Now that a certain case in a certain jurisdiction is over and out i can pose this question:
(and without naming an expert or jurisdiction)
I ask the following:
- Have any of you encountered an expert who used a simulation to simulate an accident and/or the EDR recorded steer and speeds, etc and then maybe also had a 3D survey prepared and then...
claimed that all the simulation files and survey files were proprietary?
In other words they would ONLY provide limited outputs and a printed 500+ PDF of the survey (which had arbitrary line breaks so it could NOT be used when saved as text)
- “Procure the simulation at great expense to Plaintiffs’
- “providing the data in the format requested by Defendant leaves the data subject to manipulation, misuse, and abuse”
The judge did not force the production of any more documents and left the argument for trial arguments.
Fortunately in the case even without the aforementioned input files we scared them enough for them to realize that this might not play well with the jury.
- When we deposed their "expert" many question we provided to legal counsel demonstrated the experts lack of foundation on the underlying computer code they used and the importance of a full open exchange of ALL inputs for verification of simulation analysis (we asked questions that demonstrated WHY full open exchange was important)
- When we were deposed we demonstrated a knowledge of the science behind the computer code (we know them all!) and clearly listed the many reasons why one must NOT be allowed to present anything without the other side being provided a chance to verify:
- The inputs produced were proper and complete (why electronic form is essential)
- That when the inputs were rerun with the computer program they produced the same outputs/video
- That the computer program was being applied properly
- That the results did not represent a sensitivity or anomaly of the specific computer program being applied
- At trial counsel withdrew the "expert" and did not use their simulation video.
- Since i was a rebuttal witness, this avoided me being called as a rebuttal witness
- Have any of you encountered this in any case? and if so, can you provide details?
- Also if any of you are aware of any case law related to this type of situation?
In Federal court it generally is required that experts exchange files so that the opposing expert can re-run and verify the simulation and test sensitivities.
Is anyone aware of specific rulings related to 'simulation input files' in electronic format?
- In the case we were involved in they got the judge to believe the printouts were enough
sometimes in some instances printed output may be adequate
In these modern times, with 3D inputs, 3D surveys and many options for importing the 3D survey data into the 3D software, printouts ARE NOT adequate to allow verifying the results of their simulation
Curious if others have encountered this gamesmanship.
Our interest is so we can publish to the web any related case law rulings to assist others in the future to avoid having to tap dance in this type of crap...
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