1973, March, Pg. 1. Special Damage Problems.

• Author: by Harold A. Feder

2 Colo.Law. 1

The Colorado Lawyer

1973.

1973, March, Pg. 1.

Special Damage Problems

1Vol. 2, No. 5, Pg. 1Special Damage Problemsby Harold A. Feder and Katherine TamblynHarold A. Feder, Denver, is a partner in the firm of Feder & Morris, P.C.; Katherine Tamblyn is a junior partner in that firm.The purpose of this article is to present an overview of special damage problems and points which should be kept in mind regarding these problems. Some general comments are applicable to all special damage problems.

A comprehensive checklist of elements of damages for consideration should be prepared and used in the attorney's office. This device will facilitate fact-gathering during interviews and preparation involving the client, and will be an invaluable aid in pleading preparation, argument and instruction. In addition, a checklist will enable the attorney to protect himself and avoid problems of legal malpractice, in that from the beginning of the case all elements such as aggravation of pre-existing conditions will be an important and recorded part of the attorney's working file.

In establishing damages, the trial lawyer becomes in effect a teacher of the subject, in that values are "taught" in the courtroom and at the conference table for settlement purposes. Standard teaching devices, such as slides, films, charts and drawings, can be accumulated and used for guidance. Over 80 percent of what we learn is acquired through the sense of sight, and effective proof of damages, either at the conference table or in the courtroom, depends significantly on effective use of visual aids. These items should be made available for both settlement and trial purposes and placed in view at all possible opportunities.

A realistic approach to damage questions is essential, whether the claim be submitted to an insurance adjuster or to a court for determination. For example, lost income cannot be argued effectively if the client has never been a wage earner, but lost capacity to earn is always a legitimate and realistic argument.

Claims for damages made to an insurance adjuster should be presented in much the same way that the facts supporting such claims are presented in court. At that point the insurance adjuster is the trier of fact. He must be persuaded; he must see a reasonable connection between claim and damages. The substantial foundation upon which a claim rests must be established. With the aid of the checklist mentioned above, reasonable monetary values can be ascribed to the injuries sustained, taking into consideration all elements which would affect the claim such as pre-existing conditions aggravated. The net effect of this categorization and tabulation, whether

2in court or at the settlement table, is to produce a pragmatic and realistic monetary approach to the damage claim.

Pre-Existing ConditionWhere no apportionment of disability is possible between pre-existing condition and subject trauma, the defendant is liable for the entire injury and damage.(fn1)

Apportionment is the key word in examining this topic. Solid medical proof must be established showing the impossibility of apportionment if the claimant is to successfully assert that the acts of the defendant caused all of the injuries sustained by the plaintiff, including the aggravation of the pre-existing condition. Medical probability must be the basis for such testimony.

In Intermill v. Heumesser,(fn2) the plaintiff had an asymptomatic pre-existing arthritic condition which was causing the plaintiff no particular difficulty. The subject accident was the triggering event which caused the arthritic condition to actively manifest itself, resulting in pain and disability to the claimant. In that case, it was recognized that the accident, being the triggering event, made the defendant responsible for the entire aggravation and active manifestation of the arthritic condition.

An excellent treatment of the effect of a triggering event, particularly in the field of post-traumatic neurosis (although the discussion is applicable to all medical-legal areas), is found in Robert R. Cohen's enlightening text on the subject.(fn3)

Minor Mishap with Major InjuryIn some situations involving minor trauma, major injury results.(fn4)

The attorney faced with a multiplicity of personal injury claims generally finds two typical categories: (1) minor mishap with major injuries, or (2) major mishap, major damages and either the absence of insurance or the presence of an insolvent defendant.

If the claimed injury arises from a minor mishap but damages seem substantial---due, for example, to aggravation of a pre-existing condition---it is more prudent to accept the fact of the minor accident than to try to assume a major trauma. The hypothetical question propounded to the medical expert is an excellent tool in correlating the accident in question to the damages sustained and claimed. It might be well for the practitioner to determine at the outset whether such a hypothetical question can be put to the physician; if the physician's response is negative, the case may be looked at with a jaundiced eye. Assuming the medical testimony is appropriate, the admission in the hypothetical question that the trauma was minor should not diminish the impact of the claim substantially, although as a practical matter insurance adjusters and defense counsel do not look with favor on major damage claims arising from minor trauma.

Sole ProprietorsDecreased or lost profits, as well as the cost of substitute assistants, provide excellent measures for the sole proprietor's damages.(fn5)

Unique evidentiary problems are presented by cases involving damages to sole proprietors. Occasionally the injured sole proprietor finds his business prospering as a result of his injury. In those cases, of course, lost profits will not carry the claimant any great distance in a recovery setting, and the approach should be to assert a claim for the...