Can a medical expert testify about emotional overlay? Can a biomechanical expert testify about the effect of crash speeds on the human body? Find out in this follow-up to last week’s update on an important Oregon Court of Appeals opinion.
Claims Pointer: The Court of Appeals ruled in the following case that a biomechanical expert may testify regarding the forces of an auto accident and the tolerance for the human body to sustain such forces. The Court also held that a medical expert could testify regarding a plaintiff’s emotional overlay (emotionally or psychologically-created pain) where there was no anatomical cause or source of the plaintiff’s pain.
Thoens v. Safeco Insurance Co. of Oregon, 272 Or App 512 (July 22, 2015).
Susann Thoens (Thoens) was injured in an auto accident while stopped behind a school bus. The responsible driver was traveling at a rate of 5 to 10 mph. Thoens received medical treatments for headaches, neck pain, pain in her right arm, blurred vision, and balance problems. Thoens was treated by a chiropractor, who was also her husband and employer. Thoens also treated with a number of physicians and received surgery on four levels of her cervical spine. By the time of trial, Thoens’ medical bills totaled more than $200,000.
As discussed in last week’s update, Thoens’ insurer, Safeco Insurance Co. of Oregon (Safeco), cut off personal injury (PIP) benefit payments and denied underinsured motorist (UIM) coverage after an independent medical examination (IME) revealed that Thoens’ injuries were not caused by her accident.
Thoens brought claims against Safeco for denying PIP benefits and UIM benefits after settling with the underinsured driver. Prior to trial, Thoens moved to exclude “any biomechanical testimony.”
Thoens renewed that motion when Safeco called its biomechanical expert, Bradley Prost, to testify. Thoens argued that Probst’s methods were “essentially based on junk science” and that Probst lacked the credentials to testify. During a hearing to determine whether Probst could testify as to whether the accident could have caused Thoens’ injuries, Probst listed an impressive resume and provided his methodology, which relied on a number of peer-reviewed studies. The trial court overruled Thoens’ motion and allowed Probst to testify. Probst’s ultimate conclusion was that there was no “causal relationship” between Thoens’ injuries and the accident.
Thoens also made a motion to exclude any evidence or testimony that she was not credible. The trial court granted the motion. During Safeco’s presentation of evidence, it called a medical expert, Dr. Scott Jones, an orthopedic surgeon, to testify regarding Thoens’ treatment. Dr. Jones testified that Thoens’ surgery was not reasonable based on his review of Thoens’ medical records, the circumstances of the accident, and the testimony of Thoens’ surgeon. Among the reasons he listed for his conclusion was that Thoens’ presentation “had emotional components displayed, which are red flags and a bit disturbing.”
While the jury was deliberating, they sent a written question to the judge, which asked Dr. Jones to explain what the emotional overlay was and why it was a “red flag.” The judge asked Dr. Jones to answer, but warned him to avoid the words “malingering” and “somatoform disorder” because they commented on credibility. Dr. Jones then testified that Thoens’ description of the accident was “dramatized” and that her description of symptoms was anatomically impossible as a result of the accident. He assessed that in his experience, patients’ emotions often drive their symptoms, but that Thoens’ presentation was especially concerning and more pronounced than others. Thoens objected to the testimony, but the trial court allowed it.
Thoens appealed both of these issues after the jury gave a verdict in favor of Safeco on her UIM claim. The Oregon Court of Appeals ruled that the trial court did not make a mistake by allowing Probst, Safeco’s biomechanical expert, to testify. First, Thoens challenged Probst’s methodology, arguing that Probst could not accurately calculate the speed of the car that struck Thoen’s vehicle based on photos and a description of the accident. The Court held that Probst’s method was acceptable and was supported by the evidence.
Thoen’s main argument was that Probst’s method for determining the tolerance of human tissue to sustain certain forces was flawed. The Court observed that Thoens pointed out significant flaws in Probst’s methodology and the studies that he relied on, but nonetheless held that under Oregon law, those issues spoke to the weight, not the admissibility, of his testimony. Because Thoens could not establish that Probst’s testimony lacked scientific support, Probst was properly permitted to testify. Moreover, the Court pointed out that other experts, including some of Thoens’ experts, made findings similar to Probst that based on the nature of the accident, Thoens’ injuries could not have been caused by the 5-10 mph collision.
Second, the Court observed that Probst had significant credentials that qualified him to testify regarding human tissue thresholds including: that he had a Ph.D. in biomedical engineering, worked with the Office of Naval Research in developing a computer model of the human head and cervical spine in order to analyze automobile accidents, conducted approximately 100 auto crash tests, investigated nearly a thousand different auto-related injuries, and testified in 14 states, including Oregon. The Court rejected Thoens’ argument that Probst required a medical degree to testify regarding injury thresholds. The Court pointed out that Probst’s testimony was based on structural limitations of human tissue, not medical treatment or causation, so a medical degree was unnecessary.
The Court also rejected Thoens’ argument that Dr. Jones’ testimony regarding “emotional overlay” commented on Thoens’ credibility. The Court observed that Dr. Jones did not testify that Thoens was “faking” or exaggerating her injuries. He only stated that in his opinion, Thoens’ perceived pain was psychological and emotional instead of physiological or anatomical because there was no identifiable physical cause of her injuries.
Case updates are intended to inform our clients and others about legal matters of current interest. They are not intended as legal advice. Readers should not act upon the information contained in this article without seeking professional counsel.