'You Had a Bad Back Already': How a Dayton Court Rejected the Pre-Existing-Condition Defense

Published August 13, 2019 · Ohio Appeals Courts

Sooner or later, in almost every back or neck injury case, the insurance company finds an old X-ray or an MRI and announces that your problem was there all along. Degeneration. A congenital defect. "Normal wear and tear." The message is that the crash did not hurt you; your spine did.

On July 5, 2019, the Second District Court of Appeals, which hears appeals from Montgomery, Greene, Miami, Clark, Champaign, and Darke Counties, decided a Dayton crash case that shows exactly how that argument fails when the evidence is gathered the right way. The case is Harrod v. USAA Ins. Co., 2019-Ohio-2748.

A soldier, a stopped car, and a caved-in door

In September 2013, Joshua Harrod was sitting in traffic on Harshman Road in Dayton. Another driver, Jesse Walling, pulled out of a private drive to turn left onto Harshman Road and into the path of an oncoming vehicle. That vehicle struck Walling's car and pushed it into Harrod's. Harrod's driver-side door was caved in so badly it would not open, and he had to climb out the passenger side.

Harrod had served in the military for 15 years. He testified that the impact threw him from side to side and wrenched his back, that his wife took him to the emergency room within an hour or two, and that his back pain never went away. It ended his military career and limited everyday activities like sitting for more than half an hour, tying his shoes, running, and swimming.

Before trial, Walling admitted he was negligent. The only questions left for the Montgomery County jury were whether that negligence caused Harrod's injuries and, if so, what they were worth.

The defense: a congenital defect and degenerative discs

Walling's lawyers built their case around Harrod's spine. Medical records showed a pars defect, a condition present from birth in which a part of the vertebra does not form correctly. An MRI taken six months after the crash showed disc dehydration and desiccation, changes commonly associated with aging. The defense also pointed to a military fitness exam Harrod passed a few months after the crash. The argument was simple: maybe the back pain came from his own spine, not from the collision.

Why the trial court took causation away from the jury

At the close of the evidence, Harrod's lawyer asked the judge for a directed verdict on causation. A directed verdict is a ruling by the judge that the evidence on an issue points only one way, so there is nothing for the jury to decide. The trial court granted it, finding that reasonable minds could only conclude Harrod was hurt in the crash. The jury then decided only how much his injuries were worth and awarded $52,827.94.

Walling appealed. The Second District affirmed, and its reasons are worth walking through, because each one is something an injured person can help build.

No pain before the crash. Harrod testified he had never had back pain or back trauma before the collision, and the defense offered nothing to contradict him. A 2005 military X-ray had picked up the pars defect, but nothing suggested it was taken because he was hurting; it was most likely a routine physical, and Harrod did not even know about the defect until after the crash.

Immediate treatment. The emergency-room records, made within hours, documented back spasms, back pain, and muscle strain, with muscle spasms the staff could feel by hand. A chiropractor two weeks later recorded findings consistent with a motor vehicle collision.

A specialist's opinion. A non-operative spine specialist testified, to a reasonable degree of medical certainty, that Harrod's back pain was related to the crash. On cross-examination he explained that a congenital pars defect causes no problems unless something like a fall or a collision aggravates it.

The "pre-existing" evidence did not show pre-existing pain. The degenerative findings came from an MRI taken six months after the crash, so they did not prove anything about his back before it. And even if those changes were already there, the court said, nothing showed Harrod had any pain or discomfort before he was hit.

Later fitness exams go to how badly he was hurt, not whether. Passing a fitness test four months later might suggest the injury improved, but that is a question about the extent of the harm, which the jury still decided.

Putting it together, the court held that "reasonable minds can only conclude that the collision was the proximate cause of some injury to Harrod's back."

The appeal also raised two passing references to insurance during closing argument. The court found both were inadvertent and indirect and did not require a new trial.

The legal principle behind the result

Ohio law has long held that a negligent driver takes the injured person as he finds him. If you had a back condition that caused you no problems, and a crash turned it into a painful, disabling condition, the at-fault driver is responsible for that harm. Lawyers call this the eggshell plaintiff rule, and I explained it in an earlier post on pre-existing conditions.

Harrod is a practical, local illustration of the rule at work. A condition that never hurt before the crash is not an alternative explanation for pain that started immediately after it. It is part of the reason the crash hurt you as much as it did.

What this means for you

The defense in Harrod did not fail by accident. It failed because the record was clean and consistent. If you have been hurt in a crash, here is how to give your own case the same strength:

• Get checked out right away. Harrod went to the emergency room within hours. That record, made before any lawyer or adjuster was involved, was powerful evidence. I have written before about why using your health insurance for crash treatment helps rather than waiting for the other driver's insurer.
• Be honest about your history. Tell your doctors about prior injuries and prior pain, and about the absence of them. Consistency is what made Harrod's testimony believable.
• Follow up with the right specialist. An opinion from a spine specialist connecting your symptoms to the crash is often what makes the difference.
• Photograph the vehicles. Pictures of Harrod's caved-in door supported his account of how his body was thrown.
• Do not let "degeneration" scare you. Nearly everyone over 30 has some disc changes on an MRI. What matters is whether you hurt before the crash.

Our Dayton car accident practice handles these cases every day, and our page on car and truck accidents explains how fault and damages are proven.