South Florida Personal Injury Lawyers Blog
What happens when an accident is partly your fault? Plaintiffs whose injuries are the result of both their own negligence and other peoples’ negligence may have their damages reduced in proportion to their own fault.
In a recent case, a plaintiff was found to be 90% negligent for not wearing a seatbelt. Accordingly, the jury awarded her much less than the amount of medical expenses she claimed. On appeal she argued that the trial court had abused its discretion by, among other things, allowing her physician to be cross-examined as to irrelevant matters.
The accident at issue happened when the defendant was driving the plaintiff home. He had a seizure and drove over curbs, hit a tree, and crashed into a house. The plaintiff’s neck was broken and she had to have surgery. Her attorney sent her to a pain management specialist and later to a neurosurgeon for another surgery.
At trial, the jury considered whether the accident resulted from the defendant’s seizure, which was part of a medical condition of which he wasn’t aware. It also considered whether her failure to wear a seatbelt increased her injuries. It also considered how reasonable her past and future treatments were.
The plaintiff and defendant both presented experts. They didn’t substantially disagree as to what had happened. The jury only found the defendant 10% at fault. As a result, the court only awarded the plaintiff $10,532.50.
She appealed. The defense attorney had cross-examined her neurosurgeon about his refusal to accept insurance and other aspects of his practice. She had objected as to relevance, but the trial court overruled the objection.
The appellate court explained that trial judges have broad discretion in deciding whether evidence is relevant. In this case, the doctor had testified on direct examination about his qualifications and practice, including the fact he didn’t accept insurance. The defense counsel had not offered consistent objections, nor moved for a mistrial.
The plaintiff also argued that the defense expert had given an opinion he hadn’t shared in his deposition. Specifically, he had the opinion she wasn’t wearing her seatbelt based on biomechanics related to speed and other forces. She objected this was a surprise opinion.
When the defense attorney tried to get this testimony directly, her attorney objected and the judge sustained the objection. However, the plaintiff’s own attorney elicited this testimony based on the way he cross-examined the expert on speed. Therefore, on redirect examination, the defense attorney was able to ask similar questions.
The appellate court explained that the plaintiff’s attorney invited the defense attorney’s questions. The appellate court also explained this wasn’t a change in opinion. The expert had testified he didn’t know the exact vehicle speed, but did testify the impact wasn’t minor.
At trial, he testified the impact was a moderate speed and again the impact wasn’t minor.
The plaintiff wasn’t able to show how she was prejudiced because the speed estimate was the same as her own expert’s assumption that she could have gotten the same injuries even if she wore her seatbelt. The plaintiff did not have her own expert testify. The judgment was affirmed.
If you are seriously injured because somebody else was negligent, contact the knowledgeable Florida personal injury attorneys at Friedman, Rodman & Frank toll-free for a free consultation at (877) 448-8585.
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