I was recently asked to give tips on advanced personal injury trial law techniques. I spent my first 8-plus years as an insurance defense lawyer and have spent the last 8-plus years exclusively representing the injured. These seminars are attended by both sides. So, my goal here is to provide information which helps both the prosecution of these claims and assists the defense to the extent you can learn some of what my firm has learned litigating from both sides.
Here are some important tips about handling the determination of “cause.”
Exacerbation of Pre-Existing Injuries
The jury instructions are important. Pay attention to them. Explain the rules of the game like you would explaining how to play a board game to your child. Some judges make you stick to the language of the jury instruction, but there is enough there to inform a jury about what the law allows.
As noted above, our two most challenging cases describe above contained issues of prior medical issues we couldn’t get the jury to overlook. All defense lawyers will ring every bell and whistle in a past medical record they can- and should. All plaintiff lawyers will try and say that problem went away or certainly didn’t lead to this “new normal.”
As such, we first must examine, 501.5(a), “Aggravation or activation of disease or defect.” It states, “If you find that the (defendant(s)) caused a bodily injury, and that the injury resulted in [an aggravation of an existing disease or physical defect] [or] [activation of a latent disease or physical defect], you should attempt to decide what portion of (claimant’s) condition resulted from the [aggravation] [or] [activation]. If you can make that determination, then you should award only those damages resulting from the [aggravation] [or] [activation]. However, if you cannot make that determination, or if it cannot be said that the condition would have existed apart from the injury, then you should award damages for the entire condition suffered by (claimant).” (emphasis added).
We point out the bolded language here. In almost every injury case destined for trial, the issue will be whether a prior injury or degenerative condition is actually to blame. The CME doctor will review all of the records and claim this injury pre-existed, was not definitively caused by this incident, or was temporary. The Plaintiff’s doctor will say the opposite- usually without the “benefit” of the prior medical records. Some treating physicians won’t spent the time on them. Others will want thousands of dollars to review them.
However, it is important to start with the jury instruction. Did the incident cause a bodily injury? “A” being the operative word. Not a permanent injury. Not a significant injury. “A” bodily injury. This is an important point to stress when speaking with the defense doctors where a prior condition will be at issue. Next, did that injury aggravate or activate something prior? This is a more delicate question, because you often don’t want to conceded any prior injury of any significance. Make sure to stress that anything that was there was “latent.” There is no timeline of latency in the jury instruction. So, it was latent for a period of weeks, months, years? Make sure to get that analysis in the record, where appropriate.
A potential juror once told me, “it’s the pain that gets you the most.” I used that refrain the entire trial and even in subsequent trials. You want to forensically prove or disprove what you can. Radiological comparisons, use of NCV/EMGs and anything which helps bring some “objective science” to the jury helps.