bodily injury news- winter 18/19 - uk p&i · 2018-12-14 · 4 bodilyinjurynews winter2 01 9...

BODILY INJURYNEWSWINTER 2019

The journal of theThomas Miller Americas’ bodily injury team

Understanding traumaticbrain injuries

Life care plans: the mathdoesn’t always add up

Defending against a risingtide of PTSD claims

Witness preparation –Tips and techniqueseveryone should know

EDITORIAL

2 Bodily Injury News Winter 2019

Bagpipes, golf, and witnesspreparation – welcome tothe winter edition

It has been another busy year for the BodilyInjury Team. Jennifer Porter recently joinedThomas Miller Americas’ San Franciscooffice and is a member of the BI Team. Shejoins us after a decade of litigation practicespecializing in longshore and crew bodilyinjury matters. She looks forward to

collaborating with the team to find strategies and solutions that assist Members facing Bodily Injury claims.

As always, the annual Bodily Injury Seminar (held the day after our Charity Golf Outing) was extremely well attended by Members. It was the 14th Bodily Injury Seminar held at the TMA New Jersey offices. The theme of this year’s seminar was “It’s all in your head” with the focus on traumatic brain injury and post-traumatic stress claims. In this issue, the team recap what was learnt at the seminar. Advice on witness preparation – with tips and techniques everyone should know – is covered by Noreen Arralde. Julia Moore and Jim Dunlap write on life care plans. Jennifer Porter reviews defending against PTSD claims. Dee O’Leary gets to grips with traumatic brain injuries and strategies for defending them. Finally, Linda Wright provides an update on the latest Club loss prevention initiatives.

I would like to extend my thanks and gratitude to all those companies and individuals who participated in the Thomas Miller Americas annual Play for Pink golf day. This year smashed previous years’ totals and raised over $206,000 for breast cancer. This is the third year we have held Play for Pink and have raised just under $500,000 for breast cancer research. Photos from this year’s event are on page 15.

We welcome feedback on the topics we cover in our newsletter and invite you to suggest future topics for both the newsletter and for our Annual Bodily Injury Seminar, please email dolores.o’[email protected]. �

Mike JarrettPresident & CEO, Thomas Miller (Americas) Inc.

CONTENTS

Traumatic brain injuries 3-4

Life care plans 5-6

Post-Traumatic Stress Disorder 7-9

Witness preparation 10-12

Loss Prevention 13-14

Play for Pink golf day 15

TMA Bodily Injury Team 16

Bodily Injury News

Bodily Injury News is the bi-annualnewsletter of the Thomas MillerAmericas’ Bodily Injury Team.

The topics it addresses are highlyrelevant to all our Members worldwidegiven more than half of the Club’spersonal injury claims over $100,000are brought in the American courts.

We welcome your feedback on thetopics we cover as well as suggestionson subjects to address in futureissues. Please send your commentsany of the Bodily Injury Team.

The information in this newsletter is notlegal advice and should not be reliedupon as such.

Winter 2019 Bodily Injury News 3

Understanding traumaticbrain injuriesGino Zonghetti, a partner with the firm Kaufman, Dolowich, Voluck, spokeabout traumatic brain injuries and how to defend them. Senior Claims Executive,Dee O’Leary, investigates why the number of these claims is rising.

This topic is of particular interest to allof us here atTMA as well as ourMembers, as we have recently seen anincrease in the number of plaintiffsclaiming traumatic brain injury.

A traumatic brain injury or “TBI”occurs when there is an impact to thehead or some type of rapid movementor displacement of the brain within theskull. ATBI can occur when there is ablunt force trauma to the head, a fall ora striking of the head.

There are several types ofTBIs:

Coup-contrecoupA contusion at the site of impact and

also at the opposite side of the brain.Thedamage is located both at the site ofimpact and on the opposite side of thehead to the point of maximum externaltrauma. In this type of injury, the brainactually moves inside the skull.

Diffuse axonal injuryMovement of the brain inside the skulllags behind movement of the skull,causing brain structures to tear.This isusually caused by traumatic acceleration/deceleration or rotational injuries.

ConcussionCaused when the brain receives traumafrom an impact or sudden momentumor movement change.

AnoxiaComplete depravation of oxygen.

HypoxicPartial depravation of oxygen.

The Glasgow Coma Scale (“GCS”) is a15 point scale which was developed inorder to estimate and categorize theoutcomes of brain injury on the basis ofoverall social capability or dependenceon others.

First responders and emergencyphysicians examine the injured partyand document the GCS periodically toassess the vitality of the person.The testmeasures the motor response, verbal

PERSONAL INJURY


PERSONAL INJURY

inconsistent with a plaintiff ’s claim.

6.All of the raw testing data, office notesand charts must be requested wherethere has been examinations/testingperformed by a neuro-psychologist.

7. Hire a private investigator to conductsurveillance of the plaintiff.

8. Conduct social media searches.

9. Obtain elementary school, highschool, college and or military records,or any other records where testingmight have been done.

10. Obtain criminal records.

The key is often in the medical records.It is important to find a competentneuro-psychologist and have themreview all of the records obtained. Ifpossible, have the neuro-psych attendplaintiff ’s deposition and plaintiff ’sexpert’s deposition.The neuro-psychshould review the opposing expert’stesting data to identify scoring errors,violations of test protocols, normativevalues of tests / the rate of validity /reliability of tests, and look at whethertests for malingering were used and thescores thereof.

It is also good practice to look at whetherthe plaintiff has undergone any therapythat will assist withTBIs and whetherthere has been any improvement. It isimportant to look at what parts of theplaintiff ’s lives have remained unchanged.What are they still doing post injuryand what has significantly changed?

You should also study the life care planand look at how these claims should beaddressed. See page 5 for Julia Mooreand Jim Dunlap’s article on addressinglife care plans.

In sum, don’t be complacent. Diligenceis the key to preparing a defense to aclaim ofTBI. It is important to line upyour key experts early and obtain all ofthe medical records, and then studythem closely. It can also very helpful toconduct surveillance. It is in the detailswhere you may find the evidence youneed to attack the claim of traumaticbrain injury.�

response and eye opening response, andis scored by adding the score assessed ineach of the three categories.

Motor response is scored from 1 to 6:6 – Obeys commands fully5 – Localizes to noxious stimuli4 – Withdraws from noxious stimuli3 – Abnormal flexion, i.e. decorticate

posturing2 – Extensor response, i.e. decerebrate

posturing1 – No response

Verbal response is scored from 1 to 5:5 – Alert and Oriented4 – Confused, yet coherent, speech3 – Inappropriate words and jumbled

phrases consisting of words2 – Incomprehensible sounds1 – No sounds

Eye opening is scored from 1 to 4:4 – Spontaneous eye opening3 – Eyes open to speech2 – Eyes open to pain1 – No eye opening

There are three levels of aTBI:• Mild traumatic brain injury

(Glasgow Coma Scale score of 13-15)• Moderate traumatic brain injury

(Glasgow Coma Scale score of 9-12)• Severe Brain Injury

(Glasgow Coma Scale score of 8 or less)

Mild traumatic brain injuryUsually categorized as a loss ofconsciousness, but does not necessarilyhave to involve a loss of consciousness.The person may be just dazed orconfused. Memory loss is found to lastless than 24 hours and testing and/orscans of the brain may appear normal.Essentially, a mildTBI is diagnosedwhen there is a change in the mentalstatus at the time of the injury. 95% ofindividuals with a mildTBI achieve fullresolution of symptoms within 24months and of the 5% who do not, theremaining symptoms are subtle.

Moderate traumatic brain injuryThis occurs when there is a loss ofconsciousness that lasts between 30minutes and 24 hours. Memory losspersists from 24 hours to seven days,and confusion lasts from days to severalweeks. Physical, cognitive and/or

behavioral impairments last for monthsor are permanent. A person with amoderateTBI can generally make agood recovery with treatment or cansuccessfully learn to compensate fortheir deficits.

Severe traumatic brain injuryThis is diagnosed where there is a lossof consciousness for more than 24 hoursand memory loss lasts more than 7 days.Confusion can last weeks. Severe headinjuries usually result from crushingblows or penetrating wounds to thehead.These injuries crush, rip and sheardelicate brain tissue.These types ofbrain injuries can be life threatening.

In litigation, most of theTBIs are mild.As stated above, most mildTBIs obtaina full recovery within two years. Of theremaining 5%, symptoms of mostpatients will be subtle in nature. As youcan imagine, these cases are particularlydifficult to defend because thesymptoms are subjective.

Attorney Zonghetti highlighted someof the things to keep in mind whendefending a case where aTBI has beenalleged:

1. Just because the plaintiff claims thathe did not lose consciousness, does notmean there is not aTBI.The absence ofobjective findings on an MRI or CTscan does not rule out aTBI.

2. Conversely, a positive finding on anMRI does not immediately mean thatthe plaintiff has suffered aTBI. In manycases, a subdural hematoma resolves in amatter of days with no cognitive deficits.

3. Discharge from care by a neurologistdoes not necessarily rule out an ongoingTBI. In cases of mildTBI, the symptomscan be subtle and often not diagnosedon an on-going basis by a neurologist.

4. Every effort should be made to obtainall of the medical records, including theambulance and emergency roomdocuments.All prior medical recordsshould be obtained as well.

5.All medical records should be studiedclosely to look for GSC scaledeterminations, which may be


LIFE CARE PLANS

Themath doesn’t always add upJulia M. Moore and Jim Dunlap examine the proliferation of attorney-driven lifecare plans in the US highlighted by Gino A. Zonghetti and Kenneth B. Danielsenof Kaufman, Dolowich, & Voluck during our October seminar.

Life care plans in US litigation haveproliferated in recent years. Once seenonly in claims involving genuine,catastrophic injuries, more and moreplaintiff ’s attorneys now view life careplans as an essential tactic to increasetheir client’s recoverable damages andare hiring life care planners withincreasing regularity. Because life careplans project medical needs and costswell into the future, the potential forlarge,“economic” jury awards based onthe life care planner’s estimated expensefigures is significant.As a result,high-value life care plans have creatednew challenges for shipowners, P&IClubs and defense counsel, who needto separate the inflated, attorney-drivenmedical “costs” from the genuinemedical needs a plaintiff may have inthe future. Gino A. Zonghetti andKenneth B. Danielsen of Kaufman,Dolowich, &Voluck recently sharedsome strategies for challenging a typicallife care plan with our Members at theOctober 2018 Bodily Injury Seminar.

What is a life care plan?

Life care plans, which first developed inthe context of litigation, are a way ofitemizing a plaintiff ’s future treatmentneeds including future surgical care,physician visits, nursing care, medicaltherapy(ies), medical supplies,medications, home improvements,special diets, and medical equipmentetc. and estimating the cost of thatmedical service or item over a periodof time, typically the Plaintiff ’s lifeexpectancy.The report might beprepared by a medical professional orother lay person working as a life careplanner. It is not unusual to see multi-million dollar life care plans based onprojections over the Plaintiff ’s lifetime.To bolster the projections, life careplanners frequently make use of tables,spreadsheets and data which suggest

that the information in the plan ismedically sound, reliable orauthoritative and that the informationin the plan was developed inconsultation with the Plaintiff ’s actualphysicians or care givers. Our Memberslearned that this is not necessarily thecase as Danielsen and Zhonghettioutlined some key points of attack.

Challenging the life care plan

Check the plannerFirst, check the credentials of the lifecare planner. There is no industrystandard for credentialing life careplanners – some have genuine medicalknowledge, others simply took aweekend course on writing life careplans. Courts will examine a life careplanner’s qualifications in order todetermine whether the Planner is

qualified to make the costrecommendations or projections in theplan or to opine on medical services orcare needed. Given the rightcircumstances, a court may exclude aPlanner’s opinion under the SupremeCourt’s rule on unreliable experttestimony in Daubert v. Merrill DowPharma., Inc. Danielsen and Zhonghettihighlighted a couple of those instanceswhere courts struck the life care planbecause the Planner had nothing morethan a weekend course as a credential,the Planner failed to review any actualbilling records in the case, or where thePlanner included therapy or costs thatwere speculative.While some Plannerswill provide well researched reports,Danielsen and Zhonghetti suggest thatmany plans are susceptible to attackbased on the lack of qualifications ofthe Planner.


LIFE CARE PLANS

Check the scienceSecond, evaluate the recommendedfuture medical care listed in the plan todetermine if the services, treatmentand/or items listed are medicallyindicated or related to the Plaintiff ’scurrent needs and treatmentrecommendations. Do not assume thatthe Planner worked with the Plaintiff ’streating physician(s). Danielsen andZhonghetti note that the Plannerfrequently works with the legal team,not the medical team. Be aware ofwhether the life care plan includes thecost of future treatment that theplaintiff is not currently receiving.Check to see if there is an actualrecommendation for the treatment oritem from a treating medicalprofessional. Question whether thePlaintiff has expressed any interest inreceiving the services or items includedin the plan, i.e. has the plaintiffindicated that s/he has no plans tomake home modifications, or to use awheelchair, or to have future surgery. Ifthe answer is no, these should not beincluded in the life care plan.

Challenge the medical necessity andfrequency of the claimed service(s) oritem(s) as well as the Planner’squalifications to make the determinationthat particular items of care are needed. Ifthe Planner recommends psychologicalcounseling but has no background or

credential in psychology, and thePlaintiff is not currently treating with apsychologist, the costs associated withthis care may be improperly included.

Be sure that a recommended treatmentor program of care is one that isgenerally accepted in the medicalcommunity and is not a controversialtreatment that might not be appropriatein the circumstances. Danielsen andZhonghetti highlighted a case in whicha Planner’s opinions were not admittedbecause the life care plan included acontroversial course of treatment thatwas not medically indicated for theinjured Plaintiff.

Check the mathThird, the goal of a life care plan is tocreate dramatically large damagenumbers that will persuade the jury toaward more money. Danielsen andZhonghetti emphasize that the damagenumbers in the plan are not set instone but are subject to attack.Question whether the Member canreduce the total number by getting anoff-set or credit for medical treatmentor items, for which the Plaintiff wasreimbursed from health insurance,long-term disability insurance or othercollateral sources. Each jurisdictionapplies a different approach to collateralsource payments so local counselshould be consulted in each instance.

Danielsen and Zhonghetti alsorecommend that Members “refute therates” by challenging the actual ratesused by the Planner in the report aswell as the Planner’s methodology indetermining what rates would be usedto calculate the cost projections. Often,Planners used “billed rates” for services.Billed rates can be the worst measure ofthe actual cost of medical services anddo not reflect how much the patientwill actually pay for the services.Theuse of billed rates to calculate the costof the future medical care should bechallenged. Danielsen and Zhonghettisuggest presenting evidence of theactual or reasonable cost of the serviceor item to refute the inflated costs ofthe Plan. Last but not least, be sure thefuture expense amounts are reduced topresent day value.

Final thoughts:Plan ahead, be proactive

Life care plans are here to stay. However,proactive measures taken by Members,claims executives and defense counselmay reduce the impact a life care planwill have on a settlement or damageaward. Danielsen and Zhonghetti madeit clear that familiarity with how lifecare plans are created, and how toattack the inherent high value costs andservices, should be a priority for anyonehandling maritime injury claims.�

POST-TRAUMATIC STRESS DISORDER

Defending against a risingtide of PTSD claimsPTSD has increasingly become a very lucrative portion of a personal injury claim.Jennifer Porter discusses why this might be happening, and how best to combat it.

The road to PTSD

More than a decade of war in theMiddle East has shone a spotlight onpost-traumatic stress disorder (PTSD)diagnoses among returning Americanveterans and increased the condition’scoverage in mainstream media.Withthe public’s growing awareness of itssymptoms and of the potentiallong-term effects that certain traumaticevents can have on a person, claims ofPTSD are now being seen morefrequently in civilian life, providing newfodder for aggressive plaintiffs’ attorneyslooking to increase jury verdicts.Similarly, because PTSD is now oftencasually referred to in popular culture,jurors, believing to have a basicunderstanding of its symptoms, mayhave difficulty identifying a genuine

claim. As a result, successful PTSD andemotional distress claims have become avery lucrative portion of a personalinjury claim.

In reality, medical experts believe thatPTSD is drastically over diagnosed withonly about 8% of Americansexperiencing PTSD in their lifetime.Industry advances in technology andsafety have also greatly reduced seriouscasualties in the maritime andtransportation industries. Nevertheless,changes to the medically certifiedcriteria of certain mental disorders haveonly increased the number of PTSDclaims in industry. Knowing how todistinguish between legitimate andfabricated claims of PTSD as well asknowing how to effectively challengethose claims are key components to

avoiding costly litigation and excessiveawards in this rising tide ofpsychological damage claims.

Long history of PTSD

While the existence of war-inducedpsychological trauma likely goes back asfar as warfare itself, PTSD-like disordersdid not become an officially recognizedmental condition until 1980, whenPTSD was included in the third editionof the Diagnostic and Statistical Manual ofMental Disorders (“DSM”). For centuries,soldiers coming home from battle wereobserved exhibiting similar symptomsseen in today’s PTSD victims whenexposed to post-war fear or stress. Forexample, the Iliad described Achilles ofhaving classic PTSD symptoms.Warhistorians referred to soldiers



experiencing PTSD-related symptoms,such as re-experiencing, numbing andphysiological arousal, as having“Soldier’s Heart” (American CivilWar),“Shell Shock” (WorldWar I),“BattleFatigue” (WorldWar II) and “post-Vietnam syndrome.”

Current standards

In 2014, the American PsychiatricAssociation (APA) released the fifthedition of its Diagnostic and StatisticalManual of Mental Disorders (known asthe DSM-5) which contained newguidelines and criteria for variouspsychiatric conditions, including PTSD.The new guidelines made the symptomseven more subjective and easier todiagnose, in turn allowing questionableclaims of PTSD to get in front of a jury.

Under the new DSM-5 guidelines, aperson only has to prove that he or shewas exposed to actual or threatenedserious injury, sexual violence or death.What constitutes a sufficient trauma,however, is in the eye of the beholder.DSM-5 does not require the triggeringevent to be outside the range of normalhuman experience or to be markedlydistressing to most people, just the

person claiming PTSD. Furthermore,that exposure does not need to bedirect. Rather, it is enough for theperson claiming to have PTSD to havesimply witnessed the trauma or even tohave later learned that a close friend orrelative experienced actual orthreatened trauma.

Moreover, the four sets of symptomsincluded in the new DSM-5 criteriaare purely subjective, making it easy toself-report and nearly impossible tochallenge a diagnosis on symptomato-logy alone.A plaintiff need only claimto have feelings of:

Intrusion – spontaneous and upsettingmemories of the traumatic event,flashbacks, emotional distress or physicalreactivity when exposed to reminders.

Avoidance – distressing memories,thoughts, feelings, or external remindersof the event.

Negative alterations in mood –amnesia, overly negative thoughts aboutoneself or the world, exaggerated blameof self or others, decreased interest inactivities, feelings of isolation, difficultyin experiencing positive affect.

Arousal – irritable, aggressive, reckless,or self-destructive behavior, sleepdisturbances, hypervigilance or relatedproblems.

In addition, symptoms must last formore than one month and besubstantial enough to cause impairmentto one’s social or work life.

Diagnosis is relatively easy too. PTSDcan be diagnosed by a psychiatrist orpsychologist based on relatively limitedinteraction with the patient. Specifically,the Clinician-Administered PTSDScale for DSM-5 is a detailed interviewaddressing 30 different areas that takesapproximately 30 to 60 minutes toadminister, while the PTSD Checklistfor DSM-5 is more commonly usedbut only takes five to seven minutes toadminister and only consists a list of 20questions.With subjective symptomsand an easily established diagnosis,PTSD claims are ripe for litigation.

What to do when plaintiffsclaim they have PTSD?

There are several reasons why counselwould tack on an alleged PTSDdiagnosis to an otherwise run-of-the-mill



personal injury claim. First, PTSD ismore concrete than “emotional distress”and holds more weight due to itsgrowing relevance in the military andmainstream media. Such a diagnosis alsoallows a medical expert, family, friendsand/or co-workers to “vouch” for theplaintiff ’s character and allegedcomplaints so that the jury is morelikely to connect with the plaintiff.Most importantly, claims of PTSDincrease damages as it justifies futuremedical treatment and economicdamages without decreasing non-economic damages.

When made, PTSD claims are difficultto put a price on as they consist oflargely subjective claims that have to bevalued by competing experts and a layjury. Indeed, the prior DSM-IV evenwarned that “[m]alingering should beruled out in those situations in whichfinancial remuneration, benefiteligibility, and forensic determinationsplay a role.” DSM-IV at p. 467.Thus,defense counsel should be equippedwith the below tools to challengequestionable claims of PTSD:

Get the factsUnlike other civil tort regimes, aplaintiff claiming PTSD in themaritime context (longshoremen, JonesAct seamen, cruise passengers) must befound to be in the “Zone of Danger” tointroduce emotional distress claims to ajury.To qualify, the plaintiff must be “inimminent risk of physical impact.” Ifthe plaintiff is not in the Zone ofDanger, his or her claim for PTSD fails.

Become a detectiveEven before litigation, considersurveillance and social media researchto catch any post-incident activityinconsistent with PTSD symptoms.Talk to those who witnessed thetraumatic event to get their take on it aswell as to those who are familiar withthe plaintiff before and after theincident. Conduct a civil and criminalrecords search for prior traumas, drugor alcohol abuse and any priorpsychological issues or treatment.

Get the recordsAn allegation of PTSD should justifydiscovery into the plaintiff ’s psychiatric

and medical records both before andafter the alleged traumatic event. If thecase is in litigation, parties arepermitted to exchange writtendiscovery, issue third party subpoenas,take depositions and conduct anindependent medical exam and/orneuropsychological testing. Suchrecords can be helpful in providingmaterial to challenge the plaintiff ’sdiagnosis as well as develop analternative theory of plaintiff ’scondition. Ideally, these records couldreveal pre-existing psychological issuesor traumas that are not attributable tothe events being litigated.

Learn about the plaintiff’s diagnosisFigure out how and when the plaintiffwas diagnosed with PTSD.Was theplaintiff diagnosed soon after thetraumatic event or only after anattorney got involved? How manytherapy sessions did the plaintiff attend?Could the plaintiff be blamingsymptoms caused by something else onthe accident?

Get an expertAs mentioned above, your jurors arelikely to already have a preconceivedexpertise on what PTSD is and how itis likely to affect the plaintiff ’s future.Thus, it is important to retain yourown psychiatrist expert early on in thecase to assist in challenging plaintiff ’sexpert and educating the jury on thereal symptoms and effects of PTSD.Make sure your expert has experiencewith PTSD claims, experiencetestifying in court and presents well infront of a jury.

Challenge the plaintiff’s expertWith the help of your own expert,challenge the opposing expert’squalifications and diagnosis. Does theexpert have specialized knowledge ofstress- and/or trauma-based disorders?Did the expert actually treat theplaintiff and if so, for how long? Didthe expert consider other mentalconditions or causes?

If opposing counsel offers testimonyfrom plaintiff ’s treating doctor, thetreating doctor may have inadvertentlystepped into the shoes of a retainedexpert if that treating doctor was hired

by the attorney, reported to theattorney or relied on information fromthe attorney in forming his or heropinions about the plaintiff. If this isthe case, challenge the doctor’sdesignation and require that an expertreport be produced or his or heropinion excluded.

Limit damaging testimonyDetermining whether there arelegitimate grounds to exclude or limitpotentially damaging testimony and/orreports from plaintiff ’s side is key. Evenif you are unable to exclude theopposing expert’s testimony in itsentirety, propose reasonable restrictionson the scope of that testimony. Forexample, it may be appropriate to allowthe expert to testify about PTSD ingeneral, but it may be too speculativeto hear testimony about the futureeffects that the disorder may have onthe plaintiff. Requiring plaintiff ’sexperts to play by the litigation rulesand set the appropriate foundation forhis or her testimony can appropriatelylimit and lessen the damaging effects ofa PTSD claim.

Know your juryIf PTSD is likely to take center stageduring the trial, consider askingprospective jurors during voir direabout their views on, and exposure to,PTSD victims. Of course, counselshould always be mindful ofhighlighting the disorder too much inthe early stages of trial.

Conclusion

While the threat of costly PTSD claimscannot be reduced until the subjectivityof its medically recognized symptoms ischanged, having these practicalstrategies in mind when defendingagainst such claims can at least help tomanage those risks and more accuratelyevaluate exposure. Best-case scenario isthat all of your hard work has revealedsufficient evidence to show that theplaintiff is a malingerer and does nothave PTSD. However, if you cannotdisprove the diagnosis or causation,embrace it and work with your expertto come up with an affordable andreasonable treatment plan to present tothe jury.�


WITNESS PREPARATION

Planning and practice are essential tosuccessful testimony. Every witnessshould plan and practice theirtestimony in advance.When a witnesshas planned and practiced theirtestimony, they are less likely to bethrown off by unanticipated questions.Plan what you want to say. Practicehow you want to say it.This buildsconfidence and competence, whichinspire effective testimony. A preparedwitness can get the truth to the juryeffectively and efficiently.

Witness goals

It is common for us to set goals in lifeso we can measure our performance.“I want to meet that sales target by yearend” or “I want to deliver a terrificpresentation to the board” are worthygoals.Testifying witnesses should dothe same thing – set goals for theirperformance testifying.

Witnesses should set this goal,“I aim tobe a C_________ witness” where ‘C’stands for:

• Caring

• Clear

• Compelling

• Competent

• Clam

• Confident

• Credible

Witness preparationtechniques

Effective witness preparation beginswith empathy.Testifying at depositionor trial is an unfamiliar and

unwelcome situation for most people.By empathizing with what the witnessis experiencing, a bond can beestablished.“I’m sorry you are havingto go through this testimony and I’mhere to help” can be an effective way toput a witness at ease. Once a witness isat ease, preparation can focus on keyareas, such as: listening skills,responsiveness, mindset, and avoidingnon-verbal negatives.

Listening Skillslistening is a full-time activity.Whilelistening to a question, a witnessshould not be thinking of an answer,

reading, reviewing photographs,looking at anything else – just listening.

ResponsivenessAnswers should be responsive to thequestion. Sometimes a ‘yes’ or ‘no’ willdo, sometimes not.Witnesses shouldnot feel bullied into giving a ‘yes’ or ‘no’answer if, in order to be responsive, alonger answer is required.

MindsetWitness testimony isn’t a chess game.The objective is to effectively andefficiently tell the truth, not to matchwits with the other side.

Planning and practiceprevents poor performanceKelley Tobin of Tobin Trial Consulting gave a lively talk on the tips and techniqueseveryone should know when it comes to preparing to be a testifying witness atdeposition or trial. Noreen Arralde summarizes her advice.


WITNESS PREPARATION

Avoiding non-verbal negativesWhen testifying live or by video,non-verbal negatives can detract fromeverything that a witness is saying. Noswivel chairs. No sour faces. Eyesshould be moderately engaged with thequestioner. Facial expression and handsshould be neutral.

The oath

Good news for the witness is that theoath is the thing that the witness andthe jurors have in common.Witnessestake an oath to tell the truth, jurorstake an oath to decide what is true.Lawyers don’t take an oath, theirquestions need not be truthful. Thewitness and the jurors also have sharedfrustrations. For the witnesses, unfairand untruthful questions can impedethe ability to effectively and efficientlytell the truth. For the jurors, trying todecipher who is telling the truth can bechallenging.

Witnesses should think of themselves asthe jurors’ guide to truth-telling.“I willhelp you, jurors, to understand the truthso you can carry out your oath, as Icarry out mine.”

Tension tightrope

Effective witnesses walk a fine linebetween:

Giving exactly right testimony –without splitting hairs or engaging insemantics

Being precise and exacting – withoutasking what the meaning of the word“is” is

Keeping answers short and to thepoint – while being open andtrustworthy

Being mindful that every wordcounts – without appearing nervous orguarded

Defending themselves – withoutappearing defensive

Defending against allegations – whileaccepting that it is ok to have beenquestioned

The secret to full fair truth

For each question, a witness should askthemselves:

1. Do I understand the question?

2. Is the question fair?

3. Do I know the answer?

4. Do I remember the answer?

Before getting to,“How do I want toanswer the question?” It is the witness’sresponsibility to make sure eachquestion and answer exchange is a clearand fair statement of the truth. A giftfor the jury.That may mean questionsneed to be re-stated before they can beanswered. A witness can say in responseto an unfair question,“If you mean toask me this” then re-state the questionin a way in which it can be answered.Witnesses can re-state questions for thejury with statements such as,“I can’tagree with that,”“That part’s not true,”“That part isn’t exactly correct,” and“That’s not the whole truth.”

Being a likeable witness

Jurors like witnesses who are:

CoherentDirectGood teachersHonestHumbleLogicalPersuasivePoliteResponsiveSincereSympatheticTrustworthy

Jurors don’t like witnesses who are:

ConfusingEvasiveDisrespectfulSarcasticArrogantContentiousDefensiveBelligerentHostilePompousAngryArgumentative

Avoid defense mechanisms

Witnesses should avoid these typicaldefense mechanisms:

“Let me show the jury how angry I amso they will know how falsely accusedI feel.”

“Let me show the jury how nonchalantI am so they will know I have nothingto fear.”

“Let me show the jury how smartI am so they will know I am right.”

When a line of questioning feels likean attack, a witness should avoid fight,flight or freeze responses, and shouldinstead go with the flow.This iswhere preparation is key.When awitness has prepared and practicedtheir testimony, they are less likely toslip into fight, flight or freeze modebecause they can rely on theirpreparation to tell the truth, tell itclearly, stay calm under fire, and standfirm on important points.

Standing firm may require a witness torepeat an answer consistently andpatiently even when the lawyer askingthe question does not like or agreewith the answer.Witnesses should bepolite, not antagonistic, even when theyfeel like a broken record.Avoid thetemptation toward sarcasm.

Know your source

Witnesses have various sources fortheir knowledge of events.Witnessescan testify based on their independentrecollection of events, writtendocuments created at or near the timeof an event, or their standard practice,even if no written document exists.Many witnesses are uncomfortabletestifying based on their standardpractice, but this source ofknowledge is as valid as independentrecollection and written documents.Witnesses should not shy away fromtestifying about their assurance in theirstandard practice.

“Are you certain you set the alarm onthis particular occasion?”“Yes, I amcertain. It is my standard practice.”


WITNESS PREPARATION

Would you agree that it is never okayto make a choice that needlesslyendangers someone?

Would you agree that it is never okayto ignore safety guidelinesand policies?

Would you agree that if you violated aknown safety rule and an accidentresulted that you are responsible?

Would you agree that a company isnever allowed to remove a necessarysafety measure?”

Each of these questions are loaded withinnuendo, i.e.,“needlessly endangers”,yet a witness may be goaded intoanswering “yes” to one or all of thembecause to say otherwise suggests laxattention to safety.

The correct answer to all of the abovequestions is actually,“It depends.”We donot live in a risk-free or perfect worldand witnesses should not be afraid toacknowledge that. A perfectly plausibleanswer is: “If by effective,preventable, safe,reasonable, prudent, you mean risk-freeor perfect, then I’d have to say ‘no’becauseunfortunately, no matter how hard westrive for it, that is not always possible.”

Silence bait

Silence at the end of your answer is adeadly weapon designed to get thewitness to keep speaking and volunteerextra information or explanations.Practice enduring the awkward silencewhile waiting for the next question.Stay engaged. And remember,“Okay”is not a question. It is another form ofsilence bait. Do not take the bait! �

Witnesses should avoid ‘hindsight bias.’Hindsight is not a source of knowledge.When asked a question which assumeshindsight, clarify the question beforeresponding.

“Are you asking me based on what weknew then, or what we all know now?”

Beware of the reptile inthe room

The reptile theory exploits modernsociety’s desire for safety. If there is asafety rule that can be said to have beencompromised, the jury is made to feelthat community safety is at risk – theirsafety, their children’s safety is at risk.

The theory presupposes that ‘perfectworld standards’ exist. Classic reptilianquestions include:


LOSS PREVENTION

Loss Prevention Director StuartEdmonston presented an overview ofhis Loss Prevention team’s activitiesover the past year.

Stuart updated participants on the LossPrevention department’s regularparticipation at Members’ and ship-managers’ crew seminars. The seminarsprovide the opportunity for senior andjunior officers to learn from theknowledge and data gathered by theUK Club relating to actual incidents. In2017, the Loss Prevention team hostedworkshops at 78 seminars, presentations

Sharing knowledge and datagained from actual incidentsIn 2018, the Loss Prevention team hosted workshops at seminars and presentationswith a collective audience in excess of 4,500 crew members. Linda Wright reportson the Loss Prevention presentation at the Bodily Injury Seminar.

and interacted with around 4,000crewmembers. To date, in 2018 theteam has attended 68 seminars with acollective audience in excess of 4,500crew.The initiative is proving verypopular with Members, and ensuresthat mutuality includes not only sharingcosts of claims, but also sharing theknowledge that results from the process.

“Lessons Learnt”

Stuart informed participants about thelatest safety initiative from the Club -the Lessons Learnt project. Every year,

the Club deals with thousands of claimsusing the expertise and experience ofits professional claims handlers, ex-seafarers and lawyers.With five decadesof research into loss prevention issues,the Club has developed a formidablebody of technical material on maritimerisks. Now the Loss Prevention teamaim to share the claims experience byexamining real case studies andidentifying lessons learnt, to assistMembers in avoiding similar incidents.

The Lessons Learnt reports areregularly published on the UK Club’s


LOSS PREVENTION

qualifications enable them to inquireinto any incident which a Member maysuspect has a criminal aspect. They havebeen called upon to investigate murder,arson, many forms of fraud, sexualassault, stowaway-related problems,criminal damage, container and generalcargo crime, port based organizedcrime, and every conceivable type oftheft. It is a unique body in the worldof marine loss investigation.

Stuart’s presentation concluded with areminder about Risk Ahoy!The fun,interactive computer game available todownload on Apple and Android.

Loss prevention is a vital issue for theUK Club.With the continuing effortsof Stuart and his team, we all strive toprepare our Members to forecastscenarios and prepare their crews forsafe passage.�

website, and deal with a broadspectrum of P&I related incidents. Thereports are categorized under theheadings: Personal Injury, Cargo,Navigation, and Pollution.

In addition to the written reports, theteam has also launched a series ofeducational and informative, reflective-learning, training videos.The videosprovide an interactive trainingexperience with a focus on educatingcrew.The first of the Lessons Learntvideos,“Death of a Bosun” which wasshown at the seminar, tells the tragicstory of a Bosun who died during aroutine lifeboat drill.The accidentoccurs due to miscommunicationbetween staff, faulty safety devices andunclear instructions. The videos featuresolutions and thought-provoking,preventative strategies to mitigate therisk of accidents, like those portrayed,happening again.

Crew Health – Fitter crewsand fewer claims

A healthy crew is necessary for ahealthy ship, Stuart gave a short updateon the Club’s Pre-EmploymentMedical Examination (PEME)Program. Since its beginning 22 yearsago, the Program has undertaken inexcess of 390,000 medical examinationson ships’ crew, identifying in excess of12,000 seafarers with pre-existingmedical conditions, or 12,000 potentialclaims.A number of case studies havedemonstrated that many illnesses wouldotherwise have remained unknown anduntreated, so that owners, seafarers, andthe Club have all benefitted directlyfrom the Program.

Stuart reminded the delegates about“Signum”, the criminal investigationarm of Thomas Miller, available toconduct investigations on behalf of theMembers of the UK P&I Club, theUK Defence Club,TT Club and ITIC.The staff is made up of ex-seniordetectives from the CriminalInvestigation Department at NewScotlandYard, who served on squadsspecialized in detecting suspiciousdeaths, organized crime, armed robbery,hijacking, kidnapping, fraud, andtransport crime.The teams’



CHARITY FUNDRAISING

Play for Pink golf dayThis year, the team raised $206,000 for the Breast Cancer Research charity at itsannual Play for Pink golf day at the Forsgate Country Club. 112 individuals took partfrom across the maritime community. In the last three years, the team has raisedjust under $500,000 with the commitment of the UK P&I Club and TT Club Members,brokers, attorneys and industry experts in the Americas. We look forward to nextyear’s event raising even more!

Julia M. MooreDirect: +1 201 557 7433

Julia joined Thomas Miller(Americas) in October 2015after 27 years with various USlitigation firms specializing inmaritime matters.

Dee O’LearyDirect: +1 201 557 7402

Dee joined Thomas Miller(Americas) in December 2007after 17 years practicing law inNew York City with a firmspecializing in maritimematters.

Linda WrightDirect: +1 415 343 0122

Linda joined Thomas Miller(Americas) in May 2010.Previously, she was a P&I Clubcorrespondent on the PacificWest Coast for 29 years.

Jennifer PorterDirect: +1 415 343 0113

Jennifer joined Thomas Miller(Americas) in March 2018 afterpracticing law for a decade ata maritime defense firmspecializing in longshore andcrew bodily injury matters.

Noreen D. ArraldeDirect: +1 201 557 7333

Noreen joined Thomas Miller(Americas) in 2012 after 13years with a US litigation firmand six years as claimsmanager for a global containershipping company.

TMA BODILY INJURY TEAM

Expertise andexperienceA specialist group from both the New Jerseyand San Francisco offices empowered witha significant settlement authority to dealwith the particularly demanding cases ofbodily injury in America.

This dedicated team supports Membersbased both in the United States and abroadin dealing with a diverse and complexrange of personal injury and illness cases.The one common factor is the influence ofUS jurisdiction or emergency response.

The team has handled cases ranging fromsuspicious death, passenger’s leisureactivity injuries, long-term occupationalillness, engine room and cargo handlingfatalities, through to shore-side accidents,loss of limbs in mooring activity and evensexual assault.

As well as supporting Member’s claims andenquiries directly, the team share theircollective experience through the pages of“Bodily Injury News”.

Thomas Miller (Americas) Inc

New JerseyHarborside Financial Center, Plaza Five, Suite 2710,Jersey City, N.J. 07311, USAT +1 201 557 7300E [email protected]

San Francisco44 Montgomery Street, Suite 1480,San Francisco, California 94104, USAT +1 415 956 6537E [email protected]

New Jersey

San Francisco

Jim DunlapDirect: +1 201 557 7407

Jim joined Thomas Miller(Americas) in 2017 afterearning his LL.M. in AdmiraltyLaw from Tulane University.He has a J.D. from GonzagaUniversity, and is a member ofthe Washington State Bar.

bodily injury news- winter 18/19 - uk p&i · 2018-12-14 · 4 bodilyinjurynews winter2 01 9...

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