Court affirms verdict that child did not suffer back injury on bus
Melanie Sokolowski sued her family's no fault PIP insurer, State Farm, to cover medical expenses after a bus incident which appeared to result in a vertebra fracture in her disabled daughter. The daughter, Skylar, had previously suffered a brain tumor and a stroke during surgery; she left for school on the bus and returned home "in eight minutes... screaming and crying that her back hurt." She told her mother, in front of the driver, that the driver was driving too fast.
The Sokolowskis' lawyer documented a nearby intersection that would subject a bus occupant to serious bouncing and jostling, even at the speed limit. The Sokolowskis presented the four treating doctors' testimony that Skylar suffered a mildly compressed fractured vertebra or a soft-tissue injury in the bus incident, and an engineer who was prepared to testify that the injury resulted from transiting the subject intersection at "35-40 miles per hour," based on the driver's prior testimony.
Unfortunately, the Sokowski's lawyer did not subpoena the bus driver to the trial and State Farm secured a ruling that the engineer could not testify to the bus actually traveling that speed, even though his "assumption" of speed was based on the driver's actual testimony under oath. State Farm presented the testimony of several non-treating doctors to argue that Skylar suffered no injury in the bus incident, and jurors arrived at that verdict. The Sokolowskis appealed the trial outcome, arguing that it was "against the great weight of the evidence" and that the engineer's full testimony should have been admitted. The Court of Appeals disagreed and upheld the verdict.