Verdicts Involving Arthritis
Jury Verdict Research reports this week that the median jury award over the past 10 years, in personal injury cases involving arthritis injuries, is $38,867.00.
This study involved personal injury verdicts where the victim’s primary injury was inflamed, painful, and/or weak joints or muscles. The study underscored what personal injury lawyers around the country have long known about fibromyalgia cases: juries struggle with them. This is borne out by the numbers - the median jury award of what we would call “pure” arthritis cases is $121,538.00; the median fibromyalgia jury award is approximately $23,000.00.
Insurance adjusters love to ignore Maryland law that provides a recovery for exacerbations of preexisting injuries. To the extent that they acknowledge the law, they bundle all of the injury victim’s problems and drop them on the doorstep of the original injury.
Many personal injury lawyers in Maryland run from taking preexisting injury cases - particularly when the prior injury is serious - because they fear they will be unable to apportion the harm. If there are two or more causes of an injury, and indivisibility is not apparent, a Maryland plaintiff has to show either (1) the harm is not divisible, or (2) the harm was produced by both the preexisting cause and the new cause. Clearly, in some cases this is an impossible hurdle but, in most accident or medical malpractice cases this task is very doable when lawyers take the time and money to get the appropriate medical opinions before accepting or rejecting the case.
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Comments
From the defense perspective, these cases are practically impossible to boot on motion even if plaintiff can't apportion. So the defendant is facing a trial. True, prior injury cases are tough for a plaintiff, but not a sure win for defendants either. Most plaintiffs' counsel take "pains" to distinguish the current injury from the prior injury. Except, of course, when a plaintiff outright denies a prior injury that is the same as the present injury. Remarkably, some do and I have to give their counsel the benefit of the doubt that he/she, too, was lied to. Why not do one's own due diligence on prior injuries before filing suit?
When faced with a case like this, I like to see some documentation of occasional complaints subsequent to the first injury. It isn't always there because 1) there aren't any continuing complaints, or 2) most people learn to "live" with some discomfort and don't complain anymore -- at least until they have someone new to blame for the condition.
I've had only one case where a plaintiff claimed an exacerbation of exactly the same prior back injury. The plaintiff's examination show no objective change whatsoever, and we were left with plaintiff's testimony that there was more pain, more limitation than before. Even her expert couldn't identify any new limitation although he credited, as he had to, her claim that she was more symptomatic than before, and that she wasn't as active as before. There was no record of continuing complaints subsequent to the first injury, but my guess was that this plaintiff -- for economic reasons -- was not likely to go to a doctor each time she felt a pain. The outcome, in federal court in Baltimore, was a very modest recovery compared to the complaints and medical bills.
Posted by: Tony | September 13, 2007 4:42 PM
Okay, Ron. But you know the door swings both ways. Plaintiffs' attorneys will take serious prior injuries and "bundle" those into the subsequent accident, sometimes in a way that goes way past ridiculous.
Posted by: Larry McGinnis | September 14, 2007 9:19 AM