Wheels of Fortune
Daytime-television viewers know Frank Azar as the fighting attorney who can retrieve the insurance settlement an automobile-accident victim deserves. His TV ads feature the crumpled remains of a car crash and an alchemic pledge: "Turn this wreck...into this check!"
But today the promise has proven false, and Azar is furious. A large and disheveled-looking man whose white shirts can pull untucked during agitated cross-examinations, Azar has just wasted his time and talents on an unappreciative six-person Brighton jury, which has failed to recognize the extent of the painful back and neck injuries his client suffered in a minor traffic crash. "The jury came back and gave us a big fucking zero," he fumes. "I can't believe they believed that son of a bitch."
That would be a young, rock-chinned engineer named Jerry Ogden, whose specialty is reconstructing traffic accidents--a car-crash Columbo, engineering-nerd division. After numerous complex calculations and precise measurements, Ogden informed the jury confidently, he had reached the unassailable conclusion that, at the speed she was driving--5.4 to 6 miles per hour--Azar's client could not possibly have been hurt. As a point of reference, Ogden suggested that people experience approximately the same force when they jump rope. Or lean against a wall from six inches away.
The jury bought it.
Azar, however, remains unawed by Ogden's expertise. In fact, he is more than willing to confide his personal opinion of Ogden, which is negative.
"He's the slickest, slimiest witness I've ever been around," Azar snarls, warming up. "He's like a...a...car salesman. The insurance company didn't even bother calling a physician in this case. This guy's a real piece of shit. He's a pimp."
Ogden, who is fast gaining a local reputation as a very popular and effective witness in slow-motion car-wreck cases--which he works almost exclusively for insurance companies--is not perturbed. "This is a science," he says calmly. "What I do is a very pure application of scientific principles. I believe in it." Lawyers, he adds, don't like to hear his conclusions because they cost the attorneys their contingency fees.
For something based on the immutable laws of mathematics and physics, though, the science of car-crash reconstruction has a lot of gray area. Some of Ogden's own research into car accidents, for instance, has been conducted using a local amusement park's bumper cars--hardly a pristine laboratory, indignant plaintiff's attorneys point out. His court testimony has also generated excited dissent among other engineers with their own claims to scientific purity.
"Mr. Ogden's position that you can't get hurt in low-speed crashes is mistaken," argues Raymond Smith, a former Colorado state trooper turned accident reconstructionist. "We're not going to trash the opposition. But he's plain wrong."
"I've seen people killed in accidents under 5 miles per hour," concedes a local underwriter. "This old man was driving across the Broadway overpass from downtown, and he went straight into a telephone pole. He was going so slow it barely did any damage to his car. But his wing window was open, so when his head was knocked forward it knifed directly into his head."
The point? "Weird things can happen," he says. "Even at slow speeds."
The opinions of Ogden and his colleagues are worth literally billions of dollars. The insurance industry says the number of "unverifiable" injuries reported by accident victims is soaring disproportionately to the number of car crashes; many of the claims are for back and neck pain suffered as the result of slow-motion crashes--those occurring at less than 8 miles per hour.
In response, insurers have discovered a new weapon to fight what they consider dubious claims. Once dependent on physicians who would testify as to an injury "victim's" good health, underwriters are increasingly relying on accident-reconstruction engineers to convince juries that some collision victims could not possibly be as injured as they claim.
Many attorneys are only now waking up to the threat to their business. "Now insurance companies are hiring these engineers to come in and say things they're not qualified to say so that people who truly deserve compensation don't get it," says Jim Leventhal, a busy personal-injury lawyer in Denver. "They're being paid a fortune to come in and say injuries couldn't happen. It's an industry for them."
Adds Natalie Brown, a Denver attorney who represents many car-accident victims, "These guys are the new courtroom money barons of the Nineties."
But is what they do really science?
Soon after he got behind the wheel of an automobile, the first driver crashed. Onlookers wondered why, thus laying the philosophical foundation for the science of modern accident investigation. The practical applications, however, took some time to catch up. The foreword to the eighth edition (1986) of the classic Traffic-Accident Investigation Manual outlines the history:
"Before 1925, systematic traffic-accident investigation was practically unknown. The best reports of road accidents were those clipped from local newspapers. But when traffic deaths produced a conspicuous and worrisome bulge in vital statistics, concerned organizations began vigorously to urge countermeasures."
Blazing the trail for future car-crash investigators was the Evanston, Illinois, police department, which in 1929 established the nation's first Accident Prevention Bureau, thanks mostly to "a young, energetic, and imaginative officer, Franklin M. Kreml."
In 1936, Kreml, by now promoted to lieutenant, helped found Northwestern University's Traffic Institute. Four years later he compiled the first Traffic-Accident Investigation Manual, which, according to the eighth-edition prologue, was "a six-by-nine-inch volume with a dark blue cover" that discussed many of the basic sleuthing techniques--measuring skid marks, assessing post-accident vehicle positions and dents--still used by accident-reconstruction experts today.
Since 1993 the imaginative Lieutenant Kreml's heir at the Northwestern University Traffic Institute's Accident Investigation Division has been an ex-Indiana state trooper named Kenneth Baker. "To be quite frank, I was bored with stopping people for speeding," he explains. "And using physics to figure out how people crashed was pretty exciting." Also instructive: These days Baker rides his bike everywhere during the summer. In winter he drives a 1990 Ford Festiva because he doesn't care if it gets slammed into.
In the 25 years he has been in the business, Baker says, crash investigation has become infinitely more sophisticated. "When I first began as a state trooper, the only training we had was a half-day session, where our instructors parked two cars close to each other with two 'drivers' arguing," he recalls. "And we had to figure out what really happened."
Today the Traffic Institute trains thousands of police officers and private researchers in the increasingly complex art of attempting to figure out--sometimes months later--what really happened during a car crash. And there is plenty of work for them.
Although the rate of fatal crashes has dropped steadily since 1985, according to the National Institute of Traffic Safety there were still more than 37,000 fatal wrecks in the United States in 1995. Five hundred and seventy-two of them were in Colorado. The state recorded 165,314 total crashes that year. ("It's never a car 'accident,' explains NITS researcher Bill Watada. "That implies an act of God. Most car crashes are preventable." The institute's director recently issued a directive explaining the difference.)
Despite the giant advances in the field, hurdles remain. A big one is quality control. "Sorry to say, the quality of accident investigations by law enforcement agencies out there is pretty bad," Baker says. Which, in turn, has its own set of consequences. "It creates a huge demand in civil courtrooms, because many times, regardless of the investigation, there is still a question of who is at fault," he adds. "So we have to spend millions and millions and millions of dollars in court costs."
All of which goes a long way toward explaining the number of private accident-reconstruction "experts" who, in spite of sometimes minimal training, are setting up shop and making themselves available to testify in trials at rates of up to $200 per hour. "The United States has developed recently the propensity to sue," Baker says. "And that creates a huge business opportunity for people who want to participate in that."
"Most of the engineers who are doing it are those who realized they can make money on it," adds Chuck Pembleton, president of the Maryland-based National Association of Professional Accident Reconstruction Specialists. "And unfortunately, there are some people in this profession who will come in and, for a dollar, testify to anything you want."
Arthur Wheat's transportation of choice at the moment is a 1997 Chevrolet Suburban, the largest personal passenger vehicle on the road. His selection was guided by two physical principles. The first was that he needed a lot of room to do field work for his Denver-based car-accident investigation business--one of about eight in the metropolitan area. The second was Newton's Second Law of Physics:
"When a force is applied to an object, the object is accelerated in the direction of the force at a rate that is directly proportional to the magnitude of the force and inversely proportional to the mass of the object."
For the purposes of vehicle safety, this translates to Bigger Is Better. Also applicable is Newton's Third Law, which essentially states that the force of two objects colliding is going to be the same in both, the conclusion being that, given the choice and all other things being equal, you may as well be inside the larger one. "It just makes sense," Wheat says.
(It didn't officially make sense, of course, until the government studied the issue. Sir Isaac Newton's early work was re-evaluated most recently by the National Highway Traffic Safety Administration in August 1990, when the agency published Effect of Car Size on Fatality and Injury Risk in Single Vehicle Crashes. The government's scientists concluded that people in bigger cars were less likely to get hurt.)
Indeed, up until about a quarter-century ago, the fact that bigger cars do better in crashes was such an axiom that Detroit car manufacturers simply stuck to it. "In the 1950s and '60s, cars routinely were made of steel, weighed about 5,000 pounds and sported stiff, unforgiving bumpers," Wheat says. "Unfortunately, they didn't do much for the people inside."
The fact that cars were designed with their own structural integrity in mind and not that of their passengers was discovered with a vengeance by a young congressional aide named Ralph Nader, who in 1965 plowed his research into a book called Unsafe at Any Speed. In it, Nader accused General Motors of marketing the Chevrolet Corvair even though the company knew the car had the unsafe habit of flipping over. During congressional hearings, GM also admitted it had spent a measly $1.25 million the previous year on car safety.
The information outraged many drivers, including the president. In February 1966, Lyndon Johnson, in a speech before the American Trial Lawyers Association, proclaimed that highway deaths were second only to the Vietnam War as the "gravest problem before the nation." Later that year Congress passed the National Traffic and Motor Vehicle Safety Act of 1966, which required the establishment of minimum safety standards for motor vehicles. The new law also authorized money for research and development, which, in the world of automotive safety, generally means crashing cars on purpose.
James Hackney speaks with a soft Texas twang and drives a 1989 Chrysler LeBaron. It is widely regarded as a vehicle of uneven performance and reliability--but it was one of the first to carry an air bag. The selection reflects Hackney's vocation, which since 1972 has been crashing cars for the government and measuring the results. He is currently the director of the Office of Crashworthiness Standards, the policy arm of the National Highway Traffic Safety Administration.
Because little collision testing had been done before the publication of Unsafe at Any Speed, the government's crash experiments initially focused on measuring exactly what happened to a car during a sudden deceleration initiated by a stationary object. To simulate this, engineers ran vehicles into brick walls at 35 miles per hour. What happened was pretty much what you'd expect.
"The front of the car crushes anywhere from two to three feet," explains Hackney. "Most anything forward of the wheels is crushed. In some small cars, the wheels enter the driver compartment. It's a very severe event." (The crumpled test cars were--and continue to be--sold as scrap at government auctions.) In 1979 the NHTSA began its New Car Assessment Program, which continues to provide crash-test results of new-model vehicles to consumers.
This year Hackney's office will spend about $2.5 million to crash about seventy vehicles. The actual tests are conducted in four private research facilities--in Buffalo, New York; East Liberty, Ohio; Madison, Wisconsin; and Los Angeles. Although government engineers continue to search for new ways to crash cars in the name of science (this year NHTSA began measuring side-impact crashes), their primary research protocol continues to be running them head-on into brick walls at about 30 to 35 miles per hour.
While this has been helpful--particularly for measuring the effectiveness of passenger-restraint systems--it wasn't long before the insurance industry, which pays for most crash damage, determined that the government's work wasn't particularly useful for gauging how vehicles performed in real-life situations. After all, points out Pembleton--whose 5,000-pound 1989 Dodge Ram truck sacrifices energy-absorbing "crushability" for sheer size and rigidity--"How many times does a car run into a solid brick wall at 35 miles per hour?" (Two hundred and sixty-nine drivers crashed into brick walls or buildings in Colorado in 1995, according to the state Motor Vehicle Administration.)
So for the past two decades the Virginia-based Insurance Institute for Highway Safety has been conducting its own series of vehicle smashups. Its biggest contributions to the body of car-wreck literature have been the "offset" crash test--running cars into walls and each other at a forty-degree angle--and slow-speed bumper testing, the results of which the institute dolefully reports every few months. (Fall 1996: "Bumpers on most passenger vans fail to bump without damage, but Mazda's MPV does improve from worst vehicle ever tested.")
All of these smashups, however, are a metal molehill compared to the mountain of scrap produced by the car manufacturers themselves, which now spend tens of millions of dollars meeting the safety standards that Hackney's government engineers set.
GM alone crashes about 500 cars each year on purpose. In addition to the basic car-into-the-wall collisions, the company also speeds vehicles into ditches and guard rails, slams them into curbs and poles, and drives them over potholes and through a special "twist ditch," where the test car generally bottoms out and rips a hole in its oil pan. Other automobile manufacturers employ their own methods: BMW not only simulates traditional rollovers, but also hurls some of its new cars into longitudinal, or corkscrew, rollovers.
The sheer carnage can seem harrowing. "It brings a tear to my eye to see a $35,000 Volvo crash-tested," admits Vic Craig, publisher of the Accident Reconstruction Journal. "'Vettes, too."
Wrecking vehicles on a regular basis gets expensive, so computers that simulate collisions have also been called into use for research. One of the earliest crash programs was the HVOSM--the Highway Vehicle Object Simulator Model, a giant refrigerator of a machine that, with enough information, could reconstruct aberrant car behavior.
It also could predict it. In the 1974 movie The Man With the Golden Gun, there's a classic car chase in which James Bond finds himself pursuing a bad guy who's on the opposite side of a canal. Bond motors up an unfinished bridge--it is inexplicably twisted like a helix--then flies over the canal in a 360-degree lateral rotation and lands on his wheels. HVOSM was used to calculate the angle the bridge needed to be twisted for the stunt car to land correctly. "It sure beat trial and error," says Northwestern's Baker, who still uses a clip from the film to teach his classes. "It's not so good to misjudge your approach velocity."
Since then, computer programs that simulate car-wreck behavior with realistic graphics and animation have become much more detailed. These days much of the technology is used to sway juries one way or another as to who is at fault in an accident. "Our 3D animation of this accident allowed the jury to experience the collision first-hand!" brags one advertisement for a company called Creative Animation and Graphics out of Tallahassee, Florida. The ad shows an extremely graphic representation of a Ford pick-up truck melded into a semi.
Throughout all the purposeful car-crunching, however, the biggest problem faced by researchers has been simulating the human factor: What really happens to an occupant when his car crashes?
A pioneer in the investigation of the human dimensions of automobile crackups was Dr. John Strapp, an Air Force veteran. Modern experts recall his experiments with a combination of nostalgic respect and wary awe.
"He would use himself as a test subject, and he kept upping the level of severity," recalls Hackney. While he is not very familiar with the results of Strapp's personal research, Hackney adds, "I do know that he suffered some injuries you and I would want to avoid. I'm quite sure he suffered a detached retina. At least one. He was one of our more dedicated scientists."
Although Strapp is reportedly deceased, his work lives on at a yearly car-crash symposium named after him.
Strapp apparently was the only scientist willing to belt himself inside a crash sled and ram into a solid wall at relatively high speeds. But he was by no means the only live person used to measure the impact of collisions. In the early 1970s the National Highway Traffic Safety Administration used numerous human volunteers--usually from the military--to measure the effects of car crashes.
Unfortunately, the experiments had natural limitations. "It's unethical to test a person if you think they're going to be injured," explains Alan Mencin, a local engineer who consults on car-crash reconstructions. "The only research group that has tried it in the past sixty years was Nazi Germany."
The government's early human experiments "were 'ouch-level'-type tests," confirms Hackney. "Whenever the subject said it started to hurt, we'd stop. So, of course, it was difficult to measure the effects of any severe level of trauma." NHTSA stopped using humans in its crash testing about a decade ago.
Despite the subsequent invention of the crash-test dummy, other investigative methods have lingered as crash scientists continue their quest for more realistic simulations. For example, "we still use about fifty cadavers a year for testing," Hackney says. "When people bequeath their body to science, they may not realize that that research might be car crashes. We generally try to clear it with the next of kin, though."
(Dr. Jack Kevorkian once suggested using inmates facing a death sentence as crash-test subjects, although no one has taken him up on it.)
Still, even dead bodies and increasingly sophisticated dummies aren't perfect test subjects. Several years ago a U.S. congressman from Florida representing an elderly constituency demanded a moratorium on the government's cadaver crash testing. The body ban was in effect for three years before the NHTSA convinced the legislator that the tests were worthwhile. And Chrysler has successfully sued government scientists over the validity of research conducted with crash-test dummies.
So collision specialists have had to cast a wide net for human-like subjects. Early in its history, the NHTSA used chimpanzees to measure the impacts of car crashes on their occupants. (The agency has since stopped.) In addition, recalls Hackney, "GM, in particular, once used a lot of pigs. The feeling was that their structure came close to simulating the structure of the human body."
Typically, the wired and anesthetized pig was strapped upright into the driver's seat and run into a wall. Today, most pig-related car-crash research is conducted by universities. "Some of the tests get pretty gruesome," admits Baker.
Thanks to all the calculated smashups, engineers' understanding of what, precisely, happens to cars and their passengers when vehicles crash has soared. "The whole evolution of automobile safety has been in the past 25 to 30 years," says Wheat. A thriving sub-industry of car-catastrophe specialists has sprung up in a generation, as has a wide body of arcane technical literature (The Investigators Guide to Tire Failure; Excerpts of Key Documents Related to Pavement Edge Drop-Offs).
In addition to the venerable Society of Automotive Engineers, today's crash-test scientists can choose to join the Association for the Advancement of Automotive Medicine and the National Association of Professional Accident Reconstruction Specialists (NAPARS), among other niche organizations. They can read the Accident Reconstruction Journal and dozens of specialized books and monographs on topics ranging from tire-skid analysis to "conspicuity"--which, at its core, wonders why people pull out in front of trains even though they see them coming.
Nobody has tallied the exact number of accident reconstructionists practicing today. Yet the field, while still relatively small, is clearly flourishing. In 1987 the Accident Reconstruction Journal had fewer than 100 subscribers. Today it has 3,400 in 28 countries. Membership in NAPARS has nearly doubled in just five years, to about 1,500 worldwide.
Still, in many ways, the profession is learning while it works. While the government, the insurance industry and car manufacturers have continued to modify car-crash testing for their own purposes over the past three decades, until very recently they all had neglected in-depth study of one corner of the field: the low-speed collision. And, of course, the whiplash a driver may, or may not, suffer as a result.
These are, the insurance industry will be pleased to tell you, times of extraordinary dishonesty. The proof is in the statistics, which suggest that unscrupulous people are trying, with alarming frequency, to pull the wool over the eyes of State Farm, Allstate and other companies that underwrite automobile insurance.
A recent report written by the Illinois-based Insurance Research Council, for example, concluded that even though there had been a 12 percent drop between 1987 and 1992 in the number of car crashes severe enough to damage the vehicle, there was a 16 percent increase in the number of injury claims during the same five-year period.
The study also found that the nature of the reported injuries has changed, too. In 1987, 75 percent of crash victims reported sprains and strains of the neck and back. By 1992 it was 83 percent.
"The trend is for more claiming for more non-verifiable, soft-tissue injuries--even though the incidence of crashes has been dropping," says Terrie Troxel, IRC's executive director. "It's kind of like, what's wrong with this picture?"
Bill Hopkins, a spokesman at State Farm's Colorado headquarters in Greeley, happens to have an answer. "If you've got an injury not identifiable by a broken bone or torn flesh, it is very subjective and, so, difficult to disprove," he says. "And so those who are opportunistic about this system could find an easy opportunity to assert a claim for bodily injury and reap whatever benefits."
Such opportunists abound, if the insurance industry is to be believed. Four months ago the IRC published the findings of a study that audited 15,000 car-crash claims from nine states. The council concluded that fully one-third of bodily injury claims contained some amount of fraud. Paying up on all the fakery added an estimated $6.3 billion to auto-policy premiums, the council reported.
Insurance companies have become more aggressive about fighting what they regard as suspicious car-injury claims--particularly those crashes in which the vehicle sustains little if any damage and the passenger still manages to file for a five-figure medical bill. State Farm in Colorado reportedly has a special "soft-tissue" unit that evaluates nothing but low-speed car crashes. (Hopkins denies the existence of a soft-tissue SWAT team.)
Other companies have stiffened their resolve in their dealings with plaintiff's attorneys. "Settlement offers have gone down," observes Dallas Norton, a Denver auto-accidents-only attorney. "When I first started doing this four years ago, settlements typically averaged about $7,000 to $10,000. Now I'd have to say $5,000 to $9,000 is more common." And in the relatively few cases that do go to trial, Norton adds, "the jurors just aren't giving people the money."
"That's the insurance company's whole game plan recently," adds Azar (whose new BMW has inconsequential mass but the latest in air bags). "You have to total your car before they pay a claim on it. It's a multi-million-dollar scam, and people like Jerry Ogden are part of it."
At one time the insurance industry's main weapon against alleged fakers and malingerers was physicians who would testify in court that the person in front of the jury really wasn't hurt so badly after all. But it soon became apparent that insurers tended to use some of these independent medical examiners more than others--and that, sure enough, those doctors always seemed to conclude the crash victim was a faker.
As a result, the Colorado legislature last year passed a law that was the first of its kind in the country ("Is There a Doctor in the House?," January 23). It mandates that independent medical examiners be selected at random for insurance disputes and also specifies that a physician cannot earn more than half of his income--or spend more than half his billing time--as an IME.
No such restrictions apply to engineers, however.
Jerry Ogden's engineering firm, Thomas Alcorn & Associates, does 600 to 700 traffic accident investigations a year, Ogden recently testified, many of them for insurance companies seeking to investigate slow-motion crashes.
Frank Azar claims that Ogden has testified 135 times for State Farm alone. Ogden replies that he has studied just over 100 cases in the past three years for State Farm's law firm. He charges $125 per hour to evaluate cases and $187.50 per hour to testify in court. He has never testified on behalf of an accident victim, he says.
But Ogden explains that his apparent allegiance to insurance companies is an illusion. He routinely investigates accidents in which he concludes that people were injured, he says, and the insurer then generally decides it is in the company's best interest to settle the case, so it never sees the light of day.
Natalie Brown, the plaintiff's attorney, is unconvinced. "Jerry Ogden is a biased source," she says. "There is some science here. I just don't think that he is using all the information that's available. He could expand his knowledge a lot. And he would find out that he is wrong in a lot of areas."
John Smith, a Denver accident reconstructionist, is more blunt. "What Jerry Ogden does," he says, "is junk science."
It has been only in the past few years that engineering firms have conducted regular studies of live test drivers who crash at low speeds. Some seem hokey--for instance, the tests in which Ogden observed three young volunteers (including himself) riding bumper cars. Yet most studies have concluded that, in general, people don't get hurt at velocities under 7 or 8 miles per hour.
Underwriters have gleefully latched onto this information. "The insurance companies have found that there is evidence out there supporting the notion that low-impact crashes usually result in no injuries," says NAPARS president Pembleton. "And so on some of these cases they're starting to say, 'Now, wait just a minute...'"
"These engineers have been able to demonstrate, in a way that's provable with physics, that in some low-impact crashes, injuries simply couldn't have happened," confirms State Farm's Hopkins. "If it takes that kind of testimony to convince a jury a claim is without merit, so be it. We'll continue to do it."
Predictably, the practice is making some attorneys cranky. "The juries are being left with the impression that this incredibly well-educated person with a Ph.D. knows what he's talking about," says personal-injury attorney Leventhal, "when, in fact, they're idiots. They shouldn't be allowed in the courthouse. They shouldn't be allowed on the same block as a courthouse."
Even most engineers concede that the research is undeveloped, that it is of limited applicability, and that there are exceptions to everything. "There's a professional division among accident reconstructionists over whether people can get hurt in a collision that occurs at about the 5- to 7-mile-per-hour range," says Bill Maels, an instructor at Colorado State University's accident-investigation department.
Adds Baker, "The problem is that, physiologically, every human being is different, which is where the accident reconstructionist has overstepped his bounds. My mother is eighty years old and weighs about seventy pounds. So the effect of a 7-mile-per-hour accident would be different on her than on me, who weighs about 200 pounds."
"You could sneeze 1,000 times, and on the 1,001st throw your back out," accident investigator Wheat points out. "You have to be ethical about this and be prepared to call it as you see it. But a lot of times, it's very subjective. There's a great deal of interpretation. It's really an art based on scientific principles."
Still, there are clear benefits to the differences in opinion. Every time State Farm hires Jerry Ogden to prove a passenger couldn't have been injured as badly as he claims, Frank Azar must hire his own crash engineer to prove to a jury that his injuries are real. "As long as there are attorneys and car accidents," says Wheat, "our profession is going to keep growing."
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