One Night in November, Part 8: When Experts Miss Critical Facts

I once posted about the perils of and for expert witnesses who are loyal to a position instead of facts and data.  It happened again, but made for another fun deposition.

In relevant part, remember this collision happened 1) on a two-lane road 2) with no sidewalks.  In that circumstance, NRS 484B.297 states where pedestrians must walk.  NRS 484B.297(1) states “where sidewalks are provided, it is unlawful for any pedestrian to walk along and upon an adjacent highway.”  This didni’t apply because there were no sidewalks provided.  NRS 484B.297(2) states “pedestrians walking along highways where sidewalks are not provided shall walk on the left side of those highways facing the approaching traffic.”  This one definitely applied.  Pedestrian was 1) a pedestrian; 2) walking along a highway were no sidewalks were provided.  In that circumstance, pedestrian should walk on the left side of the highway, in his direction of travel, to face approaching traffic.

The photograph below may help visualize why this statute matters.  The photograph is not from the accident scene, instead a random section of two lane highway in a forsaken part of the Nevada desert.  In the first photograph the red arrow depicts where NHP concluded Pedestrian was walking when the collision occurred.  Driver’s accident reconstruction engineer agreed with NHP.  Driver’s Vehicle was traveling the same direction, in the same lane, explaining the collision.

However, if Pedestrian had been following NRS 484B.297(2), the red line in this second photograph shows where he should have been walking as compared to the yellow line where Driver was.  If you don’t understand the difference, I don’t know how to help you.

I’d been planning a defense around this statute for a long time, but Pedestrian’s Accident Recon’s report never even cited that statute, let alone considered it.  Once I was convinced I had not missed it buried somewhere in the report, I started planning for the deposition.  The planning was difficult.  Why would it be difficult given what would seem to be such a simple, obvious error?  I am a pessimist.  If something looks too good to be true, it probably is.  So my deposition preparation involved tearing my own analysis apart and trying to find any way that missing this statute did not compromise Accident Recon’s opinion.  I also spent time coming up with screwball questions and responses that might come up in the deposition.  I would only get one shot at this attack because when a witness feels like they are in box they will do many things to escape it.  My job as the lawyer is to keep them in the box.

The Deposition

Too many lawyers start their depositions by going through admonitions like it’s an obligation.  Accident Recon had been deposed repeatedly before, so I didn’t bother and just went after him.  I started the substantive questioning immediately.  The transcript started on page 4, the questioning cited below started on page 6.  As in prior posts, I have annotated my thoughts during the deposition.

Step 1: get him to agree to the foundational facts that would trigger the statute.  Not a problem.

15 Q.Based on the photographs and your own visit
16 to the scene can we agree there are no sidewalks in
17 this area?
18 A. Yes.
19 Q. In the accident report that NHP completed,
20 they take measurements of the roadway and

22 They measured the travel lane
23 as being approximately 12 feet wide. Will you
24 accept that? Do you have any reason to dispute
25 that number?
1 A. No, that’s approximately what I have.
2 Q. Okay. And then there are paved shoulders
3 on each side of the roadway that NHP estimated were
4 approximately six feet wide. Do you have any
5 reason to dispute those numbers?
6 A. Well, I’ll note the shoulders are quite
7 variable in this area especially in the area south
8 of where most of the evidence is. In that area to
9 the south there’s been some changes to the roadway,
10 some changes in striping, and some changes in
11 pavement, and the shoulder of the roadway varies
12 quite drastically in that area. So certainly the
13 shoulder is not a consistent width north/south
14 along this area.
15 Q. Do you have any reason to dispute that the
16 NHP measurement of six feet was accurate?
17 A. It depends where they measured that
18 distance. I’m telling you that the shoulder
19 varies.
20 Q. So in the area where this accident happened
21 there’s a single lane of travel in each direction
22 and then there’s a paved shoulder on the right side
23 of — well, strike that.
24 There’s a travel lane going in each
25 direction and then next to each travel lane there’s
1 a paved shoulder; the paved shoulder is at varying
2 widths. Is that correct?
3 A. Correct.

Easy stuff done, now on to the harder stuff.

4 Q. All right. I’m going to read a statute
5 here. NRS 484B.297(2). It starts: Except as
6 otherwise provided in subsection six – well, what
7 does subsection six says? It says: A pedestrian
8 walking or otherwise traveling on a sidewalk who
9 encounters an obstruction to his or her mobility on
10 the sidewalk, including, without limitation, a
11 short section of the sidewalk that is missing or
12 impassable, may proceed with due care on the
13 immediately adjacent highway to move around such an
14 obstruction.
15 Well, you and I agree that [Pedestrian] was
16 a pedestrian. Right?
17 A. Yes.
18 MS. [Opposing Counsel]: Object to form and foundation.
19 Q. We agree there’s no sidewalk in the area.
20 Correct?
21 A. Correct.
22 Q. So subsection six doesn’t apply.
23 Let’s go back to subsection two. Except as
24 otherwise provided in subsection six, pedestrians
25 walking along highways where sidewalks are not
1 provided shall walk on the left side of those
2 highways facing the approaching traffic.
3 So again, you and I agree that [Pedestrian]
4 at the time of the accident happened was a
5 pedestrian?
6 A. Yes.
7 Q. We agree he was walking along a highway?
8 A. Yes.
9 Q. And we agree there are no sidewalks in that
10 area.
11 A. Correct.
12 Q. So in that instance [Pedestrian] should have
13 walked on the left side of that highway facing the
14 approaching traffic.
15 MS. [Opposing Counsel]: Object to form and foundation.
16 Q. So in this situation on this roadway, that
17 means [Pedestrian] should have been on the western
18 side of the road which would be the southbound
19 lane. Correct?
20 MS. [Opposing Counsel]: Object to foundation.
21 A. If we were to assume he’s walking
22 northbound, the left-hand side would be on the
23 west; if he was walking southbound, the left-hand
24 side would be on the east side of the roadway.

Interesting.  If we “assume” he’s walking northbound?  If he wasn’t walking northbound then what direction was he going?

25 Q. Based upon the information you have
1 [Pedestrian] was walking northbound when the accident
2 happened?
3 MS. [Opposing Counsel]: Object to foundation.
4 A. My understanding from [Driver]’s deposition
5 testimony is the statement that he believed that
6 [Pedestrian] was walking northbound; however, when asked
7 for bases for the direction that [Pedestrian] was
8 walking, at least in his deposition, [Driver]
9 indicated that it was based on how [Pedestrian]’s body
10 was oriented at final rest, which is not a reliable
11 method for determining impact direction.
12 Q. Do you know which direction [Pedestrian] was
13 walking when the accident happened?

20 A. I acknowledged [Driver]’s testimony;
21 however, the evidence that we have in terms of the
22 evidence at the scene on the vehicle doesn’t
23 indicate either way. So when we’re looking at the
24 evidence it’s not dispositive.

Um, k.  So you don’t know which way Pedestrian was walking?  Well, there are only two options.  Either he’s northbound and on the wrong side, or he’s southbound and… OMG this is going to be awesome.

2 If [Pedestrian] was walking northbound he
3 should have been on the western side of the road
4 which is the southbound lane. Is that correct?
5 A. My interpretation of the statute that
6 you’ve read would indicate that that would be in
7 compliance with the statute.
8 Q. If he’s complying with the statute, it says
9 on the left side of those highways, could we both
10 agree it’s probably safer for him to walk on the
11 shoulder instead of directly in the travel lane?
12 A. Typically —
13 MS. [Opposing Counsel]: Object to form.
14 A. That would be my recommendation typically.
15 Q. Okay.
16 A. And just acknowledge here so it’s clear, I
17 firmly believe there’s no evidence as to
18 [Pedestrian] walking in the lane of travel as is
19 indicated by [Driver’s expert] and in the police report.
20 Q. So if [Pedestrian] is walking northbound and
21 is complying with this statute he would be on the
22 western side of the road preferably walking on the
23 shoulder. Correct?
24 A. Under those assumptions, correct, that’s
25 how I would interpret the statute. Of course
1 that’s not my role here is not to interpret Nevada
2 statutes.
3 Q. So if [Pedestrian] is complying with this
4 statute and is walking northbound on the western
5 side of the road and he would be at least 12 feet
6 away from the northbound lane that [Driver] was
7 using. Correct?
8 MS. [Opposing Counsel]: Object to form, assumes facts
9 not in evidence.
10 A. Can you say that one more time?

20 Q. If [Pedestrian] was walking northbound on
21 [road] in the area where this accident
22 occurred and he was complying with this statute he
23 would be walking northbound on the western side of
24 the road on the shoulder. Can we agree on that
25 much?
1 A. Under those assumptions that’s my
2 interpretation, yes. And if he were to walk in the
3 opposite direction, the opposite would be true.

Pithy answer, but you haven’t thought its logical consequences to their end.  Ignorance is bliss, so just keep blissfully walking down this path with me…

4 Q. Exactly. If he was doing all of this, if
5 he was walking northbound that would place him at
6 least 12 feet away from the northbound lane that
7 [Driver] was driving in. Right?
8 A. So that’s a long way of asking me how wide
9 the southbound lane is?· Approximately 12 feet.
10 That’s correct.
11 Q. And if in the area where this accident
12 happened the shoulder was six feet wide as NHP
13 measured, [Pedestrian] could be up to 18 feet away
14 from the northbound travel lane. Correct?
15 A. Correct.
16 Q. Now, since we don’t know what direction he
17 was walking, if he was walking southbound he should
18 be walking – under that statute – in the shoulder
19 of the northbound lane. Correct?
20 A. That’s my interpretation.

Just a little further…

21 Q. And he would be facing the approaching
22 traffic. Correct?
23 A. The northbound traffic, correct.
24 Q. [Driver’s Vehicle] is in the northbound
25 traffic. Right?
1 A. Yes.
2 Q. If that’s what happened in this case, that
3 means [Pedestrian] would have hit [Vehicle] face
4 first. Correct?
5 A. Well, that’s the orientation he would be
6 walking toward. Now, at the moment of impact I
7 can’t tell you dispositively whether it’s going to
8 be a face-first impact. Certainly there could be a
9 change in orientation.
10 Q. If [Pedestrian] was walking southbound in
11 the northbound shoulder like the statute says he
12 should have been, would he have been able to see
13 the oncoming [Vehicle]?
14 A. At some point correct, yes, he would.

A visual may help to understand why this line of questioning was entertaining to me.  Figure 2 above showed what NRS 484B.297(2) dictated should happen if Pedestrian had been northbound.  He would have been between 12-18 feet away from Driver’s Vehicle, so the collision never happens.  But Accident Recon refused to concede Pedestrian was northbound.  The problem for Accident Recon was that if Pedestrian was southbound, and following the statute, the scene would have looked like below.  Yellow = Driver; Red = Pedestrian.

This makes a difference because remember that Accident Recon thought he was a human factors expert too.  But if Pedestrian was southbound, and following the statute, could you please explain exactly why Pedestrian could not see oncoming traffic?

15 Q. Would he have able to hear it?
16 A. It depends.
17 Q. On what?
18 A. How loud it is, how loud the background
19 noise is, if there’s ambient noise in the area.
20 Q. Like if he was using headphones?
21 A. That would make a difference.
22 Q. Did you ever get a chance to look at
23 [Pedestrian]’s cell phone?
24 A. No. Other than photographs.
25 Q. Fair. I appreciate that. You never
1 actually got a chance to examine the data that were
2 on it. Correct?
3 A. Correct.

Thanks for lending your support to the spoliation motion, I appreciate it. I’ll discuss this in the next post.

4 Q. So if [Pedestrian] is walking northbound and
5 he’s following this statute, this accident never
6 happens. Correct?
7 MS. [Opposing Counsel]: Object to form.
8 A. That would assume that the accident
9 happens in the northbound lane.
10 Q. Do you have any evidence that it happened
11 in the southbound lane?
12 A. The same amount of evidence it happened in
13 the northbound lane which is no; I could tell you
14 where the north/south position of impact is
15 roughly, but the east/west position, there’s no
16 physical evidence to indicate.
17 Q. Do you believe that the accident happened
18 in the southbound lane?
19 A. I do not.

Then why are you fighting about this?

20 Q. Where do you believe it occurred?
21 A. I believe it likely occurred — I guess I
22 will back up just a second.
23 In terms of southbound lane versus
24 southbound shoulder; no, I don’t believe it
25 occurred in that area. I believe that based on the
1 orientation of the vehicle of impact, how far it
2 traveled after impact, the fact that it’s turned to
3 the left slightly, and then based on where
4 [Pedestrian] is found that most likely occurred in the
5 shoulder of the roadway near the fog line but there
6 just isn’t a telltale piece of evidence that can
7 point down that location dispositively.
8 Q. So the fog line you’re talking about is the
9 fog line between the northbound travel lane and the
10 northbound shoulder?
11 A. Yes. The shoulder on the east side of the
12 road.
13 Q. All right. So again, if [Pedestrian] was
14 following the statute that says pedestrians walking
15 along highways where sidewalks are not provided
16 shall walk on the left side of those highways
17 facing the approaching traffic, this accident
18 doesn’t happen. Correct?
19 A. If you’re assuming he’s walking
20 northbound.
21 Q. Correct.
22 A. Now that’s an assumption that we have to
23 make, and there’s no evidence as to what direction
24 that he’s walking.

It can’t be both ways buddy. You said it wasn’t southbound, but now you’re saying you don’t know?

25 Q. So let’s assume that he’s walking
1 northbound. If he is walking northbound and
2 following the statute, this accident never happens.
3 Correct?
4 A. The way I interpret the statute would be
5 — if you’re asking me does the statute say if
6 you’re walking northbound that you are to – or at
7 least it’s recommended, I don’t know the verbiage –
8 to be on the west side, I would agree with that.
9 That’s my interpretation. But that’s not my role
10 to weigh in on Nevada law.

Thank you.  Accident Recon agrees if Pedestrian followed statute, collision never happens.  That is a win, but I kept going.  There were other areas for examination that needed to be covered because who knows how a court will rule on objections.

Next I addressed Accident Recon’s toxicological opinion.  I thought it was inadmissible, but if the judge let it in, we needed to be ready.  So I asked Accident Recon about another statute, this one dealing with impaired pedestrians.

17 It says: In a report
18 [Toxicologist] listed positive findings in the
19 blood samples taken from [Pedestrian]. The
20 peripheral blood samples contained
21 11-hydroxydelta-9 THC at a level of one nanogram
22 per milliliter, delta-9-carboxy THC at a level of
23 18 nanograms a milliliter, and delta-9 THC at a
24 level of 4.3 nanograms per milliliter.
25 Now, NRS 484 B.2974 says: It is unlawful
1 for any pedestrian who is under the influence of
2 intoxicating liquors or any narcotic or stupefying
3 drug to be within the travel portion of any
4 highway.
5 You and I already agree that [Pedestrian]
6 was a pedestrian when this accident happened.
7 Correct?
8 A. Correct.
9 Q. And he’s within the travel portion of a
10 highway when the accident happens. Correct?
11 A. I disagree.
12 Q. Okay. Why?
13 A. For the same reason I just identified
14 earlier, that based on the location of [Pedestrian]
15 in the center of the northbound travel lane
16 combined with the orientation of [Vehicle],
17 which is oriented slightly to the left
18 with respect to the roadway at final rest, that
19 would indicate that [Vehicle] is moving from the
20 area of the shoulder, the northbound shoulder as I
21 believe you referred to it, toward the center line
22 of the roadway as it is coming to final rest. That
23 would be a trajectory coming from the shoulder to
24 final rest. In order for that trajectory to match
25 up with where [Pedestrian] is located in the lane
1 would suggest that the impact occurred closer to
2 the shoulder, in the shoulder, near the fog line,
3 we can’t say dispositively because there’s not a
4 shoe scuff mark. But there’s absolutely not a
5 shred of evidence to indicate that this tragic
6 accident happened with [Pedestrian] in the
7 northbound travel lane. There just isn’t.

Dear Expert Witnesses: Don’t debate statutes with a lawyer, especially one who is deposing you.  If you do, you are fighting a battle on their turf, on their rules.  The odds of success are remote.  Don’t do it.

8 Q. So you distinguish between the northbound
9 travel lane and the northbound shoulder when it
10 comes to the part of the statute that says the
11 travel portion of any highway. Is that correct?
12 A. That’s my interpretation. And just the
13 way that the previous statute that you read about
14 the pedestrian travel I believe distinguishes the
15 two.
16 Q. If within the statute the travel portion of
17 any highway refers both to the shoulder and the
18 travel lane, should [Pedestrian] have ever even been
19 out there given the narcotic drug in his system?
20 A. I think I have to revisit the previous
21 statute that you read about pedestrian movements
22 and allowable areas of walking because I believe
23 there was a distinction that was made between the
24 travel lane, the travel portion of the roadway, and
25 the shoulder. So my sense is that there’s a
1 distinction that’s made there and I have to look at
2 those two statutes carefully.
3 Q. Sure. So I’ll read NRS 484B.297(2) again.
4 I’ll skip the intro part because we know that
5 subsection six doesn’t apply.
6 It says: Pedestrians walking along
7 highways where sidewalks are not provided shall
8 walk on the left side of those highways facing the
9 approaching traffic.
10 Does that statute distinguish between the
11 travel lanes and the shoulders?
12 A. What you just read, not in my
13 interpretation.
14 Q. So again, we go back to subsection four.
15 It is unlawful for any pedestrian who is under the
16 influence of intoxicating liquors or any narcotic
17 or stupefying drug to be within the travel portion
18 of any highway. We agree that [Pedestrian] is a
19 pedestrian. Whether he’s struck on the western
20 side of the fog line in the northbound lane or the
21 eastern side of the fog line in the northbound
22 lane, he’s within the travel portion of a highway.
23 Correct?
24 A. I would disagree. I have to look at
25 the — I’m sure that the Nevada statutes, the NRS,
1 has a definitions page or pages, several pages that
2 we could look for what travel portion is and then
3 that would be my best way to identify that. But
4 from the way you’ve read it my interpretation
5 without seeing those definitions would be no, the
6 travel portion would be the travel lane within the
7 boundary between the fog line and the center line
8 of the roadway.
9 Q. I understand your disagreement. Let’s
10 assume for a second. If wherever he was struck was
11 within the travel portion of any highway and he had
12 these drugs in his system, he should never have
13 been there in the first place. Correct?
14 MS. [Opposing Counsel]: Object to the form.
15 A. Again, the best I can interpret this
16 statute is that this relates to the travel lane of
17 a highway. If you’re hypothetically asking me if a
18 sidewalk is a travel lane, then I guess I could
19 make those types of assumptions, or the shoulder.
20 But I have no basis to make that assumption. And
21 like I say, the best interpretation I could give
22 you would be if you allowed me the opportunity to
23 review the definitions contained within the code.
24 Q. How many auto accident cases have you dealt
25 with in your career?
1 A. I don’t have a count. Thousands.

I’m having fun.  You are an accident reconstructionist but you don’t know what part of a road is within the travel portion of the highway?

Switching topics again, if Accident Recon presumably won’t admit he should have checked the statutes before forming his opinion, what might he say as a CYA?

4 When you are evaluating a case do you need
5 to investigate the statute that might apply to that
6 case so you can establish what those — the people
7 involved should have been doing at the moment of
8 impact?
9 A. I look at it a little bit different. My
10 role as reconstructionist is to look at the
11 physical evidence or the evidence in general,
12 physical evidence, electronic evidence, sometimes
13 video evidence, the indisputable facts, and then to
14 apply the laws of physics to the evidence and as
15 best as I can do reliably make a determination as
16 to how an event unfolded if that’s possible. And
17 then I can compare that reconstruction with
18 testimony or statements or my interpretation of a
19 statute, but that isn’t how I approach it. That’s
20 not how I approach on the front again.
21 Q. So you’re accident reconstruction, the goal
22 is to determine what did happen. Correct?
23 A. And sometimes investigate hypothetical
24 scenarios.
25 Q. As part of an accident reconstruction after
1 you determine what did happen based on the evidence
2 available to you, do you compare your findings to
3 the statutes that say what should have happened?
4 A. Oftentimes I do. At least the best as I
5 can interpret. In the end I don’t believe that
6 it’s my role, nor do I believe I would be permitted
7 to say whether someone violated a statute.
8 Q. Would it have been important for you to
9 consider NRS 484B.297 subs 2, 4, and 6 in preparing
10 your reports in this case?
11 A. No. My reports speak for themselves in
12 terms of my reconstruction.


13 Now if someone wants to take my
14 reconstruction results and argue in front of a
15 judge or in front of a court or an jury that the
16 reconstruction results indicate that it violated or
17 complied with a certain statute, that would be
18 something that could be done and I could make
19 comparisons but that doesn’t influence the
20 reconstruction work.
21 Q. Did you consider this statute at all in
22 performing any of your reconstruction or
23 evaluations in this case?
24 A. Like I just mentioned, my reconstruction
25 is based on the physical evidence and evaluating
1 some hypothetical scenarios and potential
2 alternative scenarios, but it’s not based on a
3 statute.

Deflecting the question isn’t going to work.

4 Q. The question was: Did you consider this at
5 all in anything that you’ve done in this case?
6 A. Consider it in which way?


7 Q. Have you considered this statute at all in
8 preparing anything in this case up until this very
9 moment?
10 MS. [Opposing Counsel]: Object to form.
11 A. I haven’t looked at this particular
12 statute, nor has it been important for me to do so
13 to answer the questions that I’ve answered or
14 addressed in this matter.

Wait, you’re blaming Driver for exceeding the speed limit and driving while impaired, both barred by statute, but if Pedestrian was doing two things barred by two different statutes, its unimportant? In determining what happened you didn’t even consider what your client was supposed to do? Wait, were you even asked to consider blaming anyone for this accident other than Driver?

15 Q. Were you asked in this matter to evaluate
16 [Pedestrian]’s role in this case at all?
17 A. I was simply —
18 MS. [Opposing Counsel]: Object to form.
19 A. My recollection is I was simply asked to
20 reconstruct the event and to determine to the best
21 of the ability based on the evidence to determine
22 what happened, how the incident unfolded.
23 Q. So your goal is to objectively determine
24 what happened regardless of blame. Is that your
25 understanding?
1 A. Well, I would phrase it a little bit
2 differently. I do it the same way I phrased it a
3 moment ago. My objective is to look at the
4 evidence and identify based on the evidence and the
5 laws of physics and principles of accident
6 reconstruction what the most likely scenario is.
7 Now if you want to compare that with a
8 statute, that’s fine. Whether you compared it with
9 a statute or not, that doesn’t change the
10 reconstruction results.
11 Q. So you conclude that [Driver] was negligent
12 and caused the accident. Why did you not consider
13 whether [Pedestrian] contributed to this accident at
14 all?
15 MS. [Opposing Counsel]: Object to form; misstates his
16 testimony.
17 A. You have to show me where — what you’re
18 referring to in any of my reports where…
19 Q. Have you finished your answer? I’m sorry.
20 A. I can’t remember the exact verbiage that
21 you used. But if there’s a particular conclusion
22 that you want me to address, I can do that.
23 Q. Do you conclude anywhere in any of your
24 reports that [Pedestrian] had a contributory role in
25 causing this accident?
1 A. I don’t believe that that’s what I’ve done
2 in this matter. I haven’t addressed liability.
3 I’ve addressed how the accident could have been
4 prevented and that there were speed issues.
5 [Driver] was traveling far in excess of the
6 distance that his headlights — excuse me, the
7 allowable speed limit. And I did not find that
8 [Pedestrian] contributed, I guess is what you’re saying.
9 I didn’t reach that finding. I don’t believe the
10 evidence supports that finding.
11 I think the evidence supports that [Driver]
12 and his driving speed in particular and perhaps
13 his response time being delayed is what was a
14 direct cause of this accident.

“I haven’t addressed liability.”  You didn’t?  Then why did you just give that answer?

15 Q. So if I understand you correctly, it’s your
16 opinion that [Driver] alone is one hundred percent
17 responsible for this accident. Correct?
18 A. Based on what the evidence shows that it
19 doesn’t — I do not see a specific conclusive
20 negative role that [Pedestrian] played in this
21 accident. There’s no indication that he was —
22 that he was walking in a travel lane. There’s no
23 indication – in fact, the evidence indicates that
24 he did not walk from the shoulder into the travel
25 lane. There’s no indication that he was walking
1 the wrong direction along the shoulder of the road.
2 Perhaps if there’s a statute out there that I
3 haven’t — that you haven’t mentioned we can
4 compare. But again, that’s what I’ve determined.

So you testified before that if Pedestrian had followed the statute, the accident would not happen.  But now “I do not see a specific conclusive negative role that [Pedestrian] played in this accident.”  You really don’t see the correlation?  Here, let me draw out for you what would have happened if Pedestrian had followed the statute.

5 Q. Well, there are two scenarios here. If
6 he’s walking northbound, we’ve already talked about
7 how he should be on the western shoulder which is
8 the southbound shoulder and he would be facing
9 approaching traffic. Correct? That’s one
10 possibility.
11 A. Yes.
12 Q. And you’ve already told me that you have no
13 indication that the collision between [Pedestrian]
14 and [Vehicle] occurred on the western half of
15 the roadway, which would be the southbound
16 direction. Correct?
17 A. Correct.
18 Q. So if [Pedestrian] was on the eastern side
19 of the roadway, meaning the northbound section, and
20 he was following that statute and walking
21 southbound, he would have been facing [Vehicle]
22 the whole time. Correct?
23 A. Assuming that he didn’t turn around.

You didn’t think that answer through either, which leads to the next question.

24 Q. Was he walking backwards?
25 A. No, that’s not what I’m saying. He could
1 walk toward someone and then you can turn. So he
2 would be approaching walking in a direction of the
3 northbound traffic. I’m making a distinction here
4 that it doesn’t mean that he’s necessarily facing
5 that direction the entire time. There’s no
6 evidence either way, but I’m not going to introduce
7 evidence that doesn’t exist. So all those are
8 possibilities.
9 Q. So if he was on the northbound side of the
10 roadway and he was walking southbound he would have
11 been facing [Vehicle]. Correct?
12 A. At some point in time, correct.
13 Q. So why didn’t he get out of the way?
14 A. Well, now you’re taking a possibility and
15 you are now saying we accept that. What we do know
16 is approximately where [Pedestrian] was and we do know
17 that [Driver] was speeding and we do know that he
18 didn’t react in time. In fact, there’s no evidence
19 he applied heavy braking before striking
20 [Pedestrian]. Those are things that we do know.
21 Now we’ve identified some different
22 possibilities on orientation and positioning of
23 [Pedestrian]. And there simply isn’t evidence one way or
24 another to conclusively identify which exists,
25 which scenario is more likely than not.
1 Q. Based on the — strike it.
2 If [Pedestrian] had struck [Vehicle] face
3 first – are you with me?
4 A. I am.
5 Q. If he had struck it face first, would you
6 expect to find injuries and contusions to his face?
7 A. It depends.
8 MS. [Opposing Counsel]: Object to foundation.
9 A. First of all, I will say that just because
10 — if we assume for a moment he’s walking
11 southbound, doesn’t mean that he will strike the
12 vehicle face first. But if we make the assumption
13 that he’s walking southbound and he never turns,
14 then there is a likelihood that you would expect
15 injuries to the face.
16 Now if he turns, which if we’re going to
17 take the hypothetical which might be a realistic
18 expectation that he turned to his side, then no,
19 you wouldn’t necessarily see facial fractures.
20 Although, I believe we do have a broken nose, if I
21 remember correctly.
22 Q. If he struck [Vehicle] under the
23 assumption that it was face first, would he —
24 strike that.
25 You saw his autopsy photos?
1 A. I did.
2 Q. Where was the road rash to his body?
3 A. It was really in various areas. It was on
4 his arms, on his shoulders, on his face, on his
5 chest.
6 Q. Was it in front of him or the back of him?
7 A. There is road rash on the front. There’s
8 also what appears to be an indication of
9 interaction with the vehicle on his – I believe his
10 front left or left anterior aspect of his hip and
11 abdomen area.

Meaning he didn’t get hit face first.

The End

I spent another few hours with Accident Recon, but none were as productive as the first 30 pages.  How would he have come across at trial?  Others may disagree with me, but I thought Accident Recon’s deposition was positive for my clients.  To me, he was now a liability to Pedestrian.  Pedestrian may not have been able to escape a directed verdict without Accident Recon, but putting him on the stand would only lead to another disaster.  Pedestrian had no good option on that front.