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Calling Out Meaningless Expert Disclosures in Medical Malpractice Cases
The defendant doctor’s style of disclosure is almost always generic in nature and could be used in virtually any case of medical malpractice (i.e. all care provided by Dr. “X” was within the appropriate standard of care and was not a factor in the outcome). No meaningful expert disclosures are made revealing the grounds and reasons for the conclusions reached, in other words, the “why” for the expert opinions.
Indiana Trial Rule 26(E)(1) explicitly requires a party to seasonably supplement their responses (regardless of any request to do so) concerning the opinions, conclusions and findings of any expert witness. This duty is absolute and is not predicated on either a Court order or repetitive discovery requests. Lucas v. Dorsey, Corp., 609 N.E.2d 1192 (Ind. App. 1993). A party is entitled to know the subject matter of the expert’s testimony, the substance of the facts to which the expert(s) will testify, their opinions, and a summary of the grounds for each opinion. In Ferrara v. Balistreri and DiMaio, Inc. (1985), D. Mass., 105 F.R.D. 147, a Defendant requested the Plaintiff state for each expert the name, address, subject matter of their testimony, substance of facts to which the experts would testify, his opinions, and a summary of the grounds for each opinion. In response, the Plaintiff noted for several of the expert witnesses that he had not yet obtained a report setting forth the facts and opinions of the expert but would provide a copy of the same upon receipt. The Trial Court decided that such a response was inadequate under the Federal Rules of Civil Procedure and stated that:
The duty to supplement is a duty to supplement seasonably (original emphasis). Counsel must not postpone supplementation indefinitely by delaying the retaining of experts and expecting that when he will be able to supplement at the last possible moment before trial is to start. Similarly, counsel may not postpone supplementation by not obtaining from the experts which had been retained the information which is to be supplied in answer to expert interrogatories. In the instance case, counsel for the Plaintiffs did both.
Id. at 150.
The Trial Court specifically ruled it was improper to answer this interrogatory concerning experts on the basis that the witnesses’ opinions would be disclosed when counsel for the Plaintiff “obtains” a report. Id. at 150. The Court determined the Plaintiff’s counsel was under an affirmative obligation to procure such information so that he could file full and complete answers to the expert interrogatories, and was not entitled to delay in doing so. Id. at 150. The Court specifically rejected the Plaintiff’s position that he was under no duty to supplement if the experts had not given him the information. Id. at 150-151. As a result of the Plaintiff’s failure to provide such information, the Court excluded the testimony of certain expert witnesses at trial. Id.
This Rule has also been applied even to rebuttal experts. McCullough v. Archbold Ladder Co., 605 N.E.2d 175 (Ind. 1993).
No meaningful expert disclosures have ever been in the present case revealing the grounds and reasons for the defense expert’s opinions concerning whether the defendant doctor has breached the standard of care.
A party cannot withhold expert disclosures even if the expert is being presented by way of rebuttal. McCullough v. Archbold Ladder Co, supra. Full disclosure of the “substance of the facts and opinions to which the expert is expected to testify and a summary of the grounds for each opinion” must be made. Such is required in order for a Plaintiff patient to fairly address a defense doctor’s testimony and determine the areas of questioning required.
Allowing generic disclosures permits the defense to wait until trial and hide in the weeds. This not fair and violates the obligation to provide meaningful disclosures in advance of trial.
I recommend calling the defense out with a motion to compel or seek a protective order when the defense expert disclosures simply state the doctor’s treatment provided met the standard of care.
Read the rest of this entryWhy Sorry is the Badest Word…
An expression of regret or an apology by a Defendant is nothing new when a case doesn’t settle and finally makes it to trial. However, should this be allowed? Why no!
Defendants should be prohibited from expressing any apologies or statements of regret to the jury in connection with a civil case not seeking punitive damages. Whether one is sorry or not for injuring a person constitutes neither a defense, nor is it relevant to any issue concerning whether or not to grant compensatory damages. The sole purpose of making such a statement to a jury is to encourage them to return a reduced verdict because the Defendant is sorry about what happened and is really a good guy. General appeals to sympathy or prejudice on the part of a jury are inappropriate and should be prohibited by a trial court. The jury’s obligation is to render a verdict for just compensation, not to hear confessions or grant absolution. Their function is not to forgive, it is to fairly compensate one for their injuries. Only God can forgive.
Any references made to this effect should not be permitted as they are calculated to mislead and confuse the jury and would clearly be immaterial and irrelevant to any issue involving either liability or damages. See Rules of Evidence 402 and 403. See generally, King’s Indiana Billiard Co. v. Winters, 123 Ind. App. 110, 127, 106 N.E.2d 713, 721 (1952). So cut this tactic off with a pretrial motion in limine. Otherwise you may be sorry you didn’t.
Limiting the Damage
So you lose an evidentiary argument and the court allows some potentially prejudicial evidence to be presented for some narrow purpose such as bias, impeachment or to show intent, similar plan, motive or scheme. So what should you do?
Indiana follows “the rule of multiple admissibility” endorsed by the evidence treatises of both Whitmore and McCormick. Under this rule, evidence that is admissible for one purpose is admissible, even though it might be excluded from consideration by the jury if it was offered for another improper purpose. The opponent of the evidence is protected, not by exclusion of the evidence, but instead by the use of a limiting instruction. Indiana Evidence Rule 105 provides:
“If the court admits evidence that is admissible against a party or for a purpose—but not against another party or for another purpose—the court, on timely request, must restrict the evidence to its proper scope and instruct the jury accordingly.”
The party seeking to limit the evidence has the duty to request the instruction. Small v. State, 736 N.E.2d 742, 746 (Ind. 2000) (observing “a trial court has no affirmative duty to admonish a jury sua sponte as to such evidentiary matters”). As a result you should ask the court to specifically define the area of use and address inappropriate inferences or uses which are prohibited. Indiana Pattern Instruction No. 527 Evidence Admitted for a Limited Purposes states:
During the trial, I instructed you to consider certain evidence only for specific, limited purposes. You must consider that evidence only for those limited purposes.
Evidence relevant for some legitimate purpose, can only be excluded if it violates the precepts of Indiana Rule of Evidence 403. Under this rule, the danger of unfair prejudice has to substantially outweigh the evidence’s probative value in order to exclude it, thereby tipping the scales in favor of admissibility.
Keep these thoughts in mind the next time you need to limit the damage…
What to Do When They Call Your Client a Liar, a Fraud and a Cheat.
The defense has enlisted the aid of a hired gun “expert” who insinuates or is going to testify that your client is a malingerer or a fraud. What can you do to address such tactics? Can you exclude the testimony? Should you address it head on or skirt the issue? Hopefully, this blog will offer some strategies to address this sort of tactic.
Motion in Limine
This is one approach that you could take. File a motion in limine to exclude such testimony. Indiana Rule of Evidence 704(b) provides:
Witnesses may not testify to opinions about intent, guilt, or innocence in a criminal case; the truth or falsity of allegations; whether a witness has testified truthfully; or legal conclusions.
In contrast, Indiana Rule of Evidence 608(a) provides:
Opinion and Reputation Evidence of Character. The credibility of a witness may be attacked or supported by evidence in the form of opinion or reputation, but subject to these limitations: (1) the evidence may refer only to character for truthfulness, and (2) evidence of truthful character is admissible only after the character of the witness for truthfulness has been attacked by opinion or reputation evidence or otherwise.
So how do you reconcile these two conflicting provisions? Well, Rule 704(b) applies to expert opinions, while Rule 608(a) deals with opinions of lay witnesses. The Federal counterpart to Indiana Rule of Evidence 704 is limited to criminal cases in instances where the mental state or sanity of the Defendant is at issue. This rule provides:
(b) No expert witness testifying with respect to the mental state or condition of a defendant in a criminal case may state an opinion or inference as to whether the defendant did or did not have the mental state or condition constituting an element of the crime charged or of a defense thereto. Such ultimate issues are matters for the trier of fact alone.
The advisory committee notes indicates that this limitation prevents experts from invading the province of the jury in criminal cases where sanity or the mens rea is at issue. The rule prevents a confusing “battle of the experts” and preserves the decision on the ultimate issue of state of mind for the jury, rather than leaving it in the hands of retained experts. The rule promotes reliability by preventing testimony on the legal connotations of a medical diagnosis, a role the American Psychiatric Association admits that psychiatrists are not qualified to fill.See United States v. Austin, 981 F.2d 1163, 1166 (10th Cir.1992); see also United States v. Wood, 207 F.3d 1222, 1236 (10th Cir.2000) (Rule 704(b) is intended to prevent “intrusion[s] into the province of the jury”). Another court has similarly written:
The theoretical effect of Rule 704(b) is to make it possible for juries to find a defendant not guilty by reason of insanity even if no expert would draw that same conclusion. Conversely, the rule also permits juries to find a defendant sane and guilty even if every expert would opine that the defendant was insane. The purpose of Rule 704(b) is to have jurors decide whether the defendant was sane or not without being told what conclusion an expert might draw. United States v. West, 962 F.2d 1243, 1247 (7th Cir.1992).
While there is not much in the way of case law in Indiana interpreting this provision, at least one jurist. See Sears Roebuck v. Manuilov, 742 N.E.2d 453 (Ind. 2001)(upholding admission of medical testimony under I.R.E. 702 establishing post-concussive syndrome). In his dissenting opinion, Justice Boehm stated:
“Dr. Blinder testified, among other things, that in his opinion Manuilov was not a malingerer. This opinion was not based on observation of physical symptoms or scientifically valid tests, but on Blinder’s observation of Manuilov’s behavior and accounts of that behavior furnished by Manuilov or his counsel. Among the latter was the assurance that Manuilov had no criminal history or anti-social behavior.
Blinder told the jury that Manuilov had no criminal history and suggested he was not a “wife beater.” These assumptions were explicitly made a basis of his view that Manuilov was not a malingerer. This was not challenged under Indiana Evidence Rule 704(b), which provides that a witness may not testify as to whether another “witness has testified truthfully,” so, to the extent this is an issue, it is not presented here.”
. [Emphasis Added].
It seems likely that if a timely objection is made under Indiana Evidence Rule 704(b) to testimony regarding expert opinions on malingering that it, would be sustained, in an effort to preserve the jury’s autonomy in assessing the credibility of witnesses and avoiding problems associated with a battle of the experts. This dissenting opinion of Justice Boehm is the only discussion I have located on this specific topic in any judicial opinion in The State of Indiana. In Morse v. Davis, 965 N.E.2d 148 (Ind. Ct. App. 2012), trans. denied., the Indiana Court of Appeals held that no witness, lay or expert, is competent to testify that another witness is or is not telling the truth.
The Direct Approach – Polarizing The Jury
The is an important book which provides a comprehensive approach to this problem and in fact fully embraces the issue and in fact welcomes a clear claim of malinger. The book is called “Polarizing the Jury“. by Rick Friedman. This book provides an innovative approach to trying cases. Too often we allow the defense in personal-injury cases to hide behind ambiguities and insinuate that our client is not being truthful. This book provides you with concrete examples to force your opponent to either embrace fully embrace the position; that your client is “a liar, a cheat and a fraud” or completely abandon this position.
The book provides a comprehensive approach to simplify your case, focus the jury’s attention and deal with a single coherent theme… Is my client telling truth about his or her injuries? At each stage in the proceedings the defense is forced to either clearly adopt the position that your client is “a liar, a cheat and a fraud” or clearly reject the position. The defense and it’s experts are forced through questioning or discovery to either adopt or reject this position.
The defense is not allowed to hide behind ambiguous positions or attack your client through innuendo or vague and insidious suggestions of doubt. The primary weapon to combat such experts and a defense are lay witnesses who can provide a clear before and after picture of changes in your client’s life by the defendant’s tortious acts. The issue in opening is framed as follows:
This is the person that they want you to believe is a liar, a cheat and a fraud.
You will hear a lot of witnesses and see a lot of evidence in this case. But in the end, there is really on what only one major issue you need to decide is my client a liar, a cheat, and a fraud?
That is the defense in this case.
If he is a liar, a cheat and a fraud, you should send him out of this courtroom without a cent. But if you decide he’s telling the truth, that he is truly injured, and the defense is attacking him in order to avoid paying for the harm they have caused, then your verdict needs to ensure that they do not profit from this tactic and you should consider what would be fair compensation for the injuries and losses my client has suffered and for the impact this collision and its impact on their relationship as husband and wife.
I strongly recommend that you obtain the book as it effectively helps you frame the issue in a fashion that it is understandable to a jury and combats the false doubts raised through the use of veiled attacks and innuendos against your client’s integrity and honesty.
Closing the Deal – Addressing the Attacks in Closing Argument
Here are some arguments to present to the jury in your rebuttal:
WHEN THE LAW & FACTS ARE AGAINST YOU: In law school they say if the facts are in your favor, argue facts, if law is in your favor, argue law, if neither law or facts are in your favor, argue like a lawyer and try to confuse the jury about what the case is really about. It’s the oldest trick in the book. The defense took a nice simple case that is straight forward and tried to make it complicated by pointing to a bunch things that really have nothing to do with the case’s merit, in hopes that you’ll forget what this case is really about.
Another argument to present to a defense request for the jury to make his arguments for him when he sits down as suggested by the noted Attorney Moe Levine:
Countless attorneys, skilled and persuasive each with their own acquired tricks to influence a jury by sowing the subtle seeds of cynicism. One of these is that when he sits down, he appoints you as his assistants and gives you permission to share with him the responsibility to represent his client in the jury room by answering each of my arguments to you. However, if this were truly the case, what need would there be to sum up at all? We would simply send you to the jury room and ask you to deliberate. This type of argument is not new to me. It is insidious and subtle. It ask you to take on the role of an advocate instead of that of a fair and impartial judge of the facts. Such comments subtly shape your view of the evidence. it moves you from a role where you are impartial, unbiased and neutral, to a role of where you act as an advocate for one side over the other. These techniques are subtle but effective.
When the defense attacks through the use of innuendos:
He attacks by innuendo asking how can we know what the evidence shows when my client says he is in pain from this collision. He has had problems before. How can this be different. This to is subtle because what he is really saying is my client is a liar and a cheat and a fraud. He won’t come right out and say because he knows such a statement is outrageous and unworthy of consideration. In fact it is insulting. Instead you subtly insinuate that something is not right, plant the seeds of cynicism and hope that back in the jury room they will sprout.
This flies in the face of the evidence presented. To buy into this argument you would have to conclude that:
A. If Their Goal Was Money: My client and his spouse have come into this Court and both lied. If this were about fraud would not you make greater claims? Wouldn’t you have run up unnecessary treatment? Would you be constantly complaining about your condition and claiming that your pain did not improve with treatment. Wouldn’t you do everything in your power to make you case more valuable. This has not occurred. My client has worked to get better and in fact has had periods of remission where his pain has improved even though it has never completely gone away.
B. Speculative and Unsupported Causes: He also has insinuated that something else must has caused his symptoms. He does this with evidence of any sort and again subtle plants the seeds of cynicism by asking questions and suggesting facts that no one has testified exist. It is undisputed that my client complained of symptoms at the scene and told the investigating police officer of this. The defense has no Doctor who has said such things. If the medical evidence is there, he could have hired an expert to say this is so. Instead of evidence, he has asked that you guess and speculate. This is not allowed.
Conclusion
I hope these strategies assist you in dealing with unfair attacks on your clients integrity.;
Motion in Limine: An Effective Pretrial Tool and Weapon (Part 5)
Here are a few additional topics to cover in your motion in limine to keep red herrings from finding their way into your case:
EXPRESSION OF REGRET OR APOLOGY BY DEFENDANTS
Defendants should be prohibited from expressing any apologies or statements of regret to the jury in connection with the above-referenced matter, as whether one is sorry or not for injuring a person constitutes neither a defense, nor is it relevant to any issue concerning whether or not to grant compensatory damages. The sole purpose of making such a statement to a jury is to encourage them to return a reduced verdict because the Defendants are sorry about what happened. General appeals to sympathy or prejudice on the part of a jury are inappropriate and should be prohibited by this Court. Also, I.C. 34-43.5-1-4, Prohibited admission of communications of sympathy, provides:
Sec. 4. Except as provided in section 5 of this chapter, a court may not admit into evidence a communication of sympathy that relates to causing or contributing to:
(1) a loss;
(2) an injury;
(3) pain;
(4) suffering;
(5) a death; or
(6) damage to property. [Emphasis Added].
Any references made to this effect should not be permitted as they are calculated to mislead and confuse the jury and would clearly be immaterial and irrelevant to any issue in this cause. See Rules of Evidence 402 and 403. See generally, King’s Indiana Billiard Co. v. Winters, 123 Ind. App. 110, 127, 106 N.E.2d 713, 721 (1952).
OFFER OF PAYMENT OF MEDICAL AND SIMILAR EXPENSES
Defendants should be prohibited from introducing any evidence of offers to make payments of medical expenses or similar costs. Rule 409 of the Indiana Rules of Evidence specifically prohibits such evidence. It provides that:
Evidence of paying or furnishing, or offering or promising to pay medical, hospital, or similar expenses occasioned by an injury, or damage to property is not admissible to prove liability for such injury or damages. [Emphasis Added].
Any references made to this effect should not be permitted. Simon v. Clark, 660 N.E.2d 634, 1263 (Ind. Ct. App. 1996). Also, such evidence is calculated to mislead and confuse the jury and would clearly be immaterial and irrelevant to any issue in this cause. See Rules of Evidence 402 and 403.
DELAY IN OBTAINING SURGERY AND CLAIMS OF FAILING TO MITIGATE DAMAGES
The defense has raised the affirmative defense of mitigation and may assert that Plaintiff has failed to mitigate his damages by not having surgery performed. The affirmative defense of failure to mitigate damages has two elements, both of which the defendant must prove by a preponderance of the evidence:
(1) the plaintiff failed to exercise reasonable care to mitigate his or her post-injury damages, and
(2) the plaintiff’s failure to exercise reasonable care caused the plaintiff to suffer an identifiable item of harm not attributable to the defendant’s negligent conduct.
Willis v. Westerfield, 839 N.E.2d 1179, 1188 (Ind. 2006). When a defendant seeks a failure to mitigate damages instruction based on a plaintiff’s failure to follow a treating doctor’s recommendations, whether expert medical opinion testimony is required is to be determined on a case-by-case basis. Willis v. Westerfield, 839 N.E.2d 1179, 1182 (Ind. 2006). Expert testimony is required where the question involves medical factors beyond the common knowledge of the layman such that the jury could only speculate in its findings. Willis, 839 N.E.2d at 1188-89. Here, the testimony of the treating physician has established that Plaintiff’s decisions concerning the course of his treatment to be reasonable. There is no testimony from any doctor that Plaintiff’s decision to delay surgery at this point in time is unreasonable or has resulted in probable harm to him. As such, any argument to this effect should be prohibited because such argument requires expert testimony.
MENTION OF WRITE-OFFS, DISCOUNTS AND REDUCTIONS
The defense should be prohibited from making any mention of write-offs, discounts and/or reductions as to Plaintiff’s past or future medical bills, as no such reductions/deductions have occurred and any evidence of the same is speculative in nature. There is no proof that this is likely to occur in the future. This information would simply cloud the issues in the present case and lead to distracting and confusing side issues. Ind. Rule of Evid. 403.
Keep these topics in mind next time you file a motion in limine. You may thwart an attempt to confuse and mislead a jury by the defense.
Motion in Limine: An Effective Pretrial Tool and Weapon (Part 3)
A “red herring” is normally used by people to divert the attention of others from something important; from the central point that is being considered. A “herring” is a kind of fish that turns red only when it is “cured” – that is, when it is smoked and salted. Such a fish emits a very strong smell and in the past criminals made use of red herrings to help them in their bid to escape the authorities. Convicts used the herring to help them throw dogs off his scent. Since the herring had a very strong smell, the police dogs followed the scent of the herring rather than that of the escaped convict! The original expression was “drag a red herring across the trail”, but now it’s been reduced to “red herring”. Below are more “red-herrings” to consider in filing a motion in limine:
Motor Vehicle Citations.
Any mention that a party was not arrested, cited, ticketed, or charged with a crime misdemeanor, traffic violation, or traffic infraction is normally hearsay and is the out of court opinion of a non-party on the ultimate issue. Such opinions arguably invade the province of the jury and may also violate the provision against providing opinions as to the ultimate issue under Rule of Evidence 704. Any attempt to tell the jury that a party was not “cited” by the investigating officer would be self-serving, prejudicial and misleading to the jury. See Rules of Evidence 402 and 403.
Lawyer Created Case.
The defense may argue or insinuate that this is a lawyer created case. All cases which are filed are necessarily lawyer created which is both proper and constitutionally protected by both state and federal constitutional law guaranteeing a remedy and due process. If you are representing a client you should be concerned that defense counsel may show to the jury in words or substance that plaintiffs’ lawyer has created the case or artificially increased the medical expenses. Any references made to this effect should not be permitted as they are calculated to mislead and confuse the jury and would clearly be immaterial and irrelevant to any issue in this cause. See Rules of Evidence 402 and 403.
Collateral Source Benefits.
The fact that the plaintiffs have received in the past, or may be entitled to receive in the future, benefits of any kind or character from a collateral source including, but not necessarily limited to, such collateral source benefits such as Workmen’s Compensation benefits, governmental benefits such as Social Security, or Veteran’s benefits, Medicare, Medicaid, or health insurance benefits. Also, the fact that a plaintiff may have been paid for work missed is collateral source. If your statutory or case law allows this type of motion, then you should consider filing it.
Verdict Not Subject to Tax.
The fact that any recovery of a plaintiff for bodily injuries is not subject to any State or Federal income tax is normally not admissible. Such information would only serve to confuse, mislead, and prejudice the jury. This limitation is either supported by case law or statute or is found in the pattern jury instructions of your jurisdiction. See also Rules of Evidence 402 and 403.
Rising Insurance Rates or Inflation in General.
Mention of rising insurance rates or of inflation in general would clearly be immaterial and irrelevant to any issue in this cause and would only be introduced in trying to prejudice the plaintiff or reduce the amount of any judgment for plaintiff. This is a classic appeal to prejudice of the jurors to serve their own self-interests in lower insurance premiums and is clearly inadmissible under Rules of Evidence 403 and 403.
Poverty of the Defendant.
Any suggestion by defendant, his counsel or witnesses, that a judgment or verdict in this matter would have to be paid by the defendant our of his own assets, including comments about his lack of capital or assets, cannot be set up by the defendant in mitigation of damages suffered by plaintiffs and, is inadmissible except in cases where wealth may be a relevant consideration such as in claims for punitive damages or for bad faith. If this does happen, the defense may be opening the door to evidence of insurance coverage.
Other Claims and Litigation by Client.
This is a common red-herring. Any other claims and litigation by a plaintiff should not be permitted to be introduced, because they are irrelevant and such attempt would be calculated to mislead and confuse the jury and work to the extreme prejudice of the plaintiffs. See Rules of Evidence 402 and 403.
Additional areas will be discussed in my next post.
Motion in Limine: An Effective Pretrial Tool and Weapon (Part 1)
I plan on writing a series of posts dealing with motions in limine and the topics you may wish to cover. A Motion in Limine is a motion made for a protective order against prejudicial questions and statements, which if heard by the finder of fact, would prevent a fair and impartial trial. The focal issue in determining whether a motion in limine should be granted is whether the prejudice in allowing admission of the proffered evidence outweighs any relevance the evidence may have. Thus, the test involves weighing the relevance of the evidence against the possibility that the jury will consider the evidence improperly or be inflamed or confused by such evidence. The balancing test goes beyond mere relevancy. As stated by Professor McCormick:
But relevance is not always enough. There may remain the question, is its value worth what it costs? There are several counterbalancing factors which may move the court to exclude relevant evidence if they outweigh its probative value. In order of their importance, they are these: First, the danger that the facts offered may unduly arouse the jury’s emotions of prejudice, hostility, or sympathy. Second, the probability that the proof and the answering evidence that it provokes may create a side issue that will unduly distract the jury from the main issues. Evidence 2d, (1972) 438-439.
A motion in limine is also effective in smoking out bad evidence you are unaware of as well. Once you file such a motion in limine, the opposing party will have to disgorge their plans in response to your motion. Here is a list of some potential topics you should consider.
Prior Condition of Plaintiff.
You may want to precluded the defense from making any reference to a client’s prior physical or mental health unless such condition is causally connected or related to the injuries that plaintiff is claiming. To meet the threshold of relevance, and thus admissibility, the defendant must come forward with probative and competent medical testimony in support of the proposition that plaintiff’s pre-existing conditions or injuries are the cause of plaintiff’s symptoms and problems alleged in the lawsuit. When the issue of a causal connection is not normally within the life experience and understanding of the jurors, then the testimony of an expert witness may be required depending on your jurisdiction’s law. The mere existence of a pre-existing condition, without more, may be insufficient to make the evidence admissible as relevant to the “cause” of a plaintiff’s injuries. When a defendant chooses to allege that a plaintiff’s symptoms and injuries are caused by a pre-existing condition (for the purpose of negating causation of plaintiff’s current injuries), then it is the defendant’s burden to satisfy the requirements of relevance and admissibility. This analysis was cogently explained by the Court in Voykin v. Estate of DeBoer, 733 N.E.2d 1275 (Ill. 2000):
In Caley, the Defendant sought to question the plaintiff regarding the accidents occurring before and after the accident at issue. The defendant’s theory was that these accidents were the cause of plaintiff’s injuries. The defendant contended that, because the plaintiff always bears the burden of proving proximate cause, the defendant did not need to demonstrate a connection between the other accidents and the plaintiff’s injuries. The appellate court rejected the defendant’s argument. It explained that although the burden never shifts between parties, the “burden of going forward with the evidence may shift from party to party.” Caley v. Manicke, 29 Ill. App. 2d 323, 327 (1961). The court further reasoned that although the defendant bore the burden of demonstrating the connection between the other accidents and the plaintiff’s injuries, that did not mean that the burden of proof shifted to the defendant. Caley, 29 Ill. App. 2d at 327, the court explained:
Proximate cause was part of plaintiff’s case. It was as indispensable as the elements of defendant’s negligence, plaintiff’s freedom there from and damage. Without it, plaintiff’s action would have failed. But, when he has borne the burden of proof and established the material elements necessary to make out a case, it is the defendant’s right, but certainly not his duty, to put on his defense. This is not shifting the burden of proof. One cannot say to have a burden if one may pick it up or not as he pleases. Obviously, if there is evidence negative of causation, a defendant would show it, but the law in according him his privilege of going forward in no way shifts to him the burden of proof as the law knows that phrase.
To evaluate testimony that sometime before a rear-end accident in question plaintiff had been bumped, bending a trunk handle, and that after the accident and before onset of a more serious lower back complaint, his front headlight was struck, to the status of contributing, intervening causes, suitable for submission to triers of fact, is to misread standards of relevancy required as preconditions of admissibility. That this devolves on the defendant to the same extent as on the plaintiff initially in presenting his case, which it does, does not shift the burden of proof, or indeed have anything to do with it. It is a question of relevancy, pure and simple. Caley, Id. at 330.
The question remains, however, whether expert testimony is necessary to determine whether a prior injury is relevant to the current injury. In a similar context, namely, medical malpractices cases, this court has recognized that expert testimony is normally necessary “because jurors are not skilled in the practice of medicine and would find it difficult without the help of medical evidence to determine any lack of necessary scientific skill on the part of the physician… [citations omitted].
We believe that similar considerations must govern here. Without question, the human body is complex… In most cases the connection between the parts of the body and past and current injuries is a subject that is beyond the ken of the average layperson. Because of this complexity, we do not believe that, in the normal circumstances, a lay juror can effectively or accurately assess the relationship between a prior injury and a current injury without expert assistance. Consequently, we conclude that if the defendant wishes to introduce evidence that the Plaintiff has suffered a prior injury, whether to the “same part of the body” or not, the defendant must introduce expert evidence demonstrating why the prior injury is relevant to causation, damages, or some other issue of consequence. Voykin v. Estate of DeBoer, Id. At 56, 58-59.
The foregoing rationale for requiring expert medical testimony to support the relevance of a pre or post injury medical history was recently adopted in Muncie Indiana Transit Authority v. Smith, 743 N.E.2d 1214 (Ind. App. 2001):
According to the Arizona Court of Appeals, the “obvious reason for this rule is that lay persons are no better able to testify concerning the functioning of the human body than they are able to treat its infirmities.” [citations omitted]. The Court further explained that although “most lay person have opinions and theories of their own as to how the human body functions, our courts have decided that, in order to recover compensation, a standard of expert evidence on the subject is required where the injury is not apparent to the layman.” [citations omitted]. When the cause of the injury is not one, which is apparent to a layperson, and multiple factors may have contributed to causation, expert evidence on the subject is required.
Absent competent and relevant evidence of a causal connection between a pre-existing condition and the injuries that plaintiff is alleging in this lawsuit, such evidence of any pre-existing condition may be inadmissible.
Claims of Sudden Emergency.
In a defendant may lists as an affirmative defense a claim of sudden emergency. In my jurisdiction, the case law is clear that for the jury to be given the instructions defining the sudden emergency defense three factors must be shown in the evidence.
A. The actor must not have created or brought about the emergency through her own negligence.
B. The danger or peril confronting the actor must appear to be so imminent as to leave no time for deliberations.
C. The actor’s apprehension of the peril must be reasonable.
Barnard v. Himes, 719 N.E. 2d at 862 (Ind. Ct. App. 1999).
If there is no factual basis for applying the sudden emergency defense, then allowing a defendant to suggest such defense would only confuse and mislead the jury. See Rule of Evidence 403 of the Federal Rules.
Red- Herring Claims of Other Causes of a Plaintiff’s Injuries.
Counsel may be precluded from making any argument or articulating any theories as to the cause of plaintiff’s injuries unless defense counsel’s arguments and theories are in fact supported by competent expert medical testimony. In the case of Kristoff v. Glasson, 778 N.E. 2d 465 (Ind. App. 2002), the Indiana Court of Appeals held that defense counsel may not argue pre-existing injuries, failure to mitigate and subsequent injuries unless and until their arguments and theories are supported by competent medical testimony. Id. at 473. If you know there is no evidence to support a bogus theory you may be well served in filing such a motion in limine. It could also force the defense to disclose evidence you may have overlooked or which was not produced in discovery.
Employment of Counsel.
The time or circumstances under which plaintiff employed counsel, including, the fee arrangement between the plaintiff and counsel is irrelevant unless there is an attorney fee claim by contract or statute. The purpose of this evidence is to prejudice the jury and to portray to the jury that plaintiff is “litigious.” Any such evidence is immaterial to the issues that will be decided by the jury and potentially very prejudicial.
Unnecessary Medical Treatment.
You should preclude or prohibit the defense counsel from alleging or arguing that plaintiff’s accident-related medical expenses are unnecessary or unreasonable. All damages directly attributable to the wrong are recoverable by the victim. The law also typically allows an injured plaintiff to recover reasonable costs of necessary medical treatment. Dee v. Becker, 636 N.E. 2d 176, 178 (Ind. App. 1994). The Indiana Supreme Court has held that the phrase “reasonable and necessary,” as a qualification for the damages recoverable by an injured party, means (1) that the amount of medical expense claimed must be reasonable, (2) that the nature and extent of the treatment claimed must be necessary in the sense that it proximately resulted from the wrongful conduct of another… . The Indiana Supreme Court observed and found that a defendant may not dispute the medical judgment of the plaintiff’s medical providers in choosing to administer the questioned studies and treatment. Sibbing v. Cave, 922 N.E.2d 594, 599-600 (Ind. 2010)
Rule 413 of Evidence as adopted in Indiana eliminated the confusion regarding the evidence that is required to satisfy the “reasonableness” requirement. The very first sentence of IRE 413 asserts flatly that medical statements occasioned by an injury are admissible. Rule 413 provides that the bills shall constitute prima facie evidence that the charges are reasonable and medical bills come into evidence without any proof of reasonableness or necessity. In Indiana, personal injury plaintiffs no longer have to prove that they personally paid the medical bills or produce an expert as to the reasonableness of the charge, just necessity when it is contested. Normally , competent medical testimony is necessary to enable the jury to determine which of a plaintiff’s damages and medical expenses are related to a trauma and which are not. Sikora v. Fromm, 887, N.E.2d 499 (Ind. App. 2002). In Sikora, the Court of Appeals stated that expenditures for various medical treatments, drugs, and tests, like MRI’s, cannot be properly evaluated by the jury without a medical explanation that they were causally connected to the fall.
I will address additional areas to consider for a motion in limine in later posts.
The Barrister's Toolbox 