COMMENTARY ON THE TESTIMONY OF JOHN FORESTER

BY

James M. Green, P.E., DEE

home             green             derby

The facts of this accident were undisputed by investigating Police Officers and reputable Professional Engineers. A cyclist, Collin Johnson, was returning from work at 1:30 A.M. He was dressed in dark clothing and riding without a helmet or headlight. He was descending a hill at speeds in excess of 41 mph on the double yellow line. His bicycle struck the rear end of a jeep that turned in front of him. The jeepís driver fled the accident scene. The cyclist was then hit by a second vehicle and dragged 135 feet. The second motor vehicle also left the scene of the accident. The cyclist survived hi injuries, but was terribly disfigured by the accident.

    At the trial, John Forester opined that the reason the accident occurred was because the bike industry failed to provide the cyclist, Johnson, with a headlight. Foresterís garbled testimony is provided here to illustrate the damage that a totally unqualified individual can do in a courtroom. The Jury, after seeing Johnsonís injuries, awarded 8.3 million dollars to the Plaintiff. The Cycling Company, Derby, bore the brunt of the award, which was later reduced.

    The problems with Foresterís testimony were that his qualifications to reconstruct this type of accident were non-existent. In addition, his convoluted opinions had no basis in fact and were in the realm of "Junk Science".

    The Forester testimony is provided from the actual trial transcript which is available on this web site in itís entirety. Unfortunately, the two days of questioning by the Court to attempt to qualify Forester are not available since this part of the testimony was not recorded. I have pulled excerpts from the transcript so the interested reader will not have to read all the sidebars and objections.

Foresterís Qualifications

Trajectories As noted, the two days of trial testimony in which the Court struggled to get Forester qualified are not available. One particular interesting series of questions involved Foresterís training and experience in determining trajectories. His answer to the question on his experience in calculating trajectories was that he saw a motorcyclist hit by a car in front of his office. From watching the motorcyclist tumble through the air he felt he was qualified to render an opinion on trajectories.

Velocity Foresterís failure to grasp even rudimentary physics continues in his definition of velocity:

BY MR.ARVIDSON, The Defense Attorney

Q Now, vectors are a unit, it could be either velocity or some other measurement with direction, is that correct?

A It has magnitude and direction.

Q Okay, so a velocity vector in a particular direction, correct? There are acceleration vectors? Correct?

A There are such things, yes.

Q Okay. There are Ė

A Iím not sure you describe them accurately.

Q I didnít?

A I couldnít make any sense out of it anyway.

Q Well, what is a vector? Itís velocity and direction, isnít it?

A A vector is a thing that has magnitude and direction. A velocity vector has speed and direction.

Q Because speed is velocity.

A No.

Q Speed is not velocity.

A No.

Q What is speed?

A Speed is rate of change in space.

Q Okay, and what is velocity?

A Velocity is rate of change in a direction.  Velocity is the vector. (October 7, 1993, Pg. 36)

Obviously, any middle school student knows that velocity is delta X over delta T or change in distance over change in time.

 

Ambient Lighting Particularly disturbing is Foresterís definition of ambient lighting at the scene and the method he used to determine the background lighting at the scene.

BY MR. ARVIDSON, The Defense Attorney

Q You took that street light into consideration when you analyzed your ambient lighting conditions?

A I did not do anything such as you suggested.

Q Well, how did you determine your evaluation of ambient light conditions then?

A By looking. Looking at people.

Q Generally looking at all of "the ambient light" rather than any one source, is that what youíre saying?

A What I testified to is that I observed people, walking people in this case because it was more convenient then cycling people, but it would be about the same. And thatís what I did. (October 7, 1993, Pg. 11)

The standard way one determines lighting conditions is by using a light meter.

State of Mind Not only is Forester qualified in trajectories, velocity, and light, but he apparently can read peopleís minds as is noted in the next line of questioning:

BY MR. BERKOWITZ, The Plaintiffís Attorney

Q Mr. Forester, I want you to assume that Collin Johnson knew that he could make himself brighter by wearing a minerís cap, or carrying a lantern or a flashlight, he felt that it was unnecessary for him to do that or take any action to make himself more conspicuous while riding at night because when he looked at the bike and he saw the reflectors he thought it was safely and adequately equipped for night riding, and it was safe for him to ride a bicycle with just reflectors, without having a headlight, or anything else in order to make himself more conspicuous. I want you to assume that Collin had ridden on Northfield Avenue many times, both on a bus and on prior nights after he bought the Nishiki bicycle, and that there was sufficient Ė light for him to see the road. Do you have an opinion as to whether Collin Johnson acted reasonable in thinking that his bike was safe and properly equipped for night riding with the ALL Reflector System as it was at the time of the crash on July 14, 1989?

A With his state of mind of being mislead as to the true facts of the matter, he acted reasonablyÖ(October 6, 1993,Vol. 1 of 3,Pg. 37)

Physics The Attorney questioning Forester in this series of questions had a Masterís Degree in Aeronautical Engineering. In his struggle to understand the incorrect formulas that Forester put on the board, the following exchange took place:

BY MR. ARVIDSON, The Defense Attorney

Q Now, I donít quite understand that after you get to Point B and youíre going 37 miles an hour and you go to another section and because that section would calculate out to have a lower terminal velocity you slow down?

A I canít answer for you whether you are competent to understand physics or not, sir.

Q Well, thatís true, thatís true. Weíll all decide that but my competency to understand physics is not an issue here, its yours, and the question is; what are the forces that resist the bicycle so as to make it lose speed? (October 6, 1993,Vol. 2 of 3, Pg. 37)

Headlight Distances The cyclist, Collin Johnson, was totally visible in the beam of the motor vehicle headlights for a distance of 600 feet prior to the cyclist hitting the rear of the motor vehicle. The following exchange took place in order for this fact to be put before the Jury.

BY MR. ARVIDSON, The Defense Attorney

Q What is the projection distance of the low beam headlights on a 1988 Jeep Wrangler?

A How far ahead of the vehicle is the hot spot where it hits the ground?

Q I didnít ask you about the hot spot. How far ahead do the headlights project when theyíre in low beam?

A Your answer has no mean Ė your question has no meaning to that sir.

Q Well, I apologize for that. Iíll rephrase the question; when you car is sitting on the road and itís dark out and you put the headlights on and you put it on low beams Ė

A Yes.

Q All right? The headlights project light out in front of the vehicle; donít they?

A Yes.

Q All right. And do they project it out in front of the vehicle for some defined distance?

A No. They Ė the distance is infinity. Light travels in a straight line until stopped by something. If there are no clouds over head it can go out to the stars.

Q At a hundred and eighty six thousand miles per second?

A Thatís see Ė yes, thatís the speed of light.

Q Both Ė both my question and your previous answer donít have any relevancy to this particular accident though. My question is Ė

A Itís hard to understand your question, sir, they operate physically.

Q Well, Iíll tell you what weíll have a deal, and that is if you donít understand my question just tell me that you donít understand it.

A Thatís what I said.

Q And Iíll be happy to rephrase it, all right?  Now, this is the question I have if a car, a Jeep Wrangler, is sitting at night on a flat level road Ė

A Yes, I understand.

Q -- and it puts its headlights on Ė

A Yes.

Q -- low beams ---

A Yes.

Q -- and the headlight beams are projecting out in front of it, how far in front of that vehicle will those headlights illuminate an object?

A It depends on where the horizon is.

Q Well, letís take the horizon out of the question for the moment Ė

A Didnít I say that light travels in straight lines and it will keep going until stopped?

Q Mr. Forester, if the car is in that position as Iíve described it and the low beams are on, sir Ė

A Yes.

Q -- and a rabbit was sitting 50 feet in front of that low beam headlight, would it be sho Ė would it be seen?

A The rabbit 50 feet, yes, I think so.

Q Okay. Would it be seen at a hundred feet?

MR. BERKOWITZ: let me just object to the use of the word seen, Ďcause I think that depends upon whoís looking, where to look and et cetera.

THE COURT: Well, if thatís the basis for the difficulty that the witness is having that the Counsel is having Iíll Ė you use the word illuminating, the witness is saying to you it illuminates forever, thatís a different question if you say can it be seen.

MR. ARVIDSON: Thatís why I rephrased Ė

THE COURT: And Ė and your new question

MR. ARVIDSON: -- the question.

THE COURT: -- is can it be seen? And now the question is I guess by whom, can it be seen by the driver, is that your question?

MR. ARVIDSON: Can it be seen by someone sitting in a driverís seat with 20/20 vision?

THE WITNESS: Rabbit at a hundred feet with low beams probably not. I missed rabbits at that distance.

BY MR. ARVIDSON: Be seen at 75 feet?

A I wouldnít care to say exactly how many feet, sir.

Q All right. How far Ė strike that Ė are you familiar with the motor vehicle requirements relative to the projection of light by headlamps in front of motor vehicles in the State of New Jersey?

A Iím familiar with the requirements in California and as stated in the Uniform Vehicle Code. I presume that those in New Jersey are very similar.

Q All right. Letís Ė letís limit it to California or the Uniformed Vehicle Code, what is your understanding of how far the California or the Uniform Motor Vehicle Code requires the projection of headlight from motor vehicles operating in that (inaudible)?

A Your question does not reflect the wording of the law and it reflects the difficulty of this business of how far does light go?

Q What does the Motor Vehicle Code require in the performance of headlamps in motor vehicles?

A The requirement is that under high beams the headlamps shall be sufficient to pick up persons or other persons Ė or other objects upon the roadway at a particular distance. At this moment I forget what the particular distance is, my Ė yes, I forget what it is. But thatís the general wording of the law.

Q Do you have a requirement for low beams?

A I do not believe it does. I may be wrong. I donít believe it does.

Q Do New Jersey statute which requires operation users of a bicycle to put a headlamp on the bicycle if he or she intends to use it between the sunset or sunrise?

A That is not a general span of time but at night in darkness, yes.

Q And does that motor vehicle statute of the State of New Jersey specify any distance required for the performance of the bicycle headlamp to be put on the bicycle by the user.

A The general requirement in most states and in the uniform vehicle code and I believe the New Jersey statute is similar says it has to be visible a distance of 600 feet. (October 6, 1993, Vol. 2 of 3, Pg. 46-51)

Causal Factor of the Accident As this exchange illustrates Forester decided the reason for the accident was the whole bike industry.

BY MR. ARVIDSON, The Defense Attorney

Q And would it be your opinion that if someone such as Colin Johnson did not put the head lamp on in accordance with the statutory law that he would be negligent?

A No.

Q Why not?

A Because heís been mislead. Mislead by the bicycle industry in their promotion of reflector Ė the all reflector system instead and I think when you consider negligence, you have to at some extent consider motivation.

Q Well Ė

A Thatís a question of law of course, Iím not an expert in law.

Q Do you believe that the New Jersey statutes mislead Colin Johnson?

A Yes, they could.

Q And how could the New Jersey statutes mislead Colin Johnson as it relates to putting a head lamp on the bicycle?

A Because, as I understand it and have been told, New Jersey statutes on that subject say equip your bicycle, among other things with the ten reflector system of the CPSC. I understand that it specifically refers to the Consumer Products Safety Commissions all reflector standard and as a result of that, considering the typical misinformation thatís available, that is something that you would not alert a typical person like Mr. Johnson, that it is dangerous to ride without a head lamp.

Q Are you aware that there are two separate statutes, one which controls the sale or rental of bicycles which requires the seller or renter of a bicycle to sell it equipped with the Consumer Products Safety Commission approved reflector system?

MR. BERKOWITZ: Thatís one, whatís the other one?

By MR. ARVIDSON:

Q And that the other is the Ė Is the statute requiring the user or owner of the bicycle to put the head lamp on for night time use.

A Well, all I will say is that it doesnít matter whether itís on two different pages or one page, if that information is made available to people under the circumstances of the current state of public information, I regard that, yes, as being confusing. Itís liable to confuse one.

Q Well it wouldnít be confusing if Collin Johnson had not read or was not aware of the statute requiring the seller or renter to have the bike equipped in pursuant to the CPSC requirements, would it.

A Interesting question.

Q Thank you. Whatís the answer? Are you waiting for something? I was waiting for your answer.

A Oh, I thought you thought I had given it.

Q Your answer was itís an interesting question?

A Your response sounded as if you were satisfied with that answer.

Q I was waiting for the answer sir.(October 6, 1993, Vol. 3 of 3, Pg. 37-39)

The Plaintiff Did Nothing Wrong As noted, the cyclist did nothing wrong by descending a hill at 1:30 A.M., dressed in dark clothing, on the center line and 15 MPH above the speed limit. In addition, this excerpt illustrates that Forester could actually read the mind of the cyclist.

BY MR. ARVIDSON, The Defense Attorney

Q Mr. Forester, would your opinion be any different regarding whether or not it was reasonable conduct by Colin Johnson to ride down that hill at midnight without a head lamp if Colin Johnson knew that bicycles used after dark required a head light which was visible for 500 feet.

THE COURT: By statute.

BY MR. ARVIDSON:

Q By statute, yes. Knew that was required by statute.

THE COURT: Would you opinion any different?

THE WITNESS: It would not.

BY MR. ARVIDSON:

Q Why wouldnít it be any different?

A Very simple reason, Mr. Johnson presumably had the opinion that is widespread that the reflectors, the all reflector system provided adequate safety, adequate visibility to motorists if you want to look at that in one phrase, conspicuity is a better word, and that he has no idea why the statute requires a light. As far as heís concerned, you would think that this is simply a hang over from the old days and now weíve got reflectors that are better or he may think that heís being safe by using the reflectors and that the lamp is perhaps a nice thing, or perhaps Ė so he can see where heís going or some other purpose. He doesnít know. Heís been told the reflectors make it safe to ride at night. Therefore, he did what he thought was safe for himself, and I would call that to be reasonable. (October 6, 1993, Vol. 3 of 3, Pg 41-42)

Speed as a Function of Control This interchange speaks for itself:

BY MR. ARVIDSON, The Defense Attorney

Q Is Ė do you recognize that the speed of the bicyclists at night is a function of his ability to control himself on the bicycle in the face of sudden emergencies.

A Your question makes no physical sense, I just donít understand the point of it. (October 6, 1993, Vol. 3 of 3, Pg 52)

The Motor Vehicle Driver According to Forester, the motor vehicle driver who turned in front of the cyclist did nothing that contributed to the accident.

BY MR. ARVIDSON, The Defense Attorney

Q Now, in your opinion regarding the reasonableness of the conduct of Mr. Rivera, which I believe you said since he didnít see the bicycle, that it was perfectly proper for him to make his turn, correct? That was your position?

A Thatís correct, yes.

Q Did you include within that opinion an assumption that Mr. Rivera had or had not put on his left directional signal?

A I considered that irrelevant.

Q Well, if Mr. Rivera had put on his left directional signal, would that give you cause to consider whether or not he put it on because he saw an on oncoming vehicle?

A Are you suggesting that I considered that he put the turn signal on because he saw the bicycle and turned in front of it?

Q Did you Ė

A Is that the question youíre asking me?

Q Did you consider that possibility?

A No I did not.

Q Did you assume that he had put his directional signal on?

A I made no assumption either way.

Q It didnít matter.

A Thatís right.

Q If you were to assume that Mr. Rivera testified at depositions that he put his left turn directional signal on, would that make any difference in your evaluation of whether or not he acted reasonably?

A It doesnít make a hoot worth of difference. (October 7, 1993, Pg. 23-24)

Final Opinion By reading the cyclistís mind, Forester opines that the cyclist was not at fault.

BY MR. ARVIDSON, The Defense Attorney

Q Is it your opinion that it would be reasonable for the plaintiff having seen the left directional signal on the Rivera vehicle, to do nothing, assuming that the Rivera vehicle was still in the Ė across the double yellow line, but with the directional signal on, approaching the Colony Drive intersection, to do nothing regards to its speed Ė to his speed or his direction?

A Mr. Johnson was under the impression that the reflectors with which his bicycle was equipped were sufficient to show to Mr. Rivera, whose name he didnít know as of that moment, to show to the driver of the vehicle that he was coming. And under the law Ė the traffic laws, he has the Ė I know thereís a question about who has the right of way and who yields it, but the traffic law says Mr. Rivera has to yield to him. Therefore, it is entirely reasonable from Mr. Johnsonís point of view, on the assumption heís been seen and particularly the idea that, ah, the signal has been turned on, because he knows Iím here. Sure, of course he would keep going.

Q And was it reasonable for Mr. Johnson to make that assumption without reflective clothing or without having a head light on.

A Well, if he had been wearing reflective clothing, he would have thought it had the same effect as the reflector and he thought that the reflector principle was adequate. Thatís a common misconception, he was mislead. As long as he thought it was adequate, he thought it was adequate because he was seen. (October 7, 1993, Pg. 29-30)

Bike Industry is at Fault Forester opined, again, that the only entity at fault in this accident was the Bike Industry. The fact the Cyclist, Collin Johnson, was on the double yellow line going 41 mph in a 25 mph speed zone dressed in dark clothing, without a headlight at 1:30 A.M. had no bearing on the causal factors of this accident.

BY MR. ARVIDSON, The Defense Attorney

Q With the Rivera vehicle approaching the intersection of Colony drive with its headlights pointed up towards the direction from which the bicycle is coming and proceeding to make a left-hand turn that the only person responsible for this collision is my client?

A No. There Ė the responsibility for this collision is distributed among the bicycle industry in general. (October 6, 1993, Vol. 2 of 3, Pg. 8)

Conclusion The Forester testimony is provided to illustrate the damage a totally unqualified individual can cause in a Jury Trial. Under the Kuhmo decision, an individual cannot use experience, such as witnessing the occurrence of an accident, as a criteria for being accepted as an expert. In addition, an individual cannot testify to someoneís state of mind or give Engineering definitions that are obviously wrong without demonstrating their acceptance within the scientific community. For example, Foresterís incorrect definition of velocity, his failure to use a light meter to document light at the accident scene, and his opinions on the state of mind of the plaintiff and motor vehicle driver would never stand the scrutiny of the appeal process, or the scientific community, under the new standard of care.

Although Kuhmo is a Federal Court decision, it is fortunate that most of the states, 46 at last count, have adopted rule 702. This rule, in effect, is supposed to eliminate the use of "experts" as advocates for either "side". The decisions in the Daubert, Joiner and Kuhmo cases have gone a long way toward eliminating the unqualified expert and the ridiculous testimony provided by John Forester in the Johnson vs. Derby Trial.

 

To Return to John Forester's Discussion of the Derby Case

Green's Comments page last changed: 04-Feb-14