Submitted by New Jersey Personal Injury Lawyer, Jeffrey Hark
Brittingham v. Goree, N.J. Super. App. Div.
Following trial, a jury threw out plaintiff’s case when it determining plaintiff had not suffered a permanent injury as a result of a car accident. At trial plaintiff introduced expert testimony that she suffered disc herniations as a result of the accident and her injuries were permanent. Defendant, who introduced their own expert testified that a) s/he examined the plaintiff, b) reviewed her medical records, and c) reviewed the MRI imaging studies. Defendant’s expert agreed that plaintiff’s MRI films revealed herniated discs but concluded plaintiff’s physical examination was normal, with little evidence of pain or restricted range of motion. Defendant’s expert opined that the herniations were probably pre-existing. During cross-examination, the defense expert doctor also admitted he gave no explanation in his report for concluding the herniations were pre-existing.
On re-direct, defendant’s expert stated that the injuries might be the result of plaintiff’s pregnancy. On re-cross, the doctor acknowledged he had no evidence to substantiate that plaintiff’s herniated discs were caused by pregnancy or a degenerative process. Plaintiff moved in limine to exclude the re-direct examination in which the doctor explained possible non-traumatic reasons for herniations. The judge denied the motion. After the verdict, plaintiff moved for a new trial, asserting the judge erred in denying her in limine motion, which the judge denied. On appeal, plaintiff contended that she was entitled to a new trial because defendant’s expert’s opinion was an inadmissible net opinion. However, plaintiff bore the burden of proving the accident caused a permanent injury. Defendant was not required to prove alternative causes of plaintiff’s disc herniations. Defendant’s expert’s opinion was based on his examination of plaintiff, which revealed she was able to perform certain tests, as well as her tasks at work, and she was capable of living her life without significant pain or restriction. His opinion that plaintiff’s disc herniations were not “permanent” injuries caused by the accident was not a net opinion. The appellate panel affirmed.
In this case there are several significant issues at hand. A defense “IME” or Independent Medical Exam, the defense expert doctor’s opinions regarding causation, and the plaintiff’s testimony about his/her deposition and interviews at the doctor’s office. In this case the court ultimately concluded, based on the doctor’s exam and interaction with plaintiff that she suffered no limitations of function of any kind, and the herniated disc could have been from other lifetime events. Yes, the doctor’s comments, unsupported by medical records or clinical history were clearly misleading but were, in fact, a net opinion.
But what is the bigger issue all of us as plaintiff’s attorney must face?? Often times, human nature dictates that people who are injured and have limitations do not want to admit them, and or minimize them. Why? Because we all want to feel, be, and act better than we can throughout our life. Often, client’s of mine have said, oh i can do everything just fine….. i just don’t run 10 miles any more, or I have the kids help around the house!! However, they are overlooking bigger problems they may be experiencing on a daily or hourly basis! For example, when asked about getting out of bed, toileting, leaning over the sink to brush their teeth, getting dressed, putting on undergarments, or merely walking to the bathroom they communicate the great pain or difficulties they experience. These are areas of embarrassment; yes, but these are the very ACTIVITIES OF DAILY LIVING which must be communicated to the doctors and jury when ever possible. Juries don’t relate to people who can’t fly to the Caribbean 3x per year, but that can relate to the person who has pain getting on and off of the toilet and wiping their behind! Why? Because they do it too!!! That is the important ADLs which may have been overlooked in this case!