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Think a car accident victim with preexisting injuries won’t have a case? Think again.

January 17, 2017 by Steven M. Gursten

Attorney Jeffrey Feldman secures $1.925 million settlement for victim of truck accident with preexisting neck, back and spinal injuries

Attorney Jeffrey Feldman
Attorney Jeffrey Feldman

In the last few weeks I’ve written about several multi-million verdicts and settlements that our attorneys secured for our clients in 2016, always with a lesson for Michigan lawyers and auto accident victims to use if they have a similar case. These lessons involve what most attorneys would simply call “challenging cases.” Whether an elderly auto accident victim or for an older woman with  “just a simple broken leg,” defense lawyers almost always attempt to minimize injuries and avoid as much responsibility as possible for the harms and losses they cause.

We hear these arguments so often, whether at case evaluation, depositions, arbitrations or in court, that many Michigan injury lawyers start to believe them and accept them as true. This reduces the award size at case evaluation and often results in less pain and suffering compensation for their clients.

But they aren’t true.

The same can most definitely be said for most of the defense arguments that car accident victims with preexisting injuries should recover less legal compensation for their subsequent injuries.

When a person with a preexisting injury, medical condition or surgery is involved in a bad car accident, defense lawyers focus on the preexisting medical conditions and injuries so they can avoid taking responsibility for the crash at hand. This defense argument was made in our case involving a truck accident victim with previous spinal surgeries on his neck and lower back from a serious preexisting degenerative disease and prior work injuries.

But attorney Jeffrey Feldman was able to turn this very common defense on its head — again.

Here are the details of the case, Bolotta v. Rizzo Environmental Services, Inc.:

In June of 2015, our client, Richard Bolotta, was rear-ended by a garbage truck while he was driving his F-150 pickup truck home from his job as a machine repairman at a steel plant in Warren, a suburb of Macomb County, Michigan. Mr. Bolotta then drove his vehicle to Beaumont Hospital in Troy for emergency care, as he had experienced neck, shoulder and lower back pain that developed after discharge from the ER.

The defendant driver lied to the investigating police officer at the scene, stating that the truck accident was caused because his “brakes faded out.” In fact, the brakes were verified by the Rizzo refuse truck mechanics post-crash to be in good working order, and the garbage truck driver was fired soon after.

As a result, the defense attorneys withdrew from representing the defendant driver, and admitted negligence for the truck accident, conceding that “the issues remaining in dispute are proximate causation of any injury and serious impairment of body function.”

Mr. Bolotta was left permanently disabled from employment due to the neck, back and spine injuries sustained in this crash, which called for cervical and lumbar surgeries performed on September 1, 2015 and February 4, 2016, respectively.  He unquestionably crossed the third-party No Fault threshold of serious impairment of body function. He also became disabled and seriously impaired due to psychiatric sequelae of the injuries, surgeries and changes in his life from before this crash, resulting in depression, anxiety, chronic pain, post-traumatic stress and sleep issues.

Therefore, Jeff claimed excess work loss in addition to the tort damages Mr. Bolotta was entitled.

To be frank, our client had what many Michigan injury attorneys would call a “bad spine.” He had previous spinal surgeries on his neck and lower back, stemming from his degenerative disc disease and years of strenuous work, yielding several work-related injuries.

At the time of his truck accident, our client was in his early fifties. Yet the defense lawyers argued that the forces of the truck accident were not sufficient to cause significant injury and that Mr. Bolotta’s work life was going to end soon anyway because of his preexisting back and neck conditions. In other words, the defense lawyers argued “we didn’t break it, but if you find we did break it, it wasn’t worth much because it was going to break soon anyways.”

How many Michigan lawyers would reduce the amount of a pain and suffering settlement from what they thought the case is worth because of this defense argument?

How many case evaluation panels or arbitration panels would reduce the award size because of this misleading argument?

The defense also argued that Mr. Bolotta’s post-accident surgeries were the result of his preexisting degenerative disc disease. In doing so, they hired a radiologist to support that view as well as a neurosurgeon.

Mr. Bolotta’s  job before he was hit by the truck required very physical work such as lifting bending, stooping, carrying and climbing, and the defense claimed he wouldn’t have been able to work longer, even if the crash hadn’t occurred.

You can see this common defense argument being made in nearly every case involving preexisting injuries and medical conditions.

Yet Jeffrey settled the case through mutual case evaluation acceptance for $1.925 million despite our client’s preexisting spinal condition.

The takeaway for attorneys: By understanding the pathology of preexisting degenerative disc disease and the standard jury instruction in Michigan that a defendant takes the plaintiff as you find him, as well as adequately explaining the concepts of aggravation or activation of a previously asymptomatic preexisting condition, an auto accident lawyer can successfully overcome defense arguments that surgeries and disabilities post-accident are only related to preexisting conditions and not the collision at issue.

This sometimes requires quite a bit of medical sophistication so that the defense experts can be adequately cross-examined. It requires lawyers to know the law on the “eggshell” plaintiff, and it requires strong before and after testimony showing how the plaintiff’s life has significantly changed.

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