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Preexisting Conditions and Comparative Fault: Strengthening Plaintiff’s Case by Upending Efforts to Shift Blame

Recording of a 90-minute CLE video webinar with Q&A

This program is included with the Strafford CLE Pass. Click for more information.
This program is included with the Strafford All-Access Pass. Click for more information.

Conducted on Thursday, July 13, 2023

Recorded event now available

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This CLE webinar will discuss how plaintiffs’ counsel can turn the tables on predictable defense strategies related to contributory negligence and leverage a pre-existing condition to make the jury understand the severity of a specific plaintiff’s injuries. The panel will explain how to meet these defenses head on and reverse the typical narratives.

Description

With a thorough understanding of how the applicable jurisdiction apportions fault, plaintiff’s counsel can nimbly thwart attempts to inappropriately shift blame and focus from the defendant to plaintiff.

It is black letter law that defendants must take their plaintiffs as they find them, but too often the defense tries to suggest that preexisting conditions should preclude pain and suffering compensation for the "eggshell" plaintiff. Nothing could be further from the truth.

Preexisting injury cases require thoughtful planning and often the use of experts, but preexisting conditions can justify higher damages by explaining that the extent and severity of the plaintiff's pain and suffering under circumstances in which others might not have been hurt.

Listen as this experienced panel guides counsel through the advantages and disadvantages of taking cases involving preexisting injuries as well as how to navigate allegations of comparative and contributory fault.

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Outline

  1. Comparative and contributory fault schemes
    1. Factors that impact juries' apportionment of fault
    2. Best practices for personal injury attorneys to overcome plaintiff's level of fault
  2. Types of preexisting condition
    1. Asymptomatic
    2. Symptomatic preexisting condition that is worsened
    3. Overall physicality is diminished
    4. Physical and mental preexisting conditions
  3. Causation
    1. Different injury
    2. Aggravated injury
  4. Factors supporting general damages related to preexisting conditions
    1. Personality and demeanor of plaintiff
    2. Location, timing, nature of post-accident pain and suffering
    3. Role of experts
    4. Before and after activities
    5. Transparency
  5. Jury instructions

Benefits

The panel will review these and other key issues:

  • What is the effect of a plaintiff's partial responsibility for an accident?
  • What arguments work best for reducing the plaintiff's fault?
  • How might preexisting conditions increase recovery for pain and suffering compared to cases with none?
  • What factors affect recovery in preexisting condition cases?
  • Does it matter if the preexisting condition is emotional, mental, or physical?

Faculty

Ptacek, Brook
Brook Ptacek
Attorney
Beasley Allen

Ms. Ptacek is a lawyer in the firm’s Personal Injury Section, where she represents individuals who have been...  |  Read More

Seiferheld, Kevin
Kevin H. Seiferheld
Attorney
Michigan Auto Law

Mr. Seiferheld has been a trial lawyer for nearly 25 years. He specializes in litigation involving large commercial...  |  Read More

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