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Plaintiff prevails after evidentiary battles

Nick Hurston//June 12, 2023

Evidentiary exhibits

Plaintiff prevails after evidentiary battles

Nick Hurston//June 12, 2023//

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A jury in the Western District of Virginia has awarded $3.5 million to a woman injured in a tractor-trailer accident after the parties narrowed the evidentiary road with several motions being heard in the days leading up to trial.

The defense admitted liability but contended that the plaintiff’s injuries either weren’t as bad as she claimed or they preexisted the accident. Defense experts sought to infer that the plaintiff withheld medical records and prevented them from opining on the cause of her alleged injuries.

Richmond litigator Kevin Mottley represented the plaintiff and said he was surprised the defense never subpoenaed records from the suspected medical providers.

“We had an evidentiary hearing the morning of trial and my client denied the accusations,” he told Virginia Lawyers Weekly.

That was enough for U.S. District Judge Thomas T. Cullen to order that defense experts couldn’t speculate or suggest that the missing records would reveal that plaintiff had a preexisting condition.

Cullen allowed the jury to watch — but not hear — video of the accident taken by the truck driver.

“This evidence is especially relevant to damages in this case because it reveals what happened in real time,” Cullen said.

However, he refused to admit a witness’s emotional 911 call from the scene of the accident.

Below, we examine some of Cullen’s opinions and how they affected the trial. The opinions are Norman v. Leonard’s Express Inc. (VLW 023-3-235 and VLW 023-3-268).

The accident

In 2019, Yvette Norman was travelling in the right lane on Interstate 81 in Virginia with her son and granddaughter. Norman passed a tractor-trailer in the left lane driven by Julian J. Kaczor and owned by Leonard’s Express. As Norman passed, Kaczor began moving into the right lane.

The tractor-trailer clipped the rear driver’s side of Norman’s sedan and sent it spinning to the left. The sedan flipped over three times before landing off the road. Unlike her son and granddaughter, Norman alleged she was severely injured.

In addition to a bruised and lacerated eye, Norman allegedly suffered vision problems and headaches due to traumatic brain injury. Leonard’s Express’s insurer settled with Norman’s son and granddaughter but refused her claims.

That’s when she hired Charlottesville attorney, Jonathan Wren, who brought in Mottley before filing Norman’s suit.

“With a big case like this, it’s well worth associating with counsel from a different firm to share perspectives, work and costs,” Wren said.

Missing records

Leonard’s Express disclosed two physicians it intended to offer as experts. Norman moved to limit testimony from a neurosurgeon named Isabelle Richmond who said it was impossible to give an opinion about her injuries due to missing pre-accident medical records.

Norman denied the accusation and said it was the defendant’s own failure to give the records to Dr. Richmond that led to the issue.

“We provided records going back 10 years and supplemented as we found more,” Mottley said.

Wren, meanwhile, noted that this all started from an “off-the-cuff response” during their client’s deposition when she said she had annual checkups, adding that “there were no follow-up questions from the defense.”

The judge wasn’t amused with the accusations.

“Whether or not any of these statements by Dr. Richmond or Leonard’s Express are true regarding what may or may not have transpired in discovery — i.e., whether or not Norman fully and timely complied with her document-production obligations — discovery is closed,” he wrote.

Leonard’s Express asserted that its “medical-canvass investigation” revealed that Norman may have treated at but never produced records for four providers.

“We asked defense counsel if they had records from those providers but they never responded” Mottley said.

On the morning of trial, Cullen allowed the defense to ask Norman whether she treated with any of the providers.

“If Norman testifies that, ‘no,’ she has not, then Leonard’s Express’s inquiry will come to an end, and this issue will not be mentioned at trial,” he said.

Wren told Virginia Lawyers Weekly Norman testified it was likely her work as a home-health nurse that resulted in her showing up in the medical providers’ files. Cullen was convinced by her testimony.

Limited testimony

Dr. Richmond explained that she hadn’t reviewed Norman’s prior medical records or deposition transcript. Nonetheless, she opined that Norman had a “significant prior medical history” and “ongoing hypertension.”

Cullen said Dr. Richmond’s testimony about missing records would be outside the scope of her expertise and therefore unreliable.

“Accordingly, Dr. Richmond will be permitted to testify only about the records she reviewed in making her report,” the judge held.

Although Dr. Richmond could rebut Norman’s expert by saying it was impossible to determine the cause of her headaches, Cullen prohibited the doctor from mentioning any missing records to do so.

Cullen said the doctor hadn’t laid an adequate foundation in her report for her opinion that Norman had “significant medical history,” and wasn’t permitted to speculate about it.

“Indeed, every medical record that Dr. Richmond cites in her Report is from after the accident,” the judge pointed out.

Despite having laid an adequate foundation for post-accident “ongoing hypertension,” Cullen said Dr. Richmond failed to establish a causal connection to Norman’s headaches and excluded mention of it at trial.

Calling the doctor’s reasoning “thin on this point,” Cullen said Dr. Richmond’s report allowed the reasonable inference for her opinion that Norman didn’t suffer vision problems as a result of injuries from the accident.


Leonard’s Express also disclosed Dr. Jonathan DeRight, a neuropsychologist, as an expert who suggested that Norman had post-traumatic stress disorder, or PTSD, from experiencing Hurricane Katrina. Norman said that wasn’t based on any factual foundation.

Dr. DeRight opined that Norman’s diagnosis of PTSD was “problematic” because the plaintiff’s expert didn’t discuss “alternative sources of trauma that predated the accident[.]”

“Contrary to Norman’s argument, Dr. DeRight did not base his PTSD opinion on ‘rank speculation,’” Cullen said, but rather on Norman’s comments. Dr. DeRight’s testimony was intended to discredit Norman’s PTSD diagnosis, not diagnose her and, thus, was admissible.

“Insofar as Norman contends that she never told Dr. DeRight that she had PTSD because of Hurricane Katrina — or that Dr. DeRight misinterpreted what she had said — that is not sufficient grounds to prevent Dr. DeRight from testifying on this issue,” Cullen wrote.

Video, 911 call

Arguing that the footage was unduly prejudicial, cumulative and irrelevant because they admitted liability, Leonard’s Express moved to exclude a 12-second-long video clip recorded from inside the tractor-trailer’s cabin that showed the vehicles colliding.

Cullen wasn’t persuaded.

“[E]vidence of the details of a motor vehicle accident are relevant to the issue of resulting injuries, and [] this type of evidence is more probative than prejudicial,” he wrote.

Here, the crash’s severity had the tendency to make it more probable that Norman sustained the alleged injuries.

“But the audio heard in the video is inadmissible,” Cullen held, noting that risk of undue prejudice due to Kaczor cursing audibly in the video outweighed its probative value.

Finally, the judge agreed with Leonard’s Express that an emotional 911 call made by an eyewitness to the accident risked undue prejudice and should be excluded even if it were relevant to the severity of the crash.

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