Prior injuries are another example of the defense trying to box you in with their preconceived notions about what factors discount the value of cases. Don’t let them get away with it! This is different than #7 on aggravation where the prior condition did not heal. This is about priors that did resolve.
Until they start letting infants drive cars, most of your clients will have some kind of back or neck problem in the past. Grown-ups spines get dinged from time to time. Those priors aren’t a bad thing. They may actually help the case. How? Susceptibility is another reason the crash may cause less damage to the metal structure of a car than to the human spine. Healing from something in the past doesn’t mean later injury to that same area will cause less harm, just the opposite; it may mean the outcome will be worse. In your client’s case, it caused a herniation, not just a sprain/ strain.
Why should the defense get a discount, when their client thrust a forever injury into your client’s life just because your client has crashes or episodes of neck/back pain in her past, like almost everyone else? There is no reason for a discount, other than insurance companies thinking they have a right to short their insureds of what is owed. The law gives them no such discount. Most states recognize that negligence need not be the sole cause of injury, so long as it contributes substantially to the outcome. Point that out to the panel during voir dire and discuss it this way:
The law recognizes what I call, “as is” justice. You take the person “as is”. Justice is not reserved for people who are perfect specimens of health. People who are not in the prime of their physical life don’t get treated as second class citizens who can only receive discount justice. People with wear & tear, bumps & bruises, who have been hurt in the past or had health problems, can get full justice too. It’s called equal justice or justice for all in the United States Constitution. I just call it “as is” justice. Does everyone agree that’s the way it should be? Does anyone disagree? (Since most jurors aren’t in perfect health, they will be able to get behind this law.)
Then, throughout the trial you can tap back into this universal truth by using the phase “as is” justice. When the defense neurosurgeon says your client had degeneration in her spine, you point out this is normal aging and say, “Are you suggesting that an injury matters less when a person isn’t in the prime of their physical life? Are you familiar with the concept of susceptibility and ‘as is’ justice?” (Let them object. It’s a fair question. If sustained, move on, the point will have been made. They can’t stop you in closing argument from bringing those powerful words full circle.)