Another issue commonly faced in the catastrophic personal injury case is that of life expectancy. Even where counsel is able to establish the fault of a defendant, if the defendant can convince the judge and/or jury that the plaintiff has a shortened life expectancy, then the defendant’s exposure for significant future medical care costs is reduced.

Since the late 1980’s, defendants have turned to a growing cadre of experts who base their forecasts of life expectancy on a flawed “statistical analysis”. Without fully reviewing the basis for the conclusions of the various statistical approaches, counsel must recognize its jury appeal.

First, it dehumanizes the injured plaintiff. The plaintiff ceases to exist as a living, breathing human being with needs, and instead becomes a statistical number to be compared with other numbers, each purportedly representing, by category, other individuals similarly situated.

Secondly, defense experts testifying at trial may garner credibility with the court and/or jury by “humbly” conceding that while s/he is not prescient enough to fully predict the life expectancy of a catastrophically injured plaintiff with certainty, the probabilities derived from a statistical approach reflect a greater population and are therefore more accurate and trustworthy than other more individualized approaches.

Lastly, an experienced lawyer for a catastrophically injured plaintiff, in a rush to emphasize the tragic injury sustained by their client, may lend credibility to a defense expert’s forecast of shortened life expectancy.

Fortunately, in most instances, experienced counsel can overcome these common difficulties when faced with the statistical approach. Experienced counsel can establish the flawed nature of the statistical approach, thereby assisting the jury to a true resolution of the life expectancy issue.