Right to Jury Trial:
The right to a trial by jury is a fundamental Constitutional right. However, what many people don’t understand is that not only does the injured person have a right to a jury trial but so does the insurance company and an insurance company will always insist on trial by jury even if the injured party is happy with a judge deciding the case. Insurance companies believe that they can more easily manipulate a jury.
Insurance Companies Get To Hide At Trial:
In every personal injury case the attorneys and parties are ordered by the judge not to mention insurance. The lawsuit is brought against the insured person not the insurance company and although there is always insurance, no one is allowed to the tell the jury that the real party being sued is an insurance company. The insurance company is allowed to hide from the jury and in fact, the jury is instructed by the court that they are not to even consider or speculate about the availability of insurance. This can result in the “defendant,” i.e. the person sitting in court with the insurance company’s attorney, receiving sympathy that the insurance company does not deserve.
Insurance Companies Rely Upon Biased Experts To Escape Responsibility:
An injured person will call the doctors that treated him/her as witnesses to show a jury the injuries and harm. In defending a personal injury case, the insurance company will rely almost exclusively on so called “expert” witnesses. Unfortunately, these experts are far from neutral and are there to say whatever the insurance company needs them to say. These professional witnesses have become rich doing the insurance industry’s bidding.
Clients, and even jurors, go into a trial thinking that the judge would not allow someone to testify to something that isn’t true. This is simply not the function of a judge. If a witness is qualified with the right education and experience, the judge is powerless to prevent the witness from testifying as to their “expert” opinion, even if the judge does not find that person to be honest or credible. Further, the judge must keep his/her opinion about the witness quiet.
These professional witnesses take hundreds of thousands of dollars from insurance companies, sometimes millions, and then state their “opinions” with complete impunity. It is impossible to prosecute someone for perjury for stating an opinion, as even an objectively wrong opinion can’t be proven to be dishonestly held (In my “opinion,” the grass is blue and the sky is green). Further, witnesses who testify at trial, even dishonestly, cannot be sued as they are protected by something called the litigation privilege, which is a law that prevents witnesses from being sued.
Unfortunately, many of these professional witnesses have amazing credentials and impressive resumes. The amount of money insurance companies will pay these men and women can cause even the most educated to throw away their integrity. It’s easy money and they only need to set aside their morals to get rich. Many of them rationalize their actions by pretending it’s just a game and they are not really being dishonest.
The Degenerative Disc Disease Lie:
Lawyers for insurance companies often argue to juries that the injuries from the accident actually pre-dated the accident and are due to degenerative disc disease (DDD). DDD is neither a disease nor degenerative and is nothing more than the name given to the natural wear and tear our spines endure over the course of our lives; little everyday micro traumas from simply using our spines. A spine MRI for most people will show at least some wear and tear, i.e. cracks in discs, bulging, etc…, which is normal and expected. Further, as longs as that wear and tear is not causing you symptoms then it really does not matter. In fact, even a major herniation of a disc does not matter if it is not causing you symptoms or otherwise causing harm.
When you suffer a trauma then that “wear and tear” can become much worse and can now cause very severe symptoms. However, the insurance lawyers and their hired experts will always contend that, because your MRI shows wear and tear, there is no injury and you are suffering from degenerative disc disease. As everyone’s MRI will show wear and tear, they will make this claim in nearly every case. It is very dishonest but unfortunately, also routine.
The real questions should be whether the person had the problem, i.e. the pain and symptoms, before the accident and, if so, whether those symptoms were made worse because of the trauma. Simply pointing to the wear and tear on an MRI that everyone has, calling it degenerative disc disease and then claiming that this “disease” is what required treatment is misleading and dishonest.
Low-Speed Impacts Can Cause Serious Injuries:
Many automobile accident cases involve collisions which did not result in a lot of property damage and sometimes no visible damage at all. Jurors often look at these kinds of accidents and write them off as so-called “fender-benders” which could not injure anyone. The truth is that property damage is not a good predictor of injury. You can be involved in a horrific collision where the vehicles are mangled and not suffer any injury at all. Conversely, it is not uncommon for a person to suffer life-long injuries in accidents where the vehicles appear undamaged. So what accounts for whether injury occurs or not? It’s simple…bad luck!
We have all been indoctrinated by television and movies where we witness massive collisions where the hero is never hurt and always jumps out of the wrecked car and continues to chase the bad guy. We are left with a subconscious false impression about car accidents, but the truth is that there is a reason those accidents are staged by professional stunt men and women and Hollywood’s depiction of car accidents is a complete fantasy. In addition, many of us have been involved in so-called fender-benders and did not suffer injuries which further bolster our confidence that we cannot be injured in such accidents. But the truth is that we are only less likely to be injured and we were just lucky in the past.
Most people don’t understand why injuries occur. In most accidents, the car is hit not the occupants. The occupants don’t get hit by the other car nor is there intrusion into the passenger compartment by the impact. The occupants are wearing seatbelts and are not thrown from the vehicle nor do their bodies collide against anything within the vehicle. So why do they get injured? These accidents cause injuries because of the acceleration/deceleration of the occupants within the vehicle from the impact. Any time two vehicles collide the vehicles are going accelerate and decelerate due to the impact. When the cars accelerate/decelerate so do the occupants.
The acceleration/deceleration of the humans within the vehicles occurs in a fraction of a second and our minds are not even capable of processing fully what occurred. We remember being forcefully jolted and that’s about it. Unfortunately, our bodies are simply not designed for this and injuries occur.
It is certainly true that a higher energy accident is more likely to cause injury, but it cannot be concluded that a low energy accident will not cause injury.
Insurance Companies Reliance On The Junk Science of So-Called Biomechanical Experts:
In the early 1990s the insurance industry began promoting the idea that we could calculate a threshold force which would cause injury in an accident. As all human beings are different, this was always an inherently flawed idea. You cannot calculate a force that will cause the human body to suffer injury. However, the insurance industry quickly learned that juries can be fooled into believing that it is possible to determine such a force. As a result, an entire industry developed of professional “biomechanical experts” whose sole job is to testify on behalf of insurance companies that an accident victim either was not injured or could not have suffered certain injuries. This has resulted in a windfall of profits to insurance companies at the expense of injured people.
Biomechanics is a field that studies the application of mechanical principles to human function. This a profession responsible for great things like high functioning prosthetics (artificial limbs) for veterans. It is unfortunate that some people in this profession have decided to waste their education on becoming insurance company experts. These individuals are more interested in money than helping people. They are often affectionately referred to as “BioMcLiars” or “BioMcFrauds”.
Injury in car accidents usually occurs because of an acceleration/deceleration of the occupants of the vehicle, which is caused by the impact accelerating or decelerating their vehicle. The acceleration/deceleration is referred to as a change in velocity or a delta v. Insurance company experts attempt to perform accident reconstructions to compute a delta v, but the numbers are more guesstimates than calculations and they are always fudged to get as low a delta v as possible.
The insurance company experts then determine injury threshold in one of two ways: 1) human crash studies or 2) the comparison approach. There are very limited crash studies available and none of them are scientifically valid. Many involve these experts crashing themselves and their colleagues and asking each other if their hurt. A valid, double blind, study with a representative sample of human beings cannot be done because it would be unethical. The reason it would be unethical is that they would injure people!
The second approach is more common. The expert will cite to studies of common everyday events where the forces are calculated and claim that the accident involves even less force. For example, the expert will claim that walking, jogging, or participating in particular carnival rides involves less force than was experienced by the occupants of the vehicle. The so-called studies that the experts rely upon are studies of other professional insurance company witnesses. In other words, these experts actually create the studies for each other that they rely upon in court and they are all biased and flawed. Further, these studies rely upon the average change in velocity not the peek acceleration and people are prepared for the everyday event but they are not prepared for an accident, which makes a big difference in outcome.