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Weighing obese clients’ injury claims

By: DOLAN MEDIA NEWSWIRES//December 16, 2014//

Weighing obese clients’ injury claims

By: DOLAN MEDIA NEWSWIRES//December 16, 2014//

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By Pat Murphy
Dolan Media Newswires

With nearly 30 percent of Wisconsin adults classified as obese, there’s a good chance that a plaintiff’s weight is going to be an issue in the next personal injury case that lands on your desk.

On the one hand, there may be evidence to suggest a legitimate link between a plaintiff’s obesity and the cause, severity or permanence of his injuries.

On the other hand, both plaintiffs’ attorneys and defense counsel agree that jury deliberations can be influenced by individual biases against those with severe weight problems, no matter how unfair that may be.

In either case, a jury’s liability and damage determinations may be swayed by the fact that the plaintiff is grossly overweight.

“You only need one or two people in a jury to feel that obesity is an issue, and it affects everybody,” said Massachusetts personal injury attorney Kenneth Levine of Brookline.

Ann Marie Maguire, a PI attorney, said it’s “very prevalent” for jurors to have either overt or unconscious biases against obese plaintiffs. Such prejudices can come into play in a typical slip-and-fall case, she said.

“For some people it’s a truism: The bigger they are, the harder they fall,” Maguire said. “I do believe that juries sit back and say, ‘If [the plaintiff] didn’t weigh that much, she probably wouldn’t have been hurt.’”

Defense attorney Robert DeLanders of Kenney & Sams in Boston agreed that a plaintiff’s obesity can weigh in favor of a defendant in a slip and fall suit.

“I could see a scenario where a jury would say what really made the situation dangerous was the fact that this person couldn’t exercise the requisite care for themselves based on their condition,” DeLanders said.

But defense attorney Robert Curley Jr. said a jury could just as well conclude that an overweight person is more likely to be walking slowly and carefully.

“Really, if you slip on a slippery substance and your feet go out from under you, you are going to go to the ground one way or the other,” Curley said. “I don’t know that a jury in a slip and fall case would hold it against a large person.”

Ryan Alekman of Springfield, Mass., said he doesn’t factor in a client’s weight in valuing a premises liability case because it doesn’t change the property owner’s duty of care.

“Regardless of whether it’s an apartment building or store, you know that there is obesity out there, and you are required by law to maintain your premises in a reasonably safe condition,” he said.

Still, Alekman acknowledges the possibility that some jurors might bring a bias against obese people into the courtroom.

“You have to be cognizant that people have their own prejudices against people who are overweight or who look different from them,” he said.

A big part of the problem from a plaintiff’s point of view is that juries will latch onto “anything and everything” in order to avoid a finding of liability, said lawyer Daniel Pava. He likened the challenge of representing a grossly overweight client to the challenge of trying to win a case for a client who doesn’t speak English.

“Somebody that’s obese, they’re going to blame them,” Pava said. “It’s just inevitable that they are going to factor that in.”

Jordan Tarekidis stands on a scale at his family's wholesale food warehouse where it shows Tarekidis weighs more than 300 kg (661 lbs) Monday, March 19, 2012, in Sydney. Tarekidis, one of Australia's most overweight men, is attempting to loose 200 kg (440 lbs) in 18 months with the help of a hypnosis expert. (AP Photo/Rick Rycroft)
Jordan Tarekidis stands on a scale at his family’s wholesale food warehouse in 2012 where it shows Tarekidis weighs more than 661 pounds. A jury’s liability and damage determinations may be swayed by a plaintiff’s weight. (AP Photo/Rick Rycroft)

The way plaintiffs’ attorney Levine sees it, the problem of juror prejudice against those with weight problems is really just part and parcel of the reality that juries more readily accept “attractive” witnesses than they do “unattractive” witnesses. The task for the lawyer, he said, is to humanize the client so that jurors look past how much the person weighs.

In fact, Maguire said, a person’s weight problems often have more to do with a preexisting medical condition than with a lack of self-control. In order to address juror prejudices, she suggests that plaintiffs’ attorneys subtly work those conditions into the case in order to take the “sting” out of the weight issue.

“You can make it a sympathetic situation,” Maguire said.

Medical risk factor

Obesity is often an issue in medical-malpractice cases because excessive body weight is a risk factor that doctors must consider in rendering treatment.

While doctors have a duty to treat a patient according to the standard of care regardless of the person’s condition, jurors frequently are sympathetic to a defense claim that a plaintiff was a “tough patient” due to his obesity, Levine said.

“You’re a juror sitting back in that case thinking, ‘Gee, maybe if he stopped eating a bit, maybe he would not have had all these problems,’” he said. “It’s impossible for a jury not to consider.”

Trial attorneys must factor a plaintiff’s obesity into the analysis of liability and damages from the very beginning of a case, said DeLanders, who acknowledges that there’s a greater chance that a jury will sympathize with the doctor in a complex medical-malpractice case in which treatment was complicated by the patient’s obesity.

“While a doctor has to take a patient as they find them, a doctor might have limited treatment options for a patient who’s clinically obese,” DeLanders said.

There are concrete reasons why a patient’s obesity can weigh against a finding of liability in a medical-malpractice case. For example, DeLanders said, excessive weight can make it more difficult for a doctor to locate “surgical landmarks,” thus complicating a surgical procedure.

Or, a doctor may have rejected a knee replacement as a treatment option because the patient’s excessive weight would have prevented a successful rehabilitation from the procedure.

Quality of life

The issue of obesity is often more important on the question of damages than it is on liability in medical-malpractice lawsuits because it affects both quality of life and life expectancy, DeLanders said.

According to Pava, it can be an uphill struggle to convince a jury that a grossly overweight client’s quality of life has been significantly impaired by an injury.

“For a person that’s heavier, [jurors] are going to say, ‘This large person doesn’t have any quality of life to begin with, so how has it been diminished?’” Pava said.

DeLanders said jurors are able to appreciate the difference between a plaintiff who was deprived of an active lifestyle because of an alleged medical error and someone who lived a sedentary life due to excessive weight. That factor can weigh in favor of a reduced damage award, agreed Boston defense attorney Christopher Flanagan.

“It’s very difficult for an obese plaintiff to convince a jury that their activities of daily living were significantly affected because of an accident when they already were very sedentary,” says Flanagan.

Pava said defense lawyers are well aware of juror biases against obese personal injury plaintiffs, regularly bringing up the issue in settlement discussions.

“I hear it all the time: ‘They’re obese! They’re obese!’ They always throw that at you,” Pava said, noting that the “litmus test” for settlement often occurs when the defense takes the plaintiff’s deposition.

“If they meet the client and see they are someone the jury’s going to like, they’re inclined to settle,” he said. “But when they see somebody that’s larger, they think, ‘Why should we settle?’”

But Flanagan said defense attorneys must “straddle the fence” at trial in terms of addressing the plaintiff’s weight problems, pointing out how obesity impacts the case only when necessary and without appearing to “blame the victim.”

“Juries are very smart,” Flanagan said. “All you need to do is plant some of these ideas. They are going to see the plaintiff and will make certain assumptions.”

Defense attorneys who overplay their hand by harping on the plaintiff’s weight problems risk having the issue turned against them, he warned.

“Juror sympathy is such a huge factor, you don’t know whether that obese person is going to be perceived as kind of a sad sack,” he said.

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