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Expert Video Admissible Because It's Not a Re-Enactment

By Robyn Hagan Cain on November 08, 2012 | Last updated on March 21, 2019

The Fifth Circuit permits evidence of experiments conducted under substantially similar conditions. Furthermore, if a party offers demonstrative evidence only as an illustration of general scientific principles, and not as a re-enactment of disputed events, it doesn't have to pass the substantial similarity test.

Here's a recent example of how that policy affected a plaintiff's case.

J.M. was in a car seat in his mother's SUV when she crashed into a farm tractor. J.M. suffered spinal injuries in the accident and became a paraplegic. His parents, the McCunes, sued the car seat manufacturer, Graco Children's Products, Inc., alleging that a defect in Graco's "TurboBooster" seat caused their son's injuries. At trial, the jury found for Graco.

The McCunes appealed, arguing that the trial judge erred in admitting a series of simulation videos created for Graco's expert's testimony. Last week, the Fifth Circuit ruled in an unpublished opinion that the trial judge had wide discretion to admit evidence of experiments.

At trial the parties agreed that the McCune family had properly installed J.M.'s seat and that the impact caused the left armrest -- which helps a child use seat belts designed for adults -- to detach from the seat. The parties disagreed on the position of the shoulder belt at impact.

The McCunes argued that J.M. wore his shoulder belt across the front of his body at impact. They claimed that a defect in the car seat caused the shoulder belt to tear the armrest from the seat, allowing J.M. to roll out of the belt and pitch forward.

Graco argued that J.M. wore his shoulder belt behind his back at impact. The company contended that it was this misuse of the belt that explained his injuries, adding that the detachment of the armrest was not significant because the armrest was a "comfort feature for the child" that provided "no restraint of the torso."

One of Graco's key experts testified that the car seat's armrest could not detach if the belt was in front. He based his testimony on physical evidence and six "sled tests" he conducted to "recreate the forces of the accident" in order to better understand the physics of the crash. He played video of each test during his testimony.

On appeal, the McCunes argued that the videos differed from the accident, and the expert confused the jury into thinking that the test was a re-enactment of the accident by using the same vehicle and car seat models involved in the crash, and by testifying that the tests sought to "recreate" the accident.

The Fifth Circuit concluded that the district court did not abuse its discretion in allowing Graco to play and discuss the video because Graco made it clear that the video was not a re-enactment of the accident. Because the videos were not re-enactments, the appellate court did not need to consider the substantial similarity issue.

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