Home | Glenn Faegenburg Discusses Common Defenses in Personal Injury Lawsuits

Glenn Faegenburg Discusses Common Defenses in Personal Injury Lawsuits

Dec 7, 2023


What are Common Defenses to a Personal Injury Lawsuit?

So, today we’re gonna talk about defenses that you can expect if you are a victim of an accident and get hurt, and need to litigate a lawsuit. These are the types of things that you can expect from the defendant. And really, I kinda wanna explain where they’re coming from, okay? So, most of the time when we have these types of cases, we are dealing with insurance companies who represent the defendants. So, when most people have home owners insurance, or they have car insurance, and that car insurance allows you to have an insurance company who will ultimately be responsible for making the payments if there is a settlement, or work, or anything like that. But a couple of things you need to know right off the bat, is you’re really not in good hands. They’re not a good neighbor, okay? They’re not by your side. The reality is that it’s a business, and it’s a very simple business model. They have premiums that they take in from all of the people that are policy holders, and in order to make money, they have to pay out less than the money that they take in, okay? And they’re very, very, very serious about paying out less. So, when you have this type of case, typically you hire a lawyer. The lawyer’s not gonna be able to send a letter and in a week get you your money, for the most part. There are rare exceptions where a case is so clear-cut and the insurance coverage is so small that it just makes sense for everyone just to resolve it super early. But that is rare. For the most part, these cases are hard-fought, and the defendants have a hierarchy of defenses that they use. And they start with one defense, and if that defense doesn’t work, they go to the next defense. If that defense doesn’t work, they go to the next defense. If that defense doesn’t work, they go to the next defense.

The “We Didn’t Do Anything Wrong” Defense

So in this case, the first defense that they’ll pretty much always raise in these types of cases, because you have two parts to your case. You have how the accident happened, that we call that the liability, and then your injuries. We call that the damages, okay? And they’re gonna defend both. But the easiest way to make the case go away for them would be to say, “We didn’t do anything wrong,” okay? Because if you got hurt and they didn’t do anything wrong, guess what? You don’t get any money from them, alright? In order for you to get money from somebody, they need to have been responsible, at least in part, for the accident. So, that’s gonna be your first defense. The first defense is, “We didn’t do anything wrong.” And that was really a very… You know, I’m gonna say 10 years ago and before that, that defense was a very, very dangerous defense because, for example, you have an automobile case and you have a, “He said, she said.” So the defendant, the plaintiff got hurt and the plaintiff says, “The defendant ran a red light and crashed into me, and the defendant’s at fault.” The defendant turns around, and even if the defendant was at fault, the defendant, in those early days, could say, “I didn’t do anything wrong,” okay? And I was the one who ran the light. Now, we now have surveillance, okay? We have video everywhere. So, we have video on the streets, we have video in buildings, we have video everywhere. So, it’s a little bit harder to hide behind that claim that we didn’t do anything wrong if he did something wrong. Because now, a lot of the time, it’s gonna get caught on tape. So, that’s the very first defense is, “It wasn’t me,” okay? “I didn’t do anything wrong.” It could be, “It could have been somebody else.” It could have been, “You view it the wrong way, but I didn’t do anything wrong.” That’s the number one thing. And if they feel strongly enough about it, they’ll actually make a motion to get the case dismissed based on that saying, “Listen, we didn’t do anything wrong,” alright?

The “Even if it was our fault, it’s your fault too” defense

The next step, if in fact there’s, let’s say some, let’s say there’s video, or there’s a witness statement, or there’s something that implicates the defendant and makes the defendant responsible, well, then the next defense that they’re going to put up is, “Even if we did something wrong, the plaintiff did something wrong too,” okay? “You did something wrong as well.” And this comes up, not so much in, like a medical malpractice setting where the plaintiff has basically no control over what goes on, but it comes up very often in what we call premises liability cases, cases where people fall, or slip, either outside, or inside. And we’ll give you an example, okay? Let’s say there’s a landlord. The landlord is a negligent landlord. The landlord doesn’t really take care of the sidewalk in front of his property, but he’s mandated in the City of New York to do so, and he doesn’t do so. So, there’s this big pothole, or broken-up sidewalk where the plaintiff is walking. Plaintiff walks, plaintiff trips, plaintiff, let’s say, he gets a very, very bad injury, okay? Plaintiff sues and says, “Listen, you’re supposed to have fix this,” okay? “You can’t have your sidewalk looking like this. It’s unsafe, it’s dangerous, and it’s a violation of the law.” Their response is gonna be, “Well, that may be, but you’re responsible too because you’re walking on the sidewalk and you need to see what there is to be seen. If you’re saying the sidewalk is so horribly bad, then what are you doing falling on it? You should have seen it if it was so horribly bad.” So, this is a very, very common defense. This will also happen in any type of auto case. Let’s say you’re a pedestrian and you’re walking across the street, and you get struck by a vehicle making a turn. Well, it seems very… You know, in those cases you would think, well, the car is on the hook. We all know pedestrians have the right of way, but it’s not, the law is not as black-and-white as that. A pedestrian still has an opportunity to see what there is to be seen. Maybe he’s slightly outta the crosswalk. Maybe he’s a foot outta the crosswalk. Maybe he was on his phone, not that you’re not allowed to be on your phone. You can be on your phone as pedestrian. It’s not illegal. It’s illegal as a driver, but it’s not illegal as a pedestrian. But even so, all of those things are the things that they’re gonna try to make the victim the person to blame, okay? “You did it to yourself,” okay? “You weren’t paying attention and it’s your fault, even if I did something wrong.” And New York is what we call comparative negligence state. And what that basically means is that you can still sue even if you’ve done something wrong, in addition, okay, but you only recover whatever percentage you can get from the defendant. So, I’ll give you an example. Let’s say somebody trips and falls, and let’s say they have a trial and the jury comes back and says, “Okay, the defendant’s 50% responsible, but the plaintiff is also 50% responsible.” And let’s say that they decide that the injury was worth a hundred thousand dollars. So, half of that is what you would be able to get in your recovery, 50%. Because you are 50% responsible you don’t get the portion of the settlement that you’re responsible for. You only get the portion of settlement that the defendant’s responsible for. So, in that case, there would be a $50,000 recovery, even though your injuries were worth a hundred thousand. Alright? So that’s the next thing.

The “No Harm, No Foul” Defense

The next defense that they’re going to raise is, “Even if we did something wrong and your injury didn’t come from what we did wrong,” alright? So, this is very, very, very common in a medical malpractice case. Because in medical malpractice cases, pretty much everybody who has a medical malpractice case has some underlying condition that they’re getting treatment for. So, you’re showing up at a hospital, you’re showing up at a doctor’s office, and there’s something wrong with you. That’s why you’re there to begin with, okay? So, they will then often use that to their advantage. So, what they will say is, “Okay, we did make a mistake. We gave you the wrong medication,” or “we gave you a little bit too much of that medication. And that was not good, but it’s not what caused your problem. You had some pre-existing kidney problem and that’s what caused your problem. Nothing that we did, even though what we did was wrong,” Okay? That’s another way that they try to defend these cases, saying that the injury is not a related to whatever it is that they did wrong.

The “Case Doesn’t Meet the Level Required by Law” defense

The next one that they’re going to talk about is levels of injury, or levels of liability because you have to reach a certain level in order to succeed. Now, in medical malpractice, that level is a deviation from accepted medical practice. So, what they can say is, okay, well let’s use it as an example. There’s a doctor. He does a surgery. The doctor performs a surgery and he nicks a nerve that causes the patient to have lifelong nerve problems. Well, you would think that that is definitely a case, right? They nicked a nerve, the guy has a lifelong injury. That may not be the case because there are no risks of doing surgery. And if that nerve is very close to the area where they were doing surgery, that may be a known risk. So, what they’re gonna say is, “Well, listen, that’s a bad result. Listen, we’re not happy that that happened. We didn’t want to nick a nerve, but it doesn’t reach the level of malpractice.” And this is a very, very common defense. “We did something wrong,” okay? “Something wrong happened, but it does not reach the level of malpractice.” And you’ll see they do this also when they defend damages in automobile cases. There’s another level that they’ll talk about to defend the case.

The “Your Injuries Came From Somewhere Else” defense

Let’s start to talk about damages. So now, let’s say that it’s clear-cut that they caused the accident. It is on a video and everyone can see it, okay? So now what they’re going to do, is they’re gonna whittle away at the damages portion of the case. And the first thing that they’re gonna say is, “Even if we did something wrong, whatever it was, whatever pain and suffering, or that you were complaining about, didn’t come from us.” Okay? “It came from you living your life,” okay? And the most common, I’ll use automobile cases, okay? Because in an automobile case, we were talking about levels before, in an automobile case, you have to sustain a serious injury in order to recover. I’m not gonna get into the details of what that is, but it’s a level. So, you have to reach a certain level to do that. And to reach that level, you have to have medicals that are related. Now, what defendants very, very often do, is they dispute whatever the treating doctor’s findings are. Okay, so the doctor, let’s say, your neck and your back are hurting you and you went for an MRI and the MRI says that you have a herniated disc in your neck and you have a herniated disc in your back, okay? What they will then do, is they will have an expert, that they hire, look at either the film, the report, whatever records, and they will say, “No, no, no, no, no. That injury is what we call degenerative,” okay? “That injury just happens over time. This person is getting older and what we’re seeing in either his neck, or his back, are just something that happened over the course of time.” Of course, that doesn’t explain away the fact that the person may often have no symptoms at all before the accident and all of a sudden has all of these terrible physical symptoms. They still want juries to believe that it came from somewhere else and it’s just part of the aging process. So, they will hire doctors. And I can’t tell you the number of times that I’ve seen IME reports with the word “degenerative.” It’s almost every single case. And that can’t possibly be that every single person has a degenerative condition. So, we know this is just part of a formula. This is a defense, okay? They raise these defenses in every case. They’re going through a checklist, and they’re not going to, just because they’re in the mood, not follow this checklist. This is what they do. They are there to protect their shareholders and they’re there to protect their money. So, they’re going to raise these defense even if they’re not legitimate. And sometimes, quite frankly, they are not.

The “Hail Mary: Attack the victim” defense

The next area that you really have to dive into is what we call the last-gasp measure, okay? And the last-gasp measure is where they can’t fight the fact that they caused the accident. They know that they caused the accident. They know that they’re responsible, okay? They can’t fight that you don’t have some type of injury from the accident, for example, a broken bone. How are they going to say that that is degenerative, that that came before the accident, okay? Obviously if something traumatic, a broken bone, it’s very, very hard for them to contest, but they will still now fight. And what they will say is that, “You’re hurt and it’s our fault, but it’s not as bad as you’re saying it is,” okay? “We think you’re a faker. We think you’re doing it ’cause you’re greedy. We think that you’re doing it because you are a malingerer.” And the word that they try to use is called secondary gain, okay? And what they’re trying to say is, plaintiffs are just doing everything for the money. They’re getting surgeries for the money. They’re losing time from work for the money. They’re going to doctors and disrupting their life for the money. They’re making up their injuries for the money. It’s ridiculous, okay? And this is what they do on the very, very serious cases. They take the victim and they victimize the victim and say, “No, you’re malinger. You’re faking. You’re a greedy guy. You’re a bad person. We saw that you did something bad 20 years ago, and we’re gonna raise that,” because they have nothing else to go on, okay, in that situation. They know that they’re responsible, they know there’s an injury, but they still don’t wanna pay.

Why You Need a Lawyer to Take on the Insurance Companies

I’ve talked a number of times about whether, you know… ‘Cause I think a lot of people don’t like lawyers and they prefer to try to do some of these things on their own, but you have to know what you’re up against, okay? This is a machine. They do this time, and time, and time again. You need a machine on your side that knows what they’re doing is done time and time again. That’s why you need a lawyer for these cases. They don’t, in general, go away easily. And you can expect these defenses in almost every single case.

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