OR Case Update: Who Can Testify About What in Low-Impact Auto Accident Cases?

From the desk of Katie D. Buxman: Can a medical expert testify about emotional overlay? Can a biomechanical expert testify about the effect of crash speeds on the human body? Find out in this follow-up to last week’s update on an important Oregon Court of Appeals opinion.

Claims Pointer: The Court of Appeals ruled in the following case that a biomechanical expert may testify regarding the forces of an auto accident and the tolerance for the human body to sustain such forces. The Court also held that a medical expert could testify regarding a plaintiff’s emotional overlay (emotionally or psychologically-created pain) where there was no anatomical cause or source of the plaintiff’s pain.

Thoens v. Safeco Insurance Co. of Oregon, 272 Or App 512 (July 22, 2015).

Susann Thoens (Thoens) was injured in an auto accident while stopped behind a school bus. The responsible driver was traveling at a rate of 5 to 10 mph. Thoens received medical treatments for headaches, neck pain, pain in her right arm, blurred vision, and balance problems. Thoens was treated by a chiropractor, who was also her husband and employer. Thoens also treated with a number of physicians and received surgery on four levels of her cervical spine. By the time of trial, Thoens’ medical bills totaled more than $200,000.

As discussed in last week’s update, Thoens’ insurer, Safeco Insurance Co. of Oregon (Safeco), cut off personal injury (PIP) benefit payments and denied underinsured motorist (UIM) coverage after an independent medical examination (IME) revealed that Thoens’ injuries were not caused by her accident.

Thoens brought claims against Safeco for denying PIP benefits and UIM benefits after settling with the underinsured driver. Prior to trial, Thoens moved to exclude “any biomechanical testimony.”

Thoens renewed that motion when Safeco called its biomechanical expert, Bradley Prost, to testify. Thoens argued that Probst’s methods were “essentially based on junk science”...

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