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3 Things Jurors Aren’t Allowed to Know in Personal Injury Cases and Why

Posted October 13, 2017

By Jonathan A. Karon

My experience with real jurors at trials and mock jurors during focus groups is that there are three things they usually want to know in personal injury cases that the lawyers aren’t allowed to tell them:

1. Did health insurance pay for the plaintiff’s medical bills?

2. Has the plaintiff made any prior personal injury claims? and

3. (In an auto accident case) Has the defendant been in any prior crashes?

These are reasonable questions.  Here’s why the judge never lets the lawyers answer them.

Let’s start with health insurance. Many years ago, courts were faced with a dilemma. The law said that if a careless person injured someone, they were responsible for all the harm they caused, including the amount of the medical bills. This was not designed just for the benefit of the injured person. It was also intended to deter future dangerous behavior by making careless people responsible for the full value of the harm they caused. If the injured person had health insurance, then there were two alternatives. The first was to reduce the amount of damages that could be awarded to the injured person. The problem with that approach was that it resulted in a windfall to the defendant, by allowing them to escape responsibility for all the harm they caused. The second alternative was to allow the plaintiff to recover the full amount of their medical expenses, even if some or all of them had been paid by health insurance.
Faced with this dilemma, judges decided that the innocent injured person should get the benefit of having bought health insurance and the careless person should be required to pay for all the harm they caused. The wonky name for this legal doctrine is “the collateral source rule”.

These days, there’s another compelling reason to allow an injured person to recover for medical bills that have been paid by insurance. That’s because almost all insurance companies are entitled to be reimbursed out of any settlement or judgment for the amount of the medical bills they paid to treat the plaintiff’s injuries. If a person is covered by MassHealth or Medicare, then they are required to repay the government. So, if the injured person doesn’t receive full compensation for their medical expenses they may have to pay their insurance company out of compensation provided by the jury for other harms, like lost earnings or physical impairments.  Not only would the careless person not be held fully accountable but the injured person would not be fully compensated.

The second question concerns whether the plaintiff made any prior personal injury claims.
Virtually every time I’ve done a focus group, someone asks if the plaintiff brought any prior claims. The law says that jurors are not allowed to know this because they might unfairly conclude that the plaintiff is a “professional plaintiff” or otherwise “lawsuit happy” and hold that against them. (Ironically, many of my clients also think this way, going to great lengths to assure me that “I’m not one of those people who sues all the time”) We want the jury to decide the case based on what happened in this specific instance and not based on what type of person they think the plaintiff may be. In practice, this rule frequently hurts the plaintiff more than the defendant. Most of my clients have never brought a prior personal injury claim and most never will again, unless they are extremely unlucky. If the jury was allowed to know that, it would help their case. But, they’re generally not allowed to tell them.

Finally, most people understandably want to know if the defendant has ever been in any other accidents. With very limited exceptions, the law is clear that the jury may not be told about any prior accidents. This is very similar to the rule against telling the jury about a plaintiff’s prior claims. Judges were concerned that jurors would assume that if someone carelessly caused other accidents then they must be negligent in this case. Because we want to make sure that the jury decides the issues based solely on what happened in this case, they usually can’t be told if the defendant has caused prior accidents.

Although there are exceptions to these rules, most of the time judges will follow them. So, if you’re ever on a jury and you’re frustrated because you don’t have this information, don’t blame the lawyers. Whether we want you to have it or not, we’re not allowed to give it to you.


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