Damages in Massachusetts Civil Trial PracticeDamages in Massachusetts Civil Trial Practice
A. Types of Damages - Compensatory, Nominal and Punitive
1. Compensatory Damages.
A plaintiff can be awarded compensatory damages in tort actions, contract actions and in other types of actions. Generally, compensatory damages fall into two main categories - general damages and special damages.
The purpose of compensatory damages in a tort action is to compensate the person for all injuries suffered as a result of the wrongful conduct of another. Its goal is to put the plaintiff in the same position had there been no wrong done to him.
It is well settled in Massachusetts that the tortfeasor takes his victim as he finds him. This is a particularly important factor in personal injury actions because often there are recurring or chronic problems and the area injured may be particularly vulnerable to reinjury or exacerbation of symptoms such as low back pain or neck pain. A defendant is liable for the additional pain and suffering resulting from an injury that aggravates a preexisting condition. Thurlow v. Shaws Supermarket, Inc., 49 Mass.App. Ct. 175 (2000). If because of prior injury or other conditions, the plaintiff is particularly susceptible or predisposed to sustaining a particular injury, the defendant is still liable for all of the pain and suffering resulting from an injury even if a person who was not so presupposed would not have been injured.
Further, a defendant can be held liable for a subsequent injury if there is a causal connection between the original harm for which the defendant is responsible and the subsequent injury. See, Wallace v. Ludwig, 292 Mass. 251 (1935). For example, if the plaintiff falls and further injuries himself because of a weakness in the knee that is due to an original injury to the knee, which was caused by defendant's negligence, the plaintiff can recover against the defendant for the damages sustained in the subsequent fall. The burden, however, is on the plaintiff to establish such a causal connection. The defendant is also liable for any complications arising from medical treatment required to treat the injuries that defendant caused, even subsequent complications resulting from negligent medical treatment.
Generally speaking, there are three main categories of compensatory damages:
1. Out-of-pocket losses (medical specials and lost wages);
2. Lost earning capacity; and
3. Pain and suffering.
Medical Expenses. In tort action arising out of the operation of a motor vehicle, under the Massachusetts No-Fault statute, Mass. G.L. Chapter Â§36D, as a prerequisite to suit, the plaintiff must show that his fair and reasonable medical expenses exceed $2,000.00. The insurers can, and often do, challenge the fairness and reasonableness of these medical expenses. If challenged, the plaintiff must not only show that the expenses were fair and reasonable, but also that they were "necessary". See, Victum v. Martin, 53 Mass. App. Dec. 1 (1973). At trial the medical expenses can be established pursuant to an affidavit under Mass. G.L. Chapter 233, Â§79G. Be sure to comply with the statute in all respects, including the time and notice requirements, as well as the certification under the penalties of perjury from the doctor who is certifying the accurateness and fair and reasonableness of the bills and to his licensure.
In addition to proving past medical expenses, the plaintiff is entitled to recover for the fair and reasonable cost of reasonably certain future medical services. These services can be established by the plaintiff's treating doctor, who should testify to the future medical services that will be needed and, if possible, to the cost of the same. Often the plaintiff will utilize a nurse or a life-care planner to project the future medical services and cost of the same, and then an economist to reduce these figures to present value.
Impairment to the Plaintiff's Earning Capacity. Loss of earning capacity is not equivalent to loss of wages, although plaintiff's prior wages is some evidence of his earning capacity. See, Mitchell v. Walton. 305 Mass. 76 (1940). In fact, plaintiff may be unemployed or never have worked and still have an earning capacity. In order to recover for loss of earning capacity, the plaintiff must prove that he was, or is, disabled from work, the probable duration or permanency of this disability, and the monetary earnings that have been lost or that he was capable of earning as a result of the disability. Plaintiff may use a vocational expert to establish the plaintiff's prior work capacity and post-accident disability or residual work capacity. An economist may be used to establish the value of plaintiff's work capacity and reduce that amount to present value. This calculation is complicated, in that it takes into account not just wages, but other benefits, expected growth rates in wages and the appropriate discount rate to reduce that amount to present value. See, Jones and Laughlin Steel Corp. v. Pfiefer, 462 U.S. 30 (1983); Griffin v. General Motors Corp., 380 Mass. 362 (1980).
Pain and Suffering. This area includes mental and physical pain and suffering, both past, present and future. As well as, loss of function, humiliation and embarrassment, disfigurement, scarring, anxiety, mental distress and all other forms of pain and suffering. Generally, the plaintiff and the plaintiff's treating doctors will be the primary source of proving plaintiff's pain and suffering. The doctor should give an opinion regarding his prognosis covering the plaintiff's future pain and suffering. Although the plaintiff can certainly describe his mental and physical pain and suffering, often it is more persuasive coming from witnesses other than the plaintiff, including relatives and friends. Demonstrative aids such as "day-in-the-life" films can also be utilized to show the impact of plaintiff's injury.
An issue is whether or not "loss of enjoyment of life" (so-called "hedonic" damages) can be sought as a separate and distinct element of recovery from pain and suffering. Most courts include it as encompassed within pain and suffering. In either case, evidence relating thereto can be introduced and argued to the jury. The general rule is that, in order to recover for pain and suffering, the plaintiff must have been conscious and aware of the pain and suffering. In other words, damages for pain and suffering are not available to a comatose patient.
In addition to the damages that are recoverable by the injured party himself, a spouse, parent or child of the injured party may recover for loss of "consortium." These damages compensate for the loss or interference with the relationship between the family member and the injured party, not for the pain or trauma of seeing a loved one injured or the shock of witnessing plaintiff's injuries. Loss of consortium claims are available to a spouse (Diaz v. Eli Lily Company, 364 Mass. 153 (1973)), to a parent of a minor child (Ferriter v. Daniel O'Connell Sons, Inc. 381 Mass. 507 (1980)), to a dependent adult child who lives at home (Morgan v. Alumiere, 22 Mass. App. Court 262 (1986)), and to a parent of an adult-dependant child if the child is seriously injured (G.L. Chapter 231, Â§85 X).
The claim is not to compensate for grief, but for the associational loss. Accordingly, evidence of the nature of the party's relationship and the extent to which that relationship has been impaired is necessary. This is best conveyed by anecdotal evidence. The consortium plaintiff's claim is not derivative but, rather, is independent, so it is not reduced by the injured party's comparative negligence. See, Feltch v. General Rental Company, 383 Mass. 603 (1981).
In addition, under certain circumstances, there may be so-called "bystander" recovery. These damages represent recovery for the emotional distress inflicted upon a family member who happens to witness, or immediately comes upon, an accident wherein another family member has been injured. There has been a long and somewhat convoluted evolution of the tort of negligent infliction of emotional distress, originally requiring that the bystander also have sustained a physical impact from the accident. Courts subsequently abandoned the "physical impact" requirement where the bystander's emotional distress was accompanied by substantial physical symptoms. See, Dzilkonski v. Babineau, 375 Mass. 555 (1978). In order for the bystander to recover, there must be (1) physical proximity to the accident, (2) temporal proximity to the negligent act, and (3) familial proximity to the victim. See, Ferriter v. Daniel O'Connell Sons, Inc., 381 Mass. 507 (1980). In addition, to recover for emotional distress not accompanied by physical impact, the plaintiff must show that his emotional distress is manifest by some objective physical symptomology. See, Payton v. Abbott Labs, 386 Mass. 540 (1982). The type of objective evidence needed to corroborate a claim of emotional distress may include such symptoms as headaches, insomnia or even loss of appetite. See, Sullivan v. Boston Gas Co., 414 Mass. 1-9 (1993).
Massachusetts follows the "collateral source" rule which prevents a defendant from reducing his liability by showing that the plaintiff's economic losses were lessened by payments from other "collateral sources", such as payments by health insurance, Workers' Compensation insurance, private disability policies, pension, Social Security benefits or other "collateral sources". Massachusetts has recognized two major exceptions to this rule:
1. To directly contradict a plaintiff's testimony of alleged circumstances resulting from his injury, See, Corsetti v. Stone Co., 396 Mass. 1 (1985); and
2. Within the discretion of the Trial Court, to show malingering, that is that it's the plaintiff's receipt of substantial monetary benefits, rather than the injury, that is keeping plaintiff out of work. See, Pemberton v. Boes, 13 Mass. App. Ct. 1015 (1982).
Because most health care providers, Workers' Compensation insurers and other third-party payers have a right to subrogation, the collateral source rule does not result in a windfall to the plaintiff; but rather, merely shifts the ultimate responsibility for the loss to defendant's insurer.
Nominal Damages may be awarded where liability has been found but there has been no proof of actual damages. They are designed to show that the plaintiff's rights have been invaded but where the plaintiff could prove no actual loss or damage. See, Magnett v. Pelletier, 488 F.2d 33, 35 (1st Cir. 1973).
Further, where the court finds that the plaintiff has proven liability but has not adequately established actual damages, the court may reduce the judgment to award nominal damages only.
There are a number of Massachusetts statutes that specifically regulate damages under certain circumstances. This is a list of the more commonly used statutes:
1. Mass.G.L.c. 93A, Â§9 and Â§11. Under this statute, plaintiff may recover double or treble damages for a defendant's willful or knowing violation of Mass.G.Lc. 93A.
2. Mass.G.L.c. 84, Â§15, et seq. Governs damages for defects in public ways and permits recovery as a result of a defect or lack of repair in a public way, however, the statute limits recovery to $5,000.
3. Mass.G.L.c. 231, Â§6D. This is commonly referred to as the "no fault" statute and provides that damages may be recovered for pain and suffering in tort actions arising out of the operation of a motor vehicle only where medical expenses exceed $2,000.
4. Mass.G.L.c. 231, Â§85K. This is the charitable immunity statute which limits liability of charitable organizations to $200,000.
5. Mass.G.L.c. 231, Â§60H. This statute governs the recoverability of damages for pain and suffering in medical malpractice actions and limits recovery to $500,000 unless the jury makes a specific finding that the plaintiff suffered a substantial or permanent loss of impairment of a bodily function or disfigurement or that there are other special circumstances that would warrant a finding by the jury that the imposition of the limitation would deprive the plaintiff of just compensation. Further, Mass.G.L.c. 231, Â§60G abolishes the collateral source rule in claims against medical providers. Special damages are to be reduced by the amount of any collateral source benefits received by the plaintiff so that the costs are borne by the collateral source (health care providers) rather than the malpractice insurer or defendant.
6. Mass.G.L.c. 258, Â§2, Waiver of sovereign immunity, however, damages are limited to $100,000.
7. Mass.G.L.c. 231, Â§85, dealing with comparative negligence and provides that if the plaintiff's negligence does not exceed that of the defendant the percentage of the comparative negligence assigned by the jury reduces the damages awarded to the plaintiff by that percentage.
B. Statutory Penalties
There are numerous Massachusetts statutes that provide for punitive damages. Some of the more important and relevant ones are the following:
1. Massachusetts Declaration of Rights and Articles 1, 10, 15, 26 (civil rights violations).
2. Massachusetts Rules of Appellate Procedure 25 (double or single costs may be awarded for filing of frivolous appeals).
3. Massachusetts General Laws Chapter 21E, Â§5 (treble damages for the release or threat of release of hazardous materials).
4. Massachusetts General Laws Chapter 93 Â§102(b) (punitive damages for the violation of civil rights and equal protection laws).
5. Massachusetts General Laws Chapter 93A, Â§Â§9 and 11 (provides for multiple damages for unfair and deceptive trade practices that are knowing and willful, plus the recovery of costs and attorneys fees). Section 9 is for the protection of consumers and Section 11 is for the protection of business and commercial entities and individuals.
6. Massachusetts General Laws Chapter 152, Â§28, (double damages for employer's willful misconduct).
7. Massachusetts General Laws Chapter 176D, Â§3 - 6 and 4. (recovery of punitive damages for unfair insurance practices).
8. Massachusetts General Laws Chapter 231, Â§6F (the recovery of costs, expenses, interest and attorneys fees for the making of an insubstantial, frivolous or bad faith claim or defense).
9. G.L.c. 229, Â§2, is the wrongful death statute and provides for punitive damages of not less than $5,000. where the death was caused by the malicious, willful, wanton or reckless conduct or gross negligence of the defendant.
C. Apportionment of Damages
G.L.c. 231B, Sec. 1, provides for contribution among joint tortfeasors. Each tortfeasor is liable for his or her pro rata share of the loss. However, the statute does not require contribution by joint tortfeasors in proportion to their degree of negligence. Rather, the pro rata share is determined by the number of joint tortfeasors. When one joint tortfeasor pays more than his or her pro rata share, that joint tortfeasor is entitled to contribution for such excess from the other joint tortfeasors. The joint tortfeasor may bring a separate action for contribution against the other joint tortfeasors within one year of the entry of the tort judgment against him or her.
This statute is necessary because when two or more tortfeasors negligently cause an injury to another, they are each subject to liability to the injured party for the entire amount of damages, not just their proportionate contribution. Note that the joint tortfeasor must be liable to the plaintiff in order to be liable for a claim of contribution by a joint tortfeasor. If, for example, the joint tortfeasor has a special defense such as sovereign immunity, exclusivity of the workers compensation bar, etc. that party is not liable for contribution at the behest of a joint tortfeasor.
When two parties are joint tortfeasors neither party is generally entitled to indemnification from the other party since they are both equally culpable. However, when one is legally responsible for the negligent or intentional act, but is not themselves wrongful, they may be entitled to indemnity where for example their liability is derivative or as a result of vicarious liability. In addition, rights of indemnification may be contractual. In such a case the indemnitor may be brought into the action through a third party action. Indemnification arises not where the parties share liability equally as joint tortfeasors, but rather where one party is responsible by operation of law as for example as a result of vicarious liability. Indemnification under these circumstances permits the innocent party to recover from the wrongdoer.
Mass.G.Lc. 231, Â§6B, provides for the award of interest in actions of tort for personal injuries, consequential damages or property damage. The purpose of prejudgment interest is to compensate the prevailing party for the loss of the use of the money. In tort actions the statutory rate is 12% and runs from the date of the commencement of the action. The award of interest in contract actions is the contract rate or 12% per annum from the date of the breach of demand.
Mass.G.L.c. 235, Â§8, provides that every judgment shall bear interest from the date of entry at the same rate per annum as provided for prejudgment interest in such award or verdict. Postjudgment interest compensates the prevailing party for the time delay between entry of judgment and the issuance of an execution.
E. For the Plaintiff Attorney
1. Choosing and Developing a Case Theme
Developing a case theme is extremely important. Jurors will have great difficulty remembering all of the witnesses, all the evidence, the disputes between the experts on some of the science and medicine, and a great deal of the material that is thrown at them during the course of a trial. However, if the lawyer can create a theme or concept against which all of this evidence resonates, the fact that the jury does not remember all of the specific evidence will be less important because they will remember that it resonated and fit into their concept of the case. Theming a case causes the juror's conception of a case to be reinforced and cemented, so that it is the theme that they bring with them into the jury room, even though all of the details supporting that theme may not be at their disposal. A theme in effect distills all of the evidence in the case down to a simple proposition, one which the jurors can remember and one which the jurors can cling to in trying to make sense of all that they hear during the course of trial. Most cases can be reduced to a four or five word concept. These themes often revolve around concepts of personal responsibility, putting profits before safety, doing too little too late, failing to err on the side of caution and other propositions that really distill the case down to its basics. This theme should be introduced in the opening and reinforced in each and every examination and cemented in the closing argument. It must be one that resonates with the jury's common sense and one that they can embrace as their own. It is the tool by which the jury can simplify and make sense of the evidence, remember its impact and compel the jury to action. A good case theme must be one that is simple, easy for the jury to understand and remember, is consistent with their concepts of common sense and fairness, and moves them to action.
Often if the lawyer himself cannot conceptualize the theme, the use of focus groups will help in determining what the lay juror concludes is the moral or principle behind the story. Theming a case is not too dissimilar from "labeling". Labeling is a way to convey a concept in a very simple word or two. For example, President Bush did this very effectively in referring to the Taliban and Al Qaeda as "the evil ones". Whatever their names or countries or factions or territories, the concept of "the evil ones", says it all. The use of such compelling but shorthand labels make the case powerful and understandable to the jury. The theme should ideally be one that empowers the jury to act, for example, "power corrupts" or "responsibility is a two way street". Such phrases, when used effectively, makes the jurors establish an emotional link with you and your case, a link that they will take with them into deliberations.
There have been numerous articles and books written on the power of persuasion and trial themes and it is recommended that these be reviewed by any trial attorney as theming and storytelling is the essence of the art of persuasion.
2. Calculating the Amount of Compensatory Damages
There are a number of key issues that should be assessed when evaluating the value of a case. None of these issues are determinative, but they all may have considerable weight effecting the value of the case.
First, the force, velocity and mechanisms of injury are important. Was this a minor accident with minimal or no force applied to the occupant of a motor vehicle, or is this a case where the individual sustained direct trauma through a fall or impact with portions of the interior of the motor vehicle? How fast were the vehicles proceeding? How much property damage was there? Where were the forces applied? Were the forces absorbed by the automobile bumper or transmitted to the occupants? Where was the occupant in the vehicle? Was he/she turned? Did the occupant impact any part of the interior of the vehicle? Were there other factors regarding the mechanics and forces of injury? Any evidence of direct trauma as opposed to acceleration-deceleration injury, is important. Scars, bruises, contusions and other evidence of trauma can buttress the claim that there has been forces sufficient to cause serious injury. Often the forces will be sufficient to cause disorientation, a momentary loss of consciousness or other signs or symptoms suggesting an insult to the neurological and neuromuscular systems. In an extreme case there may be a momentary or extended period of loss of consciousness all of which is consistent with neurological injury and other forces sufficient to cause a severe acceleration/deceleration injury or other impact competent to cause serious injuries.
Second, if your client is either transported to or goes to an emergency room, the history and findings in the emergency room are often critical. If the history indicates injury and there are other findings in the emergency room consistent with physical trauma such as bruises, contusions, disorientation, neurological findings, then all of this information would buttress the claim of injuries. Often, however, the only information in the emergency room will be the plaintiff's subjective complaints. These cannot be discounted but obviously the lack of any findings in the emergency room of any kind can weaken the case.
Third, the results of any physical exam or testing should be considered. Often there will be no neurological or physiological findings on gross examination. However, there are cases where, for example, x-rays will show a straightening of the lordosis of the cervical curve, consistent with a contraction of the muscles resulting from trauma. There may be other findings upon physical exam such as muscle spasm. Obviously, if there are more profound findings on neuroimaging studies such as disc protrusion or herniation, these would further support evidence of severe physiological injury.
Fourth, the progression and duration of symptoms must be looked at. There may be an initial period where symptoms are not severe but then they progress as swelling and other physiological changes occur. Although symptoms can be effected by a variety of factors including stress, strain, weather, and activity level, one would generally not expect to find inconsistent or marked increases or decreases in symptomology. If your client's clinical course is way outside the norm, it may raise a question of the etiology or validity of the injury.
Fifth, next the consistency of the history must be looked at. The plaintiff may have seen multiple health providers including a primary care physician, orthopedist, chiropractor, physical therapist, neurologist or other doctors. If the plaintiff gives a consistent history as to the cause of injury and the duration and progression of symptoms, the reliability of that history is bolstered. If, on the other hand, the history given by the plaintiff is not consistent or shows further "elaboration" of symptoms as medical providers are seen down the road, this can raise a question regarding the reliability and credibility of the plaintiff, and the reported cause of plaintiff's injuries. All medical records should be closely examined and any inconsistencies in the history adequately addressed.
Sixth, any premorbid, that is, preaccident conditions, must be closely examined. Is this a plaintiff who was relatively healthy and functional prior to the injury, or is this a plaintiff who has had numerous prior visits to a chiropractor, physical therapist, with multiple complaints and multiple periods of disability or inability to work? This can be one of the most important factors in assessing the reliability and credibility of the plaintiff's current complaints. If this is a person who has shown a conscientious work history, and has had little prior medical conditions or complaints, and who now has complaints of pain that interfere with the person's normal functioning and ability to work, one would generally presume that these complaints are valid. On the other hand, a person who prior to the accident had long periods of dysfunction, either due to physiological or other causes, and who now attributes his or her inability to function to the accident, may be subject to some skepticism. Accordingly, plaintiff's preaccident medical records, psychological records and employment records must be closely examined and any prior claims of injury, accident, work connected injuries or other claims whatsoever must be closely scrutinized.
Seventh, closely related to premorbid conditions, are any concomitant conditions that might account for or contribute to plaintiff's symptomology and/or disability. Is this a plaintiff who other than the accident has relatively few stresses or traumas going on in his or her life which would account for their symptomology, or is this a plaintiff who even prior to the accident was having difficulties at work or in their marriage or had recently suffered the loss of a loved one, or who was under other psychological or physiological stresses? It is true that the defendant takes his victims as he finds them and that the plaintiff's vulnerability or predisposing characteristics does not necessarily relieve the defendant from liability. However, if the primary cause of plaintiff's complaints are not the accident in issue, but rather other traumatic events that can cause physiological stress, such as a catastrophic loss or job or marital stresses, then these factors must be considered. Because often these injuries are dependent on plaintiff's subjective feelings and expression any other factors that could be effecting the plaintiff's subjective experience should not be discounted.
Eighth, the consistency of findings and diagnoses among providers is important. Is this a plaintiff who has seen an internist, chiropractor, physical therapist and they have all concluded that the plaintiff is suffering from cervical musculoskeletal pain and lower back pain caused by the auto accident or is this a plaintiff who has seen multiple providers who have come up with different findings or diagnoses? For example, has one of the doctors concluded that plaintiff's symptoms should resolve in two to three months where another provider has reached a completely different diagnosis and prognosis. These variations can occur in the most genuine of cases. However, nonetheless, if there is a wide disparity between each providers findings and diagnosis, the underlying reliability of the scope and extent of injury must be considered.
Ninth, the plaintiff's responsiveness to treatment needs to be considered. Generally, with appropriate treatment, the plaintiff's injury should improve and their ability to function increase. If the plaintiff shows no responsiveness to treatment other underlying mechanisms must be considered. It may be that plaintiff's injuries are more serious than considered initially and that additional testing is required to re-evaluate the diagnosis. For example, it may be that plaintiff has a herniated disc but because there has never been an MRI, it has not been previously diagnosed. On the other hand, if there has been complete and thorough testing and plaintiff's injuries are primarily musculoskeletal in nature, the lack of responsiveness to treatment may raise a question regarding the reliability of the findings and plaintiff's subjective complaints.
Tenth, and perhaps most importantly, is the plaintiff's presentation and credibility. Common sense and human experience should not be thrown out the window when evaluating the value of cases. An individual's presentation and credibility must and should be assessed. Many individuals are truthful, reliable and credible individuals and often one can tell that this individual has no motivation and is making no effort to exaggerate or elaborate their symptoms. There are other individuals who are obviously selective in the history they give and who may for example attribute all of their problems to a relatively minor accident and ignore other factors that show up in medical, employment or other records. If you question the plaintiff's credibility as a result of concrete evidence raising a question regarding the reliability of plaintiff's subjective complaints, then you can be sure that a judge and jury will as well. This is an area that should be thoroughly evaluated as the case will largely rise and fall on the plaintiff's believability and on the judge or jury's ability to connect with the plaintiff. A person who is naturally likeable and believable is perhaps the strongest asset in any case.
It is critical right from the outset to spend considerable time with the plaintiff to assess all of the above issues and assess the plaintiff's credibility, likeability and ability to communicate as a witness. The above information must be closely scrutinized so that it can be measured against the plaintiff's subjective complaints and the reported history. It is virtually impossible to obtain too much information regarding the plaintiff, the nature of the injuries or the circumstances of the accident. The more information you have on all of these issues the better you are able to assess the case and the plaintiff's credibility which in the end is one of the most important factors in the case. In fact, the plaintiff's credibility and your credibility are probably the most potent weapons you have to fight the unfortunate skepticism that pervades personal injury cases. The other weapon is documentation. Make sure that the plaintiff thoroughly documents each treatment, keeps a running diary of symptoms and treatment, follows up with appointments, is compliant with treatment, and completely and thoroughly reports all symptomology to his or her medical providers so that it is documented in plaintiff's medical records. Make sure that plaintiff seeks out and obtains appropriate medical treatment so that there is a thorough and complete examination and reliable diagnosis, prognosis and treatment prescribed.
II. PLAINTIFF TACTICS FOR MAXIMIZING DAMAGES AT TRIAL
A. Use of Economic Testimony to Prove Damages
Often it is necessary to use an economist to prove plaintiff's lost wage claim or more properly the loss of his future expected earning capacity. The economist has to factor in a number of factors in determining the expected future lost earning capacity including the plaintiff's age, his work life expectancy, his wages and salary adjustments, other benefits provided by the employer other than wages, inflation rates, prospects for continuing participation in the work force and the proper reduction of the entire sum to present value.
It must be weighed whether or not it is worth the cost of obtaining an economic expert. Often the calculations are complicated and you have to make sure that the jury can readily understand how the lost wages and impaired earning capacity were computed. It may be best to prove economic loss through witnesses other than an expert such as the plaintiff or plaintiff's employer. However, often the plaintiff or plaintiff's employer will underestimate the future economic loss, not take into consideration additional benefits and won't be able to address in a scientific manner plaintiff's work life expectancy, participation in the work force, increases for inflation and otherwise and discount to present day value. There is a great benefit in presenting a concrete figure to the jury particularly when it is often large, considering the plaintiff's future work life expectancy. The economist also helps the jury avoid speculating about these future losses. With respect to plaintiff's future medical treatment, often a medical economist is necessary to address the cost of future medical treatment. The economist also will be necessary to discount those costs to present value, and also consider the normal factors in evaluating economic losses such as increases due to inflation or otherwise probabilities of needing future treatment, discount rates and other relevant factors.
B. How to Prepare a Damages Case Through Medical Testimony
Experts now play a prominent role in the trial of virtually every case. Medical experts will be key in proving damages. It is imperative that these experts be properly prepared and that their examination and presentation be persuasive.
In view of the Supreme Court's decision in Daubert v. Merrill Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), and the SJC's adoption of that decision in Commonwealth v. Lanergan, 419 Mass. 15, 641 N.E.2d 1342 (1994), the selection and preparation of experts has become even more critical. The Supreme Judicial Court has adopted Daubert's reasoning that "the overarching issue is the scientific validity - and thus the evidentiary relevance and reliability - of the principles that underly a propose submission". Commonwealth v. Lanergan, 419 Mass. at 25. Therefore, no longer is the Frye test of general acceptance in the relevant scientific community determinative, although it is still a significant issue but not the only issue. Reliability and validity of the underlying science can be demonstrated by other means, for example, by whether the theory or technique can or has been tested and whether it has been subject to publication and peer review. Daubert emphasizes the trial judges role as a gatekeeper. Therefore, frequently now you are seeing the opposing side challenge the validity of the theory or science of a proferred opinion and the judge must make a ruling on the reliability of the mythology underlying the expert's testimony. Further, in Canavan's Case, 432 Mass. 304, 733 N.E. 2d 1042 (2000), the Supreme Judicial Court followed the U.S. Supreme Court's decision in Kumhoe Tire v. Carmichael, 526 U.S. 137 (1999), which made clear that the Daubert analysis applies to all expert testimony. The court rejected the notion that experts conclusions based on personal observation or clinical experience are exempt from the Lanergan analysis.
Often one will find a challenge to the experts opinion on causation. One is seeing challenges to the expert's opinion as to what caused plaintiff's injuries where previously experts routinely address such issues as within the domain of their clinical and scientific knowledge.
When presenting an expert, one must keep in mind the facts or data that the expert can properly rely on in rendering an opinion. Generally an expert may base his opinion on facts personally observed by him, evidence already admitted in the proceeding or which the parties represent will be admitted, and, in Massachusetts, facts or data not in evidence, including hearsay, if the facts and data would be admissible in evidence. See, Department of Youth Services v. A Juvenile, 396 Mass. 516 (1986). In Federal Court, however, the fact or data need not be admissible in evidence if of a type reasonably relied upon by experts in the field in forming an opinion. See, Federal Rule of Evidence 703.
Because the direct examination of any medical expert tends to follow a somewhat conventional pattern, a direct examination of plaintiff's medical expert can be outlined as follows:
1. Background and Training
c. Medical licenses
d. Clinical experience
e. Teaching and consulting experience
f. Areas of research
h. Professional associations
i. Hospital affiliations
2. Area of Specialty
a. Describe specialty generally
b. Describe diagnostic capabilities of that specialty, particularly as it relates to the plaintiff's type of injury
c. Describe other diagnostic tools that are available (e.g., X-Ray, CAT scan, EMS, EEG, MRI, SPECT scan, etc.)
d. Describe significance of positive or negative findings
3. Knowledge of the Plaintiff
a. Emphasize treating plaintiff
b. Emphasize number and length of visits
a. History taken
b. Why history is important
c. Relevance of history to causation, diagnosis, prognosis, etc.
5. Examination of Plaintiff
a. Nature of examination
b. Subsequent evaluations
c. Tests performed
6. Records by Other Providers reviewed for evaluation
a. Go through the records chronologically
b. Explain significant findings
7. Opinion regarding Diagnosis ("Do you have an opinion, Doctor, with a reasonable degree of medical certainty as to diagnosis?"). The doctor should give the answer, the basis of the opinion, and anticipate and address why the defendant's medical expert's opinion on diagnosis is not correct.
8. Opinion regarding causation (this should be handled similarly to the opinion regarding diagnosis, i.e., an answer, basis of opinion, and anticipating and addressing any arguments to be raised by defense experts concerning causation).
9. Opinion regarding Disability
a. Describe impairments
b. Describe effect on work functioning and general functioning
10. Opinion regarding Prognosis (i.e., permanent and total disability, temporary, recommended future medical course, costs of the same, etc.).
Some general rules should be followed when examining the expert on direct. First, the examination must be understandable to the jury. It should be kept simple and as concise as possible. The expert must understand that, unless he is able to communicate his information to inexperienced and often unsophisticated jurors, it is wasted. Any words used by the expert that are more than two syllables should be explained to the jury. The expert should make liberal use of demonstrative aides to illustrate his testimony, such as photos, drawings, X-rays, anatomical models, charts and anything else that will make the injury understandable to the lay person. Make sure that you meet at length with the expert in advance of his testimony to develop a rapport and to work with him to make his testimony understandable to the jury. He should be fully informed so as to be able to anticipate and address the opposing party's medical expert's opinions. He must be prepared for cross-examination, be comfortable with you and what he can expect, and understand such things as the difference between "reasonable medical certainty" and scientific certainty.
Once you have spent the significant time and money involved in retaining and properly preparing your expert, make sure that you use the expert to your full advantage. Diagnosis and causation should not be the only issues addressed by the doctor. The doctor can also address disability, prognosis, future medical care, the cost of future medical care, the plaintiff's past and present pain and suffering, as well as an opinion regarding future pain and suffering.
C. How to Prove Non-Economic Damages
Generally, expert medical testimony will be necessary to establish the diagnosis, causation, disability and prognosis. Your medical expert will be the starting point for conveying to the jury exactly what injuries the plaintiff has suffered as a result of the accident. The symptoms that the plaintiff has and will endure as a result of these injuries, the extent to which these symptoms will interfere, or prevent, plaintiff's ability to work, and the pain and suffering, both mental and physical, that the plaintiff has, and will continue to endure, as a result of his injuries can all be addressed by your medical expert. In addition to the expert's testimony in this area, a report addressing these issues, which can be taken by the jury into the jury room as an exhibit, should be introduced pursuant to Mass. G.L. chapter 233, Â§79G.
In order to convey to the jury the impact that this accident has had on the plaintiff, you as the plaintiff's attorney must have intimate knowledge of the plaintiff both before and after the accident. You should know the plaintiff's educational, vocational, familial and employment background, and the impact that the injury has had in each of these areas. You should be armed with anecdotal experiences that can be conveyed to the jury which illustrate in human terms the impact which this injury has had on the plaintiff's everyday functioning.
Jurors do not like "whiners" and inevitably there is the risk that, no matter how genuine the plaintiff's injuries, when the plaintiff himself or herself describes these injuries and their impact on the plaintiff's life, the plaintiff comes off as a "whiner" and will not gain the jury's sympathy. It is, therefore, generally more effective to have other witnesses, including the plaintiff's family, co-workers, therapist, care givers, or physicians testify to the impact which this injury has had on the plaintiff's functioning. Again, this can be done through anecdotes which convey to the jury the humiliation and embarrassment as well as physical limitations that the plaintiff has had to endure.
In establishing damages, demonstrative evidence should be used liberally. Chalks, photos, X-rays, anatomical models, day-in-the-life films and other visual aids should all be considered.
Remind the client to prepare a daily diary of medical treatment, pain and disability so that, when it comes time to convey this information to the jury, it can be reconstructed. A calendar with overlays can often be used as a demonstrative aid chronicling the plaintiff's course of treatment.
In Massachusetts, plaintiffs cannot argue "numbers" for an award of pain and suffering. Superior Court Rule 7.
In Massachusetts, as in most states, the defendant is liable if his negligence aggravates a pre-existing injury or disease or if his negligent conduct directly causes a second injury (for example, falling due to a weakened knee injured in an accident). The defendant is also liable for any complications or problems resulting from the plaintiff's subsequent medical treatment necessitated due to his injuries, even complications from negligent medical treatment.
It is obviously important to know whether the case is being tried to a judge of a jury in considering the type of proof of damages that you will present. Pursuant to Mass.G.L.c. 231, Â§102C cases filed in the superior court shouldhave a reasonable likelihood that the plaintiff will recover over $25,000. If there is not a showing that there is a likelihood of recovery in excess of $25,000 the case will be remanded to the district court. However, the district court is empowered to award any amount in damages which may be well in excess of $25,000.
D. Providing Necessary Proof for Punitive Damages
Punitive damages are generally not recoverable in Massachusetts. In Massachusetts they are not allowed except where expressly authorized by statute. However, in certain circumstances, Massachusetts statutory law permits the recovery of punitive damages. Where punitive damages are permitted, the following factors may be used in determining the amount of punitive damages unless the statute provides otherwise.
1. The wealth of the defendant;
2. The nature and quality of the conduct and the degree of culpability;
3. The societal value to be gained by punishing the defendant; and,
4. The deterrence of such misconduct.
See, Valcourt v. Highland, 503 F.Supp. 630 (D.Mass. 1980).
E. Jury Selection - Using Voir Dire to Choose the Best Jury Possible
See Appendix, Exhibit A, "Voir Dire Questions to the Jury".
F. Starting with a Strong Opening Statement
Before the evidence is even presented, you, as plaintiff's counsel, have the opportunity to sway the jury to your view of the case through the opening statement. There have been studies to show that, due to the effect of primacy, most of the jurors have made up their mind after the openings of counsel. The opening is obviously important in persuading the jury to your position.
The best openings tell a factual story. The lawyer presents the evidence as a storyteller would tell a story. Openings that do not tell a story but, rather, describe the technical nature of the case, the various witnesses that plaintiff expects to call in support of their case, the various stages of the proceedings, and respective roles of the players may be marginally informative, but are not persuasive.
The best openings are made without notes. The opening should be from the heart and convey to the jury the "theme" of the case. To the extent possible, it should personalize the plaintiff and depersonalize the defendant. The use of demonstrative aids with the court's permission is encouraged.
It is important to anticipate and address, even in the opening, the negative evidence which you expect the defendants to introduce. If you know that this evidence will be presented, it is much less powerful coming from your own mouth than coming for the first time from the defendants. Although you must anticipate and take the sting out of this negative evidence, your opening should concentrate on the strengths of your case. Never oversell or overstate the case. If you do, the case has only one direction in which it can go from there, downhill. By overselling the case initially, you will leave yourself
wide open at the argument that you made representations to the jury that you could not fulfill. As a result, you and your cause will lose all credibility.
While it is important to address in the opening the strengths of the case, it is sometimes helpful and advisable not to disclose all your strengths in the opening. This is the converse of overselling the case. In other words, undersell the case. Then when you present the evidence, you have actually given the jury something a little extra beyond what you have promised. The jury will be impressed with your lack of exaggeration; rather, your restraint will add to your credibility.
In opening, as in the other stages of the proceedings, the jury must feel an emotional bond to the case and understand and sympathize with the plaintiff. Creating this emotional nexus with the jury is much more important than attempting to address all the technical and legal issues that the case may present.
G. Presentation of Evidence at Trial
The preparation and presentation of the plaintiff at trial can make or break the case. Jurors are to a large degree ultimately swayed by their emotional feelings for the plaintiff or against the defendant. They will find a reason not to award a plaintiff substantial damages whom they dislike. Accordingly, you must prepare your client to bring out his or her strengths and attributes that the jury can positively relate to. Jurors tend to be skeptical today of even the most objectively injured plaintiff. This natural skepticism and suspicion must be overcome, and it must be overcome through the credibility that you, as an attorney, convey and the positive strengths exuded by your client. You must personalize your client and get the jury to know and understand your client as well as you do.
The worst thing that you can do, or your client can do, is to attempt to overstate or oversell the case. This will immediately play into the jury's natural distrust.
Let the plaintiff tell his or her story. The less prominent role counsel plays in presenting the witnesses, the more effective their testimony will generally be. Ask brief and simple questions and let the story tell itself. While the plaintiff must be informed about cross-examination, he or she should not volunteer information or argue with counsel, and should answer only the questions asked, and only those questions he or she fully understands. If the plaintiff understands the need to be honest and understands the theme and issues in the case, the plaintiff should be prepared for cross-examination.
If the case is to be tried before a judge as opposed to a jury, obviously the case will be tried differently. District court judges have generally heard and decided hundreds of these cases and therefore that particular district court judge's approach to these cases should be well known and can be discovered from talking with other attorneys, the clerk, and other sources. One should become familiar with the judge and his or her approach to these cases. Often at the pretrial conference the district court judge will tell you exactly what approach he takes in valuing total or partial disability. Some judges follow formulas similar to those applied by adjusters in valuing periods of partial or total disability as well as lost earning capacity and permanent loss of function. In trying the case to the judge a report by the treating doctor under Mass.G.L.chapter 233, Â§79G, may be just as effective, and will certainly save money, as live testimony from the doctor. The actual documents such as accident reports and medical records can be directly relied upon without the necessity of having a live witness interpret and explain this material. In addition, the district court judge might be agreeable to accepting a chalk or document which lays out the period of total and or partial disability, lays out all other special damages or itemizes all activities that have been effected by the plaintiff as a result of his or her injuries. These chalks can be very helpful in highlighting and summarizing the most pertinent elements of damages. They can be utilized to bolster and reinforce the plaintiff's and medical providers own testimony regarding these symptoms and disabilities. The approach taken with district court judges should be one of objectivity and attempt to substantiate with documentation as much of the items of damages as possible. The district court judge has heard hundreds of these cases and the judge is much more likely to be persuaded by concrete, specific and succinct presentations than impassioned oratory which overdramatizes or overstates the case.
By contrast, in the superior court jury trial, the case will be presented completely differently. Jurors do not routinely hear personal injury cases, and therefore carry little or no knowledge regarding certain injuries, never mind a preconceived approach or formula to apply to these cases. Instead the amount they award for pain and suffering and other intangible losses is going to depend to a large extent on the presentation and credibility of your witnesses, the strengths of the medical testimony and your own persuasive abilities. Therefore, live testimony of a doctor, anatomical charts and other medical devices showing the mechanisms and extent of injury, persuasive presentations of the plaintiff's pain and suffering through medical evidence, the plaintiff himself and other witnesses will be important. It is essential to personalize the plaintiff and get the jury to like and believe the plaintiff and the extent of his or her suffering. Concrete anecdotes with respect to how the plaintiff's life has been effected are generally more effective than broad generalizations. Again, however, any over statement of the damages in the case will come back and haunt you. The defendant will be sure to exploit even the slightest exaggeration casting a net of suspicion over the entire testimony. Therefore, again, it is better to understate than overstate the claim. The credibility of you, your medical witnesses and the plaintiff is the medium that is ultimately going to sell the case or not. Even in a jury case, medical reports under Mass.G.L.chapter 233, Â§79G, should be obtained. Keep in mind that the statute requires written notice of intention to offer the itemized records or bills into evidence which must be served on all parties by certified mail not less than ten days before the introduction of same into evidence. The statute requires that copies of all such bills, records and reports be included with the written notice sent to the other parties. The records should be certified and must be certified when entered into evidence. While long sessions of reading documents to the jury should be avoided, key medical reports and findings can be read to the jury once they are in evidence. This is an effective way to bolster the plaintiff's testimony and that of the live medical witnesses.
H. Use of Demonstrative Evidence and Exhibits
Demonstrative aids should be used wherever possible. Now with the PowerPoint software and other high technology tools available, the possibilities are endless. Previously photo enlargements, diagrams and blueprints were the norm. Now in addition to anatomical models, medical charts, blown up documents, one finds computer generated presentations, outlines and even animation and recreations routinely used in the courts. It is generally recognized that the more visual evidence the jury gets the better they will appreciate the impact of the message. In that regard, day in the life films which portray the plaintiff's disabilities and every day activity, charts showing the result of testing and neuroradiological imaging and enhancements and other creative demonstrative aids have become prevalent in the trial of cases.
I. Handling Defense Experts
Cross-examination of the opposing party's experts is critical. This is generally where the less experienced attorney runs into difficulty. If certain basic rules are followed, however, the potential for hurting your case is certainly minimized, and the likelihood of the cross-examining performing its intended function, which is to obtain concessions bolstering your case and to discredit testimony harmful to your case, can be accomplished.
A good cross-examination at trial depends upon good pre-trial preparation. Expert Interrogatories must be propounded under Mass. Rule Civil Procedure 26(B)(4). In addition, an investigation of the expert's prior writings and testimony should be undertaken. The expert's prior writings may be obtained at a medical library. There are various avenues of obtaining an expert's prior testimony (such as other attorneys and trial associations such as MATA, ATLA, etc.). In addition, it is essential to learn the medical subject matter. To have little or no knowledge of the medical subject matter is to go into cross-examination severely disadvantaged. As to each of the opposing party's experts, it is useful to create a binder with the expert's CV, prior relevant publications, prior relevant testimony, prior reports in this case, prior deposition testimony in this case, excerpts from any learned treatises that may be used to impeach the expert, and an outline of the cross-examination.
The first area for cross-examination is to obtain concessions. Get the expert to acknowledge as many positive points in your case as possible. For example, the doctor may have difficulty disagreeing with the majority of the information contained in your client's medical records and will have to acknowledge these positive points. Using the opposing expert as a sounding board to reinforce positive evidence in your case will narrow the issues considerably, and reinforce this positive evidence before the jury. In addition, even the most partisan expert would concede that pain can be very real even though not objectively verified, as can other subjective symptoms, that subjective complaints and the patient's history are relied on all the time in prescribing treatment, making diagnoses, even without positive objective proof of an injury, and that the expert has no reason to disbelieve certain findings made by plaintiff's treating doctors, etc.
After positive concessions are obtained, the expert may then be cross-examined with the goal of discrediting those areas in dispute. The expert's qualifications may be addressed, including his or her lack of certification or specialty in a particular area, lack of clinical, professional and educational training, etc. Then the expert may be impeached for any bias or interest. Often experts may have a long association with defense counsel. Most defense experts are hired for the sole purpose of giving an opinion to defense counsel in connection with a particular litigation. This should be emphasized and pointed out on cross-examination (and compared to the plaintiff doctors' treating status). Show that providing expert testimony on behalf of this particular defense counsel, or for defendants in general, constitutes a significant part of the doctor's practice. Emphasize that he never treated the plaintiff and, perhaps, never saw him or her or saw him or her only once on an isolated occasion. Point out the expert's financial interests in this case and in testifying on behalf of defendants generally.
After these "collateral" attacks, the particular opinion or opinions in dispute may be addressed. Often the defense expert will have inadequate understanding of the case and has not adequately prepared. Because he or she has generally not treated the plaintiff but only seen the plaintiff on an isolated, single occasion, the expert is personally unable to comment on the plaintiff's condition either prior or subsequent to this isolated visit, including the acute stage, and will have no first-hand knowledge concerning the vast majority of plaintiff's course of treatment. It may be that the expert has not reviewed all the medical records or seen actual X-rays or other diagnostic test results. In addition, often the medical expert will have no acquaintance or familiarity with the accident, the severity of the impact or trauma or the mechanics of the accident, all of which are important factors in determining whether, and the extent to which, the plaintiff was injured. In rendering opinions on disability, the doctor may have little or no knowledge of the plaintiff's job requirements or the demands to which the plaintiff is exposed at work. Often the defense expert will have spent considerably more time conferring with defense counsel than examining either the plaintiff or his or her records. All of these areas are fertile ground for cross-examination.
In addition, the basis of the expert's opinion can be discredited. Often the expert may have selected certain facts to rely on and discredited or ignored other facts, not necessarily based on some expert judgment; but rather, on his or her personal predilection or personal assessment of the plaintiff's credibility (which is not the expert's job; but rather, the jury's). Such judgments should be exposed for what they are, not a matter of expert opinion; but rather, a matter of the expert's assessment of the plaintiff's credibility. The expert may concede that, if he hadn't discredited or discarded certain facts, his opinion, in fact, would have been the same as plaintiff's expert. Hypothetical questions can be utilized in this fashion to illustrate that the expert would have had an entirely different opinion had he not discarded or discredited certain facts present in the case. Furthermore, often the expert discounts or discredits facts arbitrarily or based on speculation. For example, the expert may summarily discount history or subjective complaints without either investigating the validity of the history or complaints, talking to others, reviewing the circumstances of the accident, etc.
Finally, the expert may be impeached by prior inconsistent statements made by him or her, either in writings in this particular case (such as a prior written report), in prior testimony given in the case (depositions), in prior publications addressing the general topic area. In addition, the witness may have given testimony in other proceedings inconsistent with his current testimony on the topic. Finally, in Massachusetts an expert can be impeached with a learned treatise. See, Comm. v. Snead. 413 Mass. 387 (1992).
There are several cardinal rules in any cross-examination. Always ask eading questions. Be brief, ask simple questions, do not ask questions to which you do not know the answer, never permit the witness to explain, do not have the witness just repeat his direct testimony, and avoid the "one-too-many question". These are Irving Unger's "ten commandments" of cross-examination. Cross-examination must be focused on obtaining concessions or scoring points on two or three critical areas. Cross-examination should be based on a planned, predetermined line of attack with specific points to be made. It should go no further. Do not expect to either "destroy" the expert or have him prove your case. Be realistic. Start off and end on a strong point.
J. Knowing When to Stop - Not 'Over-Presenting' the Case
It is critical that plaintiff never overstate his case. Even the slightest elaboration and exaggeration will be focussed on by the defendant and highlighted in an effort to cast suspicion on the entire credibility of plaintiff's presentation. In fact, it is strongly recommended that the case be undersold rather than oversold. Accordingly, rather than disappointing the jury you have given the jury actu