High Court Affirms Decision to Allow Chiropractor’s Testimony Not as Expert Witness – Perius v. Nodak Mutual Insurance

By March 22, 2012Auto Accidents

As a Missouri auto accident attorney, I frequently tell my clients to make sure they seek medical treatment for accident-related injuries as soon as they think they might need it. The insurance company responsible for paying can sometimes use a delay to argue that the injury is not real, or that it was not caused by the accident. In real life, of course, many injuries worsen or become obvious over time — and it can be hard to think straight in the stress and turmoil created by an accident. But a delay can make it harder to prove your case and get the financial compensation you’re entitled to. A delay caused protracted litigation in Perius v. Nodak Mutual Insurance Co., a North Dakota Supreme Court case involving a car crash that left Allen Perius with neck problems.
Perius was hit in 2004 by an uninsured driver, Jacob Kessler. He successfully claimed no-fault benefits from his insurance company, Nodak, for physical therapy for a neck injury. That therapy was completed in November of 2004 and payment was made from his no-fault benefits. But in March 2005, he also sought treatment from a chiropractor, then submitted bills to Nodak for coverage under the no-fault insurance. This was denied as unrelated to the accident, after Perius underwent an independent medical evaluation. Perius sued in 2007, alleging breach of insurance contract against Nodak. Nodak eventually moved for summary judgment, but the North Dakota Supreme Court reversed on appeal. On remand, Perius submitted one last expert witness after a deadline had passed, and after Nodak objected, the court permitted the witness to testify as a fact witness but not an expert witness. Perius lost.
Perius appealed, arguing that his witness should have been allowed as an expert. The North Dakota Supreme Court started by analyzing whether Perius complied with state rules for disclosing expert witnesses. North Dakota rules require parties to disclose their experts in answer to the other side’s interrogatories, which in turn includes a requirement to state the subject matter, the substance of the expert’s opinions and the grounds on which each opinion is based. If the response is incomplete or incorrect, of course, parties must correct it in a timely manner. The first time this case went to the North Dakota Supreme Court, the justices noted that they found the responses just barely adequate. After he repeated them on remand, the court concluded that Perius knew his responses were inadequate and failed to correct them despite two opportunities. Thus, excluding Blowers as an expert was not an abuse of discretion. A concurring opinion agreed that Perius gave insufficient answers, but argued that Nodak should have moved to compel discovery.
As a St. Louis car wreck lawyer, I’m always disappointed to see a plaintiff lose his day in court because of a technical problem. The concurrence goes to some length to point out that while Perius was too vague, he was not guilty of springing a witness on the court at the last minute; Nodak had notice that the witness was coming. Thus, the problem was more technical than practical. Technicalities are the best friends of some insurance companies, because they allow lawyers to argue away what could be powerful evidence. That’s why, in my practice as a southern Illinois motor vehicle accident attorney, I make sure my clients’ cases are as complete and compliant as possible, so they can rise and fall on their merits.


If you or someone in your family suffered a serious injury because of an auto accident caused by someone else’s carelessness, Carey, Danis & Lowe can help. For a free consultation on your rights and your options, call us today at 1-877-678-3400 or send us a message online.
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