“Can Lawyers Win Pre-Existing Injury Lawsuits?”

Jeffrey Feldman tells Michigan Lawyers Weekly how he and Leonard Koltonow handled the pre-existing injuries defense

How does an attorney overcome a common defense argument regarding a client’s pre-existing injuries and medical conditions? By focusing on how the client’s life was changed from before a car crash to after it. That was Michigan Auto Law attorney Jeffrey H. Feldman’s strategy in a third-party auto negligence claim that settled for $1,925,000 Macomb County.

In an April 17, 2017, Michigan Lawyers Weekly article, “Rear-end crash settles for $1.9M after case evaluation,” Jeff discussed the course of litigation he and fellow Michigan Auto Law attorney Leonard Koltonow took.

We’re pleased that Michigan Lawyers Weekly gave this case the attention it deserves. It spotlights a common defense argument that we as auto accident attorneys see too often, when insurance companies want a “discount” or even a “free pass” because they hurt someone who was not in perfect health before a car accident.

I’ll tell you a little secret: none of us are in perfect health. If a skilled insurance defense attorney combs through your medical records long enough, or hires the right so-called independent medical examiner doctor, they can always claim some aspect of your life was pre-existing. It’s part of the game to avoid responsibility that we as auto lawyers see in how these cases are defended. In this article, Jeff Feldman gives practical ways plaintiff attorneys can overcome what Jeff calls a common “a complicated medical picture.”

A rebuttal to a common defense argument regarding pre-existing injuries to a car crash victim

In Bolotta v. Rizzo Environmental Services Inc., plaintiff Richard Bolotta was injured when a garbage truck hit his Ford F-150. The defense argued that Bolotta’s post-crash MRIs only showed degenerative differences, and that his post-accident surgeries were the result of his pre-existing neck, back and spinal injuries.

As I had characterized it previously, this is the kind of case where the defense sticks to the argument that the crash didn’t cause serious injury — and if it did, the plaintiff’s work life was going to end soon anyway because of his pre-existing conditions.

Bolotta, who was in his early fifties, could no longer work 70-hour weeks as a steel plant machine repairman — a vocation that required very physical work such as lifting bending, stooping, carrying and climbing.

And when the defense argued that Bolotta’s ability to work was hindered by pre-crash injuries, Feldman and Koltonow countered with a simple fact: Bolotta was driving home from work when the crash occurred. Feldman told Michigan Lawyers Weekly:

“That was something we were able to utilize to our advantage.”

Bolotta clearly crossed the third-party No-Fault threshold of serious impairment of body function. The injuries and surgeries changed his life from before this crash — including his being forced to give up bowling, a pastime for which he maintained a 212 average and claimed multiple 300 games. He also had depression, anxiety, chronic pain, post-traumatic stress and sleep issues.

The ‘Inability to apportion between pre-existing and current injuries’

Jeff also told Michigan Lawyers Weekly of the common jury instructions that states a defendant must take the plaintiff as he or she is found. Further:

“[I]f there is an inability to apportion between pre-existing and current injuries, all should be attributed to the recent incident.”

This, combined with a thorough understanding of the pathology of pre-existing degenerative disc disease, will overcome defense arguments that surgeries and disabilities post-accident are only related to pre-existing conditions and not the collision at issue.

Speaking of related, Feldman also told Michigan Lawyers Weekly that he got involved in the case based on a recommendation from a former client, the mother of a 5-year-old girl who was killed when electrocuted by a downed power line. A Wayne County jury in 1983 awarded the mother $6.1 million in her lawsuit against Detroit Edison.

The child’s mother is now married to Bolotta’s brother and recommended that Feldman represent her brother-in-law.

And that’s another good lesson for attorneys: if you treat your clients well, they’ll remember you.

Source : http://www.jdsupra.com/legalnews/can-lawyers-win-pre-existing-injury-99116/

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