July 27, 2006
In the weekly roundup a little while back, I mentioned an 11th District case which held that a expert testimony wasn't necessary to prove a knee strain in a workers comp case. The same question, of course, can arise in any PI case: can you prove an injury case without having a doctor testify?
The lead case on this is the 1976 Supreme Court decision in White Motor v. Moore, 48 OSt2d 156, where the court held that expert testimony wasn't required if the causal connection between the injury and the subsequent physical disability is within "common knowledge." Moore involved a bruised knee, and it's easy to understand the argument that if someone has a bruise on his knee after he bangs it on a pipe, you don't need a doctor to tell you that the bruise was caused by the banging.
You might think that the breakdown falls pretty nicely along the axis of "hard" injuries, like bruises and bone-breaks, versus soft-tissue injuries, but it ain't necessarily so. Courts have said expert testimony isn't necessary to prove that a staph infection resulted from a wound, and back in 1992 our court held, in Perry v. LTV Steel Co., 84 OApp3d 670, that it was common knowledge that "a person who trips, falls, becomes groggy and suffers immediate pain certainly can experience a sudden loss of consciousness."
In fact, courts have even been willing to dispense with the need for expert testimony in soft-tissue injuries. A good case to start with here is the 4th District's decision five years ago in State Farm v. Lucas. It noted that courts had come to rather inconsistent results on that subject, with some holding that neck and back injuries require expert testimony, and others holding that it's "common knowledge that rear-end collisions can cause head, neck, and shoulder injuries." (To give you an idea of the confusion, one of the cases the court cites is a 1994 decision out of our county, where the court held that a shoulder strain didn't require a doctor's testimony, but neck and back strain did.)
The Lucas court didn't do a whole lot to clarify the confusion. In fact, they might have added to it; you tell me how definitive this is:
In a rear-end collision in which the lead vehicle sustains heavy damage, it is common knowledge that the occupants of the lead vehicle could sustain neck or back injuries. On the other hand, if there is little or no damage to either vehicle, or if the plaintiff delayed seeking medical attention, then it is more likely that expert testimony is necessary to establish the cause of the plaintiff's injuries.
Terms like "heavy damage" and "delayed seeking medical attention" certainly leave a lot of wiggle room, don't they?
The reason this is topical is because some insurance companies are forcing trials in personal injury cases with low prospective damage awards, knowing that it's not cost-effective for the plaintiffs to pay a grand or more for a doctor's deposition or testimony. Even if you've got a soft tissue injury, the right circumstances and some digging through the case law here (and where it will lead you) might enable you to avoid that expense.