Vegas Personal Injury Law Blog

A few weeks ago, I was preparing jury voir dire questions for a short trial. Some of the questions that I prepared involved various issues of tort “reform” and other items currently in the media that dealt with negative events involving personal injury lawyers. One area that always has to be covered is the McDonald’s hot coffee case, because most potential jurors have been indoctrinated to believe that this case sets the standard for a frivolous lawsuit.

Recently, I viewed the HBO special- “Hot Coffee”.  This special starts off  by reviewing the details of the McDonald’s case.  If you have the impression that this was as frivolous suit, you should watch this one and one-half  hour special.  Stella Liebeck’s legs were scalded by coffee that was about the temperature of  the water in a car radiator (180-190 degrees).  This temperature is capable of causing third degree burns requiring skin grafting.  Ms.  Liebeck wasn’t the only one that was injured by this McDonald’s coffee. There were over 700 burn cases reported, because their holding temperature for coffee was so high.

The unanimous  jury found Ms. Liebeck to be 20% at fault and McDonald’s 80% at fault for the burns she sustained to her legs from the hot coffee.  The jury awarded Ms Liebeck $160,000.00 in compensatory damages and $2.7 million in punitive damages.  The purpose of punitive damages is to change behavior brought about by egregious conduct. The presiding judge reduced the total punitive damage award to $480,000.00.

The media picked up on the hot coffee case and made it the flashpoint for tort “reform”, which is an attempt to block civil lawsuits and the public’s right to get into court. The media never mentions that there are legal procedures in place that block any frivolous case from ever getting to trial. Nor do they attempt to provide the actual facts of the case.

After this case, big business, insurance companies, pharmaceutical companies, asbestos companies, oil companies, tobacco companies, health insurance companies and companies that insure doctors, tried to pass federal tort “reform” legislation. They banded together under an organization known as the U.S. Chamber of Commerce, which has its headquarters in Washington, DC.  This appears to be an agency of our federal government. It is not. Obviously, the U.S. Chamber of Commerce has  strong financial backing.  Carl Love and George Bush Jr. became the proponents of tort “reform.”  They advocated caps on compensatory, special, and punitive damages.  They preached  that frivolous malpractice suits were going to put our doctors out of business.

Bill Clinton vetoed federal tort “reform” legislation.

One of the purposes of tort law is to promote safety.  In order to do that, you have to hold entities that sell products and services accountable.  If we don’t, then those injured by the negligence of these companies must  look to state programs such as Medicaid to pay for support and medical care necessitated by their injuries.

Once the Chamber of Commerce was blocked from passing national tort “reform”, they centered their campaign  on providing financial support to elect candidates for the state courts that would be pro business and pro tort “reform.”  As a result of this state by state campaign, judges were put into place who were in favor of placing caps on punitive damages as well as caps on non-economic damages for pain and suffering, and even limitations on the recovery of medical expenses paid by insurance (Collateral source rule).

All of this was accomplished by taking snippets of information from cases where people were injured and using these negative aspects of these cases to make them look bad in the eyes of the public. All cases have some negative aspects.  In our state of  Nevada the aftermath of this tort “reform” campaign resulted in a $250,000.00 cap on non-economic damages on medical malpractice cases, a one-year statute of limitations, and restrictions on recovery of damages for medical bills that were  paid by insurance, obviating the collateral source rule on med-mal cases.  Some states have adopted caps on punitive damage, and other states have caps on the non-economic and/or entire amount of damages that a jury can award.

The bottom line is that our civil justice system needs tort law to maintain a civilized society and to pass the cost of damages caused by profitable injury producing products back to the manufacturers and companies that cause injuries to our friends and family.  This promotes safety in our society and protects the public from dangerous services and products.  The criminal justice system, to a certain extent, makes for a more civilized society, but it can’t control non-criminal conduct.  That’s where the civil justice system picks up.  Without access to the courts on tort cases, the public would be picking up the tab for damages caused by entities that should be held accountable for their actions.

As a personal injury lawyer, I have seen how trends in personal injury claims handling and litigation have changed over the years.  In this electronic age, information and documents posted on social networks like Twitter, Facebook, and Myspace can potentially have a negative impact on personal injury claims.

Insurance Companies and defense attorneys are using these sites as a source to obtain damaging information about victims of personal injury accidents in their fight against compensating those victims for the personal injuries caused by their insureds.

If a person is involved in an automobile accident, he is likely to post some information concerning the accident, the injuries caused by the accident and how the injuries affected his life on a social networking site.  Insurance companies may find on these posts information that is favorable to them regarding how the accident happened, and/or they may find  information favorable to them concerning the development of injuries after an accident.  The more times that a story is told, the more likely that there will be inconsistencies.  Information posted on social networking sites may contradict subsequent accident and injury  reporting to insurance companies and to health care providers.  If contradictory information is obtained by an insurance company, this will certainly undermine the credibility of a personal injury claimant, and devalue his claim.

Credibility is an important factor to juries when they are asked to make decisions concerning an accident causing non-visible neck and back injuries. The general public has been well indoctrinated by insurance companies to get them to believe that all whiplash injuries are fraudulent.  A personal injury claimant’s credibility before a jury can be negatively impacted by photos and video of the claimant participating in physical or athletic activities after an accident. Any content that could portray a claimant in negative light should be taken off social media sites. The claimant should also have online friends refrain from posting this type of pictorial documentation from their own sites.

Posted information regarding illegal or immoral matters can be utilized by insurance companies and/or defense attorneys to put a personal injury claimant in a bad light and damage his character. A claimant must be very careful concerning what he posts. Google yourself to determine what content exists  that may compromise your claim. Think before your post, even on invitation-only sites. Don’t let anyone you don’t know become a friend after you make an accident claim.

Pictures or video of claimants riding motorcycles, motor boats, skateboards, bicycles or all terrain vehicles can undermine the value of their lawsuit or insurance claims.

The same guidelines should apply to the content of your e-mail accounts.

If you belong to 5 networks and have 100 friends on each network, potentially hundreds of thousands of people can view your posts; and, your posts may not be protected by privacy laws.

So,  personal injury claimants and litigants need to give sone thought to cleaning  up their social media pages after involvement in an injury producing accident.

Pain and Suffering Damages are the effects on a person’s life as a result of physical and emotional injuries.  They include the loss of enjoyment of life and pain and discomfort doing daily activities such as cleaning the house, going out with the family and raising children. Placing a value on pain and suffering resulting from a motor vehicle accident is a is a difficult task for any mediator, arbitrator or juror involved with the personal injury case.  There’s no one to scientific formula, chart or table that attorneys and insurance companies can look to you determine the value of a person’s physical and emotuional pain and suffering as the result of an accident.

I was surfing the Internet recently when I came across a web site that claims to evaluate  personal injury claims.  I typed in a medical bills of $5,498.00, vehicle repair costs of $1,000.00, rental car expenses of $250 and wage loss of $500.  The program gave me an estimated claim value of between $13,006.95 to  $26,243.41.  Based on my 25 years of experience in dealing with personal injury cases, I find this to be a simplistic and unrealistic evaluation, especially in situations where a person is not represented by an attorney. Don’t rely on this type of information to evaluate the value of your auto accident case.

Oftentimes, the victim that suffers the most as a result of an auto accident does not receive adequate compensation for pain and suffering because that victim has inadequate documentation, incomplete documentation, or lacks good pain and suffering witnesses. Studies have shown that juries evaluate pain-and-suffering  higher in urban settings than juries in  rural settings.

There are many factors that need to be considered in determining the value of pain and suffering.  Juries (and even insurance companies) look to the credibility of the victim as a witness.  Arbitrators, mediators, jurors and insurance companies also look to see if a person’s actions following an accident are consistent with someone who is in pain.  They look to see how the injured parties everyday life is changed as a result of an accident.  Sometimes extraneous factors such as pain tolerance, occupation and marital status are sympathy factors that can increase the value of a personal injury claim.  The skill and experience of the attorney representing the injured party can influence the evaluation of pain and suffering damages.

Juries often look to, and are swayed by, factors such as the age.  Older people probably will suffer more from auto  accident injuries because their body  cannot recuperate as well younger people.  Juries often have the mind set  that  that younger people should heal more quickly than older people.  Some juries  think that a person suffers more because he continues to care for his children while healing for an injury.  One of the most of the important factors that jurors consider in evaluating pain-and-suffering is the honesty of the injured party.  Sometimes the injured party can be too prepared and too confident on the stand.  

People that have an aggravation of a pre-existing injuries will usually receive less for pain and suffering then people with new injuries.  This has a lot to do with insurance company evaluation.  Their position is that aggravation cases are easy to defend. However, in litigation it should be the attorney’s job to you convince the jury that the old injury was aggravated and that the than aggravation of a pre-existing condition requires more medical treatment and results in more residual pain and suffering than an original injury.

More medical treatment does not necessarily mean more money for a pain and suffering.  However, the total amount of medical bills is definitely one factor that is considered.  Running up medical bills unnecessarily is looked at with a fair degree of suspicion.  Stretching out treatment on a minor injury can be interpreted as greed on the part of the injured party, and this is certainly the position that will be taken by the insurance company.  Jurors have a tendency to award higher damages for pain-and-suffering on accidents that involve major property damage as opposed to minor property damage.

I was in a settlement conference  with  District Court Judge Timothy Williams on a wrongful death case.  The judge told my clients that juries are very unpredictable.  He gave the example of two  separate  cases that went to trial recently involving similar injuries with meniscus surgery following a knee injury.  Two different juries came back with divergent evaluations of medical bills and pain and suffering.  In one case the jurors awarded a reasonable amount in a trial where evidentiary issues should have drastically reduced damages, and in the second case the jurors’ award reduced the actual medical expenses drastically and awarded the injured party nothing for pain and suffering. 

Therefore, all we can say about the value of pain and suffering on an auto  accident case is that there is no definite formula.  Generally, the better pain and suffering is documented, the higher the award for pain and suffering.  The concept that pain and suffering is worth some multiple of the medical expenses is not a standard of evaluation that is uniformly applied.

As you can see documentation is the key to obtaining a reasonable settlement on the personal-injury auto case.