All too often, defense lawyers insist at case evaluation hearings, depositions, arbitrations and in court that auto accident victims with pre-existing injuries should not recover any – or should recover less - pain and suffering compensation for their injuries.

The defense lawyers make these misleading arguments in order to minimize the perception of the severity of victims’ injuries and to reduce at-fault drivers’ legal liability and responsibility for the harms and losses they cause.

Not only are these arguments untrue, but they are unsupported by the law.

Under Michigan law, the aggravation or triggering of a preexisting condition can constitute a compensable injury. As the Michigan Supreme Court ruled in Wilkinson v. Lee, 617 N.W.2d 305 (2000), “it was certainly foreseeable that a result of the driver’s negligence in causing an auto accident could be physical injury, including head trauma, to an occupant of the other vehicle. The fact that this particular plaintiff [who had a “preexisting brain tumor”] was unusually vulnerable to head injuries does not relieve the defendants of responsibility for those damages.”

When a person with a pre-existing injury, medical condition or surgery is involved in a bad car accident, defense lawyers focus on the pre-existing medical conditions and injuries so they can try to help the at-fault driver escape being held accountable for the personal injury he or she has caused.

The defense unsuccessfully made that exact argument in our case, Bolotta v. Rizzo Environmental Services, Inc., which involved a truck crash victim who had previously had spinal surgeries on his neck and lower back from a serious pre-existing degenerative disease and prior work injuries.

Here are the details of the case:

In June of 2015, our client, Richard Bolotta, was rear-ended by a garbage truck while he was driving his F-150 pickup truck home from his job as a machine repairman at a steel plant in Warren, a suburb of Macomb County, Michigan. Mr. Bolotta then drove his vehicle to Beaumont Hospital in Troy for emergency care, as he had experienced neck, shoulder and lower back pain that developed after discharge from the ER.

The defendant driver lied to the investigating police officer at the scene, stating that the truck accident was caused because his “brakes faded out.” In fact, the brakes were verified by the Rizzo refuse truck mechanics post-crash to be in good working order, and the garbage truck driver was fired soon after.

As a result, the defense attorneys withdrew from representing the defendant driver, and admitted negligence for the truck accident, conceding that “the issues remaining in dispute are proximate causation of any injury and serious impairment of body function.”

Mr. Bolotta was left permanently disabled from employment due to the neck, back and spine injuries sustained in this crash, which called for cervical and lumbar surgeries performed on September 1, 2015 and February 4, 2016, respectively. He unquestionably crossed the third-party No-Fault threshold of serious impairment of body function. He also became disabled and seriously impaired due to psychiatric sequelae of the injuries, surgeries and changes in his life from before this crash, resulting in depression, anxiety, chronic pain, post-traumatic stress and sleep issues.

Therefore, our lawyers claimed excess work loss in addition to the tort damages that Mr. Bolotta was entitled to.

Our client had what many Michigan injury attorneys would call a “bad spine.” He had previous spinal surgeries on his neck and lower back, stemming from his degenerative disc disease and years of strenuous work, yielding several work-related injuries.

At the time of his truck accident, our client was in his early fifties. Yet the defense lawyers argued that the force of the truck accident was not sufficient to cause significant injury and that Mr. Bolotta’s work life was going to end soon anyway because of his pre-existing back and neck conditions. In other words, the defense lawyers argued “we didn’t break it, but if you find we did break it, it wasn’t worth much because it was going to break soon anyways.”

How many Michigan lawyers would reduce the amount of a pain and suffering lawsuit from what they thought the case is worth because of this defense argument?

How many case evaluation panels or arbitration panels would reduce the award size because of this misleading argument?

The defense also argued that Mr. Bolotta’s post-accident surgeries were the result of his pre-existing degenerative disc disease. In doing so, they hired a radiologist to support that view as well as a neurosurgeon.

Mr. Bolotta’s job before he was hit by the truck required very physical work such as lifting, bending, stooping, carrying and climbing, and the defense claimed he wouldn’t have been able to work longer, even if the crash hadn’t occurred.

You can see this common defense argument being made in nearly every case involving pre-existing injuries and medical conditions.

Yet the case was settled through a mutual case evaluation acceptance for $1.925 million despite our client’s pre-existing spinal condition.

The takeaway for attorneys: By understanding the pathology of pre-existing degenerative disc disease and the standard jury instruction in Michigan that a defendant takes the plaintiff as you find him (see M Civ JI 50.10), as well as adequately explaining the concepts of aggravation or activation of a previously asymptomatic pre-existing condition, an auto accident lawyer can successfully overcome defense arguments that surgeries and disabilities post-accident are only related to pre-existing conditions and not the collision at issue.

This sometimes requires quite a bit of medical sophistication so that the defense experts can be adequately cross-examined. It requires lawyers to know the law on the “eggshell” plaintiff, and it requires strong before and after testimony showing how the plaintiff’s life has significantly changed.