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Orthopedist Found Not To Be Qualified To Testify As To Mechanism Of Personal Injury

By on August 16, 2019 in Testimony with 0 Comments

Plaintiff Jason Rodriguez was injured in a rear end collision and sued the other driver, defendant Faith Sheppard.  Liability was conceded and a jury trial was held as to damages only.  The issue in Rodriguez v. Mueller, 2019 N.J. Super Unpub LEXIS 1783 (App. Div. August 15, 2019), was whether the plaintiff had suffered sufficient injuries to meet the verbal threshold.  At trial, an issue arose as to whether the defense orthopedist was qualified to testify as to whether the plaintiff suffered a fracture of the coccyx as a result of the rear end collision (which could be sufficient to satisfy the verbal threshold requirements).

The case arose when the plaintiff was stopped in the drive through lane of a McDonalds.  Defendant was in the drive through lane, when her foot became stuck between the brake and the gas pedal, causing her vehicle to move forward and rear end the plaintiff’s vehicle.  The plaintiff’s treating physicians certified that the plaintiff had suffered a fractured coccyx in the accident.

However, Rodriguez was examined by the defense orthopedist, Dr. Michael Okin, who opined that the plaintiff had suffered a lumbosacral spine strain which had resolved and had an old fracture of the coccyx, not related to his accident.  Dr. Okin issued several reports in this case.  In his third and final report, he addressed whether he had missed a fracture of the sacrum/coccyx on plaintiff’s emergency room x-ray.  Dr. Okin opined that the nature of the accident was a rear end collision, which would cause a forward and backward mechanism of injury with the plaintiff sitting on the car seat.  He stated in his report that a fracture of the coccyx first of all does not occur with that mechanism of injury and, further, the fracture is old.  He also stated in his report that what was seen on the x-ray was a dislocation through the disc space of the coccyx and was not a fracture.  Finally, he stated that there was no mechanism of injury for a coccygeal fracture.

His deposition was taken before trial through a videotaped de bene esse.  During his testimony, the defense counsel elicited his opinion concerning the mechanism of injury.  Dr. Okin testified, over the plaintiff’s attorney’s immediate objection, that the mechanism would not be the cause of the fracture.  The plaintiff’s attorney objected because Dr. Okin had been qualified as an orthopedic surgeon, not an accident reconstruction expert.  The mechanism of injury would go to accident reconstruction and biomechanical engineering and he argued that Dr. Okin was not qualified to make an opinion in that regard.

At trial, the plaintiff’s attorney filed an in limine motion to bar that testimony.  The trial court rejected the plaintiff’s argument and concluded that Dr. Okin was not testifying as an accident reconstructionist, but as a doctor who knows how a coccyx is generally injured and who found that there was no evidence that it was injured that way in this case.  Thus, the jury was permitted to view the video of Dr. Okin’s de bene esse deposition with no redactions. 

The jury returned its verdict, finding that the plaintiff did not suffer a fracture of the coccyx in the accident.  Thus, there was a verdict entered in favor of the defendant. 

On appeal, the plaintiff argued that there was not a proper foundation for Dr. Okin’s opinion.  Plaintiff argued that he was only qualified in orthopedic surgery and not as an accident reconstruction expert or biomechanical engineer.  Thus, he was not competent to testify that the degree of trauma plaintiff suffered in the accident could not have caused him to suffer a fractured coccyx.

The Appellate Division agreed with the plaintiff that Dr. Okin was not qualified to render this opinion. The Court found that Dr. Okin was not a biomechanical expert qualified to comment on physical forces.  There was nothing in the record that showed that Dr. Okin had any background, training, or experience in biomechanics or accident reconstruction.  Further, the defendant did not offer him as an expert in the fields.

Also, the record lacked any credible information regarding relevant details of the accident such as the damage to the vehicle, the size of each vehicle, the speed, as well as any information regarding the interior of the plaintiff’s vehicle.  The plaintiff argued that, without those facts in evidence, that there was lack of an evidential foundation for Dr. Okin to render an opinion on this issue. Without this foundation, his opinion would be considered a net opinion and inadmissible testimony.

The Appellate Division found that the trial judge should have ruled in the plaintiff’s favor and ordered redaction of his testimony concerning the mechanism of injury.  The Appellate Division held that it was impermissible to allow Dr. Okin to testify regarding the mechanism of injury because he both lacked the qualifications and the relevant facts to offer anything but a net opinion to the jury on this subject.            

The Court found that the jury likely accepted Dr. Okin’s conclusions regarding the mechanism of injury because they came from a medical expert.  Hence, the Appellate Division concluded that the failure of the trial court to exclude these improper net opinions unfairly prejudiced the plaintiff.  As a result, the Court ordered a new trial.  The Appellate Division reversed the no cause for judgment and remanded the matter for a new trial.


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About the Author

About the Author:

Ms. Ramos is an Executive Committee Member and Co-Chair of the Litigation Department at Capehart Scatchard, P.A. located in Mount Laurel, New Jersey. She is an experienced litigator with over 30 years experience handling diverse matters. Practice areas include tort defense, business litigation, estate litigation, tort claims and civil rights defense, construction litigation, insurance coverage, employment litigation, shareholder disputes, and general litigation.

For the years 2020 and 2021, Ms. Ramos was selected for inclusion in The Best Lawyers in America© in the practice area of Litigation - Insurance. The attorneys on this list are selected based upon the consensus opinion of leading lawyers about the professional abilities of their colleagues within the same geographical area and legal practice area. A complete description of The Best Lawyers in America© methodology can be viewed via their website at: https://www.bestlawyers.com/methodology.

In 2021, Capehart Scatchard and Ms. Ramos received the “Best Law Firm” ranking in the area of Litigation – Insurance (Metro, Tier 3) published by U.S. News & World Report and Best Lawyers®. Law firms included on the list are recognized for professional excellence with consistently impressive ratings from clients and peers. To be eligible for a ranking, a firm must have at least one attorney who has been included in the current edition of Best Lawyers in America, which recognizes the top five percent of practicing lawyers in the United States. Betsy Ramos (Litigation – Insurance) was recognized for this prestigious award in the 2021 edition. For a description of the “Best Law Firm” selection methodology please visit: https://bestlawfirms.usnews.com/methodology.aspx.

“Best Law Firms” is published by Best Lawyers in partnership with U.S. News & World Report. For a description of the selection methodology please visit: https://bestlawfirms.usnews.com/methodology.aspx.

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