A hypothetical fact scenario is provided herein to assist you in determining whether an injured party, who suffers a physical injury in an incident, needs an expert to recover for the physical injuries suffered in the incident.
The hypothetical matter arises out of a motor vehicle accident. As a result of that hypothetical accident, the Plaintiff sustained injuries to her neck and back, a whiplash injury. In such a scenario, is the Plaintiff required to have an expert in order to recover for the physical injuries? There are many factors which would impact the obligation to have an expert testify to the casual relationship between the incident and the injuries. Understand that there are times an expert is required and there are times when an expert is not need. The purpose of this blog is to use a hypothetical incident to generally explain when an expert is needed.
The hypothetical Defendant argues Plaintiff does not have any medical evidence expert or otherwise that she sustained a neck and/or shoulder injury in the car accident, and, thus, the Plaintiff’s claim must be dismissed. However, Plaintiff argues that, on the contrary, there is no need for an expert to testify as there is evidence of the same in the medical records and Plaintiff’s neck/shoulder injury is admissible it is the type of injury which may be offered without expert testimony.
“It is well established that "expert opinion testimony is proper only where formation of an opinion on a subject requires knowledge, information, or skill beyond what is possessed by the ordinary juror." Ovitsky v. Capital City Econ. Dev. Corp., 846 A.2d 124, 126 (Pa. Super. 2004). In negligence actions, "expert testimony is not required 'where the matter under investigation is so simple, and the lack of skill or want of care so obvious, as to be within the range of the ordinary experience and comprehension of even nonprofessional persons." Id. citing Welsh v. Bulger, 698 A.2d 581, 586 n. 11 (Pa. 1997).
In Matthews v. Clarion Hospital, appellant injured her arm and shoulder when she lost her balance at the hospital. 742 A.2d 1111 (Pa. Super. 1999). Because appellant failed to provide expert testimony to establish the causation of her injuries, the trial court granted appellee’s motion for summary judgment. Id. On appeal, the Superior Court remanded concluding appellant’s injuries were so immediately and directly, or naturally and probably, the result of her fall from the operating table, that the connection between them did not depend solely on the testimony of professional or expert witnesses. Id. The Court found specifically, that expert testimony as to causation is not required “where there is an obvious causal relationship” between the injury complained of and the negligent act. Id. at 1112 citing Lattanze v. Silverstrini, 448 A.2d 605, 608 (Pa. Super. 1982). In Matthews, appellant provided the medical records of her treating physicians to establish causation. The medical records reflected appellant experienced significant right shoulder pain either when she awoke from surgery (childbirth related) or immediately thereafter and admitted to falling off the table. Id. at 1115. The court again found this was the type of pain that did not require expert testimony.
The court in Matthews buttressed its argument by reviewing Lattanze. In Lattanze, Plaintiff was involved in an automobile accident during which he was thrown about his vehicle. Within six hours, Lattanze developed pain in his neck, back, and shoulder muscles as well as a severe headache. 448 A.2d 605. He was subsequently diagnosed with a concussion and with various injuries to the affected areas of his upper body, which required treatment for almost eight months and also prevented him from working. On appeal, the Lattanze court first reviewed those cases in which a Pennsylvania appellate court determined that the injuries complained of were either "immediately and directly" or "naturally and probably" a result of the alleged negligent act; therefore, expert medical testimony was unnecessary to prove causation. Id. at 608. Then the Superior court reviewed those cases in which no obvious causal relationship existed; therefore, expert medical testimony was found to be necessary. Id. at 608-609. In these cases, either a significant period of time had elapsed between the injury and the accident or the injury was not of the type one would normally expect to result from the accident in question, either because the accident would not normally produce such an injury or because there were other equally likely or more likely causes of the injury. Id. at 609. After reviewing the two lines of cases, the court reversed observing the jury could have concluded that there was an obvious causal relationship between the accident and plaintiff's neck, back, head, and shoulder injuries, especially where plaintiff suffered from none of these physical symptoms prior to the accident. Id.
In this case, Plaintiff’s injuries to her neck and shoulder which she complained of immediately after the accident and which are referenced in the hospital and EMS records, are the same type of injuries which do not require expert testimony, because they are either immediately and directly or naturally and probably a result of the car accident. A jury could conclude there is an obvious relationship between the accident and plaintiff’s neck/shoulder whiplash-type injury.
Defendant cited Kovalev v. Sowell to support the argument that expert medical evidence is needed in the matter of the neck/shoulder injury sustained by Plaintiff. The Kovalev decision reasoned expert medical testimony is necessary to establish the causal nexus of the injury to tortious conduct, where the connection is not obvious. 839 A.2d 359, 368 (Pa. Super. 2003) citing Maliszewski v. Rendon, 542 A.2d 170, 172 (Pa. Super. 1988). Kovalev is distinguishable. In that case, injuries alleged by Kovalev involved trauma to the spine, vertebral disks and nervous system. The connection between the tortious conduct and Kovalev’s claimed injuries would have been far from obvious. That was a clear case were expert testimony was necessary to establish the causal nexus. Id. The injuries alleged in Kovalev were so severe and the connection to the tortious conduct was too attenuated to be explained by a lay person.
In this hypothetical case, Plaintiff’s injuries are soft tissue injuries categorized as a whiplash (soft tissue) injury resulting in neck and shoulder pain. The Plaintiff didn’t have any prior injury or symptoms of the same body parts. Finally, she complained of pain to her neck and shoulder soon after the incident. It is not difficult to connect these injuries and their connection to the car accident caused by the negligence of the Defendant. Thus, these types of injuries would likely be admissible without the need of expert.