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Latent Injury Trial Strategies

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By Amy Singer, Ph.D., Diana Greninger and Kemberlee Bonnet

Automobile collisions often involve latent onset symptoms that manifest weeks, months, even years following a collision. Causation of latent onset symptoms is often difficult for the plaintiff to prove. It is tricky to time a lawsuit just right. We recently consulted on a case where the plaintiff decided to sue for injuries that emerged as a result of a collision that occurred over five years prior. (Florida has since changed the law and the person must be treated within 14 days of the accident in order to file).

In such cases, we find that jurors can be quite suspicious of those injuries that are not visible to the naked eye, let alone manifest years following a collision. Those jurors may tend to have a more cynical attitude toward the plaintiff, with the conjecture that the plaintiff is looking for easy compensation or that they had pre-existing problems that are unrelated to the collision. How does one connect the dots in proving causation? We offer three topics, along with problems and solutions that pertain to this issue.

Attitudes
A major problem in latent injury auto cases is jurors’ “gold digging” perceptions of the plaintiff. These jurors tend to assume that the plaintiff has poor health problems now and is aiming to receive compensation from a previous collision in order to cover their current medical expenses. Attitudes are highly influential in processing information. A strategy to successfully change an attitude to the plaintiff’s favor is to convert the jurors into collaborators. For example, an attorney could say to the jury, “We agree that the plaintiff had a pre-existing condition, so let’s see if we can get into agreement that the severity of her symptoms increased as a result of being shaken by the impact of the collision.” Then incorporate the introduction of new information. “Our experts will teach us that headaches are a condition that run in families, however, people in automobile collisions are prone to having repeating headaches after a collision.”

Abilities vs. Disabilities
Another major problem in latent injury auto cases is that the plaintiff’s injury is not visible to the naked eye. Often the plaintiff’s attorney demonstrates the injury by telling the jury what the plaintiff can no longer do, e.g. “cannot do the things she used to do.” On the other hand, defendants often try to get surveillance films to show the jury what the plaintiff can do, on a good day. It is important for the plaintiff to explain that surveillance films are a lot like a garden; When a garden is neglected, it is ruined and only weeds are able to grow. Every now and again a flower grows. A surveillance film often shows that flower and defendants try to pass it off as a bouquet. A different approach for plaintiffs in cases involving unseen injuries is to focus on what the plaintiff can do on a on regular days, as opposed to just on good days shown by defendant. This allows the jury to decide what she or he cannot do. You guide them there, but let them come to their own conclusions.

Experts
It is key to have the plaintiff’s treating doctor, the one who has been with the patient the longest and knows the plaintiff best, testify. The problem is that the defendant might present information that influences jurors to think that the doctor has an interest in the outcome of the case. A solution to this is getting a skilled expert in medical journal literature “mining,” who really understands the concepts, terms and objective medical science that substantially supports the plaintiff’s claims and increases the strength of your medical expert’s testimony. A medical expert witness is important, but in some cases, might not be sufficient. Juror impact can be created, for example, by a consultant engineer to describe that the force of impact on the plaintiff’s body was equivalent to falling off a cliff X feet high or the equivalent to falling out of the window of the X story of the empire state building. This way, your medical expert’s testimony is validated and the jury can connect the severity of the impact to the injured plaintiff.

Conclusion
There is a call for action in the development of techniques to persuade jurors to believe that latent injuries are caused by a prior collision. Future research might uncover more factors that need to be considered when developing a trial strategy. Being armed with more ways to persuade allows for more effective ways to provide the injured party the compensation that they deserve. Please join the conversation and give us tips on how you handle this problem.

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