David Rheney Obtained Defense Verdicts in Claims for Negligent Infliction of Emotional Distress

IADC member David Rheney of Gallivan, White and Boyd in Greenville, SC recently obtained defense verdicts in two claims for negligent infliction of emotional distress arising from a bicycling accident. The case was tried June 20-24 in the Greenville County Court of Common Pleas.

The plaintiffs were the parents of two children, ages 2 and 4. The father was riding a bicycle pulling a buggy in which the two children were riding when it was run over by the defendant's vehicle. The mother was riding a bicycle about 10 feet behind the buggy. Both parents filed claims for negligent infliction of emotional distress. The father also filed a claim for personal injury. The defense contested whether one of the children had sustained a serious physical injury and also whether the parents had suffered emotional distress manifested by physical symptoms capable of objective diagnosis, both necessary elements to establish a claim for negligent infliction of emotional distress under South Carolina law.

The parents claimed that the two year old child sustained a traumatic brain injury in the accident from the blow to his head and from being trapped under the defendant's car until it could be lifted off the buggy by emergency responders. The parents testified the child's personality changed completely after the accident, that he immediately developed problems with communication and word articulation and that he now suffers from numerous behavioral issues as a result of his initial injury. The alleged traumatic brain injury was diagnosed by a pediatric neurologist approximately 18 months after the accident. Two separate pediatric neuropsychologists and a behavioral development physician also testified that based upon the constellation of symptoms experienced by the child at this time that they believed the child had sustained a traumatic brain injury in the accident. A separate neuropsycholgist diagnosed the mother as suffering from severe post traumatic stress disorder and the father as having formerly suffered from PTSD as a result of witnessing the accident and the injuries to the child. Numerous fact witnesses also testified to their observations of changes in the behavior of the child and the parents after the accident.

The defense countered the claim of traumatic brain injury with evidence that the initial diagnosis by the emergency room physician at the hospital was only of a minor head injury, and that the diagnosis of a traumatic brain injury by the plaintiff's pediatric neurologist 18 months later was based upon only the facts that there had been a trauma with altered mental status, both of which were also known to the emergency room physician at the time he reached his diagnosis. In addition, the defense established that the interpretation of a brain MRI ordered by the pediatric neurologist had been misstated by both of the pediatric neuropsychologists and the behavioral development physician as showing disruption of the deep white matter of the brain and frontal lobe damage, whereas the neuroradiologist who actually interpreted the MRI testified it showed no abnormality. The misstatements, accepted as true by the plaintiff's experts, were eventually traced back to the mother. In addition, the mother failed to reveal a family history of ADHD on both the maternal and paternal sides to the experts, all of whom conceded at trial could be the cause of the child's current behavioral problems. The evidence also established several other causes for the mother's emotional problems other than her witnessing of the accident.

The jury deliberated for six hours before reaching it's verdict. Over defense objection the court submitted a general verdict form on each claim, so it is not clear whether the jury determined the child had not sustained a serious physical injury or that the parents had not sustained emotional injury with physical manifestation, although post trial interviews of jurors indicates the former.