Radiology Expert Barred From Providing Testimony Related to Biomechanics
Posted on April 21, 2025 by Expert Witness Profiler
This automotive product liability case arises from a rear-end collision involving a 2020 Honda Odyssey (“subject vehicle”) that resulted in serious injuries to Plaintiff James Assey. On June 16, 2021, Plaintiffs James and Joan Assey were traveling in the subject vehicle on Interstate 26 near Columbia, South Carolina, at approximately 55 miles per hour when the subject vehicle was rear ended by a 2018 Dodge Charger traveling approximately 101-108 miles per hour at impact (the “subject accident”).
Plaintiffs contended that the subject vehicle contained defects that caused or contributed to Assey’s injuries. Specifically, the subject vehicle’s occupant restraint and protection systems, including, but not limited to, its seating system, airbag system, seat belt and head restraint, failed to provide safe and reasonable protection in an allegedly foreseeable rear end collision.
Plaintiffs originally asserted claims for strict liability (design and manufacturing defect), negligence (design and manufacturing defect), negligent failure to warn, and loss of consortium.
Defendant filed motions to exclude the expert testimony of Michael Markushewski and Bruce Distell.
Accident Reconstruction Expert Witness
Michael Markushewski has extensive experience in crashworthiness, occupant crash protection, emergency escape, crash safety and survival, and life support engineering. His career has focused on the research, design, testing and evaluation of vehicular and aircraft seating systems, seat belt restraint systems, inflatable restraints, ejection seats, crashworthy seating systems and protective devices.
He is co-inventor of two (2) patents addressing occupant crash protection devices and seat design.
Over his career Markushewski has been lead investigator and crash reconstructionist in the evaluation of occupant protection system performance in military and civilian aircraft and automotive ground vehicle mishaps to determine the mechanisms of injury. He has worked with the U.S. Army in the development of advanced seating and restraint systems to protect soldiers from mine-blast related injuries. He has also worked with the National Hockey League to research, develop and test designs to improve player safety.
Radiology Expert Witness
Bruce Distell is a board-certified diagnostic radiologist with fellowship training in body, spine, and orthopedic imaging. He graduated from Muhlenberg College in 1982 with a B.S. degree and from the University of Pennsylvania School of Medicine in 1986. He completed his radiology residency and fellowships at Duke University and is currently the Section Chief of the Department of Radiology at Cape Fear Valley Health Systems and the Academic Department Chair of the Methodist University Cape Fear Valley Medical School. Distell is also an assistant professor at the Campbell University School of Osteopathic Medicine. According to Distell’s report, 90% of his time is spent on clinical work, such as reading x-rays, CTs, MRIs, and other imaging modalities, and 10% of his time is dedicated to teaching and administrative duties.
Discussion by the Court
Motion to Exclude the Expert Testimony of Michael Markushewski
Defendant argued that Markushewski’s opinions failed to meet the reliability requirements of Rule 702 because he relied on data about seat belt performance during 35-mile-per-hour frontal impact barrier crash tests using a fifteenth percentile dummy, and the accident was a rear-impact collision involving a larger than fiftieth percentile driver.
According to Defendant, these “substantial differences render Markuskewski’s opinions speculative and unreliable.”
The Court concluded that the issues Defendant raises regarding Markushewski’s methodology are fodder for cross examination and did not render Markushewski’s opinions unreliable.
Motion to Exclude the Expert Testimony of Bruce Distell, M.D. Regarding Biomechanics
Defendant contended that Distell’s report is an improper rebuttal opinion under Rule 26(a)(2)(D)(ii) of the Federal Rules of Civil Procedure and, furthermore, argued alternatively that Distell is not qualified to give expert opinions related to biomechanics.
Regarding the timeline, despite a July 12, 2024 deadline for identifying expert witnesses, the Plaintiffs identified Distell on September 18, 2024.
In contrast, Defendant’s expert had reviewed Assey’s medical imaging and concluded that Assey had pre-existing conditions that placed him at an increased risk of spinal injury and that there was no evidence of a hyperextension injury to the deep flexor muscles of his upper thoracic spine.
However, Distell rebutted these conclusions by opining that Assey’s underlying spinal morphology would not have placed him in a higher risk category to suffer this type of injury, and also opined that Assey would not have sustained injuries but for his lower thoracic spine being positioned above the top of the seat back.
Defendant argued that because he is a diagnostic radiologist trained in interpreting medical images, Distell is not qualified as a biomechanic to testify regarding the causal impact of Assey’s position within the Subject Vehicle.
As a result, the Court concluded that Distell’s opinion that Assey would not have been injured but for his lower thoracic spine being positioned above the top of the seat back is an improper rebuttal opinion. Moreover, even if this improper rebuttal opinion was not prejudicial to Defendant, as Plaintiffs argue, the Court agreed with Defendant that Plaintiffs have not shown that Distell is qualified to offer an opinion on biomechanics.
Furthermore, beyond the conclusory argument that Distell’s training as a diagnostic radiologist qualifies him to testify as to causation, Plaintiffs have not shown that Distell has the knowledge, skill, experience, training, or education to provide opinions in biomechanics.
Held
- The Court denied Defendant’s motion to exclude the testimony of Michael Markushewski.
- The Court granted Defendant’s motion to exclude the testimony of Bruce Distell.
Key Takeaways:
- First, Distell is not a biomechanic, and furthermore does not have experience in designing a motor vehicle. Therefore, Plaintiffs have not shown that Distell has the knowledge, skill, experience, training, or education to provide opinions in biomechanics.
- Markushewski’s testimony should “be attacked by cross examination, contrary evidence, and attention to the burden of proof, not exclusion.”
Case Details:
| Case Caption: | Assey Et Al V. American Honda Motor Co., Inc. |
| Docket Number: | 3:22cv2647 |
| Court Name: | United States District Court, South Carolina |
| Order Date: | April 18, 2025 |
