How to Approach Cases Involving Plaintiffs Whose Ongoing Pain Complaints Are Being Caused by Unrelated Conditions
Patricia Epstein Putney, Bell, Moore & Richter, S.C.

I. Introduction

At the 2023 WDC Summer Conference, I had the pleasure of presenting with Dr. Anne Eglash, a Family Practice physician from UW Health. The topic of the presentation was, “My Whole Body Still Hurts… and it must be from that rear-ender 4 years ago!” – Or is it? A Candid Discussion with a Primary Care Doctor About Potential Physical and Mental Contributors to Ongoing Pain Complaints.” We discussed the many underlying health concerns that can contribute to ongoing pain complaints in a patient – including plaintiffs pursuing personal injury cases who claim that all their symptoms are related to the accident you are defending, even when your strong hunch is that the symptoms complained of are unrelated to said accident or are going on for way longer than they should.

If you have practiced in insurance defense for any sustained length of time, you likely have encountered the “everything hurts” plaintiff, the “pain from head to toe” plaintiff, and the clearly depressed plaintiff with an obvious flat affect -- who refuses to admit that they are depressed. You have also likely seen patients undergo years of treatment for pain following a low impact rear-end accident (with barely a scratch, or no damage at all, to the vehicle), which anecdotally often seems to occur in the middle-aged (and frequently female) deconditioned plaintiff. The topics discussed at the conference included the prevalence of depression, anxiety, stress, substance abuse, hormonal issues (including perimenopause and menopause, which combined can span for two decades or more), insomnia, arthritis, degenerative disc disease, fibromyalgia and other conditions, which are well established by the medical literature to contribute to and/or cause ongoing complaints of pain.

With only fifty minutes to cover such a dense topic, there was simply not time to explore how we, the defense bar, can best focus upon these alternate explanations in our defense of cases to persuade a jury that maybe the accident was not a cause of the ongoing pain complaints years later. How do we best approach a treating physician, who may be advocating for their patient, to raise these important issues and have them concede points helpful to a causation defense? The written feedback made clear that while attendees found the topic interesting and valuable, they were hoping to get thoughts on how best to practically use this information in the defense of their cases. That endeavor is the goal of this article: In short, how best can a defense attorney use other, underlying health conditions to explain ongoing pain complaints?

II. Depose the Treating Doctor

While some treating doctors will staunchly advocate for their patients and seem to bend over backwards to testify that the accident is the sole cause of their patient’s pain complaints, not all do. Some are more intellectually honest, especially when confronted with records they did not know about. I always recommend deposing the treating doctor in a case where I suspect other underlying health issues are at play.

Many treating doctors start seeing the patient after the subject accident and do not have the time to study pre-accident records – to which they may not even have access. Doctors are busy and are generally inclined to trust their patients. They “take their patients at their word” about the cause of their subjective pain complaints and as to when it started. It is our job to educate them about those prior records at their depositions. This also serves to educate the plaintiff’s attorney, who likewise is busy and may not be familiar with all of his or her client’s pre-accident records. If, for example, a treater links ongoing low back pain to the accident, it can be very enlightening to show him or her the notes reflecting years of low back pain complaints and treatment for all those episodes. If the plaintiff is somebody who espouses chiropractic treatment, do not hesitate to include those records, too. Many medical doctors are skeptical of chiropractors in my experience, especially those chiropractors who do adjustments to their patients multiple times per week.

My practice when deposing the treating doctor is to mark a packet of pertinent pre-accident records in chronological order, bates stamp them, highlight them with the relevant sections so they are quick and easy to review, and review each one with the treating doctor – even if a somewhat painstaking process. This does not need to be done in a “gotcha” or disrespectful way. But asking the doctor as you review the many notes if their patient (whom they trusted to be telling them the truth) ever told them about that other doctor visit, or that episode or that prior treatment, can be very effective as they repeatedly say “no,” “no,” “no” when asked about each record. This is especially true where there are prior accidents or injuries which their patient conveniently just never mentioned. You can then get them to concede that the description of the pain and its location appears to be the same as the reported post-accident pain. I have had many physicians testify, after being confronted with pre-accident records, that they can no longer testify to a reasonable degree of medical certainty that the subject accident was a cause of the ongoing pain complaints. Some dig in, but many do not. Even if they dig in and go into full “patient advocate” mode, you at least know what to expect at trial and you can address that clearly biased patient advocacy in your defense.

III. Get an Independent Medical Evaluation of Your Own

While not every case requires an IME, many do. I recommend deposing the treating doctor before making this decision if timing allows, for the reasons described above. Especially in the situation where a treating doctor has dug in on causation even where pre-accident records make clear that this is not a new problem for the plaintiff, it is useful to have a physician who can more objectively refute this blind advocacy.

IV. Be Familiar with the Legal Definition of Causation

I have been surprised when attorneys at doctor depositions do not seem to use the legal definition of “cause” in their questions, and I have seen this arise with attorneys who have not yet had the opportunity to try a case. If the doctor being deposed has not been educated as to the required “buzz words” on causation, and has been confronted with numerous pre-accident records, defense counsel can sometimes get the doctor to concede that the accident was not “a substantial factor” in producing the current complaints.

“Cause” is defined in Civil Jury Instruction 1500 and makes clear that someone’s negligence does not need to be “the cause” of an injury, only “a cause,” because an injury can have more than one cause. Someone’s negligence was “a cause” of the injury “if it was a substantial factor in producing the injury.”

When faced with numerous pre-accident records demonstrating the same complaints, treating doctors will sometimes concede that they cannot state to a reasonable degree of medical certainty that the accident was “a substantial factor” in producing the injury. Since plaintiff has the burden of proof on causation as well as liability, this concession can be very helpful to the defense.

V. Defense May Use Possibility Evidence

Defense counsel must recall that we do not have the burden of proof and can talk all we want about possibilities with the other side’s experts, or with our own experts. So, in the scenario where there is a clear prior history of depression, or pre-existing problems of the same nature, go ahead and question the treating doctor/expert witness as to whether it is possible that the history of depression or the other health condition, or the prior accident, is the explanation for the ongoing pain complaints. Many will have to say yes if they are being intellectually honest.

I will often also show photographs of the damage, or lack thereof, to the treating doctor as well since they usually know nothing about the actual impact. While some will refuse to opine on biomechanical issues and claim a lack of expertise, as we know, a picture is worth a thousand words. In a situation with no observable damage to the vehicle, or minor damage, this can be very useful during the treating doctor’s deposition in conjunction with review of pre-accident records of import.

VI. Use Learned Treatises and Do Not Hesitate to Ask the Doctors about Medical Literature

While medical articles are routinely relied upon and used during trial in medical malpractice cases, the same is not true in general liability cases. But they should be in the right case. In the WDC seminar outline for my presentation, I provided citations to numerous peer-reviewed and widely accepted articles setting forth, e.g., the correlation between depression, menopause, and other health conditions to pain complaints. It would be helpful to discuss those articles with the treating doctor where appropriate.

The proper foundation must be laid pursuant to Wis. Stat. § 908.03(18) (the “Learned Treatise” hearsay exception). However, it is not that difficult to get a doctor to admit that a journal or author is a recognized authority in his or her field. Even if the doctor refuses to acknowledge the author’s authority, there is nothing stopping defense counsel from reading portions of the article aloud and asking the doctor if they are familiar with certain statements or concepts and then asking whether they agree with them. They will either answer honestly or be evasive – either way, it is helpful to know. Juries do not love evasive or dishonest witnesses.

Keep in mind that if you wish to have a learned treatise admitted at trial, you must comply with the 40-day notice filing provision found in Wis. Stat. § 908.03(18)(a).

VII. Attack the “Aggravation” Jury Instructions Head-On

The jury instructions on aggravation of pre-existing injury or latent conditions must be addressed and can be a thorn in defense counsel’s side. It is important to be aware of their verbiage and to try to get the treating doctor off the idea that the subject accident was the triggering factor in the patient’s symptoms. If the doctor has not been thoroughly prepared by the plaintiff’s attorney, they may well hand you a gift and indicate that they cannot state to the requisite degree that this accident either aggravated or activated the condition complained of. The two jury instructions to be mindful of are Wis. JI-Civil 1715 and 1720:


The evidence shows that the plaintiff was previously injured when (briefly describe event). If the injuries of the plaintiff received in the accident on (date) aggravated any physical condition resulting from the earlier injury, you should allow fair and reasonable compensation for such aggravation but only to the extent that you find the aggravation to be a natural result of the injuries received in the accident.


In answering subdivision of question ___, you cannot award any damages for any (pre existing disease, condition, or ailment) (predisposition to disease) except insofar as you are satisfied that the (disease, condition, or ailment) (predisposition to disease) has been (aggravated) (activated) by the injuries received in the accident on (date). If you find that the plaintiff had a (pre existing disease or condition which was dormant) (predisposition to disease) before the accident but that such (disease or condition) (predisposition to disease) was (aggravated) (brought into activity) because of the injuries received in the accident, then you should include an amount which will fairly and reasonably compensate (plaintiff) for such damages (plaintiff) suffered as a result of such (aggravation) (activation) of the condition.

Any ailment or disability that the plaintiff may have had, or has, or may later have, which is not the natural result of the injuries received in this accident, is not to be considered by you in assessing damages. You cannot award damages for any condition which has resulted, or will result, from the natural progress of the pre existing disease or ailment or from consequences which are attributable to causes other than the accident.

If the plaintiff was more susceptible to serious results from the injuries received in this accident by reason of a (pre existing disease or condition) (predisposition to disease) and that the resulting damages have been increased because of this condition, this should not prevent you from awarding damages to the extent of any increase and to the extent such damages were actually sustained as a natural result of the accident.

Being aware of these jury instructions will help you craft your questions carefully. There are certain experts who are deposed frequently and who chant the mantra “the accident aggravated the patient’s underlying condition.” Ask the experts for their methodology and how they can quantify this aggravation, acceleration, or worsening. Chances are high that they cannot do so. Make them say so!

VIII. Keep Daubert Motions in Mind

While space considerations prevent a detailed discussion on this topic, prior WDC publications have reviewed the Daubert factors in depth. A Daubert motion should be considered in the above scenario. If the doctor’s opinion is not based on reliable methodology or data as required under the law and is merely ipse dixit (i.e., “because I say so” testimony), file a Daubert motion on the causation opinion. While many courts are very deferential to doctors’ opinions on causation and permanency, the opinion may be barred by the right judge, one brave enough to call ipse dixit testimony out for what it is.

IX. Conclusion

Keep in mind the above considerations the next time you are defending a case where there are significant pre-existing records or a clear history of underlying health conditions, including depression, which may well be contributing to the plaintiff’s ongoing complaints.

Author Biography:

Patricia (Patti) Epstein Putney is a Shareholder at Bell, Moore & Richter, S.C. in Madison. She obtained her Bachelor of Arts degree in Art History from Bryn Mawr College in 1984 and her Juris Doctor degree from Brooklyn Law School in 1989. She moved from New York City to Madison in 1995. Patti's practice area relates to the defense of all types of civil litigation. This includes defense of physicians, nurses, and other health care professionals in medical malpractice cases, as well as in licensing, disciplinary and credentialing disputes. She regularly defends personal injury and wrongful death actions, including automobile accidents, premises liability, products liability, insurance agent negligence as well as insurance coverage disputes. Patti has had numerous jury trials throughout the state, has litigated in federal courts and appellate courts and has argued before the Wisconsin Supreme Court and the 7th Circuit Court of Appeals. Patti is a member of the State Bar of Wisconsin, Wisconsin Defense Counsel, and the Dane County Bar Association. She also started a group called “Lawyer Moms” for working women lawyers with children.