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Court of Appeals Upholds the Trial Court’s Order Barring Treating Physicians From Providing Opinion Testimony On Causation

By Jennifer Anstett

The attorneys at Magdich Law took over the defense of William-Inner v. Liberty Mutual Insurance Company in preparation for trial of the plaintiff’s claim for No-Fault benefits. It was discovered that plaintiff’s counsel failed to identify any experts on her witness list and failed to answer an interrogatory that was aimed at discovering the opinions of the witnesses who would testify that the alleged injuries arose out of the motor vehicle accident. Based on these failures, the defendant moved for dismissal, or in the alternative, to strike the plaintiff’s experts. The trial court ordered that the plaintiff’s treating physicians, the witnesses the plaintiff intended to call to provide causation testimony but who were not identified as experts, were barred from providing opinion testimony on causation.

Plaintiff’s counsel argued at the trial level, and again on appeal, that the plaintiff did not need to use the identifying term “expert” on her witness list for treating physicians, even if she intended to call them to testify to causation, because identifying them as a doctor was sufficient and treating physicians did not need the same designation as retained experts. Likewise, she argued that she did not need to provide detailed written answers to interrogatories on their opinions because the defendant could review the medical records.

After obtaining a no cause of action, Jennifer Anstett and Magdich Law handled the appeal against the plaintiff’s argument that the trial court abused its discretion when it struck the treating physician’s testimony. We argued that the Court Rule specifically requires that the parties identify their experts using the term “expert” on the witness list and the plaintiff violated that rule. As for the plaintiff’s argument that a treating physician should be handled differently because they are not retained and their opinions are outlined in their records, the Court of Appeals agreed with our argument. If a treating physician is going to provide opinion testimony on causation, they must be identified as an expert on the witness list and the plaintiff must provide detailed and substantive answers to written discovery that requests a summary their experts’ opinions because the court rules states that written discovery is a proper technique at learning the expected testimony of expert witnesses.

Practice Tip:  Defense counsel should serve plaintiffs with expert witness interrogatories. If the plaintiff fails to provide substantive answers to the interrogatories, including the opinions of treating physicians, counsel should move to dismiss the case on the basis of the discovery violation or, in the alternative, ask that the court strike the treating physicians from providing opinion testimony on causation.

Electric Wheelchair Determined to be Motor Vehicle and Required Insurance

Neil E. Hansen won a Motion for Summary Disposition in a lawsuit for personal protection insurance (PIP) benefits in the case of Hindenlang v State Farm. Defendant argued that the undisputed facts established that Plaintiff was operating an electric wheelchair in the roadway at the time the underlying accident occurred. When the accident happened, Plaintiff sought to collect PIP benefits under the insurance policy covering the driver of the other vehicle involved in the accident. The Court ruled that the undisputed facts established that the electric wheelchair met the statutory definition of a motor vehicle, and therefore that Plaintiff was required to insure the vehicle. By failing to do so, Plaintiff was statutorily disqualified from receipt of PIP benefits.

Adjuster Tip:

Think twice about the information placed in your log notes and before you hit save!  Is the information accurate?  Is the information objective and neutral?  How will it read to a jury if read, or blown up, later?

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Questions or comments? Email Allison Lazette-Magnan at alazette@magdichlaw.com or visit www.magdichlaw.com