New York Personal Injury Trials
The Opening Statement in the Herniated Disc Case
New York Law Journal, Thursday, May 5, 2005
Ben B. Rubinowitz and Evan Torgan
Although at one time, the law recognized a
herniated disc for
what it was--a significant and debilitating injury, today, with
the statutory threshold requirements of
Insurance Law §5102, the
plaintiff is faced with a difficult task.
The plaintiff must convince a jury of the "seriousness" of
this type of injury. Given the time restrictions on voir dire,
the first real opportunity to explain the nature of this type of
injury is through a thoughtful and detailed opening statement on
the anatomical features of the herniated disc and the
debilitating physical limitations resulting from such an injury.
Righteousness of Cause
The opening statement is a critical juncture in the case. It
sets the stage for impressing the jury of the righteousness of
your client's cause. Start with an introduction that
encapsulates the entire case in just a few seconds:
On Sept. 14th, 2002, Paula Plaintiff knew she had been
rear-ended. What she didn't know at that time was that her
spinal column would be permanently damaged. What she didn't know
at that time is that she would sustain herniated discs. And what
she didn't know and couldn't possibly have known is that those
herniated discs would affect not just her
spine but her whole
body. What Paula now knows is that one day she will require
surgery for those herniated discs. What she now knows is that
she will require a life-time of physical therapy for those
spinal injuries. And what she now knows is that her life will
never, ever, be the same. Through no fault of her own, Paula has
suffered injuries that have changed her life,
injuries that will
remain with her for the rest of her life.
The next thing you have to do is introduce your client, as
well as the defendants. Toward that end, you must humanize your
client and, to the extent possible, dehumanize the defendants.
Let the jury know who your client is and, more importantly, who
she was before the incident that compromised her health:
You know by now that I represent Paula Plaintiff. She is the
plaintiff--the one bringing the lawsuit. Permit me to tell you a
little bit about her, because to first understand how the
injuries have affected the woman, you must first understand the
woman.
Then tell the jury what she was like before the
accident that
changed her life: her enjoyment of physical activity, exercise
and time spent with her family. Describe her children's reliance
on her, how she strove to achieve success in her vocation
through education and hard work. Explain how her relationships
with her husband, her children and her coworkers have forever
changed:
Paula worked hard to get where she was in life. Since she was
a little girl, she wanted one thing, and one thing only: to
become a nurse. And she worked hard to reach that end. While
still in high school she worked at a local community hospital as
a candy striper, assisting patients with their needs. She got
good grades in high school so that she could get into a top
nursing program in college. After graduating with a college
degree, she received post-graduate degrees in nursing and
finally became a Registered Nurse. She has taken care of
patients for the last 10 years, and enjoys her job.
Prior to this incident, she was able to work 12-hour shifts
and provide for her household. Although she was proud of her
status as a registered nurse, she bore no greater title than
that of "mom." Unfortunately, because of this accident
and the
resulting injuries to her spinal column, she is limited in what
she can do for her children. She cannot play with them as she
once did, do their laundry or even help them with their
homework.
Deal With Case Weaknesses
While it is important to generally describe the
injuries to
your client in a manner that promotes your cause, you must also
deal with the weaknesses in your case and portray them in a
light most favorable to your client. Common weaknesses such as
the failure to wear a seatbelt, a low-speed impact,
minor damage
to the vehicles or a failure to seek immediate medical
treatment, must be addressed during the plaintiff's opening in
anticipation of the defendant's opening:
Paula was helping to transport a stroke patient from one
hospital to another at the time of this incident. She was
sitting in the front passenger seat of the ambulette without her
seatbelt. But because of her concern for her patient in the
backseat, she was facing toward the rear, clearly not bracing
for an accident. So although the defendants will testify that
the impact was low velocity--and you'll see the damage to the
vehicles was minor--Paula was in a very awkward position. Her
neck was turned partially to the side and rear. The
impact--which was in the specific compartment where she was
sitting--caused her neck to twist and compress from side to
side.
Because it was a side impact, a seatbelt would not have
helped her. That is because she was sitting right next to the
door and the force of the truck actually came into her body.
No
seatbelt would have prevented her injuries-- particularly her
injuries caused by the forces of extension and flexion.
Moreover, because of her concern with her patient in the
backseat, Paula was not braced for the accident. Paula was right
at the center of impact and couldn't possibly have seen it
coming. A police officer got to the scene almost immediately and
asked if anyone was hurt. Although Paula was injured, she
refused an ambulance and refused medical treatment at the scene.
She told the police officer she was fine--for two reasons. The
first was, she thought she was fine, just shaken up. For Paula,
because of the accident and her injury, her adrenaline had
kicked in: the body's natural fight-or-flight response. When
someone is injured, the body secretes epinephrine or adrenaline,
which allows a person to carry on until they are in a position
of relative safety. So Paula told the officer she did not need
an ambulance. Second, and more importantly, there wasn't a
chance Paula the nurse would ever leave that patient behind. She
wanted to ensure that her patient safely arrived at the hospital
that could care for her. And she did just that.
When she finally went home, despite the fact that she was
hurting, she did not go to her doctor, although obviously as a
nurse, she had easy access to medical treatment. Her next order
of business was to take care of her two little girls who had
arrived home from school. She took Advil and carried on with her
obligations as a mother. The last thing she wanted to do was
worry her children. Unfortunately, things got worse for her
overnight. Paula couldn't sleep. She had
difficulty moving. The
pain, which had originally been localized to her neck, started
radiating or traveling down her arm into the fingers of her
right hand.
Outline the Injuries
In any opening statement involving physical injuries it is
imperative that you outline the injuries in great detail. That
being said, however, you should never overstate them. To be able
to properly explain your client's injuries you have to explain
the relevant anatomy to the jury:
To understand what these herniated discs are you first have
to understand the anatomy, so bear with me while I go through it
briefly. As I said earlier, Paula has injured portions of her
spinal column. The spinal column protects the spinal cord which
is an extension of the brain. Just as the brain is protected by
the skull, the spinal cord, which is the nerve center of the
body, is protected by the spinal column which consists of bone,
known as vertebral bodies. The spinal column consists of three
areas: the neck or cervical spine; the mid-back, which has 12
ribs attached to it, known as the thoracic or dorsal spine; and
the low back known as the lumbar spine or lumbosacral spine.
Paula suffered a herniated disc at two places, the
cervical
spine and the lumbar spine, known as the C6-C7 level and the
L5-S1 level. The neck has seven cervical vertebral bodies, the
thoracic spine has 12 vertebral bodies and the lumbar spine has
five vertebral bodies. These vertebral bodies are hard, and are
actually bones. Just as the spinal cord needs to be protected by
the vertebral bodies of the spinal column, the vertebral bodies
are protected by the discs. In between each bone or vertebral
body is a substance known as a disc. And those discs actually
act as shock absorbers for the vertebral bodies. The discs are
what give us the ability to jump, flex and bend. They act as
cushions for the bone, so without those discs we would have bone
constantly rubbing on bone which would cause great pain,
bone
spurring and arthritis.
These discs consist essentially of two major parts. The outer
shell known as the annulus fibrosis or more simply as the
annulus. The inner portion is known as the nucleus pulposus, or
the nucleus. The outer shell, the annulus, is the hard portion.
It is not as hard as bone, but much harder than skin or muscle.
It is a cartilaginous substance like the cartilage in our noses
or knees. It is actually known as fibrocartilage
The inner substance or the nucleus is made primarily of water
and is soft or gelatinous. It is that portion of the disc that
provides the cushioning or shock absorption qualities.
So to visualize a disc it may be a good idea to picture a
stale jelly donut. The crusty part of the donut is the annulus
fibrosis and the jelly on the inside is the nucleus pulposus.
Now that you have laid out the general anatomy, tie it in
with your client and demonstrate the actual injury itself by
going through the medical explanation of a herniated disc:
The word herniated is derived from the word hernia, meaning a
portion of the body is displaced to an area where it should not
be. A herniated disc takes place when the nucleus pulposus
breaks through the outer layer known as the annulus fibrosis.
It is not enough to describe a herniated disc. You have to
explain to the jury why it is painful and
physically
debilitating:
Now let me tell you why this disc herniation is causing Paula
tremendous pain. The annulus itself has nerve fibers in it. This
is causing Paula localized neck pain, just from the tear in the
annulus itself. But what makes matters worse, is that the disc
is herniated posteriorly and laterally, or toward the back and
to the side. The implications for Paula are devastating. Because
the disc is sticking out laterally, it is impinging on or
touching a nerve root which emanates from the spinal cord
posteriorly to the disc and comes through a hole on the side of
the vertebral body known as the neural foramen. Because the disc
is herniated at the level of C6-C7, it is causing pain down a
specific nerve root or dermatome pattern that goes from Paula's
neck behind her shoulders down her arm and into her thumb,
middle and index fingers. This injury doesn't just affect her
neck, but her shoulder, arm and fingers as well. She is not just
in horrible pain but has limited use of her right arm and
difficulty with the fine motor coordination needed for using her
fingers or grasping objects.
Functioning Outside of Work
It is a good idea to explain all the things your client can
no longer do because of her injuries. Do not just focus on her
inability to work, but be concerned with her inability to
function outside of work as well:
Obviously, based on these injuries, Paula cannot lift
patients any more in a hospital setting. She cannot turn them
over. She can neither stand for too long or sit for very long.
She even has difficulty placing intravenous lines because she
has lost the dexterity needed in her right hand to perform this
task. She cannot write nursing notes effectively in the hospital
chart for the same reason. Her days of working as a nurse are
numbered.
But Paula's inability to work is the smallest part of the
case. What is far worse for her, is how her injuries affect her
role as a wife and mother. She can no longer engage in relations
with her husband. She can no longer lift her children. She
cannot shoot baskets with them, skate with them, or throw a ball
with them. Even sedentary activities like cards, chess and board
games are out because Paula can't sit for more than a few
minutes at a time. Her life has been dramatically altered and
will never, ever, be the same.
Additionally, never finish your opening statement before
dealing effectively with the problem areas of your case,
especially with the things the defense will try to use to their
advantage. Explain away the weaknesses. For example, describe
the reasons your client failed to seek medical treatment right
away, demonstrate why a low-speed impact caused these
injuries,
and show how a seatbelt would not have helped prevent her
injuries.
At End of the Case
Finally, when concluding your opening statement be clear in
what you will be asking the jury to do at the end of the case,
without asking for a specific number:
At the end of the case I will have the opportunity to speak
to you again during summation. At that time, I will remind you
that the defendants caused her herniated cervical disc, they
caused her herniated lumbar disc, they caused
the pain in her
right arm and left leg and that their actions affected not just
her neck and back, but her whole life, and I will ask you for a
verdict on her behalf. I am going to ask for 100 percent
justice: nothing more; and nothing less.
Key to Victory
An opening statement is a key to a victory a trial. Use it as
an opportunity to humanize your client, dehumanize the
defendants, and outline the relevant anatomy and specific
injuries your client suffered. Demonstrate how those injuries
have changed you client's life and affected even the lives of
her family members. Be careful to deal with the negative aspects
of your case and explain them away as effectively as possible.
Do not use notes. Look the jury in their eyes, address them
directly and impress them with the righteousness of your case.
Ben B.
Rubinowitz, a partner at
Gair, Gair,
Conason, Steigman & Mackauf, is an adjunct professor at Hofstra
University School of Law and Benjamin N. Cardozo School of Law. Evan Torgan, a member of Torgan & Cooper, is an
adjunct professor at Cardozo School of Law.
Gair, Gair, Conason, Steigman & Mackauf specializes in the most serious and significant
personal injury and
general negligence cases.
The most common type of personal injury claims are
automobile accidents, accidents at work,
construction accidents and
defective product accidents
.
