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Trying the Soft Tissue Injury Case in Arizona

Trying the Soft Tissue Injury Case in Arizona

by:

DAVID J. DAMRON
Teilborg, Sanders & Parks
Phoenix, Arizona

DORA FITZPATRICK
Snell & Wilmer
Tucson, Arizona

THOMAS M. RYAN
Attorney at Law
Chandler, Arizona

EUGENE ZLAKET
Zlaket & Zlaket
Tucson, Arizona

Copyright 1992
National Business Institute, Inc.
P.O. Box 3067
Eau Claire, WI 54702

All rights reserved. These materials may not be reproduced without permission of National Business Institute, Inc. Additional copies may be ordered by writing National Business Institute, Inc. at the above address.

This publication is designed to provide general information prepared by professionals in regards to subject matter covered. It is sold with the understanding that the publisher is not engaged in rendering legal, accounting, or other professional service. Although prepared by professionals, this publication should not be utilized as a substitute for professional service in specific situations. If legal advice or other expert assistance is required, the services of a professional should be sought.


DEFENSE PLANNING FOR THE SOFT TISSUE INJURY CASE

by:

DAVID J. DAMRON
Teilborg, Sanders & Parks
Phoenix, Arizona

II. Defense Planning for the Soft Tissue Injury Case.

A. Case Investigation: The first effort the defense lawyer must undertake is to acquire all of the facts of the case that can be accumulated outside of the discovery process. This is advantageous economically as well as tactically. While the plaintiff is generally in a better position to prepare his lawsuit, often the defense, because of the presence of the insurance investigation, has had the first opportunity to undertake investigation that is very close in time to the incident. Therefore, when the typical soft-tissue auto accident case comes to a defense attorney, the first place to look for information is the insurance companies investigation file. The first thing that defense counsel must insist upon is that the entire claim file be sent. Often the file is "thinned" before it is sent, usually out of a desire to save copying, mailing, or other expense. Do not allow this. There is almost always information that is useful to the development of the case in the materials that someone else believes are "nonessential".

1. The insurance claims file. A comprehensive investigation by an adjuster or claims examiner should contain most of the following items:

  1. Police accident report: This will be your first source of information on liability, personal injury and property damages, witnesses, weather conditions, vehicle defects, and potential non-parties at fault.

  2. Claims Investigation: This should include the examiner's "field notes" with his/her "mental thoughts & impressions prepared in contemplation of litigation" regarding witness impressions, descriptions of the accident scene, descriptions of the vehicles and the dynamics Of the vehicles during the incident; descriptions of injuries and property damage; notes on discussions with witnesses, etc.

  3. Witness statements: A "Statement" generally implies a term of art which is a formalized and verbatim recreation of a witnesses words. Examples are recorded statements, written statements signed the witness or otherwise adopted by the witness. Be sure to request from the examiner that the recorded statements be transcribed; or better, ask that the tapes of the statements be sent and have them transcribed in-house. You will usually wind up with a better transcript that way.

  4. Medical reports: These will be obtained by the examiner pursuant to a medical records release from the claimant, almost always prior to retention of counsel. Any medical release will almost uniformly be revoked by claimants counsel as soon as counsel is retained. This is a good place to begin looking for pre-existing health problems and evidence over treating.

  5. Medical Bills: Are they "reasonable and necessary"? Are there health care provider bills for which no reports are present in the file. Are the bills from the type of health care provider one should expect? For example, you usually don't expect OB/GYN bills as part of a soft tissue claim.

  6. Photographs: Including photos of vehicles, the accident scene, and claimants injuries, (or lack thereof). Be sure to request that duplicate prints be made for your file. If color copies are to be made, try to have the examiner retain the copies so you can have the prints. There is nothing worse than coming up for trial with just the color copies and the prints are nowhere to be found.

  7. Lost wage information: Has there been a claim for lost wages? If so, look 'for the documents, such as a letter from an employer, W-2 forms, worker's compensation liens for lost earnings, etc. Be alert for the potential of a second jobs or working while receiving lost earning compensation. Have there been discussions between the employer and the adjuster regarding pre- and post accident work capabilities? If there have been discussions and the employer sees little or no difference in job: performance, this can be evidence of the severity of the injury.

  8. Policy information: Is there any problem with coverage? Has there been a reservation of rights? Is the case going to "bump" up against policy limits? Is there necessity to consider a Morris type agreement. Has there been a "policy limits" demand?

  9. "Index" information: What prior claims history does this claimant have. Has the claimant had any similar injuries.

  10. Workers compensation issues: Is there a lien to be protected? Is there a prior history of injury of a similar nature (this should appear in index information as well). Has the examiner discussed the matter with the Worker's compensation claims handler? Has the compensation carrier done an investigation into any aspect of the claim.

2. Other Investigation: If any of the information itemized above is not in the claims file, all of it which can be obtained without subpoenas or formal discovery should be obtained. With the advent of the "Zlacket" rules, to be discussed in depth infra, more emphasis will be placed upon the private interview and the recorded statement. Lawyers will not be allowed to depose witnesses, at least presumptively, so investigators will be taking many of the statements that were formerly obtained by the deposition process. This includes the passengers in the vehicles, emergency medical personnel such as ambulance attendants and paramedics, auto repair personnel, police officers, neighbors and co-workers of the claimant and anyone else who might have information about the claim.

A private investigator can not only obtain a witness statement, but can conduct what is called a "sub rosa" investigation. This is the kind of surveillance made famous in the movie "The Fortune Cookie" with Jack Lemmon and Walter Mathau. Basically, if there is a colorable suspicion that the claimant is working, playing or otherwise engaging in physical activity which he/she professes inability, there is no better evidence than a video or photograph of the claimant doing what the claimant swears that he/she cannot.

It is often useful to obtain an aerial photograph of the accident scene so that the jury, arbitrator or mediator will be able to get a clear picture of the accident scene in mind. It is pretty useful for the lawyer, as well.

In the more serious cases, early consultation with an accident reconstructionist can be very helpful in allocating fault and determining value of a motor vehicle case.

In more and more cases, the need for a biomechanical engineer is called for to evaluate the wisdom of asserting the seat belt defense. In order to successfully utilize the defense, you need to show that the claimant's injuries would have been prevented, or at least less severe by the utilization of restraints. While some physicians have been qualified for this type of testimony and some cases, such as ejection cases are fairly obvious, in vehicular soft tissue cases, you may well need an engineer. This work is not inexpensive and would not be recommended for every case.

If the case is one of clear liability, but there seems to be over treatment, it is helpful to have a health care practitioner of the same discipline as the claimant's treater to review the records and bills to determine if there indeed has been over treatment.

Finally, you may need other kinds of experts, depending on the type of case, to help you sort out liability problems early on. Examples are traffic engineers, human factors engineers and practitioners of the specialty of the defendant, such as a retail manager in a slip and fall type case.

B. Defense and Other Pleadings

The rules of civil procedure set forth the pleadings (Rule 7) which are allowed. "Pleadings" is a term of art and are defined in the rules as the complaint, the answer (which can include a cross-claim or counter-claim), a third party complaint and answer, and replies to counterclaims and answers to cross-claims.' Nothing else is a "pleading", at least in the strict form of the rules. However, there is a great deal of defending which can be filed which we often refer to as "pleadings", such as:

  1. Motion to Dismiss: (Rule: 12(b) Ariz.R.Civ.Pro.) This can be brought for many reasons, including the following:

    1. Rule 8(h) - stating a sum certain;

    2. Lack of jurisdiction over the person or subject matter;

    3. Lack of specificity in the complaint (Rule 9 Motion for "more definite statement");

    4. A failure to join an indispensable party pursuant to Rule 19;

    5. Improper Venue (see below);

    6. A failure to state a claim upon which relief can 'be granted. A motion brought under this rule (12 (b) (6)) can be converted to Motion for Summary Judgment if the motion to dismiss brings additional facts before the court that are not part of the complaint. Other basis for a motion are release, accord and satisfaction, failure to submit to arbitration as required by contract and the running of the statute of limitations,

    7. Caution - Waiver (Rule 12 (i)) This rule provides that "all defenses and objections" not preserved by Rule 12 motion or in the answer are waived, with some exceptions.

  2. Motion to Strike: (Rule 12(g)) This motion allows the court a vehicle to remove any "... insufficient defense or any redundant, immaterial, impertinent, or scandalous matter". This must be done prior to answer or 20 days after the offending pleading is filed.

  3. Motion for Judgment on the Pleadings: (Rule 12(c)). This motion may be brought "after the pleadings are closed", so after answer. The motion is similar to a 12(b)(6) failure to state a claim motion, but does not have the time restrictions. Like a 12(b)(6) motion, the court may treat the motion as a summary judgment if matters "outside the pleadings" are relied upon in the motion.

  4. Motion for Change of Venue: This "motion" is rather unartfully named, since under the Arizona venue statutes, an "application" is filed in the court where the action has been brought and if unchallenged, venue is changed to the appropriate county. However, the jurisdiction of the Superior court is state-wide, so failure to bring this before answer will waive the defense. If the "application" cannot be filed under A.R.S. § 12-404, then the defense can be brought by motion or in the answer.

  5. Answer and Affirmative Defenses: In the answer, we are required to fairly meet the allegations, or we face a violation of Rule 11. Don't make a general denial unless you have a good faith basis for doing so. Sometimes, when a summons and complaint is the first notice of an action and no information is available, a general denial may be acceptable, but the reason for the denial should be placed in the answer. As soon as sufficient information is obtained, an amended answer should be filed. We also have the obligation to present our affirmative defenses. Many of these are enumerated in Rule.8(d), but some, which mayor may not be affirmative defenses, such as' a failure to mitigate damages, are not listed. The following is a general list of affirmative defenses which should at least be looked at to determine if they are applicable. If you have insufficient facts to present a defense, but believe it may be applicable when sufficient discovery or investigation is completed, a good course of conduct is to plead the defense with the caveat that you presently do not have facts for the defense, but facts may develop and you want to place your adversary on notice.

    1. Non-Party at fault: if at all possible, I like to name the non-party in the answer. It solves the docketing problem so that you make sure that you don't miss the 150 day post-answer deadline. Don't forget that an employer can be a non-party at fault.

    2. Failure to mitigate damages: As stated above, it is not clear if this is an "affirmative defense", but it is better to allege it and be sure. In this general area would fall the seatbelt defense, since it is "injury avoidance" rather than comparative negligence.

    3. Statute of Limitations Hopefully this will be the subject of a motion to dismiss. However, if you later discover that the true date of injury or discovery is longer than the statute of limitations, you will be happy you preserved this defense.

    4. Abatement: This, includes multiplicity of suits and pendency of other actions. The old one year abatement for failure to serve has been altered by the new rules to 120 days after filing.

    5. Immunity: This includes governmental immunity under A.R.S. sec. 12-820.01 et sec. absolute and qualified.

    6. Notice of claim(12-821): This is a failure to file a notice of claim within one year against a "governmental entity" or a "government employee".

    7. Comparative Negligence/Sole Negligence of the plaintiff. In addition to this defense, often another defendant may be responsible for the injuries and this should be alleged as "other persons or entities not answering herein are or maybe responsible for plaintiff's injuries and damages, if any" or words to that effect.

    8. If punitives are alleged, raise the issue of constitutionality.

    9. Removal to federal court. This of course is not an "affirmative defense", but it must be acted upon quite promptly. Failure to remove within 30 days after you know about the complaint can waive this right.

C. Discovery Techniques. M.A.D. TRACK

  1. Disclosure: Rule 26.1 requires "prompt disclosure" within 40 days after a responsive pleading is filed, be it a Motion to Dismiss or answer or otherwise. You must disclose the following:

    (1) The factual basis of the claim or defense. In the event of multiple claims or defenses, the factual basis for each claim or defense.

    (2) The legal theory upon which each claim or defense is based including, where necessary for a reasonable understanding of the claim or defense, citations of pertinent legal or case authorities.

    (3) The names, addresses, and telephone numbers of any Witnesses whom the disclosing party expects to call at trial with a designation of the subject matter about which each witness might be called to testify.

    (4) The names and addresses of all persons whom the party believes may have knowledge or information relevant to the events, transactions, or occurrences that gave rise to the action, and the nature of the knowledge or information each such individual is believed to possess.

    (5) The names and addresses of all persons who have given statements, whether written or recorded, signed or unsigned, and the custodian of the copies of those statements.

    (6) The name and address of each person whom the disclosing party expects to call as an expert witness at trial, the subject matter on which the expert is expected to testify, the substance of the facts and opinions to which the expert is expected to testify, a summary of the grounds for each opinion, the qualifications of the witness and the name and address of the custodian of copies of any reports prepared by the expert.

    (7) A computation and the measure of damage alleged by the disclosing party and the documents or testimony on which such computation and measure are based and the names, addresses, and telephone numbers of all damage witnesses.

    (8) The existence, location, custodian, and general description of any tangible evidence or relevant documents that the disclosing party plans to use at trial and relevant insurance agreements.

    (9) A list of the documents or, in the case of voluminous documentary information, a list of the categories of documents, known by a party to exist whether or not in the party's possession, custody or control and which that party believes may be relevant to the subject matter of the action, and those which appear reasonably calculated to lead to the discovery of admissible evidence, and the date(s) upon which those documents will be made, or have been made, available for inspection and copying. Unless good cause is stated for not doing so, a copy of each document listed shall be served with the disclosure. If production is not made, the name and address of the custodian of the document shall be indicated. A party who produces documents for inspection shall produce them as they are kept in the usual course of business.

    This must be a "continuing disclosure" and you must make additional or amended disclosures "whenever new or different information is discovered or revealed." (R. 26.1 (b) (2).)

  2. Depositions: Under Rule 30, only depositions of experts, custodians of records, and parties are permitted. Any other depositions must be done either by agreement, order of the court, after demonstrating good cause, or after a comprehensive pretrial conference and court order. In addition, depositions are limited to 4 hours in length.

  3. Interrogatories: Under Rule 33.1, parties are limited to no more than 40 interrogatories. The total interrogatories may be a combination of any of the 15 uniform interrogatories which the committee has prepared and non-uniform interrogatories. Any uniform interrogatory and its sub parts shall be counted as one interrogatory; any subpart to a non-uniform interrogatory shall be considered as a separate interrogatory. Answers and objections are due 40 days after service, except when they are served with the complaint, when they are due 60 days following service.

  4. Request for Production of Documents: Under Rule 34, the parties are limited to one Request containing no more than 10 distinct items or specific categories of items in their request for production. If any more than that are desired, the requesting party must contact the other side and attempt to obtain a written stipulation allowing the excess. Response is due in 40 days, unless served with the complaint, and then it is due in 60 days.

  5. Request for Admission: Under Rule 36, a total of 25 requests to admit may be submitted during any one case, unless there is agreement of all parties; an order of the court; or court order following a Comprehensive Pretrial Conference pursuant to Rule 16 (c). Note: Any interrogatories accompanying a Request for Admission will be counted toward the total number of interrogatories allowed.

D. Pretrial Motions: The following motions should be considered for virtually every case, in at least some form.

1. Motion for Summary Judgment (partial or total). There is often some legal issue in a case that can be resolved by a motion for summary judgement. Such a motion is also an excellent tool for requiring your opponent to "flesh out" the case. With the advent of mandatory disclosure including legal basis for positions, this tool may become even more important.

2. Motions in Limine: This tool is. extremely important. Equally important with bringing motions in limine is knowing when not to bring them. Frivolous motions do not help your case and cause your credibility before the court to suffer. However, these motions are quite useful for limiting the testimony of experts to both that which has been disclosed, and that which the expert is qualified to testify. It is also a useful tool to prevent disclosure of evidence that is so prejudicial that any relevance is outweighed.

E. Arbitration/Mediation Proceedings: As alternative dispute resolution has developed, litigators have found it more and more useful and cost efficient. A mediation is often an excellent way to have meaningful settlement negotiations. These types of proceedings can only be effective if the claimant is present. It is essential that the claimant hear from some other person that their lawyer what is thought about the merits of the claim. Once this occurs, settlement often moves more readily.

Arbitrations only take about one tenth of the time to prepare and try. This is not to say that careless preparation is excusable in an arbitration, far from it. However, documents are usually agreed to in advance for admissibility. Depositions are often used in lieu of live witnesses. The arbitrators are often attorneys who are familiar with the law and with case values. Claimants often do better in arbitrations than they do in trial.

1. Court Ordered Arbitration: When complaint is filed, if amount sought is less than $30,000 (Maricopa County) is mandatory. The Court Administrator picks a single lawyer. These are non-binding, but pursuant to the Uniform Rules of Arbitration and the local rules of the county, a sanction is applied if the appellant does not improve on the award.

F. Offer of Judgment: This tool is becoming more and more useful and now, either Plaintiff or Defendant may file offers. The offer must be filed 30 days or more before trial and is effective for 30 days. The reward for this is double the costs incurred by the offeror after the filing of the offer if the other side does not better your offer of judgment.

G. Ethical Considerations: These have been discussed throughout. Rule 11, and our code of professional responsibility places on us the duty of honesty and candor. We must represent our clients zealously, but we must not "game play", misrepresent or even misdirect under the new rules. A deliberate failure to disclose unfavorable information on the disclosure has been characterized by some as unethical conduct which can require us to 'report such conduct to the bar and could result in disciplinary proceedings.