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The Mind Of A Trial Lawyer:
I feel the most important first step in proving a MIST case starts with the mindset of the trial lawyer. You must emanate confidence, or the jury won’t believe you. This was once difficult for me, but I kept seeing injured clients complain with little car damage and felt I owed it to them to learn more and more about the subject, so I did.
I began to investigate this issue and found a few clues to first prove to me that people do get hurt without visible auto damage. Not all, but many do get hurt.
I suggest viewing Dr. Art Croft’s crash video, Man & Machine. You’ll see people violently thrashed around inside a car during reliable crash testing, without any bumper damage. Also read his book called Whiplash Injuries. It’s stocked full of helpful information, like anatomy discussions and all the scientific studies you need. It’s a practical and usefully authority.
If that doesn’t convince you, then view up close the anatomy books to visualize how delicately we are built. Look at the veins, the ligaments. This combined with scientific and biomechanical principles like injury-causing mechanisms (risk factors, torsion, flexion extension) further convinced me. Bringing science into the picture was enlightening. Then it became clear to me why people get hurt and stay hurt in these auto accident cases even though their injuries don’t show up on x-rays. Pain doesn’t show up on x-rays either but people still hurt.
The Legal Test – A Substantial Factor (3.76 Baji):
“. . . a cause of injury is something that is a substantial factor in brining about an injury.”
The use notes say a substantial factor is more than a trivial slight or negligible or theoretical factor in producing a particular result.
A second relevant jury instruction that goes hand in glove with the Substantial Factor Instruction is the Preponderance Of Evidence Instruction (2.60 Baji).
“. . . more convincing force than opposed to it.”
Here, you can argue these instructions many different ways. For example you can argue your evidence need only by law to be slightly more persuasive to win. By example, you might argue that in a defamation suit, you can either believe Carol Burnett or The National Enquirer, implying a reasonable person versus the big corporation.
Medical Evidence:
I’m biased in favor of scientific and medical evidence. Crash testing is convincing, but medical evidence drives the case past the legal causation goal line into a plaintiff’s verdict. So I’ve searched for the magic answer to prove causation but keep returning to using traditional medical evidence to prove causation. . . not property damage photos. As Carl Berkovitz, Esq. says, “What doctor ever used photos to diagnose your injury.” It doesn’t make sense. It’s the medical evidence that you have control of and I think it should be used more aggressively. I know it’s not easy to remain secure when the defense is building its war chest against you, but the best defense is a good offenseand that’s medical evidence.
Injury causation is determined in a clinical setting by medical providers because causation is ultimately a clinical decision. This medical evidence then trumps the biomechanist because he cannot talk about diagnosing injuries sustained in a motor vehicle accident. Medical providers do not rely on biomechanists (or photos of damage) in a clinical setting to determine causation of injuries; besides your medical expert has a better basis for determining causation (the length of treatment, etc). For example, the medical expert can talk about – lesions, torn, swollen, and strained ligaments, cervical limitation of range of motion, the bleeding ligament when torn, arthritis, scar tissue that forms like long pieces of collagen fabric that is matted and cross-fibered to heal itself, as opposed to long fluid strands of spaghetti-like ligaments that function well. Collagen is dense and a firm rubbery material – it does not stretch. Consequently it decreases range of motion. This creates a greater chance of re-injury. This is a permanent injury. Consequently, the plaintiff is more susceptible to re-injury and other damages. So the medical evidence discussed below can correlate the scarring and permanent injury. I think at that point, bringing in the life expectancy jury instructions to show permanent scarring to establish damages is helpful. This equates into bigger damages. Most doctors find that medical records are enough to draw this correlation. Most doctors have found that injuries vary from person to person. There is no magic threshold of injury in the general population Coroners often determine cause of death by bleeding and damage to tissue and muscles. For example, by examining cadavers, (Dr. Harry Bonnell has examined over 5,500), conducted autopsies and he looks for scar tissue and pre-existing conditions. So medical testimony is helpful proving causation. Medical evidence witnesses can testify to the mechanics of any injury. They can explain the cause of the injury (tension/compression shear/torsion) all that occur within 1/100 of a second. Another example that Carl Berkovitz uses is to imagine a bowling ball on a stick and how unstable it is when whipped about, or a snapping wrist.
Further, discuss the healing process to prove a long-term injury and use the life expectancy tables as well as the studies in Dr. Croft’s book that show the healing process and permanent injury. This helps establish the large long-term damages. The healing process takes on three different stages. Scientific studies support long-term injuries. The best chart on this subject that I have seen is Carl Berkovitz’s PI Poster System chart
The acute stage
The repair stage
The remodeling state - which is the scar formation of tissue state.
Other helpful objective medical evidence are x-rays projected via an Elmo that show a reversed cervical curve. The doctor can actually draw on an Elmo and show what a normal curve looks like. This is very persuasive on the big screen in court with a laser pointer.
Physical examination tests by a doctor also determine spasms, limitations of movement and range of motion and rule out malingering. Remember he is in the better position to determine credibility since he’s seen the client over a long period of time.
I suggest that your expert act as a teacher and actually draw a diagram for the jury, for example the long stringy anatomy of your ligaments as apposed to the matting of fabric with collagen formation. Further, your expert can use other medical illustrations as well which are persuasive in court. Some experts even engage in a live demonstration by rotating their heads and then trying to flex their necks to show the twisted neck has a high risk factor and limited range of motion when struck. I do it in opening statement. In other words, the threshold of the force of a neck injury or sustaining an injury in this condition is lower.
Voir Dire:
I suggest that you ask the jurors generally “how they feel about certain issues”. Usually about five issues are all you are going to need on voir dire with the limited time constraints nowadays. When you talk about the issues, you should bounce quickly around in the box and ask the different jurors how the feel about the offered opinions by other jurors. Never argue. You might even consider self-disclosing examples or experiences you’ve had in the past to help make a point. Always go toward bias or to intelligently exercise your six preemptive challenges. Some questions might be:
If you can’t see in an x-ray a broken bone, can you make room for the possibility that there is an injury?
If you can’t see an injury on an x-ray does that mean it’s not true?
You may consider admitting skepticism for these types of cases, but ask if they would give us the full value if we proved that in fact it was true as required by law.
Ask would it be just as unfair to present a frivolous defense as it is a frivolous lawsuit in the context of them following the law and returning a plaintiff’s verdict.
Those are a few suggestions on voir dire, and I want to write more on the subject.
Motions In Limine:
Motions in Limine are great pre-trial tools and save the court time and your client’s creditability. You may want to defend against the no damage photos, bio-testimony on medical causation, old injuries, and dirty tricks (see my article). There is more in the attached CD.
Alternatively, I drafted a motion in limine to introduce Dr. Croft’s crash video to disprove the no damage – no injury impact. It was successful and I was allowed to play the video on a live big screen in trial showing crash testing that was substantially similar to our collision. Consider having your chiropractor or medical expert qualify to lay the biomechanical foundation for movement as they have great experience in this area. (See Carl Berkovitz’s PI Poster System for the chiropractor’s extensive experience in a variety of related areas, including biomechanics.) Demonstrative Evidence:
You might consider Netter’s medical illustrations to show how delicately our body is built. The ligaments, muscles, and veins are complex and the slightest impact by a 4,000-pound car can certainly short-circuit it.
Directed Verdict:
Once the evidence is in, you may consider a directed verdict on causation and medical bills. I won one today. Now the judge will direct the jury that these are bills must be paid for the injury but it’s within the providence of the jury – exactly how bad was the injury. Some lawyers are now moving for directed verdict, which destroys the earlier “no causation” defense opening statement. See that motion on the CD. The reasonableness and need for medical treatment can also be directed. Use this or any stipulation as to any bodily injury – medical damages, (especially in a DME report although limited) to prove, on closing, this is about money, not causation or “no damage” photos. Refocus the issues. It’s time for the defense to take responsibility and the jury should be awarding full damages and equating it to full justice.
Closing:
Consider Gerry Spence, Esq.’s closing where he described that the skyscraper was hit by a truck, but the building sustained limited or no exterior damage. Later the building went haywire inside; the elevator didn’t work right, the lights went on and off, etc. however the owner asked for full value to repair it. This is similar to a connective tissue case, or consider role reversing as your client and discussing what you’ve been through to show your injuries. Recently consumer attorney Robert Francavilla, in closing, I understand, discussed there is no such jury instruction if: an x-ray is negative or if the injury is not on an x-ray and it is subjective there is no injury – that’s not the law. There is no jury instruction that says no property damage does not mean you’re not hurt. That’s not the law. The insurance defense attorney says this because they are afraid you’re going to give us lots of money. They had to come up with something. So why are we here today. My client and I have been truthful to you – what else can we have done?
These are a few ideas and I hope they are helpful.
References:
Litigating Minor Impact Soft Tissue Cases (Karen K. Koehler, Michael Freeman) ATLA Press; West Group 1-800-328-4880
Dr. Croft; 1-800-423-9860
Carl Berkovitz, Esq.
Dr. Harry Bonnell: http://www.4n6pathology.com
Evidence Code 721 (b) 2-3; read studies into evidence