Missouri Injury Law Blog

Often after a car accident or other injury the victim's future medical condition cannot be certain and often doctor's will opine that future surgery may be required as a result of the injuries sustained. This leads to the questions of ... when can the risk of future surgery be submitted to a Missouri jury for their consideration?

This issue was addressed by the Missouri Supreme Court in Swartz v. Gale Webb Transportation Co., 215 SW 3d 127 (MO 2007). This case arose from serious injuries, including lower back disc bulges, sustained after a car and bus collision. The plaintiff was the passenger in a car that was struck by a school bus owned by the defendant, Webb Transportation. The jury determined that the bus driver was at fault and as part of their verdict considered the need for potential future surgery. The defendant appealed claiming the jury should have never been able to hear medical testimony about future surgery and appealed on that ground.

The defendant argued that it was error to admit the doctor testimony that the Plaintiff's injuries put her at an increased risk of future surgery and other complications. Claiming that the experts were not able to testify that "more likely than not" the injured victim would need surgery in the future as a result of her injuries sustained. One expert testified that she had a 50/50 chance of requiring future surgery, a "more likely than not" standard requires a just a little bit more ...50.1% sure not just 50%. Additionally, the doctor admitted future surgery was "speculation" and could not be stated "within a reasonable degree of medical certainty". All buzz words or phrases that are problems for the Plaintiff to meet her burden of proof. See Injury Lawyer Article: Reasonable Degree of Medical Certainty Standard.

Despite the uncertainty of the future risk of surgery and problems, the testimony and evidence of future surgery and problems is admissible. It is admissible for purposes of establishing the nature and extent of the Plaintiff's current injuries.

"The fact that her back injury carries with it at least a 25 percent chance, and perhaps a 50 percent chance, of requiring surgery in the future makes it a worse injury than a back injury that has a lesser chance of future complications requiring surgery or that had fully healed by the time of trial."

Since the present injury brings with it this increased risk of future injury this "is information the jury should have in the difficult task of trying to give plaintiff's condition a dollar value." Because the testimony of doctors was admissible for the purpose of establishing the nature and extent of the victim's injuries, the trial court did not abuse its discretion in admitting the testimony or in refusing withdrawal instructions.

Therefore, an experienced Missouri injury attorney will get any evidence of future problems in front of a jury so they can fully decide the damages to award and the full nature and extent of the injury. Even if it is speculation that the future surgery would be needed, it goes to the extent of the present injury. However, I believe if you want to ask for specific damages - the jury to award the cost of the future surgery - you need a doctor to testify it is more likely than not the surgery would be required and what the likely cost would be.

Property damage pictures depicting the damage to the vehicles involved in the Missouri car crash are often helpful for the Plaintiff, especially when the damage is significant. However, oftentimes the damage appears to be very minor or even non existent, yet the driver or passenger still suffered injuries. In this situation the insurance defense lawyer will try to use the pictures to argue to a jury that the collision could not have caused the Plaintiff's injuries. This can be very powerful evidence for the defense, and a good car accident injury lawyer must be prepared to challenge these arguments.

How to Combat the Argument of No Damage to Car = Little or No Injury?

1. Argue that the Pictures Should be Excluded from Trial:

During a Missouri personal injury trial, the decision to exclude the pictures is within the discretion of the trial judge, however there is some helpful Missouri case law to make a good argument to the judge the pictures should be excluded, especially if you anticipate the defense will specifically argue minor damages means low impact and little or no injury without the support of expert testimony.

In the absence of expert testimony addressing the relationship between vehicle damage and severe injury, there is no foundation for the admission of property damage evidence. Interpreting the force of an impact from vehicle photographs and then assessing the likelihood of injury from such impact are tasks that can only be attempted by experts. The admission of property damage evidence would lead to unsupported and prejudicial speculation by the jury.

In order to present testimony that the forces of impact were not sufficient to cause certain personal injuries, at least one and possibly two experts would be required. First, a properly qualified expert would have to testify to the nature of the forces involved. Next, an expert would have to provide testimony concerning the nature of the injury based on the forces which were exerted.

In these situations all property damage evidence should be excluded because it lacks probative value to any element of the case and, assuming arguendo, that such evidence would have probative value, any probative value is substantially outweighed by the danger of unfair prejudice and that the jury would be misled to speculate on items not within the evidence.

This argument the issue has never been specifically addressed by the Missouri Supreme Court, but similar cases have been discussed, see Boland v Jando,414 S.W.2d 560 (1967).

This precise issue has been decided by the Superior Court of New Jersey in Brenman v. Demello, 892 A.2d 741 (N.J. Super. 2006), the Delaware Supreme Court in Davis v. Maute, 770 A.2d 36 (Del. 2001), and DiCosola v. Bowman, 342 Ill.App.3d 530, 794 N.E.2d 875 (2003)

These cases have held that without expert testimony it was reversible error to admit property damage evidence and allow defense counsel to argue that a serious injury could not have resulted from such a minor collision.

2. Tried and Tested Counter Arguments:

Sometimes judges allow defense lawyers to make the argument despite lack of expert testimony and the cases above. When this occurred in a case I handled a few years back before the insurance defense lawyer even had an opportunity to make his insinuations, I addressed it with the jury immediately.

This particular case involved a St Louis rear end car accident where the at fault driver drove an old Cadillac with a steel bumper which hit my client's vehicle when she failed to stop for a red light. The steel bumper hit my client's trailer hitch, thus little damage was apparent despite a bent trailer hitch.

Effective arguments: comparing the auto collision to a tuning fork, as the energy from the collision was not absorbed by the vehicle's body but the energy was transferred directly to the frame of the vehicle and to the driver's body, causing injury. No absorption of the impact as is seen with modern car crunch zones and even formula one racing cars. They are built to shatter as to absorb the energy of the impact.

If you do not have the direct frame impact argument, there are also videos out there showing slow motion very low impact collisions (less then 10 miles per hour) and the effect on the human body. Quite dramatic. Make sure in any doctor depositions you ask if the doctor will testify to low impact being able to cause significant injury.

Continue reading "Role of Property Damage Pictures in Missouri Car Accident Injury Trials" »

Previously, we have discussed the recent ban on CDL driver's (commercial drivers of trucks and buses) from using hand held cell phones while driving. See "Truck and Bus Drivers' Use of Hand Held Cell Phones while Driving Banned". Now the winds are indicating that a ban, even more strict than this one, is being pushed for on a federal level and covering all drivers, not just commercial drivers, and even proposing a ban on cell phone use via Bluetooth. See US News: "US calls for ban on in-car phone use ... even with Bluetooth".

As a practicing St Louis injury lawyer handling all types of cases including Missouri car accident cases, I often do see cell phone use as a contributing factor in accidents. In fact, a few years ago I began routinely requesting or subpoenaing cell phone records for all defendant drivers to see if they were using there cell phone at the time of the car crash. However, banning 100% of all cell phone use and mandating car manufacturers and electronics manufactures to come up with ways to disable cell phones while a car is in motion is simply taking this too far.

"NTSB also urged consumer electronics manufacturers to figure out a way to "disable the functions of portable electronic devices within reach of the driver when a vehicle is in motion"

In support of this push the NTSB stated "no text, no call, no update is worth a human life." I can think of a dozen other things we can completely ban in society because a human life may be lost. Airline travel, recreational sports, medical treatment for non life threatening illness, highway construction, space travel ..... There is a risk versus utility analysis they are completely overlooking.

What is wrong with drawing the line at texting? and requiring hands free phone use, doesn't that solve the problem? I personally think the recommendation by the NTSB will never be enacted, it is too strict, can never be enforced effectively, and the political support may never be there. Personal responsibility and encouragement to use cell phones safely is the answer, not draconian mandates.

U.S. Transportation Secretary Ray LaHood announced a new safety rule, in an effort to reduce truck and bus accidents. The rule prohibits interstate truck and bus drivers from using hand-held mobile phones while operating their vehicles. The joint rule from the Federal Motor Carrier Safety Administration (FMCSA) and the Pipeline and Hazardous Materials Safety Administration (PHMSA) is the latest action by the U.S. Department of Transportation to end distracted driving. See Driving while testing v Driving While Intoxicated

LaHood said:

"When drivers of large trucks, buses and hazardous materials take their eyes off the road for even a few seconds, the outcome can be deadly....I hope that this rule will save lives by helping commercial drivers stay laser-focused on safety at all times while behind the wheel."

FMCSA research shows that use of a hand held mobile phone while driving requires a CDL driver to take risky steps beyond what is needed for use of a hands-free mobile phone, including searching and reaching for the phone. Commercial drivers reaching for an object, such as a cell phone, are three times more likely to be involved in a crash or other safety-critical event. Dialing a hand-held cell phone makes it six times more likely that commercial drivers will be involved in a crash or other safety-critical event.

I believe this regulation is common sense. Most states already ban texting while driving and many require hands free use of mobile phones for phone call while driving. See Texting and driving bans by state. In 2009 almost 5474 people died, often a wrongful death case, and 500,000 suffered auto or truck accident related personal injury as a result of distracted drivers.

Hand Held Cell Phone Bann Rule for CDL Drivers can be accessed here.

Continue reading "Truck and Bus Drivers' Use of Hand Held Cell Phones while Driving Banned " »

In 2010 a reported 57 pedestrian deaths occurred in Missouri, many of them giving rise to wrongful death claims or general personal injury claims. See Missouri Drunk Driving Accident Lawyer Ben Sansone Obtains St Louis County Judgment of $2.3 Million. This case involved a drunk driver in St Louis that injured a pedestrian when fleeing the police. Also, see St Louis Pedestrian Injury claim and settlement. . These are just 2 examples of pedestrian and motor vehicle injuries we have handled. It is a serious problem that these types of injuries are on the rise in Missouri. See Post Dispatch Article: "Pedestrian Deaths Increasing in Missouri".

As a St Louis injury lawyer handling pedestrian accidents and death cases, I have investigated first hand the situations that lead to the pedestrian accidents and how to avoid them.

If your car breaks down or you need to pull over to the side of the road, make sure you are in a well lighted and not heavy traffic area. Avoid stopping on the side of a busy highway at night. If you must, stay on the outside side of your vehicle. Changing a tire on the traffic side of a vehicle at night and on the highway is very dangerous. Turn on your hazard lights and leave your parking lights and headlights on as well.

Use crosswalks and when using crosswalks do not rely on drivers to obey traffic lights. Visually verify that traffic is clear or than oncoming vehicles have stopped and are not attempting to turn across your pathway. Never assume vehicles will obey crosswalk signals.

In Missouri you can dial " *55 " to get roadside help, may be a very good idea to stay in your vehicle until help arrives.

Be aware of traffic when walking on the side of the road, pedestrian on the side of the road and people changing tires on the side of the highway are the most common type of pedestrian injury.

Additionally, whenever talking about pedestrian safety, bicyclist safety tips are often very similar. Never assume vehicular traffic will obey traffic signals, wear bright clothes, use strobe or flashing lights on your bike, and try to avoid cycling at night, not only is it harder for vehicle drivers to see you, but debris and problems in the roadway are harder to see as well. See Avoiding Bike Injuries & Legal Liability at Intersections: Right of Way at Unmarked Intersections

http://www.missouriinjurylawblog.com/2011/07/avoiding-bike-injuries-legal-l.html

Continue reading "Pedestrian Deaths in Missouri on the Rise: How to be Safe and Avoid an Accident " »

Guest Post by Anne Roberts.

California is notorious for the high rates of car crashes. More frequently, news reports regarding these incidents reach the awareness of the public and statistics shows that a car crash occurs every 10 seconds at the United States.

Although the numbers are high, few people knew the right way in dealing with these kinds of accidents. They forget that every case starts from the occurrence of the accident and that it is crucial to seek the assistance of the local Los Angeles car accident attorneys which would help them all throughout the litigation process.

Let's face it - court trials or litigations are hassles. It makes use of a lot of time and without the assistance of someone knowledgeable in California Traffic Laws, there would be less probability in winning the case. There are a lot of lawyers specializing in personal injury cases, under which the category car accidents fall upon. The following outline shall act as an umbrella in further defining car accident cases.

Negligence

A lot of personal injury cases which involves road mishaps are founded on proving negligence. In order to create a sound complaint there must be solid ground for negligence. This means that the accident happened because the one being complained has acted haphazardly, thus injuring the other party.

Personal Injury

Personal Injury is defined as damages done to one's mind, feelings or body. These include damages done to someone involved in a road mishaps and other accidents such as minor injuries like wounds, bruises or lacerations and the more serious ones that resulted from the impact such as spinal or brain injuries. These are more frightening since they may be left undetected for some time and lead to permanent disability, therefore the client should be able to prevent this and compensate for future medications which will be pointed out by the Los Angeles car accident attorneys.

During the litigation process the two parties involved would be divided in the following:

Plaintiff

The complainant or the plaintiff would be the one to file for a petition against the alleged negligent party.

Defendant

This party accused of the crime that was committed, wherein a formal charge in court was filed.

Importance and Advantages of Hiring Car Accident Lawyer

As stated beforehand, it is advisable to find someone specializing at personal injury cases to have better chances of winning the case. An attorney would help in formulating a sound claim upon the filling of the complaint which strengthens the case being fought. Moreover, insurance companies are oftentimes tricky in order to flee from the responsibility of paying the claims; this shall be countered by the hired counsel. Many firms offer a lot of services which exceeds the responsibilities expected of a counsel; this may include even gathering witnesses or evidences for the case. Some may even have the "No Win, No fee" policy where they would not get any payment if the case is not won over. On the other hand a third or 40 percent of the "damages award" - or the grants given to the winning party shall be the standard commission of these firms in some parts of United States.

A now former attorney was sentenced to 25 years in prison for the drunk driving wrongful death of a 31-year-old woman and injuries to two others. While driving from a football game and fueled by twice the legal amount of alcohol, Tolliver caused the car crash when he ran a red light and slammed his SUV into an oncoming cab. The impact instantly killed 31-year-old, mother of two, Shannon Brown, while the other passenger suffered severe injuries of a collapsed lung along with loss of sight in one eye and the cab driver's injuries put him in a coma for several weeks. See: St Louis Lawyer blog article: TBI and Drunk Driving Trends

This guy had 4 separate prior DWI convictions. This is not a new situation, repeat offenders severely injuring and killing innocent victims. See Missouri Drunk Driving Accident Lawyer Ben Sansone Obtains St Louis County Judgment of $2.3 Million. The intoxicated driver's family members stated that he was receiving regular treatments; however, part of his probation agreement from his latest DWI conviction was that he not be allowed to drive. Though some may argue that after two convictions it should be realized the offender has no intention of obeying the law, but once again it took 4 DWI convictions, a death of a mother and permanent dismemberment and traumatic brain injury to others for a Fulton County Judge to "let the community know such behavior deserves severe punishment." As such and per a plea deal, she sentenced Tolliver to 25 years in prison. He pleaded guilty to one count of vehicular homicide and two counts of serious injury by vehicle, all while driving under the influence.

I have represented injured parties in other motor vehicle accidents involving drunk drivers. See Missouri Injury Law Blog: Drunk driving Law . While this is apparently a case of blatant intoxication with tragic results, many cases where the actions of the driver are just as egregious do not get the media attention because the driver did not kill anyone or severely harm them. But does that make their reckless actions any less reckless? I say no, we are currently pursuing five or six drunk driving cases with minor injuries.

When the driver was drunk but the injuries are minor, the insurance companies resist settlement because the injuries are not massive and therefore ignore the fact their driver was drunk. These cases must be pursued vigorously however some lawyer give up too easily on these cases . See: Illinois Drunk Driving Car Accident - My Client was Rear Ended by a Drunk Driver Going Approximately 60 MPH - Prior Illinois Personal Injury Lawyers Failed to Pursue Claim- Case Referred to Us for Trial

If you or a loved one are the victim of a reckless drunk driver, even if the injuries are minor, contact St Louis drunk driving accident lawyer Ben Sansone today for a free consultation. We aggressively pursue these cases.

"Dram Shop" cases are drunk driving injury cases pursued by the injured party, or their surviving family as a wrongful death claim, against the bar or restaurant that may have over served the intoxicated driver that caused the car accident. For more information on lawsuits against the negligent bar or restaurant for over-serving a drunk driver See Missouri Drunk Driving Accident Lawyer Article: Drunk Driving Accident Lawsuits in Missouri - Making a Negligence Claim Against the Bar that Over-Served the Missouri Drunk Driver

As an injury lawyer, often specializing in drunk driving injury cases, I can tell you first hand that Dram shop cases are difficult, but winnable. Under Missouri Statute § 537.053 a Dram Shop case has three main elements to the cause of action:

1. The claim must be brought (1) "by or on behalf of any person who has suffered personal injury or death"

2. Against a "person licensed to sell intoxicating liquor by the drink for consumption on the premises . . ."

3. Clear and convincing evidence the seller "knowingly served intoxicating liquor to a visibly intoxicated person"

That can be very tough case to prove, first you have to find out where the reckless drunk driver that caused the car accident came from, and they may not tell anyone where they came from or admit it to you.

The more difficult part to prove is whether or not the driver was "VISIBLY INTOXICATED" Can you find witnesses that remember seeing the intoxicated driver at the bar and remember or be willing to testify that they were visibly intoxicated? Probably not, most of these cases are proven through he police officer's observations and hopefully a blood or breath test. Then hire a toxicologist to testify what the driver's physical appearance would have likely been based on the BAC test by the police or their observations. In many cases the intoxicated driver who caused the accident may have little or no insurance, and certainly not enough to compensate an injured driver or passenger who is severely injured. Thus the possibility of pursuing the bar or restaurant is something that must be investigated in most drinking and driving car accident injury cases. See, Evidence in Missouri Drunk Driving Car Accident Injury Case: Proving the Other Driver was Intoxicated stating:

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)).

The "VISIBLY INTOXICATED" portion of the dram shop law has recently been discussed by the Missouri Court of Appeals, Western District, in Nokes v HSM Host USA LLC, WD Court App Opinion 9/13/2011. In the Nokes case, the trial court granted summary judgment in favor of the defendant because the Plaintiff did not have any direct evidence that the driver was "visibly intoxicated", meaning an eye witness or videotape. The Appellate Court overruled that requirement stating:

"Nokes's evidence regarding Chiarelli's level of intoxication, taken together with the drink receipts, the police report, and the expert testimony that such a level of intoxication would produce outward manifestations of intoxication was sufficient to demonstrate the existence of a genuine issue of material fact as to whether the Host defendants knowingly "served intoxicating liquor to a visibly intoxicated person." Section 537.053."

Thus, in Missouri visible intoxication can be proven by circumstantial and indirect evidence, eye witnesses not required.

The heart of most personal injury claims, especially clear liability motor vehicle accidents, is damages. Damages being economic and non-economic; Economic damage is the amount of money required to compensate the Plaintiff for the out of pocket expenses (i.e. medical bills, future medical costs, medicine, lost wages, etc.) See St Louis Personal Injury Attorney Article: Personal Injury Trials: Proving Damages and Arguments to the Jury About Medical Testimony or Lack Thereof Non-economic damages or "pain and suffering" being the amount to make up for or at least balance the past and future harms and losses that the Plaintiff is suffering. Pain and suffering damages are the most important type of damages as they represent the real personal harms and losses an individual suffers; the daily emotional and physical pain an injury can cause. Reality is their is no magic wand available to take those harms and losses away, so money is the only way we have to compensate and make an individual whole or at least balance the harms with compensation.

In a Missouri auto accident injury claim, can the defense (the auto insurance company) argue to a jury that the victim is not hurt as bad as they say they are because the other driver or passengers in the same vehicle were not hurt as bad? I believe the answer to that is no, however depending on the circumstances, some Judges may allow that evidence in for certain purposes. As an experienced St Louis injury lawyer, I address this issue before trial even starts through a Motion in Limine with the Judge, therefore, the Judge can rule on it before trial starts and not in front of the jury, as by that time the bell has already been rung.

Recently, we dealt with a motorcycle accident head injury case, wherein we represented the hurt passenger and the insurance company tried to claim that since the driver was not injured that the passenger was not injured. Not only does this argument make no sense, the law in Illinois is clear that argument cannot be made in front of a jury. "Generally. the details about the nature and severity of personal injuries to non litigants in automobile cases are not admissible." Martin v. Sally, 341 Ill. App. 3d 308, 318 (2nd Dist. 2003) (refusing to allow testimony regarding passenger injuries) (quoting Keil v. McCormick, 5 Ill. App. 3d 523, 526 (2nd Dist. 1972), concluding that reference in opening statement and subsequent testimony to lack of injuries to the defendant the two occupants of her vehicle, and the occupant of the plaintiffs vehicle was error. The issue involved was the injury to the plaintiff not the fact that the defendant and her passengers, in a different automobile were not injured."). See also, Vujovich v. Chicago Trans. Auth, 6 Ill. App. 2d 115, 126 N.E.2d 731 (1st Dist. 1955).

In J.B. Hunt Transport, Inc. v. General Motors Corp, 243 F.3d 441 (8th Cir. 2001), the district court excluded evidence of the minor injuries of the driver of the vehicle in which the plaintiff was riding in the front passenger seat. ld. at 445. The plaintiff argued that the driver's injuries proved that the seat of the vehicle in which the plaintiff was riding failed, given the fact that both of the vehicle's occupants were subjected to the same impact. Id. The Eighth Circuit determined that evidence of the driver's injuries was correctly excluded, explaining:

"We cannot say that [the driver's] injuries could be considered either substantially similar evidence or relevant to [the plaintiff's] injuries. First, it was undisputed that [the driver], unlike [the plaintiff], was wearing her seatbelt at the time of the accident. Second, because [the driver] was driving, she was able to anchor herself by grasping the steering wheel, which may have alleviated some of the impact. Moreover, the angle of impact differed between the two occupants leading to the varying degrees of injury."

The court noted that admitting similar-incident evidence "threatens to raise extraneous controversial issues, confuse the issues, and be more prejudicial than probative."

Continue reading "Missouri Trial Evidence in Personal Injury Car Accident Claims: Is Lack of Injury to Other Passenger or Driver Admissible to Discredit Plaintiff's Injuries? " »

Under Missouri personal injury law, government and public entities are immune from certain causes of action, however, if a dangerous condition exists on the property then the government or public entity is liable. See St Louis Premise Liability Lawyer Article: "Missouri Premise Liability Cases Against Government Entities - i.e. park, zoo, injuries at public school, etc ..."

Even when they are liable, Missouri law affords a limit on the amount an injured person can recover from these entities, basically, $300,000 per injured person, adjusted for inflation. See Missouri Statute 537.610(2), stating:

The liability of the state and its public entities on claims within the scope of sections 537.600 to 537.650, shall not exceed two million dollars for all claims arising out of a single accident or occurrence and shall not exceed three hundred thousand dollars for any one person in a single accident or occurrence

However, what if the public entity has more than $300,000 in insurance coverage? Is that a waiver of the sovereign immunity limit of $300,000? Recently the court addressed that very issue in Farm Bureau Town & Country Ins. Co. of Missouri v. American Alternative Ins. Corp. In the Farm Bureau case, which involved a Missouri car accident with serious personal injures, the issue was addressed of whether or not a public entity (a fire protection district in this particular case) waives the sovereign immunity limit of $300,000 by purchasing insurance coverage in excess of that amount. The analysis of the case has wrote:

"Section 537.610.1 allows political subdivisions of the state to purchase liability insurance for tort claims and waives sovereign immunity `only to the maximum amount of and only for the purposes covered by such policy of insurance' or self-insurance plan.'" Kunzie v. City of Olivette, 184 S.W.3d 570, 574 (Mo. banc 2006). If the entity "maintains insurance that covers these types of claims, then it will have waived its immunity under section 537.610 for the specific purpose of and to the extent of its insurance coverage." Id. This waiver through the purchase of insurance effects "an absolute and complete waiver of all immunities." Id. The insurance effects such waiver when, "the plaintiff's claim falls within the purposes covered by the defendant's policy." Hummel v. St. Charles City R-3 School Dist., 114 S.W.3d 282, 284 (Mo.App. E.D. 2003). Here, it was stipulated that "[a]s a result of the . . . accident . . . various claims were asserted against [Mr.] Day" and that the amounts were "reasonable and were necessary to settle the claims against [Mr.] Day." .

Consequently, the Fire District waived sovereign immunity to the limits of the AAIC policy. This case may open the door to getting around the sovereign immunity limits in Missouri personal injury cases, and each case will be very fact specific, particularly, the language of the insurance policy and how it addresses, if at all, any waiver of the limits.

The above case involved a fire fighter and an automobile accident. Currently, St Louis brain injury lawyer, Ben Sansone, is handling a case against a Missouri school district after the center pole between the double door to the gymnasium was secured negligently and fell and struck a 13 year old boy in the head as he walked through the door. The insurance policy is in excess of $300,000, so the issue of the waiver of limits will come up in our case as well. This is a pending case and I will update this article if this issue us addressed.

Medicare liens and other healthcare liens play an important role in personal injury cases and need to be addressed early on in the case and handled properly to limit the amount of the lien. See St Louis Personal Injury Law Article: "Medicare recovery against Personal Injury Awards - Injury cases Held Hostage by Medicare"

In the case of Wilson v. State Farm Mutual Automobile Insurance Company, No. 3:10-CV-256-H, 2011 WL 2378190 [2011 U.S. Dist. LEXIS 63430 (W.D. Ky., June 15, 2011), the United States District Court for the Western District of Kentucky held that an auto insurance carrier was not acting in "bad faith" by withholding payment of car accident settlement check pending determination of Medicare's potential lien and payment amount required to satisfy that lien.

In the car accident case mentioned above, the plaintiff filed an uninsured motorist claim and the case was settled for the auto insurance uninsured motorist coverage's policy limits. However, the insurance company would not pay the settlement until after it obtained Medicare's reimbursable payment amount. The injured driver sued the insurance company claiming that the delay was bad faith.

The court ruled that the withholding of payment was not bad faith. The insurance company could be held liable by Medicare if they made the payment to the Plaintiff and then the Plaintiff never makes payment to or satisfies Medicare's lien. Since they were open to potential legal liability the court ruled they did not act in bad faith.

Factually, the above auto accident case involved the plaintiff who was a passenger in a truck that was involved in a car crash. The plaintiff was injured and Medicare paid some of his accident related medical bills. Since the at fault driver of the other vehicle was uninsured, the plaintiff filed an uninsured motorist lawsuit against his insurance company, State Farm. The auto insurance company agreed to settle the case for the uninsured motorist policy limits.

State Farm attempted to determine Medicare's conditional payment amount, which is the amount they will accept to satisfy any lien they have against the case. The plaintiff refused to help get the Medicare reimbursement amount determined and demanded that State Farm tender the settlement check. Well, clearly this issue is now resolved by the court as the bad faith claim by Plaintiff failed. Showing the importance of getting liens under control and amounts determined early on in a case in order to facilitate a smooth and quick payment to the injured client for their personal injury.

Medicare liens are just one of the dozens of issues that need to be handled by a professions and once of the reasons retaining a qualified and experience personal injury lawyer early on in your case is so important. See St Louis Car Accident Attorney Article:"I Was Injured in a Missouri Car Accident, Why Do I Need to Hire a Personal Injury Lawyer?"

Continue reading "Auto Insurer Withholding of Car Accident & Injury Settlement because of Potential Medicare Lien - Bad Faith? " »

Working for a cyclist and a personal injury attorney I have become well aware of the dangers of bicycling on the roadways and the risk of being injured by inattentive drivers. See St Louis Bike Accident Lawyer Article, discussing common causes of bike accidents.

People toss around the phrase "this is my right" so heedlessly, that they not only forget what it actually means to have a right, but in doing so they have managed to squander the very conviction of the word. Furthermore, it appears that a strong belief in one's right primarily manifests itself when filing a personal injury lawsuit. At that time, everyone clamors about to prove their rights have been violated in some way which, in turn, caused injuries and pain and suffering so severe that it can only be healed with a Band-Aid generally made of dollar bills. Indeed, compensation may be, and typically is, the correct solution. However, having a clear understanding of one's rights is crucial to any motorist wishing to have a better chance of survival on the roads - I believe more specifically applicable to cyclists - as well as a better chance of winning your bicycle accident case.

I've been reading a great book on the legalities of bicycling, aptly named Bicycling & The Law, by Bob Mionske, J.D. In fact, Mr. Mionske summarizes this thought completely in a chapter wholly dedicated to the rights and duties of the cyclist. He states, "...duties are the flip side of rights; with rights come duties", and "your right to the road is not absolute, nor is theirs - you owe a corresponding duty to every other person not to infringe upon their right to the road, just as every person owes you the same duty."

You should know exactly what your rights and duties as a fellow driver are. You have a duty of care. This is to say that you, as a cyclist, will not impose an unreasonable risk of harm onto another person/driver. You have the duty to allow other drivers to conceivably assume that you will obey all traffic laws and not intentionally put them at risk of injury; just as you have the right to assume the same from those same drivers. As a part of this right, if another driver violates this duty of care, you may hold them liable by filing a bike injury lawsuit.

As stated in a previous blog, another principal of cycling is to know your state's laws. You can easily find Missouri's bicycle laws (http://mobikefed.org/statutes) on the web. This is only a general overview, but it is important to hire an experienced attorney when discussing specific issues such as: assumption of risk; following too closely; proper stops; intersection crashes; and bike crashes involving suspected DWI offenders, just to name a few.

An important issue in a St Louis car accident injury claim, or any personal injury claim, is causation and proof of damages through medical testimony. The legal and medical professions both play major roles in a car accident lawsuit. You need a good personal injury attorney and you need a doctor that is willing to back you up and testify on your behalf. See previous article by St Louis injury lawyer Ben Sansone: Proving Medical Damages in a Missouri Personal Injury Case and The Sudden Onset Rule in Missouri Auto Accident Claims.

The plaintiff (injured party bringing the case) has the burden of proof, meaning they must prove their case before a jury can find in their favor. So the plaintiff's car accident lawyer will put on evidence that the accident was the defendant's fault and then medical evidence, through doctor testimony, that the Plaintiff is injured from the accident, current state of their injuries, and likely future problems.

Oftentimes, Defense counsel for the insurance company will send the Plaintiff for an IME (Independent Medical Examination) especially when there were pre-exisitng and related injuries or the defense disputes causation.

But what if the defense does not do an IME and does not call any doctor to dispute causation, yet the lawyer argues causation at trial to the jury? As a St Louis personal injury lawyer, I have run into this situation a few times and I argue to the jury to draw an adverse inference from their failure to bring evidence to the trial but still argue that defense.

This argument to the jury about the failure to bring in a doctor to support their causation defense is supported by Missouri case law. In Hemann v Camolaur, Inc., 127 S.W.3d 706 (Mo Ct. App WD 2004), the Plaintiff's injury attorney argued to the jury in closing argument that the defense failed to call a doctor or provide any evidence to support their defense of causation. However, this is a fine line that needs to be walked by a personal injury trial attorney; if the argument jumps from pointing out the lack of evidence to telling the jury to actually draw an adverse inference from the lack of evidence, a court could determine that the argument went too far and was too prejudicial.

The above argument and many others need to be made at an injury trial and the extent you go with each argument depends on the facts of the case and the particular judge that you are in front of. To what extent a lawyer can make many of these trial arguments depends on the judge as the extent a lawyer can make certain arguments or pursue a certain line of questioning oftentimes lies within the discretion of the trial judge. For example, as discussed above, make an adverse inference argument about failure to call certain witnesses without actually asking the jury to draw an adverse inference.

Continue reading "Personal Injury Trials: Proving Damages and Arguments to the Jury About Medical Testimony or Lack Thereof " »

A Missouri personal injury lawyer must prove liability and damages to succeed in a personal injury claim. Liability is whether or not the negligent driver violated a duty, i.e. drove too fast, failed to keep a lookout, or violated various other rules of the road. That violation must be the cause of the damages to the victim. In most cases, causation is obvious and easily proven, but it sometimes can be a difficult issue.

With regards to Missouri Automobile Negligence, it is necessary to prove "causation" or that the negligent party is the "actual cause" of the accident and injuries sustained. To do this, it must be shown that there would be no injuries but for the negligent party's action. If it is possible to take that action out of the scenario and the result is still the same, it is incorrect to say that there is actual causation.

Another aspect of causation is that the Missouri auto accident injury must be the "proximate cause" of the negligent driver, meaning the injuries sustained were a foreseeable consequence of the negligent party's action. Peoples v. Conway, 897 S.W.2d 206 (Mo.app.1995). Meaning: did the act cause a succession of injuries other than the initial one. Are the subsequent injuries the "natural and probable" outcome of the original negligent act? The difficulty in proving proximate causation is to know where the stopping point is. Finding the fair and reasonable degree of separation can become a gray area. See Wilkerson v. Williams, 141 S.W.3d 530 (Mo. Ct. App. S.D. 2004). Luallen v. Reid, 58 S.W.3d 50 (Mo.App.2001) shows that negligence need only be a contributor to the injuries sustained, not the sole cause. To establish proximate causation, it is "sufficient that it be one of the efficient causes thereof, without which the injury would not have resulted."

Continue reading "Proving Causation in Missouri Car Accident Claims and Lawsuits" »

As a personal injury lawyer, one of the most common injuries I see are back injuries; some of the more severe include disc bulges and herniated discs. Disc injuries are most commonly found in the low back and neck. As a Missouri work comp attorney, I often see clients who need a lumbar laminectomy, especially for injured workers who do a lot of heavy lifting. If the laminectomy or a discectomy is not successful, a spinal fusion surgery may be necessary. See Missouri work comp injury articleSpinal Fusion after St Louis Construction Site Injury.

What is the difference between a disc bulge and herniation?

A disc bulge is when the disc moves or bulges outside of the normal space between the vertebrae that it normally occupies. Disc bulges often push on nerves and cause pain and discomfort. Generally, disc bulges are treated with physical therapy and spinal pain injections, also referred to as steroid injections. See Missouri Personal Injury Lawyer Article: Spinal Injection and Medical Malpractice.

A herniated disc is when there is a break in the outer layer of the disc which causes the disc to become deformed and leak the internal fluid. In addition to the physical effect on the injured victim's back alignment, this leaking fluid can damage the spinal cord or nerves resulting in more pain. Herniated discs can be caused by a traumatic injury such as a car or truck accident, motorcycle accident, or work related injuries.

Most of my clients who have back injuries do so as the result of a Missouri car accident caused by a negligent driver. After a car accident occurs, typically people will visit the emergency room. However, back injuries such as disc bulges or disc heriations are commonly not treated at the ER other than receiving a prescription for pain and muscle relaxers. It is important to follow up with a doctor and have back injuries treated. Back pain may be an aching muscle, but it may be a more serious injury that needs to be treated.

Continue reading "Common Back Injuries from Car Accidents and Work Related Injury " »