In Bailey Lumber & Supply Company v. Robinson, the Mississippi Supreme Court reversed a $1 million award in a slip and fall case, finding that while plaintiff’s medical expert – an internal medicine doctor – could testify about the plaintiff’s hip problem, he did not have the expertise to offer the opinion that the slip and fall aggravated the man’s osteoarthritis, necessitating hip replacement surgery. This opinion is a good reminder for personal injury lawyers in Maryland that, when in doubt, make sure you have an expert that is qualified to give the opinions you need at trial.
This case is a pretty good slip and fall case on liability for the plaintiff. Defendant operated a building-and-lumber-supply retail store. Plaintiff needed paint. Defendant’s employee says, “Follow me back to a dark, creepy and dangerous room” (I may be paraphrasing) that was for employees only. The room was dimly lit and plaintiff tripped over a two-inch step in the threshold of the doorway between the two rooms. Plaintiff says defendant’s employee said we “should have fixed that floor a long time ago.” (To me, this sounds made up.) Plaintiff drove himself home.
I’m not feeling a million verdict at this point. Are you? Oh, yeah, and he has osteoarthritis, eventually necessitating hip surgery.
At trial, he had an internist testify as to the need for the hip surgery from the fall. Is this like bringing a pocketknife to a gun fight? Yes and no. I can’t figure out why plaintiff’s lawyer did not bring an orthopedic doctor. Why take a chance? But the expert here had been a doctor for 30 years and had diagnosed thousands of patients with osteoarthritis, and treated hundreds of patients with hip-related problems related to fractures, osteoarthritis, and hip-replacement surgery. So the mere fact that he is not performing the surgeries should not be an impediment. Not for nothing, the Mississippi Supreme Court, an elected body, has not ruled in favor of a plaintiff since the Truman Administration (arguably an exaggeration).
Still, the take home message is that you really don’t want to be risking a million dollar verdict on the possibility that either the trial judge or an appellate judge is going to find that your expert is not qualified. Of course, we don’t know here why the plaintiff’s attorney did what he did. It may well be that he could not find an orthopedic surgeon willing to testify that this guy with osteoarthritis who fell and then promptly got in his car and drove home, needed hip replacement surgery as a result of the fall. It seems like – given the limited facts we have – a reach.
You can find the full opinion in Bailey Lumber & Supply Company v. Robinson here.