Missouri Injury Law Blog

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Related Articles:

Can a Personal Injury Lawyer Admit into Evidence an SIS (Suspended Imposition of Sentence - probation in lieu of a conviction)

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

Under Missouri personal injury law, asking the jury to "send a message" with their verdict is generally reserved for punitive damage cases and typically not allowed in cases where compensatory damages are the only damages sought. Most personal injury cases are compensatory damage cases; most car accident lawsuits do not alleged punitive damages, unless the driver was drunk or did some sort of other reprehensible or intentional act. So can a good Missouri trial lawyer ask the jury in closing argument to "send a message' if punitive damages are not an issue? Maybe, depending on the judge, and then it must be done correctly and carefully.

First, the judge must allow it and not sustain an objection by the defense, or even grant a mistrial because the judge feels the reference to sending a message is so prejudicial that it ruins the jury's ability to properly determine a verdict. The objection is a likely scenario and different judges will rule differently on the issue. The mistrial is and extreme reaction to the argument, however, it can happen.

Generally, Missouri courts have left it in the discretion of the trial court judge to what extent "send a message" arguments can be allowed, ruling that it has been ok in some cases because it was not prejudicial or that an objection and curative instruction corrected any potential error or prejudice. "Given the cold record on appeal, appellate courts of this state uniformly uphold trial courts' determinations of the prejudice injected by "send a message" arguments." Pierce v. Platte-Clay Electric Cooperative, Inc., 769 S.W.2d 769 (Mo 1989).

It appears it is not reversible error in compensatory damage cases if (1) the injury lawyer argues the message to be sent by the verdict is to be sent just the Defendant, and (2) the plaintiff's counsel is clear that they are asking for damages supported by the evidence. Limiting the message being sent to just the defendant avoids the argument of deterrent effect to others (reserved for punitive damage claims) and by referring to only the damages supported by the evidence a good attorney avoids the argument that they are asking for punitive damages, since they are only asking for damages supported by the evidence, not additional damages for deterrence, which is punitive in nature.

The two issues discussed above for not crossing the line into punitive damage arguments are discussed in Dickerson v. St Louis Southwestern Railway Company, 674 S.W. 2d 165 (Mo Ct App ED 1984). In this case, during the closing arguments the Missouri accident attorney stated, when referring to the verdict:

"It is going to be heard by this railroad all of the way out to the home office in San Francisco, and I ask you to make it for an amount that's proven by the evidence that we've talked about that they'll hear about loud and clear for all times.

But I ask you to make it as generous as you possibly can and let them know when you come back down here, "Mr. Railroad, we have done our job. Here is the price tag."

The defense lawyer objected to the argument and the trial court overruled the objection, meaning they allowed the closing argument. The defendant lost the trial and they appealed the case, in part claiming the arguments above were improper "send a message" arguments that are reserved for punitive damage cases. The Eastern District Appeals Court upheld the trial court's ruling, thus agreeing that the argument was permissible, because:

1. Trial court has broad discretion in ruling on propriety of jury argument
2. The argument does not expressly request the jury to punish the defendant
3. Plaintiff limited his damages request to "an amount proven by the evidence"
4. Plaintiff limited his message to be sent to defendant's corporate headquarters
5. Plaintiff did NOT refer to the deterrent effect the verdict might have on others.

Additionally, the best Missouri injury lawyers know not to make the "Send a message" argument the theme of their closing, they state it and move on. "When the send a message argument becomes the theme of the entire closing, it constitutes reversible error." Smith v. Courter, M.D., 531 S.W.2d 743 (Mo 1973).

The Courts have also allowed defense lawyers to argue to a jury to reject the plaintiff's claim and in doing so send a message to society that litigation is too common and must be deterred. In the case of Beis v Dias, 859 SW2d 835 (Mo 1993), send a message was argued by the defense to send a message to a litigious society not to sue doctors for complications that are accepted risks of the surgery.

Defense argument to jury:

"[Y]ou have a golden opportunity here to help correct one of the most litigious societies--the most litigious society in the world. You have an opportunity--

(objection - overruled)

"You have an opportunity here to take the burden off of Dr. Dias's back and place it where it belongs. These people should not recover any money whatsoever. We cannot encourage this type of activity. Folks, look, I don't deny and I've never tried to deny and I told you this up front, that she had complications develop as a result of the surgery. But they are accepted risks of the surgery. They are known risks of this surgery and unfortunately, it happened to this lady. But we are here to determine whether or not Dr. Dias in any way was negligent. Did he fall below an acceptable standard of care with reference to his treatment, his care, his surgery of this woman?"

1. It was not the ongoing theme of defendant's closing;
2. After objection defense counsel moved from the argument even though the objection was overruled;
3. Again holding that the trial court has "superior opportunity to appraise the impact of the argument to the jury, we accord the trial court broad discretion in this area of closing argument"

I personally disagree with the court's ruling in this situation, as the defense lawyer was improperly asking the jury not to determine their verdict based on the evidence, but was asking them to send a message to society about the dislike for medical malpractice lawsuits. He was not asking for punitive damages in the form of a money verdict, but a sort of punitive damages by a defense verdict and that would send a message to society.

The case law really comes down to the fact that the trial court has discretion to make these decisions and that the court of appeals will not tamper with that decision unless their is abuse of discretion by allowing very improper arguments to be made. So depending on the judge, a good lawyer may be able to argue "send a message", and if they keep it within the parameters discussed above, the court of appeals should not second guess it.

Continue reading "Missouri Law on "Send a Message" Arguments to a Jury in Non-Puntive Damages Cases" »

The issue of cell phones in the St Louis City Circuit Court and St Louis County Circuit Court has been ongoing for several years now, primarily because the majority of cell phones are "smartphones" with built in cameras and internet capability. Until recently, unless you were an employee or a Missouri lawyer, the St Louis City court security would not allow any cell phone into the courthouse with a built in camera. However, they now allow cell phones in the courthouse and leave it up to the individual judges to decide if they want to allow them in their particular courtroom. This has always been the policy in St Louis County.

Judges are now rethinking the rules about allowing cell phones in the courthouse. See St Louis Post Dispatch Article: Cellphones increasingly a problem for courts across St. Louis region. As a Missouri trial lawyer practicing primarily in the St Louis area, my biggest concern is the use of the internet on jurors' smartphones during a trial and deliberations. I have never advocated taking them away, as I trust most jurors will and do listen to the judge's instructions about not researching the case outside of the courtroom or using the internet to research the case or parties involved. But it will happen, and this is a reason why my personal injury clients are instructed to either take down social networking pages or be very careful about what they post or discuss on such websites as Facebook or Twitter. Additionally, as an accident attorney, I must be mindful about what I post on my website or blog.

I heard a story recently from an insurance defense lawyer friend of mine about how Facebook may have damaged a St Louis brain injury case because of what the jury saw on the lawyer's website and Facebook page. Apparently, after the jury reached a defense verdict (meaning the plaintiff or injured victim lost) the defense lawyer stayed around and talked about the case with some of the jurors. Since after the verdict is decided the Judge discharges the jurors, after that discharge the jurors are free to talk with the lawyers or anyone else about the case and why they decided what they did. As with many brain injury cases, there were many issues and facts for the jury to decide; however, this defense lawyer was apparently told by several jurors that they researched the Plaintiff's lawyer and did not like what they saw on his website and Facebook page. Apparently they felt the lawyer was bragging about winning and making money instead of being concerned about his client's injuries. Did this have a major effect on the outcome of the case? Maybe, and it is definitely an issue any good personal injury lawyer needs to be concerned about.

As mentioned above in the Post Dispatch article, the Judges are more concerned on the effect of camera phones on criminal cases and specifically juror intimidation. Relatives of a criminal defendant reportedly took pictures of the jury and posted them on Facebook, was this meant as a threat to the jurors? Regardless of the intent, it should not happen. We now live in the age of instant access to information through smartphones and Judges and lawyers need to take precautions to make sure the cases are decided on the evidence presenting in the courtroom, not what can be found on the internet.

I have discussed hundreds of issues pertaining to injury cases on this blog, and this is again another issue of the hundreds that a good personal injury lawyer is aware of and takes the necessary precautions and actions. In the past few years I have had many injured victims try to handle their own cases for a few months or even a year or longer, then when the insurance company is offering them peanuts they come to me for advice. Oftentimes, major damage has been done to the case, as one of many examples, insurance companies will investigate you through social media, meaning they will look at your Facebook account and save any comments you make or pictures of you that will hurt your case. Facebook comments or pictures that can be taken out of context and used against you to claim you are lying about your injury or the affect it has on you.

If you have an injury claim, call an experienced accident lawyer today to discuss your options. All initial consultations are free of charge; and if we take the case we do not get paid unless you win. Call (314) 863-0500 to speak directly with a lawyer.

Many people not familiar with the Missouri personal injury legal process often get confused as to the issue of auto insurance versus the individual driver that caused the car accident. If the driver had auto insurance your claim is against the individual driver but the auto insurance company "indemnifies" the driver, or pays for the amount they owe as a result of the injuries caused. Additionally, the insurance company appoints and pays a lawyer they use, technically, the driver is the insurance lawyer's client, but in reality the insurance lawyer is looking out for the company that pays their bill, the auto insurer.

If the car insurance company will not settle the auto accident claim and a lawsuit is necessary, in most cases, the Missouri car accident lawsuit is against the driver, not the insurance company, however, as stated above, the insurance company foots the attorney bills and typically pays any settlement, judgment, or verdict.

In most cases the Jury is NOT told about auto insurance, as it is considered irrelevant under the Missouri collateral source rule. There are exceptions to this rule and other ways to get the issue of insurance in the juries minds. This is important as a jury could be reluctant to fully compensate an injured victim based on worries about whether or not the individual defendant driver can pay or if it will be an undue hardship for them to pay. A few years ago a St Louis jury returned a verdict in favor of my client in a car accident case. The verdict amount was good and double what the insurance company offered before the case, but it was not a great verdict. When I asked the jury, after they were dismissed by the judge, why they did not find a larger verdict, most of them told me, we felt sorry for the driver and did not want her to have to pay more. Example of a case where no one on the jury knew or assumed there was auto insurance. In fact when I asked them about auto insurance they stated they assumed there was no insurance because we did not tell them there was.

This insurance issue must be addressed and every good trial lawyer knows it. IT can be addressed as follows:

1. The "Insurance Question" During Voire Dire:

"Voire dire" or jury selection is the beginning of a trial where a pool of potential jurors is questioned top make sure they are an appropriate juror for the case. One of the questions that can be asked is called "The Insurance Question". Under Missouri law the Plaintiff's lawyer can ask the jury if they have any affiliation or interest in _______ Insurance Company. Cannot state it is the defendant driver's insurance company.

The accepted procedure in Missouri for asking the preliminary "insurance question" includes 1) first getting the judge's approval of the proposed question out of the hearing of the jury panel, 2) asking only one "insurance question," and 3) not asking it first or last in a series of questions so as to avoid unduly highlighting the question to the jury panel. Callahan v. Cardinal Glennon Hosp., 863 S.W.2d 852, 871 (Mo. banc 1993). The form of the question is at the trial court's discretion. However, it generally encompasses whether any members of the panel or their families work for or have a financial interest in the named insurance company.

2. Get the Jury Panel Talking About Insurance:

Inevitably, during voir dire, a juror will bring up auto insuance, a lawyer must be careful in doing so, but to the extent you can, a good Missouri injury lawyer will follow up with quesitons like "tell me more about that" or "anyone else feel the same way?" to get the jury discussing the issue of insurance coverage. There is no rule against the jury telling each other about insurance coverage!

3. Defense Lawyer is Employed by the Auto Insurer:

Oftentimes, the insurance defendant lawyer is directly employed by the auto insurance company. In that situation the court, in its discretion, can allow an additional insurance question, but even the best Missouri injury lawyers must be very careful not go over the line or they may risk a mistrial. In Richter v. Kirkwood, 111 S.W.3d 504 (MO Ct App SD 2003) the trial court allowed the personal injury lawyer to ask the jury if any of them knew the defense lawyer or provided goods or services to his employer, Allstate Insurance. The case was appealed with one of the grounds for appeal was the trial court allowing this question. The Court of Appeals upheld the ruling that the question was proper, stating:

It was within the trial court's discretion to allow plaintiffs' attorney to show that defendant's attorney was an employee of Allstate to ascertain whether that circumstance would result in bias or prejudice on the part of prospective jurors.

4. Defense "Opens the Door" to the insurance issue:

The rules not allowing the Plaintiff to inject insurance coverage into the case does not stop the defense from being able to do it, however, they would never intentionally do it. So if the defense lawyer or one of his witnesses brings up auto insurance coverage, they effectively waived their objection to it and it is now admissible. If it is a simple slip up in testimony, the extent you can follow up on it will remain within the discretion of the trial judge.

But, if the defense argues to the jury about not burdening the defendant with a money judgment, that clearly opens the door for a good St Louis car accident lawyer to immediately follow up with the jury that there is no evidence that the defendant would have to personally pay any money judgment and that they have auto insurance to cover them. The defendant "opens the door" the the issue of insurance when they make an argument that can only be rebutted by the discussion of the insurance.

Continue reading "Missouri Auto Accident Claims - Getting the Issue of Auto Insurance in Front of a Jury " »

In 2006 a bicyclist in Kansas City, Missouri was injured in a Missouri bike accident when he was struck by a police car rushing to an alarm call without his lights or siren on. The injured cyclist's lawyer filed a bike accident lawsuit against the city and the police board as they were the employers of the police officer and the officer was within the scope and course of his employment, therefore, under Missouri law his employers are also liable for the injuries to the biker. At the trial court level the Judge dismissed the police board as defendants agreeing that the board was entitled to sovereign immunity under the public policy doctrine.

See Missouri Car Accident Article: "County Liable for Downed Stop Sign" Additionally, the sovereign immunity doctrine is waived by the negligent operation of a motor vehicle. See Missouri Statute Section 537.600.1(1) which waives that immunity for government entities as to:

"[i]njuries directly resulting from the negligent acts or omissions by public employees arising out of the operation of motor vehicles or motorized vehicles within the course of their employment.

So under the above statute it appears obvious that the Police Board is liable as government immunity is waived by statute in cases involving negligent operation of a car. However, the law also states that the individual police officer is immune from civil suit as the bike accident occurred while he was on duty and the public dutyt exception specifically states that a public officer is not civilly liable for the breach of a duty.

So the argument the police board made and the trial court agreed with was, if the individual officer cannot be sued and found individually liable, then the employer is not liable through respondent superior and thus the police board cannot be sued. As the Court stated it, the issue is:

"whether negligence for the purposes of triggering respondeat superior liability for a government entity under section 537.600.1(1) can be found when the public duty doctrine negates the ability to establish a public officer's negligence."

The Court of Appeals was able to overturn the trial court's dismissal of the Police Board in this case by relying on Southers v. City of Farmington, 263 S.W.3d (Mo Supreme Court 2008). In that case the Missouri Supreme Court held that:

"[g]overment employers cannot claim an extension of the protections of the public duty doctrine from their defendant employees in cases where the alleged negligence is a type covered by a waiver of immunity protections, such as the negligent operation of a motor vehicle." Id. at 613-14

The appeals court agreed that the holding above by the Supreme Court is absolutely applicable to the bike injury case at hand. The Court of appeals reversed the trial court's grant of summary judgement. See Benson v. Kansas City Board of Police Commissioners, No. WD 74283 (May 15, 2012).

Therefore, government entities cannot circumvent liability for bike accidents or other negligently caused injuries by hiding behind respondent superior theories and arguing that since the individual government employee is immune then they in turn should be immune as well. As the court stated, this would distort the intention and purpose of the sovereign immunity statute and lead to injustice for this Missouri bike accident victim and other victims of government entity negligence.

Related Blog Articles:

Head Injury Settlement against Public School protected by Sovereign Immunity

Government Entity Liability for Dangerous Conditions

St Louis Missouri Personal Injury Claims from Injuries that occurred on Federal Property

Continue reading "Missouri Cyclist Could Sue Police Board for Injuries from Bike Accident " »

The trend toward the use of social media has permeated every aspect of our lives. The legal system seems to be following this trend. Defense attorneys have been successful in presenting social media posts and pictures as evidence in personal injury cases. They are using social media as a source of discovery.

Insurance adjustors and defense attorneys regularly search through information on social media websites. They are hoping to find evidence that will go against the opposing party's claim of injury. Personal injury attorneys are currently advising their clients to cancel their social media accounts. Apparently, setting their social media posts to private is not enough to keep their privacy intact. In fact, if a personal injury client posts anything to do with an accident on a social media website, it can be treated as evidence in court.

In the Pennsylvania case of Zimmerman v. Weis Markets Inc., the judge ordered the plaintiff to provide the court with the login information for his social media account. The court reasoned that since the public portions of his Facebook and MySpace accounts showed evidence of his injury, a discovery of the remaining private postings were likely to contain similar information. The court made this decision because the man had profile pictures of himself on Facebook and MySpace. In one of the pictures, he is shown wearing shorts that happened to expose a scar from his accident.

In the New York case of Romano v. Steelcase Inc., a judge entitled defense attorneys access to the private MySpace and Facebook pages of a plaintiff who claimed to be confined to her home because of her injuries. The profile picture on one of her social media accounts depicted her standing outdoors. The court decided that because the public portions of her social networking accounts contained evidence that was contradictory to her claims, the private portions of her accounts would likely yield additional contradictory evidence. The profile picture could have been months or years before the accident. The defense pushed the idea that the woman maintained an active lifestyle, and she was not seriously injured.

Personal injury lawyers are concerned about the recent court rulings. Old pictures and statements can be misunderstood as current or relevant to a court case. Even if someone were to remove a picture from their social media account, it can still be used against them in court. Clients should understand that defense attorneys will stop at nothing in order to defeat personal injury claims. Even when the pictures fail to prove a claimant has been dishonest about their injuries, they can still be used in an attempt to mar their character.

Information from social media sites can cause juries to make value judgments on plaintiffs. For instance, a picture that shows a plaintiff drinking and partying is a common tactic to sway a jury. Once the jury sees the picture, they tend to award the plaintiff less money. Due to the public profiles of many of their clients, Los Angeles personal injury attorney's have long been cognizant of the risks of poor public exposure during trial. While this isn't news for any personal injury attorney, the proliferation of social media information has increased the risk of accidental self-incrimination (or apparent incrimination).

Although the law is still evolving in this area, making any public communication about health or injuries is a mistake when proceeding with a personal injury claim. The information gleaned from social media websites can cause substantial harm to a claimant's credibility; ultimately, it can cause them to lose their case. Until the laws surrounding personal injury and social media are clearly defined, victims of personal injury should remove their social media accounts before filing a claim for compensation.

Related Blog:

Social Media Can Play Important Role in Missouri Personal Injury Cases

In a previous Missouri injury law blog post I discussed that a witness' opinion that another witness or one of the parties to the lawsuit is telling the truth or lying is inadmissible in most situations. See: Witnesses Generally Cannot Testify that they Believe another Witness is Telling the Truth here.

When preparing a personal injury case for trial the insurance defense lawyers may try to establish a theme or red herring to witnesses suggesting that the injured Plaintiff is not really hurt but motivated by money, in other words, asking for an opinion that the injured client is not telling the truth to help their lawsuit. This situation also falls under the above premise that witnesses cannot comment on truth or veracity of other witnesses.

A Defense Doctor (or other witness) Cannot Imply a Plaintiff's Complaints of Injury is Greater because a Lawsuit is Pending

In Yingling v. Hartwig, 925 S.W.2d. 952 (Mo. App. 1996), comments by a defense doctor that "Patients who are involved in litigation tend to have their subjective complaints last considerably longer" than patients who are not in litigation. The court held that comment was improper as it was a comment or opinion as to the truth or veracity of the Plaintiff, that is an issue for the jury to decide, not fact witnesses. The testimony was a comment on a plaintiff's credibility; a statement that plaintiff's generally falsify their subjective complaints for the purpose of furthering their lawsuit and increasing their damages. Such a comment by an expert witness is inadmissible. State v. Taylor, 663 S.W.2d. 235, 239 (Mo.banc 1984) ("Expert opinion testimony is not admissible as it relates to credibility of witnesses."

Attacking Plaintiff for their use of the Legal System

Comments that the Plaintiff has used the legal system in an attempt to discredit them must be prevented. Questions about when the Plaintiff first consulted their Missouri personal injury lawyer is not allowed, because the questions were asked "to discredit plaintiffs as avaricious because they sought the services of a lawyer soon after their son's death." Carlyle v. Lai, 783 S.W.2d 925, 929 (Mo.App. W.D. 1989)("Accessing the legal system is normally not to be discouraged and, exercising one's right to utilize the legal system within established rules and procedures should normally not be used to attempt to discredit a litigant with a jury.") Also, comments on when the Plaintiff filed the lawsuit are improper, Edgell v. Leighty, 825 S.W.2d 325 (Mo.App. S.D. 1992)(Court properly excluded evidence concerning date injured motorist filed suit).

Conclusion on how to handle Criticism of the Plaintiff regarding their Truthfulness or Motivations:

Opposing counsel and their witnesses must be prevented from injecting improper issues of motivation of the Plaintiff for bringing a lawsuit. Defense counsel and their witnesses should not be allowed to argue to the jury that Plaintiffs are faking or exaggerating their injuries for purposes of litigation when there is no evidence that this is the case, apart from the speculative and inadmissible opinions of Defendant's hired expert.

Throughout litigation, discovery, depositions, motions, etc ... opposing lawyers will often make these types of accusations so you know they are coming. However, do not wait for it to be brought up at trial, experienced injury lawyers know to address this in pretrial motions with the judge asking for advanced rulings on these issues.

Accusations of lying for monetary gain is the red meat for the defense oriented jurors. If those arguments get in front of a jury through express opinions of witnesses or implied by defense lawyers in their comments that is ammo for defense oriented jurors to improperly convince or sway the other jurors that are following the law. These arguments are used all the time by local St Louis insurance defense attorneys, a good injury trial lawyer is on their toes and ready for these types of arguments and ready to counter them or prevent them before they get in front of a jury.

Ben Sansone is a Clayton based Injury Attorney for over ten years and has handled hundreds of personal injury cases to successful conclusions. If you need to speak with a lawyer call us today at (314) 863-0500 for a FREE and NO OBLIGATION Consultation.

In Missouri, injury claims, such as a car or truck accident, are valued by the amount of harms and losses suffered by the victim. There are two general types of harms and losses or "Damages" in personal injury cases; (1) Special damages or economic damages: which include specific amounts billed or out of pocket, such as past and future medical bills, past and future lost wages, damage to property. The second general type of damages is (2) Non economic damages or pain and suffering. In the past medical bills were determined by the amount billed, not the amount paid. So if the injured victim was charged $100,000 in medical care but their insurance paid $50,000, at trial the evidence would be $100,000, not $50,000.

Currently, the billed versus paid amount being submitted to a jury is controlled by the Missouri Supreme Court case of Deck v Teasley. See St Louis injury law article: "Under Missouri Personal Injury Law, Medical Damages are Amount BILLED to patient, NOT Amount PAID by Insurance; assuming proper evidence is established by Plaintiff" However, What if the medical bills are only partially paid and not satisfied in full by a lower amount paid by insurance, can the defense make a rebuttable presumption of reasonable value being the amount paid? As a practicing St Louis PI lawyer I think the answer is no.

An affidavit as to the amount partially paid with a balance owed should not invoke the rebuttable presumption of reasonable value created by Missouri Statute 490.715. As the statute specifically provides that " (2) In determining the value of the medical treatment rendered, there shall be a rebuttable presumption that the dollar amount necessary to satisfy the financial obligation to the health care provider represents the value of the medical treatment rendered. R.S.Mo. 490.715.5 (2) (emphasis added.) If the medical providers bills are not satisfied in full then the defendant should not be entitled to the statutorily created presumption. No provision of law, and certainly not R.S.Mo. 490.715, allows Defendant to urge that the partial payment of a medical bill which does not satisfy the balance owed is the reasonable value of medical services provided to Plaintiff.

The Deck case did not completely resolve the billed versus paid battle. This is currently still a tricky area of law and is handled differently by different judges. At trial many Judges are currently allowing the plaintiff to submit evidence of the total amount billed and allowing the defense to submit evidence of the amount paid. However, neither side is allowed to comment as to why the numbers are different. Neither side is allowed to mention insurance, neither medical insurance or auto insurance. So they issue of billed versus paid is still not completely settled, but good injury lawyers are making sure they submit the strongest evidence on behalf of their clients to at least get the amount billed in front of a jury whether it is submitted with the amount paid or hopefully, just by itself.

St Louis car accident attorney and personal injury lawyer Ben Sansone of the Sansone / Lauber law firm has been practicing injury law for over 10 years in the St Louis area and across Missouri and Illinois. Call (314) 863-0500 or contact an injury lawyer online for a free no obligation consultation today.

More and more often, personal injury cases are now involving my client's Facebook or other social networking accounts. Always assume, anything you put on your social networking account will be seen by the other side and can compromise your injury claim. Before the Internet, insurance companies, attorneys, law enforcement, collection agencies and other individuals responsible for investigating information had to work harder to verify statements from individuals. It was much harder to do many tasks that are taken for granted today such as case discovery, job hunting and so forth.

The rise of social networking websites such as MySpace, Facebook, LinkedIn and other online communities have encouraged people to post anything and everything about themselves. Friends and acquaintances are not the only people taking notice. It has also become a crucial tool used by insurance companies, and other organizations, to gather evidence and seemingly innocuous posts on popular websites can damage a personal injury claim.

Attorneys use social networking websites to verify what the opposing party is doing. If someone gets into an accident and claims to have an injury while submitting documentation that he or she cannot work, an investigator can easily go look up the person's Facebook page. If the person's Facebook page displays pictures of them dancing or rock-climbing or doing something that contradicts what was told to the insurance company, that person has just sabotaged their case.

Being tagged in a photograph by a friend who does not have privacy settings on a Facebook page can also spell trouble. If a supposedly injured person is seen doing something they claim not to be able to do, it can be used as evidence to deny a settlement offer or dismiss a court case seeking money for injuries. While this article should not be read as encouraging deception, injured parties should be aware that anything posted online is not 100% private.

Your Missouri personal injury attorney recommends taking down or deactivating all individual social networking pages while a claim is being pursued. If you're not prepared to take the big step of deactivating your accounts, there are other precautions that can be taken short of that.

1. Immediately make your profile "private," and set all privacy settings to the highest level.
2. Remember to not discuss your accident, injuries or treatment, including any prescribed medication, on ANY social networking sites.
3. Avoid discussing recent activities you've engaged in, physical exertion, abilities and limitations, or any other information that may bear on what you can and cannot do because of your injuries. It's important to avoid this even if you're not directly talking about activities related to your lawsuit.
4. Remove all photographs and videos of you taken since your injury, and refrain from posting until your claim has been resolved.
5. Be sure you know everyone who is your "friend." Do not accept friend requests from people you do not personally know.
6. Review your friend list and block anyone you are not 100% sure you trust. Opposing parties could pose as a friend or get information from others who are to gain access to potentially incriminating information that could negatively affect your lawsuit.

The most important point to remember about personal injury: social networking is used by everyone for a multitude of purposes and any competent St. Louis personal injury lawyer should alert their clients to this reality. Before considering whether to continue a social networking presence, a personal injury claimant should consult a skilled Missouri personal injury attorney who can provide specific guidance and instruct a client to act accordingly. If you need advice with your personal injury claim, contact Sansone / Lauber law firm today for a free initial consultation at 1-314-863-0500.

Source: "Social Networking Impacts Personal Injury Cases," by Ann Sheeley, published at PBN.com.

See Our Related Blog Posts:

St. Louis churchgoer sues over injuries from excess "spirit" - Act of God?

Role of Property Damage Pictures in Missouri Car Accident Injury Trials

In Missouri auto accident cases, it is typical practice for insurance defense lawyers to outright deny all liability, even when the insured driver being sued is clearly at fault. I see it all the time and am amazed, especially when the car accident was caused by a drunk driver. Fault is often admitted directly by the driver, or even when they plead guilty to DWI or failure to yield, reckless driving, failure to maintain safe distance, or other traffic ticket they plead guilty to. Fault has been admitted to through a plea of guilty to the traffic violation and the accident is clearly their fault. So in their deposition the defendant, a drunk driver in my example, will admit they pleaded guilty to the DWI charge to get probation (an admission of fault) and that the injured victim or other driver was not speeding and do not do anything improper.

So a trial tactic insurance lawyers like to take, after dragging an injured person through months or years of litigation, is to say to a jury, "we know it was our fault so go ahead and give them a little money and pay their medical bills, but do not give them as much money as they are asking for." This is an attempt to gain credibility with the jury and act like they want to do the right thing and pay for the damages their insured driver caused. I immediately respond to these appeals to the jury with a statement to the affect that the insurance company has the gall to admit they are at fault, yet refuse (until now) to pay the Plaintiff for their injuries and drag them through litigation and a car accident trial.

Additionally, attack them with their prior legal pleadings denying liability, showing that they now claim they want to do the right thing, but all along have been denying liability. This tactic will be objected to and fought by the insurance lawyer, however, Missouri case law supports the proposition that the victim's lawyer can make this argument, even if the pleadings were later amended.

When a defendant takes a position at trial that is inconsistent with a prior pleading, that pleading may be received in evidence. "Such admissions are not binding on the party but may be employed for impeachment and are to be weighed by the trier of fact in the same manner as any other admission. Hall v. Denver-Chicago International, Inc., 481 S.W.2d 622, 628 (Mo.App.1972). The basis for receiving in evidence the pleading admission, later abandoned, is its inconsistency with the position taken at trial. Howell v. Dowell, 419 S.W.2d 257, 260 (Mo.App.1967)."

Thus, given that a prior or superseded or abandoned pleading may be received in evidence because of inconsistency with a position taken at trial, as an admission against interest, and/or for impeachment purposes, Bank of America, N.A. v. Stevens, 83 S.W.3d 47, 56 (Mo.App. S.D. 2002), precluding its use in advance would be improper.

This along with may other trial tactics are very important, often it is not enough for a jury simply to agree with the injury victim that the other driver was negligent, a good trial lawyer shows the defendant's disregard and lack of caring for what they did, which should result in a better result for the injured victim of the car accident.

See related blog:

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

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)

Continue reading "Defendant's Denial of Liability can Come back to Haunt Them" »

It has long been the law in Missouri that witnesses cannot be impeached on collateral matters except certain criminal convictions. What does this mean in non-legal terms? Basically, during cross examination a lawyer cannot try to make you look dishonest by referring to a dishonest statement or act that has nothing to do with the case or facts at hand, unless it is a criminal conviction. Meaning, you cannot be impeached for an alleged lie or dishonest statement that would not otherwise be admissible, so of the impeachment evidence would not be admissible for any other reason, then it is not admissible for impeachment.

This changed in 2010 with a new Missouri Supreme Court ruling in the case of Mitchell v. Kardesch, 313 SW 3d 667 (MO 2010). This was a St Louis medical negligence case wherein the defendant doctor inaccurately stated (i.e. lied) in written discovery about his medical license being suspended. Typically, suspension of a medical license may not be admissible at a medical malpractice trial, however, the Plaintiff's lawyer attempted to impeached the defendant doctor during cross examination on the basis that he answered in written discovery that his license had not been suspended when it actually was. As expected, the trial court judge ruled that the Plaintiff's attorney would not bring this up in front of a jury as it was impeachment on a collateral matter.

It has long been the rule in Missouri that on cross-examination a witness may be asked any questions which tend to test his accuracy, veracity or credibility or to shake his credit by injuring his character. He may be compelled to answer any such question, however irrelevant it may be to the facts in issue, and however disgraceful the answer may be to himself, except where the answer might expose him to a criminal charge.

Common forms of Impeachment:

Evidence showing witnesses inability to perceive or memory. Think My Cousin Vinny scene where he impeached the witness with the thick glasses and challenges her ability to see clearly. Another Cousin Vinny example, the impeachment of the male witnesses based on his inability to perceive time, this was shown through his inconsistency with the time he testified to the events occuring and the time it took to cook his grits on the stove at the same time. Also, drug or alcohol use falls under this category as well.

Admission of Evidence of Prior Convictions. This is a common form of impeachment, in Missouri convictions are admissible to impeach the witnesses. As a practice tip, I typically reserve the prior convictions to crimes that go to honesty, such as theft or stealing; attacking a witness on any crime may garner sympathy from the jury as it may appear you are unfairly beating up on them.

Admission of evidence of the witness's bias, interest or prejudice. This is the situation of personal relationship with a party, financial interest, or evidence of acts or statements that tend to show bias toward one party or another.

Admission of Prior Inconsistent Statements. Pretty easy concept, witness previously testifies inconsistent with present testimony.

Admission of Evidence of Witnesses' Character for Truthfulness or Veracity. This is the more broad and vague basis that was expanded by the recent ruling on the Mitchell v. Kardesch case. This does not include general moral character, but evidence of the witnesses ability to tell the truth. The scope of the issues able to be brought up has been limited int he past by several cases including State v. Wolfe, 13 S.W.3d 248, 258 (Mo. banc 2000), stating:

"The impeaching testimony should be confined to the real and ultimate object of the inquiry, which is the reputation of the witness for truth and veracity. In other words, specific acts of misconduct, without proof of bias or relevance, are collateral, with no probative value."

Over the next several years we will see how this new case opens up the ability of lawyers to get into collateral issues on cross examination in the name of impeachment.

Injuries to cyclist happen all too often as a result of driver inattention. See Common Causes of Bike Accidents. Typically, the negligent driver will immediately claim they did not see the cyclist and claim that as their defense, basically shifting blame to a cyclist for not being seen by the driver, despite adequate lighting, visible clothing, and no violation of the law or negligence by the biker.

To be clear, negligence law in Missouri and just about every state in the US, requires unintentional breach of a duty, not intentional breach of a duty. Intentional breach of a duty, i.e. intentionally hitting a cyclist, is criminal assault and battery, and on the civil side is an intentional tort, such as assault, not negligence. Negligence is inadvertently or recklessly causing a collision. Examples of negligence: failing to hit your brakes in time and hitting the rear of another car, not seeing another cyclist or motorist and turning into their path of travel and casuing a collision, inadvertently cutting a cyclist off, inadvertently running a red light because you are looking at your cell phone, etc ... Therefore, the "I did not see them" defense and therefore "I did not do it on purpose" defense is not a defense at all.

I know this seems to be an obvious distinction, but in order to sway juries, defense lawyers try to mix up concepts of negligence and intentional acts as part of their defense, you cannot let that happen. Attempts to improperly influence the jury with the argument that because the bike injury or other accident was not caused by an intentional action, then the victim should not be compensated fully, because by fully compensating the victim you are somehow punishing the defendant who did not do anything on purpose.

Why is the negligence versus intentional act distinction important in bike injury and other personal injury cases?

This is a very important mindset you have to be prepared to deal with when going into a jury trial. During "voir dire", commonly know as jury selection, the victim's lawyer must discuss with the jury that the burden on the Plaintiff (victim) is to show negligence, not intentional conduct; but even more importantly, through jury selection and throughout the trial, the injury victim's lawyer must emphasize with the jury that the juries' job is to award money or compensate the Plaintiff for the harms and losses suffered, that is it! It is improper for them to consider impact on the defendant, their insurance company, or other factors, because once the jury determines the defendant was negligent then the only thing to consider is what amount of money will make up for the victim's harms and losses. The award of money damages is solely about past, present, and future harms and losses suffered by the victim. See Calculation of Damages in Injury Claims

See Also:

Bicycling.com article: The "Ignorance is Bliss" Defense

Continue reading "The "I did not see the cyclist" Defense and dealing with it at Trial" »

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.

A prerequisite to being able to successfully make a Missouri worker's compensation claim is that the injury occurred while at work and within the course and scope of your employment. Seems like a pretty easy thing to determine, right? A case was recently heard by the Missouri Supreme Court, Sandy Johme v. St. John's Mercy Healthcare, click here for the case summary, audio of hearing, and briefs filed.

This particular case was a St. Louis worker's compensation case that was disputed by the employer claiming the alleged work related personal injury as not within the course and scope of her employment and that is the specific issue the Supreme Court heard recently. The work comp injury case arose from an incident that happened during the claimant's work hours while she was making a pot of coffee at work and with equipment provided by her employer, as most of us would probably agree, a pot of coffee is pretty standard at most offices and work places. While making the coffee, the employee turned and stepped on the edge of her shoe, falling to the floor. To me, as a practicing St Louis work comp injury lawyer, the argument ends here, she was at work and injured herself, that is a work comp claim under Missouri law.

The employee filed a claim for worker's compensation. Initially the work comp administrative law judge ruled that the employee's injury did not arise from or within the scope of her employment with St. John's. Employee appealed by seeking a review hearing from the labor and industrial relations commission, which reversed the administrative law judge's finding and awarded worker's compensation benefits to to the employee. St. John's appealed and the case found its way to the Missouri Supreme Court.

Under Missouri statute 287.020.3 "Workers' Compensation Law" secitrions (2)(a)&(b) provides that an injury arises out of and in the course of the employment if:

(a) It is reasonable apparent, upon consideration of all the circumstances, that the accident is the prevailing factor in causing the injury;

and

(b) It does not come from a hazard or risk unrelated to the employment to which workers would have been equally exposed outside of and unrelated to the employment in normal nonemployment life.

Clearly under this definition the employee's injury in this case qualifies as a work comp injury and thus allowing a successful claim. The Missouri Association of Trial Attorney's (MATA) filed an amicus brief (friend of the court) - click here for the full MATA brief, very well written and discusses the law applicable to this case and topic. Additionally, they end the brief with the public policy argument:

"To exclude injuries such as in Johme, Pile and Whiteley would be to create a debate from thin air that was not intended or created by the 2005 amendments, causing vast uncertainty as to when an injury does or does not arise out of and in the course and scope of employment, to the detriment of millions of employers and employees alike. The Court is not being asked to read into or exclude additional meaning into the text of the 36statute, only to determine if certain classes of activities at work still fit within the protections of workers' compensation, as has long been expressed by the same exact plain language we have today as we have had in Missouri for generations."

We will keep and eye on the court's ruling and update this article at that time. This is a very important case, additionally, the Supreme Court should be issuing a ruling late this winter or this spring regarding the constitutionality of Missouri's medical malpractice damage caps. See St Louis Injury Law Article re: Damage Caps Heard by Supreme Court.

Continue reading "Supreme Court to Decide, what is Within the Scope of Employment under Missouri Workers' Compensation" »