Familiar to most tort cases are standard defense themes that must be squarely addressed by the plaintiff’s lawyer. Often, the defense case follows a routine, four-level pattern. First, the plaintiff was not injured. Second, if the plaintiff was injured, it was not as a result of the events surrounding this accident. Third, if the plaintiff was injured and it was as a result of this accident, then the plaintiff was injured as a result of his own fault or carelessness. Fourth, if the plaintiff was injured as a result of this accident and no comparative fault exists, then the plaintiff’s injuries, pain and suffering were due solely to a pre-existing medical condition which has no relationship to the accident in question. While most plaintiff’s lawyers deal with the first three arguments on a regular basis, it is the fourth argumentthe pre-existing conditionthat is oftentimes neglected.
To properly deal with the defense of a pre-existing medical condition, the plaintiff’s lawyer must be prepared to meet the defense contentions head on and at the outset. Put another way, weaknesses must be dealt with up frontstrengths will become apparent during the course of the trial. Like any potential weakness in the case, to the extent that a pre-existing medical condition is relevant to the claim, dealing with it in a forthright manner by the plaintiff’s attorney will produce the positive result of diffusing the negative impact of the defense position.
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