[0:00] Welcome to Limits Exhausted, Texas's Personal Injury Litigation Podcast.
[0:07] Welcome back to Limits Exhausted, Texas Injury Litigation Podcast with attorney Kiernan
[0:12] McAlpine, founder of McAlpine Law firm in a board certified specialist and personal injury
[0:18] trial law by the Texas Board of Legal Specialization.
[0:22] Kiernan has tried more than 40 cases to verdict and is frequently brought in by other attorneys
[0:27] to handle complex, high exposure litigation involving 18-wheelers, catastrophic injuries
[0:33] and wrongful death.
[0:34] I'm Shameika Rhymes and today we're talking about what happens when fault is clear, but
[0:39] the defense argues the accident did not actually cause the injuries being claimed.
[0:44] Welcome back Kiernan.
[0:45] Thanks for having me, Shameika.
[0:46] So Kiernan, why do some injury cases become heavily disputed even after the defense
[0:52] admits fault for the accident?
[0:54] Think about trial like a credibility contest.
[0:58] The fewer losing points you argue, the better that you generally do.
[1:03] Sometimes clients want to fight everything like it's warfare, but ultimately fighting over
[1:08] everything is a lot like fighting over nothing.
[1:11] And smart defense lawyers know that.
[1:14] There's kind of an irony to this when we talk about stipulated cases which is what lawyers
[1:19] will call this where they stipulate to liability, meaning they admit liability and aren't
[1:24] going to contest it a trial, which is that there's something that I like to call a BS
[1:29] tax, which is how much the jury holds it against you when you make arguments that are BS.
[1:39] The defense pays a much lighter BS tax than plaintiff lawyers typically do because we brought
[1:46] the case and we have the burden of proof, so they kind of expect us to have it together
[1:52] when it comes to what we're arguing, but I don't know if it's because of a comparison
[1:56] to like criminal defense lawyers, but you know, defense lawyers clients are there involuntarily
[2:02] and jury's understand that it's the defense lawyers job to make arguments to help their client,
[2:08] even if those arguments aren't very good.
[2:09] So they pay a lighter BS tax, but they're also incentivized to argue about less if they
[2:16] can.
[2:17] Like a plaintiff's case is like a stool, you know, you don't need to knock out all three
[2:21] legs, you can just knock out one and it's going to fall down.
[2:23] So sometimes the smart move for the defense lawyer is to argue about less and pay less of
[2:29] a BS tax arguing points they won't win by viewing the case is ultimately about credibility.
[2:36] They can kind of try to conserve some credibility by pairing down arguments, especially ones
[2:42] that they don't think that they're favored to win.
[2:45] What are the most common arguments that defense attorneys use when they try to challenge injury
[2:50] causation?
[2:51] Preexisting conditions.
[2:52] I mean, preexisting condition is essentially an automatic defense that we're very likely
[2:59] to face in virtually every case in some form, you know, cases where it doesn't happen are
[3:08] very rare.
[3:09] Like for example, I just settled a $1.25 million case last week without filing a lawsuit.
[3:17] In that case, my client had a emergency neck fusion surgery in the hospital after being
[3:24] admitted after the crash within 24 hours.
[3:28] So it'd be really hard for them to ever argue that that surgery was necessitated by a preexisting
[3:34] condition.
[3:36] But in most cases where you don't have an immediate emergency surgery like that, you know, burn
[3:43] cases, it's hard to argue somebody has like preexisting face disfigurement because of
[3:48] burns.
[3:49] But in a lot of cases, the deal with things like chronic neck and back pain or, you know,
[3:54] TBI cases that involve, you know, chronic mental health or cognitive impairment problems, they
[4:01] will default to arguing that those are preexisting at least to some degree.
[4:06] So is that even when they get medical records and see that there's nothing in there that says
[4:11] that will they still try to argue preexisting?
[4:14] Oh, yeah.
[4:15] I've had a defense counsel through their experts argue that an 18 year old had a preexisting
[4:24] disc herniation in their neck caused by aging.
[4:27] So yes, they will argue this.
[4:31] It's completely generic like we see it every time pretty much.
[4:35] So why do preexisting conditions become such a major issue when injury causation is disputed?
[4:41] Because it doesn't need any specific evidence to make the argument, right?
[4:45] Like most cases that are, you know, crash cases or fall cases, the objective test for the
[4:52] injury and issue is an MRI and an MRI shows the condition of somebody's like spinal discs,
[5:01] but it doesn't show the cause and discs will wear with age like as people get older, the
[5:06] discs will dehydrate and they'll start to lose some structural integrity.
[5:12] And you know, once people are over the ages 70, typically they'll lose a little bit of height
[5:16] because their discs will compress.
[5:18] So just naturally by going about your business day to day through life, your discs will eventually
[5:24] become compromised at some point.
[5:27] So they'll blame aging.
[5:29] They'll just say that disc disc wasn't caused by this disc problem, wasn't caused by the
[5:36] incident, it was caused by normal wear and tear and like disease of life.
[5:42] And ultimately what they're doing is they're pointing at the limits of MRI technology.
[5:46] MRIs show us what somebody's discs look like, they don't show us how they got that way.
[5:51] So as long as that continues to be true, they will always be able to say, well, that's
[5:57] what their discs look like anyway already.
[6:00] And there usually aren't prior MRIs to show what the discs look like.
[6:03] So they'll just argue it and it's an easy argument for any defense expert to make based
[6:08] on nothing in particular other than the limits of what MRIs show.
[6:12] So why do imaging studies sometimes become that major battleground when the defense argues
[6:17] that the injuries existed before the accident?
[6:20] You know, let's say there is a, you know, after the accident, you get the MRI, but before
[6:25] maybe there is an x-ray or something.
[6:27] Of course, that's not going to show the same thing.
[6:29] Yeah, I mean, well, first of all, x-ray x-rays are very important to bring up because
[6:33] x-rays show the condition of the bones, right?
[6:37] So it's like x-rays will show you whether you have a fracture.
[6:41] X-rays typically will not show the condition of the disc.
[6:43] You need an MRI to show that, same with CTs.
[6:46] CTs are just like high-res x-rays.
[6:49] They don't show it's going on with the soft tissue.
[6:51] They show what's going on with the bones and most of the time when somebody sustains a
[6:55] herniated disc, they don't have a fracture.
[6:58] So, you know, x-rays are generally pretty useless unless you're dealing with a fracture.
[7:05] So the MRI shows what soft tissue looks like, again, not how it got that way.
[7:10] And I kind of answered this question with the last one, which means I'm anticipating your
[7:14] questions, which just tells you how often this comes up.
[7:16] It is a very, very, very, very common issue to have to argue about in a case.
[7:21] It's just, it's such a common defense.
[7:23] So, you know, over 50% of people, over 50, have herniations with zero symptoms.
[7:28] There's studies that have been done on this.
[7:30] It's like just because you have a herniated disc does not mean that you have any symptoms
[7:34] from it.
[7:35] In fact, it's more likely that you don't have symptoms.
[7:37] So, you know, I could very, I've never had an MRI of my spine before.
[7:40] I could very well have a herniation at one or more levels.
[7:43] And I don't know about it because it's never caused me a problem.
[7:46] So I've never gone into a doctor, so I've never had an MRI.
[7:49] But like causation of injuries doesn't just come from like an MRI.
[7:55] I mean, the MRI shows what's causing the pain specifically, but without the pain,
[8:00] there's no reason to do the MRI.
[8:02] So causation is often as much about when pain and dysfunction started, not just, you know,
[8:08] the anatomical cause of it.
[8:09] You do the anatomical cause analysis with the MRI to figure out what treatment needs to
[8:13] be done.
[8:14] But, you know, without pain, without symptoms, there isn't really an injury to speak of.
[8:19] So the MRI tells you this is what's causing the pain that disc is herniating and compressing
[8:24] and nerve and that's where the pain's coming from, but it doesn't tell you what caused
[8:28] it.
[8:29] And unless there's edema, like a lot of blood or an adjacent fracture that shows up on the
[8:34] MRI, the MRI doesn't tell you what caused it.
[8:36] So that's why it's always just essentially a freebie for them to say, well, what if they
[8:43] already had this problem, but they didn't already have the pain.
[8:47] So how do you defense experts try to separate the accident itself from that medical treatment
[8:53] that someone later receives?
[8:54] A lot of different ways I can only hope to adequately skim the surface of it, but one
[9:03] of them is it didn't happen.
[9:04] They're not really hurt.
[9:05] They're just after money.
[9:07] The whole thing is cooked up by plaintiff lawyers and, you know, greedy plaintiffs and crooked
[9:12] doctors.
[9:13] We see that.
[9:14] They're already hurt.
[9:15] They'll blame preexisting injuries, even if there's no medical records that show preexisting
[9:19] injuries and just say this person was already like this.
[9:22] Often times with the MRI with a radiologist that says, this was caused by aging, not by
[9:28] trauma.
[9:29] But in reality, the MRI can't tell you if it was caused by aging or trauma and we have to
[9:32] look at symptoms and presentation to the doctors to decide how it happened.
[9:39] They'll also re-diagnose people.
[9:40] They'll say, you know, the treaters said that the person had a discernation with ridiculous
[9:46] apathy that they suffered acutely as a result of the incident and the expert says they had
[9:51] a soft tissue, sprain, or strain that the body should heal within four to 12 weeks.
[9:56] So they'll just re-diagnose the person and say they have different injuries than what was
[10:01] actually discovered by the doctors.
[10:04] They'll also just grade the homework.
[10:07] This is like the negation defense where they won't even say what the person has or say what
[10:13] the person needs.
[10:14] They'll just look at what was done and say that it should have been done differently.
[10:18] Like the person had an MRI before they had had three months of therapy, then they shouldn't
[10:22] have done the MRI.
[10:23] They had an injection before they had three months of therapy.
[10:26] They shouldn't have done the injection.
[10:27] They had a medial branch block.
[10:28] They should have done an epidural steroid injection.
[10:31] It's just sort of saying no to whatever was done rather than formulating an opinion about
[10:36] like what's actually really going on here.
[10:38] How hurt are they?
[10:39] What do they need?
[10:40] Price is another big one.
[10:42] The doctors build X.
[10:43] They should have built Y.
[10:45] Y is always less.
[10:46] Sometimes doctors are charging a lot.
[10:49] Sometimes doctors are charging too much.
[10:51] It doesn't mean the planet doesn't owe the money, but they'll quibble about what the bills
[10:55] should be.
[10:56] It's a very common area of dispute.
[10:59] Future medical.
[11:00] Future is always uncertain.
[11:01] What's going to happen in the future?
[11:03] We don't know.
[11:04] You don't have a crystal ball, right, expert, so they'll fight about futures and they rarely
[11:09] feel like they look foolish doing so unless somebody is in a wheelchair or something like
[11:13] that.
[11:15] They can always kind of argue that somebody doesn't need something their doctor said
[11:20] that they did.
[11:21] Can delayed symptoms make it harder to prove that an injury was caused by the accident in
[11:26] the first place?
[11:27] I would say yes, and it feels like this issue carries more weight with juries than it
[11:34] really should.
[11:35] Everybody knows people will sometimes skip going to the doctor.
[11:39] Like for example, I'm micro-fractured my left foot when I was running in 2021, and I waited
[11:45] four days to go to the doctor.
[11:47] I had to be convinced to go to the doctor because I thought it was just a spray, and I walked
[11:51] in kind of sheepishly like, gee, whiz, I shouldn't even be here, but I'm just coming here
[11:55] to get it checked out.
[11:56] The doctor's like, yep, you've got a micro-fracture on your foot, so just because you've sustained
[12:01] some kind of injury doesn't mean that you're going to immediately rush to the first doctor
[12:04] that you could possibly find in order to document that you've got a problem.
[12:09] You know, there's people that are just doctor avoiders, sometimes like folks that played
[12:14] a lot of sports like are used to playing her, and they just don't go to the doctor every
[12:19] time.
[12:20] Upper respiratory infections are a great example.
[12:23] Some people go in right now because it could be bacterial, and they don't want to wait
[12:26] seven days before they get prescribed antibiotics of his bacterial, and other folks will just
[12:31] wait out the viral infection, and then only go into the doctor if it hasn't gotten better
[12:36] by the time a viral infection would have improved.
[12:39] Everybody kind of knows this, and we're dealing with this all the time, but the gaps in treatment
[12:44] hand, the defense in opening to question whether the injury was ever really real in the first
[12:50] place.
[12:51] It feels like they get more mileage from it than they really should because we all know from
[12:54] our daily lives that just because you're in pain or suffering discomfort from an illness
[13:01] or an injury does not necessarily mean that you must automatically go to the doctor.
[13:06] And sometimes things go undiagnosed for quite some time, so it does matter, and it feels
[13:11] like it matters more than it should.
[13:13] So why do prior medical records sometimes become the most heavily contestant evidence in
[13:18] these cases?
[13:19] Because the preexisting injury defense, another reason is that in the United States, the second
[13:25] most common reason somebody goes to a primary care doctor is for lower back pain.
[13:31] The primary number one reason when people go is for upper respiratory infection.
[13:36] But a lot of the time people will have gone to the doctor before for a back issue.
[13:42] A lot of people, once they get to a certain age, maybe their back has gone out once or twice.
[13:46] But if somebody's asked in a deposition, if you've ever been to the doctor before for back
[13:50] pain, they might say no because they don't remember it because it happened one time.
[13:53] And then all of a sudden, those records all go get subpoenaed, and then the plaintiff
[13:58] is tried to be made to look like they're being dishonest or hiding something from the jury.
[14:04] But in Texas, if a prior injury was asymptomatic at the time of the incident, the judges can
[14:09] instruct the jury not to subtract any money from the verdict based on this asymptomatic preexisting
[14:15] condition.
[14:16] I'm paraphrasing the jury's instructions, but that's the general gist of it.
[14:20] And also another thing is like some injuries compound, like the fact that you've had a prior
[14:24] traumatic brain injury actually makes it more likely that if you have another traumatic
[14:29] brain injury that you will get a worse outcome from it, it's exponential.
[14:33] So like repeat injuries make it worse and worse and worse.
[14:37] So having a preexisting TBI makes a present TBI claim more compelling, not less.
[14:46] But a lot of folks have kind of been programmed to treat preexisting condition as like a valid
[14:51] discount.
[14:52] And less somebody had the same problems before the incident that they have after the incident,
[14:59] a less than perfect body or less than perfect medical history isn't a valid defense in my opinion.
[15:04] And that's what we have to go to court to fight about sometimes.
[15:07] And to wrap up what usually ends up deciding cases where the accident itself is clear, but
[15:13] the injuries are still being heavily disputed.
[15:16] Two things, the credibility of the plaintiff and the mechanism of the injury.
[15:21] And I would even personally lean more towards the mechanism of the injury mechanism of the
[15:27] injury, meaning was it a car wreck, was it a trip and fall, sipping fall, if it's a car
[15:32] wreck, how bad was the car wreck, things like that that can be proven by physical evidence.
[15:37] Vehicle damage photographs, the plant went boom and sent a shock wave.
[15:41] And the reason why I think mechanism is often kind of the linchpin of these disputed injury
[15:46] cases is that nobody has to believe anybody.
[15:50] The jury can see it for themselves.
[15:51] Like if you hear that somebody fell free stories from a building or had a light fixture fell
[15:56] on their head, you're automatically getting certain images in your mind about how hurt the
[16:01] person can be.
[16:02] And if there's a fender bender, you're getting other images in your head about how hurt a person
[16:06] could be.
[16:07] And you know, if somebody has to sit through a one week, two week trial and listen to a
[16:12] ton of witnesses and experts who, you know, these folks over here saying one thing, those
[16:17] folks over there saying it's the complete opposite, it can start to feel like noise to
[16:21] juries and physical evidence kind of cuts through the noise, you know, severe damage photographs,
[16:28] make an injury more fundamentally believable than, you know, photographs that show barely
[16:33] detectable property damage.
[16:35] Sometimes it is unfair and doesn't make sense because often it does happen where people can
[16:42] get hurt very badly in relatively minor car crashes.
[16:48] And I've seen extreme car crashes where nobody was hurt or people sustained in minor injuries.
[16:53] But generally speaking, like the jury's perception of how believable the mechanism of injury
[16:59] is at causing the harm that is claimed is I think a big factor in whether or not jury's
[17:06] ultimately buy into the plaintiff's case.
[17:09] And when a mechanism is a little bit less conclusive, it often comes down to the gut check
[17:14] of, do we believe the plaintiff?
[17:16] It happens, you know, all the time where the credibility, the plaintiff's testimony, how
[17:21] well the plaintiff does, how supported the plaintiff's testimony is by friends, family and other
[17:26] relatives who know them, who can testify on their behalf and how well the experts do, those
[17:31] all kind of support the overall picture of how credible the plaintiff is.
[17:35] And I think that is another really big factor to consider.
[17:38] Kiernan, as always, for breaking this down for us, this has been super informative.
[17:42] Thank you, of course.
[17:43] Well, that wraps up this episode of Limit Exhausted Texas Injury Litigation Podcast with Kiernan
[17:49] McAlpine of McAlpine Law Firm.
[17:51] If you're dealing with a serious injury case involving complex litigation issues, visit
[17:56] McAlpineLaw.com to learn more.
[17:59] And be sure to like, leave a review, and subscribe to the show so you don't miss the next episode.
[0:07] Welcome back to Limits Exhausted, Texas Injury Litigation Podcast with attorney Kiernan
[0:12] McAlpine, founder of McAlpine Law firm in a board certified specialist and personal injury
[0:18] trial law by the Texas Board of Legal Specialization.
[0:22] Kiernan has tried more than 40 cases to verdict and is frequently brought in by other attorneys
[0:27] to handle complex, high exposure litigation involving 18-wheelers, catastrophic injuries
[0:33] and wrongful death.
[0:34] I'm Shameika Rhymes and today we're talking about what happens when fault is clear, but
[0:39] the defense argues the accident did not actually cause the injuries being claimed.
[0:44] Welcome back Kiernan.
[0:45] Thanks for having me, Shameika.
[0:46] So Kiernan, why do some injury cases become heavily disputed even after the defense
[0:52] admits fault for the accident?
[0:54] Think about trial like a credibility contest.
[0:58] The fewer losing points you argue, the better that you generally do.
[1:03] Sometimes clients want to fight everything like it's warfare, but ultimately fighting over
[1:08] everything is a lot like fighting over nothing.
[1:11] And smart defense lawyers know that.
[1:14] There's kind of an irony to this when we talk about stipulated cases which is what lawyers
[1:19] will call this where they stipulate to liability, meaning they admit liability and aren't
[1:24] going to contest it a trial, which is that there's something that I like to call a BS
[1:29] tax, which is how much the jury holds it against you when you make arguments that are BS.
[1:39] The defense pays a much lighter BS tax than plaintiff lawyers typically do because we brought
[1:46] the case and we have the burden of proof, so they kind of expect us to have it together
[1:52] when it comes to what we're arguing, but I don't know if it's because of a comparison
[1:56] to like criminal defense lawyers, but you know, defense lawyers clients are there involuntarily
[2:02] and jury's understand that it's the defense lawyers job to make arguments to help their client,
[2:08] even if those arguments aren't very good.
[2:09] So they pay a lighter BS tax, but they're also incentivized to argue about less if they
[2:16] can.
[2:17] Like a plaintiff's case is like a stool, you know, you don't need to knock out all three
[2:21] legs, you can just knock out one and it's going to fall down.
[2:23] So sometimes the smart move for the defense lawyer is to argue about less and pay less of
[2:29] a BS tax arguing points they won't win by viewing the case is ultimately about credibility.
[2:36] They can kind of try to conserve some credibility by pairing down arguments, especially ones
[2:42] that they don't think that they're favored to win.
[2:45] What are the most common arguments that defense attorneys use when they try to challenge injury
[2:50] causation?
[2:51] Preexisting conditions.
[2:52] I mean, preexisting condition is essentially an automatic defense that we're very likely
[2:59] to face in virtually every case in some form, you know, cases where it doesn't happen are
[3:08] very rare.
[3:09] Like for example, I just settled a $1.25 million case last week without filing a lawsuit.
[3:17] In that case, my client had a emergency neck fusion surgery in the hospital after being
[3:24] admitted after the crash within 24 hours.
[3:28] So it'd be really hard for them to ever argue that that surgery was necessitated by a preexisting
[3:34] condition.
[3:36] But in most cases where you don't have an immediate emergency surgery like that, you know, burn
[3:43] cases, it's hard to argue somebody has like preexisting face disfigurement because of
[3:48] burns.
[3:49] But in a lot of cases, the deal with things like chronic neck and back pain or, you know,
[3:54] TBI cases that involve, you know, chronic mental health or cognitive impairment problems, they
[4:01] will default to arguing that those are preexisting at least to some degree.
[4:06] So is that even when they get medical records and see that there's nothing in there that says
[4:11] that will they still try to argue preexisting?
[4:14] Oh, yeah.
[4:15] I've had a defense counsel through their experts argue that an 18 year old had a preexisting
[4:24] disc herniation in their neck caused by aging.
[4:27] So yes, they will argue this.
[4:31] It's completely generic like we see it every time pretty much.
[4:35] So why do preexisting conditions become such a major issue when injury causation is disputed?
[4:41] Because it doesn't need any specific evidence to make the argument, right?
[4:45] Like most cases that are, you know, crash cases or fall cases, the objective test for the
[4:52] injury and issue is an MRI and an MRI shows the condition of somebody's like spinal discs,
[5:01] but it doesn't show the cause and discs will wear with age like as people get older, the
[5:06] discs will dehydrate and they'll start to lose some structural integrity.
[5:12] And you know, once people are over the ages 70, typically they'll lose a little bit of height
[5:16] because their discs will compress.
[5:18] So just naturally by going about your business day to day through life, your discs will eventually
[5:24] become compromised at some point.
[5:27] So they'll blame aging.
[5:29] They'll just say that disc disc wasn't caused by this disc problem, wasn't caused by the
[5:36] incident, it was caused by normal wear and tear and like disease of life.
[5:42] And ultimately what they're doing is they're pointing at the limits of MRI technology.
[5:46] MRIs show us what somebody's discs look like, they don't show us how they got that way.
[5:51] So as long as that continues to be true, they will always be able to say, well, that's
[5:57] what their discs look like anyway already.
[6:00] And there usually aren't prior MRIs to show what the discs look like.
[6:03] So they'll just argue it and it's an easy argument for any defense expert to make based
[6:08] on nothing in particular other than the limits of what MRIs show.
[6:12] So why do imaging studies sometimes become that major battleground when the defense argues
[6:17] that the injuries existed before the accident?
[6:20] You know, let's say there is a, you know, after the accident, you get the MRI, but before
[6:25] maybe there is an x-ray or something.
[6:27] Of course, that's not going to show the same thing.
[6:29] Yeah, I mean, well, first of all, x-ray x-rays are very important to bring up because
[6:33] x-rays show the condition of the bones, right?
[6:37] So it's like x-rays will show you whether you have a fracture.
[6:41] X-rays typically will not show the condition of the disc.
[6:43] You need an MRI to show that, same with CTs.
[6:46] CTs are just like high-res x-rays.
[6:49] They don't show it's going on with the soft tissue.
[6:51] They show what's going on with the bones and most of the time when somebody sustains a
[6:55] herniated disc, they don't have a fracture.
[6:58] So, you know, x-rays are generally pretty useless unless you're dealing with a fracture.
[7:05] So the MRI shows what soft tissue looks like, again, not how it got that way.
[7:10] And I kind of answered this question with the last one, which means I'm anticipating your
[7:14] questions, which just tells you how often this comes up.
[7:16] It is a very, very, very, very common issue to have to argue about in a case.
[7:21] It's just, it's such a common defense.
[7:23] So, you know, over 50% of people, over 50, have herniations with zero symptoms.
[7:28] There's studies that have been done on this.
[7:30] It's like just because you have a herniated disc does not mean that you have any symptoms
[7:34] from it.
[7:35] In fact, it's more likely that you don't have symptoms.
[7:37] So, you know, I could very, I've never had an MRI of my spine before.
[7:40] I could very well have a herniation at one or more levels.
[7:43] And I don't know about it because it's never caused me a problem.
[7:46] So I've never gone into a doctor, so I've never had an MRI.
[7:49] But like causation of injuries doesn't just come from like an MRI.
[7:55] I mean, the MRI shows what's causing the pain specifically, but without the pain,
[8:00] there's no reason to do the MRI.
[8:02] So causation is often as much about when pain and dysfunction started, not just, you know,
[8:08] the anatomical cause of it.
[8:09] You do the anatomical cause analysis with the MRI to figure out what treatment needs to
[8:13] be done.
[8:14] But, you know, without pain, without symptoms, there isn't really an injury to speak of.
[8:19] So the MRI tells you this is what's causing the pain that disc is herniating and compressing
[8:24] and nerve and that's where the pain's coming from, but it doesn't tell you what caused
[8:28] it.
[8:29] And unless there's edema, like a lot of blood or an adjacent fracture that shows up on the
[8:34] MRI, the MRI doesn't tell you what caused it.
[8:36] So that's why it's always just essentially a freebie for them to say, well, what if they
[8:43] already had this problem, but they didn't already have the pain.
[8:47] So how do you defense experts try to separate the accident itself from that medical treatment
[8:53] that someone later receives?
[8:54] A lot of different ways I can only hope to adequately skim the surface of it, but one
[9:03] of them is it didn't happen.
[9:04] They're not really hurt.
[9:05] They're just after money.
[9:07] The whole thing is cooked up by plaintiff lawyers and, you know, greedy plaintiffs and crooked
[9:12] doctors.
[9:13] We see that.
[9:14] They're already hurt.
[9:15] They'll blame preexisting injuries, even if there's no medical records that show preexisting
[9:19] injuries and just say this person was already like this.
[9:22] Often times with the MRI with a radiologist that says, this was caused by aging, not by
[9:28] trauma.
[9:29] But in reality, the MRI can't tell you if it was caused by aging or trauma and we have to
[9:32] look at symptoms and presentation to the doctors to decide how it happened.
[9:39] They'll also re-diagnose people.
[9:40] They'll say, you know, the treaters said that the person had a discernation with ridiculous
[9:46] apathy that they suffered acutely as a result of the incident and the expert says they had
[9:51] a soft tissue, sprain, or strain that the body should heal within four to 12 weeks.
[9:56] So they'll just re-diagnose the person and say they have different injuries than what was
[10:01] actually discovered by the doctors.
[10:04] They'll also just grade the homework.
[10:07] This is like the negation defense where they won't even say what the person has or say what
[10:13] the person needs.
[10:14] They'll just look at what was done and say that it should have been done differently.
[10:18] Like the person had an MRI before they had had three months of therapy, then they shouldn't
[10:22] have done the MRI.
[10:23] They had an injection before they had three months of therapy.
[10:26] They shouldn't have done the injection.
[10:27] They had a medial branch block.
[10:28] They should have done an epidural steroid injection.
[10:31] It's just sort of saying no to whatever was done rather than formulating an opinion about
[10:36] like what's actually really going on here.
[10:38] How hurt are they?
[10:39] What do they need?
[10:40] Price is another big one.
[10:42] The doctors build X.
[10:43] They should have built Y.
[10:45] Y is always less.
[10:46] Sometimes doctors are charging a lot.
[10:49] Sometimes doctors are charging too much.
[10:51] It doesn't mean the planet doesn't owe the money, but they'll quibble about what the bills
[10:55] should be.
[10:56] It's a very common area of dispute.
[10:59] Future medical.
[11:00] Future is always uncertain.
[11:01] What's going to happen in the future?
[11:03] We don't know.
[11:04] You don't have a crystal ball, right, expert, so they'll fight about futures and they rarely
[11:09] feel like they look foolish doing so unless somebody is in a wheelchair or something like
[11:13] that.
[11:15] They can always kind of argue that somebody doesn't need something their doctor said
[11:20] that they did.
[11:21] Can delayed symptoms make it harder to prove that an injury was caused by the accident in
[11:26] the first place?
[11:27] I would say yes, and it feels like this issue carries more weight with juries than it
[11:34] really should.
[11:35] Everybody knows people will sometimes skip going to the doctor.
[11:39] Like for example, I'm micro-fractured my left foot when I was running in 2021, and I waited
[11:45] four days to go to the doctor.
[11:47] I had to be convinced to go to the doctor because I thought it was just a spray, and I walked
[11:51] in kind of sheepishly like, gee, whiz, I shouldn't even be here, but I'm just coming here
[11:55] to get it checked out.
[11:56] The doctor's like, yep, you've got a micro-fracture on your foot, so just because you've sustained
[12:01] some kind of injury doesn't mean that you're going to immediately rush to the first doctor
[12:04] that you could possibly find in order to document that you've got a problem.
[12:09] You know, there's people that are just doctor avoiders, sometimes like folks that played
[12:14] a lot of sports like are used to playing her, and they just don't go to the doctor every
[12:19] time.
[12:20] Upper respiratory infections are a great example.
[12:23] Some people go in right now because it could be bacterial, and they don't want to wait
[12:26] seven days before they get prescribed antibiotics of his bacterial, and other folks will just
[12:31] wait out the viral infection, and then only go into the doctor if it hasn't gotten better
[12:36] by the time a viral infection would have improved.
[12:39] Everybody kind of knows this, and we're dealing with this all the time, but the gaps in treatment
[12:44] hand, the defense in opening to question whether the injury was ever really real in the first
[12:50] place.
[12:51] It feels like they get more mileage from it than they really should because we all know from
[12:54] our daily lives that just because you're in pain or suffering discomfort from an illness
[13:01] or an injury does not necessarily mean that you must automatically go to the doctor.
[13:06] And sometimes things go undiagnosed for quite some time, so it does matter, and it feels
[13:11] like it matters more than it should.
[13:13] So why do prior medical records sometimes become the most heavily contestant evidence in
[13:18] these cases?
[13:19] Because the preexisting injury defense, another reason is that in the United States, the second
[13:25] most common reason somebody goes to a primary care doctor is for lower back pain.
[13:31] The primary number one reason when people go is for upper respiratory infection.
[13:36] But a lot of the time people will have gone to the doctor before for a back issue.
[13:42] A lot of people, once they get to a certain age, maybe their back has gone out once or twice.
[13:46] But if somebody's asked in a deposition, if you've ever been to the doctor before for back
[13:50] pain, they might say no because they don't remember it because it happened one time.
[13:53] And then all of a sudden, those records all go get subpoenaed, and then the plaintiff
[13:58] is tried to be made to look like they're being dishonest or hiding something from the jury.
[14:04] But in Texas, if a prior injury was asymptomatic at the time of the incident, the judges can
[14:09] instruct the jury not to subtract any money from the verdict based on this asymptomatic preexisting
[14:15] condition.
[14:16] I'm paraphrasing the jury's instructions, but that's the general gist of it.
[14:20] And also another thing is like some injuries compound, like the fact that you've had a prior
[14:24] traumatic brain injury actually makes it more likely that if you have another traumatic
[14:29] brain injury that you will get a worse outcome from it, it's exponential.
[14:33] So like repeat injuries make it worse and worse and worse.
[14:37] So having a preexisting TBI makes a present TBI claim more compelling, not less.
[14:46] But a lot of folks have kind of been programmed to treat preexisting condition as like a valid
[14:51] discount.
[14:52] And less somebody had the same problems before the incident that they have after the incident,
[14:59] a less than perfect body or less than perfect medical history isn't a valid defense in my opinion.
[15:04] And that's what we have to go to court to fight about sometimes.
[15:07] And to wrap up what usually ends up deciding cases where the accident itself is clear, but
[15:13] the injuries are still being heavily disputed.
[15:16] Two things, the credibility of the plaintiff and the mechanism of the injury.
[15:21] And I would even personally lean more towards the mechanism of the injury mechanism of the
[15:27] injury, meaning was it a car wreck, was it a trip and fall, sipping fall, if it's a car
[15:32] wreck, how bad was the car wreck, things like that that can be proven by physical evidence.
[15:37] Vehicle damage photographs, the plant went boom and sent a shock wave.
[15:41] And the reason why I think mechanism is often kind of the linchpin of these disputed injury
[15:46] cases is that nobody has to believe anybody.
[15:50] The jury can see it for themselves.
[15:51] Like if you hear that somebody fell free stories from a building or had a light fixture fell
[15:56] on their head, you're automatically getting certain images in your mind about how hurt the
[16:01] person can be.
[16:02] And if there's a fender bender, you're getting other images in your head about how hurt a person
[16:06] could be.
[16:07] And you know, if somebody has to sit through a one week, two week trial and listen to a
[16:12] ton of witnesses and experts who, you know, these folks over here saying one thing, those
[16:17] folks over there saying it's the complete opposite, it can start to feel like noise to
[16:21] juries and physical evidence kind of cuts through the noise, you know, severe damage photographs,
[16:28] make an injury more fundamentally believable than, you know, photographs that show barely
[16:33] detectable property damage.
[16:35] Sometimes it is unfair and doesn't make sense because often it does happen where people can
[16:42] get hurt very badly in relatively minor car crashes.
[16:48] And I've seen extreme car crashes where nobody was hurt or people sustained in minor injuries.
[16:53] But generally speaking, like the jury's perception of how believable the mechanism of injury
[16:59] is at causing the harm that is claimed is I think a big factor in whether or not jury's
[17:06] ultimately buy into the plaintiff's case.
[17:09] And when a mechanism is a little bit less conclusive, it often comes down to the gut check
[17:14] of, do we believe the plaintiff?
[17:16] It happens, you know, all the time where the credibility, the plaintiff's testimony, how
[17:21] well the plaintiff does, how supported the plaintiff's testimony is by friends, family and other
[17:26] relatives who know them, who can testify on their behalf and how well the experts do, those
[17:31] all kind of support the overall picture of how credible the plaintiff is.
[17:35] And I think that is another really big factor to consider.
[17:38] Kiernan, as always, for breaking this down for us, this has been super informative.
[17:42] Thank you, of course.
[17:43] Well, that wraps up this episode of Limit Exhausted Texas Injury Litigation Podcast with Kiernan
[17:49] McAlpine of McAlpine Law Firm.
[17:51] If you're dealing with a serious injury case involving complex litigation issues, visit
[17:56] McAlpineLaw.com to learn more.
[17:59] And be sure to like, leave a review, and subscribe to the show so you don't miss the next episode.
