IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

STATE OF DELAWARE,

V.
Cr. ID. No. 1604019011

KWAREASE A. BYARD,

Defendant.

Submitted: April 25, 2018
Decided: May 1, 2018
**Corrected: May 3, 2018
Upon the Defendant’s Motion to Exclude EXpert Testimony
DENIED
OPINION

Michael B. DegliObizzi, Esquire, Department of Justice, Wilmington, Delaware,
Attorney for the State

Michael W. Modica, Esquire, Wilmington, Delaware, Attorney for Defendant

JOHNSTON, J
FACTUAL AND PROCEDURAL CONTEXT
The Court held a Daubert hearing on April 25, 2018. The hearing concerned
the admissibility of data collected from a car’s crash sensing device, more commonly
known as an Event Data Recorder (“EDR”). This is an issue of first impression in

Delaware.

** Addition of Barzilai Axelrod, Esquire (ornitted in May 1,2018 Opinion)

The Defendant, KWarease Byard, is alleged to have been in a one car accident.
In connection With that accident, Byard Was charged With assault, reckless driving,
speeding, driving during suspension, and failure to show proof of insurance. In
advance of trial, the State notified Byard that it intended to introduce the expert
testimony of Corporal Joseph Aube of the DelaWare State Police. Aube is expected
to testify that the data recovered from the EDR demonstrates the speed Byard Was
traveling immediately before the accident.

Byard has moved for the exclusion of this testimony absent a showing by the
State that the EDR evidence is sufficiently reliable to be admissible under the
DelaWare Rules of Evidence.l

ADMISSION OF EXPERT TESTIMONY STANDARD

The DelaWare Supreme Court has adopted the Daubert standard to determine
the admissibility of expert testimony.2 Under this standard, the Court asks Whether:
(i) the Witness is “qualified as an expert by knowledge, skill, experience, training or
education;” (ii) the evidence is relevant and reliable; (iii) the expert’s opinion is
based upon information “reasonably relied upon by experts in the particular field;”

(iv) the expert testimony Will “assist the trier of fact to understand the evidence or

 

l Byard also raised a second issue in his motion: Whether Corporal Aube is qualified to testify
regarding the EDR. This second issue was not addressed at the hearing and Will be resolved at a

later date.
2 See Eskin v. Carden, 842 A.2d 1222, 1231 (Del. 2004) (citing Daubert v. Merrell Dow, 509

U.s. 579 (1993)).

to determine a fact in issue;” and (v) the expert testimony will not create unfair
prejudice or confuse or mislead the jury.3

When assessing the second factor of the Daubert standard_the reliability of
the expert’s opinion_trial courts consult a non-exclusive list of four more questions:
(1) whether the opinion at issue is susceptible to testing and has been subjected to
such testing; (2) whether the opinion has been subjected to peer review; (3) whether
there is a known or potential rate of error associated with the methodology used and
whether there are standards controlling the technique’s operation; and (4) whether
the theory has been accepted in the scientific community.4

ANALYSIS

Though the admissibility of data retrieved from an EDR is a question of first
impression in Delaware, several other jurisdictions have considered the issue. lt
would appear that EDR evidence has been admitted in every instance in which it was
challenged The majority of these cases, however, reached this conclusion under the
Frye, rather than the Daubert standard. Nonetheless, these cases are instructive The
Frye standard’s sole focus_the general acceptance of the evidence in the particular

field in which it belongs5_is analogous to Daubert’s inquiry into the acceptance of

 

3 Ia'. at 1227 (quoting Cunningham v. McDonald, 689 A.2d 1190, 1193 (Del.1997)).

4 Sturgis v. Baysz'de Health Ass ’n Chartered, 942 A.2d 579, 584 (Del. 2007).

5 Frye v. U.S., 293 F. 1013, 1014 (D.C. Cir. 1923) (requiring the subject of expert testimony to be
“sufficiently established to have gained general acceptance in the particular field in which it
belongs” to be ruled admissible).

the subject of the testimony within the scientific community. These Frye cases
uniformly declare that EDR evidence is generally accepted as reliable, primarily
because the EDR’s underlying technology is not novel.6

The Court has located only three appellate cases that did not analyze the
admissibility of EDR evidence under Frye. Though well-reasoned, two of the three
cases do not walk the same path through Daubert that this Court must under
Delaware law.

The first of these two cases is Commonwealth v. Zimmerman,7 a case decided
under Massachusetts law. The Supreme Judicial Court of Massachusetts has
“accept[ed] the basic reasoning of Daubert because it is consistent with
[Massachusetts’] test of demonstrated reliability.”8 That test, however, is more akin

to a Frye-Daubert hybrid than a Delawarean wholesale adoption of Daubert. In

 

6 Easter v. State, 115 A.3d 239, 248 (Md. Ct. Spec. App. 2015) (“[T]he circuit court did not abuse
its discretion in determining that ‘black box’ data derived from the air bag control module of
appellant’s SUV was sufficiently reliable to support the expert’s testimony.”); Com. v. Sajka, 95
A.3d 304, 308 (Pa. Super. Ct. 2014) (“This evidence establishes that the technology has existed
for almost 40 years, has been adopted by the major automobile manufacturers, and has been
recognized as an acceptable tool used by accident reconstruction experts to determine a vehicle's
speed prior to an impact. lt is not novel science; it is an accepted technology.”); State v. Shab_azz,
946 A.2d 626, 631 (N.J. Super. 2005) (accepting testimony of an expert witness that “there are no
organizations within the automotive community which question the reliability of EDR devices”);
Matos v. State, 899 So.2d 403, 407 (Fla. Dist. Ct. App. 2005) (“The process of recording and
downloading [EDR] data is not a novel technique or method . . . [EDR] data is generally accepted
in the relevant scientific field, warranting its introduction.”); Bachman v. General Motors Corp.,
776 N.E.2d 262, 281 (Ill. App. Ct. 2002) (“Crash sensors such as the [EDR] have been in
production in automobiles for over a decade, and the microprocessors that run them and record
their data also run everyday appliances, such as computers and televisions.”).

7 873 N.E.2d 1215 (Mass. App. Ct. 2007).

8 Id. at 1217-18 (quoting Commonwealth v. Lanigan, 641 N.E.2d 1342, 1349 (1994)).

4

Massachusetts, the proponent of the evidence “may lay a foundation by showing that
the underlying scientific theory is generally accepted within the relevant scientific
community, or by showing that the theory is reliable or valid through other means.”9

ln Zz'mmerman, the Appeals Court of Massachusetts applied this hybrid test in
affirming the trial’s court decision to admit EDR data. The Appeals Court explained
that the expert testified:

that the technology behind the EDR had been known for many years;

that he and others had tested the speed of motor vehicles by other

methods to compare information provided by the EDRs and had found

the EDRs to be reliable; that EDRs need no maintenance and calibration

for ten years; and that his calculations based on the physical and other

evidence in this case were consistent with the EDR data nom the

defendant’s vehicle.‘O

However, the trial court “did not refer to the alternate prongs” of
Massachusetts’ hybrid test in its decision, leaving the appeals court to conclude that
the trial court only “implicit[ly]” decided that the expert’s testimony indicated EDR
data’s “validity,”ll unfortunately without providing any substantive analysis. The
appeals court went on to affirm the admissibility of the EDR data on the alternative

ground that there was “ general acceptance of data from motor vehicle crash

recorders in the relevant scientific community.”12 Though Massachusetts is

 

9 Id. (quoting Commonwealth v. Patterson, 840 N.E.2d 12, 24 (Mass. 2005) (emphasis in
original)).

10 Id. at 1220.

ll Id

12 ld. at 1220-21.

nominally a Daubert jurisdiction, the Zimmerman court admitted the evidence
without performing a complete Daubert analysis.

The same is true in State v. Dz'az,13 another appellate case in a Daubert
jurisdiction, which admitted EDR evidence. The procedural posture of Dz`az, a New
Mexico case, precluded a substantive Daubert analysis. In Diaz, the defendant failed
to make a Daubert motion before trial, but later objected to the admission of EDR
data on the grounds that it required expert testimony. Rather than exclude the EDR
evidence, the trial court allowed the State to amend its witness list to include an EDR
expert. On appeal, the Defendant attacked the expert’s qualifications, but
specifically noted that the Defendant “was not challenging the science underlying
the [EDR] system data . . . .”14 “In the absence of such a challenge, the district court
was entitled to assume that the underlying reliability of the [EDR] system need not
be examined . . . .”15 In other words, neither at trial nor on appeal did the New
Mexico courts have the opportunity to analyze the admissibility of the EDR data
through a Daubert analysis.

It appears that the only appellate case performing a Daubert analysis of EDR

data is State v. Clary,16 an unpublished Arizona Court of Appeals decision. In Clary,

 

13 2017 WL 1017356 (N.M. Ct. App.).

14 Ia’. at *1.

15 Id_

16 2016 WL 4525041, at *7 (Ariz. Ct. App.).

the court found EDR data reliable when an expert testified at an evidentiary hearing
that the EDR data “had been tested, that his reconstruction opinions were subject to
peer and supervisor review, and that the error rates were approximately plus or minus
four miles per hour for speed and ten miles per hour for a change in velocity.”17 The
court also concluded that standards existed “to control how such data should be used
by accident reconstructionists” because of the expert’s testimony “that he was
trained and certified by the Collision Safety Institute to download and analyze [EDR]
data.”18 Finally, the court relied on cases nom Frye jurisdictions to establish that
EDR technology has been generally accepted in the accident reconstruction field.19
In sum, caselaw demonstrates that EDR evidence has been met with an
overwhelming chorus of approval in jurisdictions across the country, without a
single voice raised in dissent. Though authority for admission under the Frye
standard is stronger than that under Daubert, this appears to be the result only of
where the issue happened to be raised, rather than a meaningful difference in
outcome between the two standards. No Daubert jurisdiction has yet to reject EDR

evidence.

 

17 Id

18 101

19 Ia'. (citing Com. v. Sajka, 95 A.3d 304 (Pa. Super. Ct. 2014); Bachman v. General Motors
Corp., 776 N.E.2d 262 (111. App. Ct. 2002)).

With the weight of authority established firmly on the side of admission, the
Court now turns to the evidence of reliability presented in this case.

Richard R. Ruth testified in support of the admission of EDR data. Ruth, a
registered professional engineer in the state of Michigan, testified that he was
employed by the F ord Motor Company for thirty-three years, where he was a
member of the F ord Event Data Recorder Policy Committee and worked as Manager
of Design Analysis Vehicle Dynamics and Interior. Ruth has been a member of the
Society of Automotive Engineers (“SAE”) for forty-three years and has attended and
presented at EDR conferences and symposiums across the country. Ruth has
authored peer reviewed papers on EDR and works as a peer reviewer for the SAE
World Congress. He currently works as an instructor at the University of North
Florida, Institute of Police Technology and Management in Use of EDR Traffic
Crash Recon. Ruth also owns his own consulting business, in which he reads EDRs
and applies the data to traffic crash reconstruction to determine vehicle Speeds and
driver behavior before a crash.

Ruth addressed each of the Daubert factors of reliability:

(1) whether a theory or technique has been tested;

(2) whether it has been subjected to peer review and publication;

(3) whether a technique had a high known or potential rate of error and

whether there are standards controlling its operation; and

(4) whether the theory or technique enjoys general acceptance within a
relevant scientific community.20

 

20 Sturgis v. Bayside Health Ass ’n Chartered, 942 A.2d 579, 584 (Del. 2007).
8

As to the first three factors, Ruth testified that there are peer-reviewed
publications that tested EDR systems and thereby established its known error rate.
Ruth testified that the EDR is susceptible to testing through the use of crash
simulations, in which the EDR’s reported speed of the vehicle prior to the crash was
compared to an independent means of measuring speed, such as a fifth wheel or a
GPS unit.

The results of these tests have been widely published in peer-reviewed
journals. These publications established the potential rate of error associated with
an EDR. Generally, the EDR has been found to be an accurate measure of a vehicle’ s
speed plus or minus 4%. The EDR has been found to be an accurate measure of
crash severity, measured by the change in velocity, plus or minus 10%.

As for whether there are standards controlling EDR’s operation, Ruth testified
that the National Highway Traffic Safety Administration (“NHTSA”) issued a rule
regulating minimum accuracy benchmarks for EDR. The stated purpose of the
regulation “is to help ensure that EDRs record, in a readily usable manner, data
valuable for effective crash investigations and for analysis of safety equipment
performance (e.g., advanced restraint systems).”21 To achieve that purpose, the

regulation sets requirements for what data elements the EDR must contain, the

 

21 49 C.F.R. § 563.2.

format of the data, rules for the capture of data, rules for crash test performance and
survivability, and what information on the EDR must be included in the owner’s
manual.22 Finally, the regulation also sets the standard of the acceptable range of
accuracy for the various elements EDRs are capable of recording23 For instance,
the NHTSA requires an EDR’s measure of a vehicle’s indicated speed to be accurate
within plus or minus l km/h.24

Ruth also addressed whether the theory has been accepted in the scientific
community. This factor is resoundingly established by the above cited caselaw.
Ruth added that EDR is regularly used by automakers to establish whether safety
systems worked properly in the event of a crash, by insurance companies to confirm
or deny claims, by the National Transportation Safety Board to collect accident data,
and by crash reconstructionists across North America. He also testified that an
estimated 99% of new cars are outfitted with an EDR. Ruth asserted that he was
unaware of anyone in the accident reconstruction field that rejected the use of data
extracted from an EDR.

Ruth’s testimony establishes that EDR data is sufficiently reliable for

admission under Daubert.

 

22 49 C.F.R. § 563.6.
22 49 C.F.R. § 563.8.
24 Id

10

CONCLUSION

The Court finds that evidence from an EDR is sufficiently reliable for
admission. The expert in this case demonstrated that: (1) the accuracy of EDR data
has been tested; (2) the results of the tests have been published in peer-reviewed
journals; (3) these tests have established the EDR’s error rate; (4) the NHSA has
promulgated standards for the EDR’s accuracy; and (5) the technology has been
universally embraced in the automotive industry and related fields.

The EDR testimony is relevant and will assist the trier of fact to understand
the evidence and to determine a factual issue. The evidence will not create unfair
prejudice or confusion.

THEREFORE, the Defendant’s Motion to Exclude Expert Testimony is
hereby DENIED.

IT IS SO ORDERED.

 

The Hm?%ble M{ry M. Johnston

11

 

