Challenge defense medical testimony in low-impact collision cases.

Defendants in low-speed collision cases invariably argue that minimal vehicle damage means no injury. This myth poses significant challenges for trial lawyers representing people hurt in these crashes.

Fortunately, diagnostic medicine has developed improved methods--such as CT, MRI, and SPECT scanning--for detecting subtle central nervous system injuries. Likewise, science has become more sophisticated in calculating impact forces, deceleration, and energy transfer and in quantifying kinematics, dynamics, and mechanics. We now have the tools to identify serious injuries resulting from "fender benders."

We also have the tools to destroy the myth of the "independent" medical examination and to expose it for what it is: a biased assessment performed by a physician who is paid by insurance company defendants. We can start by using a more accurate term--the defense medical examination. (1)

Here are steps plaintiff lawyers can take to challenge the exam's results and the physician's testimony.

Attend the examination. These are adversary proceedings, and most courts require or allow the plaintiff attorney or a representative to observe, but not interfere with, the exam. You should observe the nature and extent of the examination, the time the physician spends examining the plaintiff versus taking his or her medical history, and whether the physician makes notes or other records and otherwise conducts a complete exam.

Conduct aggressive discovery. Use interrogatories to find out:

* how much the defendant is paying for the examination, report, and deposition.

* the number of times in the past five years that the insurance company has hired the physician used in the case.

* the total number of examinations the physician has performed for defendants over the past five years.

* the amount of income the physician has collected for conducting such exams and giving depositions during that period.

Also identify and review articles the physician has written and, if possible, speeches he or she has given.

Use requests for production to obtain the following materials, which many courts have ordered defendants to provide to plaintiffs (2):

* copies of every report the physician has prepared in the past five years as part of a defense medical examination (no privilege exists because there is no physician-patient relationship between this doctor and your client).

* a copy of the physician's file on the examination, including all notes.

* the physician's rate schedule for services performed on behalf of insurance companies in litigation.

* tax records for income from these examinations.

Challenge the testimony. Move to exclude the physician's opinions under Daubert v. Merrell Dow Pharmaceuticals, Inc. (3) or state equivalents. Argue that his or her testimony is inadmissible because it is based on defective methodology or invalid assumptions. Several methods that defense medical examiners use lead to unreliable conclusions, including:

* describing forces that acted on the plaintiffs body by using average acceleration instead of peak acceleration.

* discussing forces applied to the vehicle rather than to the occupant.

* relying on computer modeling programs that were designed for studying collisions at speeds of 10 to 40 mph and are unreliable for analyzing crashes outside this range. (4)

* making inappropriate comparisons between real-world collisions and data from crash tests involving volunteer subjects. (5)

Not only are these methods misleading in their own right, but they deal with nonmedical concepts on which a physician is not qualified to testify. Your motion to disqualify should seek to prevent the physician from offering opinions that he or she is not qualified to give and for which he or she relies on insufficient or unscientific data. Point out that the physician is not a biomechanical engineer or a specialist in trauma mechanics. With the support of the bioengineering literature, your motion can prevent the jury from hearing biased, unsupported testimony.

Notes

(1.) See Martin Blake, Neutralizing the "Independent" Defense Medical Expert, TRIAL, Feb. 1998, at 28; Thomas J. Vesper, Who's Afraid of the Independent Medical Examiner? TRIAL, Dec. 1993, at 29.

(2.) See, e.g., State ex rel. Creighton v. Jackson, 879 S.W.2d 639 (Mo. Ct. App. 1994); Trower v. Jones, 520 N.E.2d 297 (Ill. 1988); Wrobleski v. de Lara, 708 A.2d 1086 (Md. Ct. Spec. App. 1998) (cites leading cases from other jurisdictions).

(3.) 509 U.S. 579 (1993).

(4.) RANDALL L. HARGENS & TERRY D. DAY, APPLICATION AND MISAPPLICATION OF COMPUTER PROGRAMS FOR ACCIDENT RECONSTRUCTION (Soc'y of Auto. Eng'rs, Paper No. 890738,1989).

(5.) See Michael D. Freeman et al., Discrediting Defense Experts in Whiplash Cases, TRIAL, Mar. 1999, at 62.

Linda Miller Atkinson is a partner in Philo, Atkinson, Stephens, Wright, Whitaker & Philo in Channing and Detroit, Michigan.