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Featured Trial Report

 

Caption:      Brown v. Baker and Erie Insurance Exchange
Cause Number:    47C01-1205-CT-641
Judge:   Hon. Andrea McCord, Lawrence Circuit Court
Carrier: Progressive Insurance Companies
Damages Awarded:   Defense verdict
Incurred Medicals:   $43,217.24 billed ($16,341.20 paid)
Trial Attorney: Scott Tyler
Synopsis: 
Our client, Jill Baker, was traveling north on U.S. 37 North when she became distracted and failed to notice the traffic ahead of her had stopped. She rear-ended a vehicle which was pushed into a vehicle which in turn was pushed in to a vehicle operated by Plaintiff, Sandra Brown.
 
Ms. Brown claimed that the four-vehicle accident caused low back pain, aggravated a pre-existing cervical neck condition (including disc herniations at two levels), and that changes noted on a cervical MRI from three months post-accident were caused by the accident. She underwent approximately three years of pain management care which included epidural injections and radio frequency nerve ablation.
 
At trial, Plaintiffs chose not to call any of Ms. Brown’s treating physicians. Instead, they retained Dr. Eric Weidenbener, Bloomington Bone & Joint, to perform an IME and called him to testify live at trial.
 
Prior to trial, we retained Dr. John Chambers, Southern Indiana Orthopedics, to perform a peer review and IME. Dr. Chambers testified in a video deposition for trial that, based on Ms. Brown’s history, she did sustain an aggravation of a pre-existing chronic neck condition. However, he also testified that, on average, such patients return to baseline in approximately six to eight weeks, although he did concede that some patients take longer.
 
At trial, our client acknowledged responsibility for the collision, and we defended the case solely on medical causation.  We had photographs of Plaintiff’s vehicle which showed minor damage, although photographs of the vehicles behind hers showed very substantial damage. However, the turning point in the case occurred during Scott Tyler’s cross-examination of Plaintiffs’ expert, Dr. Weidenbener.
 
First, Dr. Weidenbener conceded that there is a spectrum of reliability when it comes to medical causation opinions. For example, where a vehicle driver immediately complains of left arm pain after having been t-boned on the driver’s side, has an x-ray within hours which shows a fracture, and has no pre-accident history of similar symptoms, it can be said with near absolute certainty that the accident caused the arm fracture. In contrast, the level of uncertainly decreases where the accident occurs at low speed, the injury is subjective in nature, there is delay in report of symptoms/treatment, and there is a pre-accident history of similar symptoms.
 
Moving to the facts of our case, Dr. Weidenbener conceded that he would have expected Ms. Brown to have experienced neck pain within a short time after the accident for it to have aggravated her pre-accident condition. In fact, that was the history provided to Dr. Weidenbener by Ms. Brown during the IME. However, despite having been provided all of Ms. Brown’s medical records and claiming to have reviewed them and prepared his own chronology, he was unaware that Ms. Brown did not complain of pain at the accident scene, did not seek ER treatment or treatment of any kind for twenty days after the accident, and then, only complained of low back pain. Ultimately, Dr. Weidenbener acknowledged that such facts would cause him to doubt whether the accident aggravated Ms. Brown’s neck condition.
 
At the close of Plaintiffs’ case, we made a strategic decision not to call our IME orthopedist, Dr. Chambers. Instead, we argued in closing that Plaintiffs failed to meet their burden of proof and that Dr. Weidenbener’s causation opinion was built on a foundation of sand. Plaintiffs’ counsel initially sought leave from the Judge to re-open Plaintiffs’ case to play the video deposition of Dr. Chambers. The Judge recessed for a short time to allow counsel an opportunity to provide authorities supporting the request to re-open. Following the recess, Plaintiffs’ counsel withdrew the request.
 
A jury of four females and two males returned a verdict in favor of our client and awarded no damages. 
 
Attorney John Hofmann provided valuable assistance in drafting thorough pre-trial motions in limine, and paralegal Tricia Woods assisted with pinning down witnesses and preparing critical demonstrative exhibits for use at trial.
 
Post-Verdict:
 
Plaintiffs subsequently filed a Motion to Correct Error asserting that the Court erred in submitting to the jury a “Verdict for Defendant” verdict form. Plaintiffs claimed that since our client admitted liability for the accident, the jurors had to award damages as a matter of law. We opposed Plaintiffs’ Motion and cited a number of Indiana decisions upholding the right of the jury to find for the defense in cases where plaintiffs had failed to establish medical causation. The Court agreed with our position and denied Plaintiffs’ Motion to Correct Error. Plaintiffs did not pursue an appeal, and the verdict of the jury is now final.

 

 

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