In Lopez v. Larsen, plaintiff alleged personal injuries as the result of an automobile accident in 2009. Plaintiff came under the care of a pain management specialist, but failed to advise her doctor of injuries sustained in a prior motor vehicle accident in 2004. Plaintiff’s doctor served as a medical expert at the time of trial. His report and trial testimony indicated that plaintiff’s present injuries were causally related to the 2009 accident. During cross examination, plaintiff’s expert testified that he was not advised that plaintiff had been involved in any prior accidents and opined that disclosure of the prior injuries could have caused him to change his opinion.

After plaintiff rested her case, defense counsel moved for a directed verdict arguing that plaintiff’s expert failed to provide a comparative analysis of her pre and post-accident injuries. The trial judge denied defendant’s motion. The jury found in favor of the plaintiff at the close of trial.

On appeal, the Court found plaintiff’s medical expert was not capable of isolating the injuries sustained in the 2009 accident because he had been given no records of any pre-accident medical treatment, which was obviously relevant here. Without a proper comparative medical analysis, the jury was given no information by which it might assess the injuries sustained by plaintiff in several accidents.  Plaintiff was required to present the jury with a medical analysis in order to meet her burden of proof on causation. Having not done so, the appellate court reversed and remanded, holding that the trial judge should have granted a directed verdict for the defendant.

Lopez reminds us that the plaintiff has the burden of proof with respect to causation. A pre-existing injury, even when disclosed, can disrupt the casual chain.  Plaintiffs can get around this pitfall by alleging an exacerbation injury.  However, when the prior injury is not disclosed to a doctor, a defense directed verdict is an achievable goal.  Thanks to Steve Kim for his contribution.  Please email Brian Gibbons with any questions.