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Sore Back Boot Camp: Understand Evaluate and Defend

Sore Back Boot Camp: Understand Evaluate and Defend. Lee Wertz, Partner Harrison Bettis McFarland LLP Wednesday April 30. B. Lee Wertz, Jr. Partner, Harrison Bettis McFarland LLP

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Sore Back Boot Camp: Understand Evaluate and Defend

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  1. Sore Back Boot Camp: Understand Evaluate and Defend Lee Wertz, Partner Harrison Bettis McFarland LLP Wednesday April 30

  2. B. Lee Wertz, Jr. • Partner, Harrison Bettis McFarland LLP • His experience in civil litigation includes complex, multi-party commercial and residential construction disputes concerning construction and design defects, product failure and warranty claims, commercial litigation, products liability, personal injury defense and insurance coverage. Lee received his B.A. from Southwestern University in 1990, his J.D. from Baylor University in 1996 and was admitted to the State Bar of Texas in 1996. Lee is a frequent speaker on litigation and insurance issues

  3. Minor Impact, Low Speed • Reinforce jury’s natural skepticism. • Not every accident can cause a herniated disc.

  4. Natural Skepticism • It is not an injury. It is a condition. • Use the picture early and often.

  5. 3 MPH $3,000,000.00 Demand $8,000,000.00 to Jury

  6. Causes of Back Pain • Other Causes: Degenerative Changes • What CAN cause a herniated disc?

  7. Things To Look For On MRI Reports: Degenerative Changes

  8. Degenerative Changes • Osteophytes • Hypertrophy of the • right facet joints (black arrows). • Dessication

  9. Experts • Radiologists • Orthopedic Surgeons • Biomechanical Engineers

  10. Science

  11. Hyperflexion + Axial Compression • M.A. Adams & W.C. Hutton, Prolapsed Intervertebral Discs: A Hyperflexion Injury, 7 Spine 3, 184 (1982)

  12. Textbooks

  13. “… [I]t can be safely said that disc ruptures do not occur as the result of a single loading event, unless there are associated massive bony injuries to the spine. • Alan Nahum, Accidental Injury: Biomechanics and Prevention (2001)

  14. “… a causal relationship between an impact and rupture does usually not exist. Disc ruptures are generally the result of a slow degenerative process.” • K. U. Schmitt, Trauma Biomechanics, (2004)

  15. Human Testing

  16. “The subjects were exposed in 50 different experiments at average impact G of 3.25 to 9.02 for durations of .3 to .1 seconds. No permanent physiological changes were noted.” • Albert Zaborowski, Human Tolerance to Lateral Impact With Lap Belt Only, (1964)

  17. Eight volunteers were used in a series of twenty-five staged side impact collisions with impact speeds ranging from approximately 2 km/h to 10 km/h and impact configurations to the front, middle and rear side portions of the vehicle. • Fugger, T., Randles, B., Wobrock, J., Welcher, J. et al., Human Occupant Kinematics in Low Speed Side Impacts, SAE Technical Paper 2002-01-0020, 2002

  18. 3 subjects experienced minor soreness in the neck or back, not more than 24 hours in duration.One subject had complaints two days after tests, lasting only one day. • Fugger, T., Randles, B., Wobrock, J., Welcher, J. et al., Human Occupant Kinematics in Low Speed Side Impacts, SAE Technical Paper 2002-01-0020, 2002

  19. Lumbar Discs

  20. “…rear impact automobile collisions with delta V’s up to 9.3 m/s (20.7mph) do not produce much, if any, lumbar axial compression.” • D. Gates, A. Bridges, et al, Lumbar Loads in Low to Moderate Speed Rear Impacts, SAE Technical papers 2010-01-0141, 2010.

  21. Because the lumbar axial compression was small and significant axial compression is required to create damage to the intervertebral disc, it is unlikely that low to moderate speed impacts could cause significant damage to the lumbar discs.” • D. Gates, A. Bridges, et al, Lumbar Loads in Low to Moderate Speed Rear Impacts, SAE Technical papers 2010-01-0141, 2010.

  22. Damaged Discs

  23. “Severely weakened lumbar disc, with the posterior elements removed, could not be ruptured . . . Additional loads causing fracture of the vertebral body did not result in herniation or excessive bulging.” • Paul Brinckmann, Injury of the Annulus Fibrosis and Disc Protrusions, 11 Spine 2, 149 (1986)

  24. Analogy

  25. Daily Living

  26. Questions, Final Comments and Contact Information B. Lee Wertz, Jr. Harrison Bettis McFarland LLP 1415 Louisiana 37th Floor Houston, Texas 77002 713-843-7889 Direct lee.wertz@harrisonbettis.com @leewertzlaw

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