Firstly, it should be recognized that whether we are dealing with chronic pain, fibromyalgia, or chronic fatigue, all of the following tactics and strategies would apply equally.

Education of the client is the first important step. The plaintiff must be made to understand the importance of their credibility, if the case is to succeed. They must appreciate that nothing any doctor may, or may not, say, is of equal importance. Indeed, they must be made to appreciate that a favourable medical report, or testimony, will be useless without maintaining their credibility, since defence counsel is certain to point out on cross-examination of the plaintiff’s doctor, that their entire diagnosis and prognosis, is based upon accepting what the plaintiff reports to them.

In no other case, is it more critical to gather the pre-accident medical history through the OHIP summary and the clinical notes and records of the family doctor, prior to discovery, than in a chronic pain case. Indeed, given that very often the plaintiff is seeing accident benefits physicians prior to discovery, it is critical to get the history straight before that process begins.

You must explain to the client that when they are asked by a doctor, or by defence counsel at discovery, whether they have ever had for example, a headache, back pain, neck ache, etc., it is a simple and straightforward question. Oftentimes, clients will say “No” to such an inquiry, even though you have reviewed the OHIP and clinical notes and records in preparation for discovery, and reviewed this very complaint with them. When questioned afterwards as to why they gave the improper answer, they will often explain that they thought the question somehow meant “a serious problem with headaches, neck or back pain, etc., or something that kept them off work”. While the mess can be cleaned up a bit through examination-in-chief, it is best to avoid, to the extent possible, any opportunity for the defence to raise the question of credibility or accuracy of the plaintiff’s testimony.

I cannot over emphasize, the critical importance of discovery preparation. It not only paves the way for a clean trial, but more importantly in this age where settlement or mediation resolve as many as 99% of our cases, a report from defence counsel to their client (the insurer) that the plaintiff’s credibility remains intact following discovery, will more often than not dictate a much easier road to a higher settlement value.

More so than any other type of case, it is critical that you start immediately to put together as much corroborating evidence as you can from the outset.
Most legitimate chronic pain patients look the part. For that reason, get as many recent photos, which predate the accident by up to about three years, as possible. If your client does not look the part (of a chronic pain patient), early settlement is probably advisable.

To illustrate this situation, I recall a trial, which I defended, where the plaintiff claimed fibromyalgia. I do not recall a trial in which I scored more points through cross-examination of the plaintiff or her doctors. Nevertheless, it was one of my worst defeats as a defence lawyer for one simple reason. The plaintiff herself in that case was about 35 years of age, and she had two older sisters, one 10 years older and the other 12 years older. When they were called to testify, I recall a sinking feeling in my stomach when I noticed the plaintiff looked older than her two sisters, who were at least a decade beyond her.

As well, interview and obtain statements from as many lay witnesses as possible. Of course, immediate family must be called, although their independence is quite properly questionable. I often wonder why that is so, because they are the people living with the plaintiff and have to put up with them day after day, noting the extreme change in their personality.

However, oftentimes the best witness is usually the family doctor, particularly if that doctor was familiar with the patient before the accident. If they have not noticed a significant change in their patient, again, consider early settlement.
Obviously, you will try to get witnesses who are generally believable to most members of the public, such as clergy, or others who are generally held in high regard.

Most physicians who treat these patients will note that they have good days and bad days. They are usually not predictable. As well, most doctors will tell their patients to do as much as they can on a good day; to go for a walk; to socialize; to go shopping. Explain to your client that in most of these cases the insurer will conduct surveillance. While making your client aware of this is important, it is equally important to advise the client not to live their lives for the lawsuit. They should simply follow their doctor’s instructions regardless of surveillance.

The only mistake the plaintiff’s lawyer, or the plaintiff, can make is to not fully admit to these activities, when they are questioned at discovery. If this is done, the surveillance will not be very useful since it does not contradict anything the plaintiff has already said under oath and hopefully to the doctors who examined him.

If the defence has videotape showing your client walking, shopping, smiling, unless they have basically caused surveillance to be done several days in a row, that evidence will be useless in the face of the usual comment from the medical profession that these patients have good days and bad.

PART II - SELECTION OF PROPER EXPERTS

In dealing with chronic pain, fibromyalgia or chronic fatigue syndrome, orthopaedic surgeons are never useful unless the defence chooses one as their expert. Indeed, more often than not, insurers will choose an orthopaedic surgeon because they know the report will say that no objective findings can be made and therefore there are no apparent reasons why the plaintiff cannot return to work, or to their activities of daily living. Such a report really begs the question, since we know there is usually no ongoing organic cause of the pain. As well, orthopaedic surgeons seldom treat chronic pain patients, usually referring them elsewhere, or back to their family doctor. If they do not treat chronic pain patients, then how are they able to prognosticate? This particular area is most useful for the purposes of cross-examining defence orthopaedic specialists in a chronic pain case.

In fibromyalgia cases, one should use a rheumatologist or a physiatrist, first determining that they are familiar with fibromyalgia, that they treat these patients and that they, in particular, have a good grasp of the fibromyalgia literature.

Most defence counsel will seize on Dr. Wolfe’s 1994 paper on fibromyalgia, which states that there is no evidence that trauma causes fibromyalgia. He also says that the tender points are unreliable because they can be faked.

Over the last few years, there has been literature going both ways. For instance, control points are deemed by some to no longer be as important as they were five to ten years ago. As well, many authors say that there can be more than 18 tender points. At the very least, these doctors can say that, although fibromyalgia may not be caused by trauma, if the injury creates inactivity, it can certainly worsen FM. It may be the difference between a fibromyalgia sufferer being able to carry on with their activities, occupational and otherwise, and not being able to do so following a modest car accident with soft tissue damage.

Usually, chronic pain clients have a significant pre-accident history. The defence will try to portray the plaintiff as a “crumbling skull”. For that reason, it is critical that the physicians you retain are educated on the “Athey principle”. Make sure they understand that the trauma may not even be 50% of the reason that the patient has chronic pain. As we know, it need only “materially” or “substantially” contribute to the current and future condition of your client.

As well, ensure that the physicians you retain have the complete pre-accident history before they write their first report. You can be reasonably certain that defence doctors will have it, and you do not want it to be seen that the defence doctor was in a better position to express an opinion than were your own.

Finally, without a treating psychologist or psychiatrist who has an ongoing relationship with your client, it will be difficult to make out your case. I emphasize the words “treating” and “ongoing relationship”, because they are the factors that place the plaintiff’s doctor in a better position to carry the day than a psychiatrist or psychologist who sees the plaintiff on one occasion, for the defence.

Aside from choosing doctors who treat these patients, your other criteria should certainly include the credibility of the doctor in a courtroom. Is he or she a good witness? How did they respond to cross-examination? Are they familiar with the appropriate literature? For the plaintiffs’ bar, the best source of this kind of information is the OTLA chat line where questions like these are asked and answered every day.

PART III – THE LITERATURE

Since chronic pain cases depend so much on the plaintiff’s presentation at discovery and in a courtroom, it is always useful to inject some measure of objectivity. For a full review of the literature, see Chapter 12 of the book “Medicine in the Litigation Process” (Page 805), published by Carswell.

While there are many authoritative pieces of literature, the two most frequently used are the DSMIV – definition of chronic pain, and the studies which demonstrate that about 15% of whiplash or chronic pain patients do not recover. There has not been a defence doctor that I have seen, who will fail to admit that chronic pain is a recognized disorder, or that 10% to 15% do not recover. Once these admissions are made, the jury, or trial judge, will be at least somewhat more prepared to accept that your client has such a condition and that it is a well established and recognized medical problem.

PART IV – TRIAL TIPS

Juries, in my experience, are less inclined in chronic pain cases to deliver substantial awards than are trial Judges. For that reason, many plaintiff’s counsel are inclined to bolster their case at trial with all types of visual aids when they conduct it in front of a jury. I often see this backfire. Perhaps the jury gets the impression that plaintiff’s counsel is trying to get them to take their eye off the ball, or are artificially trying to enhance the plaintiff’s credibility.

There is only one type of demonstrative aid that I have ever seen to be useful and, of course, it must fit your situation. Oftentimes, counsel will have large charts drawn up showing the months of the five years preceding the accident and the months of the five years post-dating the accident. Within each of those months, they will show the number of visits to doctors that the plaintiff had. Generally, if the chart post-accident is virtually filled and the chart pre-accident is quite bare, this will have an impressive and important effect on the court.

Aside from that kind of evidence, however, I do not know much else that is useful in the way of demonstrative evidence.

If your client’s discovery evidence, or medical histories, conflict with their pre-accident records, or if there is surveillance that will be put to your client on cross-examination, it will take a lot of the sting out of the cross-examination if that evidence is brought out in chief and explained.

For example, in your examination-in-chief of the plaintiff, there are three questions which you should cover:

1. Do you have good days and bad days?
2. Are the good days and bad days predictable?
3. On your good days, do you follow your doctor’s advice and do as much as you can?

Oftentimes, it is said that there is no objective evidence available in chronic pain cases. Aside from situations where radiological evidence will show increased uptake in the areas of complaint, it seems to me that the best objective evidence and the most crucial to present at trial, is the fact that your client has a good work history, in a well paying job.

Along these lines, it is also critical to demonstrate that your client’s financial needs cannot be met without being employed. It certainly bolsters the plaintiff’s credibility when the court is forced to ask itself the question, as to why the plaintiff would give up this job and income to enter the uncertainty of litigating a chronic pain case.

The corollary of this is also true. If your client has a terrible work history and insignificant earnings, then it is important to realize that this is not a case you should try.

Finally, in cross-examining the defence doctors, there should be no harm at that point, in establishing the obvious, that generally the better a person knows the other, the more capable that person becomes of assessing their credibility. Advantage – treating doctor.

As well, oftentimes, defence doctors will base their conclusions on what they believe are inconsistent presentations by the plaintiff, or what they believe to be exaggeration. It seems to me, that this is the hallmark of the chronic pain patient. Therefore, it is also critical that when you examine your own physicians in chief, you establish the fact that chronic pain patients will almost always draw away from an examiner at the slightest touch, or be reluctant to put their neck or back through an active range of motion when asked to do so. This is simply based on their fear (probably unfounded) that they will cause harm or increase their pain level.

There is no doubt but that trying a chronic pain case is, at best, a difficult proposition. Counsel must ensure that all their ducks are in a row to the best extent possible. There are more disasters for plaintiff’s counsel when they fail to do so, than is otherwise the case.