54 Trial Lawyer • Fall 2022 times referred to as masochists for regularly subjecting themselves to the discomfort of intense physical activity. They tend to have a high tolerance for pain, and a high baseline level of physical activity. These characteristics can lead to a couple of issues for bicyclists in injury cases. First, some bicyclists under-report the extent of their injuries. Second, they may return to a high level of physical activity by most people’s standards, even if they are diminished compared to their pre-collision selves. A bicyclist’s high pain tolerance may serve them well when cycling up Portland’s west hills, but it can also cause them to “tough out” their injuries and delay necessary treatment. In cases where a bicyclist’s failure to seek immediate care or report certain injuries creates an issue, it may be helpful to highlight for the finder of fact the increased threshold for pain developed by an endurance athlete plaintiff. After injury and the acute phase of recovery, many of our bicyclist clients return to riding relatively soon in an effort to minimize the disruption to their lives and regain lost fitness. Bicycling is a low impact sport that can often be eased into unlike other high impact activities like running. Despite returning to riding, our clients rarely return to their previous level of riding for a year or more, due to injuries and/or fear of another collision, and sometimes they never do. For a jury composed of people with a wide variety of athletic inclination, it can be challenging to appreciate the difference between riding 60 miles on a typical Saturday before the crash, to now only riding 30. As with other types of activity-related damage, we do our best to tell our client’s story in a way that allows jurors to analogize the limitations to something in their own lives, but the physical fitness of our clients can create an inherent challenge. Anti-Bicyclist Continued from p 53 Conclusion Even in bicycle-friendly Portland, many insurance adjusters, jurors, witnesses and investigating police officers do not regularly ride bikes, and may bring with them some level of anti-bicyclist bias when investigating or evaluating injury cases. We can minimize the impacts of these biases by emphasizing that our clients — like other road users —are not subject to a heightened standard of care, by “humanizing” them and by addressing issues that commonly arise regarding helmets, visibility and damages. Chris Thomas practices personal injury law, frequently representing bicyclists and pedes trians . Thomas contributes to OTLA Guardians at the Guardians Club level. He is a partner at Thomas Coon Newton & Frost, 820 SW 2nd Ave., Ste. 200, Portland, OR 97209. You can reach him at cthomas@tcnf.legal or 503-2285222.
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