Bain - Charles 032709

0001
1 STATE OF NEW MEXICO

COUNTY OF BERNALILLO
2 SECOND JUDICIAL DISTRICT COURT
3 ANDRE HERNANDEZ AND CELINA )
HERNANDEZ, )
4 )
Plaintiffs, )
5 )
vs. ) NO. CV-2007-01802
6 )
WALLACE CLARK, GILBERT )
7 TRUJILLO, AND CENTURY )
DRYWALL AND CONSTRUCTION, )
8 INC., )
)
9 Defendants. )
10 --------------------------------------------
11 VIDEO CONFERENCE DEPOSITION
12 CHARLES EDWARD BAIN, M.D.
13 MARCH 27, 2009
14 --------------------------------------------
15 VIDEO CONFERENCE DEPOSITION OF CHARLES EDWARD
16 BAIN, M.D., produced as a witness at the instance of the
17 Plaintiff and duly sworn, was taken in the above-styled
18 and numbered cause on MARCH 27, 2009, from 1:30 p.m. to
19 4:05 p.m., before Judith A. Gray, Certified Shorthand
20 Reporter in and for the State of Texas, reported by
21 computerized stenotype machine at the offices of Esquire
22 Deposition Services, Video Conference Room, 9901 IH10
23 West, Suite 630, San Antonio, Texas, pursuant to the New
24 Mexico Rules of Civil Procedure and the provisions
25 stated prior to going on the record or attached hereto.
0002
1 APPEARANCES
2 FOR THE PLAINTIFFS:
Ms. Nancy Garner
3 NANCY GARNER & ASSOC., P.C.
12231 Academy Rd., NE, #301-111
4 Albuquerque, NM 87111
Telephone: 505.294.8563
5 E-mail: [email protected]
6 FOR THE DEFENDANTS (present telephonically):
Mr. Todd Schwarz
7 MILLER STRATVERT PA
500 Marquette NW, Suite 1100
8 Albuquerque, NM 87125
Telephone: 505.842.1950
9 E-mail: [email protected]
10 OTHERS PRESENT:
Dr. Alan Watts (present telephonically)
11 ---------------------------------------------------
12
13
14
15
16
17
18
19
20
21
22
23
24
25
0003
1 INDEX
2 PAGE
3 Appearances ................................... 2
4 Stipulations .................................. N/A
6 Examination by Ms. Garner ....................4
7 Correction Page .................................94
8 Court Reporter's Certificate .....................97
9 EXHIBITS
10 EXHIBIT NO. DESCRIPTION PAGE
11 1 Notice of deposition .........................4
12 2 List of Materials ............................6
13 3 Photographs of vehicles ......................9
14 4 Photos of bumpers ...........................24
15 5 Article, Rate of strain ....................68
16 6 Article, Testing of Engineering .............68
Materials
17
7 Steel bumper systems ........................69
18
19
20
21
22
23
24
25
0004
1 CHARLES EDWARD BAIN, M.D.,
2 having been first duly sworn, testified as follows:
3 EXAMINATION
4 BY MS. GARNER:
5 Q. Dr. Bain, I'm Nancy Garner. I introduced
6 myself to you earlier. Would you state your full name
7 for the record, please.
8 A. Charles Edward Bain.
9 Q. And you're here pursuant to an amended notice
10 of deposition duces tecum; is that correct?
11 A. Yes.
12 Q. I'm going to hand you a copy and ask you to
13 identify that as the notice of deposition duces tecum
14 that you received.
15 A. Yes, it is.
16 Q. Okay.
17 MS. GARNER: If we can go ahead and attach
18 that as an exhibit, please.
19 (Exhibit 1 marked)
20 Q. (BY MS. GARNER) I did receive late yesterday a
21 motion for protective order concerning Items 12, 13, and
22 14. Is that your understanding?
23 A. Yes.
24 Q. Did you bring everything else that's listed on
25 this deposition duces tecum with you today?
0005
1 A. Yes.
2 Q. All right. Okay. And you've provided me with
3 various folders, red folders, which you said were copies
4 that I could retain or attach as exhibits and two large
5 green folders. And we'll go through these a little bit
6 more in detail. We do have a CV that's listed in here.
7 Your complete file. You said there was also a banker's
8 box, I believe?
9 A. Right over there.
10 Q. Is there anything in the banker's box that
11 differs from the documents that you have provided to me
12 before the deposition?
13 A. No, everything in the banker's box is what
14 Mr. Schwarz sent me.
15 Q. And is it also everything that's copied for me?
16 Or are there more documents in the banker's box than I
17 have here on the desk?
18 A. Yes. What Mr. Schwarz sent me, most of that I
19 didn't copy for you.
20 Q. Okay. Fair enough.
21 A. Those two documents are what my staff produced.
22 Q. So, the documents that weren't copied, I see,
23 would have included depositions; is that correct?
24 A. Yes.
25 Q. Could you take a look at the banker's box so we
0006
1 can identify all documents that are in the banker's box
2 that also would not be provided here.
3 A. There's a file called List of Materials and
4 that will have everything that's in that banker's box.
5 Q. Is this it?
6 A. Yes.
7 Q. So -- all right. We have a two-page List of
8 Materials, which is everything that's in the banker's
9 box.
10 A. Correct.
11 MS. GARNER: If you'll hand me the exhibit
12 stickers, I'll do this. Thank you. And we'll mark that
13 as Exhibit 2.
15 Q. (BY MS. GARNER) On the color photographs that
16 are listed, are those the same photographs that you
17 provided on the disk, the CD that was attached as
18 Exhibit 2, and also contained in your folder called
19 Testing?
20 A. Those would just be the test photographs. I
21 think what's on here are the photographs of the various
22 vehicles involved in these impacts.
23 Q. Okay. And are the photos involved -- of the
24 vehicles involved in the impacts, are those in my set of
25 materials?
0007
1 A. No.
2 Q. Okay. May I see those, please.
3 A. Yes.
4 Q. Thank you. In this file that says, "13 digital
5 color photographs of the 2003 Chevrolet Silverado," the
6 Silverado is the one involved in the November of 2005
7 collision; is that correct?
8 A. Yes.
9 Q. All right. And then you have a file folder
10 that states it's three color photocopies of photographs
11 of the 1994 Dodge Dakota which was involved in the
12 October 24th, 2005, collision, correct?
13 A. Yes.
14 Q. You have 16 color photographs of the 1993
15 Nissan which was involved in both of the incidents. And
16 was there any differentiation made as to whether these
17 photographs were taken after the first collision or
18 after the second collision on the Nissan?
19 A. It's my understanding that these photographs
20 were taken after the second event.
21 Q. Were there any representations made to you
22 concerning whether there was any difference in the
23 damage between the first event and the second event?
24 A. The plaintiff testified that there was no
25 increased damage visible as a result of the second
0008
1 crash.
2 Q. You have two files on the Chevrolet Silverado.
3 You have one that says it has 14 photocopies and one
4 that says it has 13 digital color photographs. Why do
5 you have so many pictures of the Silverado? Do you
6 know?
7 A. Those have probably been sent to us twice, and
8 my staff just adds them to the file as they come in. If
9 they're duplicates, they don't make any determination as
10 to that; they just add it as another file to the
11 materials. But I think most of -- these are duplicate
12 photographs.
13 Q. Where did you get your --
14 A. I believe.
15 Q. Where did you get your understanding that these
16 photographs of the Nissan were all taken after the
17 incident of November 2005 as opposed to after the
18 October collision?
19 A. That's the way they were presented to me. It's
20 got "Re: Both events," so I assume they're taken after
21 the second event.
22 Q. I am going to want to attach these. Were
23 there -- are these already duplicated in my materials?
24 A. No. I'm going to keep those. You can copy
25 them, but I'm keeping those.
0009
1 (Discussion off the record)
2 MS. GARNER: And what -- I would like to
3 attach and have the court reporter make color copies of
4 these and get these back to you, if they need to keep
5 them to do that. And there are 16 color photographs
6 here, so I would like to, if I could, mark them as
7 Exhibit 3-A through whatever letter that turns out to
8 be.
9 (Discussion off the record.)
11 Q. (BY MS. GARNER) I think that's all that you had
12 in there that I don't already have. Okay. Dr. Bain,
13 your background is -- you have a bachelor's -- or the
14 equivalent of a Bachelor's Degree in Engineering; is
15 that correct?
16 A. I have a Bachelor's Degree in Engineering, yes.
17 Q. And is the college system in Canada similar to
18 that in the U. S., meaning that's a four-year degree?
19 A. That's correct.
20 Q. And your engineering degree is in what
21 specialty?
22 A. It was through the Chemical Engineering
23 Department in Nuclear Engineering.
24 Q. Did you have any classes in biomechanics?
25 A. Not called biomechanics, no.
0010
1 Q. Any classes in biomechanical engineering?
2 A. Not called that, no.
3 Q. All right. And then your next degree was
4 in medical school?
5 A. Yes.
6 Q. And is that medical school equivalent to the
7 medical schools in the United States, in other words, a
8 four-year program?
9 A. Yes.
10 Q. So, you completed four years of medical school,
11 getting your M. D.
12 A. Yes.
13 Q. And then one year of internship?
14 A. Correct.
15 Q. Was there a residency?
16 A. I didn't do a residency, no.
17 Q. Are you board certified in any specialty?
18 A. I've got Canadian certifications, but I don't
19 hold American boards.
20 Q. Are the Canadian certifications equivalent to
21 American boards?
22 A. Approximately, they are, yes.
23 Q. And what specialties are those?
24 A. I'm certified in family medicine and emergency
25 medicine.
0011
1 Q. You also have attended accident reconstruction
2 school?
3 A. Correct.
4 Q. And that was with Northwestern Institute or
5 Northwestern University Traffic Institute?
6 A. Center for Traffic Study -- I don't know what
7 they call it now.
8 Q. Northwestern something.
9 A. Yes, just the Northwestern School for Traffic
10 Accident Reconstruction.
11 Q. And how long did you attend that school?
12 A. There were two courses. One was two weeks and
13 the second one was one week.
14 Q. And as a result of completing that, did you
15 receive any sort of certifications or diplomas or --
16 A. Not as a result of just completing that. You
17 get a certification of attendance or completion, I
18 guess.
19 Q. You completed that in what year?
20 A. 2003.
21 Q. When did you start with Biodynamic Research
22 Corporation?
23 A. 2003.
24 Q. Did you start with Biodynamic Research before
25 you started the Northwestern Traffic Institute seminar?
0012
1 A. Yes.
2 Q. When you testified in various depositions
3 between 2004 and 2006, do you agree that you did not
4 hold yourself out to be an accident reconstructionist?
6 Q. And you did not hold yourself out to be a
7 biomechanical expert?
8 A. I held myself out as having expertise in
9 biomechanics.
10 Q. Is that different from being an expert in
11 biomechanics?
12 A. I think that's what I just said. I have
13 expertise, so I'm expert in biomechanics, yes.
14 Q. And at this point, do you hold yourself out to
15 be an expert in accident reconstruction?
16 A. Yes.
17 Q. And why is that?
18 A. I've been certified in that area through the
19 American -- the Accreditation Commission for Traffic
20 Accident Reconstruction. I've attended various seminars
21 on accident reconstruction through the Society of
22 Automotive Engineers. I've probably done six to 700
23 impact analyses or accident reconstructions of various
24 sorts.
25 Q. And has that all been since giving depositions
0013
1 in 2004, 2005 and 2006?
2 A. I started that after joining BRC, so late 2003,
3 early 2004.
4 Q. And you say you've been through various
5 seminars and classes. Have these all been SAE type
6 events?
7 A. Yes. Their annual congress. I attend both --
8 try to attend part of their biomechanics track and also
9 their accident reconstruction track.
10 Q. Do you consider yourself to be an expert in
11 kinematics?
12 A. Yes.
13 Q. Do you consider yourself to be an expert in
14 material fatigue?
15 A. No.
16 Q. You're not a physicist; is that correct?
18 Q. And you have no Ph.D. in engineering of any
19 sort; is that correct?
21 Q. And you do not have a physics degree or a
22 mathematics degree?
23 A. Correct.
24 Q. Concerning your medical background, you're not
25 qualified to be a surgeon; is that correct?
0014
2 Q. And you don't hold yourself out as an
3 orthopedist.
4 A. No.
5 Q. Nor do you hold yourself out as a neurologist.
7 Q. And you agree that you're not an expert in the
8 area of medicine concerning the spine.
9 A. As far as it relates to emergency medicine and
10 family medicine, I am. As far as the surgical treatment
11 of the spine, I'm not.
12 Q. And you do not hold yourself out to be an
13 expert in the science of statistics?
14 A. I've taken courses in statistics. I use them a
15 lot in the work I do. I've taken courses in
16 epidemiology. I wouldn't qualify myself as an expert in
17 statistics, but I certainly utilize that branch on a
18 regular basis.
19 Q. And speaking of epidemiology, you do not
20 consider yourself to be an epidemiologist expert; is
21 that correct?
23 Q. After medical school, did you ever practice
24 engineering?
25 A. No.
0015
1 Q. Have you ever held a PE license or
2 certification --
3 A. No.
4 Q. -- professional engineer? Have you taken any
5 biomechanical courses after college?
6 A. University courses?
7 Q. Yes.
8 A. No.
9 Q. What sort of biomechanical courses have you
10 taken, if any?
11 A. Just attending biomechanics symposiums through
12 the Stapp Car Crash Conference or SAE, AAAM.
13 Q. Do you agree that the classes taught by
14 Northwestern University Traffic Institute do not deal
15 with the physics and mechanics of low-speed accidents?
16 A. I disagree with that.
17 Q. Okay. So, you're saying that, in that
18 training, you received -- you received training to be
19 able to calculate the physics and mechanics of low-speed
20 accidents?
21 A. Yes. The principles taught utilizing energy
22 formulas and momentum formulas, they can be applied to
23 low-speed events as well as high-speed events.
24 Q. Is that using a particular computer program?
25 A. You can develop spreadsheets in Excel. You can
0016
1 also do them by hand, if you like.
2 Q. Have you learned how to do them by hand?
3 A. Yes. And I tend to use Excel spreadsheets.
4 Q. Do you use any sort of computer program in
5 calculating the forces and mechanics of low-velocity
6 collisions?
7 A. Computer programs?
8 Q. Yes. Such as EDCRASH, Crash 3.
9 A. Well, I use EDCRASH and I use EDSMAC through
10 the HVE 2E Suite. But EDCRASH by itself really is only
11 valid for BEVs of ten to 40 miles an hour. So, to use
12 it in -- to state that this delta-V is 3 miles an hour
13 would be an inappropriate use of the program. But to
14 use it and state while the delta-V or the BEV is less
15 than 10, I think, is entirely appropriate.
16 Q. Now, do you hold yourself out to be an injury
17 causation -- is it analyst?
18 A. That's the process that I -- or the term that I
19 use for this process of taking complex events and
20 breaking them into components. That's the commonest
21 term that's used right now is injury causation analysis.
22 Q. Is that a term coined by Biodynamic Research
23 Corporation or is this an accepted scientific field?
24 A. It's not coined by BRC. And I see this term
25 all the time. As a matter of fact, there's a course
0017
1 recently at CHOP, which is Children's Hospital of
2 Philadelphia where they were giving a talk on -- they
3 labeled it injury causation analysis for abdominal
4 trauma in kids. This is a very common term now that's
5 used widely.
6 Q. Since when has it been used in hospitals? In
7 prior depositions that you've given, you were not aware
8 that it had been used in any hospital settings or in any
9 medical school settings.
10 A. Well, the actual analysis part isn't. But
11 people are using this process now to determine the
12 mechanisms of injury for a variety of problems. And
13 we're seeing that term used more and more commonly now.
14 Q. Have you seen any published peer review studies
15 that prove the scientific validity of injury causation
16 analysis?
17 A. Yes.
18 Q. Tell me what those are, please.
19 A. The first one was a paper published by Nahum,
20 N-A-H-U-M, in, I guess, 1994. He called it injury
21 reconstruction. But he went through the process that is
22 ICA.
23 There's a paper published in 2007 in the
24 Annual Review of Biomedical Engineering by Toby Hayes.
25 He calls it Forensic Injury Biomechanics, and that's
0018
1 outlining the methodology of ICA.
2 Q. In the case at hand, Mr. Hernandez versus
3 Wallace Clark, you did -- you performed a test which --
4 from which you derived a delta-V in this case; is that
5 correct?
7 Q. Did you derive the delta-V through any other
8 means other than performing the quasi-static loading
9 test?
10 A. First of all, based on the images of the two
11 vehicles and my years of doing crash testing, I knew
12 that this was a low-speed impact. And I verified that
13 by looking at EDCRASH and looking at what I would expect
14 to see for a delta-V or BEV of ten on the Nissan. So,
15 then to actually quantify that, I was --
16 Q. Wait. When you say BEV --
17 A. Barrier equivalent velocity.
18 Q. Thank you.
19 A. In order to quantify the delta-V or be more
20 accurate with an estimate, I was authorized to do
21 testing.
22 Q. When you say low-speed impact, what -- I've
23 seen different delta-Vs for that. What is your
24 definition of that?
25 A. Mine and the commonest that you'll find is low
0019
1 speed is less than ten. Ten to 20 is moderate speed and
2 high-speed crashes are delta-Vs above 20.
3 Q. Okay. So, I just want to be clear. The way
4 that you calculated the delta-V in this particular case
5 was by first performing the experiment to have a
6 quasi-static loading of forces on exemplar bumper; is
7 that correct?
8 A. That's what I used to try to more accurately
9 determine the delta-V.
10 Q. So, just by eyeballing the bumpers themselves,
11 you determined that this was probably a low-speed
12 delta-V.
14 Q. And then to come up with the actual
15 calculations that you did, that was derived from the
16 test.
17 A. Correct.
18 Q. Okay. Now, in the past, you have calculated
19 delta-Vs solely from looking at photographs of the
20 bumpers involved in the collisions; is that correct?
21 A. Not solely from looking at the photographs;
22 I've used other materials besides the photographs to
23 determine delta-V.
24 Q. What other types of materials have you used
25 besides the photographs?
0020
1 A. Repair estimates and the various forms of crash
2 testing. The commonest one is that performed by the
3 Insurance Institute for Highway Safety, if we're dealing
4 with low-speed crashes.
5 Q. And is it accurate to say that you didn't do
6 any such calculation of delta-V from the photographs or
7 estimates or the other sources that you just mentioned
8 in this particular case?
9 A. I think the only Insurance Institute for
10 Highway Safety test I had was on the Silverado, which
11 was essentially undamaged. So, all I could state, based
12 on the IIHS test, was that the delta-V of the Silverado
13 in the second event was far less than seven. But that
14 was the only testing I had of any of the three vehicles
15 that was somewhat detailed.
16 Q. And is it your opinion that the incident of
17 November 2005 was so trivial as to not be a cause of any
18 injuries claimed by Mr. Hernandez?
19 A. I don't think I used the word trivial in
20 talking about delta-Vs. They are what they are. But in
21 the second event, Mr. Hernandez himself stated that this
22 was less -- he thought it was less severe than the first
23 one. He stated his vehicle did not sustain any more
24 damage. And I think at one point he even stated he
25 wasn't sure if his vehicle moved forward.
0021
1 All of those things would tell me that
2 this second one was a very minor impact in terms of
3 delta-V and, based on all that information, that it was
4 most likely less than the first impact.
5 Q. Well, we know it was less than the first
6 impact. I'm going to quote from your report and ask you
7 if this is still your opinion.
8 "Since Mr. Hernandez's vehicle did not
9 sustain any damage from the second impact, its delta-V
10 was considerably less than three miles per hour." Is
11 that still your opinion?
12 A. Yes.
13 Q. Could it have been zero?
14 A. It's possible.
15 Q. Okay. So, somewhere between zero and three
16 would be the delta-V of the second --
17 A. Yes.
18 Q. -- incident? And were you able to calculate it
19 any closer than that?
20 A. Not with the information I had. I believe both
21 vehicles were stopped. If I knew the distance that they
22 were stopped, the distance apart they were stopped and
23 how they moved together, whether there was an incline
24 and one rolled into the other, then I could make some
25 calculations and come up with a delta-V, but that
0022
1 information wasn't provided.
2 Q. In your report, you stated, "If Mr. Hernandez's
3 vehicle had not moved, this would imply that the delta-V
4 of that impact was zero." Is that still your opinion?
5 A. Yes.
6 Q. So, it depends on whether the vehicle moved or
7 not, whether there was any actual positive number for
8 the delta-V for that incident.
9 A. Well, delta-V implies a speed change and if
10 there's no speed change, then the delta-V is zero.
11 Q. So, you were unable to come up with a delta-V
12 calculation based on just reviewing the documentary
13 evidence because there were no IIHS studies done on the
14 Nissan or the Dodge Dakota; is that correct? Or you
15 were unable to find --
16 A. That's correct. I had limited information
17 available.
18 Q. Okay. Now, can you tell me what the damage to
19 the Dodge Dakota was from the October of 2005 collision?
20 A. There was an indentation in the lower aspect of
21 the front bumper essentially as well as a split starting
22 from the inferior border working upwards of that bumper.
23 The repair estimate for the Dodge stated the need to
24 replace the front bumper, face-bar and the front bumper
25 air dam.
0023
1 Q. What's an air dam?
2 A. That's just a device on the bottom of the
3 vehicle that deflects or redirects air.
4 Q. Is that something that's part of the truck
5 itself or is it part of the bumper?
6 A. It would be attached to the bumper typically.
7 MS. GARNER: Dr. Watts, are you still with
8 us?
9 DR. WATTS: Yes, I am.
10 MS. GARNER: Thank you.
11 Q. (BY MS. GARNER) And you said the other part --
12 may I see the estimate, please, for the Dodge. The
13 bumper face-bar, what is that?
14 A. I believe I had a picture here. That's the
15 easiest way to explain. Or better yet, if we -- this is
16 a Mitchell book representation. Number 2 is the
17 face-bar and then there's an air dam below that. And
18 there's the face-bar with the indentation and then
19 there's the plastic air dam below it.
20 Q. I see. Thank you.
21 A. Those are mine. You do have --
22 Q. There are copies?
23 A. You do have copies of it.
24 Q. And that was in the green --
25 A. One of the red folders.
0024
1 Q. Okay. We'll find those later then. Did you
2 actually see the Dodge Dakota bumper other than just in
3 photographs?
4 A. Yes.
5 Q. All right. And how did that bumper get to you?
6 A. Mr. Schwarz shipped it.
7 Q. So, he shipped just the bumper -- removed it
8 from the vehicle and shipped the bumper.
9 A. Yes.
10 Q. In the pictures where you have comparisons -- I
11 assume that these are comparisons of the actual bumper
12 involved in the collision and then the exemplar bumper.
13 And in these pictures, one of the bumpers is shiny and
14 the other one looks pretty dull. Show you a picture
15 that I have. Can you tell me which is which?
16 A. The duller one is the defendant's bumper and
17 the shiny one is my exemplar bumper.
18 Q. Okay. All right.
19 MR. SCHWARZ: I would like my photograph
20 back. And we'll attach that as Exhibit 4 of the two
21 exemplar -- the two comparison bumpers.
23 Q. (BY MS. GARNER) Okay. When you were doing your
24 test, Dr. Bain, you created a video from that and you
25 also created a graph. You remember those, correct?
0025
1 A. Yes, that's correct.
2 Q. Is the graph -- does the graph correspond
3 temporally to the video itself? Here's a picture on the
4 graph.
5 A. No, it doesn't. That's a force displacement
6 curve. That deformation -- that's not a time
7 displacement curve; that's -- it's mislabeled.
8 Q. It's mislabeled.
9 A. Yes, that's right. I believe that would be
10 inches of deformation that we're seeing there.
11 Q. Can you explain why on this graph you have
12 points that go up and then, on two, maybe three
13 occasions, they go down? What is that representing?
14 A. I had stopped the testing at two spots and took
15 pictures and then carried on with the testing and
16 carried on to a level of deformation greater than what
17 we saw on the defendant's bumper.
18 Q. What is happening when the graph actually is
19 dropping down? Does that mean the force is dropping?
20 A. No, the -- it wasn't -- there might have been
21 some slight bleed-off in the hydraulics, and then, as
22 the actuator was depressed, the force built up to where
23 it was before and then carried on deforming the bumper.
24 Q. So, on this graph, on the bottom, the X line --
25 I know there's a technical name for that, but I'm going
0026
1 to call it the X and Y axis, because that's all I know.
2 So, on the X-axis -- and that is the one that goes
3 horizontally -- it says, "deformation" and then,
4 parenthesis, "seconds." But what you said is, it should
5 just mean deformation?
6 A. Yes. Or inches.
7 Q. Inches. Deformation in inches.
8 A. Yes.
9 Q. All right. And then the Y-axis is showing the
10 pounds of force that was applied; is that correct?
11 A. Correct.
12 Q. Okay. When you stopped the testing to take the
13 pictures, did you actually remove the bumper from the
14 mounting or did you leave it on the mounting as you took
15 the pictures?
16 A. We didn't touch that. The pictures were taken
17 and several seconds later, the press was reactivated.
18 Q. Okay. And it looks like you stopped it at
19 three times and then did not reactivate it after the
20 third stop; is that correct?
22 Q. Has any further testing been done on the
23 exemplar bumpers beyond the testing shown on the video
24 and on this graph?
25 A. No.
0027
1 Q. When you stopped the force loading, were the
2 bumpers touching each other?
3 A. Yes.
4 Q. And how could you tell where to stop the
5 testing?
6 A. Once the deformation on the exemplar bumper had
7 exceeded the deformation on the defendant's bumper, I
8 knew I exceeded the force that had been required to
9 produce that.
10 Q. And in this test video, there's a bumper that
11 looks like it has writing on it, 08060, which is upside
12 down. Is that the Nissan bumper, exemplar bumper for
13 the Nissan?
14 A. Yes, it's the Nissan bumper and the energy
15 absorber mounted on -- I believe it's reinforcement bar
16 and then brackets used to attach it to the steel plate.
17 Q. Now, the rigid frame that this bumper is
18 mounted on, is that the same material that the body of
19 the car is made out of?
20 A. Steel. I don't know if it's the same as the
21 vehicle. But the actual components, the reinforcement
22 bar, the energy absorber, the plastic cover and the
23 mounts were exemplar products.
24 Q. Meaning what? Meaning you tried to recreate --
25 A. We ordered from a dealer those parts and
0028
1 recreated the rear bumper assembly on the Nissan.
2 Q. On the Ford truck exemplar bumper, is that
3 mounted to an exemplar anything?
4 A. The Dodge?
5 Q. On the Dodge. Excuse me.
6 A. The mounting brackets and braces are exemplar.
7 And then they are mounted onto a frame to replicate the
8 frame rails of the Dodge Dakota.
9 Q. They're mounted on a frame to replicate the
10 frame rails of the Dodge Dakota. And who determined
11 that they actually did replicate the frame rails of the
12 Dodge Dakota?
13 A. Well, the Dodge Dakota bumper with its brackets
14 mounts on the frame rails. And we created a mounting
15 point that would be the same. It wasn't -- I can't say
16 that the material we used was the exact same as the
17 frame rails. I wasn't trying to duplicate the frame of
18 the Dodge. I was trying to duplicate how the bumper and
19 its brackets and attached braces were attached.
20 Q. But you were trying to duplicate the frame of
21 the Nissan; is that correct or not?
22 A. No. No, I wasn't trying to do that.
23 Q. Okay. So, the fact that you mounted it on an
24 exemplar type frame on the Nissan is irrelevant to your
25 testing?
0029
1 A. Yes, it is.
2 Q. Okay. Did you see the same sort of damage done
3 to the Nissan bumper as was done in the crash involved
4 in this case?
5 A. Where are the pictures of the plaintiff's
6 vehicle? Do you have that folder?
7 Q. No, I think I -- she marked that as Exhibit 3.
8 A. Okay. Thank you. Sorry. I don't believe --
9 I'd have to go back and look at the videos again, but I
10 don't think we recreated the damage on the Nissan nor
11 was I expecting to because of the properties of the
12 Nissan bumper and the way I was loading it.
13 Q. And can you explain that to me.
14 A. Well, the Nissan bumper is plastic. And I'm
15 not aware of the viscoelastic properties of that ABS
16 plastic that's used. And if I was trying to recreate
17 that damage, then I would most likely use a dynamic
18 test.
19 Q. Do you have any education in test design?
20 A. Yes.
21 Q. And tell me what that is, please.
22 A. From engineering school? Two years of doing
23 extensive experimentation.
24 Q. Do you consider yourself an expert in test
25 design?
0030
1 A. As it relates to doing low-speed crashes, I am,
2 yes.
3 Q. And that's based on two years of general
4 engineering courses and an undergraduate degree?
5 A. It's based on my engineering schooling, it's
6 based on my doing this work for five and a half years
7 and doing dozens and dozens of car crashes and component
8 tests.
9 Q. I asked you earlier what the damage to the
10 Dodge Dakota was, based on the estimate for repair. And
11 you told me that. So, do you also know what the damage
12 to the Nissan was after the collision of October 2005?
13 A. I'm assuming that all of the damage we see on
14 the rear of the Nissan and that listed in the repair
15 estimate was from that first event. And you see a split
16 in the upper portion of the rear bumper cover. The
17 cover was misaligned and the trunk lid was open in the
18 pictures. There were other areas of damage on the
19 Nissan that obviously weren't from this event. So, the
20 Nissan obviously had been well used over its lifetime.
21 Q. And that was damage to the front of the Nissan,
22 right?
23 A. I think there was side damage also.
24 Q. There was no side damage involving the rear
25 quarter panels though, correct?
0031
1 A. We've got some markings on the rear quarter
2 panels that aren't from this event. But I call it
3 superficial.
4 Q. So, what is the extent of the damage to the
5 Nissan from the collision at issue?
6 A. The repair estimate stated the need to repair
7 both quarter panels, and the rear body panel, replace
8 the upper rear body finish panel and replace the rear
9 bumper cover, along with the impact cushion. They also
10 did a setup on the frame.
11 Q. Does that mean there was frame damage?
12 A. No, it doesn't. They certainly checked the
13 frame, but they don't state that they actually did
14 anything to it. This is a -- these vehicles, that would
15 be almost a standard item; they certainly checked the
16 frame.
17 Q. Well, there was an estimate for how much it
18 would cost to repair that; was there not?
19 A. Yes. I mean, they would certainly say that
20 they were going to put up the frame. And if it requires
21 pulling, here's the amount of money.
22 Q. Are you disputing that there's frame damage?
23 A. Well, I haven't seen a repair bill. This is
24 the estimate. So, I'd see what the repair bill showed.
25 Q. Isn't it customary for the person doing the
0032
1 estimate to put the car up on a hydraulic lift and check
2 the frame?
3 A. They may or may not.
4 Q. Can you tell that there's frame damage just
5 from looking at the external portion of the car?
6 A. No.
7 Q. Is that -- I should rephrase that. Is it
8 possible to tell that there's frame damage from looking
9 at how the other parts of the body of the Nissan are
10 aligned?
11 A. With a significant impact, you may be able to
12 tell if there's some frame damage just by looking at it
13 externally. I did have some pictures of the frame rails
14 towards the rear of the vehicle. I didn't see any
15 damage in those photographs.
16 Q. Can you show me the pictures of the frame rails
17 and the photographs that you're relying on.
18 A. There's one. There's a second one. Those are
19 the only two.
20 Q. And what are we looking at here in these two
21 pictures?
22 A. We're looking at the frame rails.
23 Q. You're talking to somebody who has never seen a
24 frame.
25 A. This is the hanger for the exhaust. And here's
0033
1 the frame rail. I would assume this may be some of the
2 brackets from under the rear bumper. And you see the
3 frame rail go forward and dip down. And then on this
4 picture. that's the side with the muffler on it, and
5 there's the other side. And we see that frame rail
6 going forward and going down.
7 Q. And you're saying these pictures show that
8 there is no frame damage?
9 A. I don't see any frame damage in this, but I'll
10 have to admit, these are limited photographs.
11 Q. And you're not an expert appraiser for property
12 damage; is that correct?
13 A. No, I'm not.
14 Q. You'd have to rely on someone who is an expert
15 in that area.
17 MR. SCHWARZ: Are you going to attach
18 those photos?
19 MS. GARNER: Yes, let's do. That's a good
20 idea.
21 THE WITNESS: They're already attached.
22 MS. GARNER: That's right. They're in
23 Exhibit 3 of the folder which has all of the Nissan
24 pictures, Todd.
25 MR. SCHWARZ: Thank you.
0034
1 Q. (BY MS. GARNER) Did you determine the weights
2 of the vehicles involved?
3 A. Yes, I did.
4 Q. And is that an important item for you to know?
5 A. Yes, it is.
6 Q. What weight did you determine the Dodge to be?
7 A. 4,080 pounds.
8 Q. And what weight is the Nissan?
9 A. I estimated 3353.
10 Q. How important is it to your calculations that
11 the accuracy of the weight be?
12 A. If we're using momentum equations, then the
13 weight difference that we're dealing with is going to
14 yield a corresponding percentage difference in delta-V
15 analysis.
16 Q. Is it important to know how much weight the
17 vehicle is carrying?
18 A. Yes.
19 Q. And is it important to know how full the gas
20 tank is, for example?
21 A. Well, I assumed both tanks were full. The
22 vehicle curb weights are full fluids.
23 Q. Is it important to know the weights of the
24 occupants?
25 A. Marginally. I mean, the weight of the occupant
0035
1 in relationship to the vehicle is a small percentage.
2 But I did get both weights of individuals and added
3 those in.
4 Q. And what assumptions did you make with respect
5 to what weights the vehicles might have been carrying
6 other than the occupants or the gas tank?
7 A. I didn't have any information as to loads in
8 the vehicles.
9 Q. Now, with respect to the damage to the Dodge
10 Dakota, did you operate under the assumption that that
11 was damage that was caused by the October 2005
12 collision?
13 A. I was operating on that assumption. But after
14 doing my testing, that area of the split, I'm wondering
15 if that didn't result from being either two impacts or
16 maybe the prior impact to this vehicle had been in --
17 might have been more focally located in that location
18 resulting in the split or some fatigue occurring there.
19 What I did see though in my testing was a
20 considerable thinning of the material where that
21 split -- in that location of the split -- as well as
22 considerable fatigue cracking. So, that certainly is a
23 high stress point for the bumper when you load it in the
24 manner that was done with the Nissan Maxima.
25 But the first impact that that vehicle was
0036
1 in may have played a significant part in that
2 development of the split.
3 Q. Do you have any information about the first
4 impact that that truck was allegedly involved in?
5 A. No, I did not.
6 Q. Do you agree that the Nissan bumper is a
7 viscous bumper?
8 A. It has certainly more viscoelasticity than the
9 steel bumper. That's for sure.
10 Q. And with respect to that, the bumper to the
11 Dodge Dakota would be far less viscous. It would be
12 stiffer.
13 A. Yes, it's -- that's right.
14 Q. And the elastic --
15 A. Properties -- yeah. Elastic. It has different
16 properties.
17 Q. And you designed this test to stop at the point
18 where you saw damage that was similar or exceeded the
19 damage to the actual truck bumper, without consideration
20 to the damage that actually occurred to the Nissan
21 bumper in real-life; is that correct?
22 A. That's correct. I wasn't trying to replicate
23 the Nissan damage.
24 Q. Do you know what would have happened if you had
25 applied more force in terms of what would have happened
0037
1 to the Nissan bumper?
2 A. I don't think it would have been necessarily
3 how much more force I'd applied to it; I think what
4 would have made a difference would have been the rate of
5 loading to the rear of the Nissan.
6 If I'd applied more force, I was going to
7 start causing markedly increased damage to the exemplar
8 bumper than what existed. And if I had gone further, I
9 don't even know if I'd have replicated the Nissan
10 damage. I think what would be required would be to
11 greatly increase the loading rate.
12 Q. And when you say increase the loading rate, is
13 that the speed at which it's loaded or is that something
14 else?
15 A. The time over which the force is applied.
16 Q. So, that would be doing it much more quickly
17 than it was done in the video?
19 Q. So, you're saying if you had increased the rate
20 of loading, you might have seen --
21 A. The only -- if I was going to try and replicate
22 the damage on the Nissan, I would have liked to have had
23 a bumper that was the same age as the Nissan bumper.
24 And I would have dynamically loaded it through a
25 full-scale car crash test.
0038
1 Q. And why wasn't a full-scale car crash testing
2 done in this case?
3 A. The first thing was, it wasn't necessary. And
4 secondly was the much higher cost that would be
5 associated with it.
6 Q. You mentioned that you didn't have the same
7 year of the Nissan exemplar bumper. What year Nissan
8 bumper did you use?
9 A. I'm sorry, I missed -- I don't think I stated
10 that.
11 Q. I thought you said, if you had had a Nissan
12 bumper from the same year --
13 A. Our exemplar bumper was one bought from a parts
14 distributor for this Nissan. But, you know, these ABS
15 plastics, you can see some aging effects, possibly the
16 UV light. And it would be nice to, if you're going to
17 try and replicate the damage, try to get a bumper that
18 is the same age. In other words, it's been out in the
19 environment for X number of years.
20 Q. I see. Instead of a 1993 Nissan bumper that
21 came straight from the factory.
22 A. Yes, that's correct.
23 Q. All right. Do you feel that the damage that
24 you did to the Dodge Dakota exemplar bumper fairly and
25 accurately represents the damage that was done to the
0039
1 actual bumper?
2 A. I believe I exceeded the -- well, the
3 deformation that I caused on the exemplar bumper
4 actually exceeded that to the deformation on the subject
5 bumper. The only difference was that actual split that
6 was present; but, as I say, that may be a factor of its
7 prior impact.
8 Q. But you don't know that for sure.
9 A. No. But the deformation to the bumper I
10 greatly exceeded in my testing.
11 Q. Now, you had stopped the testing at -- it looks
12 like maybe around 6300 pounds. And then you stopped it
13 finally at around 7200, according to the graph. Is that
14 about right?
15 A. That's correct. I believe I stopped it at
16 the -- that's -- at around 62 or 6300, because with the
17 loading on -- the damage appeared to be the same at that
18 point; but I knew once the loading was taken off, we
19 would see some restitution. So, I took it through and
20 well exceeded the visible damage. And then when I took
21 the force off, we ended up having -- remain in place
22 considerably greater deformation.
23 Q. Do you agree that materials respond depending
24 on what kind of materials they are interacting with?
25 A. You will -- well, I'm not sure how -- I'm not
0040
1 sure how to understand that question. Do you want me to
2 take a stab at it with --
3 Q. Sure.
4 A. In the setting of trying to replicate the
5 damage to the Dakota bumper, I knew I had to press
6 against it the Nissan bumper. I couldn't use a steel
7 plate or I wasn't going to get the same damage pattern.
8 If that's what you're referring to, then I agree with
9 that statement.
10 But if we're talking about the actual
11 elastic properties of the steel, is that going to make a
12 difference when I'm pushing against it, then I disagree
13 with that.
14 Q. Is it possible that this graph is showing a
15 viscous behavior-type response when it goes down after
16 stopping the loading?
17 A. I don't think so. I think that's more a
18 function of our test setup.
19 Q. You're measuring forces here. And then when
20 you stop it, the force decreases?
21 A. That's right.
22 Q. And you feel that that's a function of the test
23 setup --
24 A. Yes.
25 Q. -- as opposed to any sort of viscous behavior
0041
1 response?
3 Q. Have you ever done a similar test like this in
4 the past for any of your clients where you have had two
5 exemplar bumpers or even one exemplar bumper performing
6 this type of loading test?
7 A. Yes, I've done this numerous times.
8 Q. And in which cases?
9 A. I can't say offhand.
10 Q. Is that in the red file, the case list?
11 A. That's my Testifying History.
12 Q. Testifying History. Here we are. Would you be
13 able to take a look at that and tell us in which cases
14 you performed exemplar bumper-type loading tests?
15 A. I'm probably not going to be able to do that.
16 I can try. I've got, I think, 100 testifying events
17 here. And I've done over 800 cases. And a lot of the
18 tests have been on cases that didn't go to testifying
19 events. But I'll look through what cases I've testified
20 in and whether I can remember I did testing or not.
21 Q. Well, approximately how many of these tests
22 have you done in the past?
23 A. Of bumper deformation tests where -- using just
24 the component?
25 Q. Yes.
0042
1 (Interruption and discussion off the
2 record.)
3 THE WITNESS: I've probably done component
4 testing like this a dozen times. I'm just guessing
5 though. I've done dozens and dozens of testings.
6 Q. (BY MS. GARNER) Have you been allowed to
7 testify in all of those cases where you have done this
8 type of similar testing?
9 A. The only case that I've done testing where I
10 haven't been allowed to testify was a case in Missouri.
11 But I think all other times, I've -- where the case has
12 carried on that far -- I've been allowed to testify.
13 Q. Do you know the total number of times that you
14 have been disallowed from testifying to your opinion,
15 whether it was involving a test like this or not?
16 A. I think it's approximately eight times.
17 Q. Could it be higher?
18 A. It's possible, yes.
19 Q. And you were informed in each of those cases
20 when a judge disallowed your testimony; is that correct?
21 A. I would like to think I have been.
22 Q. Okay. Do you recall the Johnson case?
23 A. Is that one of the ones from Buffalo?
24 Q. I'm not sure. It was one involving a buck, not
25 a dollar bill.
0043
1 A. I'm sorry?
2 Q. Involving a buck.
3 A. No, that was the case in Missouri I was
4 mentioning. I was doing some component testing on a
5 Freightliner front bumper.
6 Q. That was the Missouri case. Do you remember
7 the name of that one?
8 A. Not offhand.
9 Q. Now, is it your position that the -- or your
10 opinion -- that the Nissan bumper was mounted on an
11 exemplar material and frame that was substantially
12 similar to the actual car frame and the car body?
13 A. I can't speak to that. I took the entire rear
14 bumper assembly and mounted it on a device to replicate
15 the geometry of the frame, but I can't speak to the
16 materials.
17 Q. So, you cannot say conclusively whether the
18 materials were substantially similar or not to the
19 actual Nissan.
20 A. Well, they're both steel, but I can't -- other
21 than that, I can't be more specific.
22 Q. You don't know what the strength of it is
23 compared to the strength of the car?
24 A. No.
25 Q. Okay. And you would agree, wouldn't you, that
0044
1 the frames that these are mounted on don't behave like a
2 vehicle in a crash in real-life?
3 A. No, these weren't shaped that way. I was just
4 replicating the geometry to mount the bumpers on. But
5 with this type of loading, I would not expect to see any
6 significant frame involvement anyway.
7 Q. But you also do not replicate the damage that's
8 done to the Nissan vehicle itself, the bumper cover, the
9 quarter panels, the rear panel, the things that you
10 mentioned that -- there's no disagreement about the type
11 of damage that occurred in this collision, correct?
12 A. No, I wasn't trying to replicate that. I was
13 only trying to replicate the damage to the Dodge bumper.
14 Q. I think I asked you this before, but I just
15 want to make sure I understand. As you were applying
16 the forces during this video and during the graphing --
17 maybe I should ask, when was the graphing done? Was
18 this a computerized graphing done as a result of the
19 force loading?
20 A. Yes, I believe that's done at a MATLAB.
21 Q. Okay. And how long did the total video and
22 testing last?
23 A. I would -- I haven't measured it. I would
24 guess the loading occurred over probably 20 to 30
25 seconds.
0045
1 Q. Is the video that you provided to me, does that
2 contain all 20 or 30 seconds of the entire testing? In
3 other words, was there any editing done of that video?
4 A. There may have been time taken off the front or
5 the back, but I don't believe it was edited from the
6 time of the start of the testing until when we finished.
7 Q. So, that should be the entire test on the
8 video?
9 A. I think so.
10 Q. And as you were applying these forces, the
11 bumpers remained -- well -- touching each other in the
12 same manner all the way through this loading, correct?
13 A. As the loading increased, I believe there was
14 some sliding between the two bumpers, just because of
15 the geometry.
16 Q. Okay. And explain that, please.
17 A. You know, the bumpers aren't exactly the same.
18 They're not flat. And as you start to compress them,
19 you're going to see some movement of them with respect
20 to each other.
21 Q. Well, when this accident occurred in real-time,
22 my understanding is that, as the -- Mr. Clark would have
23 been applying his brakes, his bumper, which sat higher
24 on the truck than the Nissan bumper at rest, would have
25 dived down a little bit and that at the point of impact,
0046
1 it would have actually been fairly level with the Nissan
2 bumper; is that correct?
3 A. That's a possibility.
4 Q. Well, is that your assumption in doing this
5 test is that they did have a fairly straight-on impact?
6 A. Do you have -- that disk is loaded on your
7 computer. Could I get a quick look through it. I just
8 want to check one thing before I answer the question.
9 Q. On the video?
10 A. Not the video. Just the still pictures. Do
11 you have those on there?
12 Q. Yes, I do.
13 A. Thanks. I'm sorry.
14 Q. I may have some pictures.
15 A. Yeah.
16 Q. I don't have all of them, but I have a lot of
17 them.
18 A. Okay. This should be what I'm looking for. It
19 was obvious from looking at the way this Dakota bumper
20 was loaded that the bumpers weren't, I don't believe, in
21 the vertical alignment that we would typically expect to
22 see, because we see the loading indenting the lower
23 portion of the Dakota bumper and we see that crack on
24 the upper portion of the rear bumper cover on the
25 Nissan.
0047
1 So, I think there was probably
2 considerably more height mismatch here than what we
3 appreciated. I don't know what tires -- maybe see if I
4 can see what tires were on the Dakota from the images.
5 But based on the testing I did where we --
6 very, very similar damage pattern with the alignment of
7 the two bumpers -- it was obvious that the vertical
8 heights were not what one would typically expect.
9 I agree that the front bumper of the Dodge
10 is going to drop down as a result of braking. And they
11 start off, according to the vehicle specifications, with
12 a two-inch mismatch. But based on the damage pattern we
13 see to the Dodge, the Dodge bumper was quite a bit
14 higher than the rear bumper of the Nissan at the time of
15 the engagement.
16 Q. Okay. So, then how does that apply to this
17 test? When you were doing the test, you lined them up
18 approximately right on top of each other. Is that not
19 correct?
20 A. No, there was some offset.
21 Q. And where was the offset? How much offset was
22 there?
23 A. I'd have to get a picture that shows a lateral
24 view and I could tell you from that. But I didn't see
25 in the pictures that you had -- if you don't get the
0048
1 proper bumper height, you're not going to get the same
2 damage pattern.
3 Q. Scroll down. Second set. Yes.
4 A. Rotate it clockwise. See if that shows --
5 Q. Are we upside down?
6 A. I don't think that -- what's that --
8 THE WITNESS: That would be right side up
9 for the Nissan and this is --
10 Q. (BY MS. GARNER) That is the correct view of
11 this?
12 A. I think that is a correct orientation. If we
13 look at this, we're looking at from this end, so -- and
14 then this is the correct orientation for the Dodge. So.
15 Q. Do you have copies of all of the photographs in
16 your file somewhere?
17 A. Printed up like that?
18 Q. Yes.
19 A. No. I just -- I only have a disk like you do.
20 MS. GARNER: All right. For the record,
21 Todd, we're looking at Exhibit C that was provided by
22 Dr. Bain in the discovery request. And it's the file
23 that's called "Pretest Photos."
24 MR. SCHWARZ: Okay.
25 MS. GARNER: And the Pretest Photos, when
0049
1 you open it up and you -- the first set of four, we
2 passed down. And we go down to the second set of four.
3 And he's talking about the one in the upper right
4 corner -- excuse me -- upper left corner. And we
5 rotated that. And that's what he was just referring to,
6 that there was -- okay.
7 Q. (BY MS. GARNER) And so, how do you know that
8 this offset substantially replicated the offset that
9 occurred in the wreck?
10 A. By the results of the testing. After looking
11 at the defendant's bumper, I realized that when these
12 vehicles impacted, the Dodge bumper was higher than the
13 Nissan bumper. And so, I conducted my test to do that
14 and -- I forget how many inches difference I had -- I'll
15 have to go back because I'm sure there's a picture in
16 there with a tape measure in there. And that was
17 evidenced by the damage pattern between these two
18 bumpers. They were very, very similar, so I knew that
19 the bumper height I selected was approximately what was
20 present during this event. I mean, if the Dodge's
21 bumper was several inches lower than the Nissan's
22 bumper, we'd have seen a much different damage pattern.
23 Q. We didn't see any damage at all to the Nissan
24 with the loading test. There was no cracking of the
25 bumper, the top of the bumper, like there was in actual
0050
1 life, correct?
2 A. That's correct. And I wasn't -- I don't think
3 I could replicate that with a quasi-static test.
4 Q. And why is that?
5 A. Because of the properties of the bumper, I
6 think it would have to be loaded rapidly to get cracking
7 like that.
8 Q. So, the fact that this was loaded slowly means
9 that it didn't -- it doesn't recreate all of the forces
10 that were involved in the real-life collision.
11 A. No, it does recreate the forces. But it
12 doesn't -- but the rate of force application was not
13 duplicated.
14 Q. Isn't it true that you stopped the testing at
15 the level -- the lowest level possible to show damage to
16 the truck bumper but not to show replicated damage to
17 the Nissan bumper?
18 A. Well, I stopped it eventually at a level that
19 showed greater damage to the Dodge bumper in my
20 exemplar. But as I mentioned earlier, even if I'd
21 carried this on to a much greater deformation depth, I
22 don't think I would see the same damage pattern on the
23 Nissan because the loading rate was different.
24 Q. Well, isn't it true that the viscous materials
25 stiffen up with a quicker force load?
0051
1 A. Yes.
2 Q. And that's what you're talking about with
3 respect to the Nissan bumper, right?
5 Q. And they act differently when the force is
6 applied slowly?
7 A. We'll see a different response to the Nissan
8 bumper, that's correct.
9 MS. GARNER: What I'd like to do is take
10 about a five-minute break and take a look at everything
11 and then come back in about five minutes. We've been
12 going for an hour now.
13 (Recess from 2:41 p.m. to 2:52 p.m.)
14 Q. (BY MS. GARNER) Okay. I have some questions
15 about the graphic, Dr. Bain. You said that you thought
16 that the variation of the drops in it were due to the --
17 I guess the hydraulics of the machinery itself or --
18 A. I'm just speculating. I would assume so, yes.
19 Q. Is that something you see on all of your
20 loading tests?
21 A. Yes.
22 Q. Do you maintain this equipment to do this type
23 of testing frequently? I mean, is the equipment that's
24 used in this testing maintained?
25 A. Yes, it is.
0052
1 Q. And is that something you expect to see on all
2 of your loading tests when you stop?
3 A. Yes.
4 Q. So, if -- is there any other explanation other
5 than due to some sort of machinery, what, malfunction or
6 aberration --
7 A. I wouldn't call it a malfunction. The
8 equipment is working properly.
9 Q. And how can -- how can you prove that that was
10 what the graph drop was due to?
11 A. I'll go back to my technicians and ask them
12 that. I've never questioned it before.
13 Q. Who are the technicians who were involved in
14 this testing?
15 A. Mr. Guzman, Mr. Bernoulli, Mr. Meridith.
16 Q. And do you agree that if it's not due to the
17 machine itself doing this, that it's showing a response
18 to -- it's a viscous behavior response?
19 A. For the steel, I don't believe so. I mean,
20 what we're seeing is, you start the loading -- and
21 again -- and the graph comes back to becoming linear, so
22 I don't think that's an issue here.
23 Q. Well, do you agree that the loading is being
24 done between two types of materials? That's a rather
25 inelastic material and there's a viscous material with
0053
1 the two types of bumpers, correct?
2 A. They're different materials, that's correct.
3 Q. And do you agree that the response that the
4 material -- each material will give -- depends on the
5 response of the other material?
6 A. Forces are equal and opposite.
7 Q. And what does that mean?
8 A. Well, it means the forces --
9 Q. Does that mean you'll always have exactly the
10 same force on the truck in terms of damage that you have
11 on the Nissan?
12 A. It means that the force that's being applied to
13 the Dakota bumper is the same force that's being applied
14 to the Nissan bumper.
15 Q. Do you have any articles that establish that
16 this kind of testing is a valid test from which you can
17 extrapolate the forces involved in the actual collision?
18 A. Yes. You base this on Newton's three laws. Go
19 back to Newton's book he published in 1600 and
20 something. I mean, the -- once you determine the peak
21 force that has acted onto the Dodge, you know that's the
22 same peak force that acted on the Nissan. And you can
23 then use a pulse shape and approximate the delta-V that
24 resulted from that application of force for a certain
25 time period. Those are basic physics principles.
0054
1 Q. Did you ever do any energy calculations in this
2 case?
3 A. No, I did not.
4 Q. Would you be able to do energy calculations
5 from the data on the graph?
6 A. You can look at the force displacement curve
7 and calculate an energy for deforming that bumper.
8 Q. And why wasn't it done in this case?
9 A. It wasn't needed. I don't think that's going
10 to add any additional information.
11 Q. Let's go back to what the Ford bumper was
12 mounted onto. Did you say that you attempted to
13 replicate -- or did you agree that you didn't attempt to
14 replicate the actual frame and vehicle of the Ford --
15 excuse me -- the Dodge -- I don't know why I said
16 Ford -- the Dodge itself with respect to the bumper?
17 A. As I said, we replicated the geometry for the
18 front bumper assembly for the Dodge. We used steel, but
19 it didn't have the same characteristics or shape of the
20 frame of the Dodge. The geometry was the same for the
21 mounting points.
22 Q. Well, do you agree that if you do not have the
23 same type of mounting in terms of its strength and
24 characteristics as the vehicle, that you might not get
25 the same results when you're doing a loading test?
0055
1 A. Not in this case, I don't agree with that
2 statement.
3 Q. And even though the mounting is dissimilar from
4 the actual vehicle, you believe that just deforming the
5 bumper mounted to a rigid type mounting would replicate
6 forces involved in the actual event.
7 A. That's correct. We're determining the force
8 that caused this deformation. And as long as the front
9 bumper assembly is mounted in the correct geometry, then
10 you're going to get a relatively accurate answer.
11 Q. And you did agree that you were unable to
12 replicate the Nissan bumper's damage because you're
13 doing a slow loading test instead of a quick dynamic
14 event as occurred in the real crash.
16 MR. SCHWARZ: Objection to form.
17 MS. GARNER: What was wrong with it? Is
18 it confusing?
19 MR. SCHWARZ: If you're trying to
20 summarize his testimony, you're misstating his
21 testimony.
22 MS. GARNER: Okay.
23 Q. (BY MS. GARNER) And you do agree that a
24 collision involves mutual considerations. If it's a
25 car-on-car type collision, it's not a car-on-barrier
0056
1 type collision.
2 A. That's correct. We have restitution involved
3 in this event; and if you're using momentum formulas or
4 crush calculations, then you need to take that into
5 account.
6 Q. Did you take any restitution into account other
7 than what you told us about earlier; and that was to
8 deform the truck bumper a little bit more than what you
9 believe occurred in the actual situation?
10 A. Well, the truck bumper was deformed
11 considerably more. That's a more accurate statement.
12 If I -- I have given you some momentum equations. And
13 in there for calculating closing velocities, then
14 restitution does play a significant role in this because
15 this is a very low-speed impact.
16 Q. What did you calculate the closing velocities
17 to be?
18 A. We have a closing velocity of approximately
19 four miles an hour.
20 Q. And how is that calculated?
21 A. Based on momentum formulas. We have a delta-V
22 of the Nissan of approximately three miles an hour if we
23 look at the weights of the two vehicles. We end up with
24 a closing velocity of approximately four miles an hour.
25 Q. And what coefficient of restitution did you use
0057
1 in that?
2 A. I used -- for that is .4.
3 Q. And how did you come up with the .4?
4 A. There's various papers out there looking at
5 restitution as a function of closing velocity, but I
6 tend to use a paper by Cipriani in 2002 when he looked
7 at a lot of these papers and came up with some
8 regression formulas. And he has looked at a
9 piston-to-piston restitution, foam core-to-foam core and
10 then he's got an all data composite.
11 And I tend to use restitutions for that
12 closing velocity between the foam to foam and the all
13 data composite numbers.
14 In this -- if we have a four-mile-an-hour
15 delta-V, the foam core-to-foam core composite number is
16 approximately .47. And the all data composite is .41.
17 So, it's in that range.
18 Q. What assumptions did you make then other than
19 the -- using the .4 coefficient of restitution -- what
20 other assumptions did you use in calculating the
21 delta-V?
22 A. Using momentum, you just -- restitution,
23 weights of vehicles.
24 Q. Did you consider the stiffness of the materials
25 involved?
0058
1 A. No, I didn't do a crush analysis. So, I did
2 not utilize that data, which would be very difficult to
3 do in the low-velocity range.
4 The stiffness coefficients are based on
5 high-speed crash tests. And as Terry Day states in some
6 of his papers in the eighties, you can use that data
7 with BEVs from ten to 40 in a valid manner. But to
8 start using stiffness coefficients and some nonexistent
9 crush steps in these low-velocity impacts would be an
10 inappropriate calculation.
11 Q. If you'd put more force on the truck bumper,
12 can you say whether -- at what point there would have
13 been any more deformation at -- after 7200 pounds of
14 force, if you had continued putting more force on it, at
15 what point do you think the deformation would have
16 continued?
17 A. Well, if I continued adding force, up to a
18 certain point, the deformation would continue. I don't
19 know how this would end up as we continued loading this
20 setup. If you ask me what the end point would be until
21 I broke something, I don't have that answer.
22 Q. Do you also -- well, in deformation, isn't it
23 true that there's a range of where certain visual
24 deformation can occur within a range of X pounds to
25 Y pounds? And so, I'm asking -- so what I'm asking is,
0059
1 do you know how much more weight would have had to have
2 been applied to create further visual deformation?
3 A. Well, the deformation was occurring gradually
4 as I increased the loading. So, if I'd gone up to 8,000
5 pounds, I'd have expected to see more deformation.
6 Q. Do you know what would have happened if you had
7 doubled the weight?
8 A. Like up to 16,000 pounds?
9 Q. If you'd gone up to 14,400 pounds.
10 A. At some point I'd have reached a yield point
11 and the slope of the graph would have changed
12 dramatically. I didn't approach that in this case.
13 Q. Have you ever read Dr. Watts' book on low-speed
14 automobile accidents?
15 A. No, I have -- not that book, no.
16 Q. Have you read any of his books?
17 A. I think I've seen his first edition. I glanced
18 at it.
19 Q. Do you consider him to be an expert on
20 low-speed collisions?
21 A. I haven't got an opinion in that regard.
22 Q. Do you know -- who do you consider to be
23 experts in low-speed collisions?
24 A. With regards to -- what are you referring to?
25 Accident reconstruction or biomechanical issues, medical
0060
1 issues?
2 Q. Let's say biomechanical issues.
3 A. I know I am, but -- my colleagues at BRC are.
4 I don't have opinions outside of that.
5 Q. And how about with respect to accident
6 reconstruction? Who do you consider to be the expert
7 in -- or the experts in low-speed accident
8 reconstruction?
9 A. I don't differentiate low-speed from
10 high-speed. If you have expertise in accident
11 reconstruction, you should be able to span the entire
12 gamut. And there's a lot of individuals with expertise
13 in accident reconstruction.
14 Q. I want to go through your report. You state on
15 Page 5 that -- this is in the fourth paragraph -- it has
16 been accepted that a threshold for injury in
17 low-velocity rear-end impacts aside from reflexive
18 muscle symptoms is a delta-V of approximately five miles
19 per hour.
20 So, my question is, is the corollary of
21 that also true, that over a delta-V of five miles per
22 hour, would you expect to start seeing injuries?
23 A. The simple answer is yes, but I'd like to
24 explain that. For me, the threshold, I think, is
25 between four and five miles an hour. That's based on
0061
1 several other individuals' research as well as some
2 statistical analyses that myself and my colleagues at
3 BRC have done involving placebo rear-end crashes and
4 other studies with large numbers of volunteers.
5 Certainly, for staying within the
6 low-velocity range, once you get above that threshold,
7 then you certainly can see people having injuries. But
8 I would qualify that by saying that the injuries I would
9 expect to see are muscular neck injuries, if we're
10 talking the low-velocity range. That to me is the
11 injury potential from these low-speed, rear-end impacts.
12 Q. Are you still of the opinion that a person
13 cannot receive a herniated disc from a motor vehicle
14 rear-ender impact without also fracturing a vertebra?
15 A. I don't know if I've ever said that. What I do
16 believe is that discs do not herniate suddenly. They do
17 not herniate as a result of a one-time force
18 application.
19 The viscoelastic properties of the disc
20 are such that they become very strong. They're actually
21 stronger than bone. A sudden application of force, you
22 will fracture bone before you acutely injure the disc.
23 That's typically seen with axial loading.
24 If you do some extreme flexion maneuvers,
25 whether extension, flexion or lateral flexion, you can
0062
1 injure the soft tissues and ligaments and you can
2 disrupt the disc end plate interface. But for the
3 classic degenerative disc herniation that we usually
4 talk about in these cases, those are not the result of a
5 one-time force application.
6 Q. What is axial loading?
7 A. That would be loading directed up or down the
8 spine. If you slip and fall on the ice and land on your
9 butt or if you dive and land on your head.
10 Q. Are axial loading forces involved in a rear-end
11 collision where it's a push to the back when someone is
12 sitting down?
13 A. Yes, there are some small loads generated, yes.
14 We tend to measure that in accelerations, but there are
15 vertically oriented accelerations present in your low
16 back as a result of a rear-end impact.
17 Q. But the axial loading that you were talking
18 about is measured from the bottom as if somebody fell on
19 ice and hit the butt or from the very top of their head.
20 That's what you're talking about?
21 A. As far as axial loading goes, that's right.
22 But even in low-speed rear-end car crashes, there is
23 some minor axially generated accelerations with regards
24 to spine.
25 Q. And these studies that you're relying on, you
0063
1 cited them in your bibliography. Did you bring the
2 articles with you?
3 A. No, I didn't.
4 Q. And which of the studies are you relying on?
5 A. Well, all of the ones that I've listed here at
6 various points in my report are supportive of the
7 opinions I've given.
8 There's a much larger body of literature
9 on -- or testing on human subjects in low-speed,
10 rear-end crashes. I believe there is approximately 45
11 case studies that have been carried out, which probably
12 around 40 or the low forties have been published. The
13 number of volunteers in those studies are over 300
14 involving well over 900 impacts. I"m relying --
15 Q. And you're talking about all of these studies
16 all combined, right?
17 A. Well -- yes. That's --
18 Q. Because each of these studies, when I was
19 reading them, I saw, you know, four subjects here or
20 seven subjects there. So, are you talking about the
21 combination of all of these types of tests and studies
22 done that represent more than 300 people or 300
23 subjects?
24 A. More than 300 subjects.
25 Q. But there's not any one single test that has
0064
1 more than 300 subjects; is that correct?
2 A. No, that is correct.
3 Q. In fact, there's not even any one of these
4 tests that has more than about 20; is that correct?
5 A. That's incorrect.
6 Q. Which one has more than 20?
7 A. Bero. Number 4. He has, I think, 42 subjects.
8 Q. And what did he do in that particular study?
9 A. They were test subjects in rear-end car crashes
10 of delta-Vs of two and a half and five mile per hour.
11 Q. And so, you're saying that merely because there
12 have been a small number of people tested in car crashes
13 with delta-V of two and a half to five miles an hour who
14 didn't experience disc herniation, that that means no
15 one in the world can experience disc herniation as a
16 result of a delta-V of five?
17 A. I don't make comments like that. I don't
18 make -- speak in absolutes, firstly. And secondly, you
19 can't use science to prove a negative. We can show how
20 things do occur. And you can, by corollary, say, well,
21 something doesn't occur; but you can't prove a negative.
22 So I don't speak in those type of terms.
23 Q. Well, the thousands of car wrecks that
24 happened, I would guess every year, how large a test
25 would you believe would be representative and could be
0065
1 applicable to the whole general population?
2 A. Well, with the data that we have now involving
3 human subjects, of those 300-plus human subjects who've
4 involved in 900-plus impacts, no one has had any
5 symptoms longer than two weeks.
6 If you start doing some characteristic
7 curves on these people, you can start to say now that,
8 more likely than not, with 95 percent confidence, you
9 don't get serious or long-lasting injuries; and you can
10 apply that to the population as a whole.
11 Q. And that's for impacts up to the delta-V of
12 five?
13 A. Yes.
14 Q. And that's because they really don't conduct
15 the test with higher delta-Vs using human subjects
16 because of the possibility that they can be seriously
17 hurt; is that correct?
18 A. Well, the rear-end testing has gone up to
19 slightly over ten involving human subjects in typically
20 automobile-style seats.
21 There's a lot of military research where
22 people are in aircraft-style seats that are subjected to
23 far greater acceleration pulses than what we see in
24 these low-speed rear-end crashes.
25 Q. But that's not really applicable because the
0066
1 seats being rigid and straight up and everything varies
2 drastically from a car-style seat, correct?
3 A. Well, it depends on what body area you're
4 talking about. If we're doing a car crash and we've got
5 a seat that ends at the shoulders and there's no neck
6 support, then once we get them to moderate and
7 high-speed delta-Vs, the potential for neck injuries
8 becomes significant.
9 If you support the neck in a rigid seat,
10 then you can see acceleration pulses of 40 G's for short
11 time periods where you're not going to expect to see any
12 soft tissue or bony injury.
13 In this case, we're dealing with a low
14 back. The seat back provides his low back excellent
15 support.
16 Q. Why didn't you bring the articles that you
17 relied on in your study, in your opinion?
18 A. I typically don't do that. I provide
19 bibliographies and most people have access to these
20 articles.
21 Q. Well, was it in the notice of deposition duces
22 tecum to bring the articles?
23 A. It may have been. Number 6, you say, "Any
24 authoritative textbook, articles or other literature,
25 information to be relied upon at trial."
0067
1 I provided a bibliography. To reprint
2 these articles, there's a fee associated with it. And I
3 mean, if you wanted to pay us to do that, we could do
4 that for you. But I think you could probably do it a
5 lot cheaper yourselves.
6 Q. I think with the duces tecum, I'm entitled to
7 get them without a fee.
8 A. Our company position is that there's a fee
9 associated --
10 MR. SCHWARZ: Are you going to argue with
11 Dr. Bain about the application of the Rules of Civil
12 Procedure and what duces tecum actually means? I think
13 that's probably inappropriate.
14 Q. (BY MS. GARNER) Did you bring the articles or
15 literature or information which supports the validity of
16 testing results and conclusion done in this case?
17 A. I did bring some of those.
18 Q. The articles and literature?
19 A. Yes.
20 Q. Okay. And where is that?
21 A. This -- I brought three articles that talk
22 about the viscoelastic properties of steel bumpers -- or
23 steel and steel bumpers. And the one is an article
24 entitled, "The Testing of Engineering Materials." And I
25 brought the relevant pages from that.
0068
1 I also have another article from American
2 Society of Testing Materials in 1936 talking about rate
3 of strain on test results for metals.
4 And then I brought another article from
5 the American Iron and Steel Institute talking about
6 steel bumper systems for passenger vehicles and light
7 trucks. And in here, they have extensive graphs looking
8 at the properties -- or the stress/strain properties
9 depending on various loading rates.
10 And all of these materials show that it is
11 very applicable to do quasi-static testing and take the
12 forces from that. And those are the same forces that
13 would result from dynamic loading.
14 Q. And this is in this large --
15 A. Yeah, I can let you copy that, but I'm not
16 going to let that one out of my sight. I'll let you
17 have those ones. But I don't want -- that one -- that's
18 a nice color copy and I'd like to keep that.
19 Q. So, will you just point to the sections that
20 deal with these tests as being valid and capable of
21 reproducing the forces actually involved in the actual
22 event. You can just tag those, if you would.
24 THE WITNESS: This is the main graph right
25 here showing various loading rates and the resulting
0069
1 stress, true stress, true strain relationships.
2 Q. (BY MS. GARNER) And this comes from where?
3 A. This publication?
4 Q. This is it? Okay. So, if we can just get a
5 copy of the first page and this. And this is what
6 you're relying on, the things that we've tagged here?
8 Q. And we don't have to have color copies. They
9 can be black and white. And can we attach that as
10 Exhibit 7.
12 Q. (BY MS. GARNER) Is there anything else in here
13 that's significant in terms of the -- supporting the
14 validity of this type of testing?
15 A. Well, this whole article is supportive of that
16 by talking about the mechanical properties of these
17 formed steel bumpers.
18 Q. The mechanical properties of the formed steel
19 bumpers.
20 A. Of steel bumper systems on passenger vehicles
21 and light trucks. This is -- I don't know how many
22 pages -- but this is speaking to the mechanical
23 properties of these bumpers and why they're used and
24 talking about the various uses they have.
25 Q. But didn't you already say that you didn't use
0070
1 the same mechanical system involved in your testing as
2 was used in the actual automobiles themselves?
3 A. Yes. I used the entire front bumper system off
4 the Dodge Dakota.
5 Q. The bumper system.
6 A. Yes.
7 Q. But it was mounted onto something different
8 from the truck.
9 A. Well, the geometry was the same, but it was
10 mounted onto a frame that I was not trying to replicate
11 the frame of the Dodge, even though they're both steel.
12 But the actual frame, I wasn't trying to replicate.
13 Q. So what I'm trying to get at is, what is the
14 applicability of this group of documents here?
15 A. It's one document.
16 Q. This one big fat document.
17 A. Well, again, it's talking about the mechanical
18 properties of steel bumper systems. And the thing that
19 I found most --
20 Q. In the vehicle. In the vehicles.
21 A. In vehicles. And the thing that's most
22 relevant is showing the stress/strain relationships
23 based on loading rate. And this graph shows that you
24 can take quasi-static testing and that is -- the results
25 from that are representative of the loading that is seen
0071
1 dynamically. And that's a valid way of collecting
2 information and extrapolating it to the crash.
3 Q. And do they talk more about the quasi-static
4 testing in terms of what the testing must involve in
5 terms of the materials involved, et cetera, et cetera?
6 A. No, this --
7 Q. What has to be involved before these are
8 similar?
9 A. I think the most important thing is the surface
10 that's applying the force. In this case, I used the
11 Nissan rear bumper.
12 Q. And this is a publication put out by the
13 American Iron and Steel Institute.
14 A. Yes.
15 Q. Does it have any discussion about bumpers that
16 are not steel? In other words, the viscous elastic
17 bumpers?
18 A. No. This is steel bumpers. If they made
19 plastic, they might produce a document like that.
20 Q. Okay. What I would like to do is ask you to
21 make a black and white copy, rather than attaching it to
22 the deposition and adding several hundred dollars of
23 cost to it -- make a copy of this entire document for
24 me.
25 THE WITNESS: If you could do that?
0072
1 Q. (BY MS. GARNER) It's same difference then.
2 Well, then she can do that. All right. We'll just
3 attach the entire thing as Exhibit 7. Is there any part
4 of this that's totally irrelevant to quasi-static
5 testing?
6 A. I think --
7 Q. You know what -- I'm sorry.
8 A. Why don't you just -- why don't you just tab
9 that page. That's what -- that's the part of this that
10 I'm relying on the most are those graphs. And why don't
11 you just tab that for cost sake.
12 Q. All right. Okay. So, we have two pages then
13 for that, the cover and that second page, which is
14 Exhibit 7.
15 Where are the calculations that you did,
16 Dr. Bain?
17 A. They'll be under a file called "Case Notes."
18 Q. In your Testifying History, do you keep track
19 of the cases in which you were prohibited from
20 testifying by the judge?
21 A. No.
22 Q. So, earlier when you were talking about
23 herniating a disc with respect to -- or sustaining a
24 disc injury with respect to vertebral fractures, you
25 said you didn't -- it's your opinion that you can't
0073
1 sustain a herniated disc with a one-time loading event,
2 I believe; is that correct?
3 A. Again, I don't speak in absolutes. But the
4 biomechanical literature is quite strong in this area,
5 that the way discs herniate are through repetitive
6 loading and not a one-time load.
7 Q. When did you come to the opinion that you
8 couldn't herniate a disc without having a vertebral
9 fracture in an auto accident?
10 A. Well, this -- that particular biomechanical
11 knowledge I gained when -- after joining BRC. And I'm
12 constantly reading biomechanical literature on the
13 spine, and I've also been carrying out some research
14 activities in this area. This is an ongoing interest of
15 mine.
16 Q. Some of these studies -- I'm going to go back
17 to this -- some of the studies that you rely on were
18 studies by your own colleagues, correct?
19 A. In my bibliography?
20 Q. Yes.
21 A. I think one of them was. Yes.
22 Q. McConnell?
24 Q. Are there any others that were by BRC
25 colleagues?
0074
1 A. Not in the bibliography, no.
2 Q. Were you involved as a test subject in
3 Mr. McConnell's 1993 testing?
4 A. No, I didn't join BRC until 2003.
5 Q. Were you -- have you ever been a subject in any
6 of the testing that has been done at BRC?
7 A. I've done crash testing and I've been a subject
8 in that testing, yes.
9 Q. Are any of those published or attached as
10 references to your opinion?
11 A. No, I haven't attached it.
12 Q. Do you agree that you would need to have a
13 study comprised of hundreds, if not thousands, of people
14 to have a study that could be -- that could apply -- the
15 results of which could apply to the general population?
16 A. With regards to what?
17 Q. With regards to at what point someone can
18 sustain injury with a certain delta-V.
19 A. I don't -- first of all, you're never going to
20 be able to speak in absolute terms. If you have a study
21 or a group of studies, you can take those findings, you
22 can do a statistical analysis, and you can, based on
23 statistics, extrapolate that to the population as a
24 whole.
25 Whether the study is 300 or 3,000, your --
0075
1 the strength of your results are going to be a function
2 of the numbers that you have.
3 But as I mentioned earlier, the fact that
4 nobody in these human subject tests has had symptoms
5 longer than two weeks, it's to the point now where you
6 can begin to extrapolate that with some certainty to the
7 population as a whole.
8 Q. And that's your opinion based on just looking
9 at multiple studies done with low delta-V impacts,
10 correct?
11 A. Of the human subject studies that have been
12 done, as I said, yes, they looked at delta-Vs up to a
13 little over ten.
14 Q. And these human subject studies done, isn't it
15 correct that they typically are medically screened
16 before participating in the test?
17 A. I would think most of them would have some form
18 of screening.
19 Q. And isn't it true that they're also healthy
20 participants?
21 A. I don't know what you mean by healthy. But
22 people would typically be asked, do you have neck or
23 back pain.
24 There have been human subject studies
25 where they have purposely included people with
0076
1 degenerative changes in their spines -- in their neck
2 and low back. And so, those people have been
3 intentionally included. Of all the human subjects done
4 given the age range goes from twenties up to sixties, a
5 significant percentage of those people will have
6 degenerative changes in their spine. That's just a
7 function of living. And I would call someone healthy
8 despite them having degenerative changes.
9 Q. And the studies that you're quoting where there
10 was somebody between -- or the participants were between
11 forty and sixty -- that was also a very small study; was
12 it not?
13 A. Of those 300-plus people, the ages have been
14 between early twenties and mid-sixties.
15 Q. And we're talking about over dozens and dozens
16 of tests.
17 A. Yes, I think we're into the low- to mid-forties
18 now as far as tests conducted.
19 Q. These people who participate in the crash, they
20 know that the crash is going to happen, right?
21 A. That's part of the informed consent process.
22 But there's a difference between knowing that the test
23 is going to happen and also being aware of when that
24 impact is going to occur.
25 I mean, there have been tests run where
0077
1 people have been asked to brace and prepare for impact.
2 And there's been other tests where people have been
3 asked to try to be relaxed. And they've used various
4 techniques to determine that: Screening, visually,
5 earphones to mask sounds. And some researchers have
6 actually put electrodes on their neck to measure muscle
7 activity prior to impact to see if they truly are in a
8 relaxed state.
9 MS. GARNER: I might be on the home
10 stretch now. I'll take just a couple of minutes and
11 talk to Dr. Watts briefly. And then I may be just about
12 ready to wrap up.
14 (Recess from 3:31 p.m. to 3:42 p.m.)
15 Q. (BY MS. GARNER) Okay. Dr. Bain, to get to your
16 calculation of delta-V, you've got to plug in a time
17 that the crash occurred over; is that correct?
19 Q. And what factor did you use for your time?
20 A. I looked at crash tests performed by other
21 researchers, the crash pulses that I've generated in my
22 crash testing. And in these bumper-to-bumper impacts,
23 we typically see crash pulses in the 80 -- well, 80 is
24 short -- but 90 milliseconds up to 120, 140 quite
25 easily.
0078
1 In this case, I used a pulse of 120. And
2 I think that's probably an upper limit, given how
3 low-speed nature this is and that we had a nice
4 bumper-to-bumper engagement. So, I used 120-millisecond
5 pulse. And the peak force, I think I increased my force
6 that I had gotten -- I think I increased it by almost
7 ten percent because the -- not quite that much. For
8 three-mile-an-hour delta-V, we're looking about
9 7700 pounds of force for a 120-millisecond pulse.
10 That's a peak force of 7700 pounds. And we had
11 generated 7200 causing greater deformation, so I was
12 erring on the upper side, which I typically do.
13 Q. Do these time calculations apply in all
14 low-speed crashes? In other words, would you always
15 plug in 120 milliseconds?
16 A. I think if you used in the range of 90 to 140,
17 you're going to encompass the vast majority of low-speed
18 crashes.
19 Q. What's the difference in your result using 90
20 versus 140?
21 A. If I used a 90-second pulse, we are going to
22 get a delta-V of approximately two and a quarter miles
23 an hour. And if we used a 140-second millisecond pulse,
24 you're going to get a delta-V probably around 3.3 miles
25 per hour. That was just interpolating from my plot.
0079
1 Q. And those calculations are in the materials you
2 provided to me, right?
3 A. I provided you a graph for a pulse of 120
4 milliseconds looking at different force levels for
5 vehicles weighing 3353 pounds.
6 Q. Earlier, you said that there have been hundreds
7 of humans tested in rear-end impacts. But I want to
8 clarify. That hasn't been hundreds of humans tested in
9 rear-end impacts involving delta-V over five miles per
10 hour; is that correct?
11 A. No, that's the whole. That's correct. This
12 has been delta-Vs from around one to two miles an hour
13 up to a little over ten, with the vast majority of those
14 certainly being under seven and the significant
15 percentage being under five.
16 Q. That was going to be my next question, which
17 you anticipated.
18 You also said that you do not believe that
19 disc herniations can occur with a one-time loading event
20 or a one-time event.
21 But isn't it true that the medical
22 profession believes and has the opinion that someone can
23 point to a definite traumatic insult where they now have
24 a herniated disc where they didn't have one before? I
25 mean, at some point, you don't have a herniated disc and
0080
1 then you do have a herniated disc. So, isn't that a
2 one-time event?
3 A. No, that's false. What -- a paradigm shift
4 developed in medicine probably 50, 70 years ago with the
5 advent of modern imaging. Prior to that, it was
6 accepted that these findings we're talking about here
7 today are strictly degenerative.
8 And then with modern imaging, doctors came
9 to believe that these were from one-time events.
10 Because someone would come in with neck pain and say,
11 you know, I sneezed the other day, I've got neck pain
12 and the doctor does the MRI and says, well, you've got a
13 disc herniation, I think that's what's causing your neck
14 pain. And as a result of this sort of temporal
15 association, they came to believe these were from
16 one-time events.
17 Thirty to 40 years ago, the biomechanical
18 community started studying this saying, well, if they do
19 come from one-time events, what's that event and what
20 type of force loading do we need to see. And over this
21 time period, the biomechanical community has shown that,
22 no, that's not true, this is not from a one-time event;
23 this is from repetitive loadings where you see this
24 process gradually develop. You do not have a disc
25 suddenly as a result of a one-time force protrude
0081
1 through the annulus. That just doesn't happen that way.
2 This information hasn't made its way into
3 the medical community yet. You still see physicians
4 stating, you can cough or sneeze or bend over and pick
5 something up and pop a disc in your neck or low back.
6 And that misperception still exists.
7 Q. While we're talking about repetitive forces, an
8 example that's given in Dr. Watts' book is something
9 like a paper clip. Take a paper clip and you keep
10 bending the paper clip over and over; and at some point
11 with the final bend, the straw that broke the camel's
12 back, that paper clip breaks. So, isn't that a one-time
13 event on a weakened paper clip? So, that's the point
14 I'm getting at --
15 A. That analogy is certainly -- there's one bend
16 that breaks the paper clip. But I think that's the
17 wrong analogy to make with regard to degenerative disc
18 disease.
19 This is a process that starts early in
20 life and tends to progress as a result of our genetic
21 makeup and repetitive motions of our spine. And we will
22 see, if you did MRIs on somebody on a weekly basis, you
23 would see this progress. You would see the development
24 of a disc bulge diffusely. You would then start to see
25 the gradual development of a protrusion. And then you'd
0082
1 start to see the gradual development of a herniation,
2 which are simply extensions. These are different points
3 on this spectrum of degenerative disc disease.
4 If this is going to become symptomatic at
5 some point, what you tend to find is that as nerve root
6 compression develops, at some point the person becomes
7 symptomatic. When you look at this process, oftentimes
8 you find that the development of symptoms is gradual.
9 And that's because this is a very slow, gradual process.
10 It's not one bend that does it. It's just the continual
11 bending that's happening with our everyday lives.
12 We do do things where we suddenly develop
13 neck or back pain. Is that a disc herniation
14 developing? The biomechanical community says, no, it's
15 not. There's lots of different sources of neck or back
16 pain. And I think a lot of times, physicians
17 misdiagnose the source of the person's pain. You
18 will -- someone will come in with a sudden onset of back
19 pain and you find a degenerative finding and say that's
20 the cause of their back pain. I think that is illogical
21 and you've got two common processes going on. And just
22 because you find a common process in conjunction with
23 another common process does not mean there's a causal
24 link there.
25 This is a very complicated area. It is
0083
1 controversial, but certainly the biomechanical
2 literature is very strong that a one-time event does not
3 cause a disc to herniate.
4 Q. Did you disagree that a one-time event could
5 cause the process to become very symptomatic?
6 A. Well, I don't believe that's the case. I think
7 someone is going -- because we're constantly using our
8 spines. We're constantly bending and twisting. At some
9 point, if we're going to become symptomatic, at some
10 point that's going to happen; and I think that's just
11 going to be that time. And I think that time is going
12 to onset regardless of what you did or did not do the
13 day before, the week before, or the month before. It's
14 just developing because that's your genetic makeup and
15 we are constantly using our spines. I mean, if you --
16 Q. So you don't think getting whacked by a car
17 rear-ending you is going to hasten that process any --
18 A. No. There is absolutely no --
19 Q. -- in terms of becoming symptomatic?
20 A. No, there is no science to support that. There
21 have been studies done where they've done MRIs before
22 and after and we see no change. There have been studies
23 where you follow people with MRIs and don't see any
24 progression. Eugene Carragee spoke to that quite nicely
25 in the study he published in 2006.
0084
1 Q. And how many people were involved in his study?
2 A. He followed 200 people for five years.
3 Q. You've never -- you've never seen Andre
4 Hernandez, correct?
5 A. No, I have not.
6 Q. You've never calculated any forces in terms of
7 what his back could sustain in terms of withstanding any
8 injury.
9 A. Before we break his back, no, I haven't done
10 that. I do know what certain injury tolerances are for
11 the population as a whole, but I don't know his
12 specifically.
13 Q. Okay. And would you know how to calculate how
14 much force is required to make a pre-existing
15 degenerative disc disease symptomatic?
16 A. I actually think that's the wrong question. I
17 think what you have to ask is not how much force from a
18 one-time event but how much more bending and twisting do
19 we need to see before it's going to be symptomatic. I
20 think that's the appropriate question, because we know
21 it's repetitive bending and twisting that makes this
22 process symptomatic.
23 In this event, there was no bending and
24 twisting going on at his low back as a result of this
25 impact. There was considerable bending and twisting at
0085
1 his low back as he got in and out of the vehicle. But
2 not during this event. So, I think it's not how much
3 force; it's how much bending and twisting, if you've got
4 a certain amount of degeneration, before that person
5 will become symptomatic.
6 Q. And you know he was a young man, correct, 29
7 years old at the time?
8 A. Yes. And there's studies showing that we see
9 degenerative changes in the low back in people in their
10 early teen years.
11 Q. That's pretty uncommon though, isn't it?
12 A. It is uncommon, but we do see it develop at
13 that age. And the incidence of this process progresses
14 as people -- as the population ages.
15 Q. Would it surprise you to know that you have
16 been disqualified in 12 cases, at least in 12 cases,
17 from testifying as to your own opinions?
18 MR. SCHWARZ: Object to form.
19 THE WITNESS: Twelve cases? I would be
20 surprised.
21 Q. (BY MS. GARNER) Do you remember -- let's take a
22 look at your list. I'm going to go in date order for
23 these. Sheryl Jones versus Violet Lewis, which was a
24 case out of New York.
25 A. The name is vaguely familiar.
0086
1 Q. Percival versus Mattson, a case out of
2 Hillsborough County, Florida.
3 A. I did testify in that case.
4 Q. It said that you would be permitted to testify
5 as a medical doctor. And is that what you're referring
6 to?
7 A. Yes, I gave causation opinions in that case.
8 Q. But you were not permitted to testify to the
9 extent that your opinion involved injury causation
10 analysis.
11 A. No, I couldn't talk about accident
12 reconstruction or biomechanics.
13 Q. Okay. Briaud versus Warner. That was in
14 Louisiana.
15 A. Yes.
16 Q. Do you remember that one?
17 A. Yes.
18 Q. Thomas versus Reed. That was in Missouri.
19 A. Well, that was the case involving that testing
20 I'd done on the Freightliner front bumper.
21 Q. Stanton versus Fulton in Hillsborough County,
22 Florida.
23 A. I wasn't allowed to testify in that case.
24 Q. Is that the second Hillsborough County?
25 A. Yeah, that's another one. That judge changed
0087
1 her -- gave a revised ruling that time and said I could
2 speak about biomechanics and accident reconstruction,
3 but I couldn't give a causation opinion.
4 Q. Tout versus Z-S-I-R-O-S, which was New York,
5 County of Erie.
6 A. I don't recall the particulars in that case.
7 Q. Ballew, B-A-L-L-E-W, versus Jones. That was
8 just in 2007.
9 A. The name is familiar.
10 Q. And the motion to strike -- Plaintiff's motion
11 to strike the expert was granted. Does that ring a
12 bell?
13 A. I don't know.
14 Q. Downs versus Scott Wiley?
15 A. That name is familiar.
16 Q. Is that on your case list? These names are all
17 on your case list, right? Or do you have it by -- how
18 do you have it by, the name of the case or by the name
19 of the client?
20 A. That's in chronological order by the case name.
21 Those are cases where I've given trial or deposition
22 testimony.
23 Q. These are all cases in which you have given
24 trial or deposition testimony?
25 A. That's right.
0088
1 Q. So, in one of them, I noticed you gave
2 deposition testimony, but I know that that was
3 recently -- you were recently disqualified from it. And
4 that was the Cockrell versus Leveque?
5 MR. SCHWARZ: I'm going to object to the
6 form.
7 THE WITNESS: When did I testify in that
8 case? Was it a year, two years ago?
9 Q. (BY MS. GARNER) No, the order was granted in
10 April of '08.
11 A. April of '08. Okay.
12 Q. Let's see, where was I. Peltier versus Wright.
13 Does that ring a bell? Do you remember that case?
14 A. Yes, the judge said I hadn't seen the vehicles;
15 therefore, I couldn't testify based on case law in
16 Nevada.
17 Q. Smith versus Thompson, which was -- is that
18 Bexar County or Bexar? How is that pronounced?
19 A. Bexar.
20 Q. Bexar. Oh. Totally wrong. Bexar County,
21 Texas. Does that ring a bell?
22 A. Yes, that was here in San Antonio.
23 Q. That was just last year -- or in 2007. Excuse
24 me. And you were not allowed to testify in that case?
0089
1 Q. Johnston versus Laidlaw Transit. And that was
2 the one where we talked about earlier with the -- you
3 did a testing in that case that was --
4 A. No, I don't --
5 Q. I'm sorry. Did I get that one mixed up?
6 A. I don't think I did testing -- I don't recall
7 doing testing in that case.
8 Q. Cockrell versus Leveque. We mentioned that.
9 Rosales versus LaFleur?
10 A. That sounds familiar.
11 Q. That was in -- probably going to mispronounce
12 this -- Nueces County, Texas?
13 A. Nueces is correct.
14 Q. You know, we have Hispanic names and Spanish
15 names in Albuquerque, in New Mexico; but you say them
16 differently out here. Okay.
17 And do you remember anything about that
18 case?
19 A. No, I don't recall the specifics.
20 Q. How many of the cases that you have on your
21 testifying history involved working for the defense for
22 low-speed collisions?
23 A. I haven't testified for plaintiffs at this
24 point, either by deposition or trial.
25 Q. So, they've all been for the defense
0090
1 100 percent of them?
2 A. Testifying, that's correct.
3 Q. What about rendering opinions in a case?
4 A. Two percent of my opinions are for plaintiff
5 clients.
6 Q. In what kinds of cases?
7 A. High-speed, low-speed crashes, crush injuries,
8 fractures.
9 Q. Have you had a chance to review Dr. Watts'
10 deposition?
11 A. Yes, I have.
12 Q. At one point, at the end, Mr. Schwarz was
13 asking what questions he would ask you if he were able
14 to take your deposition. And he made a comment about --
15 let me just read from it and ask you if you agree with
16 it and, if you don't, why not.
17 "The test on the Dakota, in fact, I
18 believe that's why his own test on the Dakota bumper
19 doesn't actually replicate the real damage on the
20 bumper, because a real bumper would be mounted to what
21 are known as the horns on the front rim of the truck.
22 And because it's a bowed frame as you push it in, you're
23 trying to shorten the distance between the two anchor
24 points, which builds up a compression. If those anchor
25 points can move apart slightly, you drop the load. And
0091
1 if they can't move apart, then what will happen is, the
2 only way the steel bumper can relieve itself is by
3 having the top two and bottom surfaces bow outward. The
4 moment that happens, you now produce a tensile surface
5 and you can propagate a crack, which is what you
6 actually see on a real bumper of the vehicle, but you
7 don't see that on the exemplar test."
8 Do you agree that, if the bumper isn't
9 mounted on the same kind of frame as the truck, that
10 you'll have a different deformation?
11 A. No, I disagree with that statement.
12 Q. Okay. Why?
13 A. First of all, the defendant's vehicle had been
14 in two wrecks. And what we're seeing is the total
15 damage from that. And we're trying to replicate that
16 from one crash. That's the first issue I have of
17 accurately trying to replicate this. The bumper
18 material I used was brand new and the Dakota may have
19 had some mild fatigue with it.
20 Q. But you already testified you know nothing,
21 absolutely nothing about the facts of the first alleged
22 mishap that the Dakota was involved in.
23 A. Well, the only information I have is Mr. Clark
24 stating that the deformation we see now pre-existed this
25 event we're talking about. That may be the case. I
0092
1 assumed that none -- all the damage we see was from this
2 case. And trying to replicate it with the Nissan rear
3 bumper, I have replicated the -- actually exceeded the
4 inward deformation of that vehicle quite nicely.
5 I mean, if that first impact occurred on
6 some other object with much different shape than the
7 Nissan rear bumper, then, yeah, we're going to see a
8 different damage pattern. So, I have exceeded the force
9 that was applied to the defendant's bumper by the
10 Nissan. And I think that is -- the testing was valid
11 and showed that, and that can be then used to calculate
12 a delta-V.
13 Q. And do you have any criticism of how Dr. Watts
14 calculated the delta-V? Did you see his calculations?
15 A. I did see them, yes. Dr. Watts --
16 Q. And why is it that he came up with a different
17 figure?
18 A. Well, Dr. Watts is using crush and, therefore,
19 he has to assume a certain crush, he's got to utilize
20 stiffness coefficients. And I just don't think that's a
21 valid way of looking at these low-speed crashes. Nobody
22 does it that -- utilizes that technique for these
23 events. He seems to be alone in that application in
24 this area.
25 Q. And that's your criticism of how -- of his
0093
1 calculations?
2 A. Well, it was difficult -- he was using crush,
3 but he didn't give -- I mean, he had a lot of numbers
4 and letters and he didn't explain anything. It was --
5 to follow through with it, he did not give me the means
6 to do that. But I did see that he was using crush to do
7 a calculation, and I just think that's inappropriate in
8 this case.
9 Q. Do you have any other criticisms of his
10 calculations or his opinions?
11 A. Given the limited information he gave me as to
12 how he did them, that's all I have at this point.
13 Q. Okay. All right. Well, I think I'm done.
14 MS. GARNER: Do you have any questions,
15 Todd?
16 MR. SCHWARZ: No. And I heard Dr. Bain
17 say he wanted to read and sign.
18 THE WITNESS: That's correct.
19 MS. GARNER: Okay. Then we'll read and
20 sign.
21 (Proceedings concluded at 4:05 p.m.)
22
23
24
25
0094
1 CORRECTION PAGE
2 WITNESS NAME: CHARLES EDWARD BAIN, M.D.
DATE OF DEPOSITION: MARCH 27, 2009
3
PAGE LINE CHANGE REASON
4
______________________________________________________
5
______________________________________________________
6
______________________________________________________
7
______________________________________________________
8
______________________________________________________
9
______________________________________________________
10
______________________________________________________
11
______________________________________________________
12
______________________________________________________
13
______________________________________________________
14
______________________________________________________
15
______________________________________________________
16
______________________________________________________
17
______________________________________________________
18
______________________________________________________
19
______________________________________________________
20
______________________________________________________
21
______________________________________________________
22
______________________________________________________
23
______________________________________________________
24
______________________________________________________
25
0095
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
0096
1 SIGNATURE PAGE
2 I, CHARLES EDWARD BAIN, M.D., have read the
3 foregoing deposition and hereby affix my signature that
4 same is true and correct, except as noted on the
5 Correction Page.
6 ____________________________
8 THE STATE OF TEXAS )
COUNTY OF BEXAR )
9
10 Before me, ______________________________, on
11 this day personally appeared CHARLES EDWARD BAIN, M.D.,
12 known to me (or proved to me under oath or through
13 ______________________ (description of identity card or
14 other document)) to be the person whose name is
15 subscribed to the foregoing instrument and acknowledged
16 to me that they executed the same for the purposes and
17 consideration therein expressed.
18
Given under my hand and seal of office this
19 _________ day of ___________________, ____________.
20
_____________________________
21
NOTARY PUBLIC IN AND FOR
22 THE STATE OF TEXAS
23 My Commission Expires:
24 _______________________
25
0097
1 STATE OF NEW MEXICO
COUNTY OF BERNALILLO
2 SECOND JUDICIAL DISTRICT COURT
3 ANDRE HERNANDEZ AND CELINA )
HERNANDEZ, )
4 )
Plaintiffs, )
5 )
vs. ) NO. CV-2007-01802
6 )
WALLACE CLARK, GILBERT )
7 TRUJILLO, AND CENTURY )
DRYWALL AND CONSTRUCTION, )
8 INC., )
)
9 Defendants. )
10
REPORTER'S CERTIFICATION
11 DEPOSITION OF CHARLES EDWARD BAIN, M.D.
MARCH 27, 2009
12
13 I, JUDITH A. GRAY, a Certified Shorthand
14 Reporter in and for the State of Texas, hereby certify
15 to the following:
16 That the witness, CHARLES EDWARD BAIN, M.D.,
17 was duly sworn by the officer and that the transcript of
18 the oral deposition is a true record of the testimony
19 given by the witness;
20 That the deposition transcript was submitted
21 on ________________________ to the witness or the
22 attorney for the witness for examination, signature and
23 return to Esquire Deposition Services, by
24 _________________;
25 That the amount of time used by each party at
0098
1 the deposition is as follows:
2 Ms. Garner - 02:11
Mr. Schwarz - 00:00
3
4 I further certify that I am neither counsel
5 for, related to, nor employed by any of the parties in
6 the action in which this proceeding was taken, and
7 further that I am not financially or otherwise
8 interested in the outcome of the action.
9 WITNESS MY HAND, this the 4th day of April,
10 2009.
11
12
13 ______________________________
14 JUDITH A. GRAY, CSR
Texas CSR 2188
15 Expiration: 12/31/09
Firm Registration No. 77
16 ESQUIRE DEPOSITION SERVICES
9901 IH-10 West, Suite 630
17 San Antonio, Texas 78230
(210) 331-2280
18
19
20
21
22
23
24
25

Bain - Charles 032709

Uploaded by

Copyright:

Available Formats

Bain - Charles 032709

Uploaded by

Document Information

Original Title

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

Bain - Charles 032709

Uploaded by

Copyright:

Available Formats

0001

1 STATE OF NEW MEXICO

You might also like