Jury Duty With a Mediator Mindset, Part 3: Liability Issues and Causation

Last year, shareholder A. Michelle Jernigan served on a jury at the Orange County (Fla.) Courthouse. This series offers a glimpse of how a mediator thinks in a situation like this. (See Part 2 at More questions? Call on Michelle at or (407) 661-1123. Would you like to reserve a mediation time with Michelle? Visit our scheduling page or contact case manager Cathy McCleary (

Florida Mediator Michelle Jernigan Florida Mediator and UWWM Shareholder Michelle Jernigan

The plaintiff asserted the construction company had been negligent by failing to exercise due care in re-routing traffic away from the pothole. There was no question the construction company knew about the pothole; the issue was what duty it had to protect the public from the pothole.

The defendant’s expert opined that re-routing traffic was difficult because it required agency approval and was, therefore, not a practical solution. The evidence presented by the defendant illustrated the defendant put a cold asphalt patch on the pothole the day prior to the accident, and the defendant’s expert testified that this “fix” met the defendant’s duty of care. The plaintiff’s expert testified the cold asphalt patch was not sufficient with all the rain and, to meet the duty of care, the defendant had to re-route the traffic.

This was some of the most important testimony in the entire case. The varying credentials of the experts, as well as the testimony of these two experts, played a critical role in the jury’s assessment of the liability issue. The plaintiff’s expert was a well-credentialed engineer, and the defendant’s expert was a retired highway patrol officer. Furthermore, when the judge took questions from the jury and submitted these to the experts, the defense expert was often evasive in his answers, while the plaintiff’s expert was quite responsive.

The lack of credentials, the evasiveness of the defendant’s expert and the scathing cross-examination delivered by the plaintiff’s counsel caused the defendant’s liability case to crumble. The jury ultimately returned a verdict in favor of the plaintiff and charged the plaintiff with five percent comparative negligence because the plaintiff had seen the pothole in the road the day before.


The plaintiff asserted the accident caused the cervical herniation. The defendant, however, had several arguments regarding causation:
  1. The plaintiff did not have a herniated disc;
  2. The impact was not significant enough to cause the injury;
  3. The time gap between the accident and the diagnosis of a herniated disc suggests there were factors other than the accident that caused the herniation;
  4. The herniation was the result of rheumatoid arthritis.

The first argument was not credible given the evidence demonstrated that four physicians believed the plaintiff had a herniated disc and only one defense expert witness physician believed she did not. The jury rejected the second defense argument because, when it examined the opinions of the plaintiff’s liability expert and medical experts, it concluded the force from hitting the pothole was sufficient to result in the injury sustained by the plaintiff. Moreover, the jury seemed unconcerned about a two- or three-day time gap between the occurrence of the accident and the emergency room visit. This may have resulted from the testimony of plaintiff’s experts claiming this type of delay was not unordinary, or it could have been based on the jury’s common sense conclusion that the time gap was insignificant. The jury also rejected the defense argument that the herniation was related to rheumatoid arthritis. There was ample testimony from the plaintiff’s expert witnesses to defeat this argument. Further, there was sufficient visible evidence of the arthritis in the plaintiff’s hands for the jurors to conclude the arthritis was not related to the cervical herniation.

In summation, the jury rejected the opinions of the defendants’ liability and medical experts and embraced the opinions of the plaintiff’s experts.

Next: Damages.

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