Defense Digest

AN IME DOCTOR'S ADMISSION OF SOME INJURY ENSURES PLAINTIFF'S RECOVERY

By Joseph F. Murphy, Esq.*

The Superior Court of Pennsylvania has again held that a "no causation" verdict is against the weight of the evidence where the defendant's medical expert admits to some injury. In Lemmon v. Ernst, 2003 Pa. Super. 105 (March 18, 2003), the plaintiff was a passenger in a vehicle that was rear-ended by the defendant's vehicle. The defendant maintained that he was traveling approximately 5 m.p.h. at the time of the accident and described the force of the collision as "minor." The plaintiff, on the other hand, described the accident as a "violent collision" and alleged that she developed a headache and numbness and later developed severe neck and back pain.

At trial, the plaintiff's medical expert testified that the alleged injuries were directly related to the accident, and that the treatment rendered was reasonable and medically necessary. Despite the absence of objective evidence of an injury, the defense doctor agreed that the plaintiff sustained a cervical strain and possibly an aggravation of her underlying arthritis. Not only did the doctor opine "to a reasonable degree of medical certainty" that the plaintiff suffered a cervical strain, but the doctor further testified that he would "absolutely disagree" with anyone who said that the plaintiff did not suffer an injury.

Following deliberations, the jury returned a verdict finding that, although the defendant was negligent, the defendant's negligence was not a substantial factor in causing the plaintiff's alleged injuries. Thereafter, the plaintiff filed a motion for a new trial, claiming there was uncontroverted evidence presented at trial that she suffered an injury, and the jury's verdict was so contrary to the evidence that the plaintiff was entitled to a new trial. The trial court denied the plaintiff's motion, and the plaintiff appealed to the Pennsylvania Superior Court.

On appeal, the essential question presented to the Superior Court was whether a jury is permitted to disregard a defense doctor's admission of some injury in finding that the accident was not a substantial factor in bringing about the plaintiff's alleged harm. Relying upon its decision in Andrews v. Jackson, 800 A.2d 959 (Pa. Super. 2002), the Superior Court held that, where there exists medical experts on both sides of the dispute who testify that the plaintiff suffered an injury as a result of the accident, a jury must find that a defendant's negligence was a substantial factor in bringing about the plaintiff's alleged harm, and that a contrary result requires a new trial for the sole purpose of determining damages. The court characterized its decision in Andrews as a "synthesis" of the then-existing case law on the subject and refused to consider any argument relying upon pre-Andrews decisions. Prior to Andrews, defense lawyers faced with "no causation" or "no damages" verdicts on appeal relied heavily upon the often-cited legal maxim that it is the province of the jury to evaluate the credibility of witnesses, and the jury is free to reject some, all, or none of the testimony presented by witnesses, including expert witnesses, at the trial of a case. Goldmas v. Acme Markets, Inc., 393 Pa. Super. 245, 574 A.2d 100 (1990); Pa. S.S.J.I. (Civ) 5.30. In Lemmon, the Superior Court sent a clear message to the lower courts that a jury is not free to reject an admission by a defense medical expert, and a new trial must be awarded on the issue of damages where such admissions exist.

As a practical matter, the Superior Court in Lemmon provided certainty in "no causation" cases involving an admission by a defense medical expert, while at the same time recognizing a distinction between "no causation" and "no damages" verdicts. In "no damages" cases involving subjective complaints without objective evidence of injury, a verdict of "zero damages" will generally not be disturbed on appeal despite a defense doctor's admission of some injury. That is so because a jury is always permitted to find that the plaintiff's injuries were transient and caused only a de minimus and non-compensable amount of pain and suffering. Majczyk v. Oesch, 789 A.2d 717 (Pa. Super. 2001) (en banc). However, where there is an admission of an injury, a jury may not find that the defendant's negligence did not cause an injury.

The Superior Court's decision in Lemmon also sent a clear message to the defense bar: make sure that your IME doctor understands his or her role before providing an expert opinion. Medical doctors are trained to treat injured people. In doing so, doctors routinely accept a patient's complaints with an eye toward formulating a diagnosis and treatment plan. An IME doctor's role is very different. An IME doctor is not retained for the purpose of treating a plaintiff and is under no obligation to accept a plaintiff's subjective complaints at face value in the absence of objective evidence of an injury. Rather, an IME doctor must analyze a damages case objectively, and where there exists no objective evidence of injury, an IME doctor should not, and in reality cannot, opine with any certainty that an injury has occurred. Consequently, an IME doctor's opinion that a plaintiff "may have" sustained an injury is a perfectly acceptable opinion and one that will withstand a "no causation" verdict. Livelsberger v. Kreider, 743 A.2d 494 (Pa. Super. 1999). This is so because there is no admission of injury by the defense, and a jury is not obligated to accept a plaintiff's proof as to the injury alleged. Id; see also Violante v. Gleason, No. CI-00-04136 (Lancaster Co. August 31, 2001).

The Superior Court's opinion in Lemmon reinforces the principle that a jury may not disregard a defense doctor's admission of an injury in returning a verdict of "no causation." Once a defense doctor admits to some injury, even in the absence of objective evidence that an injury has occurred, a jury is required to find that causation exists. While a "no damages" verdict under those circumstances may be sustained on appeal, a "no causation" verdict will no longer be permitted. Accordingly, it is important that a defense lawyer work with a proposed expert so that the expert understands his or her role in the case and so that an injury is not admitted, unless there is some objective evidence of an injury to support such an opinion. If an expert maintains that an injury has occurred, even where no objective evidence of injury exists, the defense lawyer should seriously consider whether to call the expert to testify at trial. In the event that the defense lawyer is confronted with an unexpected admission of an injury at the trial of the case, it may be possible to save a "no causation" verdict if it is established at trial that the expert's opinion is based solely upon the subjective complaints, or history, provided by the plaintiff.

* Joe, an associate in our Harrisburg, PA office, can be reached at (717) 651-3509 or jmurphy@mdwcg.com.