I’m getting another case ready for trial where I have to explain honest and consistent statements given in good faith to the insurance company that their lawyer is not trying to take completely out of context to make them stand for something very different than I originally contemplated.
The answer, as always, is don’t give a recorded statement to the at-fault carrier. This rule should be followed in 98% of the cases I have prepared where a statement was given.
The insurance companies lure you in with the idea that “C’mon, you are a honest person. Can you just tell us what happened so we can help you?” It is a hard proposition to turn down. But, ultimately, if you are 100% honest you are still going to get a raw deal at trial because the insurance company is going to take those statements completely out of context, just like they do with you deposition testimony. (And, let’s be honest, we do it to defendants, too.)
The answer is avoid a recorded statement absent a law or other compelling reason.
The National Highway Traffic Safety Administration published a study this week, showing that three separate devices designed specifically to alert drivers when infants and children are left alone in a car do not work properly. Part of a campaign to raise awareness and prevent heatstroke, the study results say that these devices are unreliable when used on their own.
According to the San Francisco State University Department of Geosciences, in 2012, 15 children and infants have died from hyperthermia from being left alone in a vehicle. Since 1998, almost 550 children have died, half of them under the age of two years old. These tragic deaths are unnecessary and several companies released products that are supposed to alert the driver if he or she walks away from the vehicle without extracting the child.
Three of those devices were tested by researchers at the Children’s Hospital of Philadelphia. They tested the ChildMinder Smart Clip System, the ChildMinder Smart Pad, and the Suddenly Safe Pressure Pad. The main problem they discovered was that carseats with lots of padding made it hard for the sensor to work properly.
Another problem was when the clip system would beep or malfunction, users frequently turned it off, which makes it useless. In sum, the whole thing is a mess that does not work. Nice idea, thought.
By the way, I have been out of the blogging business and we made some structural changes to our blog. They are fixed and I am back!
One thing I have been trying to do with our blogs is to give our readers an opportunity to hear from other lawyers. Today, I have another guest post from Anthony Castelli, a personal injury lawyer in Cincinnati, Ohio. You can learn more about Tony’s practice here.
Tony is writing about a topic that is both near and far from my heart: jury selection. I say near to my heart because it is so incredibly important. Sadly, we probably have the most most restrictive voir dire in the country. That may change soon. But I doubt it.
Tony also has some interesting commentary about trying to use the suggestions of other lawyers and trial consultations, most notably David Ball whose work we have written about a great deal.
With that introduction…
I have selected many juries in personal injury cases, primarily in Hamilton County, Ohio where my practice is based. As I understand is the case in Maryland, Ohio also has an unlimited number of challenges for cause. One example of a challenge for cause would be a juror is related to one of the parties. Another example is the juror admits they cannot be fair to your client. It’s not easy to elicit that from a juror, but if you can get the Judge to dismiss a potential juror for cause, that saves you from using a peremptory challenge. A peremptory challenge is a challenge that needs no reason behind it. You do not even express the reason to the Court. In Ohio you get three challenges for cause. You do not have to use any of them if you do not want to.
The Purpose of Jury Selection
My purpose in selecting a jury is to get the most favorable jury for my client. I have found there are some essential issues that I have to develop with each juror so I can make an informed guess as to whether they will be receptive to my client and have a willingness to award a significant some of money. Every personal injury trial has that issue. How much is the injury worth.
Open ended Questions
The best way to do explore money with a juror is to ask open ended questions so you can get to know how jurors feel about awarding money damages. The question simply is, “How to you feel about awarding money damages for pain and suffering and the loss of the ability to do those things that gave your life value.” I then add, “Some people think you should offer up your suffering and that is how my grandmother felt. You should not seek money for pain and suffering. How do you feel about that Mr. Juror?
Tort Reform and the McDonald’s case
Everybody thinks there are too many lawyers and too many lawsuits. Lawyers are aware that insurance companies have poisoned the pool. The McDonald’s case, known as the hot coffee case. Most people think it’s crazy to sue for spilling coffee on yourself. Framed that way, it is crazy. Some lawyers try to explain the case by putting it in context. But I use it as an example of a frivolous lawsuit. And immediately look the jury dead in the eye and tell them my client’s case is not one of those cases.
Sympathy for the Defendant and the Inability to Mention Insurance
If you are lucky some jurors will tell you that they cannot award a substantial verdict unless they know the defendant has insurance to pay it. Like Maryland, you can not bring up insurance in Ohio other than to ask, “Has anyone ever worked for a casualty insurance company?” I broach the subject by asking, “Does anyone need evidence of the source of the payment before they can award a large verdict?” I’ve had jurors tell me they could not award a large amount unless they knew how it was going to be paid. That’s where you give the judge the opportunity to tell them that should not be a consideration, and no evidence will be submitted on that issue.
Telling the Jury the Amount You are Seeking in Damages
I think you need to tell the jury the amount you are asking for. And then follow up with, “If the evidence is such that it is a fair number would you hesitate to make an award just because of the size of the number.” I think you need to know who balks. In one wrongful death case I tried, one of the jurors said that the amount was not enough. Needless to say the defendant got rid of that juror.
A Defense Dirty Trick
Cagey veteran defense counsel will tell the jury this case is only between Mr. Plaintiff and Mr.Defendant. No one else is involved. They are telling the jury in so many words that there is no insurance. This is totally improper and should be met with an objection. You should ask the judge to give a cautionary instruction that it is not a correct statement. In Ohio, this can be reversible error.
Remember always be yourself. I retried a mistrial . In between the first and second trial I read David Ball’s book on jury selection. I tried to use his ideas in the second trial during jury selection. Afterwards the bailiff came up to me and asked what was wrong. At he first trial I was comfortable and had a great rapport with the jury. In the second jury selection I was stiff and stilted and unsure of myself. So develop your own style.
I read an interesting article in the European Spine Journal titled “The association between a lifetime history of a neck injury in a motor vehicle collision and future neck pain: a population-based cohort study.”
Yes, that’s a big title. But the study looked at an incredibly simple issue: are neck injuries in car accident a harbinger of neck pain later in life after the injury has resolved. So the study looked at the association between a lifetime history of neck injury from a motor vehicle collision and the development of troublesome neck pain.
The answer was what plaintiffs’ car accident lawyers were sure to tell you would be the case: patients with a history of neck injury in a traffic collision are more likely to experience future neck pain.
This is a good study. It took 919 randomly sampled Saskatchewan adults with no or mild neck pain in September 1995. At baseline, participants were asked if they ever injured their neck in a car, truck or motorcycle accident. Six months and a year later, they looked into the whether the patient had meaningful neck pain on a chronic pain grade questionnaire.
The researchers found a positive association between a history of neck injury in car crashes and the onset neck pain The conclusion is that patients history of neck injury in car accidents are at greater risk for developing neck pain in the future.
This is a study worth sending to your experts in some cases to strengthen permanency opinions.
The Problem with Trampolines
The American Academy of Pediatrics (AAP) has firmly stated its opinion: “[t]he trampoline should never be used in home environments or in school physical education classes or outdoor settings or recreational settings.” Yet, in massive numbers, no one follows this advice. Injuries can still occur despite padding and netting.
- There are over 90,000 trampoline injuries/deaths in the U.S. every year
- Children ages 6 to 14 comprise one-third of trampoline-related injuries
- There are over 1 million trampolines sold every year
Two-thirds of trampoline injuries are caused while on the trampoline, while only one-third of trampoline injuries occur because of falling off. Users can be injured when they collide into each other, land improperly, fall or jump off, and hit the frame or springs.
Though most injuries caused by trampoline use, misuse, or defects are obvious, we frequently see the following:
- Spinal injuries
Trampoline Injury Lawsuits: Negligence
Trampoline lawsuits can be difficult for one significant reason—many insurance companies that offer homeowner’s insurance provide specific exclusion for trampoline-related injuries. The insurance companies, being in the business of risk, have calculated that it is too expensive for them to provide that insurance, especially in light of the number of injuries, and the severity of injuries.
There are several circumstances where a negligence-related trampoline lawsuit can be filed. Some common situations include:
- Negligent supervision-personal: parents or adults who provide a trampoline for use of children without properly enforcing safety rules.
- Negligent supervision-corporate: As trampolines become more popular, they are being incorporated into business attractions, like trampoline basketball and moonbounce facilities. Those businesses must have proper rules and supervision to prevent injury.
- Attractive nuisance: like swimming pools, trampolines are interesting to young children. In some states (though, not in Maryland), the failure to properly store or lock up a trampoline can be negligence when a neighboring child gains access to it and suffers injury.
- Negligence: A large number of trampoline accidents happen when more than one person is on the trampoline, or when an adult uses a trampoline with a child. If the second person on the trampoline or the adult fails to use reasonable care, he or she may be negligent.
Trampoline Injury Lawsuits: Product Liability
Trampoline manufacturers are well aware of the dangers of trampolines. In light of continuing research and evidence of injuries, trampoline manufacturers have a duty to use reasonable care in the design and manufacture of these products. There are several standards (including ASTM) that can be used to prove negligent design and warning regarding trampolines, including:
- Padding should cover the springs, frame and hooks
- Warnings should alert users about the dangers of simultaneous jumping and somersaults, which can cause serious injuries, paralysis and death
- Labels should state that trampolines over 20 inches high are not recommended for children under age 6
Trampoline defect cases are less common than negligence cases, but can be maintained in some circumstances.
If you have been seriously injured in a trampoline accident, contact our lawyers at 1.800.553.8082. We have a proven track record of satisfied clients, and can help you determine whether you have a trampoline lawsuit.
This is a guest post by Anthony Castelli, a car accident personal injury lawyer in Cincinnati, Ohio.
A car accident attorney’s primary job is to put as much money as they can in their client’s pocket. It does not benefit the client that has serious injuries and damages to get a large settlement, but after the attorney’s fee, expenses of preparing the case, and payment of medical bills and subrogation claims, there is little left for the client.
The old adage “it takes money to make money is also true.” The good personal injury lawyers know that in most cases they will need to pay a doctor for a comprehensive report detailing the nature and extent of the car accident victim’s injuries, how those injuries will affect the client in the future and the cause of the injuries. This helps drive the car accident settlement amount up, in some cases substantially.
So the answer to putting more money in the client’s pocket is not spending less money on preparing the case. Of course, it is helpful to spend the money wisely. But it will be necessary to spend money on certain things, such as the doctor’s report and obtaining all the medical evidence. Some attorneys will not advance the expenses. They expect the car accident victim to front the expenses.
It is normally my practice to advance the expenses of preparing the personal injury case. The client then pays the expenses back out of the settlement. Most of the good auto injury lawyers handle cases this way. Otherwise the case would come to a stand still or settle cheaply, as most seriously injured people do not have the money to finance their insurance settlement.
In the first paragraph of this article I used the word “subrogation.” Normally, your medical insurance has a clause in the contract that requires injury victims to pay the medical insurer back if the car accident victim gets compensation from a third party. This is what subrogation means. This is where a smart car accident lawyer will work to put more money in your pocket. They will attempt to negotiate with your medical insurer to take back less than what they actually paid.
The auto injury attorney’s first step should be to get the language of the insurance policy. In some cases the insurance company fails to put the appropriate language in the policy to allow them to recover what they paid. Even if they have the correct language there are still arguments to be made such as unjust enrichment, failure to be made whole, and other equitable arguments.
You retain the most leverage by getting the best offer from the liability carrier and then negotiating with the medical carrier to reduce their payback. If you settle and then try to negotiate you have lost one of your big bargaining chips. That chip is to tell the medical carrier that your client is interested in the net in their pocket. If the medical insurer does not give some reduction your client may want to file suit. Then the medical insurer will have to hire a lawyer to collect and their net in their pocket will be less.
I remember learning about spoliation in law school. I never imagined how frequently these issue would affect my law practice. Particularly in truck accident case where defendants seem to lose everything imaginable. Spoliation, for non lawyers and new lawyers, is when the defendant purposefully or stupidly destroys evidence that it knows or should know would be relevant evidence at trial. Under Maryland law, there are many means to deter, penalize, and ameliorate the prejudicial effects of spoliation. The most common weapons, evidence sanctions, and/or corrective jury instructions, are available to Maryland trial judges as remedies to deal with acts of spoliation. These judges have wide discretion to deal with these parties that destroy evidence.
In a bizarre story this morning, U.S. Secretary of Commerce John Bryson was charge with felony hit-and-run. Police say Bryson caused two car accidents within minutes of one another in southern California.
If you have a pulse, you first thought was that he was drunk out of him mind. But the preliminary reports show that alcohol was not involved. Let’s put his together. He causes two accidents. No alcohol. They find him essentially in a third accident because he was found unconscious. My prediction is that the man was either on drugs or, more likely, suffered some sort of seizure.
Let’s wait and see how it plays out. But my prediction is that this is not a bad guy, hit and run case but something very different.
You can find the CNN story here.
In our practice handling serious car accident cases, we regularly spar with insurance companies over the conditions for “independent” medical exams where an insurance company hires a doctor – usually a doctor they have paid hundreds of thousands of dollars to over the years – to testify for them. Some of these doctors take incredibly bizarre and illogical paths to concluding that the plaintiff was not really hurt or, if the injuries are extreme, that the plaintiff has made a full recovery or that the injuries were not caused by the accident. If you are a lawyer regularly handling serious car accident cases, you know what I’m talking about. If you are not, please trust me: this is a ridiculous racket that gives justice a black eye.
It looks like the insurance companies in Maryland workers’ compensation cases want to end run any battles over anything and everything related to independent medical exams. They have proposed a new Code of Maryland Regulation (COMAR), regulation 14.09.01.20, that would pretty much give defense lawyers carte blanche to both schedule and compel plaintiffs claimants IMEs at will with potential stiff penalties for the failure to appear.
Take a look at these regulations. They begin with an insult. “Either party may schedule an independent medical examination.” Gee, thanks for the equanimity but when does the plaintiff schedule an IME in a workers’ compensation case?
It goes on from there. The regulations are vague, which I think is deliberate. It does not detail with any specificity what is required of the injured worker when attending the “independent” medical examination and it imposes draconian penalties for missed IMEs, without setting for what would constitute good cause. In short, this proposed regulation is a train wreck.
Do you agree? Comments may be sent to Amy S. Lackington, Administrator, Workers’ Compensation Commission, 10 E. Baltimore Street, Baltimore, MD 21202, or call 410-864-5300, or email to firstname.lastname@example.org , or fax to 410-864-5301. Comments will be accepted through June 4, 2012. Final action on the proposal will be considered by the Workers’ Compensation Commission during a public meeting to be held on June 28, 2012, at 10 E. Baltimore Street office.
Our firm rarely handles workers’ compensation cases. We handle them usually as a courtesy for our third party injury cases. But I think this regulation impacts our car and truck accident practice because it puts the terms and conditions of independent medical exams on a very slippery slope.
When I’m in another state, particularly on the West Coast, I’m always amazed at how far our culture extends. Going to Starbucks in Seattle is like getting Starbucks in Baltimore; people look the same, act the same, and largely talk to the same way (although they don’t seem to know how to say “hon”).
But, boy, when it comes to the risk of accidental death, its like we all live in separate and very different countries. New Mexico residents are nearly three times more likely to die as a result of injuries than inhabitants of New Jersey. Mississippi residents are about four times (get that, four times!) more likely to die in motor vehicle accidents than those in Massachusetts or New York. Statistics can put you to sleep sometimes, but these are incredible. I’m not even sure I believe it.
You can find the results of the study and see how Maryland does here. (Sneak preview: we are pretty safe here.)