Nicholas Hurzeler Publishes Law360 Expert Analysis Article on Spinal Fusion Litigation

New York, N.Y. (October 1, 2021) - New York Partner Nicholas P. Hurzeler recently published an Expert Analysis article for Law360, titled "Defense Counsel Need New Strategies In Spinal Fusion Cases," which discusses the need for more effective approaches in defending spinal fusion cases, given the significant increase in this type of litigation over the last two decades.

Mr. Hurzeler opens the article by noting that spinal fusion is a procedure that "prompts questions about whether financial incentives drive patient treatment." He observes that in light of mixed evidence regarding whether spinal fusion surgery is more effective than less invasive treatment, the number of spinal fusion surgeries performed continues to increase, as does lucrative spinal fusion litigation. With appellate courts consistently upholding large awards in fusion matters, Mr. Hurzeler suggests that the defense bar must employ “creative strategies” to combat this trend “since the traditional approaches are often ineffective.” Mr. Hurzeler then points out the pitfall in the standard approach to defending spinal fusion claims by hiring well-credentialed experts, namely, that the plaintiffs hire more persuasive experts. As he explains, “Faced with lengthy, confusing and competing expert narratives, and a very sympathetic plaintiff, juries will frequently side with the plaintiff on the question of medical causation.”

Accordingly, Mr. Hurzeler proposes alternative approaches for successfully defending fusion matters. These strategies include (1) ensuring that the defense biomechanical engineer and orthopedic surgeon work together, (2) retaining experts at an early stage of litigation, and (3) collecting all available evidence requested by the experts during the discovery and investigation phase. Additionally, Mr. Hurzeler describes the benefit of presenting the jury with computer simulations, noting the “simplicity” of this type of evidence. Mr. Hurzeler closes the article by concluding that spinal fusion claims “will continue to proliferate,” and that “it is well past time to think outside the box and come up with some new strategies” for defending against them.

Mr. Hurzeler is a vice chair of Lewis Brisbois' Appellate Practice. He focuses much of his practice on briefing and arguing appeals in the First and Second Departments of New York’s Appellate Divisions, with a strong track record of success. In addition to his appellate work, Mr. Hurzeler also handles extensive motion practice for a variety of general liability matters. He recently authored a separate Expert Analysis article for Law360 regarding defendants seeking independent medical examinations prior to a plaintiff’s surgery.

Read the full article on Law360 (subscription required) or view a PDF version here.