Louisiana Advocates, April, Vol. XXXVII, No. 4. Copyright
Louisiana Association for Justice. Used with Permission.
Introduction
An accident reconstructionist can give expert opinions about a range of things—including vehicle movement, vehicle speed, and the mechanics of how a collision occurs. In other words, an accident reconstructionist paints a picture of how a collision happened. As the name implies, they reconstruct the accident. That’s all well and good. But sometimes—such as when there is video footage of an accident—the accident does not need reconstructing. Why? Because the video already provides a contemporaneous recording of the accident itself.
I recently wrote a Motion in limine fitting these circumstances. The judge excluded the defense accident reconstructionist. As explained below, in such circumstances the expert is merely trying to usurp the role of the factfinder. This is not helpful and should not be permitted.
The Basic Argument
When there is video footage evidence showing how an accident happened, watching the video to determine how the accident happened falls within the common knowledge of jurors, so any expert testimony on that issue must be excluded. In my case, there was actual video footage of the accident from a surveillance camera, but the defendants nonetheless tried to offer testimony from a purported “accident reconstruction specialist” to reconstruct the accident and provide opinions about how it occurred. The question before the Court was whether an accident reconstruction expert’s testimony would be helpful to the jury when there was already video footage of the incident to show the factfinder how the accident happened.
Facts to Look For
In my case, the accident reconstruction expert’s opinions were largely a regurgitation of how he perceived the video footage (e.g., “Vehicle 1 backed up approximately 6 feet.”). The expert report candidly explained that the most pertinent information the expert relied on was the security video of the collision. These types of facts had nothing to do with the reconstruction of the accident. Rather, the expert’s testimony was based on his own perceptions of the factual, video evidence. These types of opinions are merely observations—not expert accident reconstruction opinions. As such, they should not be afforded the authoritative cloak of “expert” testimony.
Analysis of the Argument
Under Louisiana law, expert witness testimony is only permissible if that testimony will “help the trier of fact to understand the evidence or to determine a fact in issue.” La. Code Evid. Ann. art. 702. The Louisiana Supreme Court has noted that Louisiana’s rule is the same as the federal rule; it has adopted the federal Daubert standard for Louisiana state courts, and approved the federal rules on helpfulness to the jury in Louisiana cases as well. State v. Foret, 628 So. 2d 1116, 1122–23, 1127 (La. 1993) (“La. C.E. art. 702 sets up a scheme wherein the expert testifies only as to matters that are calculated to be helpful to the jury. Of course, this helpfulness to the jury is to be balanced by a due consideration of the probative value/prejudicial effect balancing test mandated by La. C.E. art. 403. As this provision generally follows the federal rule and is similar to other state evidentiary rules on testimony as to credibility, we look once again to federal and other state jurisprudence on this matter.”). At least one Louisiana federal court has considered the precise issue of inadmissibility of expert testimony when a video footage exists. Salmon v. Waffle House, Inc., 2021 WL 1023066 (E.D. La. 2021).
In Salmon, a slip and fall case, the defense expert’s proffered testimony was about “the mechanics of [the plaintiff’s] fall.” Id. at *2. The court excluded this expert from offering any testimony. Id. at *4. In its reasoning, the court explained:
Moreover, [the proffered testimony] is based purely on Quick’s review of the video, a task which the jury is capable of undertaking. Watching a video and determining at what point in it an individual falls, and where his hands are placed at the time, “obviously is within the common knowledge of jurors.” Kyong Hui Lane v. Target Corp., 2006 WL 870805 at *2 (S.D. Tex. April 3, 2006), citing United States v. Willey, 57 F.3d 1374, 1389 (5th Cir. 1995). The court finds that this testimony is both confusing in its equivocation, and embraces matters within the jury’s competence to interpret. It will not assist the finder of fact. Id. at *3.
In my state court case—just like in Salmon—there was video footage of the incident. The proffered testimony hinged on the video footage, which the expert admitted was the most pertinent information he reviewed. As the court noted in Salmon, watching a video and determining at what happens in a video—such as where an individual falls or where his hands are at the time is “obviously is within the common knowledge of jurors.” Likewise, watching a video and determining the distance a vehicle backed up approximately 6 feet is also within the common knowledge of jurors.
Common Defense Arguments
Naturally, a defendant is going to fight to keep his expert in the game. In my case, the defendants argued their expert was highly qualified. They listed his many qualifications. But qualification is only one of the three requirements for expert testimony. Of course, an individual must be qualified to testify as an expert. And if the individual is not qualified, then that is also a ground for exclusion. But qualification—while necessary—is not sufficient. For an expert to testify, he or she must not only be qualified, but the testimony must also be reliable and helpful to the finder of fact. All three requirements (qualification; reliability; and helpfulness) must be satisfied. If you are arguing that an expert should be excluded on helpfulness grounds and the defense counters that he is qualified or that the testimony is reliable, all you need to do is remind the court that the defendant is dodging the issue-at-hand: helpfulness.
Conclusion
The type of accident reconstruction testimony explained above is pointless when there is video evidence. There is no need to reconstruct the accident when there is already real-time footage of the incident itself. The accident does not need to be recreated because there is a contemporaneous, visual record of how it happened. Under these circumstances, the jurors are perfectly capable of watching the video to see how the accident happened. It is within their common understanding, so they do not need an expert to explain it to them. As such, an accident reconstruction expert’s testimony would not be helpful to the finder of fact, so they should be excluded from testifying at trial.
By Casey C. DeReus
Casey C. DeReus is a member of the American Bar Association’s Disaster Legal Service’s team. She is an associate at Baer Law LLC, and her primary areas of practice are negligent security, trucking casualty, rideshare motor vehicle collisions, and wrongful death and survival action cases. cdereus@baerlawllc.com