United States: Soft Tissue Injury - the Plaintiff´s Case

There are a number of key issues that should be assessed when evaluating the strength or weakness of the case. None of these issues are determinative, but they all may have considerable weight effecting the value of the case.

First, the force, velocity and mechanisms of injury are important. Was this a minor accident with minimal or no force applied to the occupant of a motor vehicle, or is this a case where the individual sustained direct trauma through a fall or impact with portions of the interior of the motor vehicle? How fast were the vehicles proceeding? How much property damage was there? Where were the forces applied? Were the forces absorbed by the automobile bumper or transmitted to the occupants? Where was the occupant in the vehicle? Was he/she turned? Did the occupant impact any part of the interior of the vehicle? Were there other factors regarding the mechanics and forces of injury? This is important information. For example, it is known that lateral forces generally will cause more severe injury than direct linear forces. Any evidence of direct trauma as opposed to acceleration-deceleration injury, is important. Scars, bruises, contusions and other evidence of trauma can buttress the claim that there has been forces sufficient to cause soft tissue injury. Often the forces will be sufficient to cause disorientation, a momentary loss of consciousness or other signs or symptoms suggesting an insult to the neurological and neuromuscular systems. In an extreme case there may be a momentary or extended period of loss of consciousness all of which is consistent with neurological injury and other forces sufficient to cause a severe acceleration/deceleration injury or other impact competent to cause soft tissue injuries.

Second, if your client is either transported to or goes to an emergency room, the history and findings in the emergency room are often critical. If the history indicates injury and there are other findings in the emergency room consistent with physical trauma such as bruises, contusions, disorientation, neurological findings, then all of this information would be consistent with the type of forces competent to cause neuromuscular and other soft tissue injuries. Often, however, the only information in the emergency room will be the plaintiff's subjective complaints. These cannot be discounted but obviously the lack of any findings in the emergency room of any kind can weaken the case.

Third, the results of any physical exam or testing should be considered. Typically in a soft tissue injury case, there will be no neurological findings. However, there are cases where, for example, x-rays will show a straightening of the lordosis of the cervical curve, consistent with a contraction of the muscles resulting from trauma. There may be other findings upon physical exam such as muscle spasm. Obviously, if there are more profound findings on neuroimaging studies such as disc protrusion or herniation, these would further support evidence of severe physiological injury.

Fourth, the progression and duration of symptoms must be looked at. Often when dealing with soft tissue injuries, there will be an initial period where symptoms are not severe but then they progress as swelling and other physiological changes occur. Although symptoms can be effected by a variety of factors including stress, strain, weather, and activity level, one would generally not expect to find inconsistent or marked increases or decreases in symptomology. Typically these symptoms follow a relatively predictable course and last for a relatively predictable duration. If your client's clinical course is way outside the norm, it may raise a question of the etiology or validity of the injury.

Fifth, next the consistency of the history must be looked at. The plaintiff may have seen multiple health providers including a primary care physician, orthopedist, chiropractor, physical therapist, neurologist or other doctors. If the plaintiff gives a consistent history as to the cause of injury and the duration and progression of symptoms, the reliability of that history is bolstered. If, on the other hand, the history given by the plaintiff is not consistent or shows further "elaboration" of symptoms as medical providers are seen down the road, this can raise a question regarding the reliability and credibility of the plaintiff, and the reported cause of plaintiff's injuries. All medical records should be closely examined and any inconsistencies in the history adequately addressed.

Sixth, any premorbid, that is, preaccident conditions, must be closely examined. Is this a plaintiff who was relatively healthy and functional prior to the injury, or is this a plaintiff who has had numerous prior visits to a chiropractor, physical therapist, with multiple complaints and multiple periods of disability or inability to work? This can be one of the most important factors in assessing the reliability and credibility of the plaintiff's current complaints. If this is a person who has shown a conscientious work history, and has had little prior medical conditions or complaints, and who now has complaints of pain that interfere with the person's normal functioning and ability to work, one would generally presume that these complaints are valid. On the other hand, a person who prior to the accident had long periods of dysfunction, either due to physiological or other causes, and who now attributes his or her inability to function to the accident, may be subject to some skepticism. Accordingly, plaintiff's preaccident medical records, psychological records and employment records must be closely examined and any prior claims of injury, accident, work connected injuries or other claims whatsoever must be closely scrutinized.

Seventh, closely related to premorbid conditions, are any concomitant conditions that might account for or contribute to plaintiff's symptomology and/or disability. Is this a plaintiff who other than the accident has relatively few stresses or traumas going on in his or her life which would account for their symptomology, or is this a plaintiff who even prior to the accident was having difficulties at work or in their marriage or had recently suffered the loss of a loved one, or who was under other psychological or physiological stresses? It is true that the defendant takes his victims as he finds them and that the plaintiff's vulnerability or predisposing characteristics does not necessarily relieve the defendant from liability. However, if the primary cause of plaintiff's complaint is not the accident in issue, but rather other traumatic events that can cause physiological stress, such as a catastrophic loss, job or marital stresses, then these factors must be considered. Because often these injuries are dependent on plaintiff's subjective feelings and expression any other factors that could be effecting the plaintiff's subjective experience should not be discounted.

Eighth, the consistency of findings and diagnoses among providers is important. Is this a plaintiff who has seen an internist, chiropractor, physical therapist and they have all concluded that the plaintiff is suffering from cervical musculoskeletal pain and lower back pain caused by the auto accident or is this a plaintiff who has seen multiple providers who have come up with different findings or diagnoses? For example, has one of the doctors concluded that plaintiff's symptoms should resolve in two to three months where another provider has reached a completely different diagnosis and prognosis. These variations can occur in the most genuine of cases. However, nonetheless, if there is a wide disparity between each provider's findings and diagnosis, the underlying reliability of the scope and extent of injury must be considered.

Ninth, the plaintiff's responsiveness to treatment needs to be considered. Generally, with appropriate treatment, the plaintiff's injury should improve and their ability to function increase. Through physical therapy, chiropractic manipulation and rehabilitation, exercise and other prescribed treatments, most soft tissue injuries will resolve in time. If the plaintiff shows no responsiveness to treatment, other underlying mechanisms must be considered. It may be that plaintiff's injuries are more serious than considered initially and that additional testing is required to re-evaluate the diagnosis. For example, it may be that plaintiff has a herniated disc but because there has never been an MRI, it has not been previously diagnosed. On the other hand, if there has been complete and thorough testing and plaintiff's injuries are primarily musculoskeletal in nature, the lack of responsiveness to treatment may raise a question regarding the reliability of the findings and plaintiff's subjective complaints.

Tenth, and perhaps most importantly, is the plaintiff's presentation and credibility. Common sense and human experience should not be thrown out the window when evaluating these cases. An individual's presentation and credibility must and should be assessed. Many individuals are truthful and credible individuals, and one can tell that this individual has no motivation and is making no effort to exaggerate or elaborate their symptoms. There are other individuals who are selective in the history they give and who may, for example, attribute all of their problems to a relatively minor accident and ignore other factors that show up in medical, employment or other records. If you question the plaintiff's credibility as a result of concrete evidence raising a question regarding the reliability of plaintiff's subjective complaints, then you can be sure that a judge and jury will as well. This is an area that should be thoroughly evaluated as the case will largely rise and fall on the plaintiff's believability and on the judge or jury's ability to connect with the plaintiff. A person who is naturally likeable and believable is perhaps the strongest asset in any case.

Generally speaking, there are three main categories of damages:

1. Out-of-pocket losses (medical specials and lost wages);

2. Lost earning capacity; and

3. Pain and suffering.

Each of these areas have to be developed to assure that your client obtains the compensation to which he or she is entitled.

Medical Expenses. Under the Massachusetts No-Fault statute, Mass. G.L. Chapter §36D, as a prerequisite to suit, the plaintiff must show that his fair and reasonable medical expenses exceed $2,000.00. The insurers can, and often do, challenge the fairness and reasonableness of these medical expenses. If challenged, the plaintiff must not only show that the expenses were fair and reasonable, but also that they were "necessary". See, Victum v. Martin, 53 Mass. App. Dec. 1 (1973). At trial the medical expenses can be established pursuant to an affidavit under Mass. G.L. Chapter 233, §79G. Be sure to comply with the statute in all respects, including the time and notice requirements, as well as the certification under the penalties of perjury from the doctor who is certifying the accurateness and fair and reasonableness of the bills and to his licensure.

In addition to proving past medical expenses, the plaintiff is entitled to recover for the fair and reasonable cost of reasonably certain future medical services. These services can be established by the plaintiff's treating doctor, who should testify to the future medical services that will be needed and, if possible, to the cost of the same. Often the plaintiff will utilize a nurse or a life-care planner to project the future medical services and cost of the same, and then an economist to reduce these figures to present value.

Impairment to the Plaintiff's Earning Capacity. Loss of earning capacity is not equivalent to loss of wages, although plaintiff's prior wages is some evidence of his earning capacity. See, Mitchell v. Walton. 305 Mass. 76 (1940). Plaintiff may be unemployed or never have worked and still have an earning capacity. In order to recover for loss of earning capacity, the plaintiff must prove that he was, or is, disabled from work, the probable duration or permanency of this disability, and monetary earnings that have been lost or that he was capable of earning as a result of the disability. Plaintiff may use a vocational expert to establish the plaintiff's prior work capacity and post-accident disability or residual work capacity. An economist may be used to establish the value of plaintiff's work capacity and reduce that amount to present value. This calculation is complicated, in that it takes into account not just wages, but other benefits, expected growth rates in wages and the appropriate discount rate to reduce that amount to present value. See, Jones and Laughlin Steel Corp. v. Pfiefer, 462 U.S. 30 (1983); Griffin v. General Motors Corp., 380 Mass. 362 (1980).

Pain and Suffering. This area includes mental and physical pain and suffering, both past, present and future, as well as loss of function, humiliation and embarrassment, disfigurement, scarring, anxiety, mental distress and all other forms of pain and suffering. Generally, the plaintiff and the plaintiff's treating doctors will be the primary source of proving plaintiff's pain and suffering. The doctor should give an opinion regarding his prognosis covering the plaintiff's future pain and suffering. Although the plaintiff can certainly describe his mental and physical pain and suffering, often it is more persuasive coming from witnesses other than the plaintiff, including relatives and friends. Demonstrative aids such as "day-in-the-life" films can also be utilized to show the impact of plaintiff's injury.

Massachusetts follows the "collateral source" rule which prevents a defendant from reducing his liability by showing that the plaintiff's economic losses were lessened by payments from other "collateral sources", such as payments by health insurance, Workers' Compensation insurance, private disability policies, pension, Social Security benefits or other "collateral sources". Massachusetts has recognized two major exceptions to this rule:

1. To directly contradict a plaintiff's testimony of alleged circumstances resulting from his injury, See, Corsetti v. Stone Co., 396 Mass. 1 (1985); and

2. Within the discretion of the Trial Court, to show malingering, that is that it's the plaintiff's receipt of substantial monetary benefits, rather than the injury, that is keeping plaintiff out of work. See, Pemberton v. Boes, 13 Mass. App. Ct. 1015 (1982).

Because most health care providers, Workers' Compensation insurers and other third-party payers have a right to subrogation, the collateral source rule does not result in a windfall to the plaintiff, but rather, merely shifts the ultimate responsibility for the loss to defendant's insurer.

Experts now play a prominent role in the trial of virtually every case, and certainly this is true in soft tissue injury cases. There may be medical experts, chiropractors, accident reconstructionists, biomechanical engineers, vocational experts and economists just to name a few. It is imperative that these experts be properly prepared and that their examination and presentation be persuasive.

Where the expert is testifying based on a science or subject matter that has not yet been generally accepted in the scientific community, the decision in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 125 (1993), should be kept in mind. Under Federal Rule of Evidence 702, "general acceptance" of the scientific theory upon which the testimony is based is not determinative to admissibility. Rather, the trial judge must assure that the underlying theory is reliable based on a number of factors including whether the theory or technique has been tested, subject to peer review and publication, the existence of standards, as well as its acceptance within the scientific community. Massachusetts state courts follow the "Daubert" approach. See, In Theresa Canavan's Case, 432 Mass. 304, 733 N.E.2d 1042 (2000); Commonwealth v. Canigan, 419 Mass. 15, 641 N.E. 2d 1342 (1994).

When presenting an expert, one must keep in mind the facts or data that the expert can properly rely on in rendering an opinion. Generally an expert may base his opinion on facts personally observed by him, evidence already admitted in the proceeding or which the parties represent will be admitted, and, in Massachusetts, facts or data not in evidence, including hearsay, if the facts and data would be admissible in evidence. See, Department of Youth Services v. A Juvenile, 396 Mass. 516 (1986). In Federal Court, however, the fact or data need not be admissible in evidence if of a type reasonably relied upon by experts in the field in forming an opinion. See, Federal Rule of Evidence 703.

Some general rules should be followed when examining the expert on direct. First, the examination must be understandable to the jury. It should be kept simple and as concise as possible. The expert must understand that, unless he is able to communicate his information to inexperienced and often unsophisticated jurors, it is wasted. Any words used by the expert that are more than two syllables should be explained to the jury. The expert should make liberal use of demonstrative aides to illustrate his testimony, such as photos, drawings, X-rays, anatomical models, charts and anything else that will make the injury understandable to the lay person. Make sure that you meet at length with the expert in advance of his testimony to develop a rapport and to work with him to make his testimony understandable to the jury. He should be fully informed so as to be able to anticipate and address the opposing party's medical expert's opinions. He must be prepared for cross-examination, be comfortable with you and what he can expect, and understand such things as the difference between "reasonable medical certainty" and scientific certainty.

Once you have spent the significant time and money involved in retaining and properly preparing your expert, make sure that you use the expert to your full advantage. Diagnosis and causation should not be the only issues addressed by the doctor. The doctor can also address disability, prognosis, future medical care, the cost of future medical care, the plaintiff's past and present pain and suffering, as well as an opinion regarding future pain and suffering.

Cross-examination of the opposing party's experts is also critical. This is generally where the less experienced attorney runs into difficulty. If certain basic rules are followed, however, the potential for hurting your case is certainly minimized, and the likelihood of the cross-examining performing its intended function, which is to obtain concessions bolstering your case and to discredit testimony harmful to your case, can be accomplished.

The first area for cross-examination is to obtain concessions. Get the expert to acknowledge as many positive points in your case as possible. For example, the doctor may have difficulty disagreeing with the majority of the information contained in your client's medical records and will have to acknowledge these positive points. Using the opposing expert as a sounding board to reinforce positive evidence in your case will narrow the issues considerably, and reinforce this positive evidence before the jury. In addition, even the most partisan expert would concede that pain can be very real even though not objectively verified, as can other subjective symptoms, that subjective complaints and the patient's history are relied on all the time in prescribing treatment, making diagnoses, even without positive objective proof of an injury, and that the expert has no reason to disbelieve certain findings made by plaintiff's treating doctors, etc.

After positive concessions are obtained, the expert may then be cross-examined with the goal of discrediting those areas in dispute. The expert's qualifications may be addressed, including his or her lack of certification or specialty in a particular area, lack of clinical, professional and educational training, etc. Then the expert may be impeached for any bias or interest. Often experts may have a long association with defense counsel. Most defense experts are hired for the sole purpose of giving an opinion to defense counsel in connection with a particular litigation. This should be emphasized and pointed out on cross-examination (and compared to the plaintiff doctors' treating status). Show that providing expert testimony on behalf of this particular defense counsel, or for defendants in general, constitutes a significant part of the doctor's practice. Emphasize that he never treated the plaintiff and, perhaps, never saw him or her, or saw him or her only once on an isolated occasion. Point out the expert's financial interests in this case and in testifying on behalf of defendants generally.

After these "collateral" attacks, the particular opinion or opinions in dispute may be addressed. Often the defense expert will have inadequate understanding of the case and has not adequately prepared. Because he or she has generally not treated the plaintiff but only seen the plaintiff on an isolated, single occasion, the expert is personally unable to comment on the plaintiff's condition either prior or subsequent to this isolated visit, including the acute stage, and will have no first-hand knowledge concerning the vast majority of plaintiff's course of treatment. It may be that the expert has not reviewed all the medical records or seen actual X-rays or other diagnostic test results. In addition, often the medical expert will have no acquaintance or familiarity with the accident, the severity of the impact or trauma or the mechanics of the accident, all of which are important factors in determining whether, and the extent to which, the plaintiff was injured. In rendering opinions on disability, the doctor may have little or no knowledge of the plaintiff's job requirements or the demands to which the plaintiff is exposed at work. Often the defense expert will have spent considerably more time conferring with defense counsel than examining either the plaintiff or his or her records. All of these areas are fertile ground for cross-examination.

In addition, the basis of the expert's opinion can be discredited. Often the expert may have selected certain facts to rely on and discredited or ignored other facts, not necessarily based on some expert judgment; but rather, on his or her personal predilection or personal assessment of the plaintiff's credibility (which is not the expert's job; but rather, the jury's). Such judgments should be exposed for what they are, not a matter of expert opinion; but rather, a matter of the expert's assessment of the plaintiff's credibility. The expert may concede that, if he hadn't discredited or discarded certain facts, his opinion, in fact, would have been the same as plaintiff's expert. Hypothetical questions can be utilized in this fashion to illustrate that the expert would have had an entirely different opinion had he not discarded or discredited certain facts present in the case. Furthermore, often the expert discounts or discredits facts arbitrarily or based on speculation. For example, the expert may summarily discount history or subjective complaints without either investigating the validity of the history or complaints, talking to others, reviewing the circumstances of the accident, etc.

Finally, the expert may be impeached by prior inconsistent statements made by him or her, either in writings in this particular case (such as a prior written report), in prior testimony given in the case (depositions), in prior publications addressing the general topic area. In addition, the witness may have given testimony in other proceedings inconsistent with his current testimony on the topic. Finally, in Massachusetts an expert can be impeached with a learned treatise. See, Comm. v. Snead. 413 Mass. 387 (1992).

The preparation and presentation of the plaintiff at trial can make or break the case. Jurors are to a large degree ultimately swayed by their emotional feelings for the plaintiff or against the defendant. They will find a reason not to award a plaintiff substantial damages whom they dislike. Accordingly, you must prepare your client to bring out his or her strengths and attributes that the jury can positively relate to. Jurors tend to be skeptical today of even the most objectively injured plaintiff. This natural skepticism and suspicion must be overcome, and it must be overcome through the credibility that you, as an attorney, convey and the positive strengths exuded by your client. You must personalize your client and get the jury to know and understand your client as well as you do.

The worst thing that you can do, or your client can do, is to attempt to overstate or oversell the case. This will immediately play into the jury's natural distrust.

Let the plaintiff tell his or her story. The less prominent role counsel plays in presenting the witnesses, the more effective their testimony will generally be. Ask brief and simple questions and let the story tell itself. While the plaintiff must be informed about cross-examination, he or she should not volunteer information or argue with counsel, and should answer only the questions asked, and only those questions he or she fully understands. If the plaintiff understands the need to be honest and understands the theme and issues in the case, the plaintiff should be prepared for cross-examination.

Before the evidence is even presented, you, as plaintiff's counsel, have the opportunity to sway the jury to your view of the case through the opening statement. There have been studies to show that, due to the effect of primacy, most of the jurors have made up their mind after the openings of counsel. The opening is obviously important in persuading the jury to your position.

The best openings tell a factual story. The lawyer presents the evidence as a storyteller would tell a story. Openings that do not tell a story but, rather, describe the technical nature of the case, the witnesses that plaintiff expects to call in support of their case, the various stages of the proceedings, and respective roles of the players may be marginally informative, but are not persuasive.

The best openings are made without notes. The opening should be from the heart and convey to the jury the "theme" of the case. To the extent possible, it should personalize the plaintiff and depersonalize the defendant. The use of demonstrative aids with the court's permission is encouraged.

It is important to anticipate and address, even in the opening, the negative evidence which you expect the defendants to introduce. If you know that this evidence will be presented, it is much less powerful coming from your own mouth than coming for the first time from the defendants. Although you must anticipate and take the sting out of this negative evidence, your opening should concentrate on the strengths of your case. Never oversell or overstate the case. If you do, the case has only one direction in which it can go from there, downhill. By overselling the case initially, you will leave yourself

wide open at the argument that you made representations to the jury that you could not fulfill. As a result, you and your cause will lose all credibility.

While it is important to address in the opening the strengths of the case, it is sometimes helpful and advisable not to disclose all your strengths in the opening. This is the converse of overselling the case. In other words, undersell the case. Then when you present the evidence, you have actually given the jury a little something extra beyond what you have promised. The jury will be impressed with your lack of exaggeration; rather, your restraint will add to your credibility.

In opening, as in the other stages of the proceedings, the jury must feel an emotional bond to the case and understand and sympathize with the plaintiff. Creating this emotional nexus with the jury is much more important than attempting to address all of the technical and legal issues that the case may present.

Generally, expert medical testimony will be necessary to establish the diagnosis, causation, disability and prognosis. Your medical expert will be the starting point for conveying to the jury exactly what injuries the plaintiff has suffered as a result of the accident. The symptoms that the plaintiff has and will endure as a result of these injuries, the extent to which these symptoms will interfere, or prevent, plaintiff's ability to work, and the pain and suffering, both mental and physical, that the plaintiff has, and will continue to endure, as a result of his injuries can all be addressed by your medical expert. In addition to the expert's testimony in this area, a report addressing these issues, which can be taken by the jury into the jury room as an exhibit, should be introduced pursuant to Mass. G.L. chapter 233, §79G.

In order to convey to the jury the impact that this accident has had on the plaintiff, you as the plaintiff's attorney must have intimate knowledge of the plaintiff both before and after the accident. You should know the plaintiff's educational, vocational, familial and employment background, and the impact that the injury has had in each of these areas. You should be armed with anecdotal experiences that can be conveyed to the jury which illustrate in human terms the impact which this injury has had on the plaintiff's everyday functioning.

Jurors do not like "whiners" and inevitably there is the risk that, no matter how genuine the plaintiff's injuries, when the plaintiff himself or herself describes these injuries and their impact on the plaintiff's life, the plaintiff comes off as a "whiner" and will not gain the jury's sympathy. It is, therefore, generally more effective to have other witnesses, including the plaintiff's family, co-workers, therapist, care givers, or physicians testify to the impact which this injury has had on the plaintiff's functioning. Again, this can be done through anecdotes which convey to the jury the humiliation and embarrassment as well as physical limitations that the plaintiff has had to endure.

In establishing damages, demonstrative evidence should be used liberally. Chalks, photos, x-rays, anatomical models, day-in-the-life films and other visual aids should all be considered.

Remind the client to prepare a daily diary of medical treatment, pain and disability so that, when it comes time to convey this information to the jury, it can be reconstructed. A calendar with overlays can often be used as a demonstrative aid chronicling the plaintiff's course of treatment.

In Massachusetts, plaintiffs cannot argue "numbers" for an award of pain and suffering. Superior Court Rule 7.

In Massachusetts, as in most states, the defendant is liable if his negligence aggravates a pre-existing injury or disease or if his negligent conduct directly causes a second injury (for example, falling due to a weakened knee injured in an accident). The defendant is also liable for any complications or problems resulting from the plaintiff's subsequent medical treatment necessitated due to his injuries, even complications from negligent medical treatment.