Steve is specialized in auto accident claims, has had three of the largest auto verdicts in the last six years. He has spoken and is a member of the MTLA board. Areas of practice are auto negligence and no-fault insurance benefits.
And Steve, you’re going to talk us to us about third party litigation practical issues from the plaintiff’s perspective.
Next month I’m going to be Phoenix, and I’m going to be there with basically lawyers from all over the United States who handle trucking cases, and we’re going to lock ourselves into a room for about two days and we’re going to talk about ways to sue trucking companies and deposing safety directors and what have you. And at night, we’ll go out and we’ll have a beer. And they always pick on me because I’m from Michigan and they think Michigan law is so funny. You know, what do you mean you have no punitive damages out there? What do you mean the threshold? Bad faith law in Michigan is very limited. So they think Michigan law is just hysterical and they always have a lot of fun making fun of me. And the key point I’m trying to make, even if we did not have this threshold law, I would still try these cases exactly the same way. And I think when the republican legislator gave us the statutory definition of serious impairment, they gave plaintiff attorneys a very powerful tool to persuade jurors, and let me tell you what I mean.
The first prong, objective manifestation. I don’t think you ever want to go to trial without something demonstrative or objective so the jury can point to it and they can look at it and they know why they’re there and they know why the plaintiff is in pain. It takes it out of the realm of two lawyers arguing and competing doctors. You always want to find something objective, whether it’s an x-ray, MRI, CT, bone scan, PET, SPECT, EEG strip. You name it, there’s always something you can find that’s objective so the jury can look at it and they know. Because most jurors do want to do the right thing and they’re just so scared that they’re going to be fooled, and unfortunately because of tort reform, I think they usually think that plaintiff lawyers are the ones that are going to fool them, and we know better. But it’s very powerful to explain to the jury why we’re here.
The second point, important body function. Sonya Hamlin, who I consider one of the top juror consultants in America, says this is the key to winning plaintiff cases. You have to explain to the jury what’s normal, how it works, how it’s supported to work before you can explain to them how it’s broken. In other words, you have to explain what’s normal before they can really understand what’s abnormal. And we do a terrible job teaching our jurors why the plaintiff’s injury is important. But you know what, if you’re going to ask a jury to give you a million dollars for a back injury or a brain injury, they better understand why it’s important.
And the third thing, how it affects their ability to lead their normal life, the third prong of our statute. You know, this is what plaintiff lawyers always struggle with, isn’t it? How do you show pain? How do you make pain real? And it’s hard because pain isn’t tangible. It doesn’t mean anything. If I say the word hammer, all of you picture a hammer. If I say word pain, nothing comes to mind. Or what’s even worse, each of you might be thinking of a different thing in terms of what pain means. So how do you make pain real? You make it real by showing how the plaintiff’s life is impaired, how the pain has changed, how it’s altered, how it’s affected the plaintiff’s life between before the accident and after the accident, and the more ways you can do that, the more ways you are actually flushing out what pain is, what the injury is, and it makes the plaintiff likeable and it makes the plaintiff worthy of help when the jury understands all of the different ways that the plaintiff’s life is impaired.
Combined with the plaintiff IME, I think a very potent one/two combination that really plaintiff lawyers do not take enough advantage of is using the medical literature. You know, the supreme court has said that the factors the courts are to consider include the duration of impairment, the extent of residual impairment, the prognosis for recovery, and in these areas, the medical literature is very strong and it’s very supportive for the plaintiff part. Much of the peer-reviewed published literature really talks about the long-term consequences and sequela of very common injuries that we see every day in automobile accidents. When the supreme court said that judges are to look at the extent of residual impairment, at prognosis for recovery, you can use the published peer-reviewed literature to help you.
In traumatic brain injury, when you have a mild traumatic brain injury, you can use the published peer-reviewed literature to talk about how the plaintiff’s likelihood of getting Parkinson’s or Alzheimer’s or early-onset dementia skyrockets. You can talk about the susceptibility of future injury and reserved brain capacity. If the plaintiff has a spouse and there’s a consortium count, you can talk about the literature that shows the divorce rates which are just staggering among the traumatic brain injured. If you have a bulging disk case, Dr. Chiodo from the University of Michigan has published two articles in the past two years that actually say that a bulging disk might cause more pain than a herniated disk. If you have a bulging disk, that becomes pretty important to your case.
You know, every fracture case you have, you talk about traumatic arthritis. If you have a herniated disk, you talk about the susceptibility of the spine, about the increased pressure on the remaining spinal disk, if you have soft tissue. You know, there are probably over forty published peer-reviewed articles in important medical journals that talk about these being permanent injuries and very painful.
And just as an aside because I know we’re now talking about the resurrection of Cassidy and we’re looking at Argenta, a couple years back there was a very bright ambitious plaintiff’s attorney in Florida, who after about I think a ten-year fight going back and forth in the court of appeals, back down, up, down, actually was able to show through the new literature out there that thermography is valid and scientific, and I think that attorney got almost a million dollars in attorney fees doing it, so maybe one of you will take up thermography again; we’ll see.
I personally have a group of about twenty or thirty doctors and lawyers and we just e-mail each other back and forth whenever we see an article that we think is very helpful. And really, it’s very easy to do. If you have an hour tomorrow when you’re watching football, you get on the Internet, you get on Medsite or PubMed or any of the others, and just start putting in some of the injuries that you have and it’s amazing what you can find. If you’re like George and you’re afraid of the Internet, you can hire a medical student for twenty bucks an hour and they’ll find it for you.
But I guess the key point I want to make is this. As a plaintiff attorney, when you’re talking about the common type of injuries that a lot of us deal with day to day, the published peer-reviewed literature really is on our side and you can’t assume that the treating doctors know it or the defense doctors are going to admit it, but I think it becomes very powerful when you combine the published literature with the plaintiff IME in terms of really allowing that doctor to make some very strong opinions about the future prognosis of your client’s injuries.
Next on the outline, I talk about the importance of the PIP case, and obviously, what I’m really talking about here is some definitive period of time off work, some definitive period where they are submitting for replacement services, and I’m obviously also talking about the need for continuing medical treatment. And if you’re out there and you’re kind of scratching your head and you’re saying, you know, doesn’t Kreiner really punish those people who are really most worthy of our respect and our help as a community and society; the people who don’t stay off work unnecessarily, but might try and go back even if they’re having severe pain, or people who don’t necessarily run up unnecessary medical bills or submit replacement services unnecessarily? The answer is, Yes, clearly. I think the public policy implications of Kreiner are just horrible. And even though the supreme court has said that no one factor is dispositive, what have we seen already? Clearly, in a very ambiguous opinion of 63 pages that has very few hard, bright-line rules, judges are turning to things like time off work, we’ve seen them use the plaintiff’s lack of submittal of replacement services to throw out cases, a short duration of medical treatment to find that plaintiffs have not met the threshold, and I think that’s really unfortunately where it’s going. And there’s not much as a plaintiff attorney you can do about it except just communicate to your client, unfortunately, what Michigan law really is today and that these are things that they have to be concerned about.
I do think it highlights the importance of presuit, and what I mean by “presuit” is having someone at your firm who is making sure that the plaintiff is submitting replacement services, that the plaintiff is treating, documenting their injuries, getting diagnostic tests, that there is some period where the plaintiff is off work, and I don’t know, and we’ll find out in the next year, whether that will be three months, four months, five months, six months, if Schuette and Saad are on the panel, maybe longer, I don’t know. But I think you have to have someone really looking and analyzing these cases before you file a lawsuit because you have to make some very hard decisions.
It’s not just about helping people who are in pain and who need your help, about getting them to the right doctors. It’s about making sure these cases survive.
You know, what I tell my office is we live in a Blue Care Network world, and by that I mean, in case you don’t know, in Blue Care Network, they actually assess the primary doctors I think $400 at the end of the year for every MRI that they prescribe, you know, and these doctors are extremely reluctant to do it. And it really creates some huge challenges for us as plaintiffs in terms of how we’re going to get these people the medical treatment that they need and the testing that they need when you have primary doctors in the HAP system or Blue Care Network that are kicking and screaming to make referrals. And frankly, you know, when I’m watching Mike Morse speak on some of these cases where you now have a one-year statute, for example, Rory, how the heck can you actually — how do you even know what some of these injuries are when you have clients in some of these managed care systems and these doctors are just doing everything they can not to refer out to specialists or for MRIs? Or you know, try and get a HAP doctor to refer someone out to a neurologist when they’re have headaches. They just won’t do it.
So, you know, for us as plaintiff attorneys, it means you have to get involved. It means you have to be talking to the treating doctors. You have to talk to them about their treatment. You have to talk to them about their referrals or you make your own.
George mentioned footnote 17 on page 28. I think that is, frankly, the most dangerous part of Kreiner for plaintiff attorneys. That is the area where we’re talking about the self-imposed restrictions versus the physician-imposed restrictions. And, you know, when I read that — you always want to have respect for the institution and for the robe even if you might not like the people who wear it, so, you know, I just — it’s just fictional. It’s make believe. There’s just no basis for reality to it, and frankly, I think it’s the second most bewildering thing I’ve seen this court do. The first, by the way, was in Lugo where the same justice who authored Kreiner happened to mention that someone who trips in a pothole has a very minimal risk of harm or injury, when coincidentally, the CDC says that’s actually the greatest cause of death of the elderly in America, and in that one sentence, seemed to wipe out about sixty years of human factor science in Michigan, so I guess you don’t want to be blind or old in Michigan right now.
When I’ve looked at this footnote 17 that talks about self-imposed restrictions, and you just have to wonder if these justices have ever practiced a day of personal injury in their life. Maybe if you are a sitting justice on the supreme court and you have the best medical insurance and the best doctors, they will patiently sit down with you and make a long list of restrictions of things you cannot do. Most of my clients, on the other hand, seem to wait at least an hour just to get in to talk to their doctors, and if they’re lucky, they’re able to ask maybe one question while the doctor is already dictating their chart note and walking out of the room. And what do they always say about restrictions? What do they always say? If it causes pain, don’t do it.
So we have real life and then we have footnote 17, and it’s going to cause, I think, a lot of problems for plaintiff attorneys. So what do you do about it? Hopefully you explain it to the judge the way I have to you, but I think another solution might be looking at vocational testing and functional capacity testing.
I don’t have a lot of time. I did a whole seminar on this for the MTLA about four or five years ago, but basically in a nutshell, it’s really amazing what they can do. They can take what may seem to be very minor injuries that may be very hard to show impairment and by using some very well-supported tests, and these are tests, by the way, from the U.S. government, from Social Security Disability testing on low back pain, from the American Medical Association on pain and impairment. And every lawyer out there who does this kind of work, I think should have the AMA guidelines for the evaluation of permanent impairment which is in its fifth edition, came out in the year 2000, and just commit to memory pages 373, 374, and 400.
You know, what they can do is they can literally take almost any injury, and by using very well-supported tests, they can come up with a long list of forty, fifty, sixty things that your plaintiff either cannot do at all or can only do with the most extreme pain. And if you’re a plaintiff attorney, what do you do with that list then? If he’s a certified vocational examiner, I personally think that list can stand on its own, or consider taking that and sending that to the treating doctor or to the plaintiff IME to see if they concur, and if so, you now have a forty to sixty numbered list of physician-imposed restrictions and I think that’s one way that we might be able to get around footnote 17.
I want to talk for a moment about residual impairments. Many, probably most injuries have residual impairments; we just have to figure out what they are. And when the supreme court has made this one of the factors, what they’ve actually allowed us to do is explore a way that we can really increase the value of these underlying cases.
You know, this is where creative lawyering comes in. And in my outline I talk very brief about a couple different ideas. I talk about the long-term effect of taking a lot of the medications that our clients take every day, about the toxicity of certain medications. And by the way, you don’t need a psychopharmacologist to do this, which I thought you did for about the first five years of my practice. You know, all you need is a psychiatrist or a neurologist and the PDR and it’s right in there. They can talk about the long-term effect on someone’s health from taking these kind of medications.
Pain counselors. Again, this is another thing I was looking for for years in Michigan before I realized they really don’t exist here, but a pain counselor can be anyone. It could be a therapist. It could be a social worker. And let me tell you something, from trying these cases, I think these are some of the most compelling witnesses that a plaintiff can put on, because it’s not, thank god, another lawyer or another talking head doctor on the TV. It’s a human-being that they can relate with, usually a social worker, who actually cares about your plaintiff and will really sit down and explain to the jury the day-to-day effect and the impact that these injuries have on a person’s ability to function.
I tried a case in May where I used life activity factors. Hopefully, you can all see this. It is a very visually impactful way of showing how someone’s life has changed between before the injury and after the injury. I think it’s extremely compelling and I think you can use it in motions for summary disposition.
The late, great Stan Schwartz once said they can literally see how the pain bleeds the color from my client’s life. And I could never say it that well, but it’s a wonderful way to show impairment and show how the plaintiff’s life has been impaired and affected for trial.
What I personally do is I then use the lay witnesses for each different color which represents different areas of their life, be it work, recreation, hobbies, home life, church, what have you, and we just go through it and I’m writing it during the course of trial as these people are testifying, and by the time we’re done for each color, I’ve get a long list of five, six, ten things that show how the plaintiff’s life is different now than it was before.
Another idea, again, turn to the medical literature which is wonderful when it talks about the long-term consequences of pain. Talk about the fatigue component. Any injury that causes severe pain over a period of time is going to cause fatigue. Talk about the global effect it has on someone’s body functioning, about the changes in someone’s emotional functioning. These are not new concepts. These are very well supported in the medical literature. Go back to the McGill study from 1974 onward.
Let me say a quick word on economic. Again, there’s no threshold and people are still making the same lousy twenty bucks a day for replacement services that they’ve been making for a long time. I think with certain judges, it will be a factor in how they may decide motions for summary disposition when you make clear to that judge that no matter how they rule, your case is still going to be on their docket, it’s going to take just as long to try your case, and you have just as many witnesses because you have an excess economic claim in terms of the excess, over their replacement services of $20 a day that you’ve brought for excess household services.
My economists actually show these are worth about $48 a day now calculated with inflation. Now, I’ve seen anywhere from $40 to $60. Again, an economic claim for time off work over the three years. But these are claims that have no threshold and they will stay on the judge’s docket.
One thing that’s really interesting when we’re talking about the course and trajectory of someone’s normal life, I have not yet seen anything regarding being off work because of a disability, but there are some really interesting studies about people who are not able to work because they were laid off, where there are now studies that say that being laid off for three, four, five months can permanently change the course and trajectory of someone’s economic earnings over the course of their lifetime.