Plaintiff’s smoking habit nixes recovery for back injury
Back injuries are notoriously tricky, both for those who suffer them and lawyers who must prove their existence and causes.
The 10th Circuit just today decided an interesting case involving a plaintiff whose smoking habit upset her plans to collect damages from an automobile accident.
In Neiberger v. Fed Ex Ground Package System, misfortune piled upon misfortune when Penni Neiburger was injured in a Colorado automobile crash after she had back surgery.
In order to recover for personal injury under the state’s no-fault statute, Penni needed to show that the failure of her spine to heal following the preaccident surgery was due to the crash.
But the defense had an ace up its sleeve, producing an expert witness who testified that the failure of the plaintiff’s spine to heal was probably due to her smoking habit, rather than the accident.
Needless to say, Penni’s attorney wanted this evidence booted from the trial.
The 10th Circuit rejected the Daubert challenge, concluding that the district judge rightly admitted the evidence given that the plaintiff’s own doctor warned her not to smoke and the medical literature supported the thesis that smoking inhibited spinal fusion.
— Pat Murphy
