I would like your thoughts on some of the strategy issues in this case.

Thanks,

amy

 Plaintiff atty can ask about permanent injury

Plaintiff has soft tissue injuries with radicular pain by his doctors and normal examination, full rom by defendant’s dr – just alleged complaints of occasional pain on excess movements so no impairment which defense dr translates to no permanent injury

 

Law

 

Judge gives no definition of permanent injury – it is whatever the jurors want to believe

 

The instruction is just does the Plaintiff have a permanent injury within with a reasonable degree of medical probability

 

The reason it is difficult  for the plaintiff to win these cases is because without additional instructions most jurors believe that by their own definition of what a permanent injury means – they equate the words with being permanently disabled and certainly expect to see someone with objective findings or visible injuries

 

The defense contentions are :

 

Plaintiff  is a 30 yr old manager at macy’s involved in a rear end collision with a good impact

 

Plaintiff said he was ok at the scene but later felt pain – (he was shaken up and started to feel it several hours later)

 

Plaintiff went to an attorney who gave him some names of doctors in the area – he chose one

 

He has prior accidents – records are not available because it was a long time ago

Major injury with grafting when he was 6.

 

 

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 Plaintiff attorney's strategy:

 

I would have the treating doctor explain that there is difference between impairment and permanent injury – though he the doctor gives an impairment rating that is more significant and different than just a permanent injury

 

The doctor would say that permanent injury in his mind is – did the plaintiff sustain an injury in the accident – if yes does he have any residual complaints or problems in which he did not recover 100% even if it is ½% than by definition he would have a permanent injury

 

Normally on voir dire plaintiff's atty asks jurors what they think about pain and suffering, what their definition of permanent injury is etc

 

 

 

 

 Trying to accomplish  two things : one is to actually challenge for cause a juror

who believes that unless someone has objective signs of injury they would lean not to find permanent injury

 

The problem is that since there is no legal definition of permanent injury – Pl. atty can’t get the juror to say he won’t follow the law because there is no instruction on the definition

 

Eg:  if the law said – a  permanent injury can be considered pain or subjective complaints and a juror said I can not follow it – however there is no definition of permanent injury

 

 

 

Second the majority of jurors would probably say they need objective evidence

And the judge is not going to go through several panels of jurors on a soft tissue case

 

Third the defense attorney would likely say pl. atty was pre trying the case trying to get a favorable response

 

The fairness question is this  -   if a juror tells me before hearing any evidence that

If there are no objective signs of injury or a permanent injury means someone is physically disabled  - the case is lost with that juror – and it will not make a difference what plaintiff's doctors say because of his belief system

 

 

Any thoughts of what I can ask to remove jurors for cause who in voir dire admit they lean to finding no permanency unless the person is physically disabled or there are objective signs of injury?

 

any thoughts?

thanks,

Amy