A thorough pretrial investigation is usually worth the expense.

Nicholas J. Lawrence, Esquire
July 28th, 2014
By: Nicholas J. Lawrence, Esquire

In this day and age insurance companies, businesses, and claims professionals are all understandably looking for every way possible to minimize legal expenses. However, limiting the pretrial investigation is often a false economy. Two recent cases in northern Virginia illustrate the importance of thorough investigation and case preparation, even in “routine” or minor personal injury cases in general district court. The following summary is of two recent cases involving rear-end collisions with no liability defenses, and no dispute as to the authenticity or reasonableness of the medical bills claimed. The only issue was whether the plaintiffs were truly injured.

In the first case, damage photos showed two small scratches on the plaintiff’s rear bumper, consistent with the location of the small screws holding the defendant’s front license plate bracket. There was no other damage to either vehicle. The plaintiff testified that he waited two days after the accident, experienced increasing neck pain, and reported to the emergency room. He was diagnosed with a neck strain, prescribed opiate pain medication, and referred to his primary care physician. About a week after the accident he saw the primary care physician and began physical therapy. After about two months of conservative treatment he was discharged with just over $5,000 in medical bills. He testified to the inability to exercise as he had prior to the accident, and his testimony was corroborated by a family member. On direct he failed to mention prior personal injury claims, and a separate fall resulting in injury during the period he was under treatment for the accident at issue.

A thorough pretrial investigation by the liability insurer and the defense counsel uncovered the prior personal injury claim, as well as a significant criminal history, including a felony conviction for habitual larceny, and a history of opiate drug abuse, including serial visits to the emergency room for claims of pain, each resulting in prescriptions for opiate pain medication. The pretrial investigation allowed an effective cross examination that raised the issue of opiate drug addiction as a potential reason to exaggerate the claimed personal injuries. The court returned a judgment of just over ½ of the medical special damages. Without the facts resulting from the pretrial investigation, the damage award would likely have been three to four times the actual judgment.

In the second case, the plaintiff’s vehicle had moderate physical damage and the defendant’s vehicle had almost none. The accident occurred at night, and the defendant was unable to offer testimony as to the condition of the plaintiff’s vehicle prior to the accident. The plaintiff testified that he tried home remedies for his neck pain for two days, and then went to the emergency room. He was diagnosed with a neck strain and discharged. A month later, he began chiropractic treatment. He then followed up with an orthopedic consultation and ultimately incurred a total of about $8,000 in medical special damages. At the time of trial he testified he had ongoing pain and other symptoms.

The insurance company’s pre-suit investigation uncovered a similar prior personal injury claim with the same out of state law firm representing the plaintiff in the current suit. Subpoenas turned up a letter from the chiropractor asking the plaintiff’s law firm for instructions as to a referral of the patient to an orthopedist. In addition, the defendant’s insurer did an excellent job documenting the condition of the two vehicles after the accident, including a number of photographs showing the location of the damage to the plaintiff’s vehicle, complete with measurements, and comparable measurements on the defendant’s vehicle. Taken as a whole, the photographs and measurements suggested the extensive damage to the plaintiff’s vehicle may have been pre-existing, and not related to the accident at issue.

Without a thorough pretrial investigation, the prior accident, prior personal injury claim, prior relationship with a law firm, consultation by the chiropractor with the law firm before referring the plaintiff to an orthopedist, and physical damage discrepancies would never have come to light. The detailed pretrial investigation allowed an effective cross-examination, and resulted in a nominal judgment for the plaintiff in a case that typically would have resulted in a judgment in the range of 8-10 times the amount awarded. Although a pretrial investigation does not always result in the location of evidence like that uncovered in these two cases, it is usually well worth the time and effort.

Disclaimer

This blog and the information provided has been prepared by Bancroft, McGavin, Horvath & Judkins, P.C. (“BMHJ”) for information purposes only and is not intended nor to be construed as legal advice. This blog may contain the opinions of the members and associates of this firm on various legal issues and is not legal advice. Read More