Brett Weiner Brett.Weiner@gmail.com VERBATIM “EXPERT WITNESS” Based on Nungesser v. Bryant Kansas District Court Case No. 03 CV 00049 GRAPHIC: In 2004, a motorcyclist in Kansas sued a driver who collided with him. He also sued the driver’s insurance company. GRAPHIC: The insurance company hired an expert witness to testify for the defense. PLAINTIFF LAWYER (V.O.) What is an accident reconstructionist? 1 INT. CONFERENCE ROOM - DAY 1 THE WITNESS (male, no-nonsense former cop), hands folded together sits at a conference. Near him is an easel, with blown up posterboards of road diagrams. Across from him, PLAINTIFF LAWYER (male, sharp) pulls documents out of a briefcase. Beside Plaintiff Lawyer are CLIENT DEFENSE ATTORNEY (male, 40’s) and INSURANCE DEFENSE ATTORNEY (male, 40’s). The VIDEOGRAPHER in headphones (late 20’s/early 30’s) silently films behind a slightly outdated consumer camera. WITNESS It’s a person who mathematically assesses usually traffic accidents and applies known formulas and physics laws to the occurrences that happen, and usually what it boils down to in the final draw is an assessment of time and distance on the sequence or the events that occurred during the accident. GRAPHIC: The following scene is from the transcribed deposition of that expert. GRAPHIC: Every word is presented verbatim. PLAINTIFF LAWYER (V.O.) How far do you measure that distance to be where the arc goes over that pencil line that you — from the stop bar to the point where it crosses that vertical line? WITNESS (V.O.) Three and three-sixteenths inches. CUT TO: 2 INT. CONFERENCE ROOM - LATER 2 Plaintiff Lawyer shows off a diagram, using a laser pointer to illustrate a curve. PLAINTIFF LAWYER And that is — and when you convert that from the scale, what does that convert to? Witness doesn’t miss a beat. WITNESS 68 feet approximately, sir. Plaintiff lawyer puts his pad on the table with a THUMP. PLAINTIFF LAWYER What are the numbers? WITNESS Three and three-sixteenths. PLAINTIFF LAWYER Okay. Well, here, run it out for me. WITNESS Run it out? Plaintiff Lawyer passes Witness a calculator. PLAINTIFF LAWYER Yeah, calculate it for me. Witness looks at the calculator in his hand. His finger hovers over the keypad. He presses a few keys. His finger goes back to hovering. Beat. WITNESS And again, I do this on the computer. PLAINTIFF LAWYER You can’t do it, can you? WITNESS Not without my formulas in front of me, no, sir. I can’t do it from my head. He puts down the calculator close to the Plaintiff Lawyer. 2. PLAINTIFF LAWYER You’re not able to do a simple scaling problem with a calculator? WITNESS I don’t wish to. I don’t wish to make any mistakes. I use instrumentation that does it exact. PLAINTIFF LAWYER You can’t show us a formula based on the numbers you just gave me that will spit out a 68-foot distance, can you? WITNESS Not here today, I can’t, no. PLAINTIFF LAWYER And you don’t know how you did it? WITNESS Oh, I know how I did it, sir. I can— PLAINTIFF LAWYER Well, then show me how you did it. Plaintiff Lawyer pushes the calculator towards Witness. Beat. WITNESS No. I can’t show you without the formula sheets that I need to do it with. PLAINTIFF LAWYER Well, what are the formula sheets that you need? What formula do you need other than to know that the scale is 1:20? WITNESS To convert the 20-foot down to the sixteenth of an inch measurements. PLAINTIFF LAWYER You don’t know how to do that? 3. WITNESS I’m not prepared to do it without my formula sheets directly here in front of me. I’m not going to guess at anything. PLAINTIFF Isn’t that about an arithmetic problem? INSURANCE Objection. Form. LAWYER eighth grade DEFENSE ATTORNEY WITNESS No. I’m not going to do it without my formula sheets, sir — PLAINTIFF LAWYER Would you try? WITNESS — for exactness. No. Plaintiff Lawyer turns to Client Defense Attorney. PLAINTIFF LAWYER Would you instruct your expert witness to try, Mr. Powers. CLIENT DEFENSE ATTORNEY The witness has answered your question. What is your next question? Insurance Defense Attorney coughs. Seeing no help forthcoming, Plaintiff Lawyer turns back to Witness. He is about to move on when: PLAINTIFF LAWYER Are you going to get in front of the jury and tell them you can do that? WITNESS I’m going to tell them I use my formula sheets, sir, for all the conversions and all the formulas that I utilize. I don’t draw anything from memory. I don’t do anything from memory without my formula sheets. For sake of accuracy, I’m not going to guess at anything. 4. PLAINTIFF LAWYER Nobody is asking you to guess at anything. WITNESS And I’m going to use my formula sheets, and that’s the only way I’m going to do stuff. GRAPHIC: The motorcyclist’s lawyer filed a motion to disqualify the expert witness. GRAPHIC: The motion contained 33 pages describing the educational standards for middle school in the state of Kansas. PLAINTIFF LAWYER (V.O.) Wouldn’t the formula be three and three-sixteenths times twenty equals X? WITNESS (V.O.) That’s the base formula, but you have to convert it to what is three- sixteenths of an inch across the board, and without my calculation sheets here in front of me. I’m not going to do it. 3 INT. CONFERENCE ROOM - LATER 3 Plaintiff Lawyer has been circling around this question for several more minutes. His sleeves rolled up, he writes a equation on a legal pad for a quick moment. PLAINTIFF LAWYER You’re telling the jury that you don’t know how to convert three- sixteenths to a decimal value. Is that what — is that the problem? WITNESS I’m just not going to do it without my formula sheet to do it. PLAINTIFF LAWYER Well, is that the problem? CUT TO: CUT TO: 5. WITNESS No. I’m just not going to do it without my formula sheets that show me. PLAINTIFF LAWYER Because you don’t want to or because you can’t? WITNESS I’m not going to do it without my formula sheets. PLAINTIFF LAWYER Listen carefully to the questions I’m going to ask you, and I’d like an answer to it, please. Is the problem, the problem of converting three-sixteenths to a decimal value, is that the problem? WITNESS Without my formula sheets, without my information that I normally work off of, I am not going to try to do any numbers. And you can ask that question over and over again and I’m not — I don’t have an answer for you. PLAINTIFF LAWYER I would like to have a responsive answer to my question and my — the answer you gave was not responsive to the question I asked. WITNESS And the answer is no. PLAINTIFF LAWYER No, that’s not the problem? WITNESS That’s not — PLAINTIFF LAWYER That’s not what’s concerning you? WITNESS That’s not the issue here. 6. PLAINTIFF LAWYER Would you then please convert three- sixteenths to a decimal value for us? Plaintiff Lawyer again picks up the calculator to give to Witness, but before he can finish the gesture— Beat. WITNESS Not without my formula sheets, no. PLAINTIFF LAWYER Can you do that without the formula sheet? WITNESS I’m not going to do it without a formula sheet, sir, for accuracy’s sake. I don’t do any of my calculations without my formula sheets. PLAINTIFF LAWYER My question is: Can you do it? Do you know how to do it? WITNESS I’m not going to do it. PLAINTIFF LAWYER That isn’t the question. My question is: Can — are you capable of doing that without some kind of a reference material? I’m — WITNESS CLIENT DEFENSE ATTORNEY Objection, form. WITNESS And that’s exactly my answer. I’m not — I cannot do it without my reference material is what I’m telling you. Finally. Plaintiff Lawyer looks at his next question. WITNESS (CONT’D) I will not do it. 7. PLAINTIFF LAWYER Okay. Well, you told me — there is a real difference between I will not do it and I cannot do it. WITNESS I will not do it without my reference materials to make sure. PLAINTIFF LAWYER But are you telling — because we’re going to want to put this in front of the Court about whether you’re cooperating. I want to know if you are telling the Court you can do it but you’re refusing to do it, or you can’t do it without reference materials. Which is it? INSURANCE DEFENSE ATTORNEY Object to form. WITNESS I’ve answered the question, sir. I can’t answer it any different. PLAINTIFF LAWYER Well, you haven’t answered the question. WITNESS Yes, I have. In my opinion, I have, and I can’t answer any different. Plaintiff Lawyer takes it slow, like speaking to a child. Beat. PLAINTIFF LAWYER Well, are you capable of calculating the decimal value of three-sixteenths without reference materials? WITNESS For the sake of accuracy, I’ll have to say no. GRAPHIC: The court ruled in favor of the motorcyclist. The verdict was affirmed upon appeal. CUT TO: 8.