springer-Verlag, in preparation
BIBLIOGRAPHY
Gennarelli, T. A., A. K. Ommaya and L. E. Thibault. "Comparison of Translational and
Rotational Head Motions in Experimental Cerebral ConcLlssion." Stapp. S.A.E. 14:
797-803,1971. .
Gennarelli, T. A., L. E, Thibault and A. K. Ommaya. "Pathophysiologic Response to
Rotational and Translational Acceleration of the Head." Stapp. S.A.E. 15: 296-308,
1972.
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Ommaya, A. K. and L. E. Thibault. "Head and Spinal Injury Tolerance with no Direct
Impact." Biokinetics of Impact., IRCOBI, 2: 311-320, 1973.
Ommaya, A.K., Gennarelli, T.A. and Thibault, L.E., "Traumatic Unconsciousness:
Mechanisms of Injury to the Brain in Violent Shaking of the Head," American
Association of Neuroloaical Suroeons. Los Angeles, CA, 1973.
Ommaya, AX, Gennarelli, T.A. and Thibault, L.E., "Effect of Dynamic Mechanical
Loading of Frog Sciatic Nerve," Societv for Neuroscience. 364, 1974.
Gennarelli, T.A. and Thibault, L.E., "Functional Response of the Central Nervous
System to Controlled Inertial Loading," 27th Annual Conference on Enoineerino in
Medicine and Bioloav. Phi!adelphia, PA, 1974.
Thibault, L.E., Gennarelli, T.A., Tipton, H.W. and Carpenter, D.O., "Physiological
Response of Isolated Nerve Tissue to Dynamic Mechanical Loads," 27th Annual
Conference on Enoineerino in Medicine and Bioloav. Philadelphia, PA, 1974.
Gennarelli, T.A. and Thibault, L.E., "Neural Microtrauma: Functional Effects of
Mechanical Loading on Isolated Neural Tissue," American Association of Neurolooical
Sura eons, Miami, FL, 1975.
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Gennarelli, T,A, Ommaya, AX and Thibault, L.E., "Correlations of Clinical and
Experimental Head Injury," ~on9ress of NeuroloQical SurQeons, AlIanta, GA, 1975.
Lebowitz, EA, Thibault, L.E. and Adelstein, R.S., "Phosphorylation of Cat Myocardial
Myosin and M.Line Protein and Enhancement by Norepinephrine," ~9th Scientific;
Session of the American Heart Association. Miami, FL, 1976.
Berger, R.L., Martin. MA and Thibault, L.E., "An Isoperibol Differential Thermal-pH
Titration Apparatus," 32nd Annual Colorimetrv Conference, Sherbroke, Canada, 1977.
Gennarelli, T.A., L.E. Thibault, Neural Microtrauma, Proc. of Am. Assoc. Neurolog.
Surg., Tvronto, 1977.
Vern, B. A., W. H, Schuette and L. E. Thibault. "Potassium Clearance in the Cortex: A
New Analytical Model." J. Neurophvsiol. 4(5): 1015-1022, 1977.
Devereaux, D.F., Thibault, L.E., Boretos, J. and Brennan, M.F., "Quantitative and
Qualitative Impairment of Wound Healing by Adriamycin," Societv of Surqical Oncoloqv.
San Diego, CA, 1978.
Owens, S.W, Schuette, WH., Bull, J.M., Lees, D." Thibault, L.E. and Wang-Peng. J.,
"The Effect of Thermally-Induced Respiratory Alkalosis on Enthrocyte 2.3 DPG Levels
and Hemoglobin p50 Determinations," 53rd Conqress International Anesthesia
Research Societv, Hollywood, CA, 1979.
Devereaux, D. F., P. A. Thistlethwaite, L. E. Thibault and M. F. Brennan. "Effects of
Tumor Bearing and Protein Depletion on Wound Breaking Strength in the Rat." J. of
SurQ. Res. 27: 233-238, 1979.
Devereaux, D. F., L. E. Thibault, J. Boretos and M. F. Brennan. "The Quantitative and
Qualitative Impairment of Wound Healing by Adriamycin." Cancer. 43(3): 932-938,
1979.
Talbot, T. L., L. E. Thibault, W H. Schuette, R. M. Winslow and H. W Tipton. "Breath
by Breath Gas Analysis During Exercise Stress Testing." Advances in Bioenqineerinq.
ed. M. Wells, pp.21-24, A.S.M.E. New York, 1979.
Thibault, L. E. and D. L. Fry. "Modulation of Evans Blue Dye Uptake in a Canine Aorta
Tissue Preparation By Hydrodynamically-Induced Wall Shear Stress." Advances in
Bioenqineerinq. ed. V. Mow, pp.41-45, A.S.M.E. New York, 1980
Schuette, WH., Thibault, L.E., Talbot, T.L. and Tipon, H.W, "Synchronous Integration:
A Method for Rapid Determination of the Mean Value of Pulsatile Signals," Association
for the Advancement of Medical Instrumentation, San Francisco, CA, 1980.
Talbot, T.L., Thibault, L.E. and Schuette, WH., "A System for Time-Gated, Pulsed-
Doppler Velocity Profile Measurements," Association for the Advancement of Medical
Instrumentation, San Francisco, CA, 1980.
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Thibault, L. E. "The Modulation of Transendothelial Mass Transport by
Hydrodynamically-Induced Wall Shear Stress." The Role of Fluid Mechanics in
Atherosclerosis. ed. R. Nerem, pp. 26-30 National Science Foundation., Houston, 1980.
Lewis, C. A., L. E. Thibault, R. M. Pratt and L, L. Brinkley. "An Improved Culture
System for Secondary Palatal Elevation." In Vitro, 16(6): 453-460, 1980.
Thibault, L. E., W. H. Schuette and D. Lees. "An Instrument to Determine the
Hemoglobin-Oxygen Equilibrium Curve Based on the Calculated Diffusion of Oxygen
Across a Semi-Permeable Membrane." J. Biomed. Eno. 18: 401-406,1980.
Devereaux, D. F., T. J. Triche, B. L. Webber, L. E. Thibault and M. F. Brennan. "A
Study of Adriamycin Reduced Wound Breaking Strength in Rats: An Evaluation by Light
and Electron Microscopy, Induction of Collagen Maturation and Hydroxyproline Assay."
Cancer. 45(4): 964-971,1980.
Lees, D.E., Schuette, w.H., Thibault, LE., Kim, Y.E., Tipton, H.W., and MacNamara,
T.E. "Computerized Determination of the Oxygen Dissociation Curve", Anesthes. 53(3),
Sept., 1980
Thibault, L. E., J. A. Galbraith, C. J. Thompson and T. A. Gennarelli. "The Effects of
High Strain Rate Uniaxial Extension on the Electrophysiology of Isolated Neural
Tissue." Advances in Bioenoineerinq. ed. DViano, pp 19-23, A.S.M.E. New York, 1981.
Thibault, L. E" T. A. Gennarelli and C. J. Thompson. "Experimental Head Injury in the
Primate: Functional Changes in Response to a Variation of the Kinematics." Advances
in Bioenoineerino. ed. D. Viano pp- 50-54, A.S.M.E. New York, 1981
Shamberger, R. C., T. L. Talbot, H. W. Tipton, L. E. Thibault and M. F. Brennan. "The
Effects of Ultrasonic and Thermal Treatment on Wounds." J. of Plastic and Reconstruct.
Surq. 68(6): 860-870,1981.
Shamberger, R. C., P. A. Thistlethwaite, L. E, Thibault, T. L. Talbot and M. F. Brennan.
"Effects of Testosterone Propionate on Wound Healing in Normal and Castrate Rats." ,L
of Surq. Res. 33: 58-68, 1982.
Gennarelli, T. A. and L. E. Thibault. "Biomechanics of Acute Subdural Hematoma." J.
ofTrauma. 22: 680-686,1982. -
Gennarelli, T. A., L. E. Thibault, J. H. Adams, D. I. Graham, C. J. Thompson and R. M.
Marcincin. "Diffuse Axonal Injury and Traumatic Coma in the Primate." Annal. Neurol.
12: 564-574, 1982.
Thibault, L. E., A. Bianchi, J. A. Galbraith and T. A. Gennarelli. "Physical Model
Experiments of the Brain Undergoing Dynamic Loading." Advances in Bioenqineerinq.
ed. L.Thibault, pp. 41-45, A.S.M.E. New York, 1982.
Gennarelli, T. A. and L. E. Thibault. "Acceleration Damage to the Brain." Impact
Caused bv Linear Acceleration. ed. J. Haley, pp. 101-109, NATO. Cologne, 1982.
Thibault, L.E., Galbraith,J., and Gennarelli, TA, "Mechanical Properties of the Baboon
Brain: An in-vitro study", Proceedinqs from 35th Annual Conference on Enqineerinq in
Medicine and Bioloqv, Philadelphia, PA, 1982
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Thibault, L, E, and T. A. Gennarelli. "The Development of Intracranial Tissue
Component Failure Criteria as a Consequence of Controlled Inertial Loading." Imoact
Iniurv Caused bv Linear Acceleration. ed. JHaley pp. 110-111, NATO. Cologne, 1982.
Gennarelli, T. A., L. E. Thibault, J. H. Adams, D. I. Graham, C. J. Thompson and R. M.
Marcincin. "Diffuse Axonal Injury in the Primate." Advances in Neural Trauma. ed. J,
Jane pp. 143-151, Raven Press, 1983.
Gennarelli, T. A., L. E. Thibault, R. M. Marcincin and C. J. Thompson. "Effect of
Direction of Head Motion on Intracranial Pressure in Experimental Head Injury."
Intracranial Pressure. IV ed.Sano, pp. 483-486, Springer-Verlag, 1983.
Gennarelli, T. A., L. E, Thibault, J. Jane and O. Steward. "Axonal Damage in Mild
Head Injury Demonstrated by the Nauta Method." Advances in Neurotraumatoloav.
ed.Villani, pp.37-41 Excerpta Medica, 1983
Gennarelli, T. A.and L. E. Thibault, "Experimental Production of Prolonged Traumatic
Coma in the Primate." Advances in Neurotraumatoloav. ed Villani, pp 31-34 Excerpta
Medica, 1983
Thibault, L. E. and D. L. Fry. "Mechanical Characterization of Membrane-Like
Biological Tissue." J. of Biomech, Ena. 105: 31-38, 1983.
Adams, J. H., T. A. Gennarelli, D. I. Graham, G. Scott and L. E. Thibault. "Diffuse
Axonal Injury in Non-Missle Head Injury." Recent Advances in Neural Trauma. ed.
Harris, 1983 . .
Winston, F.K., Thibault, L.E. and Macarak, E.J., "Effects of Cyclic Biaxial Strains on the
Physiology and Morphology of Bovine Aortic Endothelial Cells," American Chemical
Societv. 189th Meeting, Miami, FL, 1984.
Hunter, C.M., Thibault, L.E., Mueller, P., "A Method to Study Loading Effects on
Channel-Doped Bilayers," 38th Annual Conference on Enaineerino in Medicine and
Bioloov. Chicago, IL, 1985.
Winston, F.K., Thibault, L.E. and Macarak, E.J., "The In-Vitro Response of
Endothelium to Mechanical Loading," 38th Annual Conference on Enoineerino in
Medicine and Bioloov. Chicago, IL, 1985.
Galbraith, J., Thibault, L.E., Matteson, D.R. and TA Gennarelli, "Effects of Uniaxial
Stretch on the Squid Giant Axon," in 38th Annual Conference on Enaineerino in
Medicine and Bioloov. Chicago, IL, 1985.
Gennarelli, T. A., L. E. Thibault, J. H. Adams, D. I. Graham and C. J. Thompson.
"Diffuse Axonal Injury and Traumatic Coma in the Primate." Trauma of the Central
Nervous Svstem. ed. R.G.Dacey, pp 169-193, Raven Press, New York, 1985.
Gennarelli, T. A., M. Pastusko, T. Sakamoto, G. Tomei, A. Duhaime, R. Wiser and L. E.
Thibault. "ICP After Experimental Diffuse Head Injuries." Intracranial Pressure VI.
ed.Teasdale pp 15-20 Springer-Verlag. Berlin,1985.
16
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I.:lWrl'llee E. Thih:1ll1t
Margulies, S.S., Thibault. L.E. and Gennarelh, T,A., "Physical Models of Head Injury,"
38th Annual Conference on EnQineerino in Medicine and BioloQY., Chicago, IL, 1985.
Blum, R.H., Thibault, L.E. and Gennarelli, T.A., "In-Vivo Indentation of the Cerebral
Cortex," 38th Annu~1 Conference on Enoineering in Medicine and Bioloov, Chicago, IL,
1985.
Margulies, S. S., L. E. Thibault and T. A. Gennarelli. "A Study of Scaling and Head
Injury Criteria Using Physical Model Experiments." Biokinetics of Impact" IRCOBI14:
223-234, 1985.
Thibault, L. E. and T. A, Gennarelli. "Biomechanics of Diffuse Brain Injuries."
Experimental Safetv Vehicles., 10: 145-156, 1985.
Berger, R. L., H. E. Cascio, N. Davids, C. J. Gibson, M. Marini and L. E. Thibault, "An
Automated Differential Thermal Potentiometric Titration Apparatus for Binding Studies."
J. Biochem. and Biophvs. Methods. 10: 245-259, 1985.
Talbot, T. L., W. H. Schuette, H. W. Tipton, L. E. Thibault, F. L. Brown and R. M.
Winslow. "Noninvasive Detection of the Anaerobic Threshold During Computer-
Controlled Exercise Testing." J. Biomed.Enq. 23: 579-584,1985.
Graham, D. I., J. H. Adams, T. A. Gennarelli and L. E. Thibault. "The Distribution
Nature and Time Course of Diffuse Axonal Injury." Brit. Soc. of Neuropath. , 1986.
Duhaime, A. C., T. A. Gennarelli, L. E. Thibault, D. A. Bruce, S. S. Margulies and R.
Wiser. "The Shaken Baby Syndrome: A Clinical and Experimental Study." J. Neurosuro.
66: 409-415, 1987.
Goldstein, D. C., H. L. Kundel, M. E. Daube-Witherspoon, L. E. Thibault and E. J.
Goldstein. "A Silicone Gel Phantom Suitable for Multimodality Imaging." Investioative
Radioloqv. 2: 153-157, 1987.
Gennarelli, T. A., L. E. Thibault, G. Tomei R. Wiser, D. I. Graham and J. H. Adams.
"Directional Dependence of Brain Injury Due to Angular Acceleration." StapP. SAE.
31: 49-53,1987.
Galbraith, J.A., Thibault, L.E., Matteson, DR and Gennarelli, T.A., "Mechanical
Characterization of the Isolated Axon and Associated Electrophysiological Changes,"
13th Northeast Bioenoineerino Conference. Phi!adelphia, PA, 1987.
Winston, F.K., Thibault, L.E., Gonfien, S. and Macarak, E.J., "Response of Endothelial
Cells to Biaxial Deformation," 13th Northeast Bioenoineerino Conference. Philadelphia,
PA. 1987.
Hunter, C.M., Thibault, L.E. and Mueller, P. "Effects of Strain on Transport Through Ion
Channels," 13th Northeast Bioenoineerino Conference, Philadelphia, PA. 1987.
Winston, F.K., Thibault, L.E., Gorfien, S.F. and Macarak, E.J., "A Mechanism for the
Physiological Response of Endothelial Cells to Cyclic Biaxial Strains," Huoh Lofland
Conference on Arterial Wall Metabolism. Winston-Salem, NC, 1987.
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Hunter, C.M. and Thibault, L.E., "Effects of Mechanical Strain on Ion Transport Across
Channel Containing Lipid Bilayers," AIChE Annual Meeting, New York, NY, 1987.
.Thibault, L.E., Winston, F.K., Gorfein, S,F. and Macarak. E,J" "Transients in
Intracellular Ca H: A Consequence of Mechanical Stimulation of Endothelial Cells in
Culture," 8th International Conference of the Cardiovascular Svstem Dynamic:!L~Qcietv.
Osaka, Japan, 1987,
Gorfien, S.F., Thibault, L.E., Winston, F.K. and Macarak, E.J., "Fibronectin and Type III
Collagen Production by Bovine Pulmonary Artery Endothelium Subjected to Cyclic
Biaxial Strain," Cell Bioloqv, Washington, D.C., 1987.
Winston, F.K., Thibault, L.E., Gorfien, S.F. and Macarak, E.J., "Response of
Endothelial Cells in Culture to Cyclic Biaxial Strain," AIChE Annual Meeting, New York,
NY, 1987.
Thibault, L. E., S. S. Margulies and T. A. Gennarelli. "The Temporal and Spatial
Deformation Response of a Brain Model in Inertial Loading." Stapp. S.A.E. 31: 267-
272, 1987.
Barbee, K.A. and Thibault, L.E., "Strain Measurements in Vascular Smooth Muscle
Cells Grown on a Biaxially Stretched Substrate," IEEE. Enoineerino in Medicine and
Bioloov. Seattle, WA, 1989.
Meaney, D.F. and Thibault, L.E., "Using Physical Models to Determine Cortical Strains
in the Brain During Dynamic Loading," IEEE. Enoineerino in Medicine and Bioloov,
Seattle, WA, 1989.
Saatman, K.E. and Thibault, L.E., "Rapid Elongation of a Myelinated Nerve Fiber: A
Model for Neural Injury," IEEE. Enoineerino in Medicine and Bioloov, Seattle, WA,
1989.
Thibault, L.E. The Effects of Mechanical Deformation on Transmembrane Ion
Transport: A Model for Cell Injury, Tissue Enoineerino. ed. S. Woo and Y. Seguchi ,
pp 39-42, ASME, New York, NY, 1989.
Boock, R.J. and Thibault, L.E., "Dynamic Elongation of Fluid and Air-Filled Elastic
Tubes: A Model for Cerebral Blood Vessel Trauma," IEEE. Enoineerino in Medicine
and Bioloqv, Seattle, WA, 1989.
Margulies, S. S. and L. E. Thibault. "An Analytical Model of Traumatic Diffuse Brain
Injury." J. Biomech. Eno. 111: 241-249, 1989.
Winston, F. K., E. J. Macarak, S. F. Gorfein and L. E. Thibault. "A System to
Reproduce and Quantify the Biomechanical Environment of the Cell." J. App. Phvsio.
67(1): 397-405,1989.
Gorfein, S. F., F. K. Winston, L. E. Thibault and E. J. Macarak. "Mechanical Stimulation
Reduces Soluble Fibronectin Secreted by Pulmonary Artery Endothelial Cells." J. Cell
Phvsiol. 139: 492-500, 1989.
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18
I.awrenee E. Thilmull
Gennarelli, T.A., Thibault, L.E., Tipperman, R. Tomei, G., Sergo!. R, Brown, M.,
Maxwell, w.L.. Graham, D.I., Adams, J.H., Irvine, A., Gennarelli, L.M., Duhaime, A.C.,
Boock, R, and Greenberg, J. Axonal injury in the optic nerve: A new model of
mammalian central nervous system damage that simulates diffuse axonal injury in the
brain. J. Neurosuraerv, 71: 244-250,1989.
'Thibault, L.E. The Biomechanical Aspects of Axonal Injury. First World ConQress of
Biomechanics, La Jolla, CA, 1990.
'Thibault, L.E. A Model for Cell Membrane Permeability Changes in Response to
Dynamic Mechanical Deformation. First World ConQress of Biomechanics, La Jolla, CA,
1990.
Cargill, RS. and Thibault, L.E. An In-vitro Model for Neural Trauma. First World
ConQress of Biomechanics. La Jolla, CA, 1990.
Boock, R.J. and Thibault, L.E. Cerebral Vascular Deformations in High Strain Rate
Loading. First World ConQress of Biomechanics, La Jolla, CA, 1990.
Meaney, D.F. and Thibault, L.E. Tissue Fai!ure Criterion for Parasagittal Bridging
Veins. First World ConQress of Biomechanics. La Jolla, CA, 1990.
Barbee, K.A. and Thibault, L.E. Mechanically-induced Calcium Transients in Vascular
Smooth Muscle. First World ConQress of Biomechanics, La Jolla, CA, 1990.
Saatman, K.E. and Thibault, L.E. Change in Cytosolic Free Calcium Associated With
Mechanical Stimulation of a Myelinated Axon First World ConQress of Biomechanics, La
Jolla, CA, 1990.
'Thibault, L.E. Strain-Dependant Calcium Flux in Endothelial Cells in Culture. Lofland
Conference, Hemodvnamics and the Arterv Wall, San Antonio, Tx, 1990.
Barbee, K.A. and Thibault, L.E. Model for the Mechanics of Vascular Smooth Muscle
Cells Cultured on a Deformable Substrate. IEEE.EnQineerinQ in Medicine and BioloQv.
Phi!adelphia, Pa., 1990.
Gennarelli, T.A, L.E. Thibault, D. Ross, and D.F. Meaney, Enhancement of Axonal
Damage in the Forebrain Using Contralateral Craniectomy During Controlled Cortical
Impact Injury in the Rat, 8th Annual Neurotrauma MeetinQ, 1990, Sl. Louis, MO.
Boock, R.J. and Thibault, L.E. An Experimental and Analytical Approach to the
Development of a Range of Neurovascular Trauma Indices. Biokinetics of Impacl.
IRCOBI, 19: 169-180, 1990.
Meaney, D.F. and Thibault, L.E. Physical Model Studies of Cortical Brain Deformation
in Response to High Strain Rate Inertial Loading. Biokinetics of Impact. IRCOBI19:
215-224,1990.
Thibault, L.E., Gennarelli, TA, Margulies, S.S., Marcus, J. and Eppinger, R. The
Strain Dependent Pathophysiological Consequences of Inertial Loading on Central
Nervous System Tissue. Biokinetics of Impact. IRCOBI, 19: 191-202, 1990.
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19
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1.:1\1 r~nee E. ThilJ:lnll
Thibault, L.E. and Gennarelli, 'fA Brain Injury: An Analysis of Neural And
Neurovascular Trauma in the Non-human Primate. AAAM, 34: 337-352, 1990.
Margulies, S.S., Thibault, L.E. and Gennarelli, TA Physical model simulations of
brain injury of the primate. J. Biomechanics, 23 (8): 823-836, 1990.
.Thlbault, L, Single Cell and Isolated Tissue Models for CNS Trauma. in Biomechanics
ofTrauma. 1991, Detroit, MI.
.Thibauit, L. and K. Barbee. Strain Rate Sensitivity of Enhanced Calcium Permeability:
A Model for Cell Injury in Culture. in Third US-China-Japan Conference on
Biomechanics. 1991. Atlanta, GA.
Gennarelli, T., Thibault, L., Goldstein, D., Bilston, L., Brasko, J., Meaney, D., and
Ross, D. Axonal Injury in the Rat Cerebral Cortex in a Modified Rigid Indentor Cortical
Impact Model, 9th Annual Neurotrauma Meeting, 1991, New Orleans, LA.
.Thibault, L.E. and Barbee, K. Micromechanical Analysis of Vascular Tissue
Subjected to Controlled Mechanical Stimulation in Cell Culture. FASEB Wo~kshop
AlIanta, Ga., 1991
~
Saatman, K. and Thibault, L.E., Myelinated Nerve Fiber Response to Dynamic Uniaxial
Stretch, Biokinetics of Impact. IRCOBI , 12, 115-125, 1991.
Thibault, L.E" R Boock, and T. Gennarelli. Strain Dependent Ischemia in Brain Tissue
as a Function of Inertial Loading of the Head, Biokinetics of Impact . IRCOBI, 12, 101-
113,1991.
Barbee, K. and L. Thibault. Mechanically Induced Vascular Smooth Muscle
Contraction and Cellular Injury. Advances in Bioenoineerino 21: 34-37, ASME Pub. NY,
1991.,
Thibault, L.E" Landsman, A.S., The Response of Aging Aortic Endothelium to
Mechanical Stimulation in Cell Culture, Biomechanics Svmposium. AMD-v. 120, ed.
RL. Spliker, Friedman, M.H., p. 5-9, ASME Pub, NY, 1991.
Boock, Rand L. Thibault. Strain and Strain Rate Dependent Vasoconstriction,
Advances in Bioenoineerino. 21: 38-41, ASME Pub, NY,1991.
Kotapka, M.J., Gennarelli, T.A., Graham, D.I., Adams, J.H., Thibault, L.E., Ross, D.T.
and Ian Ford, Selective Vulnerability of Hippocampal Neurons in Acceleration-Induced
Experimental Head Injury. J. Neurotrauma 8:247-258,1991.
Landsman, A.S., Thibault, L.E., Meaney, D.F., Cargi!l, R.S., A New System to Study
Mechanical Deformation and the Resultant Calcium Transients in Endothelial Cells,
Advances in Bioenoineerino. 22: 9-13, ed. M.W. Bidez, ASME Pub., NY, 1992.
Bilston L.E., D.F. Meaney, L.E. Thibault, "Modeling the Mechanical Properties of
the Cervical Spinal Cord", Advances in Bioenoineerino. 22: 71-75, ed. M.W.
Bidez, ASME Pub., NY, 1992.
Saatman, K.E., Thibault, L.E., Meaney, D.F., The Biomechanics of Isolated Myelinated
Nerve as Related to Brain Injury, Advances in Bioenoineerina, 22: 549-553, ed. MW.
Bidez, ASME Pub., NY, 1992.
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1.'l\Irl'nee Eo Thih:1II1l
Gennarelh T.A., L.E.Thibault, D. Goldstein, L. Bllston, J. Brasko, D.F. Meaney, D.T.
Ross, Axonal'njury in the Rat Cortex in a Modified Rigid Indenter Cortical Impact
Model, J Neurotrauma 9:60,1992.
"Thibault, L.E. Single Cell and Isolated Tissue Models for CNS Trauma, Biomechanics
of Trauma, Detroit, Michigan, 1992.
Margulies, S.S., and Thibault, L.E., T.A. A Proposed Human Tolerance Criteria for
Diffuse Axonal Injury, J. Biomechanics, 25: 917.923, 1992
Thibault, L,E., Meaney, D.F., Marmarou, A., and Anderson B. Biomechanical Aspects
of the Fluid Percussion Model for Brain Injury, J. Neurotrauma 9 (4), 311-322, 1992.
Thibault, L.E., Meaney, D.F., Gennarelli, T.A., A Model of the Intracellular Calcium
Distribution Throughout the Brain as a Function of Inertial Loading in Various Planes,
Biokinetics of Impact. IRCOBI~ 13, 311-319,1992.
Cargill, R.S., Thibault, L.E., The Use of In Vitro Models for Neural Injury With
Superimposed Hypoxia in the Development of New Head Injury Tolerance Criteria,
Biokinetics of Impact, IRCOBI, 13, 320-328, 1992.
Meaney, D.F., Thibault, L.E., Gennarelli, T.A., Rotational Brain Injury Tolerance
Criteria as a Function of Vehicle Crash Parameters, Biokinetics of Impacl. IRCOBI, 14,
1992.
Margulies SS, Meaney DF, Bilston LB, Thibault LE, Campeau NG, Riederer SJ.
In vivo motion of the human cervical spinal cord in extension and flexion.
Biokinetics of Impact. IRCOBI; 213-224, 1992.
Meaney, D.F., L.E. Thibault, J. Brasko, D.T. Ross, T.A. Gennarelli, "Significance of
impact velocity in the production of axonal injury in the rat cerebral cortex using rigid
indentation", Journal of Neurotrauma, v. 9, no. 3, p. 393, 1993
Ommaya, AX, Thibault, L.E., Boock, R., Meaney, D.F., "The Talk and Die (TAD)
Syndrome: A Possible Biomechanical Mechanism", ASTM ,1993
Meaney, D.F., Thibault, L.E., "A multidisciplinary approach for investigating the
biomechanical aspects of axonal injury", Proceedinas of the Third Iniurv Prevention
Throuah Biomechanics Svmposium. pp. 229-239,1993
Galbraith, JA, Thibault,LE, and Mattesou, DR. Mechanical and electrical responses of
the squid giant axon to simple elongation. Journal of Biomechanical Enaineerina
115(1): 13-22, 1993.
Meaney, D.F., K.L. Thibault, T.A. Gennarelli, L.E. Thibault, "Experimental investigation
of the relationship between head kinematics and intracranial tissue deformation",
Advances in Bioenaineerina, v. 24: 8-11, 1993
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1.:lllrCllee E. Thih:1II11
Ross. D.T., D.F. Meaney, D.H. Smith, JA Brasko, L.E. Thibault, T.A. Gennarelli,
"Distribution of diffuse axonal injury following inertial closed head injury in the miniature
swine" Soc. Neurosci. Abstr., v. 19, Par! 2, p.1486, 1993
Barbee, K.A. and Thibault, L,E., Micromechanical Analysis of Vascular Tissue
Subjected to Controlled Mechanical Stimulation, FASEB, AlIanta, GA, 1991
Meaney. D.F., Thibault. L.E., Smith, D., Ross, D.T., Gennarelli, TA, "Diffuse axonal
injury in the miniature pig: Biomechanical development and injury threshold", Advances
in Bioenaineerina, 1993
LaPlaca, M.C., Cargill, R.S., and Thibault, L.E. Intracellular free calcium shifts in
cultured neurons in response to mechanical injury. 11th Annual Neurotrauma Society
Meeting, Washington, DC, 1993.
Goldstein. D., Meaney, D., and Thibault, L. Electrophysiological Response of
the Crayfish Ventral Spinal Cord to Tensile Loading. 11 Ih Annual Neurotrauma
Society Meeting, 1993, Washington, DC.
Thibault, L.E., Brain Injury from the Macro to the Micro Level and Back Again: What
Have We Learned to Date?, Biokinetics of Impact, IRCOBI, 14, 3-25,1993.
Bilston, L.E., D. F. Meaney, Thibault, L.E., The Development of a Physical Model to
Measure Strain in a Surrogate Spinal Cord During Hyperflexion and Hyperextension,
Biokinetics of Impact, IRCOBI, 14, 255-268, 1993.
Boock, B., Doan, D., and Goldstein, D., Thibault, L.E., Model for short-term
intracranial pressure changes following traumatic injury, Annals of Biomedical
Enaineerina. 21, 645-653, 1993.
Winston, F.K., Macarak, E.J. and Thibault, L.E., An Analysis of the Time-
Dependent Changes in Intracellular Calcium Concentration in Endothelial Cells
in Cell Culture, J. Biomech. Ena., 115 (2),160-168,1993.
Goldstein, D., and Thibault, L. An In Vitro Model of Spinal Cord Injury After
Uniaxial Loading. 2nd World Congress of Biomechanics, Amsterdam, The
Netherlands, July, 1994
Bilston, L.E., and L.E. Thibault, "Kinematics of the in vivo human cervical spine
in flexion and extension", 2nd World Congress of Biomechanics, Amsterdam,
The Netherlands, July 1994.
LaPlaca, M.C., and Thibault, L.E., An in-vitro Model: Mechanical Response of
Cultured Neurons to Hydrodynamic Loading, Advances in Bioenaineerina, 1994.
K.B. Arbogast, D.F. Meaney, L.E. Thibault, "A physicai model study of the
biomechanics of upper brainstem injury." 2nd World Congress of Biomechanics,
Amsterdam, The Netherlands, July, 1994.
Cargill, R.S., Thibault, L.E. "Strain and Strain Rate Dependence of the
Mechanically Induced Increase in Cytosolic Free Calcium of Neural-like Cells.",
~ 2nd World Congress of Biomechanics, Amsterdam, The Netherlands, 1994.
22
I.awrellee E. Thih:1II11
LaPlaca, M.C. and, Thibault L.E., A Novel Cell Shearing Device to Study Injury of
Neurons in-vitro, Second World Conaress of Biomechanics, Amsterdam, 1994
Barbee, KA, Macarak E.J., and Thibault, L.E., Strain Measurements in
Cultured Vascular Smooth Muscle Cells Subjected to Mechanical Deformation,
Annals of Biomedical Enaineerina, 22: 1, 1994.
McGonigle, P., S. McElligot, J. Brasko, D. Meaney, L. Thibault, T. Gennarelli, D.
Ross "Patterns of decreased striatal [3H]kainic acid binding correlate with the
topography of corti cost ria tal degeneration following modified cortical impact in
adult rats", J Neurotrauma 11 :119, 1994
Brasko, J., K.Arbogast, D. Meaney, L. Thibault, T. Gennarelli, D. Ross, "Patterns of
axonal and neuronal injury following application of mild negative pressure to the cortical
surface of adult rats", J Neurotrauma, 11:104, 1994
Goldstein, D.M., D.F. Meaney, L.E. Thibault, "Eleclrophysiological response of the
crayfish ventral spinal cord to tensile loading", J Neurotrauma. Vol. 11 (1), 1994
Welsh FA, Harris VA, Brasco J., Meaney, D.F., Thibault, L.E., Gennarelli, T.A.,and
Ross,D.T., Association of c-fos Expression Patterns with the Topography of Cortico-
Cortical Neuronal Injury Contralateral to Modified Cortical Impact in Adult Rats~
Neurotrauma11: 130, 1994
Meaney, D.F., Thibault, L.E., and Gennarelli, T.A. Rotational Brain Injury Tolera!lce
Criteria as a Function of Vehicle Crash Parameters, IRCOBI, 51-62, 1994
LaPlaca, M.C., Cargill, R.S., and Thibault, L.E., Intracellular Free Calcium Shifts in
Cultured Neurons in Response to Mechanical Injury, J. Neurotrauma, 11 (1):116,1994.
Meaney, D. F., Thibault, L.E., Winkelstein, BA, Brasko, J., Ross, D.T., Gennarelli,
T.A., "Modification of the cortical impact brain injury model to produce axonal damage
in the rat cerebral cortex", J. Neurotrauma, 11: 5, 599-612, 1995
LaPlaca, M.C., and Thibault, L.E., Role of Free Calcium in the Response of
Cultured Ntera 2 Neurons to Mechanical Injury, J. Neurotrauma 12 (1) :128,
1995.
Goldstein, D., and Thibault, L.E., A Uniaxial Loading Model for Spinal cord
Injury using Suction Electrodes to Cause Deformation, Neurotrauma Societv,
Miami, 1995.
LaPlaca, M.C. and Thibault, L.E., MK-801 Reduces Glutamate-induced
Cytosolic Free Calcium Increases in Mechanically Injured Ntera-2 Neurons.....,l
Neurotrauma.12(5):969, 1995
Munir,M., LaPlaca,M.C., Thibault, L.E., McGonigle, P. Changes in Intracellular
Free Calcium Levels During Delayed Excitotoxicity and Rescue in NT2-N
Neurons, Societv for Neuroscience 21 :1344, 1995.
LaPlaca ,M.C., Djali, S., Saatman, K.E., and Thibault, L.E., Glutamate Mediated
Cell Damage in Mechanically Injured Ntera-2 Neurons, Societv for Neuroscience
21 :497, 1995.
23
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I.a\\renee E. Thih'lIIlt
Rubin, Y., LaPlaca, M.C., Smith, D. H., Thibault, L.E., and Lenkinski, R.E., The
Effects of N-acetyaspartate Acid on the Intracellular Free Calcium Concentration
in Ntera2-neurons, Neuroscience Letters 198: 209-212,1995.
Mazuchowski, E. L., Whilley, P.E., and Thibault, L.E. Cervical Spinal Cord
Injury Tolerance Under +Gz Acceleration, AGARD,Vol579, 1995
LaPlaca, M.C., Billiar, K.L., Goldstein, D., and Thibault, L.E., Biomechanical
Considerations for Modeling Brain and Spinal Cord Injury in-vitro..,L
Neurotrauma, 12 (3): 374, 1995.
La Placa, M.C., Barbee, K.A., Blackman, B.R., and Thibault, L.E., An in-vitro
Model for Investigating Mechanisms of Traumatic Neural Injury , CDC-Wavn~
State Iniurv Research Volume, 1996
Cargill, R. S.. and Thibault, L.E., Acute Alterations in Calcium in NG108-15 Cells
Subjected to High Strain Rate Deformation and Chemical Hypoxia: An In- Vitro
Model for Neural Trauma,). Neurotrauma, 13, 7, 395-407, 1996.
Goldstein, D.M., Mazuchowski, E.L., Whitley, P.E., and Thibault, L.E., The
Mechanical and Electrophysiological Response of the Spinal Cord to Uniaxial
Dynamic Loading, CDC-Wavne State Iniurv Research Volume, 1996.
Thibault, L.E., Gennarelli, TA, Goldstein, D.and Fijan, R.S., "Biomechanical
Thinking: Head Injury in Roadway Crashes", Recoverv (7),3,1996.
Barbee, K.A., LaPlaca, M.C., Blackman, B.R., and Thibault, L.E., The Loading-
Rate Sensitivity of Endothelial Cells to Flow, ASME Mechanics and Materials,
1996.
Blackman, B.R., Laplaca, M.C., Barbee, K.A., and Thibault, L.E., Sensitivity of
Endothelial Cell Response to the Onset Rate of Shear Stress. Advances in
Bioenoineerino. Vol. 33 195-197, 1996.
LaPlaca, M.C., and Thibault, L.E., Evidence of a Mechanical Contribution in the
Response on Ntera-2 Neurons to a Rapid Deformation Injury in-vitro, ,L
Neurotrauma, 13(10): 608,1996.
LaPlaca, M.C. and Thibault, L.E., An In Vitro Traumatic Injury Model to Examine
the Response of Neurons to a Hydrodynamically - Induced Deformation, Annal of
Biomed Ena, 25: 665 - 677,1997.
La Placa, M.C., Lee, V. M. - Y., and Thibault, L.E., An In Vitro Model of
Traumatic Neuronal Injury: Loading Rate - Dependent Changes in Acute
Cytosolic Calcium and Lactate Dehydrogenase Release, J. Neurotrauma, 14 (6),
355 - 368, 1997.
Torg, J.S., Corcoran, TA, Thibault, L.E., Pavlov, H., Sennett, B.J., Naranja, R.
J., and Priano, S., Cervical Cord Neuropraxia: Classification, Pathomechanics,
Morbidity, and Management Guidlines, J. Neurosuro, 87: 843 -850,1997.
Bi!ston, L.E. and Thibault, L.E., The Mechanical Properties of the Human
Cervical Spinal Cord, Annal of Biomed Eno, 24 (1), 67 - 74,1997.
24
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1.:11\ rCllee E. Thih:1II1l
Bilston, L.E. and Thibault. L.E.. The Biomechanics of the Cervical Spinal Cord
During Hyperflexion and Hyperextension Iniuries~rashworthiness, 2 (2) 207
,,218, 1997.
Car~i!I, R. S., and Thibault. L.E" Acute Alterations in Calcium in NG10B-15 Cells
Subjected to High Strain Rate Deformation and Chemical Hypoxia: An In- VItro
Model for Neural Trauma, J. Neurotrauma, 13 (7),395.407,1997.
Thibault, L.E.. Gennarelli, TA. Goldstein, D.and Fijan, R.S., "Biomechanical
Thinking: Head Injury in Roadway Crashes", Recoverv 7 (3), 1997.
Blackman, B.R" Barbee, KA, and Thibault, L.E., An Investigation of the
Temporal Gradient of Shear Stress as a Modulator of Endothelial Cell Response,
A.S,M,E. Advances in BioenoineerinQ, 1997.
Goldstein, D. M., Mazuchowski, E. L., Gdula, w., and Thibault, L.E., In Vitro and
Mathematical Models of Axonal Injury in CNS Trauma, WSU Injurv Research
Advances, 1997.
Mazuchowski, E. L., Thibault, K. L., Youssef, A., Kurtz, S.M., Barbee, K.A., and
Thibault, L.E., Structural and Mechanical Properties of the Developing Human
Skull with Numerical Simulation During Impact Loading, WSU Iniurv Research
Advances, 1997.
Blackman. B., Thibault. L.. and Barbee, K., Calcium Response of Endothelial
Cells to Shear Stress: New Insight into an Old Controversy, Biomedical
Enoineerino Societv Meetino, San Diego, CA, 1997
LaPlaca, M.C., Blackman, B.R., Thibault, L.E. and Barbee, K.A., Alterations in
Intracellular Free Calcium Concentration and LDH Release Due to
Hydrodynamic-Induced Deformation, WSU Iniurv Research Advances, 1997.
LaPlaca, M.C. and Thibault, L.E., Dynamic Mechanical Deformation of Neurons
Triggers an Acute Calcium Response and Cell Injury Involving the N-Methyl-D-
Aspartate Glutamate Receptor. Journal of Neuroscience Research 52; 220-229,
1998.
Gennarelli, T.A., Thibault, L.E., and Graham, D.I., Diffuse Axonal Injury: An
Important Form of Traumatic Brain Injury, The Neuroscientist, 4: 3, 202-215,
1998.
Runge, C.F., Youssef, A., Thibault, K. L., Kurtz, S.M., Magram, G., and Thibault,
L.E., Material Properties of the Human Infant Skull and Suture: Experiments and
Numerical Analysis, WSU Iniurv Research Advances, 1998.
Barbee, K. A., Yazdi, J., Fijan, R., Croul, S.E., and, Thibault L. E., Basic
M~chanics of the Guinea Pig Optic Nerve Stretch Model for CNS Injury, WSU
Inlurv Research Advances, 1998.
.
'"
-,
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1.:I\HI'IIU' E. Thih'III11
Barbee, K.. Blackman, B. and Thibault, L. Neural Cell Injury: Charactenzation
and Treatment Strategies, Third. World ConQrcss of Biomechanics, Sapporo,
Japan, 1998
Kurtz S. M" Thibault, K. L., Giddings, V. L., Runge, C. F., and ThlLault, L. E.,
Finite Element Analysis of the Deformation of the Human Infant Head Under
Impact Conditions, WSU Iniurv Research Advances, 1998.
Barbee, K. A., Ford, C. M., Blackman, B, R., and Thibault, L. E., Neural Cell
Injury: Characterization and Treatment Strategy, WSU Iniurv Research
Advances, 1998.
Kurtz, S.M., Thibault, K.L., Giddings, V.L., Runge, C.R., Thibault, L.E.,
Computer Simulation of Infantile Head Injury Mechanics, (submitted for
publication) 1998,
Barbee, K.A., Ford, C.M., Blackman, B.R., Thibault, L.E.. Membrane Injury and
Neural Trauma, (submitted (or publication) 1998.
Barbee, K.A., Yazdi, J., Fijan, R., Croul, S.E., Thibault, L.E" An In Vivo Model
for Axonal Injury, (submitted for publication) 1998.
Runge, C.F., Youssef, A., Thibault, K.L., Kurtz, S.M., Magram, G., Thibault, L.E.
Mechanical Characterization of the Developing Skull, (submitted for publication)
1998
In Preparation
Blackman, B., Thibault, L.. and Barbee K., An In Vitro Model to Study Cellular
Responses to Dynamic Mechanical Stimuli, 1998.
Barbee, K. Yazdi, J., Fijan, R., Croul, S. and Thibault, L.., In Vivo Mechanics of
the Guinea Pig Optic Nerve, 1998.
Barbee, K., Yazdi, J., Fijan, R., Croul, S., and Thibault, L., Production and
Detection of Acute Axonal Injury In Vivo, 1998.
Hunter, C.M., Thibault, L.E., Gennarelli, TA "Effect of biaxial strain of artificial lipid
bilayers", 1998
Thibault, L.E. and Gennarelli, TA "Stretch Induced Intracellular Calcium
Transients in an Isolated Axon: A Model for Neural Injury." 1998.
Meaney, D. F. and L. E. Thibault. "A parametric study using physical models to
investigate superior margin brain deformation"
Meaney, D. F. and L. E. Thibault. "Ultimate fai!ure limit of parasagittal bridging veins
across a range of age groups"
Landsman, A.S., D.F. Meaney, L.E. Thibault, E.J. Macarak, "Physiologic response and
strain rate dependence of endothelial cells to measured regional cellular deformation".
I
I
f"
~
26
(.
,
~
,~
I.:mrellre E. Thih:1ll1t
Landsman, A.S., L,E. Thibault, R.S. Cargill, "Strain Rate Dependence of
Intracellular Calcium Transients Observed in Bovine Aortic Endothelial Cells".
L.E. Bilston, and L,E. Thibault, " A Finite Element Analysis of Cervical Spinal Cord
Injuries".
PROGRAMS/PROJECT RESPONSIBILITIES (INDUSTRIAL AND GOVERNMENT
RESEARCH LABORATORY EXPERIENCE 1963-19791
U.S. Naval Ship Enalneerina Center:
Vibration Studies of the J75-FT4 Gas Turbine Propulsion System
Vibration Studies of the Saturn Gas Turbine Driven Generator System
Controls System Analysis of the Jupiter Gas Turbine Driven Generator System
Sea Salt Aerosol Studies for the Development of Separator Systems for Gas Turbine
Engines
Control System Design for Smokeless Combustion in Gas Turbine Propulsion Systems
Field Studies, Trouble-Shooting, Failure Analysis and Repair of Gas Turbine Engines in
the Fleet
All reports written for Department of Defense Documentation Center.
Westinahouse Research and Development Center:
Whole Body Oxygen Uptake Rate Monitor
Blood Oxygen Content Analyzer
Continuous Blood p02 Catheter
Portable Breathing Apparatus for Emergency Use
Computerized Patient Monitoring System with Non-Fade Display, Electronic Memory
and Arrhythmia Detection
Long-Term Portable Breathing Apparatus with CO2, Scrubbing and Chemical
Generation of Oxygen
Rescue Vehicle for Mine Disasters
27
,-
J ,:11I 1'l'lIl'l' E. Thih:1II11
Natlonalln~!!!Jlft!L9f Hol!.llh..;
System for the Experimental Investigation of Head Injury in the Primate, NINCDS
Kinematic Linkage to Produce Controlled Inertial LO(lding of (In Experimental Model in
Head Injury Research, NINCDS
Dense Piezoelectric Accelerometer for Use in the Brain During Inertial Loading
Studies, NINCDS
Physical Models of the Skull and Brain for Use in Dynamic Moire Analysis of Strain,
NINCDS
System for the Experimental Investigation of Head Injury in the Primate, NINCDS
Solid-State Programmer for Auto-Sequencing High Speed Photography, Oscillographic
Recording, Hydraulic and Pneumatic Operations in Experimental Head Injury, NINCDS
Kinematic Linkage to Produce Controlled Inertial Loading of Experimental Animal Model
in Head Injury Research, NINCDS
System to Obtain High Speed X-Rays of Implants in the Brian Undergoing Steady-State
Vibration, NINCDS
Neutrally Dense Piezoelectric Accelerometer for Use in the Brain During Inertial
Loading Studies, NINCDS
Physical Models of the Skull and Brain for Use in Dynamic Moire Analysis of Strain,
NINCDS
Fluidic Controlled Indentor for Studies of Brain Tissue Deformation and Concomitant
Neurophysiological Alterations, NINCDS
Optical Device for the Measurement of Intracranial Pressure, NINCDS
Life Support System for Papillary Muscle Culture Including Dialysis and Membrane
Oxygenation, NHLBI
Isometric Force Transducer and Electrical Simulation for Muscle Tissue Culture
Systems, NHLBI
System to Culture Palatal Specimens from Fetal Mice Including Video Monitoring via
Fibre Optic Probes of the Palatal Region, NIDR
System to Measure the Mechanical Properties of Skin, NCI
Fluidic-Controlled Pulsati!e Mattress for Surgical Tables, NINCDS
System to Apply Controlled Levels of Hydrodynamically-Induced Wall Shear Stress on
Arterial Tissue Specimens In-Vitro, NHLBI
Automated System for Video-Densitometry, NHLSI
28
I.:nHl'nee E. Thih:lllll
Calibration System for an Electrochemical Shear-Rate Transducer, NHLBI
Automated Differential, pH, Thermal, Titration Apparatus. NHLBI
Automated System to Measure the Hemoglobin-Oxygen Equilibrium Curve for Sample
of Whole Blood or Hemoglobin Solutions, NHLBI
Capillary Membrane Oxygenator, NIA
Reaction Cell for Automated Potentiometric Titration and Spectrophotometric Analysis,
NIAMD
System to Mechanically Stress Biological Cell in Culture, NIDR
Automated and Computer-Controlled Exercise Stress Test Device Which Includes the
Determination of Anaerobic Threshold from Respiratory Gas Analysis, NHLBI
System to Produce Transient Hydrostatic Pressure Loading and Large Scale
Deformation of Nerve Fibers In-Vitro, NINCDS
System to Study the Somatosensory Evoked Responses in Children and Adults
Through Mechanical Stimulation of the Proprioceptive Fibers, NINCDS
Device to Measure the Displacement of the Axonal Membrane of the Squid During the
Propagation of the Action Potential, NIMH
System to Automatically Decontaminate an Ultracentrifuge and Its Contents in the
Event of Catastrophic Failure, NIAID
Device to Measure the Mechanical Properties of Peripheral Nerve In Situ, NINCDS
Thermistor for the Measurement of Heats of Reaction in Protein Titrations, NHLBI
Analytical Model for Potassium Transport in the Cortex, NINCDS
Analysis of Heat Transfer During Whole Body Hyperthermia Treatment of Metastatic
Cancer, NCI
CONSULTING ACTIVITIES:
1980-Present
Armed Forces Radiobiology Research Institute,
Neurobiology Department
Southwest Research Institute
National Institutes of Health, National Heart, Lung, and
Blood Institute, Laboratory for Technical Development
1975-1976
1980-1986
~
29
--
1981
1982-Present
1983-Present
and
1983
1983
1983-Present
1984-Present
1984-Present
1986
1986-Present
1989-Present
1990-Present
1992
1992-Present
1992-Present
1993-Present
1994-Present
1994-Present
1994-Present
1994-Present
,-
1.:11\ I'ellee E. Thih:lult
Chairman, National Consensus Workshop on Head and
Neck Injury, Experimental Modeling, NHTSA, D.O,T.
United Slates Army
National Institutes of Health, Nalionallnstitule of Arthritis
Metabolic Disease
Association Peugeot -Renault
Commonwealth of Pennsylvania, Department of
Transportation
Commonwealth of Pennsylvania, Attorney General
National Institutes of Health, National Institute of
Neurological Communicative Disease and Stroke
Technical Advisory Board, Neonatal Products, CAS Medical
Joint Chiefs of Staff, Department of Defense.
General Motors Corporation
Chrysler Corporation.
Suzuki
The Whitaker Foundation
Daimler Benz
Bell Sports
Yamaha
The National Center for Injury Prevention and Control
CDC, Atlanta
Honda
Mazda
Ford Motor Company
30
1.:11\ 1'l'II1'1' F. Thih:!IJ"
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Search. 34 Results. seatbelt and espert and injury
Page I of 20
Source: All Sources: I , ' , I : PA Fedoral and Slato Ca.o.
Terms: .oalbolland export and Injury (Edit Search)
805 F. Supp. 1212, .; 1992 U.S. Dist. LEXIS 1141, ...
JULIA DORSETT v, AMERICAN ISUZU MOTORS, INC, and ISUZU MOTORS, LTD.
Civil Action No. 89,9111
UNITED STATeS DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA
805 F. Supp. 1212; 1992 U,S. Dist, LEXIS 1141
February 3, 1992, Decided
February 3, 1992, Filed
CORE TERMS: seatbelt, rollover, new trial, roof, harmless, rebuttal, safer, subluxation,
bruising, alternate, advocacy, cervical, case-In-chief, engineering, expert testimony, blow,
arrogance, cross-examination, restrained, propensity, driving, Infer, proffered, testing,
minute, strict liability, passenger, spinal, roll, directed verdict
COUNSEL: [**1] FOR PLAINTIFF, JOHN J, MAHONEY, CRAWFORD, WILSON, RYAN &
AGULNICK, P,C., 220 WEST GAY STREET, WEST CHESTER, PA 19380, USA. THOMAS R.
WILSON, CRAWFORD, WILSON, RYAN & AGULNICK, P.c., 220 WEST GAY STREET, WEST
CHESTER, PA 19380, USA
FOR DEFENDANTS, RAYMOND T. LE BON, WHITE AND YJILLlAMS, 1650 MARKET STREET, ONE
LIBERTY PLACE, STE, 1800, PHILA, PA 19103-7301, USA. JOSEPH V, PINTO, WHITE AND
WILLIAMS, 1650 MARKET STREET, ONE LIBERTY PLACE, STE. 1800, PHILA, PA 19103-7301,
USA. WILLIAM J. CONROY, WHITE AND WILLIAMS, 1650 MARKET STREET, ONE LIBERTY
PLACE, STE. 1800, PHILA, PA 19107, JEANNE M. PROKO, WHITE & WILLIAMS, 1650 MARKET
STREET, ONE LIBERTY PLACE, 18TH FL., PHILA, PA 19103, USA. TIMOTHY A, KULP, 330
MARKET STREET, 2ND FLOOR, PHILADELPHIA, PA 19106, USA
JUDGES: Cahn
OPINIONBY: BY THE COURT; EDWARD N, CAHN
OPINION: [*1214] OPINION
CAHN, J.
February 3, 1992
I. Background
~
On December 22,1987, Julia Dorsett was driving her stepfather's 19871suzu Trooper II ["the
Trooper"] home from a friend's Christmas party, While she was driving north on Route 202,
traveling at sixty to sixty-five miles per hour in the right lane [*1215] of the two lane
highway, she came upon a slow moving vehicle, That vehicle, driven by Paul Allen Benner-
Smith, [**2] was proceeding at approximately forty to fifty miles per hour because of
engine trouble. In order to avoid colliding with Benner-Smith's car, Julia quickly steered to
the left. As she did so, her car left the road and entered the median strip. As she steered
back to the right in order to regain the road she lost control of her car. The car rolled over
several times, coming to rest on the passenger's side. As a result of this accident, Julia
sustained a convoluted fracture of her T-12 and L-1 vertebrae, The resulting damage to her
spinal cord has rendered her a paraplegic. n1
-~
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Page 2 of 20
- . . . - - - - . - . . . - - . - .Footnotes. - - - - - - - . . . - - . - - - -
nl Kathleen Herbison, a passenger in Julia's car, suffered spinal Injuries at C-3/C-4 and T.
12/L-1. She was not paralyzed, however, Kathleen Is not a party to this lawsuit.
- - . - . . - - . . . - - . - - -End Footnotes- - . - - - - - . . . - - - . . .
Julia filed suit against American Isuzu Motors, Inc, and Isuzu Motors, LId" n2 alleging that
the Isuzu Trooper II In which she was driving was defectively designed, This case was tried to
a jury from September 4, 1991 until September 24, 1991. n3 In Its answers to
Interrogatories [**3] the Jury found that 1) the plaintiff had proven, by a preponderance of
the evidence, that the Isuzu Trooper II was defectively designed, and that there was an
alternative, safer design; and 2) that the plaintiff had proven, by a preponderance of the
evidence, that the defect had been a substantial factor in causing Injuries to Julia over and
above the Injuries which she would have sustained had the safer design been used. The Jury
then awarded damages in the amount of $ 148,755,42 for medical expenses to date, $
3,232,334,00 for future medical and care expenses (reduced to present value), $ 336,000,00
for loss of future earning capacity, and $ 5,000,000.00 for pain, suffering, humiliation,
embarrassment and loss of life's pleasures (for a total of $ 8,717,089,42), See App. IV p, 216
1. 11 - p. 217 1. 24. n4
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n2 Since American Isuzu Motors, Inc. and Isuzu Motors, Ltd. elected to employ a single
attorney at trial they will be referred to collectively as "the defendant" for the remainder of
this Opinion, .
n3 In addition to recessing for the weekends of September 7-8 and 21-22, the trial was
recessed from September 11 through September 16 so that the court could attend the Third
Circuit Judicial Conference. The trial was also in recess on September 23 so that the court
could attend to matters in certain criminal cases. These recesses gave counsel ample time to
prepare to meet any unexpected challenges presented by the trial. See App. I. p. 293 1. 3-6.
[**4]
n4 Citations to the record are in the form App. p, 1. ,Citations are to the dark page
numbers printed in the lower right corner of the page (rather than to the light page numbers
printed In the upper right corner of the page).
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
Now before the court are the defendant's Motions for Judgment Notwithstanding the Verdict
["JNOV"] or, in the alternative, for a New Trial, n5 The court heard oral argument on these
Motions on January 3, 1992, For the reasons set forth below, the Motions will be denied.
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
~
n5 The defendant's Motion for Remitter was withdrawn by a letter to the court on December
12, 1991. The plaintiff's Motion for Additur was likewise withdrawn by a letter to the court on
January 3, 1992, The court is heartened by the parties decisions to withdraw these Motions.
See Fleck v, KDI Sylvan Pools, Inc., No. 89-1348 Slip op. at 3 (E.D, Pa, December 6, 1991)
(stating that, in a case involving a plaintiff who was rendered a quadriplegic after diving into
a shallow pool, "neither the ten million dollars, the amount of the verdict, nor any other
dollar amount will ever compensate the plaintiff for the physical condition which he must live
with the rest of his life. Defendant's argument for remittitur surely must have been included
in its post trial motion merely as a matter of form, not substance,"); Ansbro v, National
Railroad Passenger Corp" No, 90-5042 Slip op. at 1 (E.D, Pa. December 3, 1991) ("the
...Iretrieve? _m=f920ed2202bd06f9b708e 13 87ac34e 1 e&jmtstr=FULL&_ docnum= 19& _startO 1/14/2000'
\
,
~
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Scarch - 34 Rcsults - sealheh and expert and injllry
"age 3 of 20
concept of additur is not coglllzable In the federal courts."),
- - - . . . - - - . . - - - - - -End Footnotes- - - - - - - - - - - - - - - . -
[**5]
II. Standards
A, Standards for Granting JNOV
A court cannot grant a JNOV motion unless the party seeking the JNOV moved for a directed
verdict at the close of all the evidence at trial. See Keith v. Truck Stops Corp. of America, 909
F.2d 743, 7.44-t3d Clr, 1990); Mallick v. International Brotherhood of Electrical Workers, 644
F.2d 228, 233 (3d Cir, 1981); Fed. R. Civ. p, sO(b).
[*1216] The specific grounds for a jNOV must be asserted in the motion for a directed
verdict. If the Issue was not raised In the motion for the directed verdict at the close of all the
evidence, It Is Improper to grant the JNOV on that Issue, The requirement that the specific
Issue be raised first In the motion for a directed verdict, before the Issue Is submitted to the
jury, affords the non-moving party an opportunity to reopen Its case and present additional
evidence, Further, when a trial court decides an issue after it was properly submitted to the
jury, it may deprive the non-moving party of [its] seventh amendment rights,
BO[1joLOO,)I.!<alser Aluminum and ChemicalCorp.,7s2 F,2d 802,814 (3d Cir. 1984), cert.
denied, 4n, U.S. 908, ,91, L. Ed. 2d 572, 106 S.Ct. 3284 (1986) [**6] (emphasis supplied)
(citations omitted), Since the defendant did so, see App, IV p, 97 1. 22-25, the court must
now consider the JNOV Motion on the merits,
In deciding whether a JNOV motion should be granted, '''[a] court must view the evidence In
the light most favorable to the non-mOVing party, and determine whether 'the record
contains the "minimum quantum of evidence from which a jury might reasonably afford
relief.''''' Kejth, ,909 f.2dat 745, (citation omitted). See also Aodrewsv. City_ofPh[ladelphla,
a9,s,f.2cl146.9,,1478. (3d_Cir.,1990); Bh.ayav. Westinghouse Electric, COJP.,Jl32,FL2d2s..8,
25.9..(3,cj .Ci.r.LJ98,Z), cert. denied, <188 U.S.lOO<l"J,02L. Ed,.2di''Z4,.109.s~.q.]82,(1989);
ilLoe_CO,al.Co"v,.Cla.rKl;quipfDenl.Co.,.816 .F.2d 110,..113 (3d Cir.), cert. denied, 4~H.u,..S.
Ils3,..9.8,1,...I;.cl._2cl_llJ, tQ8,S, Ct. ,156,(198',7); Grace_v. ,Mauser.:Werke ,Gt1Bti" ',700, F...SUPp.
13J13,..t3_8L(ELO,-E';l,_t98.8). It is for this reason that "normally, when the evidence is
contradictory, a JNOV is inappropriate." Boojorno,]52.F.2d at, 8,1.1. (citation omitted). The
jury must weigh the evidence, if the evidence is in dispute, [**7] because "evaluation of
witness credibility is the exclusive function of the jury." Bhaya,_8,32,E.2d_.a,t.262., See also
So.njQ[[1_0,]S2.L.2.cl_a.UUJ; Grace"ntO_F~5upp.._a,U.3J17~ It is only where "there can be but
one reasonable conclusion as to the proper judgment" that a JNOV can be granted. See
I,.Ql,[ghJll~n. \I.~C_Q!lSoj:Etl!lDsyl'Jan i,a.CoaLCo. ,..;7!!,O.F._Su PPLl1J<I,_II,I,6,.ON. Q.c.Pa~199_01
(citations omitted).
B. Standards for Granting a New Trial
"In general, the ordering of a new trial is committed to the sound discretion of the district
court." B.o.ojomo,}52j'.2dat812. See also WiiJiamson v.ConsoJidated_Rajl,Corp.,.9.26 F.2d
U1.4, 13_41'l. (3.d,Cj[.,1991); Honey,w,elL \I..flmerican.Standard.s TestingJ!u,e.a.u, Joc"Jl.51.F.2d
.6.5_2,_655 (3,tJ:i.r...191111), cert, denied, 488, U.S..10JO, 10U._Ed,L 2.d_Z82._1.09_S,3;t,..19_5
(.1.9.1\9.>; Feingold v, Raymark Industries, Inc., 1988 Westlaw 76114 at *3 (E,D, Pa. July 19,
1988); c;race,10,O.E...Supp._aU3_87.. A new trial cannot be granted, however, merely because
the court would have weighed the evidence differently and reached a [**8] different
conclusion, See Feingold, 1988 Westlaw 76144 at *3; Gra.ce, .7Q,O,f.S.uPP._<l,Ll;3,8Z" A court
can only exercise its discretion to grant a new trial because the verdict was against the
weight of the evidence when the failure to do so would result in injustice, or would shock the
conscience of the court. See WiJ!lamso.n,_Sl26,f.2d,at,1352c,s.3; S1epc,S.a,v.eO:i.aJa_SY,sJtl,mS,
Inc~v. Wys_tl_Le.cb.n9LogY,..;7.52,c,..suPP...llll,_18.s(E.[),.P'k1.9.9_Q), aff'd In relevant part, ~3.9
...Iretrieve? _m=1920ed2202bd06f9b708e 1387ac34e 1 e& jmtstr=FULL& _docnum= 19& _startO 1/14/2000
Search - 34 Resulls - sealbcll and expert ;md injury
I'age -I (If 20
F,2d 91 (3d Clr. 1991); Feingold, 1988 Westlaw 76114 at "3; Grace, 700 F. SIIPP. at 1388.
111. The Defendant's Arguments
The defendant has advanced a veritable plethora of arguments In support of Its Motions,
Since many of these arguments apply to both Motions, the court 1'1111 not distinguish between
the arguments advanced to justify the entrl of JNOV or the grant of a New Trial. Suffice It to
say that, since the court Is convinced that the trial was fair and a new trial Is not warranted,
the entry of JNOV would be Inappropriate,
Before discussing the defendant's arguments, the court Is obliged to point out that, while
[**9] all parties are entitled to a fair trial, they are not entitled to a perfect trial, [*1217]
See t-lcQueeoeyv,W.lh:nlngton Trust Co., 779 F.2d 916, 927 (3d Clr. 1985) (Becker, J.);
~arks..v"t-lQblle_Oil_CQrp" 562 F, Supp, 759, 769 (E.D. Pa. 1983), aff'd, 727 F.2d 11.00 (3d
CJk1.9Jl~). 11 Is for this reason that Fed, R. Clv. p, 61 provides that
no error In either the admission or the exclusion of evidence and no error or defect In any
ruling or order or In anything done or omitted by the court or by any of the parties is ground
for granting a new trial or for setting aside a verdict or for vacating, modifying or otherwise
disturbing a judgment or order, unless refusal to take such action appears to the court
Inconsistent with substantial justice. The court at every stage of the proceeding must
disregard any error or defect in the proceeding which does not affect the substantial rights of
the parties.
Fed, R, Clv, p, 61 (emphasis supplied). See also McQueeoey, 779 F.2d_aUl23J A trial court's
determination that, In the context of a given trial, an error was harmless Is accorded
substantial deference, See Marks,562F, Supp._aU,69,_' [**10] n6 The longer the trial, the
less likely a given error will have tainted the trial as a whole. See t-larks,562..F. ,S_upp...a,t 769
(the proffered error "constitutes at most a slight defect in the three-week trial of this
action,"). In a lengthy, factually complex case such as this one, it is much more likely that it
is "highly probable" that any given error did not affect the outcome of the case. See
McQltee..DeY,229E2,d_aJ..9XZ. For this reason, many of the rulings the defendant takes issue
with would be harmless, if they were indeed erroneous, Finally, the fact that the court may
have neglected to mention an argument advanced in one of the briefs Is not to imply that the
court has ignored It; rather it is to imply that some of the arguments advanced by the parties
do not merit a response in this Opinion, n7
_ _ _ - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n6 The standard for determining when error Is harmless is the same in civil and criminal
trials, See McQlJeeJ:Ley,_ZZ5LE.,2~Cat92,,:!. "[A] court can find that such errors are harmless
only if it Is highly probable that the errors did not affect the outcome of the case."
McQueeOJ;!y,_779" .c.2_dilt 917. [**11]
n7 The briefs filed by the defendant in support of these Motions exceed 174 pages, The briefs
filed by the plaintiff exceed 106 pages. Finally, the appendices filed by the parties exceed
1845 pages,
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
~
A. The Plaintiffs Use of Negligence Concepts at Trial
The defendant argues that the plaintiff impermissibly introduced negligence concepts into this
strict liability trial. SpeCifically, the defendant objects to the plaintiff's references to Isuzu's
knowledge of the Trooper's propensity to roll, see Def. New Trial Mem, at 24-25, and to the
plaintiff's references to Isuzu's knowledge of alternative seatbelt designs, See Def, New Trial
Mem, at 27, Although these references may have included terms often seen in negligence
~
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cases, they were proper In the context of this particular strict liability case.
The Pennsylvania courts n8 have "embraced" Section 402A, See Azzarello v. Black Bros. Co"
480 Pa, 547, 391 A.2d 1020., 10.23 (Pa, 1978); Webb v. Zern, 422 Pa. 424, 220. A.2d 853,
854 (Pa, 1966), In doing so, the Pennsylvania courts have made it clear that It is error to
allow the Introduction ["12] of negligence concepts In a 4D2A case. See Azzar~lIo, 391
A.2d at 10.27; Berkebile v, Brantly Helicopter Corp" 462 Pa, 83, 337 A,2d 893, 889 (pa.
1975) ("What the [party] Is not permitted to do directly, we will not allow him to do Indirectly
by Injecting negligence concepts Into strict liability theory."), The court finds, however, that,
rather than having Introduced negligence concepts into the case, the plaintiff Simply met its
burden of establishing a lack of crashworthlness In the Isuzu Trooper II. Any resemblance this
proof may have had to proof of negligence was purely coincidental, and necessitated by the
specific facts of this case, Indeed, It Is often the case that the plaintiff's proof In a 4D2A case
"rlllgs [*1218] of negligence." See Berkebile, 337 A.2d at 899. n9
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n8 Pennsylvania law is controlling in this diversity case. See Erie R,R._Co. v, Tompklns,3Q4,
1.),5,6'1,]9:80.,82 L._Ed.1188, 58 5, Ct, 817 (1938).
n9 Because of the fine line under Pellnsylvania law between permissible and Impermissible
proof In a 4D2A case the court took care to warn the plaintiff when its argument started to
sound too much like a negligence case. See App, IV p. 166 1. 4-7.
_ _ - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - [**13]
The plaintiff in this case alleged, In a nutshell, that the Isuzu Trooper II was not crashworthy.
"Crashworthiness is simply a subset of strict liability." Roe_,v._O,eeJ:e,a-"-d_CoJ/Joc.,_,8Jj,S-E~2!:!,
1_5J,.15'l(3cLCir.1988), In order to prevail on a crashworthlness theory under Section 4D2A,
a plaintiff must prove 1) that there was an alternate, safer design that was practical under
the circumstances; 2) the injuries that would have resulted if the alternate, safer, design
had been used; and (as a corollary to the second element) 3) the extent of the enhanced
injuries attributable to the defective design, See Hab,ecker v.Clark Eql[ipmeotCQ.,9!l2F.2d,
21.o.,,21H3d_Cir., 1991) (applying Huddell); Hudd,ell v.,Levin, 53_7J.2d,Z2.6, 'Z3'Z: 3 fL(3d c:ir.
1.97_6); see also &oe,855 F.2d,at 153 n.2 (Huddell is applicable to cases brought under
Pennsylvania law).
The plaintitrs arguments concerning the propensity of the Isuzu Trooper II to roll, and the
defendant's knowledge of this fact, were simply directed towards proving the existence of a
defect and thus towards meeting the plaintiffs burden of proof, See liIJJ:tdeJLSn,E._2<taJ'Z34
[**14] ("As a rule the mere occurrence of an accident is not sufficient to establish that the
product was not fit for ordinary purposes,"); Be[kebi[e'n33]_,t>,.2d_i!U\9J~ ("Strict liability
requires, in substance, only two elements of requisite proof: the need to prove that the
product was defective, and the need to prove that the defect was a proximate cause of the
plaintitrs injuries.") (footnote omitted); Restatement (Second) of Torts 9 4D2A comment g,
This proof of a defect resembles, on its face, proof of negligence because the plaintiff used a
two step argument in order to establish that the Trooper was defective, The plaintiff did not
argue that the Trooper is defective because it has a propensity to roll. Rather, the plaintiff
argued that, given the Trooper's known propensity to roll, the seatbelt was defective
because it could not perform adequately under the conditions that were expected to obtain.
See App, I p, 149 1. 4-13 (plaintiff explaining, and defendant acknowledging understanding
of, this theory of the case); App. III p. 30.3 1. 11 - p. 30.4 1. 14 (summarizing the plaintiff's
theory). nlo.
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~
nlD The plaintiff was obliged to make such a two step argument, In other cases,
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manufacturers of utility vehicles have successfully argued that, since a utility vehicle must
have a narrow track width and a high center of gravity in order to be operated off the road, a
utility vehicle which has a high rollover propensity Is not defective, See App. I p. 89 1. 2-11,
This argument advanced by the manufacturers of utility vehicles resembles an adage familiar
to every first year law student -- a knife Is not defective simply because it is sharp, See
Berkebile, 337 A.2d at 899 (discussing sharp knives); Restatement (second) of Torts !i 402A
comment I (dlscussln9 sugar, whisky, tobacco and butter). The plaintiff's theory of the case
resembles the following argument: given a sharp knife, the manufacturer has an obligation to
design the handle In such a way as to prevent the user's hand from slipping onto the blade.
The knife Is not defective because of the blade, but because of the handle. Absent such a
sharp blade, the manufacture would not have to supply such a good handle. Cf. App. I p. 282
1. 10-13 ("The theory Is . , , that the product Is unsafe because It's more prone to fatal
rollovers than other vehicles, and therefore you should take special case [sic] with the
restralllt system, that Is the theory.").
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Since a manufacturer Is not liable for damages resulting from the abnormal use of Its
products, see Restatement (Second) of Torts !i 402A comment h, the plaintiff was obligated
to prove that rollovers In the Isuzu Trooper II were expected, It Is only if the enhanced
expectancy of rollovers could be proven that the defendant would have a duty to design a
seatbelt system which would function safely during such an event, For this reason, the
plalntifrs proof regarding the propensity of the Trooper to roll was a necessary part of the
plaintiff's prima facie 402A case.
Similarly, the plaintiff's comments regarding the defencfant's knowledge of alternative
seatbelt designs were Integral parts of the plaintiff's case under Huddell. [*1219] The
plaintiff had to contend with the possibility that the defendant would deny the existence of an
alternative, safer seatbelt design. If the defendant did so, and if the jury agreed, the
defendant would prevail. See tJupdell,.53.i' E.2dat, 7n., Showing that the defendant knew of
the alternative seatbelt designs was therefore simply a way of proving that alternative
designs existed. n11 This was explained to the defendant at trial. See [**16] App, I p. 451.
8-10. See also App. I. p. 67 1. 19 - p. 69 1. 2. For these reasons, the court finds that
negligence concepts were not improperly introduced at trial.
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n11 Although this type of proof might not be the best proof of an alternative design available,
an attorney is not required to produce the evidence most probative of her position,
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B. "Arrogance"
The defendant claims that the plaintiff's use of the word "arrogance" n12 thirteen times
during rebuttal argument was prejudicial and warrants the granting of a new trial. n13 See
Def, New Trial Mem. at 22-23. The court disagrees. All attorneys have an ethical duty to
zealously advocate their client's cause. A court can "not expect advocacy to be devoid of
passion," D.LilpeJ-Y"hJrcQ,Jnc., 580 F.2d, 91,95 (3dCir, 1978) (Higginbotham, ],).
Notwithstanding the sometimes passionate nature of zealous advocacy, a court must place
"restraints against blatant appeals to bias and prejudice," Draper, 580 F.2.d,aJ,95.
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-
n12 Counsel for the plaintiff specifically stated that he was referring to the arrogance of the
defendant, not to the defendant's counsel. See App, IV p. 1921. 4-7. [**17]
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n13 The defendant did not make a contemporaneous objection to the plaintiff's use of the
word arrogance. See App. IV p. 192 1. 4 . p. 204 1. 4, Although the failure to make a
contemporaneous objection Is usually a bar to the assignment of error, there Is some caselaw
which suggests that a contemporaneous objection Is not necessary In this particular context.
See Anastasio v. Scherlng Corp., 838 F.2d 701, 706 n.\1 (3d Clr. 1988), For this reason, the
court will consider the merits of the defendant's argument.
_ _ _ _ _ _ . . . _ . . _ _ . - - End Footnotes- - - - - - . - - - - - - - . - .
A trial court has discretion to determine where the line between zealous advocacy and an
appeal to prejudice lies. See Kloepfer v, Honda Motor Co."Ltd.,898P,2d l4.52,,1461.(10th
CI(,,1990); Matthews v, cn Container Transport Internatlonal,lnc" 87U::,2d270, 278 (2d
CI(,_.1,\1I39); Draper, 580F.2d at 94; Neal v, Carey Canadian Mines, Ltd., 518f, S,uPp.,357,
3sJL(E,D"ea,_1982) (Bechtle, J,), aff'd, 760f.2d 481 (3dClr.1985), In determining when an
attorney's statements [** 18] have ceased to be advocacy and have begun to appeal to bias
and prejudice, trial courts have been instructed to examine the "cumulative thrust of
plaintiff's counsel's argument." Draper, 580 F.2d at 95. See also Anastasio v, Schering Corp.,
83lLE,2d~701,706 (3d Clr. 1988). Trial courts have also been reminded "not every Improper
or poorly supported remark made in summation Irreparably taints the proceedings, . . ,"
Matt~ews, 871 F.2d at 278; see also Interstate Markings v. Mingus COnstructors, 941 f.2d
1010'd1015 (9thCir,1991),
Looking at the plaintiff's rebuttal argument as a whole, it Is clear that the plaintiff's tactical
choice to label the defense as "arrogant" was within the bounds of zealous advocacy. n14
Even If the plaintiffs rebuttal had departed from the realm of zealous advocacy, the
departure would not have been sufficient to prejudice ttie defendant. After hearing testimony
for three weeks, the court does not believe that the jury was improperly swayed by these
thirteen words, even if these words did come at the conclusion of the trial. Cf, Loughman,
z'tO_E,_supp,.at,lI23 [**19] (declining to grant a new trial because there was "no
reasonable probability that the jury was influenced Improperly by counsel's comments,").
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n14 Surely the defendant does not contend that any characterization of the opposing party's
case Is impermissible. Had Julia Dorsett's injuries been limited to "whiplash," the defense
might have been sorely tempted to use terms stronger than "arrogance" to describe the case
presented by opposing counsel, The court will not prevent attorneys on either side of the
courtroom from employing forceful advocacy,
_ _ _ _ _ _ _ _ _ _ _ - - - - . -End Footnotes- - - - - . - - - - - - - - - - .
Indeed, courts have approved of tactics far more caustic than those chosen by the plaintiff in
this case. In a lawsuit for the breach of a performance bond, the Court of [*1220] Appeals
for the Ninth Circuit refused to overturn a jury verdict because of the plaintiff's use of the
phrase "Aetna, we never met ya" during closing argument, See InteLS1<lJ;tU1arklng,!;,_941~L.2d
aL1.0J,~, In a case involving the breach of a contract to deliver 011, the Court of Appeals for
[**20] the Fifth Circuit held that the plaintiff's references to Colonel Moammar Khadafy
during closing argument were harmless error within the meaning of Fed. R, Clv, P. 61. See
i"lLsl;JJQ:l\'LalQl.c.\!. .Occid,entaLCrud e5ales, _ I nc., 848,P,2d.6J3,.6.19..:2(LC5J;.!LCi r ..1.9J1Jl)~
Similarly, this court refuses to reverse a jury verdict because of the plaintiff's use of the word
"arrogance."
~
C. The Plaintiff's Use of Analogies to Movies and potholes
.-
In its case-in-chlef, the defendant argued that Julia's injuries were caused by a "slamdown"
(i,e, her injuries were caused by the shock transmitted through her buttocks when the
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Trooper's wheels hit the ground during the rollover). See App. III p, 2521. 12-18, In closing,
the plaintiff suggested that, If what the defendant's experts said was true, people would be
constantly Injured while shooting stunt movies or while driving over potholes, See App. IV p.
1781. 6 - p, 179 1. 3. n15
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n15 The plaintiff also attempted to meet the slamdown theory 011 the merits, See, e,g., App. I
p. 446 1. 10 - 449 1. 3 (Perrone testifying that a slamdown could not have caused Julia's
InjurIes).
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The defendant objected to this argument. In response, the court reminded the jury that It
was not to consider its personal experiences when deciding the case. See App, IV p. 179 1.
10-11. The court also suggested, however, that the plaintiff's analogy was, In part, fair
argument, See App, IV p. 179 1. 5, In making an analogy to movies and potholes, the
plaintiff was appealing to the jury's common sense In an effort to convince the jury to credit
the plaintiff's experts over the defendant's experts. Such appeals to common sense are
proper, Even If this appeal was, at some level, improper, it cannot be said that Is It highly
probable that this particular appeal was outcome determinative, See Matthews, 871 F.2d at
27,8; McQueeney, 779 F.2d at 917. The court therefore declines to order a new trial on this
contention.
D. Analogies Drawn to Kathleen Herbison's Injuries
In closing, the plaintiff also referred to Kathleen Herbison's injuries. See App. IV p. 173 1. 8-
12. The defendant now argues that allowing this argument was error, since there was no
testimony regarding the cause of Kathleen's injuries.
In urging this argument upon the [**22] court, the defendant has ignored the existence of
testimony that Kathleen and Julia had the same injuries. Dr. Jerome Cotler testified by
videotape deposition that "there were two young ladies simultaneously that were admitted to
this institution that were Involved in some motor vehicular accident, and they both had
relatively comparable, at least as far as I was concerned, injuries, and particularly from an
orthopedic standpoint, a spine standpoint." App. IV p. 291 1. 21 - p. 292 1. 2, He further
testified that "what was interesting to us was, her riding mate [Kathleen] had an identical set
of injuries at Thoracic 12 and 1 and at Cervical 3-4." App. IV p, 314 1. 8-10, Dr, John
Bomalaski also testified that Kathleen's injuries were similar to Julia's. See App. J. p, 328 1.
11 - p. 330 1. 12.
Cotler also gave his opinion as to why Kathleen had sustained less severe injuries than Julia.
See App, IV p. 314 1. 14 - p. 315 1. 10. It is this testimony which laid the foundation for the
plaintiff to ask the jury to infer that Julia and Katherine's injuries had the same cause,
Although Cotler never explicitly stated the source of the "energy" which was "equally
distributed" in Kathleen, [**23] see App, IV p. 314 1. 20-21, the jury heard ample
testimony that a C-3/C-4 cervical subluxation could only be caused by a "top down" force
(i.e. by the head hitting the roof). See App. I p. 430 1. 25 - p. 431 1. 9; App, J. p. 456 1. 2-
12; App, IV p. 58 1. 9-11. See also App. IV p. 322 1. 22 - p. 324 1. 22 (a head strike is
compatible with a C-3/C-4 cervical subluxation). [*1221] Since it was not disputed that
Kathleen had suffered a subluxation, the jury could infer that she had come into contact with
the roof, and was therefore out of her seatbelt during the rollover.
-
Finally, even if there was not sufficient evidence of the cause of Kathleen's injuries to merit
comment during the plaintiff's closing, the error would be harmless. The reason the plaintiff
made the comparison was to show that Kathleen was out of her seatbelt, See App, IV. p.
1731. 12. The plaintiff could just as easily have argued that, since neither Whalen nor
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Benner-Smith testified that they released Kathleen from her seatbelt, Kathleell must not
have been restrained by the seatbelt during the rollover. Since the plalntirr's thrust could
have been made by other mea liS, and since it was a mlllor thrust In the ["24J context of a
major trial, it Is "highly probable" that any error that occurred did not affect the jury's
verdict,
E. The Direction of the Force Which Caused Julia's Injuries
During the trial the defendant argued that, had Julia's head come Into contact with the roof of
the Trooper during the rollover, she would have sustained head or neck Injuries. For this
reason, the defendant spent a great deal of time arguing that Julia had not sustained a C.
3/C.4 cervical subluxation, see App. I p. 344 1. 11 - p. 350 1. 25, or bruising to her head,
See App, I p, 139 1. 22 - p. 140 1. 4; App. I p. 350 1. 24 - p. 353 1. 10; App, IV p. 74 1. 22-
23.
The jury heard testimony, though, from which it could conclude that Julia had sustained a C-
3/C-4 cervical subluxation. See App. I p, 140 1. 21 - p. 141 1. 1; App, I p. 325 1. 14-16;
App, I. p. 333 1. 23 - p. 334 1. 25; App. IV p, 313 1. 22 - p. 314 1. 7; App. IV p, 330 1. 6-
12,; App, IV p, 354 1. 4-23, The jury also heard testimony that the human skull Is capable of
sustaining a blow capable of causing Julia's Injuries without bruising, See App. I p, 463 1. 9-
17; App. I p. 525 1. 8-20 ("Would you absolutely expect to find a head Injury [**25] In
order that you would have the Injury at T12/Ll and the subluxation, C3/C4? A: No, The skull
can take loads up to 1,000 pounds or more so, depending upon the distribution of the load.
And the way that deforming -- so the fact that there is no skull fractllre is not at all
surprising. It's well within what one would expect. The fact that there wasn't an Injury
manifested In the form of a trauma, I think it's feasible and possible and I think that it was __
in my jUdgment, it doesn't rule out the prospect that th'e load was applied despite the fact
that there was no registering of a complaint, per se."). This testimony presented the jury with
a classic credibility determination, It could have chosen to believe either the plaintiff's or the
defendant's witnesses. The court Is not permitted to second-guess this credibility
determination In the context of a Motion for JNOV or a New Trial. See Bnaya, 832 F.2d at
262.
The jury also could have concluded that Julia's injuries were caused by a glancing, rather
than a direct, blow to her head. In closing, the plaintiff invited the jury to draw this
conclusion by referring to bruises Julia sustained to her inner ear during [**26] the
accident. The defendant claims that allowing this argument was error because there was no
testimony from which the jury could have concluded that such bruising occurred. In fact, the
jury heard testimony that Julia had sustained bruising in the area of her left eye and on the
"inside" of her ear, by the tympanic membrane. See App. 1. p, 325 1. 8-11. From this the
jury could infer that Julia had hit her head on the roof of the Trooper, even if no witness was
able to Identify a specific "head strike mark."
Finally, even if there were no direct evidence of a "head strike" (i.e. if there was no bruising
to Julia's head, and if no witness could identify a "head strike mark" on the roof of the
Trooper) the jury would still be permitted to infer that a head strike had occurred, See App. J.
p. 425 1. 2-4; App. IV p, 59 1. 23 - p, 60 1. 18. While such an inference would not be
mandated, it was within the realm of permissible conclusions the jury could have drawn
based on the evidence presented at trial. No miscarriage [*1222] of justice would have
resulted if the jury had reached such a conclusion, A new trial is therefore improper,
F. Identifying the "Head Strike"
~
At trial the plaintiff [**27] expended a great deal of time and energy trying to convince the
jllry that Julia's head had come into contact with the roof of the Trooper during the rollover.
The plaintiff did so because, according to the plaintiff's theory of the case, Julia's head could
have only come into contact with the roof if the seatbelt had failed to restrain her, For
~
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obvious reasons, the defendant spent even more time alld energy attempting to convince the
jury that Julia was restrained by her seatbelt during the entire rollover, and that her head
never came Into cont3ct with the roof of the Trooper, The defendant now claims that errors in
the plalntirr's Identlricatlon of an alleged "head strike mark" on the roof of the Trooper merit a
new trial.
Before discussing the admissibility of the plaintirr's evidence of the alleged head strike mark,
the court must point out that the Identification of a head strike mark was not necessary to
the plaintiff's case. The jury could infer that Julia's head came Into contact with the roof of
the Trooper during the rollover in either of two ways. For this reason, any error Involving the
Identification of the head strike mark would be harmless.
First, the jury could credit ["28) Perrone's testimony that a T-12/L-1 fracture cannot be
caused by "bottom up" forces. See App, I p, 428 1. 22-25, If the jury found that Julia's
Injuries could not be caused by "bottom up" forces, the jury was free to Infer that the injury
had to be caused by "top down" forces, I.e. by a blow to the head, If the jury made this
Inference, It would be logical for the Jury to conclude that the source of the top down force
was a blow to Julia's head, n16
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n16 The Jury also heard testimony that the roof of the Trooper had deformed Inward over the
driver's side of the passenger compartment, See App. J. p. 123 J. 24 - p, 124 1. 3. While the
plaintiff did not argue a separate "roof cru3h" theory, see App, J. p, 291 1. 2 - p. 292 1. 12;
App. III p, 302 1. 11-15, the evidence of roof deformation would allow the jury to conclude
that Julia's injuries were caused when her seatbelt allowed her to slip out of her seat by a
couple of inches, but otherwise restrained her, Metapho'rically speaking, the evidence of roof
deformation meant that the plaintiff's case had "less ground" to cover. See App, I p. 442 1.
23 - p. 443 1. 5,
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Second, the jury was presented with ample evidence from which It could conclude that Julia
had sustained a C-3/C-4 cervical subluxation. See App. I p, 140 1. 21 - p. 141 1. 1; App. I p.
325 1. 14-16; App, J. p. 333 1. 23 - p. 334 1. 25; App. II p. 28 1. 12 - p. 29 1. 6; App. IV p,
313 1. 22 - p, 314 1. 7; App, IV p, 330 1. 6-12,; App. IV p. 354 1. 4-23. The jury could
conclude that such an injury could only have been caused by a blow to the head, See App. I
p. 4301. 25 - p, 4311. 9; App. J. p, 456 1. 2-12; App. IV p, 58 1. 9-11. See also App. IV p.
322 1. 22 - p, 324 1. 22 (a head strike is compatible with a C-3/C-4 cervical subluxation).
The jury could have also found direct evidence that Julia's head came into contact with the
roof of the Trooper during the rollover, On direct examination Perrone identified a head strike
mark on a picture of the Trooper that Julia had been driving on December 22, 1987. See App,
I p, 432 1. 9-12. See also App, I p. 466 1. 3-8 (Perrone circling the head strike mark on
Exhibit P-36), The defendant attempted to discredit this testimony during cross-examination.
See App. I p. 4661. 10 - p, 467 1. 17.
During its case-in-chief, [**30] the defendant argued that the mark ide'ntified by the
plaintiff was caused by a forklift which had. been used to move the Trooper after the accident
had occurred, See App. III p, 36 1. 3 - p, 38 1. 21. See also App. IV p, 86 1. 11 - p, 89 1. 10
(defendant's rebuttal).
~
Faced with this testimony, the plaintiff backed away from Exhibit P-36, During the plaintiff's
rebuttal, Cantor testified that, in his opinion, Julia's head had been struck a "glancing blow"
by her left ear, See App IV, p, 56 1. 1-18; App, IV p, 73 1. 17-21. The defendant now objects
to this testimony, Since the defendant had ample opportunity to cross-examine Cantor about
[* 1223] any changes in his testimony between the plaintiff's case-in-chief and rebuttal, see
,-
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App, IV p, 72 1. 17 - p. 74 1. 10, any error which might have resulted would be harmless.
The jury was perfectly capable of evaluating the credibility of an expert witness who altered
his testimony during the trial. Apparently, the jury felt that Cantor remained credible, and
that the alteration of his testimony was minor, The jury was entitled to come to this
conclusion, The court Is unaware of any case which holds that a new trial Is mandated when
["31] a witness alters his testlmollY during the trial alld declines to set such a precedent In
this case, n17
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1117 The court also notes that the defendant was offered additional time to prepare to meet
the plalntirrs new thrust. See App. IV p, 95 1. 5-17. The defendant declined to avail itself of
this opportunity.
- - - - - - - - - . - - - - - . -End Footnotes- - - - - - - - - - - - - - - - -
G, The Scope of Perrone's Expert Report vis a vis the Head Strike, the Direction of Force, and
the Mechanism of Injury
The defendant claims to have been prejudiced when Perrone circled the alleged head strike
mark on Exhibit P-36. n18 The defendant objects both because the "circled" photograph was
not produced prior to trial, and because Perrone's expert report did not Identify the head
strike mark. Similarly, the defendant argues that Perrone's report did not include a
description of the mechanism which caused Julia's injury, nor the direction from which the
injuring force came. Since the court recognizes that it is not possible to submit a verbatim
transcript of an expert's testimony as an expert report, [**32] the court has never
required that everything an expert testifies to be contained in the report, So long as the
report Is sufficient to put the opposing party on notice as to what the expert would say, the
court will allow the expert to say it. See App. II p. 291 1. 22 . p. 292 1. 15; App. II p. 340 1-
13-17 (ruling that the plaintiffs objection to the representativness of defense expert's study
goes to the weight of the study); App. III p, 209 1. 18-24 (overruling the plaintirrs objection
to a defense expert's testimony); App. III p. 248 1. 21 - p, 252 1. 4 ("the record should also
show that there's no surprises with this vehicle. The theory in this case has been disclosed,
the defense has been disclosed and the nit picking of how you're going to prove It is not what
we're talking about, was it, in the pretrial discovery stage?"). The position taken by the court
during the trial is amply supported by the caselaw. See e,g" MaIl<s,59,2-E._S,UPR.__Q]:~6_6 ("As
the preceding discussion had Indicated, [defense] counsel was quite well prepared for [the
expert's] testimony and launched a vigorous attack on it at trial. [The defendant] has at
most pointed out minute [**33] variances between plaintiffs pretrial paraphrasing of the
[expert's] testimony and the actual [expert's] testimony, Such quibbling on [the
defendant's] part does not support a grant of judgment n.o,v. or a new trial,").
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - . - - - - - - - - - - -
n18 In a trial of this complexity, occasionally exhibits which were not disclosed in the pretrial
process will surface, During this trial, some exhibits which were not identified during
discovery were admitted on behalf of the defendant. See App. III p. 36 1. 7 - p, 37 1. 8,
- - - - - - - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - - - - -
On cross-examination, Perrone admitted that his reports did not specifically identify a head
strike. See App. I p. 466 1. 22 - p. 467 1. 17. Perrone did, however, testify that the head
strike mark was "documented," "marked" and "describe[d)" in his report. See App. I p, 467 1.
9-10,
Indeed, although Perrone's report of May 30, 1991 did not specifically state that Julia's head
came into contact with the roof of the Trooper, nor that this contact was the mechanism for
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Julia's Injury, It defies both logic alld common sense [" 34] for the dt'fendant to argue that
It was not aware that Perrone would testify that Julia's Injury was caused when her head hIt
the roof, On page three of his report, Perrone opines that "both of the vehicles' occupants
suffered similar Injuries which were associated with a significant force component being
applied to their spinal column during the rollover portion of the accident." App. V p, 40 1. 9-
12, While Perrone does not specifically state that the direction of this "significant force
component" was "top down," ['1224] he criticizes the roof design used in the Trooper no
less than four times on that page of his report. Indeed, Perrone even went so far as to say
that "If the Trooper II had a tilt lock-latch mechanism sllch as existed In many millions of
Americall vehicles, then the lap belt portion of the restraint system would have maintained Its
fixity and permitted much less occupant motloll relative to the roof of the vehicle during the
rollover." App. V p, 40 1. 23-28 (emphasis supplied),
Having received this report, the defendant's argument that Perrone's pre-trial reports did not
specify either the direction of force or the mechanism of Injury amount to mere "quibbling,"
Although [**35] it might have been preferable for Perrone to have stated expliCitly his
conclusion that Julia's Injury was caused by her head hitting the roof, the defendant was on
notice that this would be the substance of Perrone's testimony,
Since it was on notice as to the substance of the opinions which would be offered at trial, the
defendant had ample time to prepare its response to the plaintiff's experts. If the defendant
thought it needed still more time, it could have requested a recess in the trial. See App, I p.
293 1. 3-6 ("THE COURT: I'll give you a call back if there is a problem, You have plenty of
time -- we're going to have a hiatus of two weekends, plus Wednesday, Thursday and Friday,
You can certainly get ready in time,"), Since the defendant did not request a recess, it cannot
now complain that it lacked the time to prepare effectiv,e cross-examination.
The fact that the defendant was not provided with a "pre-circled" Exhibit P-36 prior to trial
does not mean that the trial was unfair. The defendant's cross-examination of Perrone
immediately after he circled the alleged head strike mark on P-36 was immediate, detailed,
and probing. See App. I. p. 466 1. 3 - p. 467 1. [**36] 13, The defendant was also
prepared to offer testimony discrediting Perrone's use of P-36 in its case-In-chlef. See App, III
p. 36 1. 3 - p. 38 1. 21. See also App. IV p. 86 1. 11 - p, 89 1. 10 (defendant's rebuttal). n19
In light of the defendant's reaction to Perrone's identification of the alleged head strike mark,
the court cannot perceive any error or prejudice in the proceedings,
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - . - -
n19 This testimony was apparently effective since the plaintiff changed its position during
rebuttal, Ironically, the defendant claims that this shift in the plaintiff's position also
constitutes error, See Section F., supra.
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Finally, Perrone was qualified at trial to render an opinion as to the mechanism of Julia's
injury. Perrone testified that much of his work in the Navy had related to biomechanics,
specifically to the causes of skull fractures, See App, I p, 372 1. 13-23, He also testified that
he had lectured on the biomechanics of vehicle impact, See App. I p. 376 1. 11-15, Given this
background, and given [**37] the documents Perrone reviewed prior to forming his opinion,
see App, I p, 412 1. 20 - 413 1. 23, Perrone was qualified to opine that Julia was injured
when her head came into contact with the roof of the Trooper during the rollover.
~
H. The Qualification of Benjamin Kelley to Testify as to the Significance of the FARS Data and
FMVSS 209
,-
The defendant claims that it was error for the court to allow Benjamin Kelley to testify as to
the policies behind FMVSS 209 n20 and the significance of certain Fatal Accident Reporting
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System ["FARS"J data. While the defendant is correct when It asserts that a doctoral degree
does not confer upon the bearer an absolute right to testify, n21 the federal courts have
maintained a liberal polley of admitting expert testimony, See In Re Paoh R.R. Yard PCB
Litigation, 916 F.2d 829, 856 (3d Clr. 1990), cert, denied, U.S, ,111 S. CI. 1584
[*1225J (1991); Roe, 855 F,2d at 155; Loughman, 740 F. Supp, at 1123, This Is because,
once the court deCides that the expert's testimony would be helpful to the jury, the jury Is
entitled to evaluate the testimony, See In Re Air Crash Di:;aster at New Orleans, La" 795
F.2d 1230,1233 (5th Clr. 1986); ("38J Roc, 855 F.2d at 155 ("Helpfulness Is the
touchstone of Rule 702,") (citation omitted); Fed. R. Evld, 702, The court has broad
discretion In determining when an expert is qualified to render a helpful opinion. See Viterbo
v. Dow Chemical Co" 826 F.2d 420,422 (5th Clr. 1987); Aloe, 816 F.2d 110 at 114; Shipp v.
General Motors CO.,}50 F.2d 418, 422 (5th Clr, 1985).
. - - - - - - - - - - - - - - - - -Footnotes- - - - _ _ _ _ _ _ _ _ _ _ _ _ _ _
n20 FMVSS (Federal Motor Vehicle Safety Standard) 209 sets forth the minimum
requirements for seatbelts,
n21 See JI1Re Air Crash Disaster at New Orleans, La., 795 F.2d 1230, 1234 (5th Clr. 1986)
("Our message to our able trial colleagues: It Is time to take hold of expert testimony in
federal trials. ").
- - - - - - - - - - - - - - - - -End Footnotes- - - _ _ _ _ _ _ _ _ _ _ _ _ _ _
In its Memorandum, the defendant seems to take the positioll that Kelley lacked the
educational qualifications to render expert opinions as to the policies behind FMVSS 209 and
the FARS data. In so arguing, the defendant overlooks that portion of Fed. R, Evid, (**39J
702 which provides that a witness may be qualified as an expert on the basis of "knOWledge,
skill, experience (orJ training." Fed, R. Evid, 702, See also AloeL816E.2daJ 114" During voir
dire, Kelley testified that he had spent two years In a senior position with the Federal Motor
Vehicle Safety Regulatory Program during which time his duties were to make and carry out
regulatory policy. See App, I p. 158 1. 18-23, See also App, I p, 160 1. 13 - p. 161 1. 4, App.
I p, 177 1. 19 - p, 178 1. 2.
On the basis of this experience, and the knOWledge and training Kelley gained while he held
this position, the court allowed him to testify as an expert on government automotive
regulations and safety polley. The court expliCitly ruled that scientific training was not needed
to testify in this area. See App. I p, 184 1. 15-16, In addition, the court warned the jury that
Kelley was not a trained scientist, and that the jury should pay careful attention to the basis
upon which Kelley rested his conclusions. See App. I p. 185 1. 6-16, The court also offered to
give cautionary instructions relating to the FARS data. See App, I p. 152 1. 12-13; App. I p,
153 (**40] 1. 2-9.
Given Kelley's background, he was qualified to testify as to what FMVSS 209 required. See
App, I p. 188 1. 17 - p, 189 1. 1. While Kelley was not allowed to testify to medical
conclusions, see App. I p, 189 1. 16-22, or to technical design characteristics, see App. I p,
178 1. 1-2 (Kelley admitting that he does not have technical expertise). the goals and
policies of FMVSS 209 do not fall into those categories. Similarly, having made automotive
safety policy, Kelley W~s qualified to explain the significance of a database containing
information concerning automotive safety. See App, I p. 193 1. 19 - p, 1941. 6. He was not
qualified to give technical opinions based on the FARS data, nor did he attempt to do so.
Given Kelley's experience and the scope of his testimony, the defendant has no basis to
complain.
-
1. Alan Cantor's Qualification to Express Expert Opinions As to Causation
The defendant contends that Alan Cantor was not qualified to express opinions as to the
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cause of Julia's Injuries, alld that his testimony should have been limited to techllical
engineering Issues, After reviewing the record, the court Is satisfied that Cantor was qllafoned
to express ["41] the opinions he did.
Cantor testified that his background foes principally ill ellglneerlng, and that he specializes in
.occupant crash protection," See App, " p, 48 1. 17 . p, 49 1. 1. He also testified that he had
extensive experience working with the military designing ejection seats and other crash
protection devices, See App, " p, 50 1. 6 p, 52 1. 20, The defelldant's objection arises out of
certain statements Cantor made during voir dire. Specifically, Cantor testified that
I do consistently say that I do not talk about what happens Inside the body, I do 1I0t talk
about what specifically breaks a specific bone. I normally talk about what are the types of
things that cause Injuries to regions of certain bodies. I look at the body from the outside In,
rather than looking at Injuries from the Inside out.
App, 11 p. 78 1. 12-18. From this, the defendant concludes that Cantor Is not a [*1226]
blomechanlcal expert, see App. 11 p. 78 1. 20 - p. 79 1. 23, and that he should not have
been allowed to opine that Julia's InjurIes were caused by her head coming Into contact with
the roof of the Trooper during the rollover. See App. 11 p. 104 1. 16 - p. 106 1. 16
(defendant's objection ["42] to Cantor's opinions regarding causation); App, 11 p, 175 1.
18-25 (same),
The defendant's objection to Cantor's testimony is based on an artificial (and unrealistic)
distinction between an engineering and a biomechanlcal expert. Although the defendant
disagrees with the substance of Cantor's opinions, the defendant concedes that Cantor was
qualified to render opinions regarding the engineering aspects of seatbelt systems. What the
defendant does not seem to understand Is that, in this context, Injury causation and
engineering are Inexorably Intertwined. An engineer could not testify as to whether a
seatbelt system was safe without knowing what Injuries would result if the seatbelt system
were used. Engineering, like torts, cannot be left "floating in the air,"
An engineer cnn have the requisite knowledge to render opinions regarding the safety of
various systems without possessing a detailed knowledge of anatomy, Cantor explained this
when he stated
I could -- I have predicted that there would be an injury happening to, for example, the C2-
C3 vertebrae area would be where my prediction would end, but I would not be able to --
would not predict whether that C2-C3 injury would be [**43] a fracture of the anterior
wedge of the body or the posterior edge of the body or whether It would involve the laminae
or the pedlc1es of the spine.
App, 11 p, 176 1. 9-15. Thus, Cantor had knowledge of, and experience In predicting, the type
of injury which would occur If a given seatbelt was used, even if he could not predict the
exact injury which would occur. Cantor was, therefore, qualified to testify as to what types of
injuries he would expect to see if certain seatbelts were used, and that the injuries Julia
received were caused by the seatbelt design.
J. The Evidence of What Injuries Julia Would Have Sustained Had an Alternative System
Been Used
~
In order to establish a prima facie case, the plaintiff had the burden of showing what injuries
she would have received had an alternative, safer seat belt design been used In the Trooper.
See l::!ud_d_eJk5)JJ~_2(ta.tJ3J. Testimony on this issue was prOffered by Perrone and Cantor.
Perrone testified that, had the alternative, safer design been used, Julia would not have
sustained a spinal injury. See App. I p, 460 1. 17-19 ("Yes, that if she had any of those belt
systems or devices she would not have [**44] suffered a spinal cord injury, that's
correct."). Cantor testified that, had the alternative, safer design been used, he "would
,-
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expect bumps and bruises and nothing severe to the spinal area at all. Possibly some leg
InJuries, but the spinal area should have beell protected." App. " p, 178 1. 3-5. Given the
quantitative and qualitative differences in damages between paraplegia and less severe
InJuries, such as those suffered by Kathleen Herbison (I.e, bumps, brulscs, and brokcn
bones, but with no permanent damage or paralysis), this testimony allowed the plaintiff to
claim full recovery under Huddell, n22
_ _ _ _ _ _ _ _ _ _ _ _ _ _ - - - -Footnotes- - - - - - - - - - - - - - - - - .
n22 The court summarized this position to counsel during the trial, See App, 111 p, 299 1. 12-
25.
_ _ _ _ _ _ _ _ _ _ _ _ _ _ - - -End Footnotes- - - - - - - - - - - - - - - - -
Naturally, the jury was not required to believe the testimony given by Cantor or Perrone. See
Hucidell" 537j'.2dat 73.6 n.4 ("Of all forms of evidence, opinion evidence Is the weakest and
least reliable, Even though uncontradicted It need not be accepted.") (citations omitted).
Because of the [**45J unique qualities of expert testimony, the court Informed the jury at
the outset of the case that "one of [ltsJ functions Is to sit here as super-experts and evaluate
what real experts say to you and then your obligation will be to determine whether the
expert testimony is helpful to you, whether you want to accept It or reject It." App. I p. 4 1.
20-24. By its verdict, It is apparent that the jury believed Perrone. The court will not disturb
this finding. See Ayoub,v.Spencer,S50 F.2d 164, 169 (3d Cir.), cert. denied, 432 U.S. 907,
53_L,_Ed,2dJ029,97.S.Ct.nl*1227J 2952 (1977); Huddell, 573 F.2d at 737 ("Certainly,
the credibility of opinion evidence is for the fact finder.") (citation omitted).
The defendant also assigns as error a statement made during closing In which the plaintiff
represented to the jury that both Perrone and Cantor testified that, had the alternative, safer
seatbelt been used, Julia would have only suffered bruising. See App. IV p. 186 1. 1-14. The
defendant points out that this testimony was only given by Cantor, and urges that it was
error to allow the plaintiff to give the jury the Impression that this testimony was also given
by Perrone, [**46J While it is true that counsel for the plaintiff was incorrect when he made
this statement, his error was harmless. n23 The court finds that plaintiff's characterization of
Perrone's testimony, while being "poorly supported," is supported by Perrone's statement
that, had an alternative seatbelt been used, Julia would not have suffered a spinal injury.
See App, I p, 4601. 17-19. Since the plaintiff's statement does find some support in the
record, the characterization of Perrone's testimony did not taint the proceedings, See
t;1,aJthews,JFU'_c2d__a,L2ZJI ("Not every improper or poorly supported remark made In
summation irreparably taints the proceedings."). The jury was instructed that the arguments
of the lawyers were not evidence, and that it was the jury's recollection of the evidence which
was controlling, See App, IV p. 123 1. 16 - p. 124 1. 5, n24 Especially in light of the minor
nature of the plaintiff's misstatement, the court is confident that the jury was not mislead.
_ _ _ _ _ _ _ _ _ _ _ _ _ - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n23 Courts holding that it is improper for counsel to refer to matters not In the record during
an argument qualify their holding by stating that "reversible error is committed when
counsel's closing argument to the jury introduces extraneous matter which has a reasonable
probability of influencing the verdict." Ay.oub,S50f'.2d.atlZO. (citations omitted). Counsel's
misstatement of the record during closing can therefore be harmless. [**47J
n24 It must be noted that the court gave the jury a similar instruction when the plaintiff
claimed that the defendant was misstating the record. See App. II p. 313 1. 16 - p. 314 1. 7.
~
_ _ _ _ _ _ _ _ _ _ _ _ - - - - -End Footnotes- - - - - - - - - - - - - - - - -
It is true that after a three week trial, plaintiff's counsel made a minor error recalling
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testimony that had been given weeks previously, The court/ rather than granting a new trial,
Is amazed that counsel could remember the testimony well enough to make only a single
error, Even if counsel are receiving dally copy of the trial transcrlpt, the court does not, and
Indeed It can not, Impose on counsel the burden of memorizing every word uttered by every
witness, In addition to determining the credibility of wltnesses, the jury's function Is to
determine what the various witnesses said, If the jury's memory is unclear, It can request thc
trial transcript to refresh Its collective recollection. Not only was this jury Instructed as to Its
ability to do so, It actually avallcd itself of the opportunity on two separate occasions. See
App, IV p, 207 1. 2 - p. 209 1. 20, See also App, III p, 282 1. 15-23 (THE COURT: ["48]
Let me say this, I don't remember that, I have notes on Whalen's testimony, I don't
remember what Whalen said about bruising, I'll leave that to you [the jury], If, at any tlme,
you have a question about a witness's testlmony, you'll tell us what you want to hear, Krls
can find It on her tape and replay It for you if you think It's Important. Then the lawyers can
ask Kris to do that also, But for our purposes/ we'll allow the questions to be asked, If there
were [sic] bruising. Whether or not there was Is up to you,"), For this reason, the court Is
confident that the misstatement by plaintiff's counsel did not taint the proceedings In any
way.
K. Julia's Position In the Car at the Time of the Accident
The defendant takes issue with the plaintifrs contention that, after the accident, Julia's feet
were sticking out the passenger window. There was, however, evidence from which the jury
could have made such a finding, William Whalen, the Emergency f4edical Technician who
responded to the accident, testified that Julia's feet were located in "the passenger side door
window area," App. I p. 127 1. 19-21. See also App. I p, 1:!9 1. 22 - p. 130 1. 6 (describing
[*1228] the steps needed to [**49] extract Julia from the Trooper given her position).
From this testimony the jury could conclude that the seatbelt did not restrain Julia during
the rollover, and that at the conclusion of the accident her feet were protruding from the
window,
In arguing that Julia was properly belted in after the accident, the defendant relies on
testimony by Kathleen Herbison, the passenger in the car Julia was driving. Kathleen testified
that she "perceived that part of [Julia's] body was in the seat belt [sic] and aliI -- I could tell
that her head was above me." App. I p, 12 1. 8-9. In relying on such testimony, the
defendant ignores the fact that Kathleen explicitly stated that only part of Julia's body was in
the seatbelt, n25 From this the jury could infer that the seatbelt had slipped off Julia's
pelvis, in violation of FMVSS 209. Additionally, in the next breath Kathleen testified that
there was no light when she observed Julia. See App, I p, 12 1. 10-15, The jury was certainly
entitled to discount the testimony of a witness who had just been involved in an automobile
accident and was now staring up into darkness,
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n25 On cross examination, Kathleen reiterated that part of Julia was restrained by the
seatbelt, and that Julia was "dangling." See App. J. p. 17. 1. 5-9,
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - [**50]
,-
Likewise, the jury could have discounted the testimony of Benner-Smith, The defendant
argues that Benner-Smlth, the first person on the scene of the accident, testified that Julia
had been restrained by her seatbelt. While Benner-Smith did testify that he had to release
Julia from the seatbelt, see App. I p, 106 1. 22 - p. 107 1. 3/ he did not testify as to where
her feet were located before he released her, See App. I p. 117 1. B ("I couldn't see her lower
body,"), Indeed, Benner-Smith never testified that Julia was tightly restrained by her seat
belt, See App, I p, 114 1. 14-17. From this the jury could conclude that, while the seatbelt
did not break, it did not restrain Julia tightly during the rollover, and that It allowed her to
slip and come into contact with the roof,
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L, Use of the NCAP Tests
At trial, the plaintiff proffered videotapes of, and expert testomony relating to, government
rlln NCAP tests, n26 See App, II p. 168 1. 19 - p. 17S 1. 15, The defendant objected, arguing
that the NCAP tests were not substantially similar to the rollover accident In question, See
App, II p, 168 1. 20, n27 The cOllrt overruled this objection, holding that the defendant's
[**51] argument regarding the lack of similarity betweell the NCAP tests and the accident
In question went to the weight of the evidence, See App, II p: 168 1. 24 - p, 169 1. 2,
. _ _ . . _ _ . - - - - - . - - - -Footnotes- - . . . - - - - . . . . . . - - -
n26 NCAP [New Car Assessment Program] tests are mandated by the United States
Government. Although it is not necessary to test every vehicle ever year, a procedure exists
whereby vehicles are "rotated" through the tests, The NCAP tests measure the damage
sustained by a vehicle (and a "dummy" simulating a driver and a passenger) after a frontal
Impact with a stationary barrier, The collisions usually Involve speeds of thirty or thirty-rive
miles an hour,
n27 The court rinds it interesting that the defendant wishes the court to take a restrictive
approach to the admissibility of expert testimony. The defendant did not take such a position
during the court's In limine hearing regarding the testimony of Dr. John Spikes, the
defendant's alcohol expert. Following the in limine hearing, the court overruled the plaintiff's
objections that Dr, Spikes' testimony was 1) not reasonably supported by evidence generally
relied upon by experts of that type; 2) not relevant to the case at bar; and 3) overly
prejudicial, See App. III p. 166 1. 8 - p. 203 1. 3 (testi~ony of Dr. Spikes).
_ _ _ _ _ _ - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - [**52]
In so ruling, the court implicitly made the threshold determination that the NCAP tests were
similar enough to the accident in question to be of some value to the jury. Such a ruling is
within the court's discretion. See Swajian v. General ,Motors Corp., 916J=, 2d_3J ,..36_(1 sLC1r..
19'=10) ("The decision of whether to admit or exclude videotaped [testing] evidence is left to
the sound and broad discretion of the trial judge.") (citation omitted); Roe,8SSE..2d atJ,S,4-
55; Sbipp,?SOf,2d,at427. The defendant's challenge to the court's exercise of discretion
must fail for two reasons.
First, there was evidence from which the jury could find that the accident In question involved
a frontal impact. See App, I p, 99 1. 22 - p, 100 1. 14 (Benner-Smith testifying [*1229]
that the front of the Trooper came into contact with the ground during the rollover), This
testimony laid a foundation for the introduction of frontal-Impact data,
Second, the NCAP data was probative of the performance of the Trooper's seatbelt. n28
Although the NCAP tests were not identical to the accident, they were similar enough to aid
the jury in determining what happened [**53] to Julia. See Shipp, 7S0,j'.2d"aL421.
(approving of the admission of vertical drop tests in a rollover accident case, and holding that
differences in the conditions simply affected the weight the jury should accord the evidence).
- - - - - - - - - - - - - - - - - - Footnotes- - - - - - - - . - - - - - - - - -
n28 The defendant makes much ado about Cantor's statement that "these [NCAP] tests
indicated that this seatbelt system was not matched to the Isuzu Trooper for other types of
crashes." App, II p. 170 1. 4-6, If the defendant would simply read the next line of
testimony, it would see that Cantor then testified that "Ms. Dorsett had a frontal crash
somewhere in the sequence, she obviously had some spoolout or motion put Into her before
she got into the rollover based on the type of performance we see from this system." App. II,
~ p. 170 1. 6-10 (emphasis supplied). This testimony provided another foundation for the
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Introduction of the NCAP data,
_ _ . _ _ _ _ _ _ - - - - - - - -End Footnotes. - - . . - - - - - - - - - - - -
(n addition to being probative, the court finds that the differences between the NCAP tests
and Julia's accident were 50 obvious [" 54] that there was no danger of confusing the Jury,
See App. 11 p, 1741. 17-21 (Cantor testifying about the differences between the NCAP tests
and a rollover), Even 50, the court would have given cautionary limiting Instructions, had the
defendant requested them. See App, I p, 61 1. 2-21.
M, Use of the "Trooper-on-a-Spit" Tests
Similarly, the defendant argues that the court should have excluded the "Trooper-on-a-spit"
tests performed by Cantor. In these tests, rather than Installing alternate seatbelts In a
Trooper, Cantor used a safety clip from a child's car seat In order to simulate the performance
of alternate seatbelt systems. See App. II p, 117 1. 4-15. Test dummies were then placed in
the Trooper, and the Trooper was rotated over a two minute period in order to simulate a
rollover (hence the moniker "Trooper-on-a-spit"). 5ee App, II p. 1151. 11 - p. 1161. 8. The
defendant claims that the Introduction of these tests was prejudicial error since Cantor
admitted that the testing "was not a re-creation of this accident." App, 11 p. 114 1. 8-9, n29
_ _ _ _ _ _ _ _ _ _ _ - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n29, The defendant did not raise this objection when Lee Carr, a defense expert, admitted
that "the tests that [he] did here, [his] purpose was not to try to illustrate how this accident
happened," App, II p, 332 1. 21 - p. 333 1. 1. See also App. II p. 342 1. 18 - p. 343 1. 9.
_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ -End Footnotes- - - - - - - - - - - - - - - - - [**55]
Again, in order to refute the defendant's argument, the court need do no more than read the
next sentence. Cantor went on to state that the test "was a physical comparison of systems
under the types of forces that would be seen worse in a rollover accident." App. II p. 114 1.
10-11. A test need not be identical to the case at bar in order to be admissible; the test need
only be similar enough to be helpful to the jury, See Elcan.dJ_v.,l'Iellcb,J;,3_8 F.2d_2ll9, 2t4.
ltQtbj::ir._l,~t8_1J" This test was similar enough to aid the jury in its quest for the truth,
Indeed, Cantor testified that the reason he performed the tests in the manner In which he did
was in order to isolate the performance of the seatbelt, See App, 11 p. 114 1. 17-20; App. II
p, 116 1. 1-8 ("we usually take two minutes because two minutes, if you do it in less than
two minutes you're putting other effects into the test and you want to do it very slowly so
that you can just isolate belt performance. You don't want to start throwing the bodies
around because that changes what you're trying to do. 50 the slowness of the test Is very
important in doing the comparison of one seatbelt to another."), He also [**56] testified
that, in his opinion, the use of the clip for testing purposes was preferable to Installing
alternate seatbelt systems, See App, II p, 117 1. 9-12 (relating to the use of the clip); App,
11 p, 125 1. 14-17 ("And this is the child's seat clip that we used and we did things that we
felt were in accordance with engineering practices for this type of testing and was In
accordance with industry standards."); App. II p. 1961. 15 - p. [*1230] 1981. 17 (relating
to why alternate systems were not installed in a Trooper for testing purposes); App, II p. 118
1. 3 - p, 119 1. 16 (relating to the amount tension placed on the seatbelt); App, II p, 121 1.
8 - p. 1221. 17 (same).
>.";
<';:':..'i
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As in the case of the NCAP tests, the differences between the Trooper-on-a-splt test and the ",,;-
accident Julia was involved in were obvious, Counsel for the defense was entitled to, and In;":
fact did, point out these differences during cross-examination. See, e,g., App, II p. 196 1. 10-"'!'
19 (relating to Cantor's failure to install aiternate seatbelt systems), The differences i:~J
between the tests and the accident relate to the weight of the evidence, not to its;,,:;;;(;1
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admissibility. The fact that the jury may have accorded it [" 57] more weight than the
defendant would have does not mandate the grant of a new trial.
N. The Plaintiff's Use of Rebuttal Testimony
The defendant claims that It was prejlldiced by the plaintiff's Improper use of rebuttal.
Specifically, the defendant claims that the court erred In allowing Cantor to change his
testimony with respect to the location of the "head strike" (discussed In Section 1'" supra)
and with respect to the mechanism by which Julia was Injured, "It Is well settled that
evidence which properly belongs In the case-In-chlef but Is first Introduced In rebuttal may be
rejected, so as to avoid prejudice to the defendant and to ensure the orderly presentation of
proof," Emerick v, U,S. Suzuki Motor Corp., 750 F.2d 19, 22 (3d Clr, 1984), Since the
defendant has failed to point to any topics which were Introduced for the first time during
rebuttal, a new trial 15 not warranted, 11.30
_ _ _ _ _ _ _ _ _ _ - - - - - - - - Footnotes- - - - - - - - - - - - - - - - - -
n30 The court admits that It did, as Is Its practice, allow the plaintiff latitude in rebuttal. The
same latitude, however, was extended to the defendant. See App. IV p. 91 1. 17.21. The
court Is not aware of any case holding that it is error to allowable counsel latitude to try a
case In the way they see fit.
_ _ _ _ _ _ _ _ _ _ _ _ - - - - -End Footnotes- - - - - - - - - - - - - - - - - [**58]
The topics Canter testified to had been covered In the plaintiff's case-in-chief, and had been
challenged during the defendant's case. Rather than being recalled to reiterate his testimony
(something that the court would not have permitted), 11.31 Cantor was recalled to give new
testimony on the topics which had been covered earlier, The fact that Cantor's rebuttal
testimony contradicted, in whole or in part, the testimony he proffered during the plaintiff's
case-In-chief does not constitute error on the part of the court. While this probably did
constitute a tactical error on the part of plaintiff's counsel, this is not a ground upon which a
new trial can be granted. It is, however, fertile ground for cross-examination by the
defendant. As a matter of fact, the defendant exploited this opportunity to the best of its
ability. See App. IV p, 73 1. 3-7; App. IV p, 77 1. 5 - p. 78 1. 13.
- - - - - - - . - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
11.31 See App. IV p. 59 1. 13-16 ("THE COURT: Anything new about tile head print existence
and whether it is a head print he may testify to. But he may not repeat his opinion. His
opinion has been given."); App. IV p. 61 1. 21 - p. 62 1. 7.
_ _ _ _ _ _ _ - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - [**59]
Despite the defendant's best efforts to point out the inconsistencies in Cantor's testimony, the
jury was still free to credit Cantor, in whole or in part, and find for the plaintiff, The court
cannot say that the record is devoid of the "minimum quantum of evidence from which a jury
might reasonably afford relief." Kejth,909 f'.2d,at.1'!,S (citation omitted), See also Andrews,.
8,9,SJ:.2dat,H.7.8; Bh,ay,a, fj3,2f.2dat259; Aloe, ,8_1,6 E.2da.U.13; C3ra_c5:!,.1,O,O_LS_uPP'naJ
U8}. For this reason, the jury's verdict will be allowed to stand.
IV, Conclusion
~
The defendant's final argument in support of its Motions is that, when considered in its
totality, the trial was not fair, The court disagrees. Each argument proffered by the defendant
has either been rejected or found to be harmless. For this reason, a new trial is not
warranted, See Lpckhart Ii. westinghouse, Credit,Corp-.,8Z9J'.,2d...4.3,.SL(3_d_CiL._l~S.9J.. The
defendant was afforded ample opportunity to present its case to the jury, and the jury's
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v~rdict is supported by the eVIdence, While the court docs 1I0t believe that [" 60) .ts rulings
at [.1231) trial were erronl:OUS, the court Is confident that any error which might have
resulted was harmless,
For the reasons set forth above, the defendant's Motions for JNOV or, in the alternative, for a
New Trial, are denied, An appropriate Order follows.
BY THE COURT:
Edward N, Cahn, J.
ORDER
CAHN, J.
February 3, 1992
AND NOW, this 3rd day of February, 1992, upon consideration of the defendants' Motions for
Judgment Notwithstanding the Verdict, or, in the alternative, for a New Trial, in accordance
with the reasons set forth in the attached Opinion, IT IS ORDERED that the Motions are
DENIED. Although this Order is final within the meaning of 28 U.S.C. !i 1291, the plaintiff
retains the right to file a Motion for Delay Damages at the conclusion of the appellate process
if the verdict is upheld. The clerk of the court is directed to close the herein docket for
statistical purposes.
BY THE COURT:
Edward N. Cahn, J,
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sconts 5~rl~Q por:lons o~ tho tD!tlmcny o~ one o! datendan~~'
ex~ert witnesses, a ~iomechanicai engineer; 1n !3iling to
properly charge the JU~I as to the issue o~ proximate caus~; and
in deni~r~~inq the ptai~tiff'9 ~edlcal e~rert te'ti~ony. 3~c~u~e
plaintiff'S trial counsell failed to raise any objection to the
testimc~'l offered by defendants' bicmechanical engineer or to the
judge'S Charge to the ~ury, plaintiff contendS that the trial
judge's arrors constltute plain error, ~ 2:10-., entitling
plaintiff to a new trial on damages, We disagree, and thus
aHirm.'
PriO~ to the 199~ Lncidane, plaln~i!~ su:tered severa
lnjuries in a 1965 automoblle accident, ~ncl~ding e concussion,
brain trauma, a fracture 0' the neck at level C-2, and fractures
of the left arm, right leg, and left foot. She under~ent fusion
surgery at levels C-l, 2, and J. In 1989, plaintiff fell and
fractured her pelvis.
~laintiff also testified that before the 1991 automobile
accid~nt, she was employee a~ a tr~uma nu:se at Coope= Hospital
J
in Camden ~nd that she was relatively asymptomdtic from the
residuals ot h~r 1365 automobile accidene and 1989 palVis injury.
t
~;
:;;j
, Plainciff's trial counsel failed to fllQ a motion for a
new trial, ~ 4:43-1(b); chus, plainciff ls precluded from
arguing thae the jury verdict was against the weight of the
evidence.
?laintiff's counsel on appeai did not represent plaintiff
at crial.
"
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did not. me:lr. OIco:.1pl,:to':'y dsy~pcc:na~.:.c," .!n:1 that Pl"l:':t.!.t: ....0:5
s:~ll 3~~!ering from symptoms from har 1305 surger" ~ike the
orthcpedist, plain~iff'9 neurosur;eon opinad that tho 1991
accident caused plain:itt'8 cervical disc herniation at Co-' if
plaintiff was asymptomatic prior to September 1991.
Defendant'S examining neurologi3t testified that the MRI
tak~n cf plaintiff following the 1"1 accident shewed a lar;~
disc protrusion at Ce-7 and a small disc bulge at CS-5, but
o~i.ned that ehe disc l:ulqe i9 so common as to ::e "almcst a r.ormal
finding." He provided three possible causes for the herniation
at level C6-7: (1) the accident of 1965 which ~ossibly left
plaintiff with an undiagnosed herniated diSCi (2) the September
1991 accident, (3) ordinary wear and tear, or deg~nerative disc
disease, which he stated is the most common cause cf eisc
herniation that he, as a neu:ologist, se~~ in his clinical
practice. He cculd not, however, state with reasonable medical
certainty that anyone of these factors alone caused plaintiff's
disc herniation. He also stated that, in the absence of a C,T,
scan showing something or nothing at C6-' prior to the 1991
accident, he had no information that could lead him to favor one
of the poSSible causes over the other twc.
Also testifying tor the defense as an expert regarding
biomechanics and biomechanical engineering was Dr. Lawrence
Thibault, an award-winning doctor of mechanical engineering with
a speCialty in biomechanics, Although Dr. Thibault is not a
medical doctor and his testimony clearly ventured into areas
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a:;uably beyond his ~ar:~c~:~= e~po=~!s~1 pl~inti!t'5 t=~~l
cour.~el made no o~jection to h~s testifying as an ~,p~rt ~itn~~s,
Cr, 'I'hi:ault had rest:larchod tht:l biomechanics of human lnjl~::y for
l:wenr.y-fiv<! yaars and had ser'/ed, amor:g other things, as co.
director of the head inju:-, center at. the Uni'/crsity o~
pennsylvania. He ex?lained that his work, whether re~earch,
consult!nq or t~achlng, involves the unde~3tanding o~ "how the
human bodl' bellaves 1:1 an env1ronment :.!here mechanical forces are
being a;pliad, what ty~es of injuries you expect t.o oc:ur, how
you prevent those injuries under var!.ous c!.rcumstances,"
Dr. Thibault. was provided with most, i~ not ali, cf the
evi=ence presented at trial, and testif!.ed at trial with a
reasonable scientific, biomechanical probability that the 1991
accident could not have caused plaintiff's C5-7 injury because
the impact of th~ collision between plaintiff's vehicle and
defGndants' van was not st:ong enough to causa an i~jury as
severe as a herniated dlso at C6-7. Instead, Dr, Thibault
attributed the damage to plaintiff's C6-7 to thQ 1955 acciden~.
On ~ros5-examination, however, Doctor Thibault ad~itted that
he had never examined plaintiff, and that he had never inspected
her car a~ter the accident, He also conceded that his conclusion
might change if plaintif:'s vehicle had been pushed :o~Nard into
the intersection, and that he did not "object to any ot the
medical testimony tha~'5 been put in, I don't have a basis to do
that."
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A.
?laintiE! a~quoS ~hat Or, Thibault'S testimony ~aB
incompetent, specifiCally, plaintiff asserts: "Here the witness
waS not a physician but an engineer, He had no clinical
experience. He was a researcher worKing with dummies. By his
own admission he did nct dispute the medical opinions and he had
nc basis to do so."
We need not quote in lCS entirety Dr, Thibault'S testimony.
Dr. Thibault was suraly q~ali!i~d to testify as an expert
regarding whether a low-impact collision, such as the one in this
case, could caus~ a sevare neck injUry, such as the herniated
disC that plaintiff suffered, In fact, he may have been more
qualified to testify concerning that subject than the medical
doctors who were involved with plaintiff's care and treatment
after the accident. ~ RubanicK v. Witco Chern. Core., 125 ~
21, 452 (19)1) (citation omitted).
Evidence Rule 702, which governs the admission of expert
testimony, sta1;.es in relev.nt part: "If scientific, techr.ical,
or other speciali:ed knowledge will assist the trier of fac1;. to
understand the evidence or to determine a fact in issue, a
witness qualified as an expert by knowledge, skill, experience,
training, or education may testify thereto in the form of an
opinion or other,oIise."
The Rule imposes three basiC requireman1;.s:
(1) the intended testimony must concarn a
subject matter that is beyond the ken of the
average juror; (21 the field testified to
must be at a state of the art iuch that an
expert'S tBstimony could be sufficiently
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ra1iable; and (3) the witr-esG rn~5~ have
sufficient Qxpe;tlse to of~ar the intended
testimony,
[~andriaan v, Celotex cor~" 127 ~~ ~04,
413 (1992) (ci":inq State v. )(..11'1, 97 N..:L:..
178, 208 (1984)).)
A portion of his testimony, howeve,,", was clearly beyond the
scope 0 f his experti se and thus incompetem:. See 'Ie3mi eh v ,
.
't'
,
~a15h T,,"u~ki~a Co., 123 ~ 5~7, 549 (199L). fo,," exam?le, Dr.
Thibault: testified that "{hlerni5':ed discs don't occur acute;''!''
and that discS ~unction as .shock absorbers.. He also tastified
concerning the effect of plain~iff's 1565 accident on her spine
and the 1963 accident as a 'cause of her CG-7 inju=y, wi thou": ever
examining plaintiff and without the required medical training and
expertise. Although ~r. Thibault was qua~lfied to tastify as t:o
the relationship between the severity of accidents and injuries
to the hunan body, he was not competent to tostify regarding wear
J
,
and tear of diSCS, as he did several times. His testimony at
times exceeded the scope of his expertise end experience and
impermiSSibly ventured into the world 0' medicine.
As no cbjection to this arguably inadmissible testimony was
j
"
raised by plaintiff at trial, plaintiff is not entitled to a
reversal and ne'. trial unless the admission of 1:his arguably
incompetent t:estimony was "clearly capable of prOdUcing an unjust
result," &. 2: 10-2, That is not the case here, as defendants
presented similar evidence by way of their expert neurologist who
opined, based on a reasonable degrell of medical certainty, that
.
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scme~hinq otho: th~n ~he ~991 ac=iden~ may have been the
proximat9 causo af plain~i!f's herniated diac.
Additi~nally, the j~dqe's ins~ructlons regardinq Dr.
Thibault'5 testimony focused only on his testimony concernlng the
rel~tionship between the iow-impact colli5ion dnd the s8v~rlty of
a herniated dlsc at C5-7, The judge also instructed the jU~1
regarding it3 ability ~o aS58SS e~ch expert witness' tealning and
expertise. The judge never mentioned in his charge to tho j~ry
Dr. Thibault'S non-medical opinions regarding the calise of
herniated discs ln general, and that the 1965 accident and/or
wear and tear was the cause of the herniated disc. Thus, despite
plaintiff'S assertions, "the combinatiOn of the testimony and the
court's instruction clearly [did nct haveJ the potential to
innuence und'Jly the jury determinoti-:::n," ~esmith,~, 123
!L.L. at 549,
3,
Plaintiff contends that even thOugh her trial counsel did
not object at anY1:ime to pro Thibault's testimony, "the judge's
responsibility did not stog there," Plaintiff claims that the
trial judge completaly ignored tr.e directive of the Supreme Court
in ~ubanick, suora, 115 N. J. 411, that there be "judiCial
vigilance" concer~ing expert witnesses.' Plaintiff specifically
contends:
Rather than giving any guidante to the jury
on how to treat the tastimony of an expert
with no experience in dealing with live
subjects in the real world, but only with
dummies and cadavers in a laboratory setting,
as opposed to treating, hands-on physicians,
~
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Plaintiff'S "judicial vigilance" argument rely1ng on
Rubanick is misphced, The "judicial 'ligi1anc,," to which ehe
court in Bubanick refers is noe the court'S obligation to
distinguish between competent and incompetent testimony;
plaintiff'S ccunsel cculd have objected eo the certification of
Dr. Thibault as a witneSS, or at least made a metion to strike
thO oourt ~ade no affoct to dl!ferentiate
bot"oolflSn thO t'1I0 tYPQS of tas ::imcny. . , .
The abdication by the trial court of its
responsi~ll1ty in its treat~ent of ehd
engineering expert's testimony as required by
the SuprQ~e Court in the Rubanlck case was
"clearly capable of prodl.:eir.g an unjust
result. "
Dr. Thibal.:lt'S incompetent testimony, see priest v, poleshUck, 15
~ 557, 564 (1954). Rather, ~banick provides a solution to
the problem of "eM hired gun phenomenon" regarding expere
witne~ses, directing trial judges to exercise "gre~ter judlci~l
vigilance in serucinizing the staeus of the experc and in
directing the factfinder to those tactors that bear relevantly on
the expert's credibility," Rubilllicl<, suota, 125 ~ at 453.
With regard eo ehe expert ~itness testimony at this trial,
ehe court offered, in part, the following instruction:
You have to remember, however, that just
because a person comes in and is classitied
as an expert, that doesn't mean that what
they say is written in stone and it doesn't
mean that you have co accepc what th~y say as
gospel. Because you're still the judge of
the facts and so you have to evaluate the
credibility of the witness.
Now the first thing yOU do, of course,
you listen to the so-called specialized
training, education and experience, That'S
why you get the curriculum vitae, as we call
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~t, so that you can compare this specializod
trdlnin~1 ftduc~tion and experlence of each
witneSS against the other because it ~ay aid
or assist yOU in Qvaluating the testimony of
that particular witnesg that you may be
conside::inq.
Thon, ot course, when the experts gi'le
their opinions, they give you the facts upon
which the opinions era baaed, at least they
should give yOU tho fects upon which tho
opinions are oaSQd, And so, once again, you
llsten to the tacts dnc then you determine
whether in fact they are the facts. Because,
obviously, if the opinion is based on factS
that you tind are not true facts, accurate
factS, reliable tacts, then the opinion, of
course, can be no better than the facts uoon
which it is besed. -
so that'S why it is that the way the
experts will give you the reasons or the
facts upon which they base their opinions.
Then, of course, yOU have, as you do with
every witnesS, the right to ev~luate the
credibility of the witness, the expart, All
of the guidelines that we give to you that
yOU utilize in evaluating the teitimony of a
lay witnesg, so to speak, which is what we
call the non-expert witnes~, you have the
same rights to utilize the same criteria to
eVdluate the testimony of the expert witness.
And 50, therefore, after you have taken into
consideration the training, education and
experience, and you've taken into
consideration the facts upon which the
opinion5 ara based and you take into
consideratiOn the credibility cf the
testimony, the bias, prejudice, interest or
motive or whatever it may be for testifying,
then yOU det~rmine in the final analysis what
weight, if any, to give to the opinions of
the exp~rt be it great or slight.
You can accept the opinions completely
or reject them completely or give them
whatever weight you determine they are
entitled bearing in mind, of course, that the
opinions can be no batter than the facts upon
which they are based. And in this case, we
had __ I think it was three or four experts '
. . and I indicnted to you how you deal with
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testlmOllY of the ex"ert, that ha'le been
offered in this ;art~cular case.
The cour:.' S inst::ucti'Jns put the expo::':: :ostimony Olt t.r1ai/
including that of Or, Thibault, in thO' propar porspsctive and
tully complied wit~ thO principles of RubanicK, Further, the
judge/s instr.uc"-ions regarding both parties' cases and the
testimony of their witnease~ was an adequate summary of the
evidence at trial and clearly waS not plain error,
c,
',Ie have thoroughly re'newed the judga' s charge and Und that
when read in its entirety, ~tate v. Wilbelv, 63 ~ ~20, 422
(1973), the judge did not "denigrate" plaintiff'S medical expert
testimony, nor did he place that "testimony in a less credible
light than the incompetent. testimony of the engineer," as
plaintiff contends.
Additiona:ly, the judge/s charge to the jury on proximate
cause was neither misleading nor capable of producing an unjust
result. The judge related the law to the facts of the case and
explained the question the jury was required to reso:~a, No
party is entitled to have the juri charged in his or her own
words. ~ll that is nec8ssary is that the charge as a whole be
accurate, state v. Thomoson, 59 lid.:. 396, 411 (1971); Kaplar. v,
Halnes, 96 N.J. Super. 242, 251 (APP' Oiv. 1967), aff/d, 51 rr,J,
404 (1968), and overruled on other around., Laraev v, Rothman,
110 N.J. 204, 206 (1988). ~ 1:7-2 specifically provides that
e. showing of plain error must be madll ',.,hen an appellant claims
that there was error in any charge not objected to at trial.
- 11 -
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IIA(-.OU' 98 I'm: IO:~: SEEJElL 1 \ICoLO~E
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coulIsel percel'lad no error or prlljud~ca, ~nd, in ~ny event,
preven:ed :he :rlal Judqe !rcm remodying any p065ibl4 confusion
in a timely manner." Bradford \'. KUQoor ,\aeflcia:cs, 283 rLL:.
~~ 556. 573-74 (App. Div. 1995). certl!. denle~. 144 ~ 586
(1996) ,
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DONALD L. SOLONINKA AND BONNIE O.
SOLONINKA
: IN TIlE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY. PENNSYLVANIA
V
MONICA YETTER
: NO. 98-6641 CIVIL TERM
By the Court,
ORDER OF COURT
AND NOW, October 13, 1999, the above-captioned matter is contillued by
agreement of counsel, at the defelldant's request. Counsel is directed to relist the case whell ready.
Brian K. Zellner, Esquire
For the Plailltiff
I'
Matthew R. Gover, Esquire
For the Defendant
Court Administrator
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DONALD 1.. SOLON INK A AND BONNIE O.
SOLONINKA
: IN TlfE COURT OF COMMON PLEAS OF
: CW.IIlERLAND COUNTY. PENNSYLVANIA
v
MONICA YETTER
NO. 98-6641 CIVIL TERM
ORDER OF COURT
AND NOW, October 13, 1999, the above-captiolled matter is eontillued by
agreemellt ofeollllsel, at the defendant's reqllesl. Coullsel is directed to relist the case whell ready.
By the Court,
Brian K. Zellner, Esquire
For the PlailltifT
Matthew R. Gover, Esquire
For the Defendant
V1r-..'V/i!ASNN3d
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IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA 1./
No.q8-(P~'ft 1998
Civil Action. (X) Law () Equity
DONALD L. SOLONIKA and
BONNIE O. SOLONIKA
819 BRIDGE STREET
NEW CUMBERLAND, PA 17070
MONICA YETTER
4613 CLEARVIEW DRIVE
CAMP HILL, PA 17011
versus
Plaintiff(s) &
Address(es)
Defendant(s) &
Address(es)
PRAECIPE FOR WRIT OF SUMMONS
TO THE PROTHONOTARY OF SAID COURT:
Please issue writ of summons in the above. captioned action.
1 Writ of Summons shall be issued and forwarded to ( ) Attorney (X) Sheriff
Brian K. Zellner. Esauire
P,O. Box 368
3805 Market Street
CamoHil1. PA 17001
(717) 975 . 9446
Name/AddresslTelephone No.
of Attorney
?--- t. 1i1r _---
Signature of Attorney
Supreme Court ID No. 59262
Date: NOVEMBER 17, 1998
WRIT OF SUMMONS
TO THE ABOVE - NAMED DEFENDANT(S):
YOU ARE NOTIFIED THAT THE ABOVE. NAMED PLAINTIFF(S) HAS/HAVE
COMMENCED AN ACTION AGAINST YOU
Date: _Ll ~J.3-1f_
IXlNAI.D I.. SOLONIKA alld
BONNIE O. SOLONIKA.
COlJlrJ'OI'COMMON PI.EAS
CUMBERLAND COUNTY. PA
Plallltiff
CIVIl. ACTION. LA W
v.
No. 98.6641
MONICA YE'ITER.
JURY TRIAL DEMANDED
Defendant
COMPLAINT
I, The Plailltiff DOllald L. Solonika is an adult illdividual with an address of819 Bridge
Street, New Cumberlalld, P A 17070.
2. The Plailltiff Bonnie O. Solonika is an adult individual alld wife of the Plaintiff
Donald L. Solonika with an address of819 Bridge Street, New Cumberland, PA
17070.
3. The Defendant MOllica Yeller is an adult individual with an address of 4613
Clearview Drive, Camp Hill, PA 17011.
4. On November 25, 1996, the PlailltiffDollald L. Solonika was stopped for a red light
on the Carlisle Pike, Mechanicsburg, P A Ileal' the Hapden Shopping Cellter waiting to
make a right hand turn.
5, The Plaintiff Donald L. Solonika's vehicle was struck from behilld by a vehicle
driven by the Defendant Monica Yetter.
6. The accident was directly and proximately callsed by the negligellce and carelessness
of the Defendant which consisted of the followillg:
a. operating her motor vehicle in a careless and lIegligent manner;
b. not having her vehicle under the proper cOlltrol;
c, operating her vehicle at an excessive rate of speed;
'...
DONALD L. SOLONIKA alld
BONNIE 0, SOLONIKA
COIIRT OF COMMON PLEAS
ClJMBERI.AND COUNTY. PA
Plailltiffs
CIVIl. AcnON - lAW
v.
No. 911- 6641
MONICA YEITER.
Defendallt
I. BRIAN K. ZELLNER. do hereby certify that 011 this 5~tv- day of i)e~...1e-j
1998. I did serve a true and correct copy of the foregoillg dOCllmellt 011 all counsel of
record by deposiling a copy of the same in the United States mail. first class postage
prepaid. addressed to:
Matthew R. Gover. Esquire
Nealon & Gover
30 I Market Street - 9th Floor
P.O. Box 865
Harrisbllrg, PA 17108
By:iLic~
Briall K. Zcllller, Esquire
3805 Market Street
P.O. Box 368
Camp Hill, PA 17001
(717) 975 - 9446
Attomey Identification No. 59262
....
asserted and proof is demanded at trial.
WHEREFORE. Defendant. MONICA YETTER, respectfully requests that
the Complaint filed against her be dismissed with costs.
NEW MATTER
11 , Paragraphs 1 through 10 of Defendant's Answer to Plaintiff's
Complaint are incorporated herein by reference thereto.
12. Plaintiff's claims are barred in whole or in part by application of
the Motor Vehicle Financial Responsibility Act.
WHEREFORE. Defendant, MONICA YETTER. respectfully requests that
the Complaint filed against her be dismissed with costs.
Respectfully submitted,
it'
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atthew R: Gover, Esq.
, \
Atty.I.D. #47593
301 Market St. - 9th FI.
PO Box 865
Harrisburg, PA 17108-0865
(717) 232-9900
GOVER
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CERTIFICATE OF SERVICE
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AND NOW, this ~ day of January, 1999, I hereby certify that I
have served the foregoing Answer to Complaint on the following by depositing a
true and correct copy of same in the United States mai!, postage prepaid,
addressed to:
Brian K. Zellner, Esq.
PO Box 368
3805 Market St.
Camp Hill, Pa 17001
\1-/110\
Dated: ( , " 0
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( I ~i.F', J .Ii ''_'
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Matth, w R. Gover, Esq.
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DONALD L. SOLONIKA AND
BONNIE O. SOLONIKA,
PLAINTIFFS
V.
MONICA YETTER ,
DEFENDANT
: IN THE COURT OF COMMON PLEAS
: CUMBERLAND COUNTY, PENNA
: CIVIL ACTION. LAW
: NO. 98-66411998
"
: JURY TRIAL DEMANDED
PROPOSED POINTS FOR CHARGE
OF THE DEFENDANT
Respectfully submitted,
)
I
,
NEALON & GOVER
Date: 5/r~/1! 0
By: vf;~ttzC?~
M tthew R. Gover, EsqUIre
Attorney I.D. #47593
301 Market Street -- 9th Floor
P.O. Box 865
Harrisburg, PA 17108-0865
(717) 232-9900
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04. The Plaintiffs are entitled to recover damages for all injuries which the
Defendant's negligence was a substantial factor in producing. The Defendant's
negligence need not be the sole cause of the injuries; other causes may have
contributed to producing the final result. The fact that some other factor may have been
a contributing cause of an injury does not relieve a Defendant of liability, unless you find
that such other cause would have produced the injury complained of independently of
her negligence. Pa.SSJI (Civ.) 6.30
. ~l 05. The number of witnesses offered by one side or the other does not, in itself,
determine the weight of the evidence. It is a factor, but only one of many factors which
you should consider. Whether the witnesses appear too biased or unbiased; whether
they are interested or disinterested persons, are among the important factors which go
to the reliability of their testimony. The important thing is the quality of the testimony of
each witness. In short, the test is not which side brings the greater number of witnesses
or presents the greater quantity of evidence; but which witness or witnesses, and which
evidence, you consider most worthy of belief. Even the testimony of one witness may
outweigh that of many, if you have reason to believe this testimony in preference to
theirs. Obviously, however, where the testimony of witnesses appear to you to be of the
same quality, the weight of numbers assumes particular significance.
Pa.SSJI (Civ) 5.03
\' 5. In resolving any conniet that may exist in the testimony of expert witnesses, you
are entitled to weight the opinion of one expert against that of anoth~.... In doing this, you
should consider the relative qualifications and reliability of the expert witnesses, as well as
the reasons for each opinion and the facts and other mailers upon which it was based. Pa.
SS11 (CIV) 5.33.
\\
7. If you find that the defend.lOt is liable to the plaintiff, you must then find an
amount of money damages which you believe will fairly and adequately compcns:.lte the
plaintiff for all the physical and financial injury he has sustained. The amounl which you
award today must compensate the plaintiff completely for damage sustained in the past. as
well as damage the plaintiff will sustain in the future. Pa. SSJI (CIV) 6.00.
II
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,
Il. The Plaintiff is entitled to be compensated in the amount of all m~'dical expenses
reasonably incurred for thc diagnosis, treatmcnt and carc of his injuries in thc past. These
expenses, as allcgcd by the plaintiff. amount to $3006.98 : an exhibit will be sub milled to
you, itcmizing these costs, for your consid~...ation during dcliber'dtion. Pa. SSJI (CIV)
6.01A.
,}
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'\, II. Thc plaintiff is entitlcd to be fairly and ad~'<luatcly compensatcd for such
I
physical pain. mental anguish, discomfort, inconvcnience and distrcss as you believe he
will cndure in the futurc as a result of his injurics. Pa. SSJI (CIV) 6.0IF.
11
,
I
16. In a case of this lype, a plaintiff may rccovcr cconomic losses if hc can show
by a gre.ller weight of the evidcnce that:
(I) Defendant was negligent in one or more ways as I described to you in
my instructions:
(2) Defendant's negligcnce was a substantial factor in bringing about injury
to the plaintiff: and
(3) Plaintiffs injury resulled in economic losses.
Pa. SSJI (CIV) 6.02C.
J
;\ 22. ^ ncgligent party is subject to liability for harm to anothcr, although a physical
condition of that person not known to thc actor makes the injury greater than that whieh thc
actor. as a rcasonable person, should have foreseen as a probable result of her conduct, If
you find that the plaintiff had a preexisting injury that was aggravated by the defendant's
negligence. you must find the defendant responsible for the enhancement of the plaintiffs
injury. Pa. SSJI (CIV) 6.23.
WI OLER
DONALD L. SOLONIKA illld
BONNIE O. SOLONIKA,
plaintif fs
IN TilE COURT OF COMMON PLEAS OF
ClIMBEHLANlJ COUNTY, PENNSYLVANIA
v.
CIVIL ACTION - LAW
MONICA YETTER,
Defendant
No. 98-6641 CIVIL TERM
IN RE:
PRETRIAL CONFERENCE
A pretrial conference in the above-captioned
case was held in the chambers of Judge Oler on Wednesday,
February 23, 2000. Present on behalf of the Plaintiffs was
Brian K. Zellner, Esquire. Present on behalf of the
Defendant was Matthew R. Gover, Esquire. It is noted that
Darrell Dethlefs, Esquire, may be trying the case on behalf
of the Plaintiffs.
This is a negligence action for personal
injuries to Plaintiff Donald L. Solonika arising out of a
motor vehicle accident on November 25, 1996, on the
Carlisle Pike, when Defendant's vehicle rear-ended the
vehicle of plaintiff Donald L. Solonika. plaintiff Bonnie
O. Solonika sues for loss of consortium.
Liability is admitted on the part of
Defendant. Defenses include lack of causation.
This will be a jury trial in which each side
will have four peremptory challenges, for a total of eight.
The estimated duration of trial is two days.
To the extent that any deponition testimony
is to be shown or read to the jury and contains objections
requiring nllln'lS by the. U'ld] coun., COlIIWl'1 at'e directed
to furnish a U'anncnpt ot the deposition in questlOn to
the Court at least five days prior to the commencement of
the trial term, with the areas of objection being pursued
highlighted and brief memoranda in nupport of their
respective positions.
Defendant's counsel has indicated that he
may be filing a motion in limine to limit testimony by the
allegedly injured Plaintiff as to causation of certain
injuries in the absence of medical testimony in support of
such causation. Any motions in limine shall be filed with
the prothonotary at least five days prior to the
commencement of the trial term.
Counsel for Defendant has indicated that an
expert witness in his case will be available only on
Tuesday and Wednesday of the trial week. Consequently, he
is requesting that the court administrator schedule this
case for Monday, March 13, 2000, to facilitate the
testimony of that witness.
Counsel have indicated that they do not feel
that it is likely that this case will be settled.
DONALD L, SOLONIKA and
BONNIE O. SOLONIKA,
Plaintiffs
v.
: IN THE COURT OF COMMON PLEAS
: CUMBERLAND COUNTY, PENNA
: CIVIL ACTION. LAW
: NO, 98.6641
: JURY TRIAL DEMANDED
MONICA YETTER,
Defendant
PRE.TRIAL STATEMENT OF DEFENDANT, MO~ YETTER
AND NOW, comes the Defendant, Monica Yetter, by her attorneys, Nealon &
Gover, and files the following Pre-Trial Statement:
I. BRIEF NARRATIVE STATEMENT OF THE CASE
On November 25, 1996, the Defendant rear-ended the Plaintiffs vehicle on the
Carlisle Pike in Mechanicsburg, Pennsylvania, near Hampden Shopping Center. As a
result of the impact, the Plaintiff is claiming injuries. The Plaintiff has a long standing
history of prior medical complaints. It is the Defendant's position that the impact was
minor and did not cause the Plaintiffs harm.
II. DAMAGES
Not applicable.
III. NAMES AND ADDRESSES OF WITNESSES
a. Plaintiff, Donald L. Solonika, as on cross-examination;
b. Plaintiff, Bonnie O. Solonika, as on cross-examination;
c. Defendant, Monica Yetter;
d. Lawrence E. Thibault. Sc.D.. Exponent- Failure Analysis Associates,
2300 Chestnut Street, Suite 150, Philadelphia, PA 19103 (In the event of
the unavailability of Dr. Thibault, the Defendant reserves the right to call
one of his associates to testify regarding the studies made in this report.
The testimony will not be beyond the scope of the report authored.)
e. Medical records custodians of Plaintiffs treating providers; and
f. Defendant reserves the right to supplement this list in advance of trial.
IV. EXHIBITS
a. Photographs of the automobiles;
b. Photographs of the accident scene;
c. Medical records of the Plaintiff;
d. Curriculum Vitae of Lawrence E. Thibault, Sc.D., or designee;
e. Report of Lawrence E. Thibault, Sc.D.;
f. Property damages estimates; and
g. This response will be supplemented immediately before trial.
V. WRITTEN REPORTS
Please see attached the report of Lawrence E. Thibault, Sc.D..
VI. STIULATIONS
The Defendant would request a stipulation with the Plaintiff that the authenticity
of all medical records be admitted without calling a records custodian.
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Matthcw It (iovcr
Nealon & Govcr
30 I I'vlarket Str~et. Ii''' Floor
1'.0, Box R65
Ilarrisburg, I' A 1710R
ne: Solonikll \'. Yetter
Exponent Case No.PL12188
Cumberl:lI1d County No, 98.66411998
Dear Mr. Gover:
Please accept this letter as a biomechanics report and an cvaluation of thc materials associ at cd
with the abovc.captioncd case. In this rcgard. the f(lllowing itcm havc bccn rcviewed:
I. Dcposition transcript of Donald. L. Solonika
2. Deposition transcript of Monica Ycllcr
3. Allslate Invcstigation Matcrials
4. Repair estimalc for 1987 Ford Econolinc 150 Van
5. Color photocopies of photographs ofsubjcct Ford Thundcrbird and Ford Van
6. Intcrrogatories propounded by defendant to bc answercd by plaintiff
7. Recorded Statement of Donald Solonika taken January 31, 1997
8. Rccordcd Statemcnt of Monica Yeller taken Novcmbcr 26, 1996
9. Mcdical records of Donald Solonika
Accident Information (:Iceording to witncss tcstimony and stlltcmcnts)
Thc accident in qucstion occurred on November 25, 1996, at approximately 6: 1 0 pm at the
intcrseetion of a drivcway exiting the Hampden Centcr parking lot and Carlisle Pike in
Mechanicsburg, Pennsylvania. At that time and location, Donald Solonika was operating a 1993
Ford Thunderbird. and Monica Yetter was driving a 1987 Ford Econoline EI50 Van behind
Mr. Solonika's vchicle. ^ collision occurred between the front ofthc Ford van and the rear of the
Ford Thunderbird. Police reported to the scene, but no accident report was available for review.
Both vehicles were driven from the scene. A repair estimate for the Ford van totaled $322.66.
l'I.J~lR~ O()/J Ho)m 11'1'1 1,IRlt
-
Mauhew It Gover. ["I.
Deccmber 17. 19'1'1
Ih': SlItoniL.a \'. YClh:r
P.lg.!: 2
Mr. Solonika was 51 years old atthc timc ofthc subjcct aecid,'nt. \\as 70 inches tall. and
weighed 2~9 pounds on ~Iay 22. 1992.
Ileposilion Teslimony und Hecordcd Slutemenls of 11011:1111 SlIllInil,a
Mr. Solonika tcstilicd at his dcposition that he was bclled atthc time of thc accidcnt, .lIld his son
was in the passcnger seat. It was mining at the time of the accidcnt, and the ro.td was wet. Ilc
was coming out of Ilampden Ccntcr to makc a right turn onto cast bound Carli sic Pikc. lie
indicatcd that his foot was on thc bmke, and that his c.tr was angled and stoppcd at the rcd light.
Mr. Solonika statcd that hc "inchcd up just a little bit," stoppcd. and \Vas struck in thc rcar. Ilc
statcd that upon impact. his vehiclc was push cd four feet. Mr. Solonik.lteslilicd that he thought
thc damage to thc Thundcrbird cost $1400 to rcpair.llc also indic.lled Ihat thc damagc to his
vehicle consistcd of the dcnt on thc rear trunk, but that the damage cvident in thc photographs to
thc right rear quartcr pancl had nothing to do with the subjcct accident. When refcrring to thc
impact, hc stated...1t thrcw me forward.../ camc back and hit [I he hcadrcstJ."lle indicated that
he did not hit any othcr portion of the vchiclc intcrior. IIc said he did not fccl injured until thc
next morning whcn hc could not movc his neck. IIc stated that a fcw wccks aftcr the accidcnt, his
lowcr back began hurting. His symptoms also included numbness in his hands that bcgan six
months after thc accident and slecplcssncss. Mr. Solonika associatcd his ncck and low back
problems and radiating pain and pain in his legs with thc accidcnt.
At the time of his dcposition, Mr. Solonika was cmploycd at a dclivcry service. At thc timc of
the accident, he \Vas on disability leave for a right rotator cuff injury that occurred in May of
1996 when he fell off a ladder from a height of 10 feet. His prior job as a carpentcr required
frequent beavy lifting, which he had becn doing his wholc life. Hc also had a work rclated injury
to his back in 1992 as a consequence of operating a jackhammer. He had surgcry. but statcd that
he was not experiencing any back problems at thc time ofthc subject accident. Hc also tcstificd
that the subject accident did not aggravate his shouldcr.
Deposition and Rceorded Statement of Monica Yetter
Ms. Yetter indicated that she was at a complete stop prior to thc accident, and that the driveway
where the accident occurred went uphill. She testified that Mr. Solonika movcd forward to make
a right turn on red, then he stopped abruptly and her vehiclc struck the rear of his vehiclc. She
indicated that the right side of her front bumper stmck the left side ofMr. Solonika's trunk.
.
Vchicle Damage
Examination of the color photocopies of photographs of the Solonika vchiclc reveal damage to
the left side of the vertical portion of the trunk and the left taillight, with slight misalignment of
the trunk lid. The photographs of thc Yettcr vehicle show slight damage to the right front corner
of the vehicle. The repair estimate for the Ford van included rcplacemcnt of the front bumper and
repairs to the right fender.
.,1':'.
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R\' s\.lttniJ..a \', Yetter
P.lgl: .1
IIlnmrdulnlrlll AII:II)'sl,
Thc r"ar'enll c<llIision <If Novcmher 25, 1'1'16. \\as cvaluated 'hlJlI a hi"m\'e1lanieal \'nginccring
persp"cti",' in orller to lI\.tcrmine whcthcr a causal relationship wulll r\'OIs"nahly "xist hetwccn
th" ('lIlIision anll /o.1r. Solonika's 1Il\'lIieallindings. This evaluationlirstl\'quired a scicntilie
asscssmcnt of the collision. which \\as hascd upon an analysis ofthc mOllcriab providcd
regarlling Ihis specific incidcnt (Iistcd on the lirst pagc of this rcport). cnginecring knowlcdge
anllunderst.lI1l1ing oflllcehaniealllclimnation ofvchiele structures. .lIId vchicle.specilie d.lla.
This specilic collision was thcn examined in thc context of what has hcen Icarncd Ihllll crash
lests (involving voluntcers. instnulIcnlcd lIullllllies. anll cadavcrs). frolll hiolllcch.mieal studics of
hUIIl.1I1 tissue mech.lI1ies and tolerance 10 I(lrecs. and from hiomcehanicalmodcls oflhc hody.
A biomech.mieal allalysis of the suhjcet incidcnt depends. in parI. onthc diagnoses and findings
documenled by clinicians in Ihe medieal record. While c1inici.ms arc trained to examine,
diagnose and treat injury, the biomechanical enginccr seeks to dctcrmine the mechanism of a
particular injury lhrough application of formal training in the life sciences. advanced
mathematics, physics and engineering. The study of the hiomcchanics of hunmn injury is a
widely recognized, well-established hranch of science dedicated to c1ucillating the mcehanisms
of human injury and determining quantitatively the thresholds at which injury to thc human hody
occurs. Other than proposed injury mechanisms, biomcclmnieal .malysis of the subject incident
embraccs the diagnosis and treatment aspects of the medical record without challenge.
Qualitative or quantitative asscssments of injury mechanism can he ohjectively analyzed using
principles of injury biomechanics.
Thc medical records of Mr. Solonika were reviewed and condensed in order to conduct a
biomechanical cvaluation of the subject accident (see attachment). According to his deposition
testimony, recorded statemcnt. and interrogatory responscs. Mr. Solonika attributes his
complaints of neck. back, and leg pain to the subject accident.
In the absencc of intrusion into thc occupant compartment. thc change in speed of the struck
vehiclc, referred to as the dclta-V, is an effective indicator of accident sevcrity for thc occupants
of tile vehicle. Bas('d on an analysis of the accident, including thc photographs of the vehicles
and the statements of the drivers, the van bumper overrode lhat of the Thunderbird. The availablc
data relevant to the Ford E-series van indicates that bumpcr damage would occur at delta-Vs
between four and live miles per hour during centcred frontal impacts. For the same delta-V in an
offset collision (such as the subjcct accident). one would expect to sce greater damage to the
van's bumper as compared to a centered frontal impact. Therefore, the nature oflhis collision,
the minor damage to the van, and the available crash test data relevant to the van indieate that it
expcricnced a delta-V of less than live miles per hour during the subject accident. Given the
relative weights of thc two vehicles and the principle of conservation of momentum, this
corresponds to a delta- V of approximatcly live miles per hour or less for the Ford Thunderbird.
This delta- V is consistent with the minor crush damage to the trunk area of thc Thundcrbird.
Physics dietates that during a low speed rear-end collision such as the subject accident, inertial
forces cause thc occupant to move initially rearward rclative to the vehicle interior, with thc torso
supported by thc seatback. The Occupant then returns to the original position. but at a speed
EX'
Manh"w R, (jn\'cr. 1:\\1
Ucccl11h~r 11. 1')1)1)
R,,' Slllllni~" v. y".u,,'r
I'.,~c .1
silinilkantly low~r Ihan th~ initial r~arwanlmotion. This is wntrary h' ~Ir. Solonika's t~stimony
that hc W;1S initially thnl\\nli,rWar" as a resnlt of th~ impa~1. Sin~~ the' I humkrhinlmay ha\'c
h~cn m1likd with rcsp~~tto thc \'an. 1\h. Solonika may haw also nlo\~,1 ,lightly lat~rally rdatiw
hlth~ \'chi~k intcrior. Ilowe\'cr. this lat~ralmolion was insnfti~kut I.. r~,ult in ~ont;lCt with ;my
intcrior slru~tnrcs. wnsistent with 1\11'. S..lonika', t~stimon) that h~ "i,ln,.1 ~onta.:t an) portion
ofth~ whidc int~rior other Ihanth~ h~a,ll~st. Th.: Ahbreviated Injury S,'ak (AIS) is a
standardizcd system lllr .:hara.:tcri/inli injury' typc ami severity. With this sy'st.:m. injuries m~
scaled from 0 (no injur)') 10 (, (maximum. typkally 1:lIal). Thc for.:~s assodatcd with this low
speed rC;\r-eml collision havc b~~n assodatcd with. at Illost. tran,kntn~.:k slrain (an AIS-l
injury).
Exponcnt Failure Analysis Assodatcs (Exponent) has "'ndu':l~d a s~ri~s or motor whide crash
t~sts to estimate the forces actinli on occupants in collisions similar to thosc cxpericnc~d hy
Solonika during the subject accident. and to demonstrate occupant kincmati.:s. These crush t~sts
uscd instrumcnted vehicles and instnnllcnled Ilybrid III anthropomorphic .:rush test dummies to
measure the forces acting on occupants and high speed vidco to do~um~nto.:cupant motion. Th~
Exponcnt crash tests bave demonstrated that the loads acting on th~ spin~ during thesc impacts
arc substantially lowcr than the thresholds for damage to the bon~s. ligaments and discs or the
spinc, as reported in the biomechanics literature. In fact. the axial loads m~asur~d in the lumbm
region during the Exponent crash tests arc substantially lower than axial loads that act on tb~
lumbar spine during ordinary bending and lifting activities. This accident provid~d no
mechanism to pcrmancntly injur~ the structur~s of Mr. Solonika's spinc.
Biomechanical studics have shown that a sinlile application of compr~ssive force of suflicient
magnitude to acutely hemiate a spinal disc also produces concomitant acute damage to the
adjacent bony stnlctures. Within physiologically rcasonable ranges of motion of the spinc. disc
hcrniations without concomitant bony damagc have bccn produced cxpcrimentally only through
rcpctitivc compressive loading (thousands ofcyclcs).1t is noteworthy that Mr. Solonika's
mcdical rccords contain no cvidencc of acute damage to the bony structures of his spine.
Examplcs of daily activities that producc rcpetitive loading of the spinc include walking,
bcnding, lifting, and standing from a seatcd position. It is noteworthy that Mr. Solonika's prc-
accident cmployment involvcd frequent hcavy lifting. an activity that would placc dramatically
higher compressivc loads on thc spine than the subjcct accidcnt. This accident provided no
mechanism to injure Mr. Solonika's lowcr back, or to exacerbate his pre-existing spinal
pathologies.
.
Results from volunteer testing, conducted to study low-speed rear-end collisions, havc been
consistent with and supportivc of the biomechanical results from dummy tcsting and injury
tolcrance studies. A rcview of published rcsearch studies shows that at least 15 rescarch
institutions from 7 different countries have conducted a total in cxcess of six hundred volunteer
test exposures to low-spced rear-end collisions. Thcse exposures wcre comparable to and, in
most cascs, greatcr in.scvcrity than that of the subjcct accident. While the vast majority of
volunteers had no complaints after testing. a few volunteers complained of. at most, transient
muscle sorencss in the neck andlor transicnt headachc that typically rcsolved within a few days.
There is no evidcncc to suggest that neek range-ol~motion was ever exceeded in any of the
EX"
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CENTER
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ORTHOPEDIC
INSTITUTE
o F PEN N S Y L V t. J" ! A
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Tr.LtPIIONr.: (717) 7Iil.55~O . 16001 6~4.4020 . PAX: (7171 7J7.719"
Cc~ober 01. 1999
Darrell Dechlefs
3805 Markec Screec
Camp Hill. PA 17011
RE: Dor.ald L. Solor.~nka
165 38 09-16
Oear Mr. Dechlefs:
This leccer is in reference co Donald Solcn:nka who 15 a pat:enc of ffilne at
che Crchopedlc InsCicuce of Pennsylvan13.
This leeter is in reference to your leeter of September 1u, 1999. I have
followed Donald for several ,ears. ! saw hlm en Aprll 3. 1997 to evaluate
his
low back inJury that he sustalned when he was 1n a car accldent O~ November
25. 1996. He was hic from behind. He had been creacing conse~/acively prlor
to me seeing him.
His exam at that time showed that he had a knee immob1li=er on his left knee
so iC really prevented me f~om gect~ng a good exam of hlS back. He d~d have
aloe of tenderness over the sacroiliac joint on the right side. He did
appear to have a posltlVe Faber test at that time. His mOtor exam was normal
on che righc side. His x-rays were of his knee ac chac Cime and chey dld
show a posslble corc~cal disrupcion on che medial slde of che d~scal femur
buc ic was noc clear cuc. I chought he had a medial collateral ligamenc
tear at that time. He was treated in a brace. He was also taken care of by
one of my partners, Thomas Yucha, M.D.
Mr. Soloninka evencually had an archroscopy of his lefc knee by Dr. Yucha.
As far as Donald's back is concerned, I began seeing him again in September
of 1997 wh~n he was compiaining of a lac of problems .,jith his back. He
complained chac his back pain was worse chan his leg pain. He said chac he
wakes up many times during the night because of his back pain and he cannot
lay on his back anymore. His examination, in September, showed chat he had
no sciatic ne~,e tension signs, all his strength was quite good in his lower
extremities. His lumbar motion is markedly decreased. His x-rays showed
chac he has junccional syndesmophyte formacion aC L3-4. He has lamineccomy
defeccs ac L-I and L5 and he has marked degenerative changes chroughouc his
spine.
Because of persist pain, he eventually underwent epidural steroid injections
wichouc a greac deal of relief and he finally underwenc discograms of his
Olml0reOlC :Iul<<lton:l. L TO.
ADDReSS ALL CORRtSPONDeNCt TO: 815 POPl.AR CttURCt1 ROAD. C.\MP tllLL. PA 17011
CAMP "ILL OrPlCE IIARRlSBURG OPflCE c.,\MP U1LL OPflCE nERSUEY OFf'ICe CA.~P "ILL OfFICE
3910 TRlNDLt RD. ';50 POWtRS Ave. 890 POPl.J\R Cl1URCl1 fID.. STe. 108 10 WtsT Ct10COl.J\Te .we.. STt. 105 815 POPLAR CHURCH RD.
DONALD L SOLONIKA and
BONNIE 0, SOLONIKA
COUK...... COMMON PLEAS
CUM~E .._AND COUNTY, PA
Plaintiffs
.~;.
CIVIL r(.T10N - LAW
v.
No. 98 - 6641
MONICA YETTER,
Defendant
I, BRIAN K. ZELLNER, do hereby cenify that on this /,.... day of /::e.J....." 7
2000, I did serve a true and correct copy of the foregoing document on all counsel of
record by depositing a copy of the same in the United States mail. first class postage
prepaid, addressed to:
Matthew R. Gover, Esquire
Nealon & Gover
30 I Market Street - 9th Roor
P.O. Box 865
Harrisburg, PA 17108
BY./J( c 2-
Brian K. Zellner. Esquire
3805 Market Street
P.O. Box 368
Camp Hill, P A 1700 I
(717) 975 - 9446
Attorney Identification No. 59262
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DONALD L. SOLONINKA,
Plaintiff
IN THE COURT OF COM~10N PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
v.
MONICA YETTER,
Defendant
NO. 98-6641 CIVIl, TEW~
ORDER OF COURT
AND NOW, this 14th day of March, 2000, upon
consideration of Plaintiff's motion in limine, and following a
hearing on the motion outside the presence of the jury, the
motion is granted to the extent that the Defendant is precluded
from eliciting an opinion from Lawrence E. Thibault, Sc.D., as
to whether the motor vehicle accident occurring on November 25,
1996, caused Plaintiff's medical condition. Nothing herein is
intended to preclude the witness' expression of opinions on
matters relating to the accident other than medical causation.
By the Court,
Jt
I
Darrell C. Dethlefs, Esquii
Attorney for Plaintiff
!l{. C()k,/ . ~\
Wesley Ol~ , Jr .',~;[J. !> GO
~ ~r\~~~~
Matthew R. Gover, Esquire
Attorney for Defendant
:srs
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DONALD L. SOLONINKA,
Plaintiff
IN TilE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
v.
MONICA YETTER,
Defendant
NO. 98-6641 CIVIL TERr~
ORDER OF COURT
AND NOW, this 13th day of March, 2000, pursuant
to an agreement of counsel, Bonnie O. Soloninka is dismissed as
a Plaintiff in this case.
By the Court,
J
Darrell C. Dethlefs, Esquir
Attorney for Plaintiff
Matthew R. Gover, Esquire
Attorney for Defendant
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