Florida Appeals Court Addresses the Issue of Expert Testimony in Whiplash Case

The success of any personal injury case can depend on expert testimony regarding the physical injuries and their causes. In an appeal involving medical expert testimony, the Second District Court of Appeals found that alleged evidentiary errors were harmless and affirmed the trial court.

The underlying action in Zelaznik v. Isensee stemmed from an automobile accident between the plaintiff and defendant. Prior to trial, the defendant acknowledged that she rear-ended the plaintiff’s vehicle and accepted liability. At trial, however, the defendant attempted to prove that the car accident did not cause the plaintiff’s injuries. Instead, according to the defendant, the plaintiff’s claimed injuries were a result of a degenerative condition. Nevertheless, the jury awarded the plaintiff $1,165,452.50 in damages.

On appeal, the defendant asserted three instances of error in evidentiary rulings. She contended that her own expert witness’ testimony had been erroneously limited, as well as the responding police officer’s testimony. In addition, the defendant contended that a video of the plaintiff’s surgery should not have been shown to the jury.

During the trial, the defendant’s expert witness, a board-certified diagnostic radiology physician, was prohibited from stating that he did not believe a trauma had occurred, given the lack of any swelling or hemorrhaging in the plaintiff’s MRI. The trial court held that the physician could not testify as to this theory because he did not present any medical literature to support the idea. The appellate court recognized that the limitation on testimony was in error, since the physician based his opinion on 30 years of medical experience. However, the Court of Appeals found that the error was harmless. Importantly, the plaintiff’s surgeon testified that he discovered a torn ligament that was suggestive of whiplash, but that was too small to appear on an MRI. Therefore, according to the appeals court, the exclusion of the defendant’s evidence would not have resulted in a different verdict.

Similarly, the Court of Appeals found no harmful error in the exclusion of testimony from a law enforcement official who responded to the automobile accident. The defendant sought to introduce testimony that the officer used a particular accident report form that would indicate there were no injuries resulting from the accident. However, the appeals court noted that the plaintiff herself testified that she moved about freely immediately following the accident, which indicated that she did not act injured at that time. Therefore, the court held that any error resulting from the exclusion of the officer’s testimony was harmless.

Finally, the Court of Appeals held that video excerpts from the plaintiff’s post-accident surgery were not inflammatory or prejudicial. Instead, the court held, the video was not gruesome and was relevant to the plaintiff’s claimed injuries.

Of significance, the Second District noted that its standard for harmless error in civil cases differs from that utilized by the Fourth District. Under the Fourth District’s test, an appellee must show that it is more likely than not that the error failed to influence the jury and affect the verdict. As such, the appeals court certified the conflict between the districts.

If you or someone you know has been suffered an injury as the result of another’s negligence, the South Florida injury attorneys at Lusk, Drasites & Tolisano can help you with your claim. Our aggressive legal team stays updated on all the relevant legal principles involved in a personal injury action. Contact us online or call toll-free at (800) 238-7442 for a free initial consultation.

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