A Jury Gave a Crash Victim $500 for $67,000 in Bills. Here's Why She Got a New Trial (Marquez v. Jackson)

Published February 13, 2018 · Ohio Appeals Courts

The other driver admitted he caused the crash. The injured woman's doctors testified that her injuries came from it, and her medical bills alone topped $67,000. The jury awarded her $500.

That is what happened to Lucia Marquez in Lorain County, and on January 29, 2018, the Ninth District Court of Appeals agreed she deserved a new trial. Marquez v. Jackson, 2018-Ohio-346 (9th Dist.). The reason is one every injured person should understand: an insurance-defense doctor's opinion went to the jury on paper, and no one ever got to question him about it.

What happened at trial

The case grew out of an April 1997 crash. The defendant stipulated, meaning he formally admitted, that his negligence caused the collision, so the only question for the jury was damages: how much the crash cost Ms. Marquez.

She presented testimony from her treating physician and a neurosurgeon, and she and her mother testified as well. According to the appeals court, that evidence established out-of-pocket medical expenses of more than $67,000, including the emergency room, therapy, and the physicians who treated her afterward.

The defense did not call a doctor. Instead it relied on a written report from a physician who concluded that her pain came from an ailment unrelated to the crash. That doctor never took the stand. Over the plaintiff's objection, the trial judge admitted his report into evidence anyway and let it go into the jury room during deliberations. The report also contained statements and opinions attributed to other physicians who did not testify either.

The jury came back with $500.

Why the new trial was granted, and upheld

Ohio Civil Rule 59(A)(1) allows a trial court to grant a new trial when an irregularity in the proceedings, or an abuse of discretion, prevents a party from having a fair trial. The trial court ruled that the defense doctor's report was inadmissible hearsay. Hearsay is a statement made outside the courtroom that is offered to prove the truth of what it says; the rules generally exclude it because the person who made the statement cannot be cross-examined.

The defendant conceded on appeal that the report was hearsay. He argued instead that the error was harmless, a term from Civil Rule 61 meaning an error too minor to have affected the result. The Ninth District rejected that argument. It pointed out that the trial court had compared the evidence actually admitted, which tied the injuries to the crash and showed damages far beyond $500, with the size of the verdict. The trial court concluded that the low award confirmed "the jury clearly considered and relied on this inadmissible hearsay report." The appeals court found that conclusion reasonable and affirmed the new trial.

The case has had an unusually long road, including two earlier appeals and years in which the file sat inactive in the trial court. The Ninth District found that delay was not Ms. Marquez's fault and rejected the defendant's argument that it should cost her a new trial. She now gets what she was entitled to in the first place: a jury that decides her damages on proper evidence.

The real lesson: "paper doctors" must be tested

Every injured person who files a claim eventually meets the insurance company's doctor. Sometimes it is a records review; sometimes it is an in-person examination that insurers call an "independent medical examination," though the doctor is chosen and paid by the defense. The resulting report almost always says the same things: the injury was minor, it resolved quickly, the ongoing pain comes from age, degeneration, or some prior condition.

Those opinions are not facts. They are arguments, and the place to test an argument is cross-examination, where the doctor must explain how much time he spent with you, what records he did or did not review, how much of his income comes from defense work, and why he disagrees with the doctors who actually treated you. Marquez is a reminder that Ohio's rules of evidence protect your right to that cross-examination. A defense cannot simply hand the jury a report and skip the hard questions.

The "unrelated ailment" argument in particular is one we see constantly. Ohio law does not let a defendant escape responsibility because you had a pre-existing condition; it is responsible for the harm the crash caused, including aggravation of an old problem. I explained that rule in my post on pre-existing conditions and the eggshell-plaintiff rule.

How we build a damages case that holds up

A verdict like $500 against $67,000 in bills is the worst-case scenario. Here is how a well-prepared case guards against it:

• Treating doctors who will testify. Your own physicians, who saw you over time, are usually the most persuasive witnesses about what the crash did to you. Their opinions should be developed and, when needed, presented live or by video deposition.
• Objections made at the right moment. Ms. Marquez's lawyer objected when the report was offered. That objection preserved the issue and made the new trial possible.
• A complete medical history. Insurers win "unrelated ailment" arguments when the jury feels the plaintiff hid something. Being open about prior injuries, and having your doctors explain the difference, takes that weapon away. My post on soft-tissue injuries covers how we document injuries that do not show up on an X-ray.
• Preparation for your own testimony. Juries listen closely to how plaintiffs describe their lives before and after. Your deposition and trial testimony matter, which is why I wrote about what to expect at your deposition.

What this means for you

A low-ball verdict is not always the end of the road. When a jury's award is out of line with uncontested evidence because something improper got into the courtroom, Ohio's civil rules allow the trial court to order a new trial. More practically, Marquez shows that insurance-defense medical opinions are vulnerable when they are challenged properly. If an adjuster is pointing to a defense doctor's report to justify a tiny offer, that report is the beginning of the argument, not the end of it. Our car accident practice handles these disputes regularly.