September 12, 2001

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Plaintiff Laura Whiting, f/k/a Laura Burns, filed this actionagainst defendant Robert Coultrip for alleged personal injuries shesustained in a car accident with defendant in a grocery storeparking lot. On appeal, plaintiff contends that the trial courterred when it denied her motion for a directed verdict on the issueof negligence and when it allowed defendant to introduce thetestimony of a biomedical engineer. We affirm in part, reverse inpart and remand, holding that, before novel scientific testimonyfrom a biomedical engineer may be admitted at trial, the proponentof the evidence must prove that the methods of study utilized bythe engineer are both generally accepted and reliable.

FACTS

Plaintiff was driving westbound in a Kroger grocery storeparking lot when she was hit on the driver's side by defendant. Defendant was proceeding across the parking lanes going northwestwhen he hit plaintiff on an angle. Plaintiff filed suit againstdefendant for personal injuries.

At trial, it was revealed that plaintiff has had back problemssince she was 17 years old and had one surgery on her back prior tothe accident. Shortly before the accident plaintiff began workingas a nurse's aide, which, plaintiff testified, required her to loadpatients onto cots or gurneys, help them into and out ofwheelchairs, and transport them to different areas of the hospital.

Both parties contended they were traveling about five milesper hour at the time of the accident. Pictures of both parties'vehicles showed minimal damage.

Plaintiff testified that she complained of stiffness andsoreness to defendant and the police officer at the scene of theaccident. After the accident, plaintiff contacted her physician tocomplain of pain in her back and neck. She eventually underwentsurgery on the same part of her spine as the previous surgery andon additional parts. Plaintiff introduced the deposition testimonyof Dr. Terry Love, her family physician; Dr. Robert Beatty, theneurosurgeon who operated on her back both times; and Dr. JamesWilson, an evaluating, board-certified neurosurgeon. Dr. Beattyopined that the second surgery was necessitated by the accident,and Drs. Love and Wilson concurred.

Over plaintiff's objection, defendant was allowed to introducethe testimony of Officer Robert Cunningham, the officer called tothe scene of the accident. Officer Cunningham testified that hehad no independent recollection of the accident or being called tothe accident scene. He then stated that it was his practice tomake a police report whenever any party to an accident complainedof injury, but no police report was filed here.

Again over plaintiff's objections, defendant was allowed tointroduce the testimony of Gerald Harris, an engineer specializingin biomechanics and biomedical engineering. Using the facts of thecollision, Fred Monick, an engineer, calculated the forward andlateral gravitational forces (G-forces) experienced by plaintiff. Using Monick's findings, Harris determined that the amount of forceactually experienced by plaintiff was not sufficient to cause theinjuries alleged.

The trial court denied plaintiff's motion for a directedverdict on the issue of negligence. The jury returned a verdict infavor of defendant, and plaintiff appealed.

Additional facts will be set forth when they become pertinentto the analysis.

ANALYSIS

On appeal, plaintiff argues that the trial court committedreversible error when it allowed defendant to introduce novelscientific evidence through the testimony of Monick and Harris onthe issue of causation. Because of its dispositive nature, weconsider this issue first.

The supreme court has stated that it is within the trialcourt's discretion whether to admit expert testimony. People v.Eyler, 133 Ill. 2d 173, 549 N.E.2d 268 (1989). When the generalacceptance of a new scientific technique is at issue, however, theproponent of the scientific method is often requesting the court toestablish the law of the jurisdiction for the adjudication offuture cases. People v. Watson, 257 Ill. App. 3d 915, 629 N.E.2d634 (1994). Such is true of the case at bar.

Because formulation of the law is, in essence, a function ofthe appeals courts, we engage in a broad review of the trialcourt's determination concerning the admission of scientifictestimony offered by defendant. See Watson, 257 Ill. App. 3d at924, 629 N.E.2d at 640; People v. Dalcollo, 282 Ill. App. 3d 944,669 N.E.2d 378 (1996). In doing so, we may consider the evidencepresented to the trial court, judicial opinions from otherjurisdictions, and any pertinent legal and scientific commentaries.Dalcollo, 282 Ill. App. 3d at 955, 669 N.E.2d at 385.

We note that not all Illinois courts have utilized a similarbroad review when ascertaining the admissibility of novelscientific evidence. See, e.g., Mitchell v. Palos CommunityHospital, 317 Ill. App. 3d 754, 740 N.E.2d 476 (2000); People v.Mehlberg, 249 Ill. App. 3d 499, 618 N.E.2d 1168 (1993). NeitherMitchell nor Mehlberg contained any rationale for the decision toapply a pure abuse of discretion standard. But, because thequestion of whether a novel scientific technique is generallyaccepted within a particular community does not vary according tothe unique facts of a case, such question should not be left toeach individual trial judge's discretion. Watson, 257 Ill. App. 3dat 924, 629 N.E.2d at 640; see also State v. Vandebogart, 135 N.H.365, 616 A.2d 483 (1992); People v. Barney, 8 Cal. App. 4^th 798, 10Cal. Rptr. 2d 731 (1992); Commonwealth v. Curnin, 409 Mass. 218,565 N.E.2d 440 (1991).

Our decision to engage in a broad review of the trial court'sdecision when reviewing novel scientific evidence conforms to thepractice of our supreme court. Dalcollo, 282 Ill. App. 3d at 955,669 N.E.2d at 385. In Eyler, the court adopted the reasoning andconclusion of People v. Partee, 157 Ill. App. 3d 231, 511 N.E.2d1165 (1987), which relied upon scientific commentaries, apparentlynot before the trial court, to determine that electrophoresis is agenerally accepted scientific technique. Eyler, 133 Ill. 2d at 215,549 N.E.2d at 287; see also, People v. Miller, 173 Ill. 2d 167, 670N.E.2d 721 (1996) (relying upon scientific commentaries anddecisions of other jurisdictions in deciding whether DNA evidenceis admissible); People v. Zayas, 131 Ill. 2d 284, 546 N.E.2d 513(1989) (relying upon scientific commentaries in deciding whetherhypnotically enhanced testimony is admissible); People v. Baynes,88 Ill. 2d 225, 430 N.E.2d 1070 (1981) (relying upon decisions fromother jurisdictions in determining whether polygraph evidence isadmissible). Having determined that we should engage in a broadreview of the trial court's decision, we now consider the substanceof plaintiff's complaint.

Prior to trial, plaintiff filed a motion in limine to bar thetestimony of Monick and Harris. The trial court considered theissue of admissibility then and several times thereafter and eachtime decided the testimony was admissible. The court cited Harrisv. Cropmate Co., 302 Ill. App. 3d 364, 706 N.E.2d 55 (1999), as abasis for its decision.

The Illinois Supreme Court has adhered to the "generalacceptance" standard established in Frye v. United States, 293 F.1013 (D.C. Cir. 1923), for the admission of novel scientificevidence. After determining that Illinois currently utilizes a"Frye plus reliability" standard for the admission of suchevidence, the Cropmate court set forth an exhaustive six-inquiryapproach for determining whether novel scientific evidence isreliable. Cropmate, 302 Ill. App. 3d at 368, 706 N.E.2d at 60.

Because we find the Cropmate court's six-inquiry approach tobe both an instructive, workable framework and a proper statementof the law as it now stands in Illinois with respect to theadmission of novel scientific evidence, we apply the Cropmatefactors to the facts of this case. In doing so, our focus isprimarily upon the admissibility of Harris' testimony as it is histestimony which is damaging to plaintiff's case and, thus, histestimony to which she primarily objects.

Precisely what evidence is being proffered? At hisdeposition, Monick testified regarding the G-forces experienced byplaintiff in the accident. Harris then used that testimony todetermine that plaintiff's alleged long-term injuries are notconsistent with the forces she experienced in the collision. Harris further testified that the forces experienced by plaintiffwould cause, at most, some temporary pain and stiffness.

Will the proffered testimony assist the trier of fact tounderstand the evidence or determine facts in issue, or can thetrier of fact use its own knowledge and experience? In this case,the jury was required to decide whether plaintiff's symptoms andtreatment were the result of the collision at issue or the resultof her employment and/or preexisting condition. Surely Monick'sand Harris' testimony, if believed, would aid the jury in doing so.

If the trial court determines that the proffered testimonywill assist the trier of fact to understand the evidence ordetermine facts in issue, then the court must ask, does theproffered testimony constitute "scientific" evidence? In Daubertv. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 125 L. Ed. 2d,

469, 113 S. Ct. 2786 (1993), the Supreme Court averred that"science" represents a process whereby theories are proposed andrefined. The word "scientific" implies a grounding in the methodsand procedures of science while "knowledge" indicates more than asubjective belief or unsupported speculation. To qualify as"scientific knowledge" then, an inference or assertion must bederived by the scientific method. Daubert, 509 U.S. at 590, 125 L.Ed. 2d at 481, 113 S. Ct. at 2795. Webster's defines scientificmethod as "the principles and procedures used in the systematicpursuit of intersubjectively accessible knowledge and involving asnecessary conditions the recognition and formulation of a problem,the collection of data through observation and if possibleexperiment, the formulation of hypotheses, and the testing andconfirmation of the hypotheses formulated." Webster's Third NewInternational Dictionary 2033 (1986).

Monick is a licensed biomechanical engineer while Harris, alsoa licensed engineer, works in the fields of biomechanics andbiomedical engineering. Harris has a biomedical engineering degreefrom the United States Naval Academy and both an M.S. and a Ph.D.in the same from Marquette University, where he is a professor. There is currently no professional engineering license forbiomedical engineering.

Monick testified that he calculated the maximum possible speedchange and level of acceleration of plaintiff's vehicle at the timeof the accident. The bulk of Monick's testimony indicated that hecan mathematically compute these figures using various types ofcomputer programs.

Harris testified that he specializes in biomechanics, which isthe study of the musculoskeletal system. Using a series of tests,he quantifies musculoskeletal function. Utilizing figures such asthose mathematically computed by Monick, Harris studies the amountof force required to cause injury to muscles, tendons, ligamentsand bone. In this case, Harris performed a bio-mechanical analysisof the forces present in the accident. He then compared the forcespresent and the injury complained of by plaintiff, to studiescorrelating force and injury in the biomedical literature. Accordingly, we find that the evidence offered by Harrisconstitutes scientific evidence.

If the trial court determines that the proffered testimonyconstitutes scientific evidence, then the court must ask, is thatscientific evidence "novel," or does it involve instead a firmlyestablished method or technique? Defendant argues only thatplaintiff does not suggest the evidence is novel and, therefore, itis not. We cannot agree. After an exhaustive search, we find noIllinois cases wherein a biomedical engineer was even certified asan expert, let alone permitted to testify that plaintiff's injurieswere not consistent with the type of accident sustained. Additionally, we find less than a handful of cases nationwide inwhich the admissibility of the testimony of a biomedical engineerwas considered; one in which that testimony was held to be novelscientific evidence. See Clemente v. Blumenberg, 183 Misc. 2d 923,705 N.Y.S.2d 792 (1999) (citing an Arizona circuit court case).

If the trial court determines that the scientific evidence is"novel," then the court must ask, does the evidence meet the Fryeadmissibility standard? To determine so, a court must identify thescientific community to which the opinion witness belongs and thendetermine whether the scientific method or technique is generallyaccepted within that community. Cropmate, 302 Ill. App. 3d at 374,706 N.E.2d at 64.

We do not doubt that a scientific community of biomedicalengineers exists, as evidenced by the fact that degree programs areavailable in the field and Harris has published both articles and reports in journals which appear to publish exclusively on thetopic of biomechanics and biomedical engineering. We cannotascertain, however, from Harris' testimony, whether the scientificmethods utilized by him are generally accepted within thatcommunity. Indeed, the only relevant testimony offered on thetopic was Harris' statement that he published the findings from asimilar type of study with Navy pilots in a chapter of a book. While this lends credibility to the Navy study, it does not signifythat the study methods utilized by Harris have been accepted by thescientific community to which Harris belongs.

Additionally, Monick testified that he used the photographs ofthe vehicle damage, plaintiff's repair estimates, and transcriptsfrom the parties' depositions, to determine the G-forces sustainedby plaintiff. There is no evidence in the record that use ofphotographs and repair estimates is a generally accepted method inthe field of engineering for determining G-forces. See generally,Clemente, 183 Misc. 2d at 934, 705 N.Y.S.2d at 800 (the use ofrepair costs and photographs as a method for calculating the changein velocity of two vehicles at impact is not a generally acceptedmethod in any relevant field of engineering).

After having determined that the scientific technique ormethod is generally accepted in the relevant scientific community,a trial court must still ask, is this evidence reliable? Inreviewing this factor, a court should consider whether the methodemployed has been empirically tested and whether it has beensubject to peer review and publication. Cropmate, 302 Ill. App. 3dat 375, 706 N.E.2d at 65. In Mitchell v. Palos Community Hospital,317 Ill. App. 3d 754, 740 N.E.2d 476 (2000), the appellate courtdetermined that defendant's expert witness was properly allowed tointroduce novel scientific evidence after defendant introducedevidence that the witnesses theories were generally accepted in themedical community based upon articles published by the witness inhighly prestigious, selective and competitive medical journals withintensive peer review processes.

Even assuming we could determine from the record that themethods utilized by Harris were generally accepted, we cannot saythe methods are reliable. Harris never testified that the specificmethods used by him in this case are methods that have beenempirically tested and subject to peer review.

Harris did state that the way in which an individual's bodyresponds to a traumatic incident is analyzed and reported to agreat extent in biomechanical literature. He also testified thathe looked to the biomechanical literature to compare the force andinjury levels sustained by plaintiff to other subjects. He did notspecify what literature, however, or whether an article mustsurvive the peer review process before its publication in suchliterature. Although Harris wrote a chapter in a book concerninghis study of the cervical injuries sustained by pilots in roughlandings for the United States Navy, there was no testimony offeredthat the method utilized in that study was the exact methodutilized here, that the method was empirically tested or that thebook in question was the product of peer review.

Because we determine that defendant did not sufficientlydemonstrate that Monick and Harris utilized generally accepted andempirically tested methods in determining that plaintiff could nothave sustained the type of injury claimed, we reverse. In doingso, we do not suggest that testimony from a biomechanical orbiomedical engineer may never be admitted, only that the foundationhere was lacking.

Next, in order to prevent error on remand, we will address those issues that may arise again in future litigation. The firstis whether the trial court erred when it denied plaintiff's motionfor a directed verdict on the issue of defendant's negligence.

Plaintiff argues that because Defendant was obviouslynegligent in cutting across parking spaces whereupon he hit theside of her vehicle, the court should have directed a verdict as tothe issue of negligence and, not having done so, the court shouldhave granted her posttrial motion requesting a new trial.

In denying plaintiff's motion for a directed verdict, thetrial court stated that when reasonable minds can differ as towhether the plaintiff's injury was proximately caused bydefendant's negligence, a question of fact arises for the jury. The court relied upon Hunter's Trial Handbook for Illinois Lawyers(R. Hunter, Trial Handbook for Illinois Lawyers, Civil