Whiplash Lawyer Fights to Overturn a Previous Ruling Dismissing Plaintiff's Case*

This is a review of an appeal filed by a whiplash lawyer contesting a lower court's ruling which dismissed the Plaintiff’s lawsuit and granted the Defendant’s Motion for Summary Judgment. 

The Plaintiff in this case had been struck by an SUV while driving and suffered various injuries to his back. The Plaintiff hired a whiplash lawyer and attempted to sue the auto insurance company of the SUV's driver, but a lower court had held that his injuries were not severe enough to allow the suit to proceed.

The Plaintiff's attorney appealed the decision and presented to the court medical evidence that the man's injuries met the state definition of severe.

Statement of Facts...

In the early morning hours of Wednesday, March 2nd, Herm Rose was on his way to work. He was in the far right lane travelling eastbound on Interstate 35 when an SUV belonging to the Universal Truck Corporation pulled alongside of him. Suddenly, and without warning, the SUV cut in front of Rose, in a failed effort to get off at the exit they had just passed.

As the SUV cut in front of Rose, the right front quarter panel of the vehicle collided with the front bumper of Rose’s car, forcing Rose’s car off the road and onto the shoulder where it came to rest.

Universal’s driver was not injured. Rose claimed to be injured and was taken to the local hospital by ambulance. There he told the admitting physician he was suffering from pain and discomfort to his neck, shoulder, and right leg.

An MRI examination indicated Rose may have suffered the following injuries:

• Possible tear of the anterior cruciate ligament in his right leg
• Herniation of the cervical spine at the C5-C6 level
• Paracentral disk herniation of lumbar spine at L5-S1 level
• Rotator cuff impingement of the left shoulder
• Soft tissue injuries surrounding shoulder

No fractures were detected. Rose was discharged from the hospital without having to be admitted. He was instructed to seek physical therapy.

The next day Rose retained a whiplash lawyer to represent him in a claim against Universal. The lawyer sent Rose to a chiropractor. The chiropractor examined Rose and determined he would benefit from electronic stimulation, whirlpool immersion, and massage therapy.

Rose’s treatment went on for eight weeks, during which time the chiropractor instructed Rose to rest and not return to work.

Rose’s whiplash lawyer entered into negotiations with Universal’s insurance company. Rose alleged he suffered “Serious Bodily Injuries,” and as a result should be exempt from the state’s no-fault insurance law which required him to seek compensation for his medical bills from his own insurance company.

Rose knew if his injuries weren't considered serious, he would only be able to recover compensation for his medical bills and a small amount for his out of pocket expenses from his own carrier. Also, he wouldn’t be able to sue Universal for his pain and suffering, which meant he would be denied what could be a very substantial amount of compensation.

Universal’s lawyers were intent on proving Rose’s injuries did not rise to the level of the state’s no-fault insurance law’s definition of serious bodily injuries. Universal knew if it could prove that, then the court would dismiss Rose’s lawsuit.

Within 30 days of the filing of Rose’s lawsuit, Universal filed a Motion for Summary Judgment. The Motion for Summary Judgment would ask a judge (and not a jury) to examine the case and decide if it was worth having a jury hear. 

When granting a Motion for Summary Judgment, the Court might point to such flaws as there not being enough material evidence in the case, or the Plaintiff has not shown how the Defendant could be liable.

In this case, Universal argued that the injuries weren't serious enough for the lawsuit to continue, and that the law was clear on what it considered serious injuries. They asked the Court to examine the evidence of Rose's injuries and make a simple yes/no determination.

If the Court agreed with Universal, then the appeal would end and the case would be dismissed.

The Hearing...

Key to both sides' line of argument was the specific definition of Serious Bodily Injury the state used for the no-fault insurance. 

This state in particular defined "Serious Bodily Injury" as: 

"...an injury which results in death, dismemberment, disfigurement, loss of a fetus, loss of a body organ, permanent loss of use of a body part, or medically determined injury or impairment which prevents a victim from performing his normal activities for 90 days or more."

At the hearing on the Motion for Summary Judgment the Plaintiff’s whiplash lawyer offered into evidence one Medical Affidavit, and one Chiropractic Affidavit. The first Affidavit was from the emergency room physician. The Affidavit was a confirmation of the diagnosis made by the doctor at the time Rose was initially seen in the emergency room right after the collision.

The diagnosis was a possible tear of the anterior cruciate ligament in Rose’s right knee, a possible herniation of his cervical spine at the C5-C6 level, a possible paracentral disk herniation of his lumbar spine as the Ld-S1 level, and a possible rotator cuff impingement of the left shoulder and injuries to the surrounding soft tissue.

The second Affidavit was from the chiropractor who treated Rose. The Affidavit stated Rose received electronic stimulation, whirlpool immersion, and massage therapy for a period of eight weeks, and that Rose was still suffering from some pain and discomfort.

In a personal injury case the state’s Rules of Evidence permit a Defendant to have the Plaintiff examined by doctors of his choice. 

Universal had Rose examined by two orthopedic surgeons and offered their Medical Affidavits into evidence. The first Affidavit conflicted with the diagnoses of Rose’s emergency room physician, as well as the chiropractor’s.

The first Affidavit stated upon examination Rose’s injuries could not be confirmed; that after asking Rose to perform standard range of motion movements Rose was able to do so with little pain and discomfort. Rose still though did suffer some limitation of range of motion in his right leg.

The second Medical Affidavit stated that upon examination Rose’s injuries had not been fully resolved, although range of motion in his neck, shoulder back, and right leg were within two weeks of being fully resolved.

Outcome...

After hearing evidence presented by both sides and the arguments of counsel, the Court found Rose did not present sufficient evidence to prove to the Court’s satisfaction his injuries lasted for more than 90 days after the collision. 

The Court went on to say although it was clear Rose suffered injuries, his injuries did not rise to the level of the state’s no-fault insurance law definition. The Court therefore upheld the lower Court’s decision and dismissed Rose’s case.