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Insurers ‘get tough’ with soft tissue cases

Author / Coordinator: Alice Sherren Brommer
Minnesota Lawyer
October 1999

Soft tissue injury cases are increasingly likely to proceed to trial due to “get tough” pre-suit strategies adopted by many insurance companies.

Under the new approach, insurance companies deny many soft tissue injury claims, and restrict the discretion of their adjusters to negotiate. Even in cases of clear liability, insurance companies are directing their adjusters to make low initial settlement offers in soft tissue cases involving low-speed crashes and minor vehicle damage.

Perhaps even more frustrating for plaintiffs’ personal injury attorneys, sometimes the adjusters are only given the authority to make one additional offer before the case file is sent directly to defense counsel to prepare for litigation.

Plaintiffs’ lawyers see this strategy as problematic for several reasons.

Mark Pfister, a Minneapolis personal injury attorney who has settled many soft tissue cases, says that insurance adjusters have become much less flexible. He told Minnesota Lawyer that the insurance companies’ strategy has greatly lessened a soft tissue plaintiff’s chances for successful negotiation. The low settlement offers can discourage personal injury attorneys from even accepting soft tissue cases.

Moreover, the inflexible system used by a number of insurance companies involves evaluating cases early on and failing to account for future medical expenses or complications that the plaintiff might experience, according to Pfister.

The strategy effectively forces plaintiffs to go to trial — an expensive and time-consuming process in any case, and especially challenging because of the difficulty in proving soft tissue injuries.

Computer-generated offers

Under the new system, insurance companies use a computer to generate the initial offer and then instruct their adjusters not to offer any more money. Allstate uses a computer program called “Colossus” to generate its offers.

Colossus evaluates certain variables, such as the type of injury, geographic location, and similar verdicts and settlements, and then generates a value.

However, many plaintiffs’ attorneys believe that the “reasonable evaluation” performed by Colossus is well below what soft tissue cases are worth, in part because the insurance companies decide which variables to input. Moreover, certain variables cannot be quantified.

Insurance companies don’t necessarily take into account the specific facts of soft tissue injury cases, noted William Crandall, a Minneapolis attorney who practices specifically in the field of personal injury litigation on behalf of injured parties. “Everybody perceives pain differently,” he said, adding that the computer-generated offers fail to consider that fact when evaluating soft tissue claims.

Soft tissue damage, or damage to the tissue or muscles rather than the bone, often eludes objective medical testing because the injuries typically do not show up on CAT scans, X-rays, MRIs or other conventional medical tests. Since the visible injuries in these cases are often minor, the primary source of information about a plaintiff’s soft tissue injuries must come from the plaintiff. Therefore, soft tissue injuries can be very difficult to prove, and the damages difficult to quantify.

So, should plaintiffs with soft tissue injuries accept what they perceive as “low-ball” computer-generated offers, or proceed to trial and face the difficulties of proving their soft tissue injuries?

Going to trial

Paul Godlewski, a Minneapolis personal injury attorney who has taught seminars on the topic of soft injury cases, has found that a plaintiff will usually be better off by proceeding to trial. He said that although the computer generated offers are based on precise calculations, the offers do not accurately reflect what plaintiffs with soft tissue injuries should and do receive.

“I can always tell a Colossus offer because it’s exactly $6,573.17,” Godlewski quipped. “I don’t know that [the insurance company’s computations] have any bearing on the outcome of the case.”

Woodbury personal injury attorney William Harper, who received an $800,000 jury verdict in a soft tissue injury case in Dakota County in July 1998, told Minnesota Lawyer that the low settlement offers generated by computers force plaintiffs to proceed to trial, which is more expensive for everyone, the insurance companies included.

“[The insurance companies’ strategy] is a wonderful attempt to put a round peg in a square hole,” said Harper. He mused that if the industry’s approach could properly calculate damages, there would soon be no need for judges because computers could always determine the proper outcome.

Peter Riley, a Minneapolis attorney who practices exclusively in the area of plaintiffs’ personal injury, agrees that the computer-generated offers are usually not appropriate. He said that if a soft tissue case has merit, it is better for plaintiffs’ attorneys to forge ahead to trial than to accept an offer that does not compensate the plaintiff for her injuries. According to Riley, there is little correlation between the computer-generated offers and the ultimate verdicts in soft tissue cases.

“The jury never hears about Colossus, and the computer program makes no sense in this process,” Riley said. “A computer can’t predict what a jury will do. The computer views all plaintiffs the same. You can’t put in the most key of factors [in soft tissue cases] which is how the plaintiff’s life has changed.”

Fred Pritzker, a Minneapolis personal injury attorney, has found that recoveries in soft tissue cases tend to be smaller since the insurance companies took the hard line.

“Any attorney will tell you it’s harder to settle soft tissue cases for the amounts you would get 15 to 20 years ago,” he said.

Pfister, who has recently settled several soft tissue injury cases, agreed that the settlement process “is very difficult these days.”

Pfister noted that the adjusters attempt to justify what they do in any particular case by blaming the computer-generated offer. However, Pfister noted that the adjusters are the ones who input the variables in the first place.

Pfister observed that solid cases — even those where there is significant property damage and no prior medical history — often settle for between $12,000 and $15,000.

“[The amounts of the settlements] aren’t fair and don’t compensate the plaintiff for their injuries or their pain and suffering,” he said.

Other factors

Although the insurance companies and the computer-generated offers facilitate low settlements and force soft tissue cases to trial, the insurance companies are not solely to blame for the trend toward low verdicts, according to Harper. Harper said that he has seen a harsh attitudinal shift among jurors in recent years. There is a mantra of personal responsibility that affects how people view soft tissue cases, he observed.

“If jurors don’t think that they would feel the same way that the plaintiff does, if they can’t feel the plaintiff’s pain, they are unlikely to award large damage awards,” he explained.

Pfister has also noticed that juries are becoming more skeptical, cynical and uncaring.

“The general public is becoming desensitized by what goes on in the media,” he explained to Minnesota Lawyer. “Juries hear about [the plaintiff’s] injuries but they tune out just like they do in front of the TV. It has become very difficult to convince jurors that [plaintiffs with soft tissue injuries] are actually injured.”

Pritzker said that plaintiffs’ lawyers must also shoulder some of the blame for the decline in value of soft tissue cases. He noted that the value of soft tissue cases has declined in part because lawyers don’t put in the time required for success. According to Pritzker, some firms become discouraged at the prospect of going to trial in soft tissue cases because of the time and expense involved at the outset, especially with respect to expert testimony and preparation of the plaintiff.

“The problem is that lots of lawyers don’t spend the time to get to know their client and then communicate with the insurance company,” said Pritzker. “An assembly-line approach will not be successful. Whether the plaintiff settles or proceeds to trial, plaintiffs’ attorneys need to put in the time that needs to be put in,” he advised.

Godlewski agreed, but cautioned that not all soft tissue cases have the potential for success.

“Usually jury verdicts are higher than insurance company offers,” he explained. “But some juries do come in with $0 verdicts.”

Godlewski believes it is best to be forthright with clients as to the probable outcome of their case. Also, it is important to remind plaintiffs of the risks involved. It can be very difficult emotionally to go through a trial only to have a jury come back with a $0 verdict, he explained. Moreover, he continued, even though there would not be an out-of-pocket expense for the client on a $0 verdict contingency fee case, the defendant insurance company may tax their costs and disbursements to the plaintiff.

Pfister also advises that plaintiffs’ attorneys proceed with caution in soft tissue cases. Pfister told Minnesota Lawyer that weaker cases, especially cases where there is minor property damage or significant prior medical history, will usually settle for between $7,500 and $10,000. While such amounts probably don’t fully compensate injured plaintiffs, those with weaker cases need to be informed that if they proceed to trial they will likely lose, he said.

Because soft tissue cases are challenging and can be expensive, it is particularly important in these cases that lawyers determine which cases are likely to be successful, and which cases will not realistically prevail.

“It’s probably the most subjective thing we do,” observed Riley. He said he usually roundtables with other lawyers in his firm in order to determine the real value that juries would award in a case that has merit. Lawyers need to look at the paper file, medical records, scars, and other tangible evidence, but also need to really consider how the plaintiff’s life has been changed by her injuries, advised Riley.

“A plaintiff who ran or played tennis and now no longer can will likely be awarded more than a similarly injured plaintiff who was less active and experienced lesser change,” he explained.

Soft tissue cases can still be worthwhile

Plaintiffs’ lawyers observed that soft tissue cases can be worthwhile despite the trend toward low settlement offers prevalent in the insurance industry.

Minneapolis attorney Peter Riley said that he has obtained awards for plaintiffs in soft tissue cases that far exceed the insurance company’s highest offer. This past May a jury awarded a client who sustained neck and back soft tissue injuries $72,500 (consisting of $50,000 past pain and suffering, $12,500 of future medical expenses, and $10,000 of future pain and suffering) when the insurance company had only offered $9,000. (The verdict was published in the July 1999 Verdicts & Settlements Quarterly published by Minnesota Lawyer.)

The plaintiff in Riley’s case was a 51-year-old woman who was involved in a rear-end collision that resulted in substantial damage to both vehicles. Although she testified that she could no longer provide daycare in her home as a result of her injuries, the plaintiff did not present a wage claim because she also admitted that she discontinued the work because she received death benefits as the result of her former husband’s death. Riley attributes the success of the case to the fact that she was very attractive to the jury.

“Cases that have endings substantially in excess of the [insurance company’s] offer usually have several factors in common,” explained Riley. “First of all, there is a very nice, honest plaintiff that the jury would find likeable and believable. Second, the plaintiff has no prior medical history of any significance. And third, there is a substantial impact with significant damage to the vehicle.”

Damage to the vehicle is a less significant factor, noted Riley, but it can still have bearing on the ultimate award, especially if both cars involved are damaged.

Attorney Paul Godlewski of Minneapolis also observed that the No. 1 factor in determining a soft tissue case is whether the jury likes the plaintiff. “Credibility is a major, major factor because the plaintiff must explain her pain,” he said.

Godlewski tried a soft tissue case last January where the jury returned a verdict of $105,000. At first glance it did not appear that the plaintiff had a very lucrative case because her injuries were entirely soft tissue in nature and there were no X-ray findings of note. She suffered from muscle spasms in her neck and was treated primarily with physical therapy.

The insurance company initially offered $7,500, but raised its offer to $35,000 as the trial started — likely because a wage-loss claim was involved, according to Godlewski.

The successful outcome probably had a lot to do with “the quality of the client,” said Godlewski. “The plaintiff in this case was a physical therapist herself and couldn’t physically do the job after her injuries. The jury believed she was hurt and that she had to stop working.”

Godlewski also noted that the plaintiff went back to school prior to the verdict and was retrained as a dietician. This showed the jury that the plaintiff wasn’t a whiner — her injuries honestly prevented her from continuing in her former line of work, he explained.

What lawyers can do

Since jury awards often hinge on the attractiveness and believability of the plaintiff, attorneys really should focus on making their clients comfortable, recommended Riley. “Some people are naturally comfortable in front of a group. They’re well-spoken and make fabulous witnesses,” said Riley. Riley mentioned one plaintiff, a chaplain of a hospital, who was particularly attractive to the jury. “She was in the business of helping people through their pain and could really connect with the jury,” Riley explained.

However, Riley continued, “a lot of people aren’t [comfortable in front of groups]. That’s where [a lawyer’s] skills can really come into play. You need to get to know the plaintiff well enough to appreciate what they can best express.”

Riley suggests that attorneys familiarize their clients with the courtroom experience and give them guidance on what juries look for.

Of course, medical evidence can be extremely helpful in bolstering a plaintiff’s credibility. Even though quantifiable injuries are difficult to prove in soft tissue cases, expert witnesses can affect the outcome of the case.

Godlewski noted that juries used to be more skeptical of the testimony of physical therapists and chiropractors. But in recent years the public reaction to physical therapists and chiropractors is generally good, he said. Therefore, as long as the plaintiff’s claim has merit, the quality of the expert witness is more important than the form of his or her medical training.

Once again, credibility is key, according to practitioners.

“You don’t want nervous hemming and hawing,” Godlewski. “You want straightforward communications without chiropractic [or medical] jargon.”

Minneapolis lawyer William Crandall suggested that treatises be offered into evidence through expert witnesses. There are several respected treatises that explain that often, when a vehicle doesn’t sustain a lot of damage, the body of the victim absorbs more of the shock, he said. “Insurance companies often base their offers on the amount of property damage, but there is no real correlation between the amount of damage and the extent of injury,” he added.

Godlewski has found that “before and after” witnesses can add credibility to a plaintiff’s story when the plaintiff herself does not come across well to a jury.

“Before and after” witnesses can be friends or co-workers who can testify as to how the plaintiff was before the soft tissue injury, and how the plaintiff is after, explains Godlewski. The ideal situation would be to find a witness who will testify that it was heartbreaking to recognize that the plaintiff can no longer do or enjoy specific tasks because of her injuries, he said.

Attorney Mark Pfister of Minneapolis also advocates using “before and after” witnesses, but cautions that bias can be a problem.

“Juries don’t accept what friends and relatives say,” he warned. It’s better to get co-workers, and especially supervisors, who can testify how the plaintiff has been changed by her injuries, he advised. The more independent and unbiased the witness, the more likely the jury is to believe that the plaintiff was truly injured, he noted.

Attorneys should also carefully consider the order in which witnesses are called. Because soft tissue injuries are difficult to quantify, Riley suggests calling the doctor first and saving the plaintiff’s testimony for the end. “That way the jury already knows the facts. The plaintiff can shorten her testimony to what she can uniquely express, which is how her injuries have changed her life,” explained Riley.

Woodbury attorney William Harper, former president of the Minnesota Trial Lawyers Association, advises that attorneys conduct very extensive voir dire in soft tissue cases. He said that he seeks to avoid Generation Xers because they tend to have a “self-sufficient mentality” and are less likely to “feel the pain” ofthe plaintiff. He added that he tries to find jurors that are “human beings with a heart.”

When asked how plaintiffs’ attorneys can obtain higher verdicts for their clients, Harper said that it is extremely important that the trial lawyer be an effective communicator who can reach out to the jurors and help them to understand the injuries the plaintiff suffers.

“[Obtaining higher verdicts] is clearly a function of educating individual jurors on individual cases,” he said Plaintiffs’ lawyers observed that soft tissue cases can be worthwhile despite the trend toward low settlement offers prevalent in the insurance industry.

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