Missouri Injury Law Blog

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" »

It has been a long held principal under Missouri evidence law that in trial a personal injury lawyer, generally, cannot tell a jury through testimony or argument, that the defendant has auto, homeowners, or other insurance coverage to pay any judgement or verdict the jury may award. This is often referred to as "collateral source rule", however, the collateral source rule can apply to other situations as well.

In fact, in "voire dire" or jury selection, the defendant does not even want to mention the word insurance, but the personal injury plaintiff's lawyer wants to talk about insurance as much as possible. Why? because if the jury knows there is insurance to cover a judgment they are likely to be more generous with their verdict. Jurors will sometimes give an inadequate verdict because they feel sorry for or do not want to saddle the defendant with a money judgement, and knowledge of insurance coverage alleviates that situation.

There are several ways for the Plaintiff to get the issue of insurance into the case (assuming the defendant is not an insurance company themselves).

1. The Insurance Question during Voire Dire:

Prior to jury selection and typically during pretrial, the Plaintiff's injury attorney should ask the court for permission to ask the jury one question about insurance and the general form of that question must be approved along with agreement that it cannot be used first or last and emphasis over other questions cannot be placed upon the insurance question. Typically, the question is phrased as"Does anyone on this jury panel work for or have an interest in __________ Insurance Company?" See, Ivy v. Hawk, 878 S.W.2d 442 (Mo.banc 1994), when the Missouri Supreme Court held it permissible for a plaintiff to ask if any potential jurors have an interest in a particular insurance company, as it "preserves the balance of permitting the plaintiffs to know if any members of the jury panel have an interest in the insurance company while avoiding the prejudice of emphasizing the issue of insurance."  Such a practice of allowing one "insurance question" protects the right of both parties to a fair and impartial jury.  Moore v. Middlewest Freightways, 266 S.W.2d 578, 586 (Mo.1954).

Then if someone has some interest in that particular insurance company the lawyer must be very careful as how to proceed and not improperly inject the issue of insurance into the case, or else risk a mistrial or a plaintiff's verdict being overruled. Typically, ask what interest the person has, and if it is that they are a policy holder, leave it at that. However, if it is more than that, such as they are an employee or a contractor for that particular insurance company, it is generally wise to call the jury member to the bench for further questioning outside the rest of the jury.

2.The Defendant Opens the Door:

On the flip side, the defendant or their lawyer cannot argue or imply to the jury that the defendant will be saddled with the judgment or have to pay out of their own pocket for the judgment, such an argument is great for Plaintiffs, because it opens the door for us to inject insurance into the case. Respond with argument to the jury that their is no evidence that the defendant will be personally responsible for any judgment and even if they were, for the jury to properly follow the law they must only consider what amount of money compensates the Plaintiff, not what would harm the defendant, unless punitive damages are an issue.

In the case of Ballinger v. Gascosage Electric Cooperative, 788 S.W.2d 506 (Mo. banc 1990). this issue was addressed directly by the appellate court. At the trial court level, the defense insinuated the defendant would have to personally pay any injury verdict, the very good personal injury attorney in that case responded as follows:

"That is just exactly the point I'm making. Mr. Oliver also said you will determine how much will be paid by the Defendants, and that is not true. There is no evidence in this case that the Defendants will have to pay one penny of any judgment entered. It's not for you to determine. (Emphasis supplied)."

The appellate court upheld the trial court allowing the above argument by stating in their opinion "The plaintiff may have skated close to the edge, but we conclude that there was no abuse of discretion." Meaning the trial court acted properly.

3. Other Situations:

Insurance clearly comes up in Missouri Uninsured Motorist lawsuits and Under-insured Motorist cases as the defendant is the insurance company themselves. Additionally, issues of insurance sometimes can be brought up, if more probative than prejudicial, during witness examination if they have relevant insurance background. Sometimes in medical malpractice cases malpractice insurance coverage of the expert being the same of the defendant doctor can be relevant. There are many other reasons, but generally, insurance stays out.

Continue reading "Missouri Evidence: Insurance Coverage Excluded From Jury as Collateral Source - Exceptions to the Rule" »

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" »

Medical malpractice claims are very complex and adversarial, and in that environment every edge counts. In reviewing cases with doctors to act as your expert, they sometimes have preliminary reports in the form of an email based on their initial understanding of part of the medical record. This is done in preparation for filing a lawsuit or for trial and should be kept between the attorney and expert. In a perfect world the expert will call the Plaintiff's lawyer to discuss his opinions, but with the convenience of email that is not always the case.

A preliminary report by an expert containing mental impressions based on initial review of case should be protected under Rule 56.01(b)(3) as Trial preparation materials. Rule 56.01(b)(3) states that a

"party may obtain discovery of documents and tangible things otherwise discoverable under Rule 56.01(b)(1) and prepared in anticipation of litigation or for trial by or for another party or by or for that other party's representative, including an attorney, consultant, [...] only upon a showing that the party seeking discovery has substantial need of the materials in the preparation of the case and that the adverse party is unable without undue hardship to obtain the substantial equivalent of the materials by other means."

The work product doctrine in Missouri protects from discovery both tangible and intangible work product. Ratcliff v. Sprint Mo., Inc., 261 S.W.3d 534, 547 (Mo.App. W.D.2008). Tangible work product consists of documents and materials prepared for trial and is given a qualified protection under Rule 56.01(b)(3). Therefore a preliminary report sent to counsel by their expert is protected from discovery as trial preparation materials if the preliminary report is: (1) documents or tangible things, (2) prepared by or for a party or a representative of that party, (3) in anticipation of litigation or for trial. State ex rel. Ford Motor Co. v. Westbrooke, 151 S.W.3d 364, 367 (Mo. banc 2004)

Such trial preparation materials may be discovered only if the party seeking discovery shows a substantial need for them in the preparation of the case and an inability to obtain the substantial equivalent of them without undue hardship. Rule 56.01(b)(3).See Edwards v. Mo. State Bd. of Chiropractic Examiners, 85 S.W.3d 10, 26 (Mo.App. W.D.2002).

Moreover, Rule 56.01(b)(3) requires that in ordering discovery of such materials stated above, when the required showing has been made, "the court shall protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of an attorney or other representative [expert witness] of a party concerning the litigation." Therefore, even if the party seeking the report show the substantial need and undue hardship, the preliminary report contains nothing but the Relator's expert's mental impressions, conclusions, and opinions and thus must be protected in its entirety. In this case the Court ordered the entire report produced.

Additionally, Missouri Rule 57.03 does not authorize the noticing party or require the witness to produce documents simply because they are requested. Under Rule 57.03, any Notice of Deposition requesting production of documents must be accompanied by a subpoena. State ex rel. Missouri Highway and Transportation Commission v Anderson, 759 SW2d 102 (Mo App S.D. 1988) holding, In connection with and experts deposition, a party may obtain the expert's records relating to the case by serving a subpoena duces tecum. Id at 106.

Continue reading "Disclosure of Expert Witness' Preliminary Report in Missouri Personal Injury Actions" »

St Louis injury lawyers who routinely deal with medical malpractice cases know that medical negligence cases are not only complex and expensive, but highly adversarial. It is often the approach of medical malpractice insurance companies and their lawyers to fight them with little to no negotiation and vigorous defense.

A common defense tactic in big medical malpractice cases is to name multiple doctors to testify on the same subject as an expert. Why do this? Two reasons, one, if one doctor testifies bad in a deposition then the defense will dis-endorse that doctor and stick with the other doctor. This tactic was used in our Medical malpractice case with spinal cord injury. Second reason, under Missouri Rules the Plaintiff has to pay the defense doctors for their time, that amount is usually $400-$700 per hour or even more. Thus it puts financial strain on the opposing party to force them to spend more money and put more risk on the table. Additionally, lawyers in the medical malpractice profession all know that is is difficult to get a doctor to testify against another doctor, but easy to find doctors lining up to defense other doctors.

How to counteract this tactic? Simple, first, if one of the experts does poorly in their deposition make sure that you videotaped it, then endorse that expert as one of your own and play the good parts of the deposition at trial.

Second, file a motion for protective order limiting the defense to only one medical expert on particular issue. This motion should almost always be granted in one form or the other. Usually the Judge limits them to one expert and they have to choose, or some judges will allow the duplicate experts to remain but require the defense to pay the expenses associated with the second deposition and then force them to choose one or other other expert for trial.

Missouri Rule 56.01(c) states:

"Upon motion by a party or by the person from whom discovery is sought, and for good cause shown, the court may make any order which justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense..."

Defendant's endorsement of two similar experts who will testify to the same thing is duplicative and cumulative. Plaintiff will be caused to incur undue burden and expense in deposing both witnesses, and will suffer prejudice.

It is proper to exclude cumulative evidence. Payne v. Cornhusker Motor Lines, Inc., 177 S.W.3d 820, 840 (Mo.App. E.D. 2005).

Relevancy is the key criterion for admission of evidence, and the court must find evidence both logically and legally relevant in order to admit it. Olinger v. General Heating & Cooling Co., 896 S.W.2d 43, 48 (Mo.App. W.D.1994). "Evidence is 'logically relevant' if such evidence tends to make the existence of any material fact more or less probable than it would be without the evidence." State v. Sladek, 835 S.W.2d 308, 314 (Mo. banc 1992) (Thomas, J., concurring). But the inquiry does not end with logical relevance. Evidence must also be legally relevant to be admitted. Id. To determine legal relevance, the court must weigh the probative value, or usefulness, of the evidence against its costs, specifically the dangers of unfair prejudice, confusion of the issues, undue delay, misleading the jury, waste of time, or needless presentation of cumulative evidence. Id. The trial court must measure the usefulness of the evidence against its cost, and if the cost outweighs the usefulness, then the evidence is not legally relevant, and the court should exclude it.

Kroeger-Eberhart v. Eberhart, 254 S.W.3d 38, 43 (Mo.App. E.D. 2007).

Another example is Grab ex rel. Grab v. Dillon, 103 S.W.3d 228, (Mo.App. E.D. 2003), in which the plaintiff in a medical malpractice action sought to introduce a conclusion from a pathologist, which "came to the same conclusion as five other pathologists who reviewed the slides." The trial court excluded the pathologist's opinion because "[i]t is typically considered proper to exclude cumulative evidence." The appellate court affirmed the exclusion of the pathologist's opinion.

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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? " »

Our St Louis injury law firm keeps most files in secured electronic format, greatly reducing our reliance on paper files which also makes accessing, storing, and producing files much more efficient and effective. Personal injury attorneys deal with a lot of medical records, particularly in medical malpractice and wrongful death cases. About seven years ago our law firm began digitizing most files and medical records. Then a few years ago many services popped up that provide electronic medical records to us for our clients, as more and more doctors and hospitals began keeping their records in digital format.

Depending on the case, but some personal injury cases involve boxes and boxes of medical records and those costs add up, but the Missouri legislature recently amended the statue regarding medical record retrieval costs. Until now, all records were subject to a $17.05 processing fee plus $.40 cents per page, no matter if the medical records were actually copied or just emailed in electronic format. So the law was forcing lawyers to pay medical providers $.40 per page for records that are simply emailed from a file. That can really add up, especially if the records are from a hospital stay which includes patient registration, nurse assessment, charts, monitoring records, notes, consults, etc ... a hospital stay can quickly turn into hundreds of pages of medical records.

Now there is another reason to get and keep medical records in electronic format, Missouri's legislature has amended Missouri Statute 191.227 with Senate Bill 62 stating the charge cannot exceed $25 no matter how many pages are in our injured client's chart:

"If the health care provider stores records in an electronic or digital format, and provides the requested records and affidavit, if requested, in an electronic or digital format, not more than five dollars plus fifty cents per page or twenty-five dollars total, whichever is less" Senate Bill 62

Therefore, electronic records now cost no more than $25 no matter how many pages are part of that particular record. Under the old law 1000 pages would cost around $420.00, even if provided in simple electronic format and not physically copied, now that same request is $25.00 ONLY if requested electronically. Costs of medical records are costs most personal injury lawyers in Missouri deduct from the final recovery as costs of the case, now this new law passes savings onto injury victims, assuming your injury lawyer can get away from the traditional paper records.

The costs savings is just one of many reasons to go digital with medical records. Personally, I have all my injury case files in electronic format, which allows me to highlight and bookmark pages electronically and quickly jump to them at a moments notice in a deposition or in the heat of trial without fumbling through stacks of paper. Makes it easier to send documents for injury clients to review or to send the documents to opposing counsel by email saving time, money, and trees.

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