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PROVING A MIST* CAUSATION
*Minor Impact
Soft Tissue
 The
Mind Of A Trial Lawyer:
I feel the most important first step in proving
a MIST case starts with the mindset of the trial
lawyer. You must emanate confidence, or the jury
won’t believe you. This was once difficult for
me, but I kept seeing injured clients complain
with little car damage and felt I owed it to
them to learn more and more about the subject,
so I did.
I began to investigate this issue and found a
few clues to first prove to me that
people do get hurt without visible auto damage.
Not all, but many do get hurt.
I suggest viewing Dr. Art Croft’s crash video,
Man & Machine. You’ll see people violently
thrashed around inside a car during reliable
crash testing, without
any bumper damage. Also read his
book called Whiplash Injuries. It’s stocked full
of helpful information, like anatomy discussions
and all the scientific studies you need. It’s a
practical and usefully authority.
If that doesn’t convince you, then view up close
the anatomy books to visualize how delicately we
are built. Look at the veins, the ligaments.
This combined with scientific and biomechanical
principles like injury-causing mechanisms (risk
factors, torsion, flexion extension) further
convinced me. Bringing science into the picture
was enlightening. Then it became clear to me why
people get hurt and stay hurt in these auto
accident cases even though their injuries don’t
show up on x-rays. Pain doesn’t show up on
x-rays either but people still hurt.
The Legal Test – A Substantial Factor
(3.76 Baji):
“. . . a cause of injury is something
that is a substantial factor in brining about an
injury.”
The use notes say a substantial factor is
more than a trivial
slight or negligible or
theoretical factor in producing a particular
result.
A second relevant jury instruction that goes
hand in glove with the Substantial Factor
Instruction is the Preponderance Of Evidence
Instruction (2.60 Baji).
“. . . more convincing force than
opposed to it.”
Here, you can argue these instructions many
different ways. For example you can argue your
evidence need only by law to be slightly more
persuasive to win. By example, you might argue
that in a defamation suit, you can either
believe Carol Burnett or The National Enquirer,
implying a reasonable person versus the big
corporation.
Medical Evidence:
I’m biased in favor of scientific and medical evidence.
Crash testing is convincing, but medical
evidence drives the case past the legal
causation goal line into a plaintiff’s verdict.
So I’ve searched for the magic answer to prove
causation but keep returning to using
traditional medical evidence to prove causation.
. . not property damage photos. As Carl
Berkovitz, Esq. says, “What doctor ever used
photos to diagnose your injury.” It doesn’t make
sense. It’s the medical evidence that you have
control of and I think it should be used more
aggressively. I know it’s not easy to remain
secure when the defense is building its war
chest against you, but the best defense
is a good offense and that’s medical
evidence.
Injury causation is determined in a
clinical setting by medical providers
because causation is ultimately
a clinical decision. This
medical evidence then trumps the biomechanist
because he cannot talk about diagnosing injuries
sustained in a motor vehicle accident. Medical
providers do not rely on biomechanists (or
photos of damage) in a clinical setting to
determine causation of injuries; besides your
medical expert has a better basis for
determining causation (the length of treatment,
etc). For example, the medical expert can talk
about - lesions, torn, swollen, and strained
ligaments, cervical limitation of range of
motion, the bleeding ligament when torn,
arthritis, scar tissue that forms like long
pieces of collagen fabric that is matted and
cross-fibered to heal itself, as opposed to long
fluid strands of spaghetti-like ligaments that
function well. Collagen is dense and a firm
rubbery material – it does not stretch.
Consequently it decreases range of motion. This
creates a greater chance of re-injury.
This is a permanent injury.
Consequently, the plaintiff is more susceptible
to re-injury and other damages.
So the medical evidence discussed below can
correlate the scarring and permanent injury. I
think at that point, bringing in the life
expectancy jury instructions to show permanent
scarring to establish damages is helpful. This
equates into bigger damages. Most doctors find
that medical records are enough to draw this
correlation. Most doctors have found that
injuries vary from person to person. There is no
magic threshold of injury in the general
population Coroners often determine cause of
death by bleeding and damage to tissue and
muscles. For example, by examining cadavers,
(Dr. Harry Bonnell has examined over 5,500),
conducted autopsies and he looks for scar tissue
and pre-existing conditions. So medical
testimony is helpful proving causation. Medical
evidence witnesses can testify to the mechanics
of any injury. They can explain the cause of the
injury (tension/compression shear/torsion) all
that occur within 1/100 of a second. Another
example that Carl Berkovitz uses is to imagine a
bowling ball on a stick and how unstable it is
when whipped about, or a snapping wrist.
Further, discuss the healing process to prove a
long-term injury and use the life expectancy
tables as well as the studies in Dr. Croft’s
book that show the healing process and permanent
injury. This helps establish the large long-term
damages. The healing process takes on three
different stages. Scientific studies support
long-term injuries. The best chart on this
subject that I have seen is Carl Berkovitz’s PI
Poster System chart
- The acute stage
- The repair stage
- The remodeling state -
which is the scar formation of tissue state.
Other helpful objective medical evidence are x-rays projected
via an Elmo that show a reversed cervical curve.
The doctor can actually draw on an Elmo and show
what a normal curve looks like. This is very
persuasive on the big screen in court with a
laser pointer.
Physical examination tests by a doctor also
determine spasms, limitations of movement and
range of motion and rule out malingering.
Remember he is in the better position to
determine credibility since he’s seen the client
over a long period of time.
I suggest that your expert act as a teacher and
actually draw a diagram for the jury, for
example the long stringy anatomy of your
ligaments as apposed to the matting of fabric
with collagen formation. Further, your expert
can use other medical illustrations as well
which are persuasive in court. Some experts even
engage in a live demonstration by rotating their
heads and then trying to flex their necks to
show the twisted neck has a high risk factor and
limited range of motion when struck. I do it in
opening statement. In other words, the threshold
of the force of a neck injury or sustaining an
injury in this condition is lower.
Voir Dire:
I suggest that you ask the jurors generally “how
they feel about certain issues”.
Usually about five issues are all you are going
to need on voir dire with the limited time
constraints nowadays. When you talk about the
issues, you should bounce quickly around in the
box and ask the different jurors how the feel
about the offered opinions by other jurors.
Never argue. You might even consider
self-disclosing examples or experiences you’ve
had in the past to help make a point. Always go
toward bias or to intelligently exercise your
six preemptive challenges. Some questions might
be:
- If you can’t see in an x-ray a broken
bone, can you make room for the possibility
that there is an injury?
- If you can’t see an injury on an x-ray
does that mean it’s not true?
- You may consider admitting skepticism
for these types of cases, but ask if they
would give us the full value if we proved
that in fact it was true as required by law.
- Ask would it be just as unfair to
present a frivolous defense as it is a
frivolous lawsuit in the context of them
following the law and returning a
plaintiff’s verdict.
Those are a few suggestions on voir dire, and
I want to write more on the subject.
Motions In Limine:
Motions in Limine are great pre-trial tools and
save the court time and your client’s
creditability. You may want to defend against
the no damage photos, bio-testimony on medical
causation, old injuries, and dirty tricks (see
my article). There is more in the attached CD.
Alternatively, I drafted a motion in limine to
introduce Dr. Croft’s crash video to disprove
the no damage – no injury impact. It was
successful and I was allowed to play the video
on a live big screen in trial showing crash
testing that was substantially similar to our
collision. Consider having your chiropractor or
medical expert qualify to lay the biomechanical
foundation for movement as they have great
experience in this area. (See Carl Berkovitz’s
PI Poster System for the chiropractor’s
extensive experience in a variety of related
areas, including biomechanics.)
Demonstrative Evidence:
You might consider Netter’s medical
illustrations to show how delicately our body is
built. The ligaments, muscles, and veins are
complex and the slightest impact by a
4,000-pound car can certainly short-circuit it.
Directed Verdict:
Once the evidence is in, you may consider a
directed verdict on causation and medical bills.
I won one today. Now the judge will direct the
jury that these are bills must be paid for the
injury but it’s within the providence of the
jury – exactly how bad was the injury. Some
lawyers are now moving for directed verdict,
which destroys the earlier “no causation”
defense opening statement. See that motion on
the CD. The reasonableness and need for medical
treatment can also be directed. Use this or any
stipulation as to any bodily injury – medical
damages, (especially in a DME report although
limited) to prove, on closing, this is about
money, not causation or “no damage” photos.
Refocus the issues. It’s time for the defense to
take responsibility and the jury should be
awarding full damages and equating it to full
justice.
Closing:
Consider Gerry Spence, Esq.’s closing where he
described that the skyscraper was hit by a
truck, but the building sustained limited or no
exterior damage. Later the building went haywire
inside; the elevator didn’t work right, the
lights went on and off, etc. however the owner
asked for full value to repair it. This is
similar to a connective tissue case, or consider
role reversing as your client and discussing
what you’ve been through to show your injuries.
Recently consumer attorney Robert Francavilla,
in closing, I understand, discussed there is no
such jury instruction if: an x-ray is negative
or if the injury is not on an x-ray and it is
subjective there is no injury – that’s not the
law. There is no jury instruction that says no
property damage does not mean you’re not hurt.
That’s not the law. The insurance defense
attorney says this because they are afraid
you’re going to give us lots of money. They had
to come up with something. So why are we here
today. My client and I have been truthful to you
– what else can we have done?
These are a few ideas and I hope they are
helpful.
References:
- Litigating Minor Impact Soft Tissue
Cases (Karen K. Koehler, Michael Freeman)
ATLA Press; West Group 1-800-328-4880
- Dr. Croft; 1-800-423-9860
- Carl Berkovitz, Esq.
- Dr. Harry Bonnell: http://www.4n6pathology.com
- Evidence Code 721 (b) 2-3; read studies
into evidence
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