There are some injuries stemming from an auto accident in which it’s fairly easy to connect the dots. Things like whiplash, contusions, abrasions, fractured bones, back injuries, facial trauma or head injuries – these are all injuries seen commonly in car accidents.
But some injuries may be less obvious. Or a crash could cause aggravation of a pre-existing condition.
Of course, victims are still entitled to compensation for these injuries and ailments, but it’s tougher to prove. Defense lawyers and insurance companies often fight against causation of injuries (in order to reduce their own liability) even when the connection seems obvious. You can certainly bet that if we’re talking aggravation of a pre-existing condition or a less obvious injury, you’re in for a fight.
That’s what happened in McClue v. Safeco Ins. Co. of Ill., recently weighed by the Montana Supreme Court. In this case, it was a alleged a car accident victim suffered from the early onset of ALS, also known as Lou Gherig’s Disease, as a result of injuries sustained in an auto accident.
Such claims are not common. Researchers are still analyzing the causes of ALS, known in the medical community as Amyotrophic Lateral Sclerosis. It’s a neurodegenerative disease that attacks the nerve cells in the brain and spinal cord. Onset of symptoms may appear slight, but the progression is gradual and, ultimately fatal. What researchers do know is that it may be possible for it to be in some cases triggered by some type of serious head trauma (such as that which might be sustained in a crash).
In the McClue case, the insurance company has fought that assertion every step of the way, and now will continue to do so.
According to court records, decedent was involved in a serious car accident in 2009. Two years later, she was diagnosed by two neurologists with bulbar ALS (which involves weakness in moving, swallowing, speaking and breathing). Two years after receiving that diagnosis, she died.
Shortly after receiving her diagnosis, she filed a claim with her auto insurance company, with whom she had an underinsured motorist coverage policy at the time of the crash. She asserted the crash caused her ALS, and thus she was entitled to damages connected to her illness. The insurance company denied this request. She and her husband both filed legal action against the insurance company and the driver of the other vehicle.
The other driver’s insurance company later settled out-of-court and was dismissed as a defendant. The case against plaintiff’s insurer continued. After she died, her husband, as representative of her estate, continued to fight.
To bolster his position of that the crash caused the ALS, he retained two expert witness neurologists. One stated that while head trauma from a car accident could potentially trigger ALS, he stopped short of saying it did so in this case. The other neurologists testified in depositions that damage to decedent’s cervical spine and lower brainstem from the crash was more likely the not the proximate cause of her illness.
Following depositions, insurer sought to exclude all expert witness testimony, insurer sought to exclude the testimony of those expert witnesses. District court agreed, and then granted a motion for summary judgment for defendant, finding that without that expert witness testimony, plaintiff had no case.
The Montana Supreme Court reversed in part. While justices did find exclusion of the first neurologist’s testimony (the crash “could potentially” trigger the onset of ALS) was proper because causation was not properly established, trial court erred in excluding the testimony of the second neurologist who asserted proximate causation. Thus summary judgment was reversed.
Case was then remanded back to the lower court for trial.
If you have been a victim of a traffic accident, call Chalik & Chalik at (954) 476-1000 or 1 (800) 873-9040.
McClue v. Safeco Ins. Co. of Ill., Aug 4, 2015, Montana Supreme Court
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