TALE NO. 24 You Want To Know Your Case Well Enough...

To Be Able To Do A Little “Horse Trading” When Necessary

Some years ago, defense counsel subpoenaed the records of the plaintiff’s psychologist in a personal injury case. Plaintiff’s attorney realized what was in the records and brought a motion to quash the subpoena and to prevent defense counsel from using the word “addict” at trial. The quid pro quo was that plaintiff would not object to the subpoenas for the plaintiff’s medical records from the other health care practitioners she had consulted. The records of plaintiff’s primary care physician contained several notes of concern about the quantity of pain pills plaintiff was taking, as well as noting the requests for new prescriptions because the prescription was lost, or the pharmacy refused to fill the last prescription… The records of the plaintiff’s gastroenterologist revealed that the plaintiff told her gastroenterologist everything – that she took three oxycontin in the morning just to get going!

By virtue of those records the defense had the evidence it needed to compel the jury to conclude the plaintiff was an addict – even without the psychologist’s records, and without using the word “addict”. [By the way, one of the side effects of decreasing the quantity of oxycontin is pain – indistinguishable from the pain caused by an injury; except in this case, there was no medical evidence the plaintiff had sustained any injury from the minor impact].