Missouri Injury Law Blog

I never had the pleasure of meeting Charles Bakken, but I had the privilege of representing his children after his unfortunate death. Everything I have heard about him is extremely positive and his loss is a significant one that is and will be felt by the community.

His friends and family have organized a Memorial Golf Tournament and our law firm is proud to be a Tournament Title Sponsor. The proceeds from the tournament will go to benefit the St John Neumann Catholic School and Parrish Community. A Parrish and community that Mr Bakken was an influential part of.

If interested in playing or just donating the Golf Tournament Flyer is attached here, with all the information you need. It will be held at the Oak Brook Golf Club in Edwardsville, Illinois.

INFORMATION - Charles Bakken Memorial Golf Tournament.pdf

Recently Illinois personal injury lawyer Ben Sansone settled a Collinsville Illinois motorcycle crash for $260,000.00, which represented the full amount of auto insurance coverage available, a combination of liability insurance and "UIM" Coverage - Under-Insured Motorist Coverage. The car-bike collision was the result of an intersection accident. The motorcyclist was making a left turn across oncoming lanes of traffic when his bike stalled, he was moving his bike out of the intersection when the driver approaching the intersection did not stop, swerve, or even slow down; clear evidence that she was not paying any attention. The KSDK News report of the Illinois motorcycle accident is here.

The investigation before the prosecution of this case by our motorcycle injury lawyers was crucial as there were at least six witnesses that had to be interviewed. Their recollection of the incident was recorded early on, and supported our negligence claim against the driver.

The investigating officer concluded that the at-fault driver activated her brake only one second before striking the motorcycle and that the driver had adequate time to respond to avoid the collision. The driver was negligent as she chose not to keep an adequate lookout and possibly chose to drive after chemotherapy when her mental alertness was affected by the therapy and medication.

Witness statements supported that the driver violated her duty to keep an adequate lookout as she had ample opportunity to observe the cyclist having stalled in the intersection and attempting to push his bike to safety.

Witness D.G. drove by the intersection in the same direction as the driver, before the motorcyclist made his left turn, no one was driving behind him, saw motorcyclist make a left turn and then have trouble with his bike. Observed him put his foot down and push himself, he then saw the red truck drive around the corner and cause the bike accident him without slowing down.

Witness B.R. saw motorcycle make a left turn, observed engine stall on the motorcycle, saw him pushing the bike with his legs while still seated on the bike and then saw the collision.

Witness M.L. was driving behind the at-fault driver, he saw the motorcycle in plenty of time, slowed down for the motorcycle, but the truck did not and the at-fault driver did not hit the brakes until after running over the motorcycle. The witness was able to see the motorcycle, appreciate the fact he needed to slow down, yet the at-fault driver did not react until after the collision.

Witness M.B. was driving behind the at-fault driver, he had time to observe the motorcycle; he slowed down to avoid a collision. He stated that he yelled "STOP" numerous times before the collision. He stated that in his opinion the at-fault driver was "oblivious" to what was in front of her.

Early investigation was critical to proving the liability in this case. Additionally, the Collinsville Police Department did an excellent job with the accident reconstruction. The liability proof on this case all came down to timing, and it is very important to get witnesses to commit to times, distances, and speeds. Based on the evidence collected we were able to make a strong case that the driver should have seen the motorcycle rider sooner and avoided the collision, despite the fact the driver has a green light and the motorcycle was stalled in the intersection for a short time.

Public safety and the prevention of needless injury and death requires all drivers to pay attention when driving and not to drive when severely fatigued or under the influence of alcohol or even some medications. In this case there was also evidence that the driver recently had chemotherapy, most people know that chemotherapy treatment is very difficult physically and can lead to serious fatigue both physically and mentally.

Related Blog Posts:

Motorcycle Safety & The High Cost of Motorcycle Accidents

Deadly motorcycle accident in Mexico Missouri sparks calls for safety

Continue reading "$260,000.00 Settlement: Collinsville, Illinois Motorcycle Accident " »

Head injuries, such as concussions and traumatic brain injury, are common after many car crashes and very common in high impact car collisions. The driver or passengers head often strike parts of the car during the impact or hit the airbag violently. This results in a range of brain injuries; from a minor brain injury to the severe brain injury.

The long term effects of a brain injury suffered in a car accident can include everything from minor headaches and dizziness to a coma or death. A very common symptom of a concussion and other head injuries is severe headaches. These headaches sometimes last a few days or even a few years or longer, depending on the nature and extent of the brain injury. See Long Term Effects of TBI. Also see Head Injury Concerns for Bicyclists: List of Symptoms of a Brain Injury

Researchers at the University of Michigan are now using the 3D model pictured above to try and understand how the brain fights of migraine headache pain itself. the virtual reality model is based on images taken of the patient during a migraine headache attack.

Different colors in the 3-D brain give clues about chemical processes happening during a patient's migraine attack using a PET scan, or positron emission tomography, a type of medical imaging. "This high level of immersion (in 3-D) effectively places our investigators inside the actual patient's brain image" See, Hologram-Like 3-D Brain Helps Researchers Decode Migraine Pain

The diagnosis and treatment of head injuries has taken a very important role in the last 10 years in the medical community. The public awareness of these injuries and the effects they have are much more apparent now since the Iraq and Afghanistan wars. Thousands of returning veterans are suffering concussions and more severe head injuries from the prolific use of IEDs during combat. Additionally, the world of sports, particularly football, has made the issue of head injuries and the serious and very real effects more real. The public view of head injuries is now that it is a very real and substantial injury as opposed to someone just being a cry-baby. This leads to more significant research in the medical profession.

About 2 months ago we took a head injury case to trial in St Louis County, Missouri. Part of any personal injury trial is voir dire or jury selection. I discussed concussions and head injuries extensively with the jury, and my impression is that most people believe that concussions and other head injuries are now very serious medical conditions. One juror was a high school football coach, and we discussed how even subtle signs of a head injury are taken very seriously now, as opposed to 15-20 years ago when a player got dazed and confused that they would maybe sit out for a minute or even rush right back into the gridiron. This is one example of how the public is taking head injuries and symptoms much more seriously in today's society.

Likewise, if you are in a car accident and maybe suffered a head injury, even a very minor one, it is very wise to get it checked out and not just assume it will go away and not cause any problems. Our car accident attorneys can help direct your medical care by recommending specialist or other doctors you may want to visit based on symptoms and injuries you are suffering. Even if you cannot afford to see a doctor, we can help.

If you have suffered a brain injury as the result of a car accident or the negligence of another person or company contact St Louis brain injury lawyer Ben Sansone for a free, no obligation, consultation. Call (314) 863-0500 or contact us online here.

For obvious reasons, when the damage to the cars involved in a collision is severe, the Plaintiff wants to show pictures of the damage to the jury and the defense wants to try and exclude them as irrelevant; and the opposite is true when the damage to the vehicles is minor. Personally, whenever I take a car accident case to trial in Missouri, I want the jury to see the pictures regardless if the damage is minor or major because they are going to want to see these pictures to fully understand all the circumstances about the collision. However, oftentimes pictures are excluded by the judge based on motion filed by the victim's lawyer of the insurance defense lawyer.

So what is the law in Missouri about when car damage pics can be used and when they should not be used at trial in a car accident lawsuit?

Oftentimes, if the damage is minor the defense will try to introduce evidence of property damage in an attempt to argue or infer to a jury that there is a scientific and/or medical relationship between degree of vehicle damage and degree of occupant's personal injury. It can be argued that such a conclusion would be unfounded if not supported by expert testimony establishing it, so if no expert has been identified, then the pictures are irrelevant. In this situation the Plaintiff should argue that the pictures invite the jury to unfairly speculate to the prejudice of a litigant. As the Western District has explained, a trial judge is required to consider both the degree of probative value and the degree of potential prejudicial effect. Even relevant evidence should be excluded when the potential prejudicial effect of the evidence exceeds the probative value. Stevinson v. Deffenbaugh Industries, Inc., 870 S.W.2d 851, 860 (Mo.App. 1993). Evidence is considered prejudicial if it "tends to lead the jury to decide the case on some basis other than the established propositions in the case."

Additionally, Missouri Courts Have Held that the speed of impact cannot be determined by property damage photographs. The defendant may be trying to ask the jury to conclude that the speed or force of impact itself can be determined by the testimony of witnesses or by the photographs of damage. But such a conclusion lacks reliable foundation.

In Missey v. Kwan, the Eastern District held that a police officer could not be permitted to testify as to speed of vehicles at impact, when his opinion was based on what witnesses said about the speed and on the condition of the vehicle following the impact. Missey v. Kwan, 595 S.W.2d 460, 463 (Mo.App.E.D. 1980) The Missey court noted, that while skid marks could provide a sufficient basis for estimating speed, "Such is not the case with estimates of speed based on conditions of the vehicles after impact." M

In Everett v. Bishop, the Eastern District declined to allow even an accident reconstructionist to testify as to speed of impact when his opinions was based on photographs of property damage. Everett v. Bishop, 680 S.W.2d 779, 781 (Mo.App. E.D. 1984) If evidence of property damage does not provide a sufficient basis for an expert to reach conclusions about speed or force, surely it does not provide sufficient basis for a layperson to do so.

Permitting the Jury to Speculate that Allegedly "Minor" Impact Equals Minor Injury Would Prejudice the Plaintiff

If the defendant also apparently intends to invite a jury of laypersons to take a next step and reach a medical conclusion: that the severity of injury is determined by the force of impact. Such an argument is prejudicial by definition because it would invite the jury to decide the case on the basis of a proposition which is not established - that is, the proposition that minor impact equals minor injury. This conclusion would require supporting expert testimony. Yo need to ask, has the defendant disclosed medical, biomechanical, or other experts to support it. The Defendant should not be allowed to ask the jury to assume it, based on "common sense." Missouri trial courts have properly rejected this effort. While there is apparently no Missouri appellate decision on the question, one state supreme court and two state appellate courts have refused to permit such boot-strapping on the purported basis of "common sense."

The Delaware Supreme Court in Davis v. Maute (copy attached) held that without expert testimony is was reversible error to admit property damage evidence and allow defense counsel to argue that a serious injury could not have resulted from a "minor" accident. Davis v. Maute, 770 A.2d 36 (Del. 2001). Over objection, defense counsel there was permitted to introduce evidence of the cars involved in the accident, and then bootstrap into the argument that because the property damage appeared to be minor, the injury must not have been significant. The Delaware Supreme Court reversed, concluding that the only relevance of the photographs was to suggest that the plaintiff could not have sustained serious injury from an allegedly minor accident, and stating that absent expert testimony, "any inference by the jury that minimal damage to Plaintiff's car translates into minimal personal injuries to the Plaintiff would necessarily amount to unguided speculation." Davis v. Maute, supra, 770 A.2d at 40 (emphasis added).
A New Jersey appellate court agreed in Brenman v. Demello, 383 N.J. Super. 521, 890 A.2d 741 (N.J. Super. 2006). The Brenman court concluded that "If the pertinent field of expertise has yet to establish a scientific basis for the connection, we question how a jury may be expected to draw an inference of causation in the absence of any proof, expert or otherwise."

Likewise, an Illinois appellate court has held that a decision by the trial court granting the plaintiff's motion in limine to exclude property damage photographs or testimony as to the damage caused to the vehicles was correct, holding that to do so is necessary "to avoid what amounts to the jury forming medical opinions." DiCosola v. Bowman, 342 Ill.App.3d 530, 536-37, 794 N.E.2d 875-76, 880 (2003). In so holding, the appellate court cited the Illinois Supreme Court case of Voykin v. DeDoer, which noted:

(w)ithout question, the human body is complex...In most cases, the connection between the parts of the body and past and current injuries is a subject that is beyond the ken of the average layperson. Because of this complexity, we do not believe that, in normal circumstances, a lay juror can effectively or accurately assess the relationship between prior injury and current injury without expert assistance.

The same principles apply to an attempt to correlate property damage to physical injury. Without expert testimony, there is not a sufficient basis to make such a conclusion, and attempts to have the jury supply such a scientific basis with their "common sense" should fail.

Continue reading "Are Pictures of Car Damage Relevant in Missouri Car Crash Trials? " »

Generally, under Missouri law, witnesses cannot testify about the credibility or truthfulness of another witness or party to the case. That is the job of the jury, to weigh credibility and decide who is telling the truth. So obviously, one witness cannot say another is dishonest or opine that the victim is exaggerating her pain because of a lawsuit. This is referred to as malingering. Whether it is from a lay witness or an expert medical witnesses, it is plain error to admit testimony that is a thinly veiled comment on a witness' credibility.

However, what about defense hired doctors who try and claim that patients who are involved in litigation tend to have complaints of pain longer than those that do not have ongoing litigation? We had on such situation when a brain injury case involving post-concussion syndrome went to trial recently in St Louis County court. The neuropsychologist that examined the Plaintiff testified in his deposition (testimony before trial) that patients with post concussion syndrome, who complain of symptoms more than 1 year from the date of injury, may be complaining of symptoms because of ongoing litigation. This testimony is absolutely inadmissible as the doctor is very obviously implying that the Plaintiff is making up their complaints because of an ongoing lawsuit. This is what defense doctor's are hired to do, call the Plaintiff a liar or malingerer and try to imply to the jury they are only saying they are hurt for money. This is a witness testifying about the credibility of another witness, again, the job of the jury to weigh credibility, not witnesses.

In Allen v. Andrews, 599 S.W.2d 262 (Mo.App.S.D. 1980), the plaintiff hurt their neck in a Springfield Missouri car accident. The case went to trial, however, after the verdict the Judge ordered a new trial because of testimony from a defense doctor that should not have been allowed. In particular, a treating physician called to testify by the defendant testified:

"I would just like to make a broad statement insofar as my dealings with patients with injuries which involve litigation.... I repeat that without exception patients with litigation in injured necks apparently recover because they never come back to see me once the litigation has been settled, so I would say (the plaintiff's) neck would recover without any residual disability."

This case supports the proposition that testimony offering generalized opinions as to the credibility of plaintiffs is unfairly prejudicial.

In Yingling v. Hartwig, 925 S.W.2d. 952, 956 (Mo. App. 1996), comments by a defense doctor that "Patients who are involved in litigation tend to have their subjective complaints last considerably longer" than patients who are not in litigation were allowed by the trial judge. However, the court of appeals found that the allowance of this testimony to be an abuse of discretion. That comment was improper as it was a comment or opinion as to the truth or veracity of the Plaintiff, and that is an issue for the jury to decide.

The court began its analysis by noting that the challenged witness' testimony in the case before it was similar to the witness testimony considered in the Allen case discussed above. In particular, the court observed:

"[A]s in Allen, the trial court in the case at bar abused its discretion in allowing testimony because it was highly prejudicial to the Yinglings' case. [The] testimony constituted broad-sweeping statements reflecting on "people not in litigation" and "people who are in litigation" - generalities, without any indication of similarity with or application to Christina Yingling. A court of law is not a public forum, and witnesses are not permitted to make general declarations about matters wholly unrelated to the parties. * * * Statements about unidentified people with unidentified injuries and complaints are irrelevant to prove whether Christina Yingling continues to suffer from her injuries, one of the issues at trial, and the trial court abused its discretion in admitting the testimony."

In other words, the court found that generalized opinions, as to the credibility and/or truthfulness of litigants in general, is irrelevant to the credibility or truthfulness of the plaintiff in a particular case, and that such opinions are unfairly prejudicial. Importantly, however, the court did not end its analysis there. Rather, the court went on to consider whether the opinion testimony in question - if assumed to be relevant and probative as to the particular plaintiff - was still too unfairly prejudicial to be admitted. The court answered this question in the affirmative. Specifically, the court said:

"Even if we assumed, arguendo, the testimony was somehow logically relevant, any probative value is far outweighed by its prejudicial effect to the Yinglings. * * * [The witness'] testimony was, in essence, a comment on a plaintiff's credibility; a statement that plaintiffs generally falsify their subjective complaints for the purpose of furthering their lawsuit and increasing their damages. Such a comment by an expert witness is inadmissible. State v. Tayler, 663 S.W.2d 235, 239 (Mo. banc. 1984) ("[E]xpert opinion testimony is not admissible as it relates to credibility of witnesses")."

"[E]ven if we could say the testimony had some logical relevance and some probative value, which we cannot, it would still be inadmissible because its prejudicial effect is wholly disproportionate to any value it might have."

Even if generalized opinion testimony regarding the tendency of litigants in general to manufacture or exaggerate their symptoms were somehow relevant and probative on the issue of whether a particular plaintiff was manufacturing or exaggerating her symptoms, such opinion testimony would nevertheless constitute an improper and inadmissible comment on a plaintiff's credibility, and would be unfairly prejudicial. On this basis, the court reversed and remanded for a new trial.

Expert testimony that comments directly on a particular witness' credibility, as well as expert testimony that expresses an opinion with respect to the credibility or truthfulness of witness of the same type under consideration invests "scientific cachet" on the central issue of credibility and should not be admitted.

Continue reading "In Missouri, Witnesses cannot Claim Victim's Symptoms are Effected by Litigation - The Malingering Defense" »

As a result of the unconscionable negligence of the employees and agents of the southern Illinois hospital (named confidential per settlement agreement), a routine knee replacement resulted in a patient's life being permanently altered. One nurse, consciously disregarded and otherwise violated numerous patient safety rules which contributed to this accident then took diligent efforts to cover it up by pre-recording or altering the medical records.

When handling medical malpractice cases, injury lawyers oftentimes see the underbelly of the medical profession, the part most people rarely, if ever, see. The lack of empathy and desensitization of human suffering by some medical providers after working in the profession for many years, some turn from caring healthcare providers to factory line workers where patients are just another product running down the conveyor belt. Fortunately, the vast majority of healthcare providers are good doctors and nurses that provide good care for their patients.

One of the reasons I am very proud to be a trial lawyer is that I strongly believe in the American Civil Jury system for enforcing the safety standards of our community. A jury is the enforcer of our societies safety standards and the enforcement of those standards through civil verdicts and settlements helps keep everyone safer. Money is the great motivator fro medical professionals and administration to remember that their number one priority is the safety of their patients and not to become complacent and allow needless and avoidable injury or death occur.

As co-counsel with Illinois injury lawyers Kurt Harris and Devin Jones of the Harris Jones Law Firm in Du Quoin Illinois, we recently settled a case involving nursing neglect for $1.4 Million dollars. The patient was a known aspiration risk, yet the nurses chose to not follow protocol to reduce or prevent aspiration related injury; therefore, due to their choice not to follow procedure, our client aspirated and suffered brain damage. Even more appalling, during patient transfer between diagnostic study and his hospital room, he was left in a storage area for over an hour and was found by his daughter while in severe respiratory distress.

The nurses were incompetent in that they: (1) did not timely diagnose and respond to risk factors known to Increase the likelihood of patient aspiration; (2) did not have procedure for keeping patients located; (3) did not transfer patient to ICU when required; (4) did not properly diagnose and respond to respiratory distress of patient (aspiration); (5) staff failed to consistently follow their aspiration prevention protocol. In addition there was evidence of medical record alteration and attempts to retroactively go back and alter the records to reflect proper procedure was followed.

Illinois medical malpractice lawyer Ben Sansone is an experienced trial lawyer who routinely handles cases from simple car crashes to complex medical negligence cases. If you would like to discuss a potential case we are available for a free consultation to discuss your case. Call us at (314) 863-0500 or contact us online to arrange a free meeting.

Witnesses may be impeached (question their credibility and veracity) based on previous convictions. This oftentimes comes into play in Missouri car accident lawsuits. In some cases the at-fault driver has a history of DWI or other convictions, but no convictions from the car accident at issue. Generally, the plaintiff then cannot just tell the jury about these convictions, because they are not relevant to the car accident at hand; however, if the Defendant testifies, previous convictions can be used to attack his credibility and therefore get the convictions into evidence.

Under Missouri statutes, the prior convictions of a witness are admissible by statute, see Missouri Statute § 491.050, "Any person who has been convicted of a crime is, notwithstanding, a competent witness; however, any prior criminal convictions may be proved to affect his credibility in a civil or criminal case[.]"

Accordingly, on cross-examination a party may "elicit the nature, dates, places of the occurrences and sentences." State v. Holden, 278 S.W.3d 674, 681 (Mo. 2009). The court has often noted that in "literary terms the who, what, when and where. . ." Are proper as to a conviction. Id. (citing State v. Light, 871 S.W.2d 59, 62-63 (Mo. App. 1994). "Unlike Federal Rule of Evidence 609, the Missouri statute . . . does not place any time limit on the offenses. See State v. Cantrell, 775 S.W.2d 319, 321 (Mo. App. E.D. 1989)(Finding statute allows allowing examination of convictions received over 30 years before trial). Further, the statute is not a discretionary statute but one of right.

Under clear Missouri law, plaintiff has the absolute right to obtain the nature, dates and places of the occurrence and the sentences resulting from a negligent driver's convictions.

We currently have several cases where this is an important issue in the case. For example an unlicensed driver that causes and accident may have several prior convictions for driving while suspended or DWI or other charges, this allows Plaintiff to get these previous convictions in front of a jury so they know the defendant driver continues to choose to needlessly endanger people on the roadway; empowering the jury to act in their intended role, as guardians of the community, by enforcing civil negligence rules.

Sansone / Lauber is a St Louis based trial law firm handling personal injury cases. For a free consultation call (314) 863-0500 or contact us online.

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Missouri Now Allows Impeachment of Witness on Collateral Matters not Relevant to Case