Trying the Automobile Injury Case in Massachusetts

Trying the Automobile Injury Case in Massachusetts


Initial Interview and Assessing the Case
Investigating the Case
Special Issues

Expert Witnesses
Witness Preparation
Effectively Demonstrating the Impact of Plaintiff's Injuries


Plaintiff's Interrogatories
Plaintiff's Request For Production Of Documents
Plaintiff's Request For Jury Instructions
Plaintiff's Vocational Evaluation

I. Initial Considerations for the Plaintiff

Initial Interview and Assessing the Case Because of the importance of the initial interview, adequate time must be allotted. The initial interview will be used to assess the client, liability, damages and coverage issues. Enough time must be spent to obtain the client's complete medical, familial, social, vocational and educational background. Assess the client. If he is obviously not credible, is manipulative or has unreasonable expectations, these issues have to be addressed immediately. He or she must be disimbued from any misconceptions they may come in with. At the initial client interview, the following issues must also be addressed:

1. The requirements of the no-fault tort threshold and its impact on the client's ability to make a claim for pain and suffering;

2. The circumstances of the accident itself, particularly as it relates to liability, i.e., passenger, driver, pedestrian, citations, etc.;

3. Damages, including all medical care and treatment and future medical care;

4. Coverage issues, including the identity of all owners and operators of the vehicles involved, the identity of any uninsured or underinsured policies (including all household policies), the possibility that defendant was in the agency or employment of another at the time of the accident, and other coverage issues;

5. The possibility of a Workers' Compensation claim or other third-party claims including general liability claims arising out of the accident;

6. Liens by Workers' Compensation, Medicare, Medicaid or health care providers and their impact on any recovery;

7. Information to process PIP and MedPay claims must be obtained;

8. The fee arrangement and the terms of the contingent fee agreement must be explained in detail, particularly the client's ultimate legal responsibility for costs;

9. The client should be given general parameters regarding the investigation, claim and litigation process, and the approximate time frames involved in each stage of the proceedings;

10. Authorizations must be obtained for medical records, police reports, wage information, etc.;

11. The client must be instructed not to talk to others regarding the accident and to keep a diary of relevant events and treatment;

12. Never give an opinion regarding the value of the case as you can't conceivably know the value of the case at the first meeting; and

13. Most importantly, keep an open mind and listen. Although the client comes in with what appears to be a garden variety automobile case, it may turn out that there are Workers'Compensation claims, Social Security Disability claims, claims under private disability policies, general liability and other third-party claims that are properly asserted as a result of the accident.

As can be seen from the above, ample time must be devoted in an environment free from distractions, preferably in your own office so that the client understands the environment in which you work and becomes comfortable with you and your operation.

Investigating the Case
Perhaps the most critical factor in investigating the case is timing. One must act quickly. Particularly, photographs of the client's injuries, the vehicles involved, the scene and witness statements must be obtained before they become unavailable. Bruises, contusions and other signs of injury should be photographed. The condition of the vehicles should be photographed and, in the appropriate case, the vehicles preserved in their damaged condition. The scene should be photographed and, in the appropriate case, analyzed as soon as possible by an accident reconstructionist. Because witnesses disappear and memories fade, it is essential to obtain written statements, preferably from an investigator. In the event there is a subsequent dispute concerning what the witness stated, the investigator can be called as a witness. This is preferable to counsel taking statements and risk being disqualified.

With respect to preserving evidence that is not within your control, but is controlled by another party, an action may be brought under Mass. Rules of Civil Procedure Rule 34(e) for the preservation and production of evidence prior to instituting suit on the underlying claim. Often such a suit should be brought within days of the accident.

In the initial investigation in addition to the above, the following should be addressed:

1. All medical records and bills for the client's treatment must be obtained. In an appropriate case, it will be necessary to obtain the client's prior medicals as well (in the case of pre-existing injuries, etc.). In addition, the actual office records of physicians and other private providers should be obtained and, where appropriate, a full report addressing diagnosis, disability and prognosis;

2. Obtain police, accident and Registry of Motor Vehicle reports. In addition, any documents where your client has previously given a statement regarding the accident must be obtained, such as PIP applications, accident reports, forms for health providers, Workers' Compensation applications, Social Security Disability applications, questionnaires for physical therapy and chiropractors, hospital admission forms, and client's statements in hospital records, or to insurance adjusters or investigators, etc.;

3. Look for newspaper or other accounts of the accident;

4. There may be a transcript of a related criminal hearing, or of an administrative proceeding, including hearings before the Board of Appeal of Motor Vehicle Liability Policies and Bonds and hearings before the Division of Industrial Accidents;

5. Ambulance run reports, fire department reports, reports of tow truck operators may provide helpful information;

6. In the appropriate case, the plaintiff's past history must be investigated. This investigation would include obtaining all prior medical records, school records, employment records, prior claims or law suits and other relevant information;

7. Experts should be retained earlier rather than later. Such experts could include accident reconstructionists, biomechanical experts, engineering or design experts, vocational and economic experts, etc.; and

8. Finally, where there is inadequate insurance coverage or other potential policies available, an investigation of the defendant is appropriate. At the time of the accident, the defendant may have been employed by, or acting on behalf of, another who is vicariously liable. The defendant operator or owner may have other applicable policies or assets sufficient to satisfy a judgment.

It is important during this stage, as well as other stages in the process, to keep in communication with the client. Send the client copies of correspondence and other materials generated from your office. It is extremely important to impress upon the client at this stage, as well as subsequent stages, that there is activity on his case and that it is not just sitting on the bottom of some pile awaiting your attention. Use your paralegals and other support staff to keep this stream of activity in motion. Ideally, this system should function without requiring the attorney's personal attention at each stage and for each activity.

Generally speaking, in an automobile case, as in other personal injury cases, there are three main categories of damages:

1. Out-of-pocket losses (medical specials);

2. Lost earning capacity; and

3. Pain and suffering.

Each of these areas have to be developed to assure that your client obtains the compensation to which he or she is entitled.

a. Medical Expenses
Under the Massachusetts No-Fault statute, Mass. G.L. Chapter s.36D, as a prerequisite to suit 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, ?79G. Be sure to comply with the statute in all respects, including the time and notice requirements, as well as the certification under the pains and 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.

b. 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 benefits, 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).

c. 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.

A relatively recent 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. As to whether such a comatose patient might recover for loss of enjoyment of life (where they are unaware of it), there is a division of authority. The issue has not been squarely addressed in Massachusetts.

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, ?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" recover. These damages represent recovery for the emotional distress inflicted upon a family member who happens to witness, or immediately come 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). Recently, the Supreme Judicial Court has substantially relaxed the type of objective evidence needed to corroborate a claim of emotional distress, which may now include such symptoms as headaches, insomnia or even loss of appetite. See, Sullivan v. Boston Gas Co., 414 Mass. 1-9 (1993).

Recovery for Wrongful Death is governed by statute. Mass. G.L. Chapter 229, s.2 permits recovery for the loss of the value of the decedent to the survivors named. In Mass. G.L. Chapter 229, ?1, the statute permits recovery for the loss of the decedent's "reasonable expected net income, services, protection, care, assistance, society, companionship, comfort, guidance, counsel and advice of the decedent to the persons entitled to the damages recovered...". A Wrongful Death claim is asserted by the administrator of the estate for the benefit of the persons entitled, under Mass. G.L. Chapter 229, ?1. In addition, the administrator may recover, for the benefit of the estate, the decedent's conscious pain and suffering prior to his death, under Mass. G.L. Chapter 229, ?6. In a Wrongful Death action, unlike a personal injury action resulting in death, recovery is not for the plaintiff's impaired earning capacity; but, rather for the "reasonably expected net income...". The decedent's survivors are being compensated for the actual net loss of the decedent's future support. Thus, the award for future wages should be reduced by the taxes that the decedent would have paid as well as amounts expended on his personal consumption. In addition, the statute permits recovery for the non-economic damages suffered by the survivors as a result of the loss of the relationship with the decedent. Where the defendant's conduct was malicious, willful, wanton, reckless or grossly negligent, the statute permits recovery of punitive damages.

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 payors 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 defendants's insurer.

Special Issues: Claims against government institutions and other non-private defendants

On occasion, the defendant in an automobile case will not be a private party, privately insured; but rather, will be a governmental institution, agency or so-called "independent body politic", such as the MBTA, Massport, etc. Claims against such entities are generally governed by specific statutes.

One of the most important things to remember when dealing with the non-private defendant is that generally there are no insurance coverage issues, there may be no outside counsel representing the defendant, and there may be strict statutory limitations on recovery as well as procedural requirements prior to commencing suit. Claims against governmental institutions, that is the Commonwealth, counties, cities, towns, districts, and most governmental agencies are governed by Mass. G. L. Chapter 258. Under Chapter 258 the governmental entity and its various agencies are liable for the negligent acts of its employees acting within the scope of their employment but only to the extent of $100,000.00. In addition, there is no prejudgment interest nor liability for punitive damages.

Under Mass. G. L. Chapter 58, ?4, the claim must be presented in writing to the proper officer within two (2) years of the claim arising. This presentment requirement cannot be extended or tolled. The Statute of Limitations for bringing suit is three (3) years. The Statute of Limitations may be tolled. See, Ferron v. Comm. 394 Mass. 50 (1985).

Claims against other "independent body politics" are also generally governed by specific statutes and may have specific procedural requirements and limitations. Therefore, when dealing with any of these defendants, the specific statute that applies to that particular entity must be reviewed. For example, claims against the MBTA are governed by Mass. G. L. Chapter 161A.

Attempting to settle a claim against one of these institutions or entities presents its own unique problems. Often, one is dealing with a bureaucratic hierarchy that does not lend itself to making decisions expeditiously. Budgetary constraints and even political concerns can have an impact on settlement negotiations. Further, often trial counsel has little authority, and must obtain the approval of the Board of Directors to a settlement. On the other hand, these defendants are not generally sympathetic or perceived well by the public, which makes them "target" defendants. There is a two year statute of limitations for claims against the MBTA under Mass. G. L. Chapter 61A, ?21. If it is alleged that a defect in the public way caused or contributed to the accident, a claim may be brought against the county, city or town under Mass. G. L. Chapter 84, ?15. However, the maximum recovery is limited to $5,000.00. Wrongful death actions against the Commonwealth alleging negligent design of a highway, rendering it defective, had been held to be outside the scope of Mass. G. L. Chapter 81, ?18 and governed by Mass. G. L. Chapter 258. See, Kromhout v. Comm., 398 Mass. 687 (1986).

II. Trial of the Case

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.

Expert Witnesses
Experts now play a prominent role in the trial of virtually every case, and certainly this is true in automobile accident cases. There may be medical experts, accident reconstructionists, biomechanical engineers and economists just to name a few. It is imperative that these experts be properly prepared and that their examination and presentation be persuasive.

Where the expert is testifying based on a science or subject matter that has not yet been generally accepted in the scientific community, the recent decision in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 125 (1993), should be kept in mind. Under Federal Rule of Evidence 702, "general acceptance" of the scientific theory upon which the testimony is based is not determinative to admissibility. Rather, the trial judge must assure that the underlying theory is reliable based on a number of factors including whether the theory or technique has been tested, subject to peer review and publication, the existence of standards, as well as its acceptance within the scientific community. Massachusetts state courts, however, appear to still follow the "general acceptance" rule. See, Comm. v. Fatalo, 346 Mass. 266 (1963).

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 expert tends to follow a somewhat conventional pattern, particularly with respect to medical experts, a direct examination of plaintiff's medical expert can be outlined as follows:

1. Background and Training
a. Education
b. Certifications
c. Medical licenses
d. Clinical experience
e. Teaching and consulting experience
f. Areas of research
g. Publications
h. Professional associations
i. Hospital affiliations
j. Awards

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

4. History
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 communication 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 evidence to illustrate his testimony with photos, drawings, X-rays, anatomical models, charts and anything else that will make the injury understandable. 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.

Cross-examination of the opposing party's experts is also 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, 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 now 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 leading 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.

Witness Preparation
The preparation and presentation of the plaintiff at trial can make or break the case. Despite what we might hear, I believe that jurors are 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.

Effectively Demonstrating the Impact of Plaintiff's Injuries
Generally, expert medical testimony will always 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. 233, ?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, 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.

It is very important to convey to the jury when dealing with a permanent injury, the amount of time that plaintiff will have to suffer with this injury, and to convey that, although they will only be awarding the plaintiff damages once, this award must compensate the plaintiff for all the future suffering he or she will endure. In addition to introducing the life expectancy tables, use the "historical flashback" to convey to the jury the duration of time involved. Juries find it very difficult to appreciate the next fifty years in any meaningful way. However, this duration of time has meaning if conveyed as the same amount of time from our last World War. This is the amount of time that the plaintiff will have to live with this injury.

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.

III. Lien Considerations
When it comes time to settle the case, liens become a substantial issue affecting the net amount which the client will realize, which, of course, is generally all that the client is interested in. The Plaintiff has little incentive to authorize a settlement which will net him or her very little, and will merely put money in the hands of the medical providers and you, the attorney. Therefore, counsel's knowledge of liens and ability to negotiate the same can often become the determinative factor in whether or not a case will even settle. Counsel must also have a full understanding of liens to avoid the very painful realization that after a settlement, counsel himself is exposed to liability for some unpaid medical bill that was not properly attended to at the time of settlement.

Workers' Compensation carriers, Medicare, Medicaid, hospitals, other institutional medical providers, private physicians and private health care providers, may all have a lien in your client's third-party recovery. The attributes of each of these liens and the ability to negotiate the same are somewhat different. The practitioner should be fully aware of these differences.

Under Mass. G. L. Chapter 18, ?5, Medicaid has a right to be reimbursed for payments made by it from a third-party recovery. Under this statute, when a claimant receives a payment from a liability insurer, Workers' Compensation insurer, or other third-party, he is obligated to repay the Department of Public Welfare to the extent of the benefits provided by it, but only to the extent that the benefits are as a result of the injuries sustained in the accident. Generally, the recipient is also required to sign an assignment to the Commonwealth to the proceeds of his claim to the extent of the benefits provided by Medicaid. The attorney who is aware of such an assignment is probably obligated to pay Medicaid, whether or not he has also received a notice of lien. When dealing with Medicaid, unlike Medicare or other medical providers, there is no right to insist that Medicaid reduce its lien by its pro-rata share of attorneys' fees and expenses. The Department of Public Welfare will entertain requests for such reductions. This lien, as with any other lien, should be addressed and negotiated prior to any finalized settlement. Once there is a final settlement, you lose your negotiating leverage. Namely, if the lien holder does not reduce its lien, the case will have to be tried and could be lost, thereby eliminating the lien holder's ability to recoup any of its payments. Further, until it is clear what the lien holder will accept in compromise of its lien, the plaintiff cannot intelligently give consent to any settlement.

Medicare, which is the federal program, has a similar right to repayment from third-party recoveries. This right to reimbursement is enforceable, whether or not notice is given to third-parties. Further, third-parties who do not satisfy the lien, including attorneys, can be held liable to repay Medicare. Medicare will reduce its lien by the "procurement costs", that is, attorneys' fees and costs that the plaintiff spent to obtain the judgment or settlement.

Hospitals, private insurers, such as Blue Cross and Blue Shield, and HMO's may assert a lien by virtue of Mass. G. L. Chapter 111, ?70D and also, generally, by virtue of the contract they sign with the recipient. Under the statute, the lien only applies to the "net amount" payable to the injured person. Accordingly, attorneys' fees and expenses come out first. In order to perfect the lien under the statute, the third-party must receive notice with the specific information referred to the statute. Further, if you receive a lien notice from a hospital pursuant to the statute, you are entitled to request a "certified itemized statement of all charges" for the injured person. If the hospital does not send such a statement within ten (10) days, the lien is dissolved. However, even if the hospital does not perfect its lien, its ability to be paid directly from a third-party settlement is affected. It does not negate the underlying debt or the client's obligation to pay the same. For this reason, you are not necessarily doing your client any favor by ignoring these providers at the time of settlement. To the contrary, if this issue is not fully addressed with the client prior to settlement, and an informed decision made on how to deal with these unpaid medical bills, the attorney is likely to hear back from an unhappy client who is being pursued by these medical providers. Therefore, it is generally best to deal with any of these unpaid medical providers, whether they have perfected a lien or not, up front, and to negotiate with them while you have the leverage. If this is not done, at the very least make sure the client is fully informed, in writing, of his or her subsequent exposure and confirm in writing that, at his or her direction, you have not attempted to resolve these outstanding and unpaid bills or to pay the same from the settlement proceeds.

Note that the statute applies only to hospitals, HMO's or other medical service corporations and not to private physicians. Generally, where there is a third-party claim and the client is unable to pay for current medical treatment of physicians, chiropractors, therapists, etc., or there is no health insurance to cover those bills, the doctor will obtain an assignment and put the attorney on notice of the same, or even have the attorney sign the same as well as the patient. Where the client, or perhaps even the attorney, has asked the doctor to, in effect, extend credit based on the prospect of a third-party recovery, it would not only be, perhaps, a legal liability but, certainly, counterproductive to one's long term practice and reputation to fail to address the doctor's bill when it comes time for settlement. This is so even if the doctor has not perfected a lien. However, one's first duty is to the client. In the unusual case where the client demands disbursement of settlement proceeds without satisfying outstanding medical bills from the settlement proceeds, and there has been no legally enforceable promise or lien to pay the doctor, one must comply with the client's directives. Again, this should be done only after the client is fully informed of the options and the client's continuing exposure, and this direction is confirmed in writing.

If the Plaintiff is injured during the course of employment, Workers' Compensation insurance carriers will have a lien against the "third-party" action. Mass. G. L. Chapter 152, ?15. The statute provides for the Workers' Compensation insurer to bear its proportionate share of the cost of recovery, including attorneys' fees. Where the settlement involves a Workers' Compensation lien, the settlement must be approved by either the Superior Court or the Department of Industrial Accidents. Generally, Workers' Compensation insurers, having a good understanding of the risks of trial, particularly where liability is questionable, are willing to negotiate a reasonable compromise of their lien.

IV. Appendix
Plaintiff's Interrogatories
Plaintiff's Request for Production of Documents
Plaintiff's Request for Jury Instructions
Plaintiff's Vocational Evaluation

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