Back Injury Lawyer Defends Client during Appeals Process*



Case Summary:

This is an Appeal of a Motion for Summary Judgment originally filed by the Defendant's back injury lawyer in a personal injury case. The original Plaintiff was a woman who claimed to be injured in a collision with the Defendant. The woman and her back injury lawyer had successfully defended their lawsuit during a Motion for Summary Judgment.

The Defendant in this case filed an appeal and sought to prove the woman's injuries were not as serious as she claimed.

Statement of Facts...

In the original lawsuit the Plaintiff, Teresa Mills, and her attorney sought damages they alleged occurred when the Defendant Ron Andrews collided with the rear of her car.

On the advice of her back injury lawyer, Mills filed her original lawsuit alleging she sustained serious and permanent injuries to her:

  • Cervical spine
  • Thoracic spine
  • Lumbar spine
  • Right-side extremities

Andrew's attorney responded to the lawsuit by filing a Motion for Summary Judgment. In a Motion for Summary Judgment, the Court is asked to examine a case and decide if the case is worth a jury's time to hear.

If the Court found that Mills had not presented enough basic facts to support her claims, or that she had made some basic error in law when she filed the suit, then the Court could decide to dismiss the case without trial.

In the original trial, the Court heard arguments from both sides on the Motion for Summary Judgment.

Andrews' lawyer argued Mills had only alleged conclusions and speculation about her injuries, and the conclusions and speculation did not contain any material issues of fact to be determined by the Court.

A trial cannot be held based only on a Plaintiff's conclusions about how he or she thinks they were injured.

Mills' back injury lawyer disagreed, stating the facts pleaded in their lawsuit were substantial enough to overcome Andrews' Motion; that Mills' injuries were as serious as she said they were; and as a result the Court should deny Andrews' Motion for Summary Judgment and allow the case to proceed to trial so a jury could decide the outcome.

After hearing arguments of both sides, the Court denied Andrews' Motion for Summary Judgment.

In its opinion, the Court said Mills' allegations of injury were sufficient enough, contained material facts, were not just conclusions or speculation, and the Court would prefer to let the evidence of both sides go to trial.

The Appeal...

The Rules of Evidence permit the losing side in a Motion for Summary Judgment to immediately appeal the Court's decision.

Andrews back injury lawyer filed an Appeal asking the Appellate Court to reconsider the evidence presented in the original hearing, and to hear additional evidence he now had to support his motion.

Because Andrews filed the Appeal, he had the burden of proof. He was therefore the first to present evidence.

Concerned his original evidence might not be enough, this time Andrews was prepared. Andrew's lawyer called Jonathan Doucet, M.D., their first and only witness. Dr. Doucet was a Board certified Orthopedic Surgeon. He testified he had graduated from Columbia University and then attended Johns Hopkins Medical School, graduating third in his class.

He also testified he was the Consulting Orthopedic Surgeon at Columbia Presbyterian Hospital.

Dr. Doucet testified he reviewed the original medical reports Mills had presented in the first hearing. He explained that the doctor who originally diagnosed Mills and then wrote the medical reports diagnosis and prognosis was a Family Practitioner, and as far as he knew, had no expertise in the area of Orthopedic Surgery.

He further testified the doctor's diagnosis was incorrect and that Mills' injuries were not as stated in her lawsuit. Dr. Doucet testified he had the opportunity to review Mills' original MRI examination results as well as the results of a CAT scan.

Dr. Doucet testified:

"The injuries Mills said she sustained to her cervical, thoracic, and lumbar spine and the right-side of her extremities were extremely exaggerated."

After reviewing the results of Mills' original MRI and CAT scan, Dr. Doucet said:

"I was convinced Mills may have suffered some minor contusions, lacerations (cuts and bruises) and sprains, but the injuries she originally claimed did not appear in her MRI and CAT scan results."

Andrews' lawyer rested.

Mills' back injury lawyer began their defense. He asked the Court to rely on the medical evidence they originally presented at the first hearing.

Concerned that might not be enough, Mills' lawyer called Allen Bender, M.D. He was the physician who originally treated Mills and created the original diagnosis and prognoses of her injuries.

Mills' lawyer asked Dr. Bender to explain Mills' original diagnosis. He asked Dr. Bender to explain why he diagnosed Mills' injuries as consistent with injuries to her, "cervical, thoracic and lumbar spine and right-side extremities."

Dr. Bender testified:

"Although I'm not an orthopedic specialist, I've been practicing family medicine for 30 years. My experience told me the MRI and CAT scan results clearly showed Mills had suffered injuries consistent with cervical, thoracic and lumbar spine and right-side extremities."

On cross examination, Andrews's lawyer submitted evidence Dr. Bender had his medical license suspended for 3 years and had only recently had it reinstated. When Andrew's lawyer asked Dr. Bender why his medical license had been suspended, Dr. Bender testified he had misdiagnosed several cases and those misdiagnoses had resulted in the deaths of two patients.

Outcome...

After back injury lawyers for both sides finished presenting their evidence they rested. The Court took the case under advisement. Several days later the Court issued its opinion:

"The Defendant's evidence was sufficient to establish that the plaintiff's alleged limitations were no more than minor, mild or slight".

In this Appeal, the burden of proof was originally on Andrews' back injury lawyer to offer evidence sufficient to overcome the original Court's decision to deny his Motion for Summary Judgment. Once offered, the burden of proof shifted to Mills to produce:

"Competent medical evidence, based on the medical certainty of objective findings and diagnostic tests, proving the existence of triable issues of fact."

The Court found Mills wholly failed to do so. Therefore, the Appellate Court found the original trial Court erred in its finding.

As a result the Court overturned the original Court's decision and granted Andrews' Motion for Summary Judgment. As part of its Order, the Court also dismissed Mills' original case with prejudice.

Important Points...

  • When considering filing a lawsuit to recover compensation for injuries sustained in a motor vehicle collision, it's important to find a lawyer who will tell you the truth about your chances of winning your case.

    Too often victims of automobile accidents are led to believe their cases are worth thousands and thousands of dollars, when in fact their injuries, although real, do not rise to the level necessary to get past a sharp defense lawyer's Motion for Summary Judgment.

    This case review is an excellent example of a lawsuit which probably never should have been filed. If the back injury lawyer had done his homework he might have found out the "doctor" he sent his client to was effectively worthless.

    Do your homework. Ask questions. And don't be fooled into believing your case is worth a million dollars when it may really not be worth much more than the cost of your medical bills.

  • You can't win your personal injury case if you don't have evidence! Anger and indignation are not evidence. Your lawyer's excited promises of success are not evidence. You need evidence to win a lawsuit.

    Saying you are terribly injured is one thing. Having the medical evidence to prove it is another. You can't get by on thinking the judge or the jury is going to like you and as a result award you thousands and thousands of dollars. It just doesn't work that way.


*This case example is for educational purposes only. It is based on actual events although names have been changed to protect those involved. Any resemblance to real persons or entities is purely coincidental.

Print Friendly and PDF

How Much Is Your Claim Worth?

Find out now with a FREE case review from an attorney...

> > > Case Study: Questionable Medical Evidence

How Much Are Your
Injuries Worth?

Find out with a
free attorney review:

TYPE OF ACCIDENT
AUTO ACCIDENT
PERSONAL INJURY
WORKERS COMPENSATION
MEDICAL ERROR
YES! I WANT FAIR COMPENSATION