356 P.3d 91
Or. Ct. App.2015Background
- Plaintiff was rear-ended in 2007, received extensive medical care (including four-level cervical surgery) with bills > $200,000; the tortfeasor’s liability insurer paid $50,000. Plaintiff’s own UIM policy limit was $500,000 with Safeco.
- Safeco paid some PIP benefits but stopped after an independent examiner found further care not reasonable/necessary; Safeco denied UIM payment, disputing that injuries were caused by the collision.
- Plaintiff sued Safeco for breach of contract: separate claims for PIP (jury verdict for plaintiff) and UIM (jury verdict for defendant). Plaintiff appealed the UIM judgment.
- At trial the court excluded evidence of the tortfeasor’s liability limits and plaintiff’s UIM limits; the jury was instructed to determine damages but the court would later decide whether the tortfeasor was underinsured.
- Defense experts testified that forces in the collision were insufficient to cause plaintiff’s injuries (biomechanical and medical testimony); one defense expert testified about an "emotional overlay."
- The appellate court found exclusion of insurance-limits evidence erroneous given how the UIM claim was framed, but upheld admission of the emotional-overlay and biomechanical expert testimony. The UIM judgment was reversed and remanded; other rulings affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Exclusion of tortfeasor’s liability limits and plaintiff’s UIM limits | Exclusion prevented jury from determining the coverage-to-coverage comparison required to find the tortfeasor underinsured | Limits were irrelevant to jury’s task (jury should only determine damages) and were prejudicial/anchoring | Reversed: exclusion was error because jury was left unable to determine whether tortfeasor was underinsured under ORS 742.502 (coverage-to-coverage comparison) |
| Admission of defense expert testimony about “emotional overlay” | Testimony impermissibly commented on plaintiff’s credibility and was barred by an in limine ruling | Testimony described a psychological component to presentation, not a credibility determination | Affirmed: opinion about emotional/functional overlay is permissible and not an improper credibility comment |
| Admission of biomechanical expert testimony (Probst) | Methodology unreliable/junk science and expert not qualified to opine on causation | Probst’s multi-step biomechanical methodology is relevant, supported in literature, and Probst is qualified; weaknesses are for cross-examination | Affirmed: trial court properly admitted Probst under OEC 702; reliability and weight were for the jury |
| Qualification boundary for non-medical expert offering causation-related opinions | Plaintiff argued Probst improperly gave medical-causation opinions without medical credentials | Defendant argued Probst limited his opinion to forces and tolerances (not medical diagnoses) and had relevant training/experience | Affirmed: Probst testified to biomechanics (forces/tolerance), not diagnoses; court correctly evaluated qualifications functionally |
Key Cases Cited
- Mid-Century Ins. Co. v. Perkins, 344 Or. 196 (explains UIM under ORS 742.502 is a coverage-to-coverage comparison rather than damages-to-coverage)
- O'Key, 321 Or. 285 (discusses gatekeeping role for scientific evidence and importance of validity/reliability under OEC 702)
- Barrett v. Coast Range Plywood, 294 Or. 641 (describes "emotional overlay" as a recognized psychological component of injury)
- Daubert v. Merrell Dow Pharms., 509 U.S. 579 (framework for admissibility of scientific expert evidence; validity is key)
- Kennedy v. Eden Advanced Pest Techs., 222 Or. App. 431 (controversial scientific evidence may be admissible; weight decided by jury)
- State v. Brown, 297 Or. 404 (factors for assessing scientific evidence reliability under Oregon law)
- State v. Lyons, 324 Or. 256 (discusses Brown factors and admissibility considerations)
- Marcum v. Adventist Health Sys./West, 345 Or. 237 (court’s considerations in assessing scientific validity)