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November 25, 2020
Plaintiff Sesha Ramenaden was rear-ended by Steven Olds. Three months later he was rear-ended by Jeana Elmore. Plaintiff filed a single automobile negligence action against both Olds and Elmore, alleging a neck injury and claiming that it constituted a serious impairment of body function. Hotly contested by each defendant was whether their individual accident caused any neck injury to Plaintiff, as opposed to any neck problems being pre-existing and/or solely attributable to the other accident. Also hotly contested by each defendant was whether any neck injury attributable to their individual accident constituted a serious impairment of body function.
Joe Conte of GLM defended Elmore. He retained two IME physicians; an orthopedic surgeon to examine Plaintiff and review his medical records, and a diagnostic radiologist to review Plaintiff’s MRI films. Both physicians opined that any neck problems that Plaintiff may be experiencing were solely attributable to a pre-existing degenerative condition that was neither caused nor exacerbated by the accident involving Elmore.
Olds’ attorney also retained two IME physicians; a PM&R specialist and a neurologist. Both opined that Plaintiff’s pre-existing degenerative problem may have been exacerbated, though neither specified whether this occurred because of one or both of the accidents. Nonetheless, both provided testimony tending to establish that the exacerbation would not have significantly affected Plaintiff’s general ability to lead his normal life.
Olds’ attorney decided not to call the IME physicians he had retained at trial, or to proffer their reports as evidence, deciding instead to rely on the expert testimony that would be proffered by the IME physicians that Joe had retained. Having not retained them, and having retained the other IME physicians, Joe of course decided not to subpoena Old’s IME physicians to testify at trial.
Olds’ attorney brought a motion in limine at the beginning of trial, in which Joe joined, seeking an order precluding Plaintiff from mentioning to the jury that Olds’ attorney had scheduled the PM&R and neurology IME’s. Both Joe and Olds’ attorney pointed out that Plaintiff himself could have subpoenaed Olds’ IME physicians to testify at trial, but had not done so. They also pointed out that Plaintiff was not seeking to proffer Olds’ IME physicians’ reports into evidence. Rather, Plaintiff simply wanted to introduce evidence that he had attended the PM&R and neurology IME’s, without also introducing evidence regarding the results of those IME’s. Joe and Olds’ attorney argued that mere evidence that Plaintiff had attended the PM&R and neurology IME’s was irrelevant because such evidence, standing alone, had no bearing on whether either accident caused Plaintiff to suffer a neck injury and, if so, whether that injury affected Plaintiff’s general ability to lead his normal life.
The trial court agreed, and granted the motion in limine. Following trial, the jurors opted to believe the IME physicians that Joe had retained over the testimony of Plaintiff’s treating physicians. The jury thus returned a verdict of no cause of action in favor of both Elmore and Olds, concluding that Plaintiff had not sustained any neck injury in either accident.
Plaintiff appealed to the Court of Appeals, whereupon Chris Huffman of GLM’s appellate department joined Joe in representing Elmore. And, the Court of Appeals affirmed the trial court’s ruling in an unpublished decision, Ramenaden v Olds & Elmore, unpublished per curiam opinion of the Court of Appeals, decided Nov 5, 2020 (Docket No. 351526).
The Court of Appeals held “that the trial court did not abuse its discretion in determining that whether plaintiff attended two [IMEs] that were not substantively introduced into evidence at trial was irrelevant” to the issues of whether either accident caused or contributed to Plaintiff’s alleged neck injury, or if so whether that injury was sufficiently severe to constitute a serious impairment of body function. The Court of Appeals explained that “[t]here is simply no connection between plaintiff’s mere attendance at [the PM&R and neurology IMEs] that would make [the resolution of either of the aforementioned issues] more or less probable absent the examinations being substantively introduced in some manner or form, and plaintiff was clear before the trial court that he had no intention to either call the examining physicians to testify or otherwise seek introduction of their reports into evidence.”
Furthermore, the Court of Appeals agreed with Chris’ argument that, even assuming the trial court had abused its discretion by precluding the evidence, any error was harmless and did not warrant reversal. The reason, simply, is that even if Plaintiff had been permitted to introduce evidence that Plaintiff had attended the other two IMEs, at most this would have enabled Plaintiff’s attorney to argue to the jury, as he sought to do, that the jury could infer that the opinions of Olds’ IME physicians were unfavorable to Olds and Elmore. The Court of Appeals agreed with Chris’ argument that this could not have affected the outcome of the trial because “[i]n the same vein, defendants would be entitled to make the same argument regarding plaintiff’s failure to call those witnesses.” Thus, the Court of Appeals concluded that “[a]t worst, exclusion of the fact that plaintiff attended two [IMEs] that neither party sought to substantively introduce at trial did not affect plaintiff’s substantial rights . . , and was not inconsistent with substantial justice . . , because it had little to no bearing on the question of whether plaintiff sustained [an injury constituting] a serious impairment of body function” in either accident.