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©1990, 1997, John S. Allen
|Fortunately, the percentage of bicyclists involved in serious accidents is small. But
when accidents happen, someone has to pick up the pieces, and I help do that. I know more
about bicycle accidents than you probably ever want to, because I work as an expert
witness in bicycle accident lawsuits.
I became an expert witness as an occupational hazard of writing about bicycling. Lawyers saw my name in books and magazines, and began to call me up. They pay me by the hour. The work comes sporadically, though it pays well.
An expert witness applies specialized knowledge to advise a lawyer, and then may be called to testify under oath. Unlike a fact witness, an expert witness is permitted to express an opinion. Take this case as an example:
A number of years ago, the contractors who built the McDonald's in one small town installed a trench drain covered by 18 rectangular gratings side by side across the driveway entrance. Problem is, there were a couple of inches of extra space between the gratings. As cars rolled over them, they would shift sideways like the sliding number square puzzles you had as a kid.
At most times, there were several narrow gaps between different gratings, but on one unfortunate day, the extra space formed into a single gap nearly two inches across.
|Blinded by the setting sun, a bicyclist, a middle-aged salesman out for an evening
ride, put his front wheel into the gap, up to the hub. He spent three months in the
hospital and suffered permanent,disfiguring injuries to his face.
The bicyclist's lawyer negotiated a settlement. The architect and contractor now have stiff insurance bills every year, you also pay for this case a little bit every time you buy a McDonald's hamburger. That may disturb you, but does compensate the victim and focus attention on safe storm grate design.
In this case, my principal role was as adviser to the attorney. I asked the attorney to have a car driven along the bicyclist's route, at the same day of the year and same time of day as the accident. A video camera operator in the passenger's seat recorded the sun's glare off the storm grates. The videotape demonstrated that it would have been very difficult to see the gap between the grates.
To a certain extent, the expert's roles as adviser and as witness are in conflict, because the expert must help to develop a strategy to win a case, but must also give impartial testimony. The balance of justice is achieved, at least in theory, because experts swear to tell the truth and because each party to a lawsuit hires an expert. Let's look at how this works in connection with another case:
An old woman stands in a courtroom, bent with age and grief. She had two daughters, but now she has only one. One dark winter evening two years ago, her younger daughter, a doctoral student, was riding home on her bicycle. A teenage boy riding another bicycle on the left side of the road struck her head-on. The teenager suffered bruises and scrapes. The young woman was killed. Neither bicyclist had a working headlamp.
The teenager on the mountain bike had no financial resources or insurance, and the mother's lawyer has sued the manufacturer of her daughter's bicycle on grounds that the owner's manual did not recommend helmet use, and the drop handlebars were "defective" because they kept the daughter from holding her head up to see where she was going.
Assisting the bicycle manufacturer's lawyers, I point out that the law requires headlamps and that the 300 yards the young woman had ridden were hardly far enough to get a sore neck.
Though the young woman's bicycle had drop handlebars, a bicycle company executive looks into company records and confirms that the handlebars and brake levers were of a brand never supplied with its bicycles. He also testifies that this model of bicycle was always wholesaled with flat handlebars. The bike shop must have installed the drop handlebars. The handlebar claim is dropped.
Nobody on either side argues that the "leather hairnet" bicycle helmets available in 1971 were effective, but the mother's expert points out that a football helmet, hockey helmet or motorcycle helmet would have protected the daughter. I show how these types of helmets are too heavy, or unventilated, or cover the ears, or make it hard to turn the head. The bicycle manufacturer would have been foolish to recommend them.
Rather than to put the helmet issue before a jury, the bicycle manufacturer pays the mother a substantial sum, but still much less than her multimillion dollar claim based on the young woman's projected future earnings.
Everyone walks away less than completely satisfied. No amount of money could still the mother's grief; the insurance company has to pay for the settlement and for legal expenses. The bicycle manufacturer's insurance rate will go up. Yet everyone has been heard, and a resolution has been reached.
Most accident lawsuits, like this one, involve a death or serious injury, events which lead to powerful feelings of grief, anger and sometimes guilt. I am an honest expert, as most are: that's the only way that I can continue to be a credible witness from one case to another. I must also be honest to live with myself and still tell distressed people that they may not be able to hold someone else responsible for their misfortune.
I have met a few experts who will say what they are paid to, or who put a spin on the evidence. Often, these experts work for a single insurance company. Lack of impartiality is the usual reason for news reports that plaintiff's and defendant's experts had widely different opinions.
The public image of the legal process is colored by news reports of such disagreements, and by TV courtroom dramas. The reality is much less dramatic. In fact, most lawsuits never go to trial. I give most testimony in depositions -- pretrial question-and-answer sessions which give the lawyers a chance to find out what the experts on the other side think. After the depositions have been taken in a case -- sometimes even before -- the lawyers and their clients will usually "settle" the case by mutual agreement. They agree on a sum of money to be paid, and the plaintiff agrees not to sue again.
If the case is not settled and there is to be a trial, nobody knows when it will happen. A trial can be postponed for a month on an hour's notice if a previous trial runs longer than expected. The lawyers and their clients may even decide to settle the case during a trial, and send me home after I have traveled halfway across the country to testify.
One reason that expert witness work pays well is that it requires a flexible work schedule. My writing career meshes well with the consulting. Tenured university professors can get away with a certain amount of expert witness work without losing their jobs, and are in demand due to their credentials. Don't get me wrong about the good pay: because expert witnessing is not steady work, it's no way to get rich.
There can be an element of pride in the work. Some hazardous components such as top-tube shift levers have been driven off the market by lawsuits, which are a powerful force in improving industry standards and government regulation.
On the other hand, there are "damned if you do and damned if you don't" hazards: for example, the weight vs. performance tradeoff in the design of any bicycle and the price vs. performance tradeoff with cheaper bicycles. When the issue in a lawsuit is frame failure or wheel collapse, the expert must determine whether the part was defective, or whether it was subjected to abuse. The dividing line between these categories is not sharply defined. Except with the cheapest bicycles, correct use and maintenance of equipment, rather than design, is most often the central issue in avoiding mechanical failure. Warnings and instructions in owners' manuals help protect manufacturers against lawsuits, but these are no substitute for the owner's awareness of good bicycling practice.
Many lawsuits result from outright misconceptions about design tradeoffs. Bicycle manufacturers spend a lot of money defending against lawsuits over false issues, and sometimes lose these cases because a jury may share the plaintiff's misconceptions.
For example, many people believe that riding with toeclips is dangerous because you can't get your foot out fast enough. In fact, toeclips actually prevent many crashes by keeping a foot from slipping off a pedal. In a serious crash, there's rarely if ever time to plant a foot on the ground. In Europe, toeclips are regarded, with reason, as safety equipment.
Common misconceptions often also color lawsuits over hazards in the riding environment. Let's look at another case now:
A twelve year-old girl rides out into a road from a bike path and is struck by a car. She suffers a concussion, among other injuries, and does not remember the accident. Her lawyer proposes that a "bicycle maze" should have been placed before the intersection to make bicyclists slow down and look for cars.
Actually, as I point out, the accident had at least four possible causes: the girl might have failed to see the intersection; she might have failed to see the car; her brakes might have failed; or the chain might have come off as she tried to accelerate. Unfortunately, I can't tell which, and that doesn't make for much of a lawsuit.
This case still teaches some lessons. We require motorists to yield to children walking in school crossings, and these are the same children who use the bicycle path. If the bicycle path is supposed to be a safe place for children to ride, shouldn't the motorists be required to yield to the bicyclists, rather than the other way around?
If bushes around the intersection had been cleared back, couldn't the bicyclist and the motorist both have seen each other sooner, possibly avoiding the accident? Warning stripes on the bike path before intersections would alert even bicyclists riding head-down.
Bicyclist education and bicycle maintenance might also have prevented the accident. But a "bicycle maze" would be one thing a heads-down bicyclist is guaranteed to run into, and a distraction to the heads-up bicyclist. I tell the lawyer that he is wrong to suggest a bicycle maze, but he doesn't want to hear me and goes looking for another expert.
As this case shows, lawsuits can not always address all of the problems which lead to an injustice. A lawsuit can not do much to educate bicyclists; though it can help educate public officials. Lawsuits don't work perfectly for anyone involved, or for the public at large, since lawsuits are the work of human beings with varying motives and awareness.
Lawsuits also can create financial inequities and pressures. A plaintiff's lawyer typically takes a substantial fraction -- usually 1/3 -- of any settlement. If the case is lost, the plaintiff owes only a couple of thousand dollars for out-of-pocket expenses -- court filing fee, experts' fees, and other incidentals. This "contingent fee" system makes it possible for plaintiffs without large financial resources to file lawsuits, but can thwart justice by encouraging plaintiffs' lawyers to inflate claims and to take on potentially lucrative but flimsy cases. At the risk of annoying some lawyers I work for, I am of the opinion that there should be a sliding scale on contingent fees to reduce these problems.
Defense lawyers charge by the hour, and are usually paid by an insurance company rather than by the defendant. The insurance company will usually settle a lawsuit if trying the case to trial would cost more. A plaintiff seeking vindication can then be left with an empty feeling and a pocket full of cash.
Governments must insure against lawsuits. Your tax bills reflect this. Bicycle clubs sometimes must cancel rides and rallies because of insurance costs. Insurance raises the cost of bicycle equipment -- insurance adds ten dollars to the cost of a typical bicycle helmet, an effective means to prevent serious injury but an easy target for lawsuits when it fails. Some equipment manufacturers and bicycle dealers have even been forced out of business by lawsuits or by insurance costs. In these ways, lawsuits can impose burdens, both fairly and unfairly.
Despite all of these problems, the right to sue is fundamental to a democratic society. It allows some restitution for injuries. It holds individuals, businesses and government agencies responsible for their conduct. It also sometimes allows the unjustly accused to vindicate themselves. The abuses which occur in lawsuits are small compared with the unrestrained abuse of power when there is no redress.
But the best policy for you -- for anyone -- is to avoid suing or being sued. I say this even though it could mean less business for me as an expert. The best defense for a business is to sell good products and to inform its customers carefully. The best defense for a bicyclist is to learn how to operate a bike expertly; keep it in top mechanical condition; ride within the law; and use required safety equipment such as lights.
And please wear your helmet. You'd really rather avoid an accident, or walk away from one, than have your survivors win a million-dollar judgment.
But if you need it, the justice system is there to serve you. As an honest expert witness, I hope to serve justice and help heal disagreements. Expert witness work is interesting, challenging work. Unlike my writing, though, it is not creative work; rather, it is picking up and patching up when disasters have happened.
The income from my expert consulting lets me spend time on other projects close to my heart, like my writing and my advocacy work. Helping win compensation for someone who deserves it, vindicating a blameless person or business, and helping to propel a real improvement in bicycling equipment or the bicycling environment are things I also can feel good about, but I sincerely hope that you never have to call on me!
Note: The cases described in this article have been fictionalized, with the exception of the case of the doctoral student, which is a matter of public record.
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Contents © 1990, 1997 John S. Allen
Last revised 19 January 2002