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by Sean Connors, J.D.

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It’s a sunny day, you’re in a bit of a rush and you pull away from the curb without checking your blind spot; then you feel it - that tell-tale thud of impact with another vehicle.  Given that this impact felt slight, you feel confident that the driver of the other vehicle is unharmed — until you hear him request an ambulance. At that point, you’re simply glad that you have insurance, and therefore an advocate to defend the soon-to-be-filed suit. It’s a fairly common occurrence for a civil defense attorney to face a finding of near complete liability against his client. The focus of the attorney must then shift to the alleged damages that this accident could have caused to the plaintiff. This rather arduous task requires the patient scrutiny of the plaintiff’s medical record, where often times, as Richard M.  Sands, Esq., submits, “the details are hidden in plain sight.” Recently I had the pleasure of sitting down and speaking with Richard, newly named Partner at the New York law firm Harvey Gladstein and Partners LLC.  With a career spanning thirty years, he has established himself as a top insurance defense litigator and bulwark against opportunistic fraud. At the heart of Insurance Defense is the belief that if a plaintiff was indeed caused an injury, then compensation is absolutely justified.  On that note, Mr. Sands agrees. “Almost every case is defensible; when it’s not, it tends to settle sooner than later.” Many times, however, the mere appearance of allegations of serious injuries creates an emotional presumption of truth from the perspective of the jury.  Mr. Sands frames the counter-argument plainly when he points out that just because the sun rises after the rooster crows, it doesn’t mean that the rooster had anything to do with the sun rising.  But since anything, even the most counterintuitive result, is possible at trial, the key is to find the most productive way to manage these risks rather than to eliminate them as a whole. Recounting what an intensive review might yield, Mr. Sands reminisced about a plaintiff who received the whole regimen of treatment for a lumbar spine injury, culminating in emergency surgery some eighteen months after the accident.  As above, without an argument on liability, Richard found one of those details hidden in plain sight.  This particular detail took the form of a note scribbled by a physician who had been treating the plaintiff for a vascular disorder that had prevented him from working for the last several years.  In that small note, the doctor memorialized the plaintiff’s admission that his back injury occurred when he had slipped exiting his truck. That note, coupled with a false claim for lost wages made in plaintiff’s own hand to his No-Fault insurer, added the firepower that Richard needed to manage the risk effectively and dispose of the case.  With the plaintiff’s credibility called into question, the risk that juror emotion would run wild had ebbed significantly.  This outcome may very well be the result of Richard’s due diligence in the review of a file; but what if such a review yields no fruit? In his article, “Biomechanical Science Challenges Old Assumptions About Causation,” Richard asserts that advances in science and technology over the past decades have produced the tools for a more objective assessment of the causation issue in litigation. Commenting on the precision of a medical doctor’s testimony in support of a causal connection between accident and injury, Richard notes that the doctor’s “certainty” may often be based on incomplete data or subjective beliefs not necessarily supported by an objective analysis of the facts and circumstances of the accident.  The doctor’s in-court testimony will customarily include detailed descriptions of medical examinations, tests and procedures; this is understandable, since a medical doctor’s primary concern is diagnosis and treatment.  However, a physician generally does not perform any analysis of the facts and circumstances that gave rise to the accident as would seem necessary to establish a certain causal link. Richard points out that without such an analysis to serve as the basis for a conclusion on causation, the doctor’s testimony may be “mere speculation” insufficient to establish a causal relationship.  He asserts that an analysis of causation is not merely a subject of medical expertise, but rather must involve an analysis of the following factors: the identification of the instrumentalities involved and the mechanism of the accident; the kinematics of the individuals involved, i.e., the motion of persons affected by the accident; the injury mechanisms created (or not created) by the accident, and the nature and magnitude of forces generated; and the tolerance of a particular body part to particular forces applied by a particular mechanism. These factors, as Richard notes, are indeed the subjects of physics and mechanical engineering and the scientist who is qualified to perform this analysis is the biomechanical engineer.  Today, in the appropriate case, the defense lawyer may employ this weapon to demonstrate scientifically that the opinion of the plaintiff’s medical expert concerning causation is not, in fact, “reasonably reliable” at all. Why is the biomechanical engineer uniquely positioned to offer this precise analysis on causation? Because, as Richard posits, this breed of scientist is an expert on human anatomy and physiology, including the functioning of various body parts and the types of stresses and forces which will cause them to exceed their natural physiological range of motion. In short, the biomechanical engineer applies immutable laws of physics to human anatomy and physiology. This stands in stark contrast to old notions of causation analysis that had only found purchase in a logical fallacy;  i.e., post hoc, ergo propter hoc, meaning “after this, therefore as a result of this.”  As our conversation about causation analysis continued, both Richard and I were amused that such an important element of the negligence equation had been glibly swept under Logic’s rug with the mere turn of a Latin phrase.  But Richard is quick to acknowledge that as biomechanics gains momentum, the system has the opportunity to correct itself, leaving the plaintiff in the unenviable position of attempting to find chinks in the armor of Newtonian Physics. On plaintiff’s options, Richard offers a wry smile and admits, “they did have some slight success early on, seeking to preclude our experts by arguing that the whole field of study is junk science; but given the superb credentials of these experts, some hailing from the finest graduate schools, all four appellate departments in New York now recognize that they’re qualified to testify at trial.” Richard has watched this evolution and asserts that where the report of the expert is based on good science and it is itself bolstered by scientific reports that are reliable in the engineering community, the trial court’s failure to accept it is improvident. “After all,” he notes, “this field has given us safer cars through seatbelt and air bag design and these professionals apply this science to design prosthetic devices.” With their hope of preclusion in question, some plaintiffs endeavor to notice their own biomechanical expert to provide testimony in rebuttal to that of the defense. But Richard is clear that this tactic is not permissible under the C.P.L.R.  In fact, he asserts that since the plaintiff’s expert must be offered to prove the case in chief, allowing such a rebuttal witness is reversible error.  The implication here, as seen by Mr. Sands, is a shift on the playing field against the plaintiff.  Where causation was once more mysterious, and subject to judicial terms of art which often appear in boiler plate fashion, biomechanics has added precision, presenting itself as the best known fraud detection device available to the defense. “With biomechanics,” Richard states, “there is no mystery because we are all subject to the laws of physics and we know the tolerance of the human body which has been researched and reported.” Mr. Sands points out that when brought into courtroom settlement talks, the biomechanical expert is a force to be reckoned with.  Candidly, he admits, he never thought that he would see exposure on cases reduced by a third to fifty percent; but, generally speaking, that’s what’s going on.  Further, Richard adds, that if the plaintiff gets brazen and takes his case to a jury, biomechanics creates a purely scientific armrest upon which jurors may rest those emotions which give rise to greater awards. For Richard, the value proposition is clear and because of the precision that biomechanics brings to causation analysis, it is sure to gain traction in Insurance Defense litigation.

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Richard Sands (Photo)

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Richard Sands is a graduate of Hofstra University School of Law and was admitted to the New York Bar in 1979.  He is also admitted to United States District Court, Southern and Eastern Districts. Richard primarily practices in the areas of casualty& property defense, automobile liability and construction & labor law.  Lastly, Richard is a member of the New York State Bar Association’s Torts, Insurance and Compensation Law Section.  Articles authored by Mr. Sands include  Claims Magazine: Role of Biomechanics; and Insurance Advocate:   Cause and Effect in the Courtroom:  How Bio-Mechanical Science is Revolutionizing Defense Strategies and Aiding Insurers In Litigation.