What jurors think about connective tissue injuries.

A new study of juror attitudes about `whiplash' reveals biases that may harm plaintiffs. With the right evidence, attorneys can prove clients' cases.

In a recent Delaware trial, a jury decided the claims of a family who suffered connective tissue injuries. Their van had been hit broadside by a young man who failed to stop at a stop sign. He admitted liability; the jury's task was to decide on damages.

Medical testimony confirmed that the plaintiffs suffered permanent facial scarring and neck and shoulder injuries. Yet the jury's damage award was so low that the judge granted an additur motion to increase it. Like other juries today, this one seemed disinclined to award proportionate damages to plaintiffs claiming connective tissue injuries. What's going on?

This article reports results from an ongoing research project that is exploring citizen reactions to whiplash and other connective tissue injuries arising from automobile accidents. Thus far, the project has sponsored focus groups as well as a national survey to provide qualitative and quantitative information about how the public views these injuries in the context of lawsuits.(1)

Four focus groups met during the summer of 1999 and engaged in discussions about connective tissue injuries, lawsuits, insurance, and automobile accidents. Focus group members also gave their reactions to a brief description of a connective tissue injury case. Two groups were held in Denver and the other two in Louisville, Kentucky.

A national survey of 600 people tapped views on similar topics from a representative cross-section of the population. The survey included a scenario study. Half of the respondents heard about a hypothetical plaintiff who sued for a connective tissue injury, while the other half heard about a similar plaintiff who sued for damages from a bone fracture.

The findings reinforce the complaints of many plaintiff attorneys that contemporary juries seem hostile to connective tissue injury claims. In the focus groups and the national survey, participants voiced substantial doubts about the legitimacy of lawsuits and the credibility of plaintiff claims in connective tissue injury cases. Given an example of this type of case, one focus group member observed, "I think that kind of lawsuit is filed probably every day, and that's why our court systems are overloaded and our premiums are so high. People try to milk it just because they've got a little neck injury."(2)

Media depictions of "rampant" fraudulent injury claims were cited repeatedly by focus group members:

* "There's so much insurance fraud that goes on."

* "You see it on TV all the time and it just really troubles me."

* "I saw [a news show about a transit company that was sued, yet] they photographed these people staging their own accidents and claiming whiplash getting onto a bus or streetcar."

* "You hear on the news about people who specifically set up accidents to occur, and because this is not a provable thing, it's real easy to claim injury when you're not really hurt and get large amounts from insurance companies."

The national survey results confirm that most Americans--92 percent--believe that frivolous lawsuits are common. As expected, people in the survey who heard the hypothetical scenario about a plaintiff with a connective tissue injury were less likely than those who heard about a plaintiff's bone fracture to believe that the injury was "real."

In addition to voicing doubts about the reality of connective tissue injuries, some focus group members expressed the opinion that some of these injuries were too minor to merit a lawsuit. Asked whether it would be legitimate to sue over connective tissue injuries from an auto accident, group members said, "Depends on the severity"; "That's life. Get on with it."

One woman reported that she had been injured and as a result "I can't wear high heels. I have to wear flats. You get over it." A relatively minor and temporary problem is not seen as a legitimate reason for a lawsuit: "It depends on how severe it is. If I break a leg and I can't get on the floor and crawl to my baby, I'm not going to sue for that because once my leg's better, I'll get down on the floor and crawl with him."

What is connective tissue, anyway?

Despite respondents' widespread doubts about the validity of lawsuits seeking compensation for connective tissue injury, many were unclear about just what constituted this type of injury.

Many focus group respondents were familiar with whiplash. Nearly half of the national survey respondents said that they or a close friend or family member had experienced it firsthand. The focus group members reported a range of experiences with whiplash, from mild to severe. One participant said, "I've had it several times, and one side of my neck swelled up so it didn't look like I had an indentation at all, and 1 couldn't turn my head either time. I was just so sore." Group members observed that whiplash could be minor or serious: "It can last forever"; "Snap the neck and just pain, constant pain going down."

One man reported that his family had experienced both mild and severe whiplash episodes, so he knew about the wide range of potential injury:

   I was involved in an accident many years ago, and I got a minor whiplash.
   The other driver got the ticket and my neck was sore, but I never filed
   anything. I was fine. I have two daughters who were rear-ended at 50 miles
   an hour in their little Toyota Corolla, which was wiped out, and one of
   them has had to have an operation and the other one hasn't had it yet, but
   they both have suffered with neck pain, with headaches, and they'll live
   with it the rest of their lives.

Whiplash is a familiar type of injury, then, and people seem to appreciate the fact that it can be severe and chronic. However, the widespread linkage of whiplash and potential fraud has led litigators to explore other terminology for describing these neck injuries. "Soft tissue injuries" and "connective tissue injuries" are the most commonly used terms. How does describing the same injury using these different terms influence a juror?

Outside the context of a trial, these terms seem to be unclear to people. The terms do not immediately convey the nature or seriousness of the injury. Asked to say what they thought soft tissue injury was, many focus group members were stumped:

* "I'm not a doctor. I don't know what soft tissue is. Is a spleen soft tissue? Is your heart soft tissue?"

* "Anything that isn't bone ... muscle, tendon ... like a bruise ... internal organs."

* "I think sprain."

The term "connective tissue injury" was similarly vague in people's minds:

* "I've never heard of it."

* "Sounds like that would be like the tissue connecting to your bones or your joints or something like that."

* "It's connecting something so it needs to be there holding something together, and if there's damage, it may be releasing something."

* "More like muscle damage, pulled Achilles tendons and stuff like that."

In the national survey, we asked people to rate the seriousness of various injuries on a 1-to-10 scale, with 10 representing the most severe injury.(3) Connective tissue injury was rated as more serious than soft tissue injury (5.91 and 4.65, respectively), but both were rated as less serious than the familiar term "whiplash" (6.2). Interestingly enough, the generic term "neck injury" was rated as more serious than all the other terms for this type of injury (7.97).

Neck injuries are the most common type suffered in car accidents. However, looking at other kinds of injuries, the data show that trauma to internal organs is viewed as the most severe of those tested (8.64). People perceive back injuries (8.07) as more serious than neck injuries. Ruptured, herniated, and bulging disks (8.28, 7.8, and 7.67, respectively) and nerve injuries (7.54) are all rated as more severe than soft tissue, connective tissue, or whiplash injuries.

Convincing evidence

In an effort to assess what kinds of evidence jurors might value in a connective tissue injury case, researchers asked study participants who heard the hypothetical scenario of a plaintiff with connective tissue injury what kinds of information would convince them that the plaintiff was suffering real pain. The table at left shows the results from the national survey. It may be useful for trial attorneys to compare these ratings with their own experiences in successful and unsuccessful trials.

At the top of the list are medical tests that show bone damage or inflammation. Bone damage outstrips all other factors, with three-quarters of the respondents rating this very convincing. The traditional X-ray and the familiar and concrete broken bone combine to produce a convincing case of injury and pain in the typical respondent's mind. Of course, the respondents were asked about a connective tissue injury, which would not show up as bone damage on X-rays.

Ranked next is the plaintiff's lawsuit history. Plaintiffs who have never filed a case before are granted greater credibility than those who have filed prior lawsuits. Here the respondents seem to be relying on a stereotype of a sue-happy plaintiff who is out to get something for nothing by bringing multiple lawsuits. The respondents hold this history against the plaintiff, doubting the reality and severity of the claimed injury.

Focus group participants made the same point:

* "Does the plaintiff have any more lawsuits pending?"

* "Has she tried to sue an insurance company or anyone else before? If so, how many times?"

* "If the doctor's got a history of her complaining about a lot of things, you'd have to take all that into consideration."

A plaintiff's work history and records of doctor and physical therapy visits are convincing, but at a lower rate than the top three factors. Work history is important for two prime reasons: to shore up the plaintiff's credibility and to convince jurors that the injury is worthy of compensation.

As one focus group member put it, "We know there are people who, for whatever reason, may not work very much anyway. They may not have a good work record. Then they expect me to pay them for working the rest of their lives when they didn't have a job." Similarly, a plaintiff is more believable when "she's a gainfully employed person. What if she were a homeless person? She might not be believable."

When focus group members were asked about what made up a legitimate lawsuit involving a connective tissue injury, they often referred to the injury's impact on a plaintiff's work life: "You're a bricklayer and you're doing your building on all these fancy houses that are going up here in town, and you have connective tissue damage, so therefore you can't lay bricks"; "If you worked at a job where you need to move around and your leg is screwed up, you can't walk or you can't move as fast as you could before, you're not going to be able to keep that job for very long." If a connective tissue injury affects a plaintiff's livelihood, the lawsuit is given greater legitimacy.

Chiropractor visits are common in treatment of connective tissue injuries, yet they rank somewhat below treatment by doctors and physical therapists, reflecting the substantially lower trust that people generally place in chiropractors compared to doctors and physical therapists. Among the lowest-rated types of evidence are pain medication usage, reduced participation in hobbies, and testimonials by friends and acquaintances that the plaintiff has been in pain since the accident. In respondents' eyes, the least convincing information is that the plaintiff waited more than a year to file a lawsuit.

A final note: Evidence about the defendant may also convince jurors that the plaintiff is telling the truth about the level of pain he or she is experiencing. More than a third of the respondents said the fact that the defendant received a traffic ticket for the accident was convincing evidence that the plaintiff was truly suffering. The character and integrity of both the plaintiff and the defendant are clearly significant factors influencing the connective tissue injury lawsuit.

Remedies

Select and prepare cases carefully. The findings suggest that case factors and plaintiff characteristics shape jurors' perceptions of the reality and severity of a connective tissue injury. "Good" plaintiffs with "clean" records will do better before a jury that is primed to worry about the possibility of fraudulent claims. Many jurors will approach the case with concern that a plaintiff is suing illegitimately and over an injury that might be seen as too minor to merit a lawsuit.

Attorneys need to anticipate and prepare for these likely orientations to their cases. Proof that a connective tissue injury interferes with a plaintiff's ability to work will be evaluated as a more legitimate ground for a lawsuit than proof about the impact on life outside of employment, such as reduced participation in sports and hobbies or changes in personal relationships.

Use clear language. The vague understandings that people have of soft tissue and connective tissue injury indicate that the nature and seriousness of the injury are not clearly conveyed by these terms. "Soft tissue injury" sounds less serious than "connective tissue injury," but both are open to a wide variety of interpretations. It's ironic that the label "whiplash," while associated with fraud in some people's minds, is rated as more severe than either of the other terms.

Jurors are more likely to be confused than enlightened by "soft tissue" and "connective tissue" terminology, and they may interpret them in light of their own experiences and misunderstandings. Using straightforward terms such as "neck injury" and providing clear and unambiguous descriptions of injury are essential if jurors are to develop an accurate picture of its impact.

Conduct a thorough voir dire. These are often small-stakes cases. Therefore, attorneys who bring them to court might be tempted to give short shrift to the voir dire process. That would be a mistake. If it's worth taking the case to trial, it's worth developing a voir dire that identifies the biases of prospective jurors.

Plaintiffs with connective tissue injury face greater obstacles than do plaintiffs with more visible or readily documented injuries. The "frivolous lawsuit" perception has more impact on the connective tissue injury case than on others.

What this research demonstrates clearly is that a substantial number of citizens see these cases as inherently fraudulent or undeserving of compensation and that these predispositions can influence reactions to a civil lawsuit.

Experiences with personal injury, car accidents, and insurance companies all should be explored, as they may help shape the preconceptions jurors hold about the plaintiff. On average, people who have themselves experienced whiplash or whose close friends or family members have experienced it are more likely to believe that a claim is legitimate.

Although this might suggest that prospective jurors with whiplash experience would be good for plaintiffs and bad for the defense, the juror's particular experience merits full investigation during voir dire. A person who had a mild case of whiplash and did not sue might think others should do the same, while a person who had severe whiplash might dismiss a plaintiff's injury if it is less severe. A thorough voir dire may help identify the jurors who can fairly evaluate the evidence.

This research documents what many plaintiff attorneys have experienced firsthand in connective tissue injury cases. Jurors are likely to doubt claims about these injuries because they are concerned about exaggeration and fraud. Attorneys should approach case selection, case and witness preparation, and jury selection with these predispositions in mind.

Rating the evidence

Study participants were asked, "As a juror [in a connective tissue injury lawsuit], how convincing would each of the following be to you that [the plaintiff] was suffering real pain as a result of the accident?" This table shows the percentage of respondents who reported finding each type of evidence "very convincing." (Half of the respondents heard about a female plaintiff; the other half heard about a male plaintiff with identical injuries. The data combine the responses. The female pronoun is used for ease of presentation.)

Bone fractures appear on her              75%
X-rays.

Medical tests show an inflammation        55%
of tissue.

She has no history of ever filing a       49%
lawsuit before.

She has had a long series of regular      43%
physical therapy visits after the
accident.

She has had a long series of regular      39%
doctor visits after the accident.

Her employer has said that                39%
she is unable to work since the
accident.

A physical therapist has said she is      38%
in pain.

She missed much more time from            37%
work after the accident than before
it took place.

The defendant received a traffic          36%
ticket for a moving violation that
caused the accident.

She has been taking prescribed            35%
painkillers on a regular basis since
the accident.

She has had a long series of regular      34%
chiropractor visits after the accident.

A chiropractor has said she is in pain.   32%

She stopped participating in her          32%
favorite hobbies.

She has been taking a larger than         28%
normal amount of over-the-counter
painkillers since the accident.

Friends and acquaintances have            28%
said she has been in pain since the
accident.

She waited more than a year before        19%
deciding to file a lawsuit.

Notes

(1.) Some findings reported here are presented at greater length in an article by Valerie P. Hans and Nicole Vadino, Whipped by Whiplash? The Challenges of Jury Communication in Connective Tissue Injury Lawsuits, to be published this summer in the Tennessee Law Review (vol. 67).

(2.) Focus group comments are taken from transcripts of discussions conducted as part of the research project. Some comments were edited slightly to improve readability.

(3.) Hans & Vadino, supra note 1.

For further reading

Michael D. Freeman, Arthur C. Croft, and Mark Reiser, Discrediting Defense Experts in Whiplash Cases, TRIAL, Mar. 1999, at 62.

Gary R. Gober, Soft Tissue Injury Cases: 11 Ways to Maximize Medical Proof, TRIAL, Apr. 1994, at 16.

RELATED ARTICLE: ATLA disputes study finding no-fault system speeds whiplash recovery

ATLA has exposed flaws and biases in a Canadian study claiming to find that whiplash sufferers recover faster if they have access to medical benefits under a no-fault system as opposed to a tort system. The study was published in the April 20 edition of the New England Journal of Medicine.

Anticipating no-fault insurance initiatives citing this study, ATLA President Richard Middleton issued a statement pointing out the study's biases and flawed methodology.

"This study found what the authors had decided they would--and wanted --to find. The most obvious evidence of this predetermined outcome is the study's use of the term `recovery.' The study does not measure medical recovery of the patient, but instead measures the duration of the no-fault insurance claim--which has little to do with the patient's physical status," commented Middleton.

Dr. J. David Cassidy, the study's principal author, and fellow researchers analyzed whiplash claims filed six months before and one year after January 1, 1995, the day Saskatchewan Province changed to a no-fault system. (J. David Cassidy et al., Effect of Eliminating Compensation for Pain and Suffering on the Outcome of Insurance Claims for Whiplash Injury, 342 New Eng. J. Med. 1179 (2000).)

The biases came to light in a lawsuit that was filed by an ex-researcher who alleged that Cassidy instructed her to manufacture statistical results that would prove that whiplash victims recovered faster under the new no-fault insurance system. After she refused to follow Cassidy's instructions, she says, she was harassed, verbally abused, and intimidated. She eventually resigned from her position.

In addition, a 1996 letter written by the study's former director accuses Saskatchewan Government Insurance personnel of interfering with the study. The insurer--the province's only auto insurer--funded the study.

Dr. Michael Freeman, a forensic trauma epidemiologist and assistant professor at the Oregon Health Sciences University School of Medicine, poked holes in the researchers' methodology.

"All of [the authors'] conclusions are completely invalidated by their methods. The study did not measure the claimants' time of medical recovery.... It measured the time at which the insurance company closed their claim, and under no-fault insurance, claim closure was greatly expedited," he said.

Freeman published a study that showed that 33 percent of those who suffer from whiplash continue to have chronic problems. (Michael Freeman, A Review and Methodologic Critique of the Literature Refuting Whiplash Syndrome, 24 SPINE 1 (1999).)

Middleton said, "Common sense alone dictates that changes in the compensation system cannot affect whether an injury occurs or whether it is more or less severe."

To read or obtain a copy of ATLA's response to the study, go to ATLA Online on the Internet at http://www.atla.org/ homepage/nejm-ins.ht.

--Lisa Gelhaus

Valerie P. Hans is a professor in the Department of Sociology and Criminal Justice at the University of Delaware in Newark. She is the author of the recently published book Business on Trial: The Civil Jury and Corporate Responsibility. The research described in this article was supported by a grant from the Roscoe Pound Institute, a think tank that conducts and publicizes research and programs in support of access to the civil justice system. The institute plans to publish a final report when the study is complete.