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Bischoff v. Payne9/7/1999
Karen Bischoff filed this personal injury action against Vanessa Payne. Bischoff seeks damages for physical injuries allegedly received as a result of a November 1996 rear-end collision caused by Payne's negligence. Bischoff appeals judgment on a jury verdict in Payne's favor.
Bischoff's treating physician (Dr. Loftman) and a diagnostic radiologist employed by the defense (Dr. Jeffries) gave depositions which were read to the jury before the testimony of other witnesses was heard. In his deposition, Dr. Loftman testified that after the 1996 collision he diagnosed Bischoff as suffering from a symptomatic herniated cervical disc. Based on his understanding of Bischoff's medical history, Dr. Loftman opined that the herniated disc was causing Bischoff physical pain which began with a January 1995 automobile accident in which she also was involved. On the basis of his review of an MRI of Bischoff's neck performed shortly after the 1996 collision, Dr. Jeffries testified that Bischoff's disc herniation was not caused by any injury received in that collision.
At the beginning of the trial, Bischoff moved in limine to prohibit Payne from introducing documentary evidence of prior lawsuits filed by Bischoff or her prior medical history. Bischoff argued that such evidence was irrelevant to the issues in this suit. The court deferred ruling on the admissibility of the documentary evidence until after Bischoff testified. The court, however, noted that the bare fact of prior litigation involving Bischoff was irrelevant, and indicated that questions concerning the admissibility of this documentary evidence should be resolved outside the jury's presence before the evidence was presented to the jury.
At trial, Bischoff testified on direct examination that in the 1996 collision she received a whiplash injury resulting in neck pain radiating into her shoulder and back, as well as numbness in her arm. She acknowledged that prior to this collision she had experienced neck pain resulting from another whiplash injury. But she maintained that the prior injury simply resulted in a tensing of her neck muscles and that, when this collision occurred, she was on the road to recovery.
On cross-examination, Payne elicited testimony from Bischoff that in 1984 a vehicle she was driving was struck, also in the rear, by another vehicle. After the 1984 accident Bischoff complained of neck pain and numbness in her arm, and was hospitalized for six days. In 1986, Bischoff suffered a slip-and-fall in which she hit her head. In 1990, she sustained a work-related injury to her left shoulder. As a result of a January 17, 1995 automobile accident, Bischoff was given a cervical collar for a neck injury and sustained permanent, debilitating injuries to her lower back.
1. Bischoff first contends that the court erred in allowing Payne to impeach her with a recent deposition; in permitting Payne to inform the jury that the deposition was given in a lawsuit arising from the January 17, 1995 accident; and in admitting evidence concerning property damage sustained in that accident.During cross-examination, Payne asked Bischoff whether the 1995 accident was more severe than the one in 1996. After Bischoff raised a vagueness objection, the court directed Payne to be more specific. Payne then asked whether there was more property damage done to Bischoff's car in the 1995 accident. When Bischoff responded "I don't recall that. I really don't know," Payne asked whether she remembered giving a deposition in the lawsuit arising from the 1995 accident.
Bischoff objected and moved for a mistrial. Outside the presence of the jury, Bischoff complained that Payne had informed the jury of the prior law
Page 1 2 3 Georgia Personal Injury Attorneys
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