Ray v. Draeger – Challenging Expert Witness Bias in Crash Lawsuit

In car accident litigation, it is common that both sides seek testimony from independent expert witnesses to verify various positions.
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For example, a medical doctor could be called to dispute the causation or nature of injuries. Or an accident reconstruction expert could be asked to testify as to the cause of the crash or certain aspects of it that may be in dispute.

It’s reasonable that these witnesses are compensated for their time and travel. However, the auto insurance industry has come under fire in the past for “hiring” certain expert witnesses on a regular basis to testify on their behalf. When a witness routinely testifies for one side or another and/or receives a substantial portion of their annual income from this type of work, that may be an indicator of bias. In other words, the witness is only lending his or her professional opinion to the favor of the defense because he or she is paid well and often to do so.

In the recent case of Ray v. Draeger, before the Alaska Supreme Court, plaintiff sought to point out this alleged bias to jurors overseeing her car accident injury lawsuit.

Plaintiff was a passenger in a vehicle rear-ended by defendant. Although the crash was deemed minor, plaintiff suffered neck pain, and as a result, sought medical treatment from a chiropractor and physical therapist. She sued for compensation for these injuries, as well as for pain and suffering.

Defendant driver did not deny liability for the crash, but argued plaintiff’s injuries weren’t as severe as she had indicated. To prove this point, defendant (who was provided legal defense by her auto insurance company) presented an expert witness – an orthopedic doctor – who would testify plaintiff’s injuries were not as severe as she claimed.

Prior to trial, defense filed a motion that would bar plaintiff from mentioning to jury that defendant had liability insurance. Plaintiff partially opposed the motion, saying that she wanted the opportunity to underscore the benefit this particular expert witness gained from testifying for the defense.

The record indicates this doctor regularly performs independent medical reviews for insurance companies. He co-founded a company that provides this service, and 98 percent of the company’s clients are insurance company defense attorneys. Of his $800,000 in annual revenue, the doctor makes between $400,000 and $450,000 working as an expert witness.

The court granted defense motion, but did say plaintiff could ask the witness generally about whether the nature of his work creates a bias.

At trial, the doctor told the court the money he made from insurance companies and the promise of future employment had no sway on his opinion regarding plaintiff’s injuries. He testified that while plaintiff’s chiropractic treatments were reasonable, her physical therapy treatments were excessive.

Jurors awarded damages for plaintiff’s chiropractic injuries, as well as less than $1,000 for her pain and suffering, but nothing for physical therapy or future damages.

Plaintiff appealed, arguing trial court was wrong to bar her from questioning the witness about his insurance industry connections.

Appeals court reversed and remanded for a new trial. Defense appealed to the state supreme court. That court did find trial court erred in blocking plaintiff from that line of questioning because there was a substantial connection, but found the error to be harmless because plaintiff was able to ask general questions pertaining to that issue.

Contact the Carolina injury lawyers at the Lee Law Offices by calling 800-887-1965.

Additional Resources:
Ray v. Draeger, July 2015, Alaska Supreme Court

More Blog Entries:
Lopez v. U.S. – Fault in a Rear-End Collision, July 7, 2015, Winston-Salem Car Accident Lawyer Blog

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