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Handling The Low Car Damage Defense

These suggestions for personal injury lawyers on how to handle the low impact car accident case are from seminars presented by Steven Gursten to the Michigan Trial Lawyers Association at the Michigan No Fault Institute Seminars, held in Novi, Michigan and Detroit, Michigan.

The low car damage defense is surely the most common defense raised by auto accident defense lawyers, both in Michigan and throughout the United States, in minimal impact car accident cases. Lawyers experienced in handling car accident personal injury cases see this all the time. Often a police report shows property damage that is rated by the investigating police officer as minimal. Photographs reveal little visible car damage. In some cases, defense lawyers will hire biomechanical engineers to come to court and testify that because there was no or very little vehicle damage, the forces that the car or truck driver were subjected to were insufficient to cause serious injury. In other words: “if the car isn’t hurt, the driver of that car can’t be hurt either.”

The problem with such testimony is that it lacks any underlying scientific basis. It is junk science. It should never be raised as a defense in any Michigan car accident or truck accident injury case. Attorneys who handle automobile accident cases should be familiar with the low impact defense, and be able to expose it and keep it out of the courtroom.

Having deposed, and successfully won Daubert evidentiary motions to prevent defense biomechanical experts from testifying in Macomb County Circuit Court, Wayne County Circuit Court, and the Eastern District of Michigan, I will share what I have learned. I have also lectured to the Michigan Trial lawyers Association on how to recognize and handle the minimal car damage defense when handling car accident injury cases.

The essential mistake with this defense and with the defense lawyers who make these arguments in auto accident cases is this: it attempts to apply a scientific correlation between the amount of property damage to a vehicle and the injury potential to a population of people, but not to an individual (who has already been injured in the car accident). It is akin to saying that because most people would not be hurt, the individual could not be hurt either. Of course, the medical and scientific literature is clear that people have suffered serious injury and even death in very minor vehicle damage car accidents. Once the defense expert admits that this, and admits that it is at least possible that the individual was injured in the car accident, then his opinions about likelihood of injury is simply a guess based upon the probability of injury potential to a population of people and not to your injured client. It is speculation and speculation is not admissible.

The medical and scientific literature is clear: people have been severely injured, and killed, in very low damage motor vehicle accidents. According to these defense experts, no one could ever be injured or killed in a low vehicle damage car accident because the probability of it occurring is low to the general population. But surgeons before they operate never ask to look at pictures of the car damage first. Once the plaintiff attorney gets the defense expert to admit it is at least possible, though maybe unlikely, that someone was injured in the car accident, then this testimony must be struck because the expert is simply guessing whether your client falls within a generalization about injury potential to a generalized population of people based upon unscientific generalizations. This is also known as guessing. Lawyers call it speculation. Either way, it is not admissible in the courtroom.

In any one individual instance, there can never be a meaningful relationship between property damage to a car and the injury potential of a person involved in a car accident. Your client who suffered injury in a car accident with low visible property damage might well fall into the 5% of the population who would have been injured by that car crash, but that can never be known until after the car accident has occurred, and only after your client has already suffered injury. Injury potential from car accidents or truck accidents can only be known after the fact, and then only based upon medical evidence for that individual.

What defense biomechanical experts do in defending these auto accident cases is akin to saying that because there is a 1 in 1 million chance approximately of dying in a plane crash, it is impossible to die in a plane crash. Dying may be unlikely but we know it does happen. In defending these car accident cases using the low vehicle property damage defense, these experts apply the same faulty reasoning, the same junk science, in the courtroom.

People may be less likely to suffer serious injury in a low property damage car accident or truck accident, as compared with a high property damage car accident or truck accident, but it certainly does happen all the time.

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