Missouri Injury Law Blog

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.

Continue reading "Use of Multiple Medical Experts on Same Topic, Should be Excluded as Cumulative " »

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.

Continue reading "Cost of Collecting Medical Records in Missouri, Capped at $25 for Electronic Records " »

As discussed in a previous St Louis bike accident lawyer article: "Avoiding Bike Injuries & Legal Liability at Intersections: Right of Way at Unmarked Intersections", bicycle accidents and injuries often occur at unmarked intersections. Bike accidents often occur at intersections controlled by electric signals as well. Having been a St Louis bike accident attorney now for about 10 years, I almost have never seen a situation where a cyclist blatantly ran a red light and caused a collision. Typically they have already entered the intersection and the drivers are anxious to go and do not see them.

Now some new laws give a much needed affirmative defense to cyclists accused of running red lights. But I caution my cycling friends, be careful at these intersections and use this privilege cautiously. Motorcyclists, bicyclists, and anyone operating a vehicle with 2 wheels, may have experienced the everlasting red light. That is because many electric signals in St Louis and throughout Missouri and Illinois are set off by pressure sensors, thereby allowing the light to remain green on the heavier traveled road until a vehicle approaches on the intersecting road and triggers the pressure sensor, changing the light from red to green. These pressure sensors often cannot be tripped by a motorcycle and almost never by a bicycle.

So is a bicycle rider doomed to sit at a red light until a car come up and trips the sensor? Until 2009, In Missouri at least, the answer was yes. There was no legal defense for a cyclist to run a red light, even if there is absolutely no traffic around and they have sat at a red light that was not going to change. In 2009, Missouri Bicycle Law was changed by Missouri Statute 304.285, "Red light violations by motorcycles or bicycles, affirmative defense, when", which states:

"304.285. Any person operating a motorcycle or bicycle who violates the provisions of section 304.281 or section 304.301 by entering or crossing an intersection controlled by a traffic control signal against a red light shall have an affirmative defense to that charge if the person establishes all of the following conditions:

(1) The motorcycle or bicycle has been brought to a complete stop;

(2) The traffic control signal continues to show a red light for an unreasonable time;

(3) The traffic control is apparently malfunctioning or, if programmed or engineered to change to a green light only after detecting the approach of a motor vehicle, the signal has apparently failed to detect the arrival of the motorcycle; and

(4) No motor vehicle or person is approaching on the street or highway to be crossed or entered or is so far away from the intersection that it does not constitute an immediate hazard."

As a St Louis bike injury lawyer, I believe this a fair law. The only part left for interpretation is what is considered an "unreasonable time"? I believe one could successfully argue to a Judge or jury that a unreasonable amount of time is once you realize the light is not going to cycle and there is no traffic in sight.

Another state, Illinois, is currently proposing a new law that would also allow cyclists (motorcycle, bicycle, scooter) the option of riding through a red light after waiting a reasonable time for the light to change.

Continue reading "Missouri Bicycling Law, Biker (Bike and Motorcycle) can go through Red Light Under Cirtain Circumstances, Illinois May Adopt Similar Bike Law. " »

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Not only am I a bike accident injury lawyer, but I have also spent hundreds of hours and thousands of miles on a bicycle around the St Louis area. I have clients that come to me after being hit by a car while on a bike and I have friends and people I ride with who tell me stories about close calls and some about being hit by cars as well. There are a few common ways drivers hit cyclists unintentionally; see St Louis Injury Attorney Article: Common Causes of Bike Accidents and How to Avoid Them.

Right-of-way at intersections is commonly misunderstood and one of the legal issues of who is at fault when dealing with bicycle accident cases. More accidents occur at intersections not monitored by traffic signals. Keenly aware that most of us snoozed during our driver's education class, here is a refresher course on proper intersection protocol. When two or more vehicles (bicycles included) arrive at an intersection at the same time and there is neither person nor sign in place to indicate whose turn it is to go; the person to the right always has the right of way. When two or more vehicles arrive at an intersection at separate occasions, whoever gets there first gets to go first.

Bicycle accidents involving intersections represent a small majority of personal injury lawsuits. But when they do arise, several of the same defenses are used: cyclist failure to yield, unable to see cyclist because of too dark of clothing, disregard of right-of-ways, speeding through intersections, rolling stops, and riding in the wrong lane or wrong part of the lane. All of these things create comparative negligence or full negligence on behalf of the cyclist. Thus properly yielding at intersections is required not only to hopefully avoid injury, but also to have a strong case against a negligent driver in case you are injured in a bike crash.

Do not give the negligent driver's defense team any excuse to blame you for the accident. Cyclists have enough trouble with juries as most people on a jury drive cars and a few ride bicycles. And as most cyclists know, drivers are sometimes reckless or hostile towards a cyclists right to use a road, those jurors are no different and there cannot be any accusation that the cyclist ran a stop sign or did not follow the rules of the road that drivers of cars are required to follow. I have personally seen it at a trial, one time I even had the reporting officer throw in a comment about cyclists causing problems by not obeying the rules of the road or wearing bright clothing. Under Missouri law, this was an improper comment and the trial judge properly struck the comment from the record and advised the jury to disregard the comment, however, you cannot unring the bell.

Continue reading "Avoiding Bike Injuries & Legal Liability at Intersections: Right of Way at Unmarked Intersections " »

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

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

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

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

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

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

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