Reasons we must litigate more “Minor Impact Soft Tissue” cases, but choose carefully.

Miles B. Cooper
2015 May

The lawyer answered the phone. "A friend of yours? Involved in a rear-ender? Well, sure, that's a clear liability personal-injury case. I don't usually handle them, but it sounds easy. Order some medical records, make a few phone calls, send out a demand package, negotiate, and settle the case. What could possibly go wrong?"

What is a MIST case?

MIST stands for minor impact soft tissue. Rear-end collisions with little damage to the involved vehicles are quintessential MIST cases. Why are MIST cases difficult? Some time ago, insurance companies recognized rear-end collisions were costing them money. Most people might think that's what insurance is for – paying valid claims. Instead, insurance companies have put shareholder profit over their insureds. "Valid" claims disappeared in the late 1980's (along with Oliver North's documents). Insurance companies set out to kill MIST claims. They took three steps.
• First, advertising campaigns. "You rear-end him. Just like he wanted. It's called a 'swoop and squat.' And fraud like this can add hundreds of dollars a year to your insurance bill." Allstate, the good hands company that put on boxing gloves to deal with its insureds, produced this gem insinuating all rear-end collisions were fraudulent. (From Good Hands to Boxing Gloves: The Dark Side of Insurance by David J. Berardinelli.)
• Second, lowball and litigate. About 20 years ago, several insurance companies decided to make pitifully small offers and then force non-settling claims to trial. A short-term cost increase: more staffing and occasional losses. A long-term savings: dissuade lawyers from taking MIST cases. Make it impossible for people to find lawyers who will take these cases and who must then take the pitifully small offer.
• Third, develop junk science. These are the biomechanical experts who try to explain that the impact was the equivalent of sitting down in a chair – and thus could not have produced the claimed injury.
The insurance industry's efforts worked. MIST cases are time-consuming and usually yield a low return. Litigation costs consume the result. The unhappy client tells friends, and people become less likely to bring claims.
We can accept this. Or we can fight back. It means rejecting pitiful settlements. It means fighting smarter, not harder, and trying MIST cases efficiently.

MIST case considerations

• The client's past can hurt
Past neck or back issues are common. But they cause difficulties in MIST cases. The defense points to past problems as the source of any pain. Clients with prior litigation or claims history also face scrutiny – by claims adjusters and jurors. Time-lines demonstrating the years without any complaints help. It is also useful to be able to say that your client has never made a past claim or filed a lawsuit before (assuming it is true).
• Self-funded ERISA health plans US Airways, Inc. v. McCutcheon (2013) 133 S.Ct.1537 made a bad lien scene far worse. Research the client's health plan at the beginning. If it is a self-funded ERISA plan, obtain the summary plan and full plan (request these from the employer.) The plans outline the health-insurance carrier's recovery rights. In smaller cases with significant past medical bills, ERISA can be a case-killer.
In this situation, explain the issue to the client. Ask permission to tell the health-insurance carrier that the client will not file simply to be a pass-through. When faced with getting nothing versus something, some carriers will make concessions despite contracting around every potential lien reduction.
• The vehicle damage is not relevant
Today's cars are designed to absorb blows. Low-speed collision damage can be difficult to see and inexpensive to repair. Some courts understand; they have granted motions in limine
to exclude evidence of repair costs and vehicle damage photos.
I have an argument that I have used in trial briefs and in-limine motions that I can provide upon request.
• Expedited jury trials as a solution
One way to reduce the time, cost, and risk is to suggest an expedited jury trial. Insurance companies agree to these in MIST cases in exchange for capping the verdict at the policy limit. For more on EJT pros, cons, and strategies, see "Back Story" in Plaintiff, May and August 2014 editions.
• Consider referring the case to a MIST expert
Some lawyers excel at MIST cases. They try them and can sort between the terrific and the toxic. If you do not want to become a MIST master and do not want your client forced to accept a lowball offer, consider a referral. In case you were thinking, "This jerk is writing a soft sell column to get my cases," I am not. There are several great people in the Bay Area for these cases. I handle MIST cases like many trial lawyers – reluctantly.


Back to our lawyer who accepted the MIST case. A year and a half later, he associated in a trial lawyer. The case went to trial. The client got a fair verdict. The insurance company learned that not everyone accepts the insurance companies' MIST hardball.

Miles B. Cooper Miles B. Cooper

Miles B. Cooper is a partner at Coopers LLP, where they help the seriously injured, people grieving the loss of loved ones, preventable disaster victims, and all bicyclists. Miles also consults on trial matters and associates in as trial counsel. He has served as lead counsel, co-counsel, second seat, and schlepper over his career, and is an American Board of Trial Advocates member.


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