Trial Magazine

Trial lawyers use a litany of analogies, metaphors, and techniques to help jurors understand the impact of our clients’ injuries. However, those arguments have weight only if the jury concludes the injury is permanent, which can be challenging when presented with conflicting expert opinions. Concerned about how to deal with that challenge, I sought an alternative approach. In a connective (soft) tissue injury case I handled in which my client sustained lower back injuries in a motor vehicle crash, I realized the key was to use the scientific literature effectively.

You need to bring relevant literature to your experts’ attention and prepare an outline of the key findings in that literature. Also be ready to expose defendants’ disingenuous experts via this objective, scientific evidence. Here are some tips for accomplishing this.

Work With Your Experts

Many lawyers believe that sharing literature with an expert is a bad idea. It can discredit the expert and make the expert appear to be a mouthpiece for the lawyer. But these issues can be addressed through careful framing of your witness preparation.

For example, I logged over 80 hours in my literature review on soft tissue injury permanency. At an orthopedic expert fee of $300 per hour, the expert fees for this research would cost over $20,000. That is not a practical cost to incur for most
connective tissue cases.

To overcome these concerns, first have a frank conversation with your expert. Ask the following:

• Doctor, your fee schedule notes your fee of $300 per hour, correct?
• If I asked you to do a literature review, in fairness to your time, you would charge $300 per hour for that research, correct?
• Did you know that case costs, including expert costs, are paid from the victim’s verdict or settlement?
• In light of all that, and to help limit the victim’s expenses, would you please allow me to research and share some medical journal articles with you?
• If you find them helpful, you can use them, and if you find them unreliable, you can disregard them—is that fair?

I’ve been using this approach for years, and I’ve never had an expert decline the offer. It also helps insulate the expert from cross-examination with the strongest shield possible—the truth.

On cross, the doctor can explain that it would have cost the plaintiff over $20,000 to pay the doctor to conduct that research, so they allowed someone else to do the initial, time-intensive legwork. The doctor can further explain that, regardless of who found the medical journals, it doesn’t change the scientific evidence in those publications. This exposes the defense for digressing into a side issue of who found the evidence and running from the hard science of what that evidence says.

Do Your Research

Do not get lost in the science when presenting literature evidence to a jury. Doing so will belabor the process and take the focus away from your client’s symptoms and injuries. I find the great majority of the literature I need for free on Google Scholar (https://scholar.google.com).¹ If you hit a paywall, decide based on the abstract of the publication whether it is worth purchasing.

Create a summary of key points and takeaways after your review is complete. For example, as a general rule, people with connective tissue injuries will be permanently symptomatic nearly half the time²; those with preexisting spinal degeneration are more susceptible to permanent connective tissue injuries³; and alleged litigation-related malingering is not an explanation for ongoing connective tissue symptoms.⁴

The chart below is a summary of the literature I collected that supports the conclusion that connective tissue injuries are permanent approximately half the time.

This is a useful chart to make for yourself, but consider asking the expert to create a summary table of the literature in this fashion during their testimony. It will make an easy-to-understand demonstrative that you can use later during closing argument to refresh jurors’ memories regarding evidence they heard on the issues in your literature.

Remember that many jurors are not familiar with scientific publications, so it may be worthwhile to briefly highlight that your sources are not cherry-picked, fringe publications. Emphasize that your sources are some of the most renowned, highly authoritative, and peer-reviewed publications.¹²

Literature’s ability to withstand the test of time is a testament to its merit, not its vulnerability.

And don’t hesitate to present literature from the 1970s, 1980s, and 1990s if it is still valid. Older literature on the dangers of smoking, drinking during a pregnancy, and lead-paint exposure to minors, for example, is still worthwhile.¹³ Literature’s ability to withstand the test of time is a testament to its merit, not its vulnerability. Be prepared to frame this accordingly—I’ve encountered defense experts who have dismissed literature as dated, despite them offering zero literature in rebuttal.

Offensive Use of the Literature

To help orient jurors, try to conduct direct examination of experts in chapters. For example, when covering the topic of permanency of connective tissue injuries, use a posterboard with the words “Permanency: Science Is on Your Side?” at the top. Then, use that exhibit during the doctor’s direct examination, the defense expert’s cross-examination, and closing argument.

Try this simple approach that parrots the IRAC (issue, rule, application, conclusion) method taught in law school.

Issue. Create a giant posterboard with the heading of “Permanency: Science Is on Your Side?” Ask the medical expert an introductory question to orient the jury to the topic the doctor will address: whether motor vehicle crash-related connective tissue injuries can be permanent.

Rule. Invite the doctor to leave the witness stand and use the posterboard to write down evidence (literature) that supports the position that motor vehicle crash-related connective tissue injuries can be permanent and at a very high likelihood.

Application. Invite the doctor to explain, with the scientific literature and other traditional permanency facts as support, why and how the plaintiff’s connective tissue injury is permanent. Permanency facts include ongoing treatment, lasting residual symptoms, and two or more years having lapsed since the incident with unresolved symptoms.

Conclusion. Ask the doctor to give an unambiguous, succinct final opinion on whether your client’s injury is permanent and the likelihood (to a reasonable degree of medical certainty/probability) of the accuracy of that opinion. Be prepared to overcome objections by ensuring your expert agrees the literature is a “reliable authority.”¹⁴ To survive nuanced objections and challenges, ensure your expert becomes familiar with the literature’s author and the journal it is published in. Your expert also should be able to speak to prior experience using the literature.

The goal is to show the jury that your expert’s opinions are based on scientific truths, whereas the defense expert’s opinions lack support or are based on theoretical treatises that did not involve a real and relevant cohort study. This tips the scale of believability toward the truth.

Defensive Use of the Literature

Reframing. Rather than run from facts that may hurt your client’s case, try reframing supposed bad facts into ones that help the jury learn the truth and support the evidence. For example, defense experts often try to weaponize a personal injury plaintiff’s preexisting condition by blaming their current symptoms on that condition. In doing so, they must concede that your client had a preexisting condition. In my client’s connective tissue permanency case, for instance, defendants conceded that alleged spinal degeneration, if it existed, made my client more susceptible to being injured in the motor vehicle crash.

If your client had a preexisting condition, you are entitled to and should request the susceptibility to injury jury instruction.¹⁵ Have your expert cover this issue so you have a foundation for the instruction. Here is where your literature research can come into play.

In my client’s case, I worked with my expert to present literature showing the likely prognosis for a patient with spinal degeneration after a connective tissue injury. We presented journal articles that noted that “pre-existing degenerative changes may also worsen the prognosis”¹⁶; “if previous neck pain is not considered a confounding factor, it may act as an effect modifier for future neck pain, meaning that subjects with pre-existing neck disorder are more vulnerable”¹⁷; and “pre-existing degenerative changes in the cervical spine, no matter how slight, do appear to affect the prognosis adversely.”¹⁸

Rebut attacks on your client’s symptoms. Some defense experts, directly or indirectly, will accuse your client of malingering or exaggerating their symptoms. Some jurisdictions have case law that prohibits a direct accusation because it equates to an assessment of the plaintiff’s credibility, which is the sole province of the jury.¹⁹ Savvy defense experts dance around that law with backhanded credibility attacks on the plaintiff—for example, they may say “the plaintiff’s symptoms do not comport with his physical findings.”²⁰

Regardless of the defense expert’s approach, defense lawyers may present this attack through suggestion in their questioning and closing argument. Great resources exist that outline how to battle this defense trick.²¹ Use of scientific literature can supplement, but should not replace, those more comprehensive approaches.²²

By doing a literature search up front and working with your expert, you can show jurors the science, which will go a long way to holding the negligent tortfeasors accountable.

Reza Davani is a partner at Ketterer, Browne & Associates in Baltimore and can be reached at reza@kbaattorneys.com.

Notes

1. The views expressed in this article are the author’s and do not constitute an endorsement of any product or service by Trial or AAJ.
2. Anita Berglund et al., The Association Between Exposure to a Rear-end Collision and Future Neck or Shoulder Pain: A Cohort Study, 53 J. Clinical Epidemiology 1089, 1093 (2000), DOI: 10.1016/s0895-4356(00)00225-0; Simon Carette, Whiplash Injury and Chronic Neck Pain, 330 N. Eng. J. Med. 1083, 1083 (1994), DOI: 10.1056/NEJM199404143301512 (This was not a cohort study, but it made reference to multiple years of ongoing symptoms in its statement that “although the majority become asymptomatic in a matter of weeks to a few months, 20 to 40 percent have symptoms that are sometimes debilitating and persist for years.”); Martin Francis Gargan & Gordon Bannister, Long-term Prognosis of Soft-tissue Injuries of the Neck, 72 J. Bone & Joint Surgery Brit. 901, 902 (1990), DOI: 10.1302/0301-620X.72B5.2211780; Mason Hohl, Soft-tissue Injuries of the Neck in Automobile Accidents: Factors Influencing Prognosis, 56 J. Bone & Joint Surgery Am. 1675, 1677 (1974); K.M. Porter, Neck Sprains After Car Accidents, 298 Brit. Med. J. 973, 973 (1989), DOI: 10.1136/bmj.298.6679.973 (noting multiple journals that found ongoing symptoms at one, two, and five years, with symptomatic rates of 26%, 45%, and 43%, respectively); B. Squires, Martin Francis Gargan, & Gordon Bannister, Soft-tissue Injuries of the Cervical Spine. 15-year Follow-up, 78 J. Bone & Joint Surgery Brit. 955, 957 (1996), DOI: 10.1302/0301-620x78b6.1267; P.J. Tomlinson, Martin Francis Gargan, & Gordon Bannister, The Fluctuation in Recovery Following Whiplash Injury: 7.5-year Prospective Review, 36 Injury 758, 759 (2005), DOI: 10.1016/j.injury.2005.01.006.
3. See Berglund, supra note 2, at 1093; S.H. Norris & I. Watt, The Prognosis of Neck Injuries Resulting from Rear-end Vehicle Collisions, 65 J. Bone & Joint Surgery Brit. 608, 611 (1983), DOI: 10.1302/0301-620X.65B5.6643566; Porter, supra note 2, at 973.
4. See Berglund, supra note 2, at 1093; Carette, supra note 2, at 1083–84; Hohl, supra note 2, at 1675–82.
5. Porter, supra note 2.
6. Carette, supra note 2.
7. Hohl, supra note 2.
8. Berglund, supra note 2.
9. Tomlinson, supra note 2.
10. Gargan, supra note 2.
11. Squires, supra note 2.
12. For example, the New England Journal of Medicine and British Medical Journal have existed for over 200 and 180 years, respectively. The Journal of Clinical Epidemiology (originally titled the Journal of Chronic Diseases) has existed for over 65 years and was born from a former United States President’s Commission on the Health Needs of the Nation, an impartial source created to research the field of chronic illnesses. See J.E. Moore & D. Seegal, Announcement: The Journal of Chronic Diseases, 1 J. of Chronic Diseases 1 (1955), DOI: 10.1016/0021-9681(55)90017-5.
13. See, e.g., Herbert L. Needleman et al., Deficits in Psychologic and Classroom Performance of Children With Elevated Dentine Lead Levels, 300 New Eng. J. Med. 689 (1979).
14. Fed. R. Evid. 803(18).
15. See, e.g., Md. Pattern Jury Instr. Civ. 10:3 (“The effect that an injury might have upon a particular person depends upon the susceptibility to injury of the plaintiff. In other words, the fact that the injury would have been less serious if inflicted upon another person should not affect the amount of damages to which the plaintiff may be entitled.”).
16. Porter, supra note 2, at 973.
17. Berglund, supra note 2, at 1093.
18. Norris, supra note 3.
19. See, e.g., Bentley v. Carroll, 734 A.2d 697, 708–09 (Md. 1999) (finding that the trial judge “erred as a matter of law by refusing to strike the testimony of defense expert witness, Dr. John Henderson, that the plaintiff had exaggerated her complaints,” and noting “that courts in Maryland are improper for the introduction and interpretation of ‘lie detectors,’ ‘polygraphs,’ or any like measurement of a witness’s veracity”).
20. See, e.g., Rodriguez v. Wal-Mart Stores, Inc., 203 A.3d 114, 130 (N.J. 2019) (Defense expert “offered ‘somatization’ as a possible explanation” for plaintiff’s symptoms, and “defined ‘somatization’ as ‘a process where individuals describe experiencing symptoms of various types that are not accompanied by objective findings and interpretations.’”).
21. Rick Friedman, Polarizing the Case: Exposing & Defeating the Malingering Myth (2007).
22. In my client’s case, I used the following literature to rebut this defense attack: Berglund, supra note 2, at 1093 (“It is not likely that exposed subjects with whiplash injury would over-report their neck complaints at follow-up, 7 years after the collision.”); Carette, supra note 2, at 1083–84 (“The results of a recent prospective study of 78 consecutive patients not involved in litigation have cast doubts on this view.”); Hohl, supra note 2, at 1680 (In a 5-year study “it was evident that a considerable percentage of [patients] still had symptoms apparently attributable to the original accident.”).