"Containment" is a defense strategy employed to limit verdict potential on a serious injury case with full or poor liability. A containment strategy is a multi-pronged approach to limit damages awarded where the plaintiff has the potential for a large verdict award. When used effectively, a containment strategy can limit damages to an acceptable level in line with the evaluation of damages by your carrier.
Consider our most recent trial with a verdict on February 11, 2016 in Suffolk County, Supreme Court before Judge Andrew Tarantino, Jr. The facts included a head-on automobile collision on May 4, 2012, where we conceded full liability. The 65 year old plaintiff, a primary care physician with a medical practice in Brooklyn, suffered displaced comminuted fractures of the third, fourth, and fifth metatarsals of the left foot. She underwent surgery on an emergency basis at St. Catherine of Siena Hospital. The surgical procedure included open reduction and internal fixation. The plaintiff was out of work for 15 months post-accident. In 2014, the plaintiff had a second surgical procedure performed on an outpatient basis to remove the hardware to her left foot. In January of 2015, she sought treatment from a pain management specialist for complaints of constant pain to her left lower extremity. She was diagnosed with Type I Complex Regional Pain Syndrome (RSD), which was confirmed by our neurologist. She also claimed anxiety and depression based on her limitations post accident and her prolonged period of inactivity. The plaintiff testified to constant pain and sensitivity to her left lower extremity as a result of the complex regional pain syndrome.
The "Demand" to settle this case was never lower than a million dollars. The coverage available was $3.5 million with a $300,000 offer prior to the verdict. The jury awarded $75,000 for past pain and suffering, $140,000 for future pain and suffering and $177,500 for past and future loss of earnings.
How did "Containment" as a strategy work in this case? Most importantly, we were in Riverhead, where juries are hostile to personal injury plaintiffs. If this were in the Bronx or Kings, the full policy could have been exposed. Secondly, we had excellent surveillance of the plaintiff, which obviously played well for the jury. The surveillance alone saved the carrier from a seven figure verdict. How we presented the case was also effective. In jury selection and at trial, the presentation must include mention that a reasonable award is warranted, however, the plaintiff's portrayal of the effects of the injury are clearly exaggerated.
On cross examination, the following questions were propounded to Dr. Patel who responded as follows:
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Question: Dr. Patel, as far as treatment for the Complex Regional Pain Syndrome, you went to one doctor that your lawyer recommended, two years ago and did not follow any of his recommendations; is that fair to say?
Question: And as far as the anxiety and depression, you also went to one doctor your lawyer recommended, three years ago, and you did not follow any of those recommendations; is that also fair to say?
A lesson learned for the plaintiff perhaps in managing client expectations. Here, the $3.5 million policy was too great a potential recovery for the plaintiff, to settle the case. I have attached the direct and cross examination transcript of the plaintiff's surgeon, Dr. Richard Boccio. All in all, a decent result on a difficult case.
Read the transcript here.