In yesterday’s blog, I wrote about expert testimony in trial. Last week, Kim Raab and I tried a case in Richmond Circuit Court, where the experts provided different opinion testimony. It was up to the jury to decide the truth.
Our client’s car was rear-ended, when she was sitting still on Hull Street. The insurance company’s lawyer told the jury that they accepted liability for the cause of the crash… just not the cause of our client’s injuries. So, the case went to the jury on the claim for injuries.
In these cases, it really comes down to what harms were caused. That includes how long the injuries last. That’s where the experts went different directions.
My client was treated by an orthopedic doctor, who gave her an injection in her back; but also said that she had a permanent injury. Her chiropractor had tried to treat her conservatively, because her MRI showed a bulging disc at two low-back levels.
Both the orthopedic doctor and the chiropractor testified that there was really nothing else that they could do for her. She doesn’t feel pain everyday, but the disc bulging can be aggravated by simple activities like sitting or standing for long periods; driving on trips; or trying to do certain exercises or doing too much activity that involves her low back.
The defense hired a doctor for the sole purpose of coming to court to testify. He did not see or talk to my client and he did not talk to any of the treating doctors. Instead, he did a “record review”. By his own testimony, that placed him in a better position to evaluate the injuries.
The doctor hired by the defense told the jury that our client had suffered some injury in the car accident, but that all injuries had resolved. He testified that she did not have any permanent injury and certainly did not need any additional medical treatment.
When I cross-examined this defense doctor, I knew that it would not be smart to attack him on medicine. He was firm in his opinion. The defense had already brought out that he had been hired and paid by them. The defense attorney just tried to make it sound like an independent evaluation.
I went back to the fact that the doctor had only read the medical records. I hear it often from defense experts, but I still never get their testimony that they are in a better position to give an opinion because they have not seen the client. Something like no emotional tie.
As in this case, I always then ask the doctor, “Doctor, do you personally have any patients that you have not seen or spoken to, whom you are currently treating?”. Of course, the doctor answered “No” with a smirk. In closing, it again went back to the reality of the double standard of treatment, versus the defense doctor being paid for testimony in trial. It’s one of those moments when you are hoping that the jury is also shining a light on that defense testimony.
When it comes time for the jury to decide its verdict, they have to decide who is telling the truth. Kim had asked the client during her testimony, to discuss what “permanent” meant in her everyday life. The client discussed issues that included what she could do at work. She also talked about how she has a hard time wearing high heels and now basically only wears flat shoes; or physically pays for it the next day when she wears heels.
When I am waiting for the jury to hit the courtroom buzzer to indicate that they have reached a verdict; I am just hoping that they don’t believe the defense doctor.
I usually don’t talk about the trial result and then I get emails that asked, “So what happened”. The jury came back with a verdict that was more than 10x the settlement offer. That defense doctor was apparently not influential. The jury believed our client.
For pic o’ day, this is about presentation. Also, this one is for my Mom!
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