Court: United States District Court for the Eastern District of Louisiana
Case Name: Livas v. Ace American Insurance Company
Citation: 2013 U.S. Dist. LEXIS 97587
This case involves a motor vehicle accident between a car and an 18-wheel truck on I-10 West in New Orleans, Louisiana. The plaintiff party, consisting of four passengers, filed suit against the trucking company that owned the 18-wheel vehicle in question, the driver, and the insurance provider. The plaintiffs each received medical treatment following the crash and sought damages for injuries they sustained in the collision. The defendant offered an orthopedic expert witness to perform independent medical examinations on the plaintiffs and determine the extent to which their injuries could be attributed to preexisting medical conditions.
The Orthopedic Surgery Expert Witness
The orthopedic surgery expert witness was a board-certified orthopedic surgeon with 40+ years of experience. To qualify his conclusions, the expert asserted an accident can be reconstructed using crash data to determine how likely the collision impact was to cause injury. The expert explained that in a side and rear collision for which velocity change was less than 10 MPH, there is a low likelihood of anything more than soft tissue injury.
For one individual in the plaintiff party, the orthopedic surgery expert concluded that their injuries were consistent with the process of aging and showed no objective evidence of injury or need for surgery. The expert felt that exercise, non-narcotic medication, and returning to work would be a suitable treatment. For two other plaintiff passengers, the expert predicted a 90% chance of full recovery within six weeks. He also noted that one individual’s preexisting depression and narcotic medication could factor into a longer recovery time.
The expert also discussed left knee and shoulder injuries reported by the fourth plaintiff passenger. After examination, the expert reported this type of collision would more likely cause damage to the right side of the body. The orthopedic surgery expert noted that this individual was also already taking narcotic medication for non-organic pain.
The plaintiffs alleged bias on the part of the orthopedic surgery expert and sought to exclude his testimony. They also claimed he was not competent to testify as an orthopedic biomechanics expert because his opinion was not supported by any document review.
The plaintiffs argued the expert was biased against personal injury plaintiffs and cited previous cases where the expert’s testimony was found uncredible. The court discussed that determining bias was in the jury’s province and the plaintiff could vigorously review the expert’s credibility during cross-examination. The court also observed that despite his credentials of a postgraduate degree and teaching experience in orthopedic biomechanics, the expert’s opinion on biomechanics should be excluded because he had not supported his hypothesis of the velocity change being too low to cause injury with any document review.
The expert also submitted an affidavit in which he cited the defendant’s accident reconstruction expert’s report and other sources to support his opinion. The court noted that as it had already determined there were no orthopedic biomechanical opinions in the orthopedic surgery expert’s medical report, it could only consider the affidavit to be a new report and not a supplemental report. The court said the report was inadmissible because it had missed the deadline mentioned in the scheduling order.
The plaintiff’s motion to exclude the expert’s testimony was granted in part for his unsupported biomechanic opinions and denied in part for alleged bias.