Dateline: June, 2008, Issue 2

What do jurors think about whiplash cases?

Automobile accident claims constitute a significant proportion of the personal injury bar's work, insurance defense work, and the state jury trial caseload, comprising 50% of all tort filings and 42% of all tort jury trials in state courts of general jurisdiction (Ostrom & colleagues, 1996).

While a plaintiff's broken bone can be demonstrated through X-rays, whiplash (soft tissue or connective-tissue) injuries do not show up on common medical tests.

Hans and Vadino (2007) surveyed 600 prospective jurors concerning their attitudes about minor injury car accident cases. Half the jurors were told the plaintiff had a bone fracture. The other half of the jurors were told the plaintiff had a connective tissue injury. For all jurors, the plaintiff was depicted as a mainstream member of society, married and working as a bank manager. The initial complaint was made shortly after the accident, and was followed by a series of doctor visits and chiropractor treatments.

Some jurors are skeptical about lawsuits over minor injuries from car accidents, and particularly so if the lawsuits involve connective tissue injuries. While 8% of jurors hearing about a bone fracture documented through an X-ray think it isn't a real injury, 19% of those hearing about a connective-tissue injury confirmed by a doctor conclude that it isn't a real injury.

Jurors also rate a bone fracture as more serious than a connective tissue injury, even though the plaintiff's pain, the doctor and chiropractor visits, and the impact on work and lifestyle are described in identical terms to jurors regardless of the type of injury. As a result, the bone fracture plaintiff's expenses for medical bills, chiropractor expenses, lost wages, pain and suffering, and lifestyle changes are seen as more legitimate grounds for compensation than the soft-tissue injury plaintiff.

Some jurors are more likely than others to award damages to plaintiffs with soft-tissue injuries. Jurors who have been plaintiffs in civil litigation, are more positive about the civil litigation system, or who are least in favor of tort reform are more positive toward the plaintiff. Also more positive toward the plaintiff are jurors who have suffered personal injury in prior car accidents, rate whiplash as a serious and legitimate injury, or report that they or another close friend or family member have experienced whiplash. Lower-income jurors are also more favorable to the plaintiff's case compared to jurors reporting higher household income.

Source Ostrom, B., Rottman, D., & Goerdt, J. A. (1996). A step above anecdote: A profile of the civil jury in the 1990s. Judicature, 79, pp. 233-241.

Source Hans, V. P., & Vadino, N. (2007). After the crash: Citizens' perceptions of connective-tissue injury lawsuits. Cornell Law School Legal Studies Research Paper Series, Paper 84.