In this excerpt from Robert Simon's book, Trying Disc Injury Cases, contributing author and former defense attorney Steve Rosen breaks down the standard playbook that defense firms follow in disc injury cases. Rosen writes:
The roadmap many defense attorneys follow in defending their clients is the following, step by step:
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- Defend liability.
- Deny causation or doubt the injuries.
- Find inconsistencies or confuse the issues.
Generally, the best way to respond to these tactics is with confidence. Know your clients well. Know their injuries well. Get them to treat with reputable doctors without checkered pasts, and so on.
While it’s unlikely that you can prevent a defense attorney from going this route (it’s hard to teach an old, jaded, and overworked dog new tricks), it’s incredibly beneficial to be proactive by knowing and anticipating the positions that the defense will likely take from the start. As such, much of this chapter will include advice on how to minimize the defense’s strength in these positions by telling a complete story from the start and curtailing any discoveries that can veer your client’s case from the complete story.*
Later, Rosen offers advice for handling issues under point two, "deny causation or doubt the injuries," he writes:
Dealing with Low Property Damage
The common thinking on the defense side is that minimal vehicle damage equals no causation. The amount of damage to your client’s vehicle will likely be the second issue the defense attorney reviews. If your client’s vehicle does not have a lot of visible damage, then they will push and push and push the narrative covered by Robert Simon in this book: if the vehicle is not hurt, your client can’t be either.
Also, when it comes to property damage, you may notice that I said, “your client’s vehicle” and not “the vehicles.” This is because the amount of damage to the defendant’s vehicle often doesn’t seem to matter to adjusters and defense attorneys. If your client’s vehicle isn’t crushed, then they will push this narrative—regardless of the state that either vehicle was left in. It’s rather silly and should be something that we all move past, but we never will.
When thinking of this narrative, one very large insurance company comes to mind. To this particular carrier, your client having a wrecked car is paramount to any hope for recovery. If your client’s vehicle damage isn’t to their liking, they will send you to the “Special Investigative Unit” (or similar name—it varies by insurer). I’ve handled multiple cases against this carrier where my client’s vehicle damage was minimal, but the defendant’s car had significant damage. Each time, the insurer sent the case to this “special” unit.
On one such matter, the insurer had pictures of the defendant’s damaged vehicle but the damage to our client’s vehicle was minimal. For over eighteen months, the carrier continued to claim that there was no causation; that the crash could not have led to an injury since the damage to our vehicle wasn’t major. In discovery, we requested that the defendant disclose all photographs of damage to his vehicle. In the defendant’s responses, there were several pictures of the defendant’s vehicle damage. They were black and white and grainy. We requested the original copies and, after a short fight, received them. When we reviewed clear copies of the photos, we noticed a flat steel bar bent in one of them. We sent the photograph over to an accident reconstructionist expert we frequently use and were advised that the bent bar’s name was the “impact bar.” Its purpose was to absorb impact during crashes and, hopefully, limit the passenger’s injuries. We enlarged that picture on foam core board with the words “if you can bend steel, you can harm a human” written in bold on the top. We brought that visual to mediation and left it in the hallway outside our door. The case settled (with a good mediator) and the parties moved on.
When it comes to responding to this narrative, just stand by your client’s injuries (and common sense). Look at the damage to both vehicles and just keep pushing back.
Explaining Injuries & Causal Connections
If you want to be taken seriously by defense counsel (and you should want to), then you must understand the medical side. Use the resources in your case, especially your client’s treating doctor’s reports, to educate yourself. If you speak to your client and their doctors, and understand the medical side of their case, then you have a great opportunity to have an immediate advantage over the defense. An advantage that you can carry through litigation, into medical expert depositions, and ultimately into trial.**
When I was a defense attorney, I didn’t know the medicine. And I wasn’t alone, it was kind of the standard. The simple truth is that defense attorneys rarely know much about the medical issues in their cases. They don’t really have the time or resources to learn them. Most of them don’t attend CLEs put together by orthopedic surgeons, and most of them don’t read medical journals. The only way defense attorneys really learn is through experience in other cases, and they rarely get a case with the same exact injuries.
Despite an inherent lack of medical knowledge in the defense bar, defense attorneys will adamantly deny that the crash was enough to cause your client’s injuries. They will point to the property damage and use their favorite word, degeneration, to blame the pain on gravity instead of accepting that two cars crashing together is enough to cause painful injuries.
In responding to the inevitable causation fight, it is important to make the causal connection between the crash and your client’s injuries as simple as possible. I firmly believe that the easiest fought matters are the most consistent ones. So, do proper investigation prior to filing to develop a simple argument related to causation and keep it consistent throughout litigation. The best causation arguments make sense, without the necessity of any background in medicine.
For example, in a recent bike versus car crash case, our causation argument was laid out as follows. We wrote this paragraph in a response to a special interrogatory sent by the defendant early in litigation.
Example: Causation Argument in Bicycle versus Car Crash Case
On September 8, 2019, Defendant took a left turn without properly yielding to Plaintiff, causing Plaintiff’s bicycle to impact the front, right fender of Defendant’s vehicle (“Subject Crash”). Upon impact, Plaintiff was thrown from his bicycle and landed on the hood of Defendant’s vehicle before rolling to the ground. The right side of Plaintiff’s head and lower back impacted the hood of Defendant’s vehicle, prior to Plaintiff rolling to the ground in front of the vehicle. Plaintiff reported temporary loss of consciousness and significant pain to his right side at the scene of the Subject Crash and again at the hospital that day. Prior to the crash on September 8, 2019, Plaintiff, a thirty-five (35) year-old individual, had no history of head injury or limitations on cognitive abilities. Additionally, Plaintiff had no history of lower back pain. We have included ten (10) years of prior medical records which do not include any prior complaints of head or low back injuries, as well as a complete set of Plaintiff’s post-crash medical records. Based on the foregoing, it is clear and undisputable that Plaintiff suffered an acute lumbar spine injury and traumatic brain injury as a result of the Subject Crash.
The above response to an interrogatory demonstrates a theory of causation that is both simple to understand and difficult to refute. In our response, we covered mechanism of injury, an immediate onset of symptoms, medical diagnosis, and attempt to rule out the argument that the injury was pre-existing. Concurrent with this response, we served responses to requests for production (RFP) that included all of the plaintiff’s medical records for both prior and post-crash. Prior to serving this response, we called the plaintiff’s treating neurologist and spoke to them regarding his injuries and the likelihood that they were causally connected to the crash.
Throughout the litigation, we continued to supplement the plaintiff’s medical records as we received them. The plaintiff was recommended for a lumbar fusion after receiving epidural injections in his lumbar spine. Along with the initial responses and each time we provided a supplement to our RFP responses, we included a cover letter that offered an early deposition and early defense medical exam of the plaintiff. We continued to show that we had nothing to hide and that there should be little doubt as to causation for the plaintiff’s very serious injuries.
Based on my years on the defense, I believed that this action plan would help set the appropriate tone in the defense counsel’s early reports to their carrier. I wanted them to relay our confidence in the causal connection between the crash and these serious injuries, so that they would note it as a surgical/traumatic brain injury (TBI) case and set the reserves appropriately. I believe that they did, as the matter settled for seven figures during discovery.
Example: Requests for Admission in Bicycle versus Car Crash Case
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- Admit that PLAINTIFF suffered pain as a result of the INCIDENT.
- Admit that PLAINTIFF was INJURED as a result of the INCIDENT.
- Admit that PLAINTIFF suffered some form of physical injury, no matter how severe, due to the INCIDENT.
- Admit that YOU saw PLAINTIFF hit YOUR VEHICLE’S hood at the time of the INCIDENT.
- Admit that PLAINTIFF’s body hit YOUR VEHICLE’S hood at the time of the INCIDENT.
- Admit that PLAINTIFF’s body hit the ground after hitting YOUR VEHICLE.
- Admit that YOU saw PLAINTIFF bleeding at the LOCATION of the INCIDENT.
- Admit that YOU saw PLAINTIFF holding his right arm at the LOCATION of the INCIDENT.
- Admit that YOU called EMERGENCY SERVICES to respond to PLAINTIFF’s injuries while still at the LOCATION of the INCIDENT.
- Admit that YOU saw EMERGENCY MEDICAL SERVICES tending to PLAINTIFF at the LOCATION of the INCIDENT.
- Admit that YOU saw EMERGENCY MEDICAL SERVICES treating
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The purpose of the above requests was to establish early in discovery that the plaintiff was injured in this crash. Our goal in this matter was to eliminate arguments related to both fault and substantial factor, so that we would only have to bring damages to a jury if the matter proceeded to trial.
In issuing early RFAs, it is important to include a request to admit that the plaintiff was injured (in the broad sense). A lot of defense attorneys don’t understand the nuance between proving substantial factor and proving the plaintiff’s damages. That is, they don’t necessarily understand that a single injury caused by the defendant establishes substantial factor, and that the plaintiff doesn’t have to prove they suffered every alleged injury to meet this burden. Knowing this from my own experience, I continue to press that substantial factor should be accepted and not included in the eventual special verdict form. In making this assertion, I continually point to my client’s right to recover the cost to prove the same, under CCP §2033.420, if they refuse.***
To read the rest of Rosen's chapter, gain numerous insights on other issues, and get access to several professionally illustrated chapters from two practicing radiologists on key medical issues and anatomy, order your copy of Robert Simon's Trying Disc Injury Cases.
with Peter Lowry, MD, and Orlando Micheli, MD, and contributions from Steve Rosen. Foreword by Nicholas Rowley.
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*Recently, while representing a plaintiff in a bicycle crash case, I had a defense attorney try to sell me on a trial continuance, sixty days before trial, by saying that my side wasn’t ready for trial either. She noted that I hadn’t deposed her defendant driver yet and had only issued a very early round of discovery. She asserted that it was my burden of proof to meet and that I, basically, hadn’t done my job during discovery—on a case that she slept on for two years. My response was very simple; I asserted that I had all the information I needed to try the case before ever filing the complaint, that I knew what her driver was going to say, and that everything I still hoped to accomplish could easily be completed in a few weeks. After we got off the phone, she called me back a few hours later and paid our demand.
**The opposite is also true: if the defense knows the medical issues in your case better than you, then you have already lost.
***Again, research equivalents to this in your state.