Defense of a catastrophic injury case
All too often, risk managers are faced with claims involving catastrophic injuries, coupled with plaintiffs’ attorneys who are seeking the “sun, moon and stars” in compensation for his client and his legal fee. While plaintiffs’ attorneys seek unconditional surrender, a well-prepared defense will always be helpful in limiting the damages exposure. Such a defense is best prepared by the risk manager and defense counsel working as a team from the outset of the litigation.
In preparing such a defense, the defense team must not lose sight of the fact that obtaining a reasonable settlement in a catastrophic injury case involves not only convincing the injured plaintiff, but of equal importance, convincing plaintiff’s attorney, that a reasonable settlement is preferable to a jury verdict and a likely appeal. The plaintiff and his/her counsel have different concerns that conflict, and a successful resolution often depends upon convincing both the plaintiff and counsel that their best interests are served by a reasonable settlement.
Specifically, the defense team must concentrate its efforts on convincing both the injured plaintiff and the attorney of the advisability of accepting a “bird-in-the-hand.” While the injured plaintiff is often concerned with both his current medical and related expenses and what the future will hold now that he is unable to work and faces a lifetime of medical bills, plaintiff’s counsel has more immediate concerns of “cash flow,” and mounting expenditures of money and time in a protracted lawsuit.
I. Defending the Liability Claim
The liability claim in a catastrophic injury case should be defended as vigorously as in any other case. While this may seem obvious, it is easy to fall into the trap of believing that a jury will be unable to turn a catastrophically injured plaintiff out of court, regardless of the liability situation. This is simply not true, both with respect to jurors and, even more importantly, with respect to appellate courts. Therefore, where a legitimate defense of liability exists, it should be thoroughly prepared and vigorously presented, both at trial and at settlement discussions.
Again, in preparing such a defense, the defense team should remain mindful of the fact that the plaintiff’s attorney is hoping to win a large sum, not only for his client, but for himself. If counsel can be convinced that there is a distinct possibility that the expected payday may never come, he will be affected not only by his desire to not lose a good result for his client, but also his desire to not lose a good result for himself. This is a powerful tool for the defense in settlement discussions.
A.Prior Inconsistent Statements: Most people have been taught that the truth remains relatively constant, while falsehoods are ever-changing. Therefore, jurors are impressed when prior inconsistencies are brought out on cross-examination by defense counsel, thereby detracting from the plaintiff’s rehearsed recitation during direct examination. Sources of prior inconsistent statements that are usually available to the defense include the police report prepared immediately after the accident, the ambulance report, the emergency room or other hospital records concerning the plaintiff’s treatment shortly after the accident, the plaintiff driver’s MV-104 in a motor vehicle case, and the plaintiff’s medical history. A thorough defense on liability, therefore, should include the gathering of all statements made by the plaintiff regarding how the accident occurred.
B.Sworn Statements of Witnesses: In addition, signed statements should be taken from witnesses, and, if appropriate, non-party depositions should be conducted. Quite often, responding police officers and ambulance attendants can provide information concerning how the accident occurred that would serve to contradict the plaintiff’s versions of events. Naturally, the versions of all eyewitnesses should also be locked in by means of sworn statements or depositions.
C.Photographs, Physical Evidence, and Accident Reconstruction: Scene photographs, other physical evidence, and accident reconstruction should also be utilized by the risk manager-defense counsel team. By undertaking such efforts in preparation of a vigorous defense, the defense team will also be sending a message to plaintiff that all steps are being taken in the defense of this claim.
II.Defending the Damage Claims
Whether or not there is a viable defense to the liability claims, the defense team must remember that virtually every case is not worth what the plaintiff’s attorney thinks it is. Once again, every avenue in the defense of the damage claims should be explored, not only with respect to the ultimate trial, but also with respect to settlement discussions. Several tools are available to the defense team in this regard.
A.Plaintiff’s Background: A thorough review of the plaintiff’s personal and medical history must be conducted. The value of any injury is inextricably linked to exactly who the plaintiff is, or more importantly, who the plaintiff is perceived to be by the jury. Work history, prior medical records, prior lawsuits and criminal history must be obtained and reviewed for any information that might be of use to the defense in convincing a jury that this particular plaintiff is not worthy of the amount of compensation his attorney is seeking. Both in the opening and closing statements at trial, defense counsel can advise the jury that information concerning the plaintiff’s prior criminal, drug, and similar history is being brought to their attention, not to cast aspersions on the injured plaintiff, but rather to show the jurors that the quality of life that the plaintiff enjoyed prior to the incident was limited by his own circumstances, and that his damages have to be evaluated on that basis.
B.Independent Medical Examinations: As in every personal injury case, independent medical examinations should be conducted with respect to the catastrophically injured plaintiff. Such independent medical examinations can reveal how a plaintiff has adapted physically and emotionally to the catastrophic injuries suffered. The plaintiff’s physician will attempt to focus the jurors’ attention on the injuries and their allegedly devastating effects on the plaintiff. However, the defense expert examiners can focus on the plaintiff’s innate ability to overcome that which, at first blush, might seem unbearable.
For example, in a case involving a plaintiff who had lost both legs near the hip joints in a subway train accident, we presented the testimony of a physiatrist who treated hundreds of amputees and who examined this particular plaintiff. The physiatrist testified as to how the plaintiff had adjusted to these changed circumstances in the years between the date of occurrence and the date of examination, and how he could further adjust with very simple and relatively inexpensive modifications to his immediate environment.
C.Vocational Rehabilitation Specialist: A vocational rehabilitation expert should also be retained, where appropriate, to counter arguments that the injuries have rendered the plaintiff completely incapable of any gainful employment or of enjoying any of the normal daily activities of daily living. Here too, the expert will focus upon the plaintiff’s innate ability to adapt to and overcome his disabilities.
D.Economic Analysis: In many catastrophic injury cases, plaintiff’s counsel will present the testimony of an expert economist for the purposes of establishing pecuniary losses totaling in the millions of dollars. Such economic analysis should not be accepted at face value, but instead, should be reviewed by an economist retained by the defense.
All too often, the plaintiff’s economic expert will manipulate numbers to the plaintiff’s advantage, exaggerating the pecuniary losses of a catastrophic injury beyond all proportion. Consulting with a defense economist will point out to defense counsel those areas where the plaintiff’s economist is vulnerable to attack on cross-examination. The defense economist also can be presented as an expert witness at the trial.
E.Damage Verdict Search: Very often, plaintiff’s counsel will seek a settlement that would not be expected from a jury verdict, or more often, would not be sustained by an appellate court. A review of damage verdicts and appellate rulings in cases involving injuries similar to the case at hand will be very helpful in settlement discussions with counsel and with the court.
By using these tools, the defense team will be armed with information that can be used to convince plaintiff’s counsel that a reasonable settlement of the case is far more preferable than an unpredictable jury verdict and a likely appeal. If an appropriate settlement is not obtainable, however, the defense team will have prepared a cogent defense to the plaintiff’s liability and damages claims before a jury.