The Importance of Documenting Medical Conditions, Treatment and Expert Witness in Personal Injury – Brown vs Scalzo
Submitted by New Jersey Personal Injury Lawyer, Jeffrey Hark.
This case deals with a common yet serious medical injury/complaint arising from a motor vehicle accident. Between the lines of this complaint a skilled attorney can see that the client, plaintiff Laura Brown communicated to her attorney, that she suffered cognitive damage. However, she did not obtain the appropriate professional care, nor the appropriate professional opinion in writing reflecting that injury and its causal relationship to the MVA. As a result, the trial judge granted defendant’s motion to bar the jury from hearing any testimony from the plaintiff about he cognitive claims because they were not support by competent evidence in the form of a professional opinion. The pretrial order granted defendants’ unopposed motion to bar any and all reference to plaintiff’s claim for cognitive damages at trial and dismissed her claim for cognitive damages. Plaintiff argued that the judge improperly barred her claim for cognitive damages. Pursuant to N.J.R.E. 702, “If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise.” Although N.J.R.E. 702 contains permissive language on its face, expert testimony is generally required when the matter at issue is “so esoteric that jurors of common judgment and experience cannot form a valid judgment as to whether the conduct of the party was reasonable.” Butler v. Acme Markets, Inc., 89 N.J. 270, 283 (1982). Here, plaintiff’s claim for cognitive damages was “so esoteric” that it required expert testimony. Since no expert was provided in discovery by plaintiff to substantiate the claim, we find no reason to disturb the judge’s ruling.
As an assign, for those reading this blog I believe there are several issues at play. There are only two explanations of what happened here. Either plaintiff did not actually treat nor did she undergoing the appropriate testing to enable a doctor diagnose a cognitive injury, or the attorney dropped the ball and did not obtain the adequate document evidence via expert opinions within the discovery period. Then when the plaintiff insisted to testify about the subject matter at trial she was not aware the court had previously bared her from discussing the cognitive issue. Nevertheless, the jury returned a verdict of $20,000.00. So they did believe her! Was she more credible without the cognitive injury testimony without the expert proofs, or would they have awarded a great deal more based on her believability had her attorney secured the expert proofs within the discovery time window pursuant to Rule 702!!
You decide! The case is attached as well.
