Plaintiff Receives Verdict in ‘Soft Tissue’ Case

Attorney says to trust subjectivity in medicine

Attorney Sean Dormer of Dormer Harpring in late April received a verdict in a case that he said shows the difficulties of soft tissue personal injury litigation.

Dormer’s client, Jill Schultz, was involved in a rear-end car crash that resulted in a concussion and what appeared to be a muscle strain. In the collision, she was stopped behind a bus with a minivan and a Honda CR-V still moving behind her. The at-fault driver testified that she never saw the bus, Dormer said, adding that he saw that as an indication she was a distracted driver. Schultz said she remembered feeling a small “nudge” before the collision, but a reconstruction of the collision showed there was only one impact. Schultz had little damage to her car, which Dormer said made for a difficult case to convince a jury that the impact was serious enough to cause her injuries.

Dormer said the case is a typical case within the insurance industry’s “Minor Injury Soft Tissue” program. The crash happened at low speeds, and Schultz was diagnosed with a neck strain, but also showed signs of a disc injury, Dormer said. She did physical therapy, got an MRI and had some injections, but never got surgery. One of her treating doctors testified that she might need surgery 10 or more years down the line.

Despite the fact that Schultz’s injuries were difficult to show, an Arapahoe County jury did find that she had injuries and that the at-fault driver was negligent. Because of that negligence, the jury returned a verdict with a significant allocation of non-economic damages. Schultz received an award for a total of $122,374.96, with $73,656 of that amount awarded for non-economic damages. Dormer said he and his client had asked for more but that was a “very fair result that rejects the auto insurance industry’s MIST program as not grounded in valid engineering or medical science.”

Dormer said the case presented several challenges in bringing it to trial. One initial hurdle was determining the client’s injuries and determining if there was a case. Dormer said there was minimal damage to the client’s SUV, but the trailer hitch and assembly were broken, both steel parts. “It doesn’t look like a lot, but it can be,” Dormer said, adding that an attorney must “look under the hood” to determine how significant it was. 

The same could be said about Schultz’s injuries. Soft tissue injuries might not even show up in MRIs and even when they do, it can be difficult to show when or how they occurred. Dormer said the he worked to get the jury past their biases with the minimal auto damage and the invisible client injuries.  

He said the insurance company’s counsel was a defense attorney whom he’s faced other times in the past, with mixed results. They split two previous cases with similar facts, though Dormer said both were helpful experiences. He did research to prepare for the arguments the defense was likely to bring. 

“The case was so hard fought on every issue, there were objections to just about everything,” Dormer said. The case was set to end on Friday and ended up spilling over until the following Monday. At the end of it, the “jurors were ready to go home,” he said. 

He believed that the significant issue for the jurors though, was in testimony from Schultz’s doctor as well as the defendant’s medical expert. “We thought we’d done a thorough job, but a couple of jury questions were helpful in learning what they found important,” Dormer said. One asked whether doctors consider subjective information when treating patients, which Dormer thought was significant for the MIST issues. “Good medicine involves listening to patients,” he said, “and yet one of the big defenses is ‘objective versus subjective,’ creating a divide between the two.” 

That issue of subjective medicine is a concern of Dormer’s that expands beyond the one case. “The biggest thing is the MIST insurance company program,” he said. “That’s a concept they’ve invented. … The truth is usually a lot more complicated when you’re dealing with medicine than just looking at two factors.”

Dormer said there have not been motions for appeal filed for the case, which ended April 24, and he doesn’t expect any that would affect the jury’s decision. One possible issue on appeal deals with a question of which insurance company is required to pay out after Schultz’s underinsured motorist policy intervened after claims exceeded the at-fault driver’s policy limits.

— Tony Flesor, [email protected]

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