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Ask Dave Kennett Your Own Question
Dave Kennett
Dave Kennett, Lawyer (JD)
Category: Legal
Satisfied Customers: 27689
Experience:  25 years experience in general law, including real estate, criminal, traffic, and domestic relations
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If a plaintiff in a auto accident suit has a disability due

Resolved Question:

If a plaintiff in a auto accident suit has a disability due to Multiple Sclerosis that greatly affects his past long and short term memory (because there are several white matter lesions on the brain in the memory area), then what is the legality of the defense using this lack of memory in the actual trial and making the plaintiff look like a liar, when he just simply could not remember events and details? The trial took place in Mississippi.
Are there statutes that protect a person that has memory issues such as this case? Are there any United States statutes that protect a person in a case like this?
Submitted: 7 years ago.
Category: Legal
Expert:  Dave Kennett replied 7 years ago.

DearCustomer- It would appear that you certainly have some issues for appeal, especially in the amount of the award. Obviously if someone committed perjury and lied on the witness stand that is a very serious issue. It is not, however , the burden of the defense to prove that the accident didn't cause the injury. It is the burden of the Plaintiff to prove that it did.


While I sympathize with the loss of memory problem there is no law that protects witnesses from this condition since the rules of evidence require testimony that is accurate and credible.If a witness cannot remember, for whatever reason, the court would permit cross examination to show that lapse of memory. It certainly isn't the fault of the defendant that the plaintiff cannot remember.


Cross examination, by its very nature, attempts to discredit a witness. Not so much to say they are intentionally lying but to point out discrepancies in the testimony in order to raise doubts. If the judge improperly excluded evidence that is an issue for an appeal. I am somewhat surprised that the MS issue was barred from testimony so that may be a good issue for your appeal.


Dave Kennett

Customer: replied 7 years ago.
An important part that I left out, was that my surgeon adequately proved that the accident caused the injuries, especially since there were prior MRI's taken prior to the accident that were ordered for MS reasons, and MRI's were taken after the accident that ultimately led to the required surgery. They had one "expert witness" doctor that testified saying that the accident didn't cause the injuries, however, he was not a surgeon, but only a neurologist with 5 years experience. He contradicted what 4 other doctor's with 15 to 20 years of experience each said about the diagnosis and injuries. The jury simply did not have enough information to prove that I had serious memory issues, not related to this accident, but related to a prior accident that I could not remember. This put doubt in the juries mind, not that the accident caused the injuries, but that my honesty and intiquity was questionable. Since we were not allowed to explain in detail about the legitimate memory issues due to having MS.
Expert:  Dave Kennett replied 7 years ago.

That why I think you have a good issue for appeal. An appeal can only be made on the basis of law, not the facts of the case. In your case it would be the ruling that the judge made not to allow the introduction of the MS evidence. If you win your appeal they may order a retrial and at the new trial the evidence would be allowed to be introduced.


It would still be a question of fact for the jury but they would at least have all the necessary information.



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