I filed a negligence suit for injury caused while participating in a beginner sport. I was diagnosed with a specific injury by an ER physician & again by my primary care physician. The defendant seeks to introduce expert testimony to rebut the medical diagnoses & opine that I did not actually have the specific injury. (The consensus among experts is that this type of injury can only be clinically diagnosed.) The "expert" has not examined me nor has ever even met me. Is this improper? The issue is whether the person who caused the injury acted negligently in the sport... Seems like an attempt to confuse the issues, waste time, and cause prejudice. I did not ask for future damages. There is no question that D's conduct could cause this type of injury. Thanks.
In a battle of the experts, the trier of fact will decide which if either expert to believe. Your concerns would have to be laid out in a vigorous cross examination of the expert to lay bare the deficiencies.
Insurance defense counsel, if given the resources, will always retain an expert medical witness in order to refute the injured plaintiff's claims. This is just basic to their playbook which is to first dispute even relatively clear liability (what people incorrectly often call an 'open and shut case') and then to minimize damages, saying that the individual's harm is nowhere near as bad as they claim. As you put it, it is an attempt to confuse issues and there are valid ways to challenge it. Often the insurance defense attorneys themselves call it throwing as much mud up on the wall and seeing how much of it will stick. Please don't take it from me, here are what insurance insiders say about their favorite tactics, known as delay, deny, defend: http://www.attorney-myers.com/2014/06/delay-deny-defend-insurance-companies-dont-pay-claims-can-jay-feinman/ Sad to say, this is situation normal in the handling of personal injury claims.
first, it sounds like you have your hands full, but are doing a good job trying to maintain the fight. Welcome to the wonderful world of litigation.
while you no doubt tried to give us all of the relevant information, it is difficult to answer your questions based on the limited information provided. What I mean by that is, it will probably require a lawyer reviewing the defendant(s)' expert designation (in context, with other case documents) in order to be able to answer your question, in context.
I can tell you that a defendant in a personal injury case has several options with regard to defense experts. They can send you in for a so-called "Independent Medical Examination" (IME), and have their doctor review your records and actually examine you, then prepare a written report stating their opinions.
Another option is to have their doctor only review your records, and come up with their written opinions based solely on the review of the records. Why would they do that, instead of having the exam ? Sometimes it is based on cost, sometimes the defense attorney gets too busy and misses the window of time to actually have the exam.
I can tell you from my own experience (22 years total, approximately half representing plaintiffs and half representing defendants and their insurance companies) that there are times when the defense lines up their expert, who reviews the records and makes some opinions that are favorable to the defense. Then, they go ahead and have the exam, but then the doctor changes his mind for some reason and softens his opinions. Some experienced defense lawyers don't like to take the risk of the exam, for that reason.
There are effective strategies for dealing with this. Ultimately, at trial, it becomes a question for the jury - "ladies and gentlemen, which expert doctor do you believe, the one who actually treated this patient and helped the recovery, or the one who just got paid to make a report for the defendant's attorney?" You can also have fun taking the deposition of the doctor, asking why no exam, how can you know for sure without seeing it, etc.
You state that the issue is whether the defendant acted negligently. However, they are still free to defend your case based on damages, and if they prevail and prove that you didn't suffer the injury claimed, they might win the whole case - most negligence claims require you to have suffered some injury before you can recover any damages. Even if the Defendant messed up somehow, if you didn't get hurt from it, then "no harm no foul".
I don't understand your last point that you haven't asked for future damages, or how that relates to the rest of your post.
As you can see, litigation is confusing and complicated. Sometimes the rules are difficult to comprehend and requires experienced counsel to explain. Good luck !
