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By Bill Altreuter

It's been a summer that has been marked by two bad sports calls-- the disallowed goal in the USA-Slovenia game and the nearly perfect game pitched by Armando Galarraga, and in both instances various commentators have used the event to call for replacing or supplementing the human official with some sort of technology. I'm not so sure I think that's a good idea, but after years of taking testimony in tort cases I am pretty convinced that people are bad at describing what they saw-- and that their descriptions are a poor basis for assigning liability. I was reminded of this when reading Dibble v. New York City Transit Authority, --- N.Y.S.2d ----, 2010 WL 2486802 (1st Dept, 2010) handed down yesterday.

Dibble fell onto the N train tracks at 14th Street and was run over. At trial the jury reached a verdict finding that both plaintiff and defendant were negligent, attributing fault 65% to defendant and 35% to plaintiff. The First Department reversed, holding that he jury's determination that the accident could have been avoided was based on "nothing more than a series of estimated stopping distances that incorporated purported average reaction time", that the plaintiff's case was based entirely on impermissible speculation, and that the verdict was thus based on insufficient evidence

The plaintiff's expert testified about stopping distances and reaction time, but "none of the variables utilized by the plaintiff's expert to calculate possible stopping distances were established conclusively at trial. All were estimates or approximations"-- even though they were estimates that the operator of the train testified to. In addition, "in determining that the defendant's train operator failed to exercise reasonable care because he could have stopped, the jury improperly equated negligence with possession of a motor skill that is essentially a reflex action. Moreover, in this case, the motor skill that determines the reaction time in any individual, and which is measured in seconds and fractions of a second, was assumed to be the purported average of just one second with no variability for identification, analysis and decision." Bottom line: "the use of an average reaction time of one second implicitly renders negligent any train operator with a longer than average reaction time"-- and this is an insufficient basis for assigning fault.

We're walking the razor's edge here, but I think this is a notable development. The trial judge, who I know to be careful and intelligent, allowed the case to go to the jury based on the estimates of the train operator and testimony from the plaintiff's expert based on those estimates. The expert's opinions were pretty standard fare. I can't tell you how often I have heard reaction time testimony like this, and certainly Judge Stallman has heard it more than I have. The problem is that this kind of testimony pretends that it has more precision that it could possibly possess.

It is probably no longer true that the stakes are higher in civil litigation than they are in professional sports. The jury in the Dibble case made an award of $3.5 million-- how much would the perfect game been worth in endorsements and in Galarraga's future contract negotiations? What is the value of a World Cup win? Cumulatively however the civil justice system's reliance on pseudo-science has a huge cost, and I wonder if the Dibble decision is the first step back.

Full post as published by Outside Counsel on June 23, 2010 (boomark / email).