Missouri Injury Law Blog

As a St Louis injury lawyer I am always thinking of every issue that the insurance lawyer may try and use against my client at trial, no matter how trivial. Currently, we are handling a Missouri serious injury case from a broken back resulting from a fall after a chair at a hotel broke when an average weight male sat on it.

Early on in the case the insurance company inquired as to the injured client's prior marriage history; in this case my client has three prior marriages. This may seem harmless and a collateral issue on its face but it must be dealt with early on with objections. Why? because if this issue, which has nothing to do with the Missouri spinal cord injury case, may be injected into trial in front of the jury which may cause some jurors to look disfavorably upon my spinal injury client. This is important because you never know what beliefs about marriage and divorce jurors may have and may hold against a witness who has been divorced several times before.

The Missouri Supreme Court addressed this exact issue after the appeal of a St Louis car accident lawsuit wherein the defense read into evidence doctor notes discussing the Plaintiff's marital history. The notes indicated several marriages and the court ruled that was improper. See Johnson v. Sandweg, 378 SW 2d 454 (MO 1964) stating:

"Thus, by the admission and reading into evidence of the quoted portions of the Doctor's notes, was brought into the trial of the case, and made "very pertinent" the implication that plaintiff, thrice married and twice divorced, was irresponsible in marital and parental relationships, and subjected plaintiff to the scorn of those jurors who may have looked askance upon divorce and remarriage. So we say we think the admission into evidence of the quoted notes was prejudicially erroneous in this case."

Continue reading "Issues of Evidene in Missouri Personal Injury Cases: Discussing the Injury Victim's Prior Marriages" »

As a St Louis personal injury law firm handling car accident and other types of injury cases involving intoxicated or drugged individuals who caused the accident or injury, proving intoxication is critical to maximizing value of my clients' cases.

In many cases the at fault driver that caused the truck accident and injury is charged with DWI or other intoxicated related offense and the police officer's investigation can often be piggybacked by injury lawyers to show intoxication. However, not all cases are properly investigated by police officers or investigated for intoxication at all.

What other evidence is there to show intoxication? Because I guarantee the at fault driver will not admit it, especially after their insurance company and their lawyers have gotten to them.

One example is a Crawford county Missouri drunk driving head injury case we are currently handling. My client was thrown from a vehicle as a result of the driver's erratic driving in a resort area and in a private parking area and driveway. The driver stopped and witnesses called the police, however, prior to the police arriving the driver hid and was never interviewed by the police. So in this case we need to use the lay witnesses to prove intoxication. Luckily a security guard witnessed the incident, observed the driver after she exited the vehicle, and called the police.

Under Missouri law a defendant may be proven to be intoxicated by any witnesses who had a reasonable opportunity to observe him or her. State v McCarty, 875 S.W.2d 622 (Mo Ct App 1994)

Whether a defendant is intoxicated may be proven by any witness who had a reasonable opportunity to observe him. State v. McCarty, 875 S.W.2d 622, 623 (Mo. App.1994); State v. Corum, 821 S.W.2d 890, 891 (Mo.App.1992).

[I]ntoxication is a "`physical condition usually evidenced by unsteadiness on the feet, slurring of speech, lack of body coordination and an impairment of motor reflexes.'" [State v. Ruark, 720 S.W.2d 453 (Mo.App.1986) ] at 454 (quoting State v. Blumer, 546 S.W.2d 790, 792 (Mo.App. 1977)).

Lay witnesses need to convey factors such as opportunity to observe the defendant, knowledge of drinking earlier in the day, balance, motor skills, bloodshot eyes, erratic driving, smell of alcohol, etc... Granted it is always better to have a trained police officer than a lay witness, but the lay witnesses testimony is admissible for the jury to then decide.

Continue reading "Evidence in Missouri Drunk Driving Car Accident Injury Case: Proving the Other Driver was Intoxicated" »

When can prior criminal history be used in a Missouri personal injury trial? As a St Louis injury lawyer handling drunk driving accident injury cases, this often comes up as sometimes not only is the driver intoxicated but sometimes my own client has a criminal history. How does that affect the St Louis car accident or other injury case at trial?

Under 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[.]"

So if a witness has been convicted of a crime, that can be used to impeach them and attack their credibility during a St Louis personal injury lawsuit trial. However, what if they plead guilty but did not get convicted and instead received probation, also known as an SIS (Suspended Imposition of Sentence) in Missouri? Two things need to be considered:

(1) If the only purpose is for impeachment (attacking their credibility) then no, an SIS is not admissible.

This issue was addressed in State v. Hansel, 629 SW 2d 509 (MO Ct App ED 1981). For purposes of § 491.050 a suspended imposition of sentence (SIS) is not a conviction because sentence has not been pronounced or imposed.

(2) But what if the negligent driver received an SIS on a charge related to the accident? OR an SIS for any charge related to liability?

I have handled multiple Missouri and Illinois personal injury cases resulting from a drunk driver, and oftentimes in these cases that person is charged as a result of the accident and it is their first offense. In Missouri most first time offenders are eligible for an SIS to avoid a conviction; so is the SIS admissible to prove they were drunk at the time of the Missouri car accident?

YES, because when someone gets an SIS they have to plead guilty which is an admission of guilt. So if they plead guilty to DWI that resulted in an accident then a good personal injury attorney knows they have to admit that they admitted they were guilty when asked. So the SIS or probation is not admitted into evidence, but the admission of guilt is.

Continue reading "Trial Evidence in Missouri Personal Injury Lawsuits - Can a Personal Injury Lawyer Admit into Evidence an SIS (Suspended Imposition of Sentence - probation in lieu of a conviction)" »

We have discussed in previous blogs (Missouri Drunk Driving Accident Lawyer gets Judgment) how a defendant found to be under the influence of alcohol can positively affect the outcome of a Missouri or Illinois auto injury claim. A new report has been released by the National Highway Traffic Safety Administration (NHTSA) on drug use by drivers involved fatal car accidents.

See NHTSA Report re: drugged driving fatal crashes and wrongful death from auto accidents. There are numerous published studies relating to contributing factors of alcohol to auto accidents, but before now, no studies on drug interactions were available. While this report is conducted only on fatal accidents, it proves that we need to be more aware of not only drunk drivers but also those that drive under the influence of drugs. In 2009, 21,798 drivers were killed in auto accidents. 13,750 of those were tested by the NHTSA for drug use. They found that 3,952 of these drivers killed in auto accidents, tested positive for some type of drug use at the time of the accident.

They went on to say that even though there is conclusive data showing a strong correlation between the levels of alcohol, how it impairs drivers and the impact of that on crashes, there is no such information for drugs yet. Gathering this information is the main purpose of the study. So far, over 6,000 police officers in 46 states have been trained to recognize driver who may be impaired by drugs – not just alcohol.

Continue reading "Drunk Driving and Drugged Driving Car Accident Report - Testing Victims of Fatal Crashes by NHTSA" »

Under Missouri tort law, government entities have sovereign immunity from lawsuits except for certain exceptions and the MO personal injury damages are capped per Missouri statute.

In order to sue a government entity in Missouri for injury or death in premise cases, the personal injury attorney, on behalf of the injured victim, must prove the dangerous condition exception to sovereign immunity. The Missouri personal injury lawsuit must plead and prove:

(1) that a dangerous condition existed on public property;
(2) the injury was a direct result of the dangerous condition;
(3) the dangerous condition created a foreseeable risk of harm;
(4) a public employee negligently created the condition or the public entity knew or should have known of the condition.

See State ex rel. Missouri Highway and Transp. Com'n v. Dierker, 961 SW 2d 58 (MO Banc 1998)

On top of the above conditions, public entities also benefit from a damages cap of $300,000 per Missouri Statute 537.610 - Torts and Actions for Damages

Unlike the overreaching tort reform reform damage caps for health care providers, this cap is adjustable for inflation - Missouri Department of Insurance Sovereign Immunity Caps Inflation Table Meaning that $300,000 cap is adjusted because, as we all know, $300k today is not the same as 300K 10 years from now.

Continue reading "Missouri Premise Liability Cases Againt Government Entities - i.e. park, zoo, injuries at public school, etc ..." »

Previously, I discussed recovery by 3rd parties against Missouri wrongful death settlements or judgments regarding medicare and also health care providers.

How about cases not involving wrongful death? Lets say you are involved in a Missouri auto accident with injuries and your health insurance, that you pay for, covers your medical expenses. Can that heath insurer now demand you pay them back from the proceeds of your auto accident settlement or judgment against the at fault driver? Absolutely not - but they try all the time.

As a St Louis Missouri lawyer with my primary practice focusing on all personal injury cases, I run in to this issue from time to time. Just recently, I had Blue Cross Blue Shield try and claim a lien and subrogation right against my client's money damages recovery against an at fault driver in a St Louis car collision lawsuit.

Under Missouri injury law it is clear that a lien or subrogation claim by a health insurer is against public policy. This standard under Missouri injury law has held since 1965 in the case of Travelers Indemnity Co. v. Chumbley, 394, S.W.2d 418, 425 (Mo.App.1965).

"It is also clear that a health care insurer may not be subrogated to its insured's right to recover from a third party tort-feasor because it would constitute an impermissible partial assignment of the insured's action for damages for bodily injury"

Also see Missouri injury lawsuit - Scroggins v. Red Lobster, No. SD 30214 Court of Appeals, Southern Dist 2010 stating:

“The Participant paid for health care coverage. The Insurer was obligated to provide those benefits regardless of whether the Participant pursued her personal injury claim. Missouri courts have never allowed a provider to be reimbursed for medical expenses that the insured recovers in a settlement from a liable third party under a lien theory, and we decline to do so now.”

Continue reading "Personal Injury Settlement in Missouri: Can Your Health Insurer Demand Payback for Medical Expenses?" »

Experienced Missouri car accident lawyers must be ready to make sure certain types of evidence against their injured client does not get into evidence. In previous posts I discussed evidence of drinking and drug use as well as evidence of unrelated medical conditions. In this article we will discuss the limited circumstances wherein the failure of a client injured in a Missouri truck accident to wear a seat belt is admissible into evidence in Missouri a car accident trial.

If you are badly injured in a car or truck accident in Missouri, the jury usually cannot assess fault against you for failure to wear your seat belt.

Under Missouri Statute 307.178 - The failure to wear a safety may be admitted to mitigate damages, but only when (1) there is expert evidence proving that a failure to wear a safety belt contributed to the injuries claimed by plaintiff; and (2) may reduce the amount of the plaintiff's recovery by no more than 1%.

Also see the Missouri supreme court case of Newman v Ford, 975 SW 2d 147 (Mo Banc 1998), addressing multiple issues of a Missouri rear end truck collision involving the injured driver's failure to wear a seat-belt.

Continue reading "Missouri Car Accident Trial Evidence - Can the Plaintiff's Failure to Wear a Seatbelt be Used Againt Them?" »

As discussed in a previous post on Missouri Trial Evidence (Missouri Personal Injury Trial Evidence: Recreational Drinking and Drug Use) , personal injury lawyers need to make sure that they keep damaging evidence against their client, the injury victim, from being seen or heard by the jury so that the jury decides the injury lawsuit on relevant issues and not collateral issues that are not relevant to the injury claim.

As an experienced St Louis injury attorney, on such area I have seen that defense lawyers like to bring up in Missouri car accident cases and other injury related cases are unrelated medical conditions or procedures. Let's say the Plaintiff was hit by a drunk driver and broke their leg and injured their back, should the defense be allowed to introduce evidence that the Plaintiff also suffered a bout with cancer? The defense would want to do this to try and say the pain and suffering in the injured person's life is from the cancer and not the other injuries, an attempt to reduce legitimate injury money damages and the final personal injury verdict.

In Senter v. Ferguson, 486 SW 2d 644 (Mo Ct App ED 1972) the trial court allowed the defense to cross examine the Plaintiff regarding unrelated injuries from many years prior, the defense claimed this was to impeach the Plaintiff because she stated she was in "good health" prior to the accident. The appellate court reversed this Missouri personal injury case in part because of the use of Plaintiff prior medical conditions unrelated to her current condition.

The court stated "While we are dubious that this evidence, stretching as it did over a period of seventeen years and covering the ages of 43-60, served its purpose of impeachment, we could not sanction its admission even if it did serve the purpose. Irrelevant and immaterial evidence does not become admissible simply to impeach a witness "

Continue reading "Missouri Persoanl Injury Law - Evidence at Trial: Unrelated Medical Procedures or Conditions, are they admissible?" »

Part I: Can lawyers inject into a Missouri injury trial claims of drug use or intoxication not directly related to the cause of the injury?

A good Missouri personal injury lawyer knows that the defense will do whatever it takes to discredit the injured Plaintiff, this includes trying to get into evidence something in front of a jury showing that the Plaintiff drinks or has used drugs. Obviously an attempt to use evidence irrelevant to any issue of personal injury suffered and a shot an trying to get a injury lawsuit jury to dislike the victim.

Unless intoxication or drug use has a direct relation to the actual incident that caused the injury, the general reputation of a Plaintiff for sobriety or drug use is inadmissible pertaining to the issue of their intoxication at the time of the collision. See Frye v. Meramec Marina, Inc., 673 SW 2d 451 (Mo Ct App ED 1984) Additionally, it is not admissible for any other reason either.

I currently am handling a Crawford County Missouri car accident case wherein this is an issue. I am the St Louis injury attorney representing a passenger in the back of a pickup truck at a float trip docking area that was thrown from the back of the pickup truck when the driver gunned it up a gravel road hill. As expected, everyone was drinking that day on the river, however, the Defendant driver threw out accusations that the injured passenger smoked marijuana, but was unable to testify that she smoked it that day. The insurance defense lawyers will likely try to get some testimony regarding drug use in front of the jury, but I am ready for that and will file the proper motions and make the timely objections keeping those issues out of the jury's consideration so that can determine the case properly on the relevant facts.

A good injury attorney must keep in mind all issues that could come up at trial, as oftentimes just casting a little doubt on someone's credibility can make or break a case for the wrong reasons.

Other Missouri cases addressing recreational drug use or drinking as evidence at injury trials:

Daniels v. Dillinger, 445 SW 2d 410 (Mo Ct Appeals 1969)

State v. Williams, 492 SW 2d (Mo Ct App ED 1973)

Holding that "cross-examination which attacks the witness on the basis of alleged over-indulgence in alcoholic beverages is also improper."

Continue reading "Evidence in Missouri Personal Injury Trials: Recreational Drinking and Drug Use" »

Previously, my St Louis Injury law firm's blog I discussed lien recovery from Missouri wrongful death verdicts or settlements in a previous Missouri wrongful death lawyer article.

In that article I discussed how most health care provider liens for medical treatment to the decedent are not recoverable against the wrongful death claimants for any jury award or settlement received, however, governmental liens oftentimes do apply to the wrongful death recovery; specifically Medicare or Medicaid liens.

Missouri injury lawyers have recently become aware of an 11th Circuit case holding that government Medicare lien is not entitled to the survivor's wrongful death benefits. See Wrongful Death Benefits Lawsuit: Bradley v Sebelius, Court of Appeals, 11trh Circuit, 2010.

Continue reading "Recovery of Missouri Wrongful Death Benefits by Medicare" »

"It not what you know, but what you can prove" - Denzel Washington, Training Day

Missouri injury lawyers need to know the ins and outs of the Missouri rules of evidence, particularly to avoid situations allowing critical evidence for the the injured victim to be excluded at trial and critical evidence against the Plaintiff to be included.

One such case that did not go well for the Plaintiff is the Missouri medical malpractice lawsuit of Beaty v. St. Luke’s Hosp., 298 S.W.3d 554 (Mo.App. W.D. 2009), the Appellate court affirmed the trial court limiting the Plaintiff's medical expert witness' testimony to exclude some of his opinions reached, after an examination of the victim just 24 hours prior to his testimony.

Also, this trial court allowed one of the plaintiff’s treating physicians to have an ex parte communication (meaning only contact with one party) with defense counsel. Defense did not request any medical documents that required HIPPA compliance, and only asked him to “review some data”. Plaintiff’s counsel did not follow up with this videotaped deposition, nor did they inquire as to the nature of the details of the deposition. Defendant did disclose their intention of calling the treating physician as a non-retained expert under Rule 56.01(b)(5). As such, the Plaintiff’s argument for requesting the deposition to be excluded at trial was untenable.

Continue reading "Missouri Personal Injury Trial Evidence: Its what you can prove that matters" »

The documentary below is being showcased at the Sundance Film Festival and sheds light on the often distorted view of the American Civil Justice System.

Personal injury and trial lawyers in Missouri and across the country often get bad press from corporate propaganda because large corporations and insurance companies hate having to pay regular people for harms they cause. Oftentimes they take cases out of context and try to make the case that most injury awards are too high. No case displays this more than the McDonald's Hot Coffee case - it has been painted by corporate America as the poster boy for ridiculous verdicts.

As a St Louis personal injury attorney I have seen first hand that the McDonald's coffee case comes up in most jury selections as a topic to explore people's opinions of the civil justice system. Amazingly, most people have adopted the story insurance company's want you to believe, that some silly lady spilled coffee on her self and got too much money.

Continue reading "Trial Lawyers - Keeping the Court House Doors Open for Consumers and Individuals" »

As a St Louis wrongful death lawyer, I have had many cases wherein the decedent has accumulated massive medical bills and the surviving family is worried that they are responsible for those bills. Oftentimes in these situations the bills are sent to collections and they attempt to collect the bills from the family or try to tell them they have to pay the bills out of any proceeds of a Missouri wrongful death lawsuit.

Under Missouri wrongful death law, a certain class of survivors have a cause of action against the negligent party and the medical bills or hospital liens does NOT attach to a wrongful death settlement in Missouri. See Missouri Supreme Court decision in American Family v. Ward, 774 S.W.2d 135 (Mo Banc 1989). Also see Bamberger v Freeman, 299 S.W.3d 684 (Mo App E.D. 2009).

However, if there are medical bills for treatment of the decedent prior to their death and as a result of their injury that ultimately lead to their death and were paid through Federal or State programs, such as Medicare or Medicaid, then payment of at least a portion of the medical bills may be required. But not bills asserted by the hospitals or doctors themselves.

Sample of Wrongful Death cases handled by Sansone Law, llc:

Illinois Defective Product leading to death of factory worker

Jefferson County Missouri wrongful death case arising from reckless driver

Illinois work comp wrongful death - fatal fall from water tower

Continue reading "Missouri Wrongful Death - Do Hospital Bills or Liens of the Decedent Get Paid out of Wrongful Death Settlement or Judgment?" »