In some personal injury cases, expert testimony is necessary to help establish causation. For example, if you sue your doctor for medical malpractice, you will need to present testimony from another qualified physician who can explain exactly what your doctor did wrong and how that “caused” your alleged injury. Other cases do not typically require such testimony. If you slip and fall on a puddle of water in the middle of a grocery store, you do not need an expert to explain what caused you to fall.
Wilson v. Kroger Co.
What if the defendant alleges another potential cause of a plaintiff’s injuries? Does the plaintiff need to call on an expert witness to rebut this alternate explanation? A federal judge in Atlanta recently addressed such a situation.
This case involves a slip-and-fall accident at a Kroger. The plaintiff alleges she fell due to a “spill on the floor.” She further alleged store employees knew about the spill beforehand, yet failed to clean it up in accordance with Kroger policy.
The plaintiff’s lawsuit, which Kroger removed from state to federal court, alleges that due to the fall, she “sustained injuries to her lower back, right knee, and right foot.” Kroger disputes this. Among other points, the company argued the plaintiff’s injuries predated the slip-and-fall. More to the point, the plaintiff was “contributorily negligent” because she ignored her physician’s advice to wear a special shoe on the day she went to the Kroger store–instead, she wore flip-flops.
Kroger moved for summary judgment on certain issues. The trial judge denied the motion. The main point raised in Kroger’s motion was that the plaintiff failed to offer “expert medical testimony” regarding her “theory of causation.” That is to say, she cannot prove the fall caused her injuries. The judge, applying Georgia law, said that no such expert testimony was necessary. Although Kroger presented its own experts–who argued that the plaintiff’s injuries were the result of her preexisting conditions–that did not mean the plaintiff needed to present her own experts in rebuttal.
Basically, the plaintiff’s theory of causation is simple: She was injured when she slipped in the store. This theory does not require expert testimony. Kroger is free to argue an alternate theory of causation, but that does not require the plaintiff to respond in-kind.
Kroger also maintained that it was entitled to summary judgment on contributory negligence, as the plaintiff acted with “disregard for her doctor’s orders” by not wearing her prescribed shoes on the day of the accident. The judge pointed out the issue was not so clear. The evidence before the court showed the doctor merely prescribed the special shoe; there was no indication of where and how long the plaintiff was supposed to wear them. In any case, the judge said it would be up to a jury to decide whether the plaintiff’s “footwear contributed to her fall and subsequent injury.”