Watching videos is generally short and painless. One post for Expert-aganza ’17 discussed a file I had where video of the accident and injuries existed, but the opposing party failed to show it to her experts. Here’s another I handled that suffered a similar flaw.
The plaintiff slipped and fell in a store. Plaintiff’s response to interrogatories stated she fell on her behind.
INTERROGATORY NO. 3:
Please describe in your own words in full detail how the incident occurred, including where the incident occurred. Please state in your answer all events leading up to the accident in their sequential order.
RESPONSE TO INTERROGATORY NO. 3:
[I] went to put the items in my shopping cart, when I suddenly fell backward, causing my legs to split apart and my behind to hit the floor hard. After I fell, I discovered a large puddle of clear liquid on the floor and that my behind was all wet.
At her later deposition, she affirmed this response was accurate.
The problem was the store’s video system had captured the entire fall sequence. That video had been produced before written discovery and depositions occurred. Either plaintiff’s counsel never looked at it or didn’t understand it, because the video indisputably showed plaintiff’s behind never touched the floor. Why is that relevant? Plaintiff alleged a lumbar spine injury and her medical experts had relied upon that statement as her mechanism of injury. The pain manager wrote “[s]he fell backwards and landed on her buttocks with her legs split out.” The spine surgeon wrote “she was walking back to her cart at [store] when she slipped and fell on her buttocks with her legs in a split formation.” This made his deposition entertaining for me.
13:2 Q. When Ms. [plaintiff] came to see you on
3 October 11th — I’m back on page 1, sir — the “History
4 of the Present Complaint from the Examinee,” that’s
5 what she orally explained to you?
6 A. That’s correct.
7 Q. In performing your medical assessment,
8 does the mechanism of the injury, or how the fall
9 actually happened itself, play any role in your
11 A. Oh, absolutely.
12 Q. What role does it play?
13 A. So I’ll look to see if the mechanism of
14 injury is consistent with the patient’s allegations or
15 their representation of the injury or the mechanism.
16 And then I’ll look to see from a
17 biomechanical standpoint, is this something that could
18 be a responsible mechanism for the injury, or is it
19 outside the realm of possibility?
20 Q. Okay. Well, in your “History of the
21 Present Complaint from the Examinee,” [plaintiff]
22 indicated to you she was walking back to her cart at
23 [store] when she slipped and fell on her
24 buttocks, with her legs in a split formation.
25 Is that consistent with what you saw on
14:1 the video of her fall?
2 A. I’d have to look at that again, the video.
3 Because probably from the Wi-Fi connection, it was a
4 little bit choppy, so I did not get a fluid view today.
5 Q. If that’s how she fell, is that a
6 mechanism of injury, then, that’s consistent with the
7 treatment that you’ve seen in the past for her and then
8 recommended in the future?
9 A. This mechanism of injury would be
10 consistent with the records I reviewed and her injury.
11 It is not the only mechanism by which it would be
13 Q. Are there other mechanisms that you
14 considered as being causally related for [plaintiff]’s
16 A. No. After watching the video, taking her
17 history and watching the video and taking a collection
18 of all the records I reviewed, I feel like the
19 information on there was consistent, as a mechanism,
20 with the stated injuries or the opined injuries.
He testified that falling on her buttocks like plaintiff described could produce the bone contusion found on diagnostic imaging reports.
20:2 Q. Okay. The report from [radiologist], it
3 indicates his second impression. “There were bone
4 contusions of the L1 and L4 vertebral body.”
5 What’s a bone contusion of that area?
6 A. So I don’t have the imaging study in front
7 of me as we speak, but a bone contusion is, generally,
8 a bruise, which means a collection of fluid or early
9 bleeding into a tissue.
10 In this particular case, it would be a
11 bruise of the bone, so those usually show up lighter on
12 a T2-weighted image. This is getting kind of technical
13 now, but it would indicate that it would — I guess the
14 bottom line is it would suggest trauma.
15 Q. Is the mechanism of injury that
16 [plaintiff] described to you when she came to meet you
17 consistent with one that would generate bone
18 contusions, like [radiologist] describes?
19 A. I feel like the mechanism could be
20 consistent with a bone contusion.
21 Q. Is that because she landed on her
23 A. Just a fall, in general, with an abrupt
24 stop — I mean, hitting — you know, with gravity
25 hitting the ground, which is an immovable object, can
21:1 definitely cause a contusion. It’s consistent.
2 Had the patient’s MRI not shown a
3 contusion, that’s inconsistent as well, too. She’s had
4 to take it — take it — their presence as most likely
5 traumatic, since there’s no indication that there was
6 the general process going on in those vertebral bodies.
Then I pulled out the video to review with the surgeon. Even he couldn’t dance fast enough to conjure a response.
29:1 Q. Did she land on her buttocks?
2 A. I think she landed on her right knee, but
3 if we could go back and take a quick peek.
4 Q. Okay. I’m playing in reverse. Okay.
5 I’ll start again at 12:50:44.
6 (Video played.)
7 THE WITNESS: No, she did not fall on her
The surgeon then scrambled to cover for his failure to watch the video in detail before, realize the patient had not fallen as she described, and to find a way to link the injury to the fall.
The fun didn’t stop there. Even after all of this came to light, the plaintiff couldn’t get her story straight. She began seeing a new medical provider, who’s intake note stated “[s]he landed on her buttocks and was seen at sunrise [sic] Hospital.”
It would have been a fun case to try because I have to believe this simple but stark inconsistency between plaintiff’s testimony and the video would have negatively affected her credibility. For all the effort that some attorneys spend chasing video that does not exist, I would have thought they would invest similar effort into using the video that does exist.