The first issue involves the service of a catastrophic injury matter. Essentially, the timing of service greatly impacts the response to the Complaint Timing is critical in that a plaintiff may be able to delay service, making it more difficult for the defendant to respond to the Complaint.
For instance, if there is a court that pushes all cases for a trial within a year, service can be effectively delayed for 60 days. With the 75-day summary-judgment statute, civil litigation attorneys must be cognizant of the timing and deadline from the outset. A catastrophic case must be responded to immediately, not only with a responsive pleading but also with discovery, in order to identify the nature and scope of the claimed damages. Moreover, unique to the catastrophic case is that there must be a great emphasis on damage discovery; Typically, defense attorneys will focus on the liability phase and delay discovery as to damages. But with a catastrophic case, personal injury attorneys focus on damages must be a primary focus of the immediate investigation. Any delay as to damage discovery can impair the defense position on the case.
Discovery and investigation
The defense perspective is largely different from the plaintiff’s perspective. Not only is there typically a detailed budget provided to the carrier (when available) concerning what the future course would likely entail, there needs to be a discovery plan in place at the outset of the representation. Written discovery through interrogatories, requests for admission, and production demands must be immediate. Although professional courtesy dictates reasonable extensions, in the catastrophic case, this cannot be delayed for an extended period of time. Moreover, subpoenas must be rapidly issued once the responses are obtained to those healthcare providers identified in the responses to discovery. Any lengthy postponement as to responses or as to the issuance of subpoenas creates a growing problem for the defense.
Catastrophic cases are largely export-dependent about the extent of the damage analysis. If the plaintiff is given the opportunity to challenge the defense experts for not having enough information, or reading thousands of pages of medical records two hours before their deposition, the defense is at an enormous disadvantage.
Other than the typical interrogatories, the best lawyers’ focus has to be made on the scheduling of the independent medical examinations. One area which could and likely will be subject to dispute involves the degree and extent of the examination, and in particular, mental examinations. If there is going to be a dispute, i.e. whether the plaintiff team can have a representative present, or whether there will actually be testing, must be resolved rapidly.
One of the great advantages a plaintiff team has is the obvious control over their client. For instance, in large cases in which the mental health of the plaintiff is an issue, the plaintiff’s attorney can have their client sit for the panoply of mental examinations with the primary concern being cost but not time.
For the defense, the plaintiff’s attorney can attempt to try to block extensive examination and testing as too invasive or excessively damaging to the plaintiff. I wish frankly I had kept every letter from one of my worthy adversaries which reads something along these lines: “Your clients have already destroyed Ms. Smith’s life, now you want to do it again with two days of testing? No chance.” However, depending on the type of case, the defense must pursue such recourse when evaluating whether such testing may advance the defense position.
Expert retention and preparation
The role of the experts is obviously of critical importance. In assessing and determining the future and past loss damage claim, it is likely that two separate experts will be considered – the vocational rehabilitation expert and the forensic economist. Further, the defense will utilize the services of case-specific experts regarding the purported liability and causation as well as consider the possible retention of a life-care planner.
As to the retention of an economist, the determination from the defense is actually potentially different than that of a plaintiff’s expert. A defense economist can hurt the defense case if his or her report ends up in a numerically’ similar fashion to the plaintiff expert. However, from the defense perspective actually, the economist and the relationship to the plaintiff’s firm does shed light on a potential posture. If an economist and his or her relationship in the plaintiff’s firm is well-known to the defense, it is typically likely that the economist retained by the plaintiff may have a larger purported damage calculation. This may further increase the defense’s desire to obtain its own economist.
To that end, from the defense attorney’s perspective, it is desirable for depositions of the plaintiff’s expert to predate the defense expert’s. A plaintiff’s report is relatively constant: an evaluation of past and future loss; however, it is likely that the defense opinion will also attempt to challenge the plaintiff’s conclusions.