Missouri Injury Law Blog

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 Seat-belt be Used Against 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?" »

In October 2009, St Louis personal injury lawyerBen Sansone was retained by Tiffany H. to pursue a Missouri injury claim against the negligent driver's auto insurance after a rear end style collision occurring after she slowed for traffic on Highway 40 and the other driver not paying attention slammed into her vehicle.

Tiffany suffered from a minor head injury diagnosed as post concussion syndrome , additionally, she suffered from back and neck injuries requiring physical therapy and pain management.

Tiffany's medical bills totaled around $15,000 and her injuries resolved. Missouri head injury lawyer, Ben Sansone, was able to get a settlement for $75,000 by focusing on the head injury portion of the claim. Tiffany's head injury has resolved, however, experienced brain injury lawyers know how to pursue theses types of cases to secure maximum recovery, even when the head injury is relatively minor and resolves after several months.

This case demonstrates how a case that is perceived as a small injury case can be successfully pursued and settlement for a significant amount more given the proper approach and emphasis on head injury.

Our other head injury settlements:

St Louis construction worker suffers concussion - Settlement $500,000.00

Illinois driver suffers brain injury after drunk driving accident - Settlement $575,000.00

Continue reading "St Louis Auto Accident with Head Injury: Settlement obtained by Sansone Law llc" »

As a St Louis car accident lawyer, I have handled 100s of car accident cases where the property damage to the vehicles was minimal. Many times, despite the minor property damage to the vehicles, the impact is described as significant and the injured driver suffers legitimate and real injuries. However, Missouri car insurance companies love to argue that if the property damage is minimal than the Missouri car accident attorney and the claimant are exaggerating their injuries and cannot actually be hurt as bad as they claim.

Prior to trial, Missouri personal injury lawyers file what are called Motions in Limine, which are pretrial motions asking the judge to rule on certain issues of evidence they anticipate will be presented at trial. In such a case as described above, you can bet the insurance defense lawyer will try to present pictures or repair bills and argue minor impact based on the damage to the vehicles.

Under Missouri car accident law, evidence of the property damage should be excluded unless the auto insurance lawyers "lay a proper foundation" to admit pictures or repair bills without expert testimony explaining the correlation between the property damage and the Plaintiff's injuries. Moreover, the evidence must be more probative than prejudicial.

Injury Law Motion on Evidence explaining Missouri Car Accident Attorney Motion in Limine to Exclude Evidence of Property Damage

Outside Resources: Missouri Cases Discussing Evidence in Auto Accident Case and Property Damage:

Boland v. Jando

Ford v Gordan - Probative value must be greater than prejudicial effect

Continue reading "Missouri Auto Accident Evidence Issues at Trial: Property Damage Admissible? Sometimes ...." »

In any Missouri or Illinois medical malpractice or health care negligence related case, it is imperative for a personal injury attorney to retain a medical expert witness that can validate the Plaintiff’s claim of health care provider negligence. It is also essential to find a viable medical expert within the specialized medical field pertaining to the claim.

Under Missouri injury law the definition of a “legally qualified health care provider” came in to question in Missouri medical negligence lawsuit, Spradling v. SSM Health Care.

In 1986 the health care affidavit statue (Missouri Statute - 538.225) was first put into place to prevent plaintiffs from submitting expert opinions from providers who had no clear experiential correlation to the procedure in question. However, it did not clearly define “legally qualified”. In 2005, legislation was passed that stated a legally qualified health care provider is one who is “either actively practicing or within five years of retirement from actively practicing substantially the same specialty as the defendant”. By adding to the original bill, they recognized that the Missouri medical expert’s opinion may come from a medical expert that does not necessarily have the exact same board certification as the doctor in question. As a St Louis injury lawyer, selection of an expert is absolutely one of the most vital steps in bringing a St Louis medical malpractice action and can make or break a case.

Experts only need to practice “substantially the same specialty”, as many of the same medical procedures are not isolated to one board certification. According to Missouri House Bill 393, all you must prove is that your medical negligence expert has adequate knowledge and experience performing the same specialized skill.

Continue reading "Medical Malpractice Missouri: Injury Plaintiff's Expert Qualifications" »

The Missouri Supreme Court in Mitchell v. Kardesch, reversed a decision this past June based on the trial court's failure to admit impeachment evidence against the negligent doctor on a matter that was collateral to the substantive issues of the case.

A woman and her children filed a Missouri medical negligence and Missouri wrongful death law suit, on behalf of her husband, against his internist alleging that the doctor deviated from the standard of care. A central issue to the case was the Plaintiff's claim the decedent called with complaints of chest pain and was not told to go to the ER, the Defendant doctor and his nurse assistant claimed they did tell him to, however, they had no specific memory of it.

During the trial it was brought forth that the doctor had lied on an interrogatory answer by denying that his medical license had been suspended or revoked. He admitted later in his deposition that it had been suspended. The trial court would not allow the Missouri wrongful death lawyer to impeach the doctor on this lie.

The jury returned a verdict on behalf of the doctor. But the Missouri Supreme Court reversed this decision based on previous decisions stating in part that the credibility of a witness is vital in any lawsuit.

Since this case, parties are permitted, with limited ability, to use extrinsic evidence of prior conduct involving a witness's character for truth and veracity following the trial court's determination "whether admission of the extrinsic evidence would be more probative or more prejudicial." See State v Allison.

Continue reading "Missouri Medical Negligence Law: Impeachment of a Defendant Doctor on a Collateral Issue not Material to Substantive Issues of Case" »

In February 2009 we were retained to represent a St Louis area pedestrian that was dragged by a drunk driver's car and severely injured. The pedestrian came upon a van parked in the middle of Lindbergh Road with the driver slumped over the steering wheel. Our client attempted to assist the driver of the van by reaching into the car and trying to put the car into park. The driver appeared to be passed out at his wheel in the middle of the road. The driver woke up and rapidly drove off, for details see Pedestrian Hurt by Drunk Driver.

When we represent someone hurt by a drunk driver or the family of someone killed by a drunk driver, we handle all aspects of the civil case but also act as a legal liaison between you and the prosecuting attorney's office when dealing with the criminal case. The criminal case is not the victim versus the drunk driver; it is "The State" or "The People" versus drunk driver. Many prosecutors' offices will keep the victim or their families informed, however, all too often do the prosecuting attorneys quickly dispose of the criminal cases through plea deals without ever contacting the victim or their family. It is very important for your DWI accident attorney to contact the prosecutor's office very soon to make sure their file has been properly marked to reflect that an injury resulted from the driver's actions of DWI.

Recently, we entered into a case just in time to stop the guilty drunk driver from getting away with a sweet deal that would have kept the DWI and injury he caused off his record. We informed the court just a few weeks before the deal was going to be final and demanded that the driver not get such a sweet deal. Any deal has to be approved by the judge and when we present to the judge a victim statement, the Judge will think twice about giving a good seal to a drunk driver that injured you.

This is not only important to make sure the criminal punishment fits the crime, but also to ensure that the driver's admission of guilt, required to get a probation deal, is admissible in the civil case. If the driver gets a "No contest" plea then the admission of guilt is not usable in the civil case. But a "plea of guilty" regardless of probation received, is admissible as evidence in the injury case to prove legal intoxication and thus a major hammer for the victim in getting a favorable settlement or verdict.

In Missouri prior pleas of guilty to a DWI are admissible in the civil case if the plea was pursuant to an SIS, SES, or resulted in a conviction. However, plea of guilty pursuant to an SIS in a municipal or City court may not be admissible. If the situation arises that the criminal charge is dismissed or the plea or conviction is not allowed into evidence, that is ok, as an experienced injury lawyer with a past of defending DWI cases years ago, I know exactly how to present all the evidence necessary to convince a jury that the driver that injured you was drunk at the time of the accident.

Continue reading "$2.3 Million Judgment - Missouri Drunk Driving Accident with Pedestrian in St Louis County. " »