Evidentiary Principles Governing the Admissibility of

“Accident Reconstruction” Testimony In Virginia State Courts

By Roger T. Creager

The Creager Law Firm, PLLC 2800 North Parham Road, Suite 205A

Richmond, VA 23294 804-747-6444 Office phone 804-405-1450 Cell phone rcreager4@netzero.com

www.creagerlawfirm.com

A. Brown v. Corbin demonstrates many of the pertinent principles.

Brown v. Corbin, 244 Va. 528, 423 S.E.2d 176 (1992).

Factual background as stated in Court’s opinion: In this appeal of a wrongful death action, we consider whether

the trial court properly admitted certain accident reconstruction evidence in the form of expert testimony and a photograph.

On August 15, 1990, Harold Lee Corbin was driving east on

Route 638 in Orange County. As Corbin approached a curve in the road, another vehicle, operated by an unknown driver designated as John Doe, approached the same curve from the opposite direction. Doe's vehicle was partially in Corbin's lane of travel. Attempting to avoid the Doe vehicle, Corbin turned right and the right wheels of his vehicle left the road surface and travelled along the grass and gravel shoulder. Then Corbin changed his path abruptly, swerved back across both lanes of traffic, and struck Donald Steven George Brown, Jr., who was standing with his brother on the opposite shoulder of the roadway. Donald died as a result of the injuries he suffered from the impact of the vehicle.

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Debra L. Brown filed a motion for judgment in her capacity as

administratrix of the estate of her son, Donald, against Harold Corbin and John Doe. At trial, Corbin offered no explanation for his vehicle's abrupt change in direction, but he testified that Doe's vehicle may have sideswiped his car just before his car veered sharply back across the road. Corbin also testified that he attempted to apply his brakes, although he admitted that he mistakenly may have accelerated instead. Corbin contended that his actions were an appropriate response to the sudden emergency created by Doe's vehicle's presence in his travel lane.

At the conclusion of the trial, the jury returned verdicts for

Brown against Doe in the amount of $ 503,378.80 and in favor of Corbin. The court entered final judgment in accordance with those verdicts on December 2, 1991.

Brown v. Corbin, 244 Va. 528, 529-530, 423 S.E.2d 176, 178 (1992) (footnote omitted).

Issues and holdings as stated in Court’s opinion: Brown filed this appeal, assigning as error certain evidentiary

rulings of the trial court. Specifically, Brown contends that the trial court erred when it admitted a photograph offered by Corbin without proper foundation. Additionally, Brown argues that the trial court erred when it allowed Corbin's expert to offer irrelevant and speculative testimony and opinions on factual issues properly within the province of the jury. We consider those assignments of error seriatim.

I. Corbin offered a photograph purporting to recreate his

perspective as he approached the accident scene on August 15, 1990. Corbin was asked by his counsel whether the photograph

accurately depicted what he had seen as he approached the accident scene. Corbin responded, "Yes, sir. This is -- this is what -- somewhat similar to what I saw." The trial court admitted the photograph over Brown's objection. Brown argues that Corbin failed to lay an adequate foundation on which to admit the photograph and that the trial court erred when it allowed the photograph into evidence. We agree.

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[Proponent must lay foundation that any reconstruction or recreation is substantially similar.]

A staged photograph purporting to depict the

circumstances existing at the time of an event, e.g., Corbin's approach to the curve, is in the nature of a test or experiment which is offered for the same purpose. 2 Charles C. Scott, Photographic Evidence § 1101 (2d ed. 1969). Accordingly, the party who offers such evidence must show that the reconstruction or recreation is substantially similar, although not necessarily identical, to the actual event in all of its essential particulars. See Habers v. Madigan, 213 Va. 485, 487, 193 S.E.2d 653, 655 (1973). See also Mary Washington Hosp. v. Gibson, 228 Va. 95, 99, 319 S.E.2d 741, 743 (1984);Saunders v. Bulluck, 208 Va. 551, 558, 159 S.E.2d 820, 826 (1968).

Corbin testified only that the photograph was "somewhat

similar" to what he saw on August 15, 1990. Corbin did not enumerate the differences between the photograph and the actual scene, nor did he testify to the similarities between the conditions and circumstances depicted in the photograph and those which had prevailed on August 15, 1990. Therefore, we find that Corbin failed to lay an adequate foundation on which to admit the reenactment photograph. Accordingly, we hold that the trial court erred when it admitted the photograph.

II. [Expert testimony must be helpful and

cannot invade province of jury.] [“Accident reconstruction expert testimony

is rarely admissible in Virginia”.] Next, we consider whether the trial court properly admitted the

testimony of Corbin's witness, Stephen B. Chewning, as an expert in the field of accident reconstruction. The admission of expert testimony is committed to the sound discretion of the trial judge, and we will reverse a trial court's decision only where that court has abused its discretion. Nonetheless, expert testimony is inadmissible on any subject on which the ordinary lay person of average intelligence is equally capable of reaching his or her own conclusion. See Lopez v. Dobson, 240 Va. 421, 423, 397 S.E.2d 863,

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865 (1990). Furthermore, this Court repeatedly has held that, applying that standard, accident reconstruction expert testimony is rarely admissible in Virginia because it invades the province of the jury. See Grasty v. Tanner, 206 Va. 723, 726-27, 146 S.E.2d 252, 254-55 (1966); Venable v. Stockner, 200 Va. 900, 904-05, 108 S.E.2d 380, 383-84 (1959). We specifically have excluded expert testimony as to the speed of vehicles in automobile-related cases. See Thorpe v. Commonwealth, 223 Va. 609, 614, 292 S.E.2d 323, 326 (1982); Grasty, 206 Va. at 726-27, 146 S.E.2d at 254-55.

[Expert testimony should not be allowed on

the theory that it does not really offer any opinion—that type of testimony is irrelevant.]

Brown contends that Chewning's testimony invaded the

province of the jury on key issues in the case and was speculative, irrelevant, and inadmissible. Corbin responds that Chewning never offered any expert opinions and provided relevant testimony in response to Brown's own reconstruction of the accident through Deputy Sheriff Daniel D. Dickson's testimony.

We agree that Chewning did not offer any affirmative expert

conclusions on the issues of speed or on the actual path of Corbin's vehicle along the shoulder of the road. Chewning testified that he needed certain information to determine the speed of Corbin's vehicle and to find the points at which Corbin's right tires left, and reentered, the road surface. Chewning testified that he could not reach a scientifically accurate conclusion on those issues because Deputy Sheriff Dickson failed to obtain that "necessary" information when he investigated the accident. Therefore, while Chewning did not offer expert opinions on either of those issues, his testimony concerning what he might have concluded with information which was not in the record was, at best, irrelevant.

[Expert testimony that is offered on the

theory that it attacks the credibility and validity of the opposing expert’s investigation may not be admissible.]

Corbin argues that Chewning's testimony was relevant

precisely because it attacked Dickson's credibility and the validity of Dickson's investigation and, therefore, properly responded to Dickson's testimony. Corbin had the opportunity to cross-examine Dickson about the investigation and to argue any alleged

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inconsistencies to the jury at the conclusion of the trial. The issue of a witness's credibility falls squarely within the jury's province, and is one which a jury can resolve without any expert testimony to assist it. See Parker v. Davis, 221 Va. 299, 305, 269 S.E.2d 377, 381 (1980).

[Only the jury can draw inferences from

road marks.] Chewning did offer direct or inferential expert opinions on

other important factual issues in the case. For example, Chewning testified that Corbin's car would have left certain marks on the road if it had accelerated. A witness can testify to marks or debris he observes in a roadway after an accident, but only the jury is entitled to draw any inferences from those marks. Lopez, 240 Va. at 423, 397 S.E.2d at 865. Chewning's opinion essentially drew inferences from the absence of the marks, i.e., that where there were no marks, there had been no acceleration.

[Opinions must be based upon scientifically

accurate tests or formulas.] [Expert cannot present speculation to the

jury as a scientifically accurate opinion.] Chewning also stated his opinion on the friction factors for

the road and shoulder surfaces and informed the jury that a car naturally pivots toward the surface with more friction, here, the road. Chewning's opinion on that issue gave the jury an expert's explanation for the vehicle's abrupt turn across the road, a key factor in the case. The record does not show that he arrived at the figures through any scientifically accurate tests or formulas, but instead it shows only that Chewning estimated the friction on the surfaces on "an August day." His opinion, therefore, was nothing more than speculation, and the trial court abused its discretion when it allowed Chewning to present that speculation to the jury as a scientifically accurate opinion. See Thorpe, 223 Va. at 614, 292 S.E.2d at 326.

Chewning also testified that Corbin's point of perception

was "generally more than two hundred feet" although, once again, the record contains no scientific foundation for this opinion. Finally, Chewning told the jury that, based upon certain photographs, he would have investigated further the possibility of

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contact between the Doe and Corbin vehicles. Chewning testified that a piece of white cloth, visible in one photograph but not in a later photograph, would have caused him to investigate whether the Doe and Corbin vehicles collided prior to Corbin's abrupt turn across the road.

Chewning's testimony on these points did not offer

scientific opinions to assist the jury in resolving certain factual issues. Instead, it suggested, by implication, that Dickson's investigation was inadequate and that Dickson's testimony was not credible. Once again, we hold that the jury properly resolves those issues without expert testimony.

Taken as a whole, Chewning's testimony was largely

irrelevant to any legitimate area of inquiry, repeatedly invaded the jury's province as factfinder, and offered speculation in the guise of scientific opinion which, when presented through the testimony of an expert, prejudiced Brown's case.

Accordingly, we find that the trial court abused its discretion

when it admitted Chewning's testimony and the photograph, and we will vacate the judgment as to Corbin and remand the matter for a new trial limited to the issue of whether Corbin was jointly and severally liable with John Doe.

Reversed and remanded.

Brown v. Corbin, 244 Va. at 530-533, 423 S.E.2d at 178-180 (emphasis added and footnotes omitted).

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B. Summary of many of the basic evidentiary principles governing expert testimony (including “accident reconstruction” testimony).1

1. Expert testimony must provide expert assistance which is necessary to

help the trier of fact in understanding the evidence.

See Code §§ 8.01-401.1 and -401.3; Keesee v. Donigan, 259 Va. 157, 161, 524 S.E.2d 645, 647 (2000); Tittsworth v. Robinson, 252 Va. 151, 154, 475 S.E.2d 261, 263 (1996); Chapman v. City of Virginia Beach, 252 Va. 186, 191, 475 S.E.2d 798 (1996) (reversible error to admit expert testimony which did not assist the jury but rather concerned issues within the range of common experience); Coston v. Bio-Medical Applications of Virginia, Inc., 275 Va. 1, 654 S.E.2d 560 (2008).

2. Expert testimony must be based on a fully adequate foundation.

See, e.g., Tarmac Mid-Atlantic, Inc. v. Smiley Block Co., 250 Va. 161, 166, 458 S.E.2d 462, 465 (1995); Blue Ridge Serv. Corp. v. Saxon Shoes, Inc., 271 Va. 206, 624 S.E.2d 55 (2006).

3. Expert must not be speculative in any way or founded on assumptions

or beliefs that lack a fully sufficient factual basis.

See, e.g., Keesee, 259 Va. at 161, 524 S.E.2d at 648; Tittsworth, 252 Va. at 154, 475 S.E.2d at 263; Tarmac, 250 Va. at 166, 458 S.E.2d at 466; Blue Ridge Serv. Corp. v Sazon Shoes, Inc., supra.

4. There must not be any “missing variables” that the expert has failed

to fully consider (or is not qualified to fully consider).

See, e.g., ITT Hartford v. Virginia Financial Assoc., 258 Va. 193, 201, 520 S.E.2d 355, 359 (1999); Tittsworth, 252 Va. at 154, 475 S.E.2d at 263; Tarmac, 250 Va. at 166, 458 S.E.2d at 466.

5. Hearsay and other inadmissible types of evidence cannot be included in the expert’s testimony on direct examination.

See Virginia Code Section 8.01-401.1 (hearsay data may be brought out on cross-examination). In Meade v. Belcher, 212 Va. 796, 188 S.E.2d 211 (1972), the Virginia Supreme Court held that a doctor should not have

1 The author has endeavored to provide useful comments and research materials. Attorneys should conduct their own independent research and Shepardize any and all citations before using these materials in connection with litigated cases.

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been permitted to give an opinion which was based upon medical records which were not introduced as evidence in the case. Section 8.01-401.1 was enacted to allow an opinion to be based upon hearsay, such as hearsay medical records, but the statute does not alter the evidentiary prohibition against the introduction of the hearsay itself in direct testimony. An expert must also be precluded from testifying regarding the opinions, conclusions, or observations of others. See McMunn v. Tatum, 237 Va. 558, 379 S.E.2d 908 (1989) (expert may not testify to hearsay opinions of others); CSX Transportation v. Casale, 247 Va. 180, 441 S.E.2d 212 (1994) (same).

6. Only expert opinions formed and held to a reasonable degree of scientific certainty are admissible.

See Spruill v. Commonwealth, 221 Va. 475, 479, 271 S.E.2d 419 (1980); Virginia Code § 8.01-399(C) (“Only diagnosis offered to a reasonable degree of medical probability shall be admissible at trial”).

7. Purportedly “scientific” evidence will not be admitted unless it is actually based upon scientific methodology or testing that produces results that are sufficiently scientifically reliable to be admissible as evidence.

See Satcher v. Commonwealth, 244 Va. 220, 244, 421 S.E.2d 821, 835 (1992), cert. denied, 507 U.S. 933 (1993); Spencer v. Commonwealth, 240 Va. 78, 97-98, 393 S.E.2d 609, 621, cert. denied, 498 U.S. 908 (1990); John v. Im, 263 Va. 315, 322, 559 S.E.2d 694, 697 (2002); Santen v. Tuthill, 265 Va. 492, 578 S.E.2d 788 (2003). Expert testimony which amounts to subjective thoughts and impressions masquerading as science should not be allowed into evidence. This is particularly true in view of the danger that jurors may place great weight on experts who have impressive academic credentials and are often very experienced and skilled witnesses, and cross-examination may well prove to be inadequate to undo the damage done by such faulty testimony. In 2007, the Virginia Supreme Court explained: “Although Spencer was a case in which scientific evidence was offered at the guilt phase of a capital murder trial, we said nothing there to limit the applicability of its rule to that phase alone. Rather, the Spencer rule applies to the use of scientific evidence in judicial proceedings generally. Advancements in the sciences continually outpace the education of laymen, a category that includes judges, jurors and lawyers not schooled in the particular field under consideration. Consequently, there is a risk that those essential components of the judicial system may gravitate toward uncritical acceptance of any pronouncement that appears to

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be "scientific," and the more esoteric the field, the more difficult it becomes for laymen to greet it with skepticism. That tendency has given rise to frequent complaints of "junk science" in the courts. To guard against that risk, we continue to require a "threshold finding of fact with respect to the reliability of the scientific method offered," subject only to the exceptions in Spencer, quoted above. See Spencer, 240 Va. at 97, 393 S.E.2d at 621.” Billips v. Commonwealth, 274 Va. 805, 809-810, 652 S.E.2d 99, 101-102 (2007) (emphasis added) (footnote omitted).

8. The expert must be qualified to give each opinion and each item of testimony he intends to offer.

See Swiney v. Overby, 237 Va. 231, 233, 377 S.E.2d 372, 374 (1989). See CSX Transportation, Inc. v. Casale, 250 Va. 359, 365, 463 S.E.2d 445, 448 (1995).

9. Expert testimony must not invade the province of the jury.

See Velazquez v. Commonwealth, 263 Va. 95, 104, 557 S.E.2d 213, 219 (2002); Virginia Power v. Dungee, 258 Va. 235, 259, 520 S.E.2d 164, 178 (1999); David A. Parker Enterprises v. Templeton, 251 Va. 235, 467 S.E.2d 488 (1996); Brown v. Corbin, 244 Va. 528, 531, 423 S.E.2d 176, 178 (1992); Grasty v. Tanner, 206 Va. 723, 146 S.E.2d 252 (1966). The Virginia Supreme Court has continued to apply this rule despite the enactment in 1993 of special statutory provisions relating to expert testimony regarding ultimate issues. See Virginia Code § 8.01-401.3; David A. Parker Enterprises v. Templeton, 251 Va. 235, 467 S.E.2d 488 (1996).

10. Issues relating to determining credibility and weighing the evidence

are reserved for the jury.

See Lenz v. Commonwealth, 261 Va. 451, 469, 544 S.E.2d 299, 301 (2001) (“It was the province of the jury to assess the credibility of the witnesses”); Kimberlin v. PM Transport, Inc., 264 Va. 261, 266, 553 S.E.2d 665, 667 (2002) (“a jury should weigh the evidence, [and] determine the credibility of the witnesses”).

11. Expert testimony should never suggest or imply that there is a

scientific way to determine whether a party or witness is telling the truth.

“The mention of polygraphs in the presence of the jury impermissibly suggests that there is a scientific way to find the truth where in reality, in

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our system of justice, the jury decides what is true and what is not.” Robinson v. Commonwealth, 231 Va. 142, 156, 341 S.E.2d 159, 167 (1986). The Court has held that “in reality, in our system of justice, the jury decides what is true and what is not.” Id.

12. Expert testimony must not be repetitive or cumulative.

See, e.g., Harrison v. Commonwealth, 244 Va. 576, 585, 423 S.E.2d 160 (1992).

13. Tests and experiments, recreations, staged photographs, and similar evidence must be shown to have involved substantially similar conditions and circumstances.

See, e.g., Brown v. Corbin, supra; Featherall v. Firestone Tire and Rubber Co., 219 Va. 949, 959, 252 S.E.2d 358, 365 (1979).

14. Only a medical doctor can testify to diagnosis and caution of injuries.

See, e.g., John v. Im, 263 Va. 315, 321-322, 559 S.E.2d 694 (2002).

15. Trial court must serve as the gatekeeper; cross-examination is not a sufficient remedy for inadmissible testimony.

Often, when expert testimony is challenged as inadmissible the proponent of the evidence will argue that any flaws and problems in the evidence can be brought out on cross-examination, and thus there is no need to exclude the evidence. Thus, trial courts may be tempted to allow questionable expert testimony into evidence on the theory that its weaknesses can be exposed on cross-examination and the jury can then determine what weight should be given to it. This approach is not permitted under Virginia law.2 Rather, the Virginia Supreme Court has made clear that the

2 In CSX Transportation, Inc. v. Casale, 250 Va. 359, 367, 463 S.E.2d 445, 449 (1995), the Virginia Supreme Court cited a Fourth Circuit Court of Appeals decision reversing a trial judge who “held that if an expert does not have an adequate basis for his opinion, it is for counsel to bring out the deficiencies on cross-examination and for the jury to decide what weight, if any, the opinion should be given.” 250 Va. 359, 367, 463 S.E.2d 445, 450 (1995). The Virginia Supreme Court quoted with approval the following language from the Fourth Circuit’s decision:

It was an abuse of discretion for the trial court to admit [the

expert's] testimony . . . . The court may not abdicate its responsibility to ensure that only properly admitted evidence is considered by the jury. Expert opinion evidence based on assumptions not supported by the record should be excluded.

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trial court must always act as the “gatekeeper” charged with the responsibility of limiting expert testimony to its proper bounds.3 It is “for the trial court, not the jury, to decide whether the proper and sufficient foundation had been laid for the introduction of” the expert testimony.4 The admissibility of expert testimony presents a “strictly legal question” for decision by the Court.5 If the proffered expert opinions are not admissible, the jurors should never hear them. Moreover, it unnecessarily lengthens and complicates the trial to allow direct testimony and cross-examination of experts regarding opinions which ought to have been excluded. Indeed, if cross-examination were sufficient to overcome the effect of inadmissible expert testimony, there would be no need for the numerous decisions of the Virginia Supreme Court carefully limiting the nature and scope of expert testimony that may properly be admitted into evidence. Particularly in the case of testimony from a highly-educated, articulate, persuasive, experienced, extensively-credentialed expert hired and paid by a party, there is every reason to believe that cross-examination will be

Id. (quoting Tyger Constr. Co. v. Pensacola Constr. Co., 29 F.3d 137 (4th Cir. 1994), cert. denied, 513 U.S. 1080 (1995)). 3 In cases where numerous aspects of the proposed expert testimony are challenged as inadmissible, the “gatekeeper” role of the trial court becomes particularly active and demanding. For example, if the court has already excluded five other forms of opinion offered by the same expert, the court may begin to feel that at some point fairness dictates that the expert be allowed to state at least some part of his opinions. In these situations, however, the trial court must bear in mind that each and every aspect of the expert’s opinions which does not full meet the requirements of Virginia evidence law must be excluded, even if this means that the expert will be allowed to offer few, if any, opinions at trial. It is not the fault of the opponent of the evidence or of the Court that most or all of proffered opinions of the expert are inadmissible. In these situations, the trial court must serve as a “floodwall” against the steady flow of inadmissible expert opinions which would improperly prejudice the jurors. The party offering the expert testimony must show that it fully complies with Virginia law regarding admissibility of such evidence. Any and all such testimony which does not satisfy the admissibility requirements must be excluded as a matter of law. 4 CSX Transportation, Inc. v. Casale, 250 Va. at 367, 463 S.E.2d at 449. 5 “In summary, the question before the trial court was one of the admissibility of evidence, not its weight — a strictly legal question.” CSX Transportation, Inc. v. Casale, 250 Va. at 367, 463 S.E.2d at 450.

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insufficient to correct the harm done by allowing the jurors to hear expert testimony which ought to have been excluded. Hence, the Virginia Supreme Court has again and again held that trial courts committed reversible error by allowing into evidence expert testimony which failed to satisfy even just one of the numerous evidentiary requirements which must be met prior to admission of such evidence.6 The mere fact that a witness is qualified to testify as an expert does not relieve the trial court of its duty to act as the “gatekeeper.” Rather, the court must make the required threshold admissibility determinations as to each and every aspect of an expert’s testimony which is challenged. “Qualification of an expert witness does not insure admission of his every statement and opinion.”7

16. Trial court’s gatekeeper function includes the duty to exercise its discretion to determine whether improper prejudicial effect of evidence is likely to outweigh probative value.

See, e.g., Brugh v. Jones, 265 Va. 136; 574 S.E.2d 282 (2003).

6 See, e.g., Keesee v. Donigan, supra (trial court committed reversible error in an automobile crash negligence case in allowing an accident reconstruction expert to testify concerning "average" driver perception and reaction times absent evidence that a party fell within the average range; expert testimony cannot be based upon assumptions without evidentiary foundation); Tittsworth v. Robinson, supra (trial court erred in admitting expert testimony regarding forces of collision and causation of injuries where experts failed to consider all pertinent variables and relied upon results of dissimilar tests); CSX Transportation v. Casale, 247 Va. 180, 441 S.E.2d 212 (1994) (new trial was required because trial court erred in allowing expert testimony which included hearsay introducing a new and different diagnosis into the case); Chapman v. City of Virginia Beach, 252 Va. 186, 191, 475 S.E.2d 798 (1996) (case remanded for new trial because trial court erred in admitting testimony by a "human factors psychologist" that the physical properties, configuration, and unsecured condition of a gate section created a hazard and that it was reasonably foreseeable that a child's head could become entrapped in it; this testimony did not assist the jury but rather concerned issues within the range of common experience). 7 Swiney v. Overby, 237 Va. 231, 233, 377 S.E.2d 372, 374 (1989). See CSX Transportation, Inc. v. Casale, 250 Va. 359, 365, 463 S.E.2d 445, 449 (1995).

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17. Expert testimony should not be admitted into evidence on the theory that the expert did not actually give an opinion on the subject; if the expert has no opinion on a topic he should say so and say no more; he should not go further and offer observations regarding matters as to which he does not hold any admissible opinion to a reasonable degree of scientific certainty.

See, e.g., Brown v. Corbin, 244 Va. 528, 423 S.E.2d 176 (1992) (discussed above). The Virginia Supreme Court applied this principle in a 2005 decision:

We next consider Dr. Purohit's response to defense counsel's question, "Do you have an opinion within a reasonable degree of medical certainty what the cause of Mr. Pettus' death was?" After responding that he did not, Dr. Purohit then added, "In fact, that's the reason why many times we feel that unless an autopsy is done, it's really difficult to know what may have happened." This statement did not address Dr. Purohit's actions and impressions formed during the course of his treatment of Pettus. Instead, the statement indicated Dr. Purohit's present opinion that, in many cases, he and other physicians believe that an autopsy is necessary to determine the cause of a patient's death. Thus, this answer offered an expert opinion that was speculative in nature and inadmissible because it was not stated to a reasonable degree of medical probability. See John v. Im, 263 Va. 315, 320, 559 S.E.2d 694, 696 (2002); Kendrick, 254 Va. at 208-09, 491 S.E.2d at 287; Curtis, 249 Va. at 536, 457 S.E.2d at 69; Spruill, 221 Va. at 479, 271 S.E.2d at 421.

Pettus v. Gottfried, 269 Va. 69, 78, 606 S.E.2d 819, 825 (2005).

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C. Virginia decisions involving tests, experiments, recreations, and similar evidence. -- Richmond Passenger & Co. v. Racks, 101 Va. 487, 490-91, 44 S.E. 709, 711

(1903). (Absent proof of a similarity of conditions and circumstances, the opinion

testimony of an expert concerning the speed and stopping distances of railway cars was inadmissible for lack of a foundation).

--Bell v. Kenney, 181 Va. 24, 29, 23 S.E.2d 781 (1943).

(Defendants conducted an experiment in which defendants placed four persons on the front seat of an automobile and two on the back and claimed that a person sitting on the back seat was unable to see whether the lights of an approaching car were dimmed or whether the approaching car was traveling on the right or left of the center of the highway; the Supreme Court held that the results of the test were “irrelevant as evidence” because the record did not show that the weight, height, size, and position of the passengers were the same as those involved in the collision).

--Doss v. Rader, 187 Va. 231, 236-237, 46 S.E.2d 434 (1948). (Trial court erred in allowing into evidence results of tests purporting to show the

audibility of a vehicle approaching an intersection where the collision occurred; the Supreme Court held that “the admission of the evidence of these tests was improper and prejudicial. The conditions were not the same. The collision occurred on a damp, foggy day in January, while the tests were made in October, when, the evidence shows, a strong wind was blowing and the atmospheric conditions were quite different. Then, too, nearly two years had elapsed between the date of the collision and the date when the tests were made, and in the meantime the Rader car had been sold and a new engine had been installed therein.”).

--Lane v. Hampton, Adm'r, 197 Va. 46, 49, 87 S.E.2d 803 (1955). (Results of visibility test were without probative value since “[t]he experiment was

made during daylight, while the accident occurred on a dark night. At the time of the experiment the witness was on the lookout for an object which he knew had been placed on the highway for the purpose of being seen, while under the circumstances of the accident the defendant was unaware of the presence of his friend's body in the road. Plainly, under such circumstances, the evidence of this test and observation was improper and without probative value on the issue before the jury.”)

--Transit Company v. Brickhouse, Adm'r, 200 Va. 844, 848, 108 S.E.2d 385 (1959).

(“The defendant also objected and assigned error to the evidence of the experiment made to show the supposed line of vision of the driver of the bus and the map filed by the engineer to illustrate the result. The experiment was based on the height of

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the eyes of a person 5 feet 11 inches tall as he sat in the driver's seat of one of defendant's busses parked at the carbarn. The height of the person driving the bus involved in the accident was unknown, as was his sitting posture in the bus as it was in motion through the traffic. The parked cars were to his right, not straight ahead, as was the car in the experiment, which could have been either lower or higher than the parked cars. These uncertain elements could have made the actual view of the driver very different from the hypothetical view produced by the experiment. The experiment was based on elements and conditions some of which were and others of which could have been quite different from those existing at the time of the accident, and was therefore inadmissible in evidence.”).

--Grasty v. Tanner, 206 Va. 723, 727, 146 S.E.2d 252 (1966). (Expert opinion regarding speed of car was inadmissible; Supreme Court noted

that “[t]here were certain variables which he did not consider in arriving at his opinion regarding the speed of the Grasty car at the time of the impact. He assumed, without evidence to support his assumptions, that the combined weight of the three occupants was 400 pounds, and that there was no extra weight in the trunk of the car. He did not take into consideration the amount of gasoline in the tank of the automobile.”)

-- Habers v. Madigan, Adm'r, 213 Va. 485, 488, 193 S.E.2d 653 (1973).

(Results of tests regarding visibility of taillight were inadmissible; the Supreme Court explained that “[i]n the present case the experiment was made a year after the collision occurred under conditions and circumstances substantially dissimilar to those prevailing at the time of the occurrence here involved. Before the taillight was removed from the tractor-truck it was a part of its over-all electrical system which was connected to two 6-volt batteries, while at the time the experiment was conducted the evidence shows that jumper cables were used to connect the taillight to one 12-volt battery. There was expert testimony that at the time of the accident the taillight on the tractor-truck could have received its power from the tractor-truck batteries, the alternator, or both. Two moving vehicles were involved at the time of the accident, while in the test Howell was standing on the shoulder of the road looking for a stationary light he knew was in the northbound right-hand lane of the highway. Nor did the placing of the taillight on a chair in the highway provide the same background that prevailed at the time of the accident. Since the experiment was conducted under conditions which were substantially dissimilar in essential particulars to those existing at the time of the accident, the evidence was inadmissible and it was prejudicial to Habers' case. It thus constituted reversible error to admit in evidence the results of this experiment.”).

--Featherall v. Firestone, 219 Va. 949, 960, 252 S.E.2d 358 (1979). (Results of experiments showing that lid blew off when soft drink dispensing

system was pressured were inadmissible; the Supreme Court noted that “the record shows that the lid in place at the time of the accident had been used over a considerable period of time, perhaps as much as two months, in a cleaning process when a cleansing solution, not cola syrup, was in the syrup tank. Such fact makes

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the condition of the test lid apparently clogged by syrup substantially different from the accident lid which had been subjected to a prolonged cleaning process. The result of a test conducted under such conditions was thus inadmissible. . . . The record also showed, however, that a difference of 1/32 inch existed between the size of the tested Cornelius lid and the accident lid.”).

--Thorpe v. Commonwealth, 223 Va. 609, 614, 292 S.E.2d 323 (1982).

(Expert testimony based upon results of tests was inadmissible since the evidence did not show that the “condition of the truck, its brakes, its tires, or the manner in which the weight of its load was distributed” was the same as in the collision).

-- Mary Washington Hosp. v. Gibson, 228 Va. 95, 99, 319 S.E.2d 741 (1984).

(Results of tests showing drainage of water across sidewalk were inadmissible since “there was insufficient proof that there had not been minute, but significant, changes in elevation of the various sidewalk blocks that may have altered the “drainage pattern” of the sidewalk area during the critical period.”).

-- Reynolds v. Riggs, 234 Va. 653, 363 S.E.2d 713 (1988). (Results of visibility tests were inadmissible where there were differences from the circumstances involved in the collision).

-- Swiney v. Overby, 237 Va. 231, 377 S.E.2d 372 (1989).

(Expert testimony regarding stopping distances was inadmissible since the actual condition of the brakes on the truck involved in the collision was not in evidence and was thus a missing variable).

-- Runyon v. Geldner, 237 Va. 460, 464, 377 S.E.2d 456 (1989). (Expert testimony regarding cause of fall on driveway was inadmissible since it

was based upon an inspection of the driveway at a time when its condition was not shown to have been substantially identical to the time of the fall).

-- Ford Motor Co. v. Phelps, 239 Va. 272, 277, 389 S.E.2d 454 (1990).

(In a product liability action, evidence regarding performance of product in other similar incidents is not admissible “substantively as ‘corroboration,’” i.e., as evidence on the substantive issue of what caused the product in question to fail or malfunction).

-- Tittsworth v. Robinson, 252 Va. 151, 475 S.E.2d 261 (1996). (Since challenged expert testimony was speculative, founded upon assumptions lacking a sufficient factual basis, relied upon dissimilar tests and contained too many disregarded variables, it was unreliable as a matter of law and the trial court erred in admitting it.)

Decisions of Virginia federal courts have taken a similar approach to evidence involving the results of testing and experiments. Even though

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evidentiary issues arising in cases pending in federal court are, of course, primarily governed by the Federal Rules of Evidence, the federal decisions involving cases arising in Virginia have often cited Virginia state-law decisions. For example, in a 2005 decision by the U.S. District Court for the Western District of Virginia, Evans v. Medtronic, Inc.,8 the plaintiff attempted to offer testimony from her expert who concluded, based on certain tests he had performed, that the electronic lead implanted in the plaintiff’s back could not have been damaged in the manner described by the witnesses unless it was defectively manufactured. The federal district court, citing Featherall, excluded the testimony because the tests did not involve substantially the same conditions as the real-life events. The court noted that in the test the lead was subjected to only a tugging force, while in real life the lead could have experienced different types of forces (“bending, torsion, crimping and/or compression forces”).9 Likewise, in a 2001 decision by the same federal district court, Green v. Ford Motor Co.,10 the court excluded testimony and evidence regarding the results of Ford’s testing purporting to show that the fire caused by an ignited fuel tank would be concentrated toward the back of the truck rather than the front of the exemplar truck. Eyewitnesses said that the fire at issue had been concentrated toward the front of the truck. The defendant’s test evidence thus tended to refute the contention of the plaintiffs’ expert that the fire at issue originated at the subject vehicle’s fuel tank. The federal court excluded the evidence because the conditions involved in the test were not substantially the same as the conditions involved in the events at issue. The actual events occurred on an asphalt road but the test was done on concrete. The actual events involved a vehicle which veered from the road at a high rate of speed before rolling on its side and sliding to a stop, but the exemplar vehicle used in the test was carefully lowered on its side from a stationary position before being ignited. The test involved a vehicle that had not been operating for a significant period of time prior to the test, but the actual events involved a vehicle that had been operating continuously for some time. The court held that these differences provided “sufficient grounds for exclusion under the substantial similarity standard.”11 Importantly, the court also refused to allow Ford to introduce a videotape of the test results on the theory that it was intended “merely to illustrate general scientific principles underlying their expert’s opinion.”12 The court ruled that the evidence had to be excluded completely because “there exists a substantial risk of misinterpretation by the jury.”13

8 2005 U.S. Dist. Lexis 17739 (W.D. Va. 2005). 9 2005 U.S. Dist. Lexis 17739 at * 63. 10 2001 U.S. Dist. Lexis 20680 (W.D. Va. 2001). 11 2001 U.S. Dist. 20680 at *15. 12 2001 U.S. Dist. 20680 at *6. 13 Id.

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D. Selected “accident reconstruction” cases.

As a general matter, however, under Virginia law no witness other than an eyewitness who saw or otherwise observed the collision as it occurred is permitted to testify regarding the point of impact, location of impact, cause of the collision, and similar matters. The authorities establishing this principle include the following cases previous cited and discussed by both parties: -- a staged reenactment photograph purported to depict the circumstances existing at the time of the accident could not be admitted where the proponent only testified it was “somewhat similar” and did not enumerate the differences and similarities between the photograph and the actual scene he encountered at the time of the accident; Brown v. Corbin, 244 Va. 528, 423 S.E.2d 176 (1992); -- accident reconstruction expert was not allowed to give opinions on how the collision occurred or what conclusions the physical evidence establishes if his testimony on these points is speculative, without necessary factual basis, and there are missing variables; Brown v. Corbin, 244 Va. 528, 423 S.E.2d 176 (1992); -- accident reconstruction expert was not allowed to give opinions regarding the point of impact; Lopez v. Dobson, 240 Va. 421, 397 S.E.2d 863 (1990); -- police officer was allowed to testify regarding gouge and tire marks made by vehicles, debris left by vehicles, etc.; Lopez v. Dobson, 240 Va. 421, 397 S.E.2d 863 (1990); -- opinion evidence of expert engineer as to speed of automobile at time of impact was inadmissible in action for wrongful death of automobile passenger where expert derived his opinion from examination of damages automobile and surrounding conditions and not from observation of automobile in motion; Grasty v. Tanner, 206 Va. 723, 146 S.E.2d 252 (1966); -- opinion testimony by expert that at the time of the impact the tractor-trailer was encroaching on the oncoming lane by at least a foot and a half was not allowed since it invaded the province of the jury; Venable v. Stockner, 200 Va. 900, 108 S.E.2d 380 (1959); -- trial court properly admitted photographs taken three months after the collision which showed gouge marks, even though state trooper testified that when he examined the pavement with a flashlight shortly after

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the collision he did not see these marks, where there was other evidence that the marks were similar to other marks on the pavement which were made by the spokes of the broken left front wheel of the tractor-trailer; Venable v. Stockner, 200 Va. 900, 108 S.E.2d 380 (1959); -- trial court reasonably held that expert testimony was not allowed regarding whether child the same as plaintiff would have understood the dangers of an electric substation; Virginia Power v. Dungee, 258 Va. 235, 520 S.E.2d 164 (1999); -- expert was allowed to testify that wounds were inflicted by a sharp object, but was not allowed to testify that the boat’s propeller was rotating when it inflicted the wound since that invaded the province of the jury; David A. Parker Enterprises v. Templeton, 251 Va. 235, 467 S.E.2d 488 (1996); -- “With respect to understanding general technical principles affecting vehicles, the Virginia Supreme Court has held that expert opinions may be received on an abstract basis (that is, without linking up the particular principle at issue with the specific facts of a given case) in cases that do not “require” any specific nexus between the general principle and the specific “drivers involved in the cases, the condition of their vehicles, or other circumstances in which the accidents occurred.” Keesee, 259 Va. at 161-62, 524 S.E.2d at 648 (citing Holmes v. Doe, 257 Va. 573, 578, 515 S.E.2d 117, 120 (1999); Breeden v. Roberts, 258 Va. 411, 414-16, 518 S.E.2d 834, 836-37 (1999)).” Rhodes v. Lance, Inc., 5 Cir. 100292, 55 Va. Cir. 253 (2001). -- “Examples of the abstract expert testimony include technical explanations of the ‘general relationship between a vehicle ‘hydroplaning’ and the factors of wet road conditions, tire tread depth, and vehicular speed,’ id. (citing Holmes, 257 Va. at 578, 515 S.E.2d at 120), as well as testimony from a mechanic ‘regarding the effect that a frozen brake adjuster has on the operation and performance of a vehicle.’ Id. (citing Breeden, 258 Va. at 414-16, 518 S.E.2d at 836-37). In such cases, the jury looks to non-expert evidence to discern the specific application of the general principle to the facts of that case — that is, so long as the jury believes such an effort is warranted. In this capacity, the expert serves as a scientific or technical resource for the factfinder.” Rhodes v. Lance, Inc., 5 Cir. 100292, 55 Va. Cir. 253 (2001). -- accident reconstruction experts are not allowed to give testimony that reconstructs exactly what happened; Rhodes v. Lance, Inc., 5 Cir. 100292, 55 Va. Cir. 253 (2001);

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-- even if it is possible that the jurors could eventually figure out the matters on which the expert testifies, the expert testimony should be admitted if it is likely to be helpful to the jurors and if they would benefit from it; Rhodes v. Lance, Inc., 5 Cir. 100292, 55 Va. Cir. 253 (2001); -- expert was allowed to testify to track lines of vehicles entering the intersection, and their relationship to the traffic signal sequencing times, but was not allowed to testify that the defendant had the green light, and was not allowed to testify to average wait period for the left-turn lane absent a showing of substantial similarity of conditions; Rhodes v. Lance, Inc., 5 Cir. 100292, 55 Va. Cir. 253 (2001); -- expert was allowed to testify to general principles of hydroplaning, even though he did not have specific details of road and weather conditions at time of accident; Holmes v. Doe, 257 Va. 573, 515 S.E.2d 117 (1999); -- mechanic’s expert testimony regarding general principles and effects of frozen brake adjuster, and that frozen brake adjuster prevents vehicle’s brakes from working together causing vehicle to slide and fishtail was allowed; the mechanic's testimony was not offered to prove the cause of the accident; rather, it was offered merely to explain the effect a frozen brake adjuster has on the operation and performance of a vehicle; Breeden v. Roberts, 258 Va. 411, 518 S.E.2d 834 (1999); -- results of alcohol test and expert testimony based thereupon were properly admitted, since the sample tested was identified properly and its alcoholic content and the resultant effects on the decedent's capacities were explained by the properly qualified expert who made the test; Neblett, Adm'r v. Hunter, 207 Va. 335, 150 S.E.2d 115 (1966); -- expert testimony concerning general principles is appropriate to aid the triers of fact in drawing their own conclusions from the factual evidence it received from the other witnesses; but an expert is not allowed to apply general testimony regarding average reaction times to a particular driver in the absence of foundation evidence showing that he was an “average” driver. Keesee v. Donigan, 259 Va. 157, 524 S.E.2d 645 (2000); -- expert testimony regarding amount of force actually involved in collision was not allowed where the expert simply assumed that each vehicle sustained a crush damage of one-half an inch; Tittsworth v. Robinson, 252 Va. 151, 475 S.E.2d 261 (1996); -- expert testimony that force involved in collision was insufficient to cause plaintiff’s injury was not allowed because it lacked

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a sufficient factual basis, relied upon dissimilar tests, and contained too many disregarded variables; Tittsworth v. Robinson, 252 Va. 151, 475 S.E.2d 261 (1996); -- there was sufficient foundation for expert testimony on condition of certain slag under contract sold even though the actual slag sold was not tested but rather similar sample obtained at other times were tested; Tarmac Mid-Atlantic v. Smiley Block Co., 250 Va. 161, 458 S.E.2d 462 (1995); -- testimony of expert witness regarding location of accident and to prove that board that killed plaintiff’s decedent was carried by motor vehicle was not allowed since it was based on factual assumption which has no factual support; Lawson v. John Doe, 239 Va. 477, 391 S.E.2d 333 (1990).

E. Summary of Tittworth v. Robinson

Tittsworth v. Robinson, 252 Va. 151, 474 S.E.2d 261 (1996).

The Virginia Supreme Court’s opinion summarized the facts and procedural background as follows. Much of this information is quoted directly from the Court’s opinion. Jeffrey A. Tittsworth filed a motion for judgment against Stephanie N. Robinson seeking damages for personal injuries he sustained in a motor vehicle collision. The case was tried to a jury which returned a verdict in favor of Robinson. At the time of the accident, Tittsworth, operating his Mazda van, was leaving a parking lot adjoining Highway Route 610 in Stafford County. While stopped at the lot's exit and waiting for traffic on the highway to clear, a Hyundai automobile operated by Robinson struck the rear of the Mazda. Rain had been falling that day, and the soles of Rob-inson's tennis shoes were wet. Robinson's car struck the rear of Tittsworth's van when, as Robinson leaned over to move some curling irons from the front passenger seat to the floor of her car, her foot slipped off the clutch pedal.

At the accident scene, Tittsworth told Robinson that he had not been injured. However, several hours after the collision, Tittsworth began to experience stiffness in his back which became painful and progressively worse, and, two days later, he saw a physician. After undergoing a Magnetic Resonance Imaging (MRI) scan of the lum-bar spine, Tittsworth was referred to Dr. Donald G. Hope, a neurosurgeon.

Dr. Hope found that Tittsworth had a herniated disk at the "L5-S1 level." Based

upon Tittsworth's medical history, the doctor concluded that the herniated disk in Tittsworth's lumbar spine resulted from the collision.

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Robinson presented two expert witnesses in an effort to prove that the collision could not have caused Titts-worth's disk to rupture. Alfred L. Cipriani was qualified as an expert in the field of mechanical engi-neering and gravity acceleration impact analysis. Dr. Peter H. Abbrecht was qualified as an expert in biomedical engineering and biomechanics.

Cipriani testified that so-called "G force" is the ac-celeration of gravity, which, he

explained, accelerates at 32.2 feet per second, constituting one G. Cipriani concluded that the force experienced by Tittsworth in the collision was not greater than 1.6 G's and that such force is less than many people experience in daily activi-ties. Cipriani testified that a person, in hopping off an eight-inch step, would subject his head to as much as 8 G's and, in coughing, would subject his head to three and one-half G's.

Cipriani then explained how he reached his conclusion. He first obtained the identification numbers of the two vehicles involved in the collision. From these num-bers, he ascertained the make, model, and year of each vehicle. With this information, he had "a data base available which provided vehicle information such as the wheel base, the overall width, the weight of the car, things like that, so [he could] identify the vehicle more specifically." Cipriani then "looked up crash tests data on substantially similar cars." These tests are conducted by organizations such as the National Highway Transporta-tion Safety Administration, the Insurance Institute for Highway Safety, and Transport Canada, and they reveal how "stiff" a vehicle is in the front and rear. Ac-cording to Cipriani, "the amount of crush that occurs to a vehicle for a given speed is dependent upon how stiff the vehicle is." He stated that, having obtained all this in-formation, he then was "ready to look at the photographs [of the vehicles involved in the collision] and to start to do an analysis."

After looking at the photographs, Cipriani "assumed half of an inch of permanent

crush [damage] of the whole width and whole height of the back of the [Mazda]." He also "assumed a half of an inch of crush damage over the width of the entire [Hyundai]." These assumptions, he said, gave "the benefit of the doubt" to Tittsworth.

Cipriani, utilizing the crash test information and his assumptions regarding crush

damage, and with the assis-tance of a computer program which he did not develop, then calculated the maximum force that was applied to the rear of Tittsworth's van in the collision. This force, he determined, was 1.6 G's.

Dr. Abbrecht testified that, in his opinion, "the force of this accident [was] not

enough to cause any injury, and . . . definitely not enough to cause a specific injury of herniation of the L5 S1 disk." Before reaching this conclusion, Abbrecht had reviewed Titts-worth's medical records, including x-rays and the MRI scan of Tittsworth's lumbar spine, Tittsworth's deposition, photographs of the two vehicles, and Cipri-ani's analysis. He based his opinion in large measure on experiments, conducted by a concern called Engineering Dynamics Corporation, in which human volunteers were exposed to 2.2 G's of force in rear-end collisions. According to Abbrecht, the volunteers received no injuries in the experiments. These experiments, however, were designed to investigate neck

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injuries, not lumbar injuries, and Abbrecht conceded that there have been no "low back" studies.

Tittsworth moved the court to strike the experts' testimony. He asserted, inter alia,

that their testimony lacked an adequate foundation and a factual basis to sup-port their opinions and that the experts relied upon experiments conducted under conditions that were not sub-stantially similar to the conditions existing in the present case. The trial court denied the motion. The jury returned a defense verdict.

The Virginia Supreme Court held that “the challenged expert testimony is speculative, is founded upon assumptions lacking a sufficient factual basis, relies upon dissimilar tests, and contains too many disregarded variables. 2 Consequently, we hold that the testimony is unreliable as a matter of law, and, therefore, the trial court erred in admitting it.” 252 Va. at 155, 475 S.E.2d at 263-264.

The Virginia Supreme Court relied upon its extensive case law establishing

requirements which must be met in order for expert testimony to be admissible and concluded that the trial court correctly held that the experts’ testimony did not meet those requirements. The Virginia Supreme Court reviewed those requirements and explained its holding as follows:

Generally, expert testimony is admissible in civil cases if it

will assist the fact finder in understanding the evidence. Such testimony, however, must meet certain fundamental requirements. . . . . Such testimony cannot be speculative or founded upon assump-tions that have an insufficient factual basis. . . . . Such testimony also is inadmissible if the expert has failed to consider all the variables that bear upon the inferences to be deduced from the facts observed. . . . . Further, where tests are involved, such testimony should be excluded unless there is proof that the conditions existing at the time of the tests and at the time relevant to the facts at issue are substantially similar. . . . .

While Code §§ 8.01-401.1 and -401.3 have liberalized the

admissibility of expert testimony, we think the experts' testimony here fails to meet the fundamental requirements enumerated above. With respect to Cipriani, there was no showing that the crash tests relied upon were conducted under conditions similar to those existing at the accident scene. More importantly, Cipriani never examined the vehicles involved in the collision; rather, he relied solely upon the photographs of the vehicles to determine the permanent crush damage thereto. He did not know whether the undercarriages of the vehicles had been damaged, and, if so, the extent thereof. Indeed, Cipriani simply "assumed" that each vehicle sustained a crush damage of one-half an inch.

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Abbrecht relied, in part, upon Cipriani's conclusion. He also relied upon the photographs of the vehicles and the rear-end collision experiments. Again, there was no proof that these experiments were conducted under circumstances substantially similar to those existing at the accident scene. Moreover, the tests focused upon neck injuries, not lumbar spine injuries, and Tittsworth sustained an injury to a disk in his lumbar spine.

252 Va. at 154-155, 636 S.E.2d at 263-264. F. Animations, simulations, and similar evidence. As the Fourth Circuit Court of Appeals has recognized, a computer-generated animation depicting one party's theory of how an accident occurred is provocative and full of "dramatic power."14 A computer animation can become, in effect, a type of “stealth witness” through whom layers of hearsay, unstated assumptions, and unproven facts are admitted into evidence, all in a form that creates an appearance of accuracy and is very difficult to cross-examine. Most of the weaknesses of the computer animation will be invisible at trial. As the videotape is played, the jury will not see, for example, the computer program commands, inputs, default data (i.e., assumptions) that produced each frame of the videotape. As one commentator explains,

A two-minute video, if well made, will make a greater impression on the minds and emotions of jurors than the world's best expert. Once jurors see the video, the images will be graven on their minds. In fact, opponents of videotapes argue that a jury will never be able to evaluate intellectual criticism of a video's validity, no matter how devastating the cross-examination of the sponsoring expert. The familiar power of television will shoulder everything else aside. The very value of using the videotape--its ability to impress and explain--is thus the source of the most persuasive argument against its use.15

Computer technology is, of course, increasingly prevalent in virtually every setting, and the courtroom is no exception. Because of the potentially powerful impact of computer-generated animations, trial attorneys need to be familiar with the nature, dangers, and evidentiary principles applicable to this type of evidence.

A computer-generated animation that purportedly depicts how an accident occurred "is only as good as the underlying eyewitness testimony, physical data, and

14 Hinkle v. City of Clarksburg, W. Va., 81 F.3d 416, 425 (4th Cir. 1996). 15 Sharon Panian, “Comment, Truth, Lies and Videotape: Are Current Federal Rules of Evidence Adequate?,” 21 S.W. U. L. Rev. 1199, 1214 (1992).

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engineering assumptions that drive its images." Barry Sullivan, “Computer-Generated Re-enactments as Evidence in Accident Cases,” 3 High Tech. L.J. 193, 195 (1988). In United States v.Burgess, 691 F.2d 1146, 1155 (4th Cir. 1982), the Fourth Circuit recognized the applicability of the principle, "garbage in, garbage out," to computers. "If the human places 'garbage,' or faulty information, into a computer, then the computer's output will be 'garbage.' The point of the [garbage in, garbage out] principle, which is the first lesson of any computer class, is that the computer cannot be anything more than what the programmer tells it to be." Note, Mario Borelli, “The Computer as Advocate: An Approach to Computer-Generated Displays in the Courtroom,” 71 Ind. L.J. 439, 450-51 (1996).

Because computer animations depicting how an accident occurred stimulate the emotions and have a dramatic sensory impact upon the jury, the court must ensure the animation is accurate before allowing the animation in as evidence of any sort. See Hinkle, 81 F.3d at 425; Gladhill v. General Motors Corp., 743 F.2d 1049, 1052 (4th Cir. 1984). This is particularly true where the computer animation purportedly depicts the opponent's version of the facts. As one commentator noted, "[a] presentation displaying the opponent's position in a simulation that works to the advantage of the proponent could be devastating to the opponent's case. If the simulation is not completely accurate at its foundation, the opponent's position could be misinterpreted." Adam T. Berkoff, “Computer Simulations in Litigation: Are Television Generation Jurors Being Misled?,” 77 Marq. L. Rev. 829, 851 (1994). Almost every form of evidence, of course, has the potential for error but the prejudical impact of an erroneous or unfounded computer animation is likely to be great. Studies have shown that jurors focus primarily on the visual evidence used during trial. Selbak, supra, at 361. According to the Wechsler Memory Scale, a standardized clinical memory test, subjects immediately forget as much as two-thirds of what they hear. Carole E. Powell, Note, “Computer Generated Visual Evidence: Does Daubert Make a Difference?,” 12 Ga. State U. L. Rev. 577, 578-79 (1996). However, the Weiss-McGrath Report found that juror retention increased 100% if a visual, rather than an oral, presentation was used. Id. at 579. Furthermore, juror retention increased a whopping 650% when both a visual and an oral presentation were used rather than an oral presentation alone. Id. A computer animation is, of course, a pairing of a visual and an oral presentation, and whether or not it has a reliable basis, is likely to have a powerful impact with the jury. Brian Stonehill, the director of media studies at Pomona College in Claremont California, found that computer animation "works on a visceral level that quite easily bypasses skeptical, rational faculties." Selbak, supra, at 362. In this regard, computer animation "creates pseudo-memories of the event" and the "memorability of having witnessed the crime itself [or event in dispute] but [with] no validity in fact." Id. This, in turn, obscures the true nature of the evidence and blurs the line between an expert's opinion of the facts and a presentation of the facts themselves. Selbak, supra, at 354; see also Perma Research & Development v. Singer Co., 542 F.2d 111, 125 (2d Cir. 1976) (Van Graafeiland, J., dissenting) (reciting numerous possibilities of how undetected

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errors in computer-generated evidence may occur and concluding that the complexities of creating computer-generated evidence make the display of the actual work product deceptively neat). "Consequently, an animation's probative value is compromised by the jury's inability to ascertain what type of evidence it is evaluating. Not only is the line between demonstrative and scientific evidence blurred, but the possibility that the animation is nothing more than opinion testimony raises the question of whether the animation is evidence at all." Selbak, supra, at 354. This confusion as to the nature of the evidence thus removes the jury from their fact-finding role.

In Hinkle v. City of Clarksburg, W.Va., 81 F.3d 416 (4th Cir. 1996), the Fourth Circuit held that, where the jury was instructed that a computer simulation was not meant to be a recreation of the events but rather represented an expert's evaluation of the evidence presented, the opposing party did not suffer undue prejudice as a result of the admission of a computer animation of a shooting incident in a civil rights action, and the Fourth Circuit refused to disturb "the broad discretion afforded trial judges in this area." The Fourth Circuit further stated, however: "In reaching this holding, however, we are not unmindful of the dramatic power of this type of evidence; hence, we encourage trial judges to first examine proposed videotaped simulation evidence to assess its foundation, relevance, and potential for undue prejudice." 81 F.3d at 425. It should be noted that the court made this statement even though the computer animation was offered to illustrate the expert's testimony, and was not offered as an actual recreation of the events.

The court also noted that it had previously applied to recreation videotapes a requirement of substantial similarity between the recreation and the facts of the case. See Chase v. General Motors Corp., 856 F.2d 17 (4th Cir. 1988) (trial court properly excluded videotape where substantial similarity requirement was not met); Gladhill, supra (trial court erred in admitting videotape; this error and other errors made by the trial court required reversal); McCormick on Evidence, § 214 at 674-75 (3d ed. 1984). In Hinkle, the Fourth Circuit observed that it had not previously applied the substantial similarity requirement to computer-animated videotapes that purport to recreate events at issue. "We fail to see a practical distinction, however, between a real-life recreation and one generated through computer animation; both can be a particularly powerful recreation of the events." Id. In federal courts, to be admitted as substantive evidence a computer animation containing computer-generated evidence must satisfy Federal Rules of Evidence 401, 402, 403, 702, 802, and 901. This means the computer animation must be relevant, must not have a prejudicial effect which outweighs its probative value, must pass the hearsay rule, must pass the requirements for expert opinion, and must be authenticated. In addition, this evidence must satisfy the test set forth by the Supreme Court in Daubert v. Merrell Dow Pharmaceuticals, Inc., 113 S. Ct. 2786 (1993). The requirements which a computer animation must satisfy to be admissible in Virginia state courts are similar but

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not identical to the federal requirements. The evidentiary requirements governing expert testimony in Virginia state courts are discussed above.

Roger T. Creager has practiced law in Virginia since 1982. He graduated from the College of William and Mary in 1976 and from the University of Virginia School of Law in 1982. He served on the University of Virginia Law Review from 1980 to 1982. Mr. Creager has published and lectured frequently on Virginia law, including trial practice and evidence law topics. He is currently the Chair of the Virginia State Bar’s Standing Committee on Legal Ethics of which he has been a member for the past five years. He is a member of the Boyd-Graves Conference and has chaired numerous study subcommittees on the Conference. He is a member of the Virginia Bar Association and serves on the Section Council of its Litigation Section. He is a member of the Virginia Trial Lawyers Association’s Board of Governors. His law office is located at 2800 North Parham Road, Suite 205A, Richmond, VA; he can be reached by phone at 804-747-6444 and by e-mail at rcreager4@netzero.com.