Limited Tort Litigation – Using the Plaintiff’s Perspective to Shape the Pleadings and Discovery
Defense Digest, Vol. 25, No. 1, March 2019
By Joan P. Depfer, Esq.*
Since the 1990s, Pennsylvania motorists have had the ability to select “full tort” or “limited tort” coverage options when purchasing car insurance. Full tort coverage provides the motorist with the option to sue for and recover damages for pain and suffering for injuries resulting from any accident. By selecting limited tort coverage, insureds waive the right to seek pain and suffering damages under most instances in exchange for a discounted premium (up to half of the cost of those providing full tort benefits). In Philadelphia, it is estimated that 95 percent of insured drivers carry limited tort coverage. Therefore, many automobile cases involve a limited tort plaintiff.
The determination of whether or not a limited tort plaintiff may recover pain and suffering damages turns upon the legal concept of whether an injury constitutes a “serious impairment of a bodily function.” There are plaintiff’s personal injury firms in Philadelphia specializing in limited tort cases who tout their expertise to the legal industry and general public. They would have you believe that plaintiffs’ rights to recovery have been devastated by the limited tort option, and it has resulted in unfair treatment and undervaluation of cases. Advertisements both online and in legal periodicals directed to both potential clients and referral counsel cover the pitfalls in limited tort cases and their claimed “keys to success.” The truth is that limited tort defense can often be successful, and a closer examination of plaintiffs’ litigation strategies and tactics can aid in formulating a winning defense right from the start.
Pre-Litigation and Pleadings
Plaintiffs are counseled by limited tort practitioners to file their limited tort cases as major jury cases, rather than arbitration matters in Philadelphia, because the determination of serious bodily injury “is a practical decision for 12 strangers” on a jury. If the plaintiff is likeable and the jury will be comprised of Philadelphia residents, limited tort lawyers believe that they are winning already. This filing tactic “sets the tone” for the litigation, with early settlement negotiations to be discouraged.
Suggestions for the Defense: It may seem basic, but ensure that a limited tort plaintiff is identified at the onset of litigation, and obtain the necessary documentation for their election (declaration sheet, election form signed). Evaluate venue and jurisdictional challenges or potential removal of the case to federal court. Knock out legally insufficient claims and improper efforts to preserve “other acts of negligence to be determined” with preliminary objections. Preserve all applicable affirmative defenses and cross claims, and consider joining third parties where appropriate. If the value of the case is clearly within arbitration limits, take steps to remand it. Since most carriers are interested in early resolution as a cost-control measure, consult them about the pros and cons of requesting a demand. Sometimes it doesn’t hurt to see how your opponent values (or overvalues) the case. They have business and litigation costs to consider, too, including retaining and deposing a medical expert.
Discovery and Depositions
Plaintiffs gear their discovery and investigation in limited tort cases towards marshalling evidence of an objective manifestation of a serious impairment of a bodily function which can be used at trial. Limited tort attorneys encourage the creation of “a consistent record of plaintiff’s restrictions and cessations of activities of daily living by having the client specify pain, limited strength and mobility that affect each endeavor.” This information should be consistently detailed in treating doctors’ notes, expert reports, during the plaintiff’s deposition and in defense medical examination. The plaintiff’s injuries and restrictions can be corroborated by family damages witnesses.
Suggestions for the Defense: Use written discovery as a preliminary tool to identify all educational, employment and medical records to be acquired. Perform pre-deposition investigation of prior accidents and litigation—social media searches or even surveillance can yield a treasure trove of inconsistencies to be used during the deposition or later in the case. During the deposition, ask (and demand) the plaintiff to identify each and every limitation of their activities in an effort to close out the claims, and confirm that they have identified all of them. Be prepared to cross-examine the witnesses on their specific activities and when and how much they participated in such. You would be surprised to hear and determine that they last participated in an activity when they were in their teenage years. Also, if a plaintiff seems to heavily exaggerate his or her claims, arrange surveillance to video their activity level. Depose all identified damages witnesses. Evaluate the credibility of all witnesses and how a jury will view them.
Plaintiffs must present medical testimony in every limited tort case. Practitioners caution that the selection, preparation and presentation of the expert is key, because “[they] know that a good expert witness could change the way the carrier evaluates the case.” Also, plaintiffs’ counsel recommend to list the treating doctor as a fact witness at trial and then collaborate their testimony with the expert who will speak to causation.
Suggestions for the Defense: Limited tort attorneys often use the same treaters and experts over and over again. Investigate the doctor’s bias through the use of expert interrogatories addressing retention and compensation and the expert’s history of testimony. When selecting a defense doctor, think outside the box of usual experts. Talk to colleagues and consult resources.
Limited tort attorneys consider a major jury trial before a Philadelphia jury as their ultimate goal, because “insurance companies don’t get to decide how serious [a] client’s injury is,” and the jury is a “plaintiff’s greatest ally.” An aggressive approach with the litigation will “send a message” to the insurance company.
Suggestions for the Defense: In Philadelphia, summary judgment for the defense is a rare occurrence. However, in a limited tort case, there may be strong legal positions that merit a partial motion for summary judgment. Also, practical and economic factors may make high-low parameters and/or mediation attractive to a plaintiff and insurance carriers. Finally, at trial, gather all information obtained in discovery, and use a common-sense approach to presenting it to the jury. Photos of no damage to the vehicle, gaps or limited treatment, treatment via attorney recommendation, and/or lack of any significant issues in daily life will support arguments that there is not a serious impairment of bodily function.
Limited tort claims have been and will continue to be a major source of civil litigation in Philadelphia and other Pennsylvania jurisdictions. Although plaintiffs may try to press these cases to trial, the defense must not lose focus. Formulate a winning strategy at every step of the litigation.
Joan is a shareholder in our Philadelphia, Pennsylvania office. She can be reached at 215.575.4559 or firstname.lastname@example.org.
Defense Digest, Vol. 25, No. 1, March 2019. Defense Digest is prepared by Marshall Dennehey Warner Coleman & Goggin to provide information on recent legal developments of interest to our readers. This publication is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. ATTORNEY ADVERTISING pursuant to New York RPC 7.1. © 2019 Marshall Dennehey Warner Coleman & Goggin. All Rights Reserved. This article may not be reprinted without the express written permission of our firm. For reprints, contact email@example.com.