Chapter 13: Defending Damages
Return to Defending Claims.
Whether liability can be proven easily, or will likely be questionable, most cases will involve a dispute over damages. Here too, depending upon the facts and circumstances of your case, you might want to consider the following:
Third-parties (Indemnity): Whether your client is a food manufacturer, distributor, grocer or restaurant, you should determine, as soon as a claim is filed, the existence and scope of any relevant contractual documents governing damages and indemnity. While often overlooked, such documents may enable you to tender the claims or seek indemnity from other, potentially more responsible parties.
Plaintiffs: In every case, inquire as soon as a complaint is filed whether plaintiff’s allegations comport with known symptomology and potential complications. Although plaintiff may allege serious complications such as HUS, these allegations may prove untrue. Additionally, although plaintiffs may allege permanency, including the need for continuing observation or organ transplants, science may prove such allegations to be unfounded. Thus, in more serious cases, qualified experts will likely be essential.
Additionally, regardless of the existence or non-existence of long-term effects, plaintiffs will, as they always do, exaggerate their suffering in an attempt to elicit sympathy and increase the value of their claim. It goes without saying, however, that in many cases the plaintiff’s own medical, employment and other records will disprove these allegations. As discovery progresses, ensure that you, at the very least, obtain the following:
1. Potential Records:
- Medical records (certified records, pre/post occurrence);
- Employment records;
- Unemployment records;
- School records;
- Social Security records; and
- Tax information (state/federal).
2. Potential Witnesses:
- Hospital personnel;
- Family members/friends (spouse and children); and
- Persons familiar with plaintiff’s recovery (i.e., co-workers).
In addition to these resources, be sure to check statements made to the media, internet pages or blogs authored by the plaintiff (or family), and any healthcare facilitated websites the families of ill patients may have used to communicate and report progress. With this information, you should be able to counter any attempts by plaintiffs to grossly exaggerate symptoms and allege long-term suffering.
Copyright 2009 by Shawn K. Stevens
