Author: Trevor M. Cutaiar

In many personal injury cases, the amount of damages that are awarded to an injured plaintiff can depend largely on the weight that the trier of fact gives to competing medical testimony.  The United States Fifth Circuit Court of Appeals recently considered whether a jury was entitled to find a defense medical expert more credible than the plaintiffs’ treating physicians.  The case, Fair v. Allen, involved three passengers who were injured in an automobile accident and subsequently filed suit against driver of the offending vehicle.  The plaintiffs put on testimony of numerous treating physicians in support of their claims.

The plaintiffs’ treating physicians testified regarding a number of diagnostic procedures they performed.  In response, the defendants offered their own medical expert who testified that these procedures performed by the treating physicians were not valid.  For example, he testified that these procedures performed by the treating physicians were not valid.  For example, he testified that discograms are not proper diagnostic tools and that other injection procedures performed on plaintiffs should not be performed.  The defense medical expert opined that the plaintiffs had only suffered soft-tissue injuries.  The jury returned a verdict in favor of the plaintiffs but the plaintiffs felt the amount of damages was insufficient.

On appeal, the Fifth Circuit resolved a number of issues, including whether the plaintiffs were entitled to a presumption in favor of their treating physicians’ testimony.  The court acknowledged that, under Louisiana law, the testimony of a plaintiff’s treating physicians is entitled to more weight than a physician who only examines the plaintiff for litigation purposes.  However, the presumption does not give a treating physician unlimited credibility.  Here, there was ample evidence to justify the jury’s determination that the defense doctor was credible enough to outweigh the presumption given to the plaintiffs’ treating physicians.

Fair v. Allen, — F.3d –, 2012 WL 335655 (5th Cir. 2/3/2012).