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Alternative Dispute Resolution
Demands Not Tethered to Medical Expense Totals Become
More Common
 Marc Harwell
By Marc Harwell
Demands from plaintiffs that are not tethered to the medical expenses are becoming more common. The days of case valuations using an “X” factor from the medical expenses is becoming a distant memory. Medical expenses are just one of many factors that are available for the discussion of case value from the perspective of the plaintiff and the defendant.
In my work as a neutral and in my work as a defense advocate, I understand that in certain cases the medical expenses might well detract from the story that the plaintiff wants to tell to maximize a recovery. In states that only allow the plaintiff to introduce the medical expenses paid rather than billed, the plaintiff may not want to present to the jury a story that uses medical expenses as a base line. Even in states such as Tennessee that only allow the medical expenses billed to be presented to the jury, I have seen more plaintiffs changing the focus of their damages presentations away from the medical expenses and toward less tangible non-economic damages such as pain and suffering and loss of enjoyment of life.
In cases where the medical expenses are not substantial, but the plaintiff has good proof of non- economic loss, the plaintiff ’s counsel may find the medical expenses to limit the potential recovery if the deliberations about value begin at the insubstantial number.
If the plaintiff has photographs or video evidence, property damage, and witnesses that all tell a compelling story of substantial force causing significant trauma and associated physical injury, such evidence is being used by skillful plaintiff’s counsel to begin its narrative. If the plaintiff can develop that story line compelling medical evidence of permanent injury and associated impairment that support non- economic loss of pain and suffering and loss of enjoyment of life, the plaintiff’s attorney only creates an environment for an award without self-imposed limitations.
This type of damages presentation strategy seems to me to be consistent with plaintiff’s counsel application of the reptile theory. In that application, plaintiff‘s counsel creates a narrative that seems reasonable unless and until the fallacy of premise is revealed. The narrative is designed to create fear and vulnerability. The next step is to empower change through retribution to eradicate the source

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