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  • A.

    He was not restrained. There was no blood on that lap belt. And there certainly would have been if he had had it on. If the belt was still bucked at the time of the accident, there would have been strong evidence of it. That was not there.

  • Q.

    And what's your basis for saying that?

  • A.

    I examined the belt. There’s no blood on it. * * *

NR 54:Exh. 3 (emphasis added). Subsequently, defendants’ expert, Richard E. Bisbing, inspected the belt with a stereomicroscope and conducted a battery of sophisticated chemical tests on it. NR 61:Tab 3; NR 60:14. He concluded:

Blood was confirmed by all tests on the inside of the driver’s side lab belt buckle housing. Blood was also detected on the driver’s side buckle mechanism frame, lock plate, sliding metal surface (interface) of the latch, on the plastic portion of the driver’s side lap belt tongue latch plate, on the edge of webbing loop near driver’s side lab belt tongue, and on the driver’s side shoulder belt webbing.

NR 61:Tab 3 at 7. Faced with this evidence, Lafferty modified his testimony in an affidavit filed by Clark along with Clark’s opposition to the motion for summary judgment. Lafferty’s affidavit stated:

Also it is my opinion that the relative lack of blood on the lap belt in comparison to the blood on the shoulder harness and the seat is inconsistent with the lap belt being bucked during and after the accident.

NR 54:Exh. 1 at 2 (emphasis added). According to Lafferty, his visual assessment concerning the presence of blood on the seat belt could scientifically establish that the lap belt had not remained in place.17/

The district court ruled that Lafferty’s testimony “regarding the relative lack of blood on the lap belt,” which Clark had offered “[i]n an effort to recover from Dr. Lafferty’s damaging testimony that he ha[d] assumed the lap belt became unlatched,” was inadmissible because it is “unscientific speculation and not based on any special skills

17/ On appeal, Clark repeats Lafferty’s initial error of stating unqualified opinions. According to Clark’s brief, “[i]t is physically impossible for blood to coverthe shoulder harness and seat to the extent depicted in the photograph and not also saturate the lap belt had Clayton been wearing it after the accident.”AOB31. Astheexperttestimonyofdefendants’expertSmithshows,thisassertionis manifestly untrue. See page 36, infra.


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