In the recent case of McClue v. Safeco Ins. Co. of Ill., plaintiff seeks recovery of underinsured motorist coverage years after a crash, when his wife died of ALS.
Amytrophic lateral sclerosis, often referred to as “Lou Gherig’s Disease,” is a progressive neurodegenerative disorder affecting nerve cells in teh brain and spinal cord. This degeneration will ultimately lead to the sufferer becoming totally paralyzed and finally, death.
The cause of the condition is not totally known, but there is some evidence to suggest ALS could be associated with head trauma. The fact that many former athletes suffer from the condition (it’s even named after one of the most beloved baseball players of all time, whose career was ended by the disease) calls attention to the fact that perhaps physical trauma is a trigger. Based on this theory, there has been growing evidence to suggest those who suffer physical trauma in other ways – i.e., a car accident – could have a valid case to pursue further damages if they are later develop the disease and can establish causation.
Of course, proving cause-and-effect in this situation is not going to be simple. It will undoubtedly be disputed. It’s a relatively new concept, and one that defense teams are likely to fight vigorously. Plaintiff will need a skilled, convincing expert witness to make such an assertion.
Such was the case in McClue v. Safeco Ins. Co. of Ill., where a husband carried on the case after his wife died of the condition in 2013, four years after suffering serious injuries in a horrible car accident. She was diagnosed with the condition just two years after the crash.
According to court records,the crash happened in 2009. At the time, she was insured with an underinsured motorist coverage policy by defendant. After her diagnosis, her husband submitted a claim to the insurer for UIM benefits associated with her ALS. The insurer denied these claims, arguing the crash was not the cause of insured’s condition.
Plaintiff later sued the driver of the other car and his wife’s insurer. The other driver settled out-of-court and was dismissed as a defendant. The case against her insurer continued. In addition to simply collecting on the policy, he alleges bad faith and breach of contract.
At trial, plaintiff planned to present testimony from two neurologists. One stated trauma could contribute to the development of ALS, but stopped short of saying the crash caused patient’s ALS in this case. The other testified the car accident resulted in tissue damage to decedent’s cervical spine and lower brain stem, and that this was more probably than not the proximate cause of decedent’s illness.
Insurer sought to exclude the testimony of both doctors at trial, and the district court granted that motion. Insurer then sought – and received – summary judgment because, without expert opinion, plaintiff had no proof of causation.
He appealed the exclusion of this testimony.
The Montana Supreme Court reversed in part. It did find that the first doctor’s testimony was sufficient to bar him from giving testimony to establish causation. That’s because he had never said definitively this crash caused the illness. However, the court reversed on the question of the second doctor, finding he was qualified to present expert testimony at trial.
That means the case will continue to the trial phase.
Contact the Carolina injury lawyers at the Lee Law Offices by calling 800-887-1965.
McClue v. Safeco Ins. Co. of Ill., Aug. 4, 2015, Montana Supreme Court
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