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Successfully settling a pre-existing injury case

Author / Coordinator: Barbara L. Jones
Minnesota Lawyer
April 1999

It can be difficult for a plaintiff to settle a personal-injury action if the plaintiff had pre-existing injuries. The defense will undoubtedly maintain the injuries that the plaintiff is seeking were not caused by the defendant.

However, despite the difficulties in proving causation, a significant recovery is possible — as evidenced by a recent $85,000 settlement of just such a case. (See Verdict & Settlement report in the March 22 issue.)

Minneapolis attorney Peter W. Riley, who procured the $85,000 settlement for the plaintiff, said the key factor in prevailing in a case involving a pre-existing injury is the personality and demeanor of the client. The defense must think that a jury will believe a plaintiff when he or she says that her present state was a direct result of the defendant’s actions, he observed.

Riley’s client had a long history of back injuries and chiropractic care. After the automobile accident at issue in the case, she required surgery.

The “critical” element in her settlement, which was reached at mediation, was her character, Riley said.

“She was just a peach — an honest, straightforward mom,” he said.

"Two-edged sword"

A personal-injury plaintiff with a pre-existing condition may present a dilemma for defense lawyers as well as plaintiffs’ attorneys.

While the defense can argue that a plaintiff’s injuries are not attributable to the defendant’s tortious conduct but to the pre-existing condition, the plaintiff can argue that the defendant is responsible for aggravating the plaintiff’s condition under the “thin skull rule.” The doctrine (also known as the “eggshell plaintiff rule”) provides that a tortfeasor must deal with a plaintiff as he or she is — even if that means the plaintiff is especially susceptible to injury.

“A pre-existing condition is definitely a double-edged sword,” said Brainerd defense attorney Erik J. Askegaard. If the defense argues the accident didn’t cause any new injury, the plaintiff can turn the argument around and say he or she was more susceptible to injury, he noted, adding that the defendant may then be responsible for permanently aggravating the pre-existing injury.

Plaintiffs’ attorney Fred M. Soucie of Anoka observed that “a lot of plaintiffs’ attorneys are frightened by a pre-existing injury. In my mind, it makes the existence of a new injury caused by trauma to a previously injured part of the body more believable.”

Factors to look at

In deciding a litigation strategy for a pre-existing injury case, there are several factors that must be considered, according to attorneys.

Askegaard observed that, like plaintiffs’ lawyers, the defense will carefully examine the demeanor of the plaintiff.

“How the plaintiff comes across really can overcome a lot of things that look bad on paper,” he noted. “If I like and am impressed by the plaintiff then I have to conclude the jury would be.”

Askegaard stated that “a significant percentage of people who have prior injuries have a lot of other things going on — they’re not happy. If they’re happy, they don’t let injuries beat them. Pain is a complex phenomenon. You have to look at every case differently.”

Accordingly, attorneys need to work with plaintiffs to alleviate their tension and help them understand the proceedings, Riley said. It’s important that the plaintiff not come across as bitter or angry, he added.

Consider relevance

The defense should always carefully consider the relevance of the pre-existing injury, stressed attorney John H. Scherer of St. Cloud.

For example, he said, one consideration is whether the injuries are similar in nature and in similar areas of the body. Another consideration is the timing of the injuries, he observed, adding that the defense will look at whether the pre-existing complaints were continuing or at least recurring.

Askegaard advised defense lawyers to consider the source and seriousness of the pre-existing condition. “You don’t want to attribute significance to something that can be easily explained away,” he noted.

Scherer stated that, while the age of an old injury may be important, there is no guideline that sets forth how old injuries have to be before they are too old to be relevant. Therefore, defense lawyers should locate all the plaintiff’s medical records.

Askegaard agreed. “We get all the records and scrutinize them. Often we do go back quite some time,” he said.

The defense examines the records for references to other medical treatment that the plaintiff did not disclose.

While the plaintiff may have inadvertently failed to make a disclosure of a past treatment, a plaintiff may also have something to hide, Askegaard noted. In either case, a defense lawyer should take a look at the records to get a complete picture, he added.

“I’m prepared to accept an excuse [for non-disclosure] other than lying,” he said. “There are a certain number of people who think they’ll keep something from being discovered, but it’s also natural for people to just not remember. Sometimes the plaintiff has an inaccurate perception of how good things were before the new injury.”

The defense has a more difficult case if the pre-existing injury isn’t documented, Askegaard noted.

Scherer said that, if there is an inconsistency, “I may confront the plaintiff at a deposition or mediation, or I may wait until trial and use it for impeachment purposes. If I think they’re lying, I’ll wait.”

Broach the subject

St. Paul plaintiffs’ attorney Dan O’Leary emphasized the importance to plaintiffs’ lawyers of having a full command of the client’s medical history.

“If a plaintiff’s lawyer winds up not knowing a medical fact, it can kill the case,” he said. First, the plaintiff’s credibility will be suspect, and second the plaintiff’s attorney will not be able to tell the treating doctor about the pre-existing condition. The foundation of the doctor’s opinion will then be vulnerable to attack, he explained.

O’Leary recommended that plaintiffs’ lawyers always approach a case as if the client may be inaccurate. O’Leary stressed that he doesn’t mean that plaintiffs are lying, but simply that they don’t always remember or remember accurately.

“Your client will miss a lot of medical [background],” he explained. “I tell them, go to their parents, their spouses, their siblings for information. A key source of information is health insurance — find out what providers were paid and get the records.”

Don’t specify a date when requesting medical records, advised Scherer. Some providers will maintain separate files for separate injuries and the attorney may not receive all the records if the request is limited.

Review records

The next step, said O’Leary, is to review all the records and cross-index them for other sources of medical information. O’Leary said he uses software that will sort the medical information by date and provide a summary. Then the attorney must keep highlighting, cross-checking and adding to the summary, he said, adding that every single record must be reviewed for references to other medical treatment.

“The attorney must do incredible diligence or take a huge chance of losing,” O’Leary said.

Askegaard observed that “plaintiffs’ lawyers are doing their homework more than they used to. Ten years ago plaintiffs’ lawyers wouldn’t know their client’s history, even at trial.”

Medical evidence

A plaintiff’s previous medical history may actually help the case, noted Riley. In Riley’s case, the plaintiff had MRIs before and after the accident that could be compared to support her claim. He also noted that the defense doctor agreed that the accident that was the subject of the lawsuit was a substantial contributing factor to his client’s condition.

O’Leary advised plaintiffs’ attorneys to disclose a client’s pre-existing injury immediately — before the defense has a chance to present it in a negative light.

“I start covering it in voir dire, then my opening statement, then my direct,” said O’Leary. “Then the jury’s heard it three times before the defense brings it up. Even if the defense brings it up in their opening, they don’t hit it hard because they don’t know what the evidence will be. So the plaintiff has three shots at presenting it his or her way — that helps even a mediocre case.”

Employment history

Another important element to consider in evaluating the significance of the pre-existing injury is the plaintiff’s employment history, said Askegaard.

“If a person has a sterling employment history, then quits because they can no longer do the job, it’s hard to believe he or she would give all that up to make a lawsuit look better,” he explained. “When an injury has interfered with someone’s ability to earn a living, that’s a scary claim to defend.”

Some lawyers believe the amount of property damage in the accident that is the subject of the lawsuit is also critical.

Riley noted that in his case there was a significant collision because the car that collided with his client’s car went out of control.

O’Leary said that the amount of property damage is sometimes, but not always, a factor.

“Let the jury know that the case is not about property damage — it’s about whether the plaintiff is telling the truth about the injury,” he stated. “Maybe in 99 out of 100 cases this accident wouldn’t cause an injury, but that’s little consolation if you’re the one who is injured.”

In order to make his point to a jury, O’Leary has a little trick.

“In closing, I put a bottle of Tylenol on the table,” he observed. “I remind the jury that about 10 years ago, there was a scare where there was cyanide in Tylenol. I tell the jury there’s cyanide in only one capsule. No one wants to take the Tylenol.”

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