SUMMARY JUDGMENT AND UN-REBUTTED EXPERT TESTIMONY
Here we go again. I have a clear liability automobile accident insurance claim. It is not a large claim. Suit is filed after a “take it or leave it” low offer from an adjuster or the statute of limitations is on the horizon. The initial standard paper discovery is exchanged. Defense experts retained for litigation are requested to produce reports. All medical records necessary to evaluate the claim and for production at trial are provided to defense counsel. Sometimes the defense takes the deposition of the plaintiff. Expert witnesses are disclosed. The standard group of defense experts is named. No medical examination is conducted of the Plaintiff. No records review reports are submitted from any of the named defense experts. The discovery cut-off date passes. The deadline for taking trial depositions has not passed. Settlement discussions are no further along than prior to suit.
At this point, should the plaintiff file a motion for summary judgment? The contemplated motion will be supported by an affidavit/s from the treating physician/s and copies of all medical bills (which also were provided before the discovery cut-off). The purpose of the motion is to seek an order from the court on the issues of proximate cause and the amount of medical expenses necessarily incurred. The affidavit from the treating physician will opine the specific injuries suffered by the plaintiff, that these injuries were proximately caused by the accident and that the attached medical bills are both reasonable and necessarily incurred as a proximate result of the accident.
CIVIL RULE 56.
We all know the litany stored in many word processors and cited in most summary judgment memoranda and many court decisions. It is a variation on the following theme. In order to grant a motion for summary judgment, a court must find that, construing the evidence most strongly in favor of the nonmoving party, there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Harless v. Willis Day Warehousing Co. (1978), 54 Ohio St.2d 64.
A genuine issue of material fact exists unless it is clear that reasonable minds can come to but one conclusion and that conclusion is adverse to the party against whom the motion is made. Williams v. First United Church of Christ (1974), 37 Ohio St.2d 150, 151; Dresher v. Burt (1996), 75 Ohio St.3d 280. The burden of establishing that no genuine issue as to any material fact remains to be litigated is on the party moving for summary judgment. Turner vs. Turner (1993), 67 Ohio St. 3d 337, 340; Fyffe vs. Jeno’s, Inc. (1991), 59 Ohio St. 3d 115, 120.
Rule 56 does not require a party filing a motion for summary judgment to support the motion with affidavits. Both paragraphs (A) and (B) of the rule permit a party to file a motion for summary judgment “with or without supporting affidavits”. Paragraph (C) then itemizes the specific forms of evidence the court can consider when ruling upon a motion for summary judgment, to wit:
3. answers to interrogatories;
4. written admissions;
6. transcripts of evidence;
7. written stipulations of fact.
The rule goes on to state: “No evidence or stipulation may be considered except as stated in this rule.”
You will recall, in the proposed scenario there have been no expert depositions taken nor have any expert reports been produced. Any interrogatories have been answered by parties (as drafted by their attorneys). There are no transcripts of evidence (other than possibly the deposition of the plaintiff) and there are no written stipulations of fact. So, after the filing of the plaintiff’s motion for summary judgment, the only evidence before the Court is the affidavit of a treating physician/s and authenticated copies of medical bills.
So, what must the defense produce to successfully oppose the motion and create a question of fact? Rule 56 (E) states, in pertinent part:
When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of the party's pleadings, but the party's response, by affidavit or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If the party does not so respond, summary judgment, if appropriate, shall be entered against the party.
It would appear the defense must produce an affidavit to oppose the motion. It cannot rely upon the pleadings. The only interrogatory answers are from a lay plaintiff or defendant. The only deposition or transcript of evidence, if any, is from a lay plaintiff. There are no written stipulations or admissions of fact. What type of affidavit could the defense use? The obvious answer would be an affidavit from one of the defense experts who have been identified. However, recall the defense never produced any expert report and no examination of the plaintiff was conducted.
The defense may attempt to utilize paragraph (E) of Rule 56 as a vehicle to get a medical affidavit before the Court.
Should it appear from the affidavits of a party opposing the motion for summary judgment that the party cannot for sufficient reasons stated present by affidavit facts essential to justify the party's opposition, the court may refuse the application for judgment or may order a continuance to permit affidavits to be obtained or discovery to be had or may make such other order as is just. (emphasis added)
Even though the discovery cut-off has passed, a trial judge could use this provision as a basis to allow the defense to create an affidavit to oppose the motion for summary judgment. The court could order the plaintiff be produced for a belated defense medical exam which would give the hired expert a basis to render opinions. Or, the defense could scurry and have one of the usual experts quickly review the medical records already produced and create a belated affidavit to oppose the motion. The defense might even claim that this expert had reviewed the medical records before the discovery cut-off but had, through oversight or some other creative justification, innocently failed to produce a report before the cut-off had passed.
If the foregoing occurs, the motion for summary judgment has forced the hand of the defense to not only disclose a defense prior to trial but go to the expense of actually hiring a defense expert. The question remains whether the defense would have hired an expert at all if the motion had not been filed. We have all tried cases where the medical defense was the cross examination of the plaintiff’s treating physicians and selected portions of the medical records. This forcing the defense to actually hire an expert is a tactical risk of filing the motion for summary judgment.
But, what if the trial judge has the courage of his/her conviction to actually enforce the court’s pretrial order? The discovery cut-off has run. No defense medical exam was conducted. No expert reports were produced. No after-the-fact affidavits from medical experts will be allowed. It is so ordered. Now, what option is available to the defense? The defense can always use a variation of the trial tactic outlined above. The lawyer himself can file his/her own affidavit authenticating the medical records, or portions thereof, already produced by the plaintiff. With these records now before the court, the defense can cherry pick whatever it believes, in its lay medical opinion, the medical records contain that dispute the opinions of the plaintiff’s treating physician/s. This approach is rebutting expert testimony with non-expert evidence (i.e. opinions).
EXPERT TESTIMONY UN-REBUTTED BY EXPERT TESTIMONY:
If plaintiff’s counsel is successful in posturing his motion so that the only expert’s affidavit before the Court is the plaintiff’s treating physician/s, what is the legal result? In other words, what is the legal consequence when an expert’s testimony is un-rebutted by expert testimony? The seminal case appears to be State v. Brown (1983), 5 Ohio St. 3d 133. In that case, the issue was presented in the context of an insanity defense. The criminal defendant offered expert testimony on the issue of his insanity. The state attempted to rebut this expert testimony without any expert witnesses. The Ohio Supreme Court stated:
The expert's opinion, even if uncontradicted, is not conclusive. At the same time, it may not be arbitrarily ignored, and some reasons must be objectively present for ignoring expert opinion testimony. (id. p. 135)(emphasis added).
This same principle has been applied in civil cases. Steusloff v. Steusloff, 1999 WL 576041 (Ohio App. 6 Dist.)(a finder of fact must accept un-refuted testimony as true unless there are objective reasons that appear in the record to show that a reasonable basis existed to support the fact finder's determination that the testimony was not credible); Walker v. Holland (1997), 117 Ohio App. 3d 775; Farrell v. Stewart, 1993 WL 367401 (Ohio App. 10 Dist.)(the mere fact that medical testimony is uncontroverted does not require a jury to accept it as conclusive where there are objectively discernible reasons to reject expert testimony); Minney v. Guthrie, 1989 WL 2182 (Ohio App. 2nd Dist.).
The rule is not so simplistic that he who has an expert wins. Arguably, producing expert based evidence should be an advantage but it is not conclusive. Now, the question is what constitutes “reasons … objectively present (justifying) ignoring expert opinion testimony?” The civil cases applying the principle set forth in State v. Brown are fact sensitive. The context in which the facts are or are not developed may be instructive.
In Muncy v. Jones, 1984 WL 4597 (Ohio App. 10th Dist.), an automobile accident personal injury case, the Court ruled plaintiffs were required to establish a causal connection between defendant’s negligence and medical bills incurred. Plaintiffs were further required to produce expert testimony as to the necessity of the treatment requiring these medical expenses. Since the defendant did not produce expert testimony in rebuttal, the Court went to state the plaintiffs
are not automatically entitled to prevail on the question of necessity, even where their expert's testimony on that point is not directly controverted by defendant's evidence, so long as there appear in the record objectively discernible reasons upon which the jury could rely to reject the expert's opinion testimony.
The Court found the following objective reasons in the record. The accident was not of such a violent nature that would require the trier of fact to conclude all the complaints of the plaintiff were caused by the accident. The Plaintiff went back to work within a week, gave birth to a baby and then went back to work again. Plaintiff had complaints thereafter that one physician concluded were psychological resulting in the plaintiff seeing a psychiatrist. There was evidence her headache complaints coincided with a second pregnancy.
This Court then addressed a short hospital stay after all of the above and two years after the accident. The plaintiff’s expert opined this hospital stay and the conservative treatment rendered after the hospital stay were related to the accident. The Court concluded the jury was required to believe the expert on the hospital stay but was not required to believe the expert on the subsequent conservative treatment. The factors cited above were adequate to disbelieve the latter but, for reasons unstated, were inadequate to disbelieve the former. The guidance a practitioner can glean from this case is the identification of the factors the Court deemed significant. Since their application resulting in the Court’s conclusion is anomalous, there is not much guidance on rationale.
In 1989, the issue of un-rebutted expert testimony was addressed in Reder v. Antenucci, (1989) 62 Ohio App.3d 139 (11th District). That case went to trial and was not in a summary judgment setting. It was a personal injury action arising from a rear end collision. Plaintiff testified his injuries were headaches, pain in his neck and pain in his arms. At trial, the plaintiff called two treating physicians. The defense produced no expert witnesses and relied upon defense counsel’s cross-examination of the plaintiffs experts on the issue of proximate cause. The jury found in favor of the plaintiff but returned a verdict of no damages. Plaintiff filed a motion for a new trial which was denied. In denying that motion, the trial judge found it significant that the plaintiff did not have even a bruise as objective evidence of injury.
Upon appeal, the plaintiff argued that since negligence was not an issue, defendant did not produce any expert witnesses and, there was uncontroverted evidence plaintiff was injured, the jury’s verdict cannot be upheld. The defendant countered that even though he did not present any expert witnesses, the jury was nevertheless persuaded by the impact of his cross-examination of the plaintiff’s experts. The factors argued to the Court were:
Expert number one did not originally examine the plaintiff and the original test results were negative;
The test results he did rely upon were subject to the accuracy of the examiner and subjective interpretation;
He admitted there were a number of causes, in addition to traumatic accidents, that could have led to the medical symptoms of which plaintiff now complains;
Plaintiff himself testified as to the strenuousness of his work and the exertion it requires;
Expert witness two testified he did not know plaintiff’s condition prior to the accident;
The second expert further testified his diagnosis was partially based on plaintiff’s subjective complaints and there were other “possible” causes of plaintiff’s condition;
There was testimony to show that damage to plaintiff’s car not visible in pictures of the car which gives some grounds to believe the impact of the crash may not have been severe enough to cause the claimed injuries.
After itemizing the foregoing, the appellate court concluded there was competent substantial and credible evidence to disregard or disbelieve the medical experts opinions. Accordingly, there was sufficient evidence in the record for the jury to conclude there was either no injury or could have been another cause for the injuries than the auto accident.
Now, for purposes of our summary judgment analysis, some of these factors could not be present as rebuttal in that context because there is no expert cross-examination to rely upon. However, the factors that could be presented without cross-examination of an expert witness would be original test results were negative, plaintiff testified as to the strenuousness of his work and there was no visible damage to the car in photographs. The question would then be are these factors, standing alone, sufficient as reasons objectively present (justifying) ignoring expert opinion testimony?
Farrell v. Stewart, (1993) 1993 WL 367401 (Ohio App. 10th Dist.), involved another rear-end collision. The plaintiff claimed injuries to her low back and to her eyes. The lumbosacral strain became chronic and the eye injury caused a vision loss. This case also went to trial. The plaintiff presented an expert for the back injury and another expert on the eye injury. Although the plaintiff was examined by a defense physician, the defense produced no expert testimony at trial. Although the decision does not say so, presumably defense counsel cross-examined plaintiff’s experts when they testified at trial. Plaintiff moved for a directed verdict on proximate cause which the trial judge overruled. The case went to the jury that awarded damages which exceeded plaintiff’s special damages by less than $25.00. Plaintiff appealed.
The appellate court, without indicating specifics, set forth its conclusory finding that there was a complete absence of testimony contradicting the testimony of plaintiff’s two medical experts. There was testimony that plaintiff was struck in the eye with a stone years before the collision. The court dismissed this fact with comments that a tortfeasor accepts the party he or she injures the way the party is. The appellate court concluded that because there was no medical testimony contradicting the testimony of the plaintiff’s two experts the trial court should have directed the verdict on proximate cause. The case was remanded for a new trial. This court found nothing objective in the record which would justify ignoring the expert testimony that was presented.
There were two plaintiffs in the car both claiming aggravation of pre-existing conditions in Wamer v. Pfaff, 1998 WL 161195 (Ohio App. 6th Dist.). This case went to trial. The defendant admitted negligence causing the accident but denied the accident caused any injuries or aggravation of pre-existing conditions. At trial, each plaintiff called one treating physician as an expert witness. The defense called no expert witnesses. Plaintiffs moved for a directed verdict which the trial judge denied. The jury returned a defense verdict. Both plaintiffs appealed.
On appeal, the plaintiffs argued their motion for directed verdict should have been sustained because they presented “unrefuted” expert testimony that the accident caused an aggravation of their pre-existing medical conditions. The Court of Appeals affirmed the defense verdict and cited the following factors as justification for allowing the jury to disbelieve the two expert witnesses:
Both experts testified that the accuracy of the patient’s history is critical to a diagnosis and if the history is suspect, the opinions of the physician are consequently suspect;
The medical records of each plaintiff established they were receiving medical treatment before the accident for the same problems they complained of after the accident;
Plaintiff number 1 had a prior automobile accident where she suffered whiplash injuries. She had a long history of neck and back pain. She was in therapy for those conditions just 9 months before the accident at suit;
Plaintiff number one also had applied for social security disability benefits claiming she had debilitating and permanent neck injuries from the prior automobile accident not the subject of this suit;
Plaintiff number 2 had end-stage arthritis and had been advised before the accident to have her hip replaced.
Her expert physician testified he believed the accident at suit aggravated her pre-existing condition but then admitted he did not know the circumstances of the accident and was not familiar with how ambulatory the plaintiff was before the accident in suit.
The damage to the vehicle occupied by the plaintiffs totaled $274.77 of which $90.00 was for a replacement of the car’s “bra”.
The appellate court concluded that these factors could have been the basis for the jury not to believe the opinions of the two treating physicians that the accident aggravated the pre-existing conditions of the plaintiffs. For purposes of our analysis, the factors all came from medical records or a repair estimate except for one admission of an expert upon cross-examination and the didactic statement of the experts that the accuracy of medical history impacts the validity of expert opinions based thereon. This case arguably could stand for the proposition that previous similar injuries or conditions identified in medical records are enough to rebut an expert opinion. The minimal vehicle damage was a factor identified also.
The final case reviewed is Hook v. Brinker, 2006 WL 3030815 (Ohio App. 2nd Dist.). This is another automobile accident case and it too went to trial. The plaintiff was injured as a pedestrian struck by the defendant’s car in a parking lot. Plaintiff went to the emergency room by ambulance where he complained of pain in his neck, head and back. He also told them he had abdominal and hip pain at the scene of the accident. Plaintiff saw another doctor five days later and who later diagnosed him with a herniated disc leading him to undergo surgery for this condition.
In this case, the plaintiff had two experts and the defense had an expert. The experts disagreed as to whether the herniated disc was caused by the accident. However, all three experts agreed the plaintiff was injured around his knee and hip and suffered strain in his thoracic and upper lumbar region of his back. The ER bill was $1,951.00. The jury found the defendant 70% negligent and the plaintiff 30% negligent. The jury awarded total damages in the amount of $500.00 (less the 70% of the ER bill). The plaintiff moved for a new trial on the issue of damages which the trial judge overruled. Plaintiff appealed.
On appeal, the defendant argued there were objectively discernable reasons for the jury to disregard the expert testimony that the emergency room treatment was reasonable and necessary. The appellate decision did not identify what these were. The Court of Appeals disagreed finding no objectively discernible reasons to reject the opinions of three experts. The Appellate Court did note there was no evidence of a pre-existing condition. The Court concluded the trial court erred in denying the plaintiff’s motion for a new trial on the issue of damages and remanded the case.
In the context of a Motion for Summary Judgment where the defense has no expert testimony, the type of evidence upon which the foregoing courts found (either separately or cumulatively) reasons objectively present allowing disbelief of plaintiff’s expert witness testimony are:
The accident was not violent or the vehicles showed minimal damage or no visible damage at all;
Plaintiff went to work soon after the accident and before the case is at issue;
Plaintiff was pregnant and gave birth after the accident but before the case is at issue;
A doctor makes a note in his record that plaintiff’s complaints of pain are psychological (as opposed to being traumatically induced);
Plaintiff has no bruising as objective evidence of injury;
Initial medical test results in the record are negative;
Plaintiff testifies that his work is strenuous and requires exertion;
Medical records show plaintiff was receiving treatment before the accident for the same problems to the same part/s of the body being complained of after the accident.
Plaintiff applied social security benefits before the accident claiming permanent injuries to the same parts of the body;
Plaintiff had arthritis before the accident.
Accordingly, to determine whether filing a Motion for Summary Judgment makes sense, counsel must examine the case file for the foregoing types of evidence. Absence of these factors, or enough of them, might allow an effective argument adequate to prevail on Summary Judgment.
Another reason to pursue Summary Judgment in our scenario is to force the defense to show its hand before trial while, at the same time, testing the trial court on its receptivity to these types of lay arguments in opposition to sworn expert testimony.
 The mere fact that a list of usual defense experts is identified is not an affirmation that any money has been spent to actually hire one or more of the group. They have just been identified that they “may” testify.
 By implication from context and conclusions in the opinion, the defendant was not required to produce expert testimony to rebut what the plaintiff was required to produce. Presumably, there is an implicit burden of proof rationale for this different treatment of the parties.
 It is unclear precisely what medical evidence is before this Court from which it is extracting this information. It can be speculated that it was medical records, cross-examination of plaintiff’s treating expert or a combination of both.
 The medical records have been produced and could be easily authenticated with an affidavit of counsel since the documents originated from the plaintiff.
 The difficulty of analysis with cases favorable to the plaintiff is the courts do not itemize factors when they conclude there are none in the record.