*1 a contemporaneous report of erratic provides driv- dence that a reasonable basis for its nature tends to lend relia- simply action. It means that the offi- bility to report. One of those infer- ought cer to be able to stop make brief ences will frequently be the conclusion that inquire about the driver’s fitness to tipster knowledge has of the criminal vehicle, operate a given public interest activity because she has observed its ef- in ensuring that unsafe drivers be taken fects first-hand. off promptly. the road Accordingly, the judgment Superior Court is AF- support To reasonable suspicion for a FIRMED. Terry stop, anonymous tips normally provide information, should sufficient such
as an vehicle, accurate description of number,
its tag license its location and travel, details,
direction of or other to en-
able the officer to be certain she has iden-
tified the addition, correct vehicle. period time between the receipt of the tip and the officer’s location of the vehicle ESKIN, Marla R. Administratrix of the brief, reliability information’s is en- Chickadel, Estate of Robert P. hanced. tip also must provide suffi- Below, Appellant. Defendant cient information support the inference
that the informant has actually witnessed traffic violation that warrants immedi- CARDEN, Barbara A. Plaintiff ate stop.50 Below, Appellee. Here, once Bloomingdale stopped his 322,2002. No. ear, Chief Capriglione quickly developed suspicion reasonable supporting his admin- Supreme Court of Delaware. sobriety istration of tests. He smelled emanating vehicle, alcohol from the he ob- Aug. Submitted: 2003. empty served car, alcohol containers Decided: Feb. Bloomingdale admitted that he had been drinking. stop Because the initial
was based on a tip provided a suffi- quality
cient and quantity of information to
give rise to suspicion, reasonable police
stop was valid.
Conclusion holding
Our today permits an officer to initial, brief,
make an investigatory stop
based on an anonymous tip of erratic driv-
ing, if tip has the reliability indicia of
discussed here. It does not mean that the go
officer can require further and a sobri-
ety
test
the absence of additional evi-
Wheat,
(providing
ampies).
Daniel L. P.A., McCullough McKenty, F. Mones of & DE, Wilmington, appellant. *4 Freibott Frederick S. Freibott of The P.A., DE, ap- Wilmington, Firm Law pellee. YEASEY, Justice, Chief
Before HOLLAND, BERGER, STEELE JACOBS, Justices, constituting the court en banc.
STEELE, Justice:
appeal
In
we address for the first
testi-
time whether biomechanical
courts
mony may be admitted Delaware
relationship
to address the
between
forces involved in an automobile
physical
an
severity
and the cause and
so,
alleged injuries.
doing
occupant’s
to address and
opportunity
we take the
Maute,1
Davis
clarify
attempt
in an
guidance
judges
to Delaware trial
provide
upon
called
to consider
frequently
who are
biomechani-
admissibility
expert testimony.
cal
may
judges
hold that
We
expert testi
qualified
admit
in
mony regarding
the ef
in automobile accidents and
volved
body those forces
fect on the human
relevance, reliability
produce where
of that
and trustworthiness
by
proffer and is not out
established
of the
danger
of confusion
weighed
jury.
caution
misleading
We
issues
biomechani
competent, qualified
that even
when
testimony may not be admissible
cal
the ana-
testimony purports
bridge
(Del.2002).
1.
lytical gap engineer’s applica- Finally, between an did not abuse her to, physician’s by denying tion of constants and a art- discretion Defendant/Appel- of, ful specific evaluation individual. lant’s Motion for Mistrial based Competent expert testimony single statement the Plain- inadmissible admissible, however, may be to impeach permitted tiff that could have finder assumptions factual made in imply medi- fact to that the Defendant was sus- testimony, cal opinion pected where the medical of driving under the influence of injured party’s subjective relies on an judge provided alcohol. The trial a cura- statements about the an mitigate facts of accident. tive instruction sufficient to Biomechanical evidence contradict improper ex- effects of the Plaintiffs com- pert under some cir- ments. where, e.g., purports cumstances — Accordingly, we AFFIRM decision quantify the an forces exerted on individu- Superior Court. accident, body during
al’s describe an individual’s reaction to the forces involved I. accident, upon principles or relies *5 3, 1998, On December Robert Chicka- causation, physics diagnoses, to rationalize Carden, Appellee, del and were Barbara per- course of treatment or an on a motor vehicle collision. manency. reaffirm that long- We the Chickadel struck the rear-end of Carden’s standing of of standard review abuse of collision, vehicle. After the first Chickadel applies discretion judges’ rulings .trial up, backed his vehicle moved stopped, for- admissibility testimony. on the of this ward, again. and struck Carden’s vehicle physical damage The accident caused holding
We follow the Davis both vehicles. that, supported by absent facts that are competent expert testimony, counsel to the emergency Carden went room not directly argue to the finder of fact that day later that a complaining burning there is a correlation between the extent of in her and tingling sensation lower back damage the to the vehicles involved in an legs. her was and She treated released per accident and the cause or severity medication, prescriptions pain with a injuries alleged sonal from that accident. steroid Septem- and muscle relaxer. On 14, 1999, ber after conservative treatment conclude, in judice, We the case sub failed, therapy and had had Carden back judge the trial exercised reasonable discre- filed, surgery. After the lawsuit was the by granting tion a Motion in Limine to Eskin, (through Defendant his estate’s ad- exclude proffered of a biom- ministratrix) liability. admitted Conse- expert. echanical Under quently, the nature and extent of Carden’s case, judge circumstances of this a trial alleged injuries only issues at were reasonably prof- could conclude that trial. evidence, although fered biomechanical su- relevant, trial, perficially moved in limine to was neither reliable Before Carden Thi- sufficiently nor validated to be deemed exclude the of Lawrence bault, D.Se., trustworthy. expert, What relevance it a biomechanical whose was, accordingly, by report following expert opin- outweighed proffered had danger misleading confusing jury. or ions: Eskin, during litiga- Marla R. the administratrix of Chicka- Chickadel died the course of estate, tion from causes unrelated to this accident. del’s was substituted as defendant.
1) him into some- forces, he made blow this rear- del and “loading,” The thing. collision were insufficient under
end engi- principles physics and objected to Carden’s Defense counsel lum- neering to have caused the acute into “blow[ing] about Chickadel statement indi- spine disc herniation to this bar highly it raised the something” because alcohol, plaintiff; despite vidual inflammatory issue dam- punitive fault nor fact that neither 2) with this colli- loading associated in the case. Counsel ages were issues loadings than the asso- sion was less judge The trial then moved for mistrial. everyday ciated with activities such Mistrial, gave the Motion for a denied lifting; walking, bending, as directly designed to jury an instruction 3) loading associated with colli- prejudice. risk of eliminate category placed this incident sion $580,000 verdict for Carden. returned (minor injuries) of AIS-1 transient Injury “Abbreviated Scale” II. (“AIS”) developed cooperative in a the trial EsMn first claims effort the American Medical Asso- excluding Thi her discretion abused ciation, the Association for the Ad- testimony. review We bault’s Medicine, vancement of automotive an abuse of judge’s ruling the trial under Society Engi-. and the of Automotive standard.3 discretion neers. may testify A witness hearing, judge granted After a as an and the qualified when *6 testimony. Carden’s motion to exclude the the witness has sci judge determines that judge trial that could ruled Thibault entific, specialized or other technical consistently testify proffer not with the fact that assist the trier of knowledge will opinions probative understanding because his had no val- evidence or determin has in” a fact at issue. This Court ing ue and were not “tied with the admissi- to the five-step a test determine adopted fur- judge ble medical evidence. The trial or technical ex admissibility of scientific ther ruled that Davis v. Maute barred pert testimony: photographs introduction of of Carden’s (i) the must decide that: vehicle, court they supported were not expert by an ‘qualified is witness by expert testimony that was related to an training or knowledge, experience, skill at trial. issue (ii) ...; is rele- the evidence education’ trial, the Because Chickadel died before (iii) reliable; expert’s the vant and testify. only eyewitness was the to Carden information ‘rea- is based opinion examination, direct Carden was asked On upon by experts sonably relied to requested police she the officer whether (iv) ...; expert tes- field’ the particular to anything do after he had talked Chicka- fact to the trier of timony will ‘assist responded: del. Carden or to deter- the evidence understand (v) enough. I police ...; I told had the [the officer] a fact issue’ mine I at unfair testimony I it more. looked not create can’t take will expert I confuse or mislead my prejudice mirror and or like from behind jury.4 talking he to Mr. Chicka- could see was McDonald, Delaware, Inc., Cunningham 790 v.
3. Price
Bank
Blood
of
omitted).
(Del. 1997) (internal
(Del.2002).
citations
A.2d
held,
Maute,
a
recently
recognized
We
in Davis v.
the field of “biomechanics” is
that “a
in a
party
personal injury case
scientific or technical field.
words
recog-
directly argue
expert qualified
opine
not
that the seriousness of
an
to
within a
personal injuries
automatically guaran-
from car
cor-
“field” do not
a
accident
nized
reliable,
admissible,
tes-
damage
relates to the extent of the
to the
tee
therefore
cars,
party
produce compe-
timony,
inquiry
unless the
can
however. The
will be
exper-
expert testimony
expert
tent
on the issue.”5
whether the
and the “field
produce
tise” itself can
is
Eskin
Thibault’s testi
informed,
sufficiently
testable and in fact
link
mony
slight
“the contention of
dam
at
verifiable on an issue to be determined
age
tending
to a
to minimize
contention
judge
trial. The trial
must be satisfied
plaintiffs physical injuries.”6
For that'
conclusions of the
generalized
admitted,
type
proffered testimony
to be
expert
applicable
are
to a
biomechanical
reliable,
proponent
present
must first
particular
example,
individual.7 For
did
competent expert
testimony relevant
pre-exist-
consider the effect
particular
circumstances
case.
unique
medical conditions and the
sus-
testimony
Admissible
ceptibility
particular plaintiff
of a
to the
bridges
gap
general
between the
injuries
the “field” of
claimed? Does
forces at work in an accident determined
engineering adequately test
(whether
by physical
analysis
it be
highly
for these
individualized characteris-
“physics”
“engineering”)
specif
and the
tics and document verifiable statistical re-
injuries
particular per
ic
suffered
sults about which an
within the
son who was affected
those forces. The
trustworthy opinion
field can
a
.render
provide
must
definitive evidence
particular case?
particular
physics
(or
not)
particular injury
did
cause a
Biomechanics is defined as
biological, espe
individual. A trial
must
“the mechanical bases of
muscular,
closely
cially
activity;
study
to be con
scrutinize this
also:
i.e., relevant,
involved.”8
trustworthy,
principles
fident that
relations
*7
here, nor,
simplicity,
For
of
we define
purposes
reliable and validated. Neither
cases,
study
be
biomechanics as the
of the effects
suspect,
we
most
will the issue
body.9
of forces
motion on the human
competency
of an
or whether
and
Davis,
gravity
5.
1229
dummy
test
or a member of
Accordingly,
recognize
we
that an individ-
the crash
skill,
replaced with an
demonstrating knowledge,
expe-
group
ual
the control
driver,
rience,
indicia
training
uniquely susceptible
or
those
education
the field
a facade.10 In
may
reliability
of biomechanics
be
to testi-
become
dif-
qualified
circumstances,
has held
fy generally
body
about how the human
ferent
this Court
i.e.,
logical
“special
that unless a
nexus”
impact
will react to the
of forces exerted
connection,
evi-
is shown between the
upon
during
it
an automobile accident.
en-
of common behavior and the facts
applied physics by
The use
trained
dence
simulations,
case,
gineers
the use of such common be-
computer
aided
dummies,
groups
highly prejudi-
control
and crash test
havior evidence can be
Here,
reliability
engineering
create indicia of
cial.11
constants
does
are
ultimately trustworthy
principles
be relevant and
in that anchor biomechanical
analogous
to the “common behavior”
given
circumstances of
case. We
must, however,
very
requires
special
nexus to the facts.
caution that
is the
predictability
consistency
Extrapolating
general
applied
from
physics that
demonstrative evidence that
principles
makes biomechanical evi-
disproves injury
dence reliable in some circumstances
to an indi-
supports
but
necessarily
not
example,
every
others. For
vidual
not be rehable
ease.12
study
colleagues
living
"Biomechanics is the
of how
or-
deficiencies. West and
used males
move,
ganisms
grow, etc. in relation to me-
aged
25-43 who were of normal
con
principles”
http//:www.hyperdic-
chanical
{at
ages
their
and none of whom had
dition for
tionary.com).
any preexisting spinal deficiencies. Allen
eight healthy subjects, four men and four
used
found,
10.Support
for this assertion is
ironi
women,
ages
between the
of 19 and 50
cally,
involving
in a case also
Dr. Thibault’s
T.J.,
J.B.,
years.” (citing Szabo
Welcher
testimony.
Egeland,
v.
Suanez
R.D.,
J.A.,
Anderson,
M.M.,
Rice
Ward
Paulo
1186,
(cit
N.J.Super.
353
N.J.,
Carpenter
Occupant
L.R. and
Human
Egeland,
N.J.Super.
at
Suanez
Response
Speed
Kinematic
To Low
Rear-End
("These
(App.Div.2000))
lengthy
Thibault is not a not sur- appropriately prisingly, partic credentialed. In this he neither reviewed Carden’s case, ular testimony, Thibault’s records nor while rele examined her. Thi- body generally, bault did not vant to the human any deposition review could testi- not, mony more, of Carden. He without shed question trustworthy light did not her itself, about the on the issue of body accident or her whether the forces of this posi- tion at the accident injury. time of the collision. caused Carden’s back His con- clusion that That injury proffer her lower back is because the did not estab could not have been lish that caused the minor either Thibault or his “field” had performed involved in the plainly tests that would validate did not applicability take into account her particular pre-exist- general conclusion ing condition proclivity reached here to a inju- to further “abnormal” ry. record, body. On this human say is fair to His did not iden tify any Thibault had competency percentage neither the deviation from the nor the opportunity to “norm” or a recurring consider these error rate to com idiosyn- cratic pensate for the out-of-the-ordinary person circumstances. No evidence rec- ord suggests that like any expert Accordingly, Carden. there could be his field competent, would be no assurance that or would have Thibault’s conclusion taken opportunity, was not more than Nothing marginally do so. in error. record suggests that anyone Thibault or reasons, For these trial could else the field of biomechanics per- has properly conclude that danger there was a formed reliable testing to validate such an that the would be confused or misled proffered by any expert in this believing into that Carden fell within the field.14 As one author has noted: range. “field’s” “one-size-fits-all” statistical Sometimes there is a genuine zone of knowledge
scientific
possessed by a
plainly outweighed
This risk
the rele-
field, but some or many of its
proffered testimony,
members
vance of Thibault’s
step outside of that zone and make
proffered testimony
as- because his
did not
sertions that exceed their field’s empiri-
special
create the
require
connection we
cally
knowledge.15
tested
between evidence of common behavior and
14.
footnote 9.
Supra,
Expert Testimony
§
Law And Science of
4-1.1 at
al.,
Faigman
et
Log-
Method: The
Scientific
Dow,
Drawing
Empirical
ic
509 U.S.
From
Evi-
16. Daubert
Merrell
Inferences
dence,
(1993).
S.Ct.
measure.17 something ... Validity measures what it is the extent [*] [*] [*] purports to which tion slightly damaged cars gue that that the accident was a “fender bend- Davis, properly defense admitted counsel supported a conten- photographs sought to ar- er,” that jury Thi- the the jury fairly upon persuade order to rely could damage to vehicles in causing “norm.” testimony to describe the bault’s impacted not have the accident could But that would not validate the in- sufficiently to have caused plaintiff As a re- applicability norm’s to Carden. Be- sult, juries complained. about which she was not a trustwor- Thibault’s bender” comment was critical at issue: fore “fender thy measure of the fact made, had ruled injured judge specifically colli- the trial could she have been very that Here, present counsel could not the trial was we think sion? contention, photographs acknowledge based within well her discretion to suggested The inference have been alone. that Thibault’s bender,” too-clever-by-half phrase, “fender happens to generally relevant what if inartfully attempted to circumvent and Car- average person were issue impermissible, That was judge’s ruling. human fairly represented average den testimony, here, unsupported proffered opinion But body. Davis posi- phrase left the was no evi- reliability lacked because there assump- “unguided empirical to make tion that either the witness dence eom- that are outside the tions on issues validity “field” had measured Faigman, Legal Alchemy: David The Use Faigman al., Scientific Log et Method: (1999). Empirical Evi Drawing From Misuse Science in the Law ic Inferences dence, in Scientific Evidence: Modern Expert Testimony § at 4-2.3 Law And Science 125-126. *11 1233 mon knowledge laymen.”19 of Although prejudice sufficient to warrant Eskin knowledge “laymen” common may of despite jury reversal the trial in- judge’s well include the common sense notion that in struction.20 As we stated Chavin v. accident, the lesser the in force the less Cope, “Ordinarily, an appropriate instruc- likely average human body will suffer disregard tion to the statement is suffi- injury, serious that speculation does not defendant, cient prejudice to avoid to the circumstances, account for other such as but an incident flagrant be so as to injuries pre-existing or the particularly require always a mistrial. question susceptible individual. one for the sound discretion of the trial judge.”21 “In the absence of evidence of
Davis does not that photographs hold of bad faith part questioner, on the vehicles involved in an sustaining prompt objection of a never be followed expert admitted without testimo- instruction, warranted, ny about the curative significance of the will damage to usually the vehicles shown in remedy the accident and suffice to the improprie- how 22 damage may ty.” relate to an in issue case. Davis has misinterpreted been aas The inference that could be drawn from bar to the admission photographs with- statement, Carden’s while potentially out testimony. only It was harmful, did not warrant a new trial. The disingenuous reference to a “fender bend- once, only utterance was made and there is er”—after a judge’s express ruling no suggest evidence the record to that it forbidding what that phrase implied—that product was the of bad faith part on the prompted our holding. Davis should not questioner either the Al- the witness. be construed broadly require though might, Carden’s statement testimony in every jurors case order for instruction, a prompt absence of curative to be permitted to photographs view impacted to some extent on the vehicles involved an accident. damages by amount of arousing animosity short, Davis should be limited to its drivers,” toward logical “drunk it had no facts, recognizing that may many there be relationship to the actual contested issues helpful purposes for admitting photo- proximate cause and the existence of graphs of the vehicles involved an acci- injury. her claimed dent where the case require does not sup- porting expert opinion. Although Carden’s statement created potential jury prejudice by suggest-
IY.
ing that alcohol was
the acci-
dent,
We next
judge promptly
review whether
Car-
reminded
den’s comment
being
about Chickadel
re
that alcohol “played
role in
no
quired
accident,
to “blow into something” caused this
whatsoever.” The trial
("Although jurors may gener-
holding
19. Id. at 41 n. 9
allegedly
that "the effect of
such
ally
reaching
use their common sense in
prejudicial
according
remark varies
to ‘the
verdict, they may
unguided empiri-
not make
”)
atmosphere
(quoting Stephens
of the trial.’
assumptions
cal
on issues that are outside the
Sulkin,
211,
(1924)).
v.
280 Pa.
jured party taking without account susceptibilities,
special weaknesses or injured
any, party. 1984) (Del.
23.