Missouri Injury Law Blog

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

Fri, 03 Feb 2012 14:33:09 -0600

As a personal injury attorney in St. Louis you run across a lot of interesting stories. People find all kinds of ways to get hurt and to hurt others. The following slip and fall related story, from ABC News, is definitely not something you hear everyday.

A churchgoer at the Disciple Fellowship Christian Church in East St. Louis, Ill., claims the spirit moved a fellow worshiper so much during service that she caused others to fall over backwards into her, causing personal injuries. The congregant is now suing the church for damages, apparently for being too inspirational.

Cheryl Jones, the injured woman, alleges in a complaint filed last month that she was visiting the church when member received a hefty dose of "spirit" and, with no ushers there to assist, the parishioner fell backwards knocking several other people into the plaintiff.

An attorney for the plaintiff, says, "They should have either warned Cheryl and people like her of the potential dangers - especially if they're not going to have deacons or parishioners to help these people when they fall." The attorney says the church should have been aware of the danger as falling during service is something that apparently happens frequently.

Jonathan Turley, a professor at George Washington Law School said that the case presents intriguing questions regarding what standard of law to apply, "someone engaged by the holy spirit and not fully accountable or someone that should be treated objectively as assuming the risk of this activity." When filled with what is often called the holy spirit, "participants are worked up into such a frenzy that they may no longer appreciate or respond to risk. The question is how much is the church responsible in anticipating people will be acting without concern for danger or injury," said Turley.

Turley went on to explain that, "The whole idea of being touched by the holy spirit is to surrender yourself. In doing so, these are people that surrendering themselves to collapsing involuntary. These churches tend to treat this response as the holy ghost has taken away the power of the individuals to even stand."

Jones' complaint alleges the church was negligent and should now pay her medical bills that resulted from her falling and losing consciousness after hitting her head, neck, back and buttocks during the January 5, 2010 services. The complaint claims that the church typically had "two ushers that would stand on each side of the member to prevent the person receiving the 'spirit' from falling and injuring themselves" but no one was present when she was injured.

Jones accuses the church of negligence for failure to provide parishioners a safe place to worship; failure to ensure ushers were standing behind the parishioners to catch if they fell to the floor after the Pastor laid his hands on them; failure to control the parishioners who were receiving the "spirit"; failure to warn plaintiff and parishioners of the potential dangers of receiving the "spirit"; and failure to conduct a reasonably safe service.

According to ABC News, the complaint is a part of a recent national trend of suits dubbed "swoon and fall." A woman in Michigan filed a lawsuit against her church after she struck her head on the floor when an assistant minister prayed over her, allegedly causing her to be "slain in the spirit" and fall backwards. In Oregon, a church was not found liable after a woman was injured while assisting during service while other churchgoers were blessed and fell on top of her.

Professor Turley says that the trend indicates that churchgoers are "discovering that churches are not immune from tort liability. Church has no special status when it comes to tort law. They are an institution that must take reasonable precaution."

If you've been injured, whether in church or not, you need an experienced St. Louis injury attorney to fight to ensure you receive the benefits you deserve. Contact Sansone / Lauber today for a free initial consultation at (314) 863-0500.

Source: "Evangelical Churches Catch Suits From 'Spirit' Falls," by Lyneka Little, published at ABCNews.com.

2012 Legislative Agenda for Missouri Workers Compensation

Wed, 01 Feb 2012 17:08:52 -0600

The Missouri legislature is undertaking the challenge of reforming the state's workers' compensation law. Earlier this month the state senate held a hearing and witnesses testified regarding proposed changes to the law. Making its way through the legislature is Senate Bill 572, which proposes some radical changes to the existing workers' compensation system. The act proposes that all occupational diseases be covered by workers' compensation laws. The act also attempts to protect co-employees from liability for acts that are not purposeful. As such, if a co-worker's negligence is responsible for the injury and/or death of another employee, the co-worker will not be held personally liable.

The bill provides significant advantages for employers because it limits the use of the second injury fund. A second injury fund is one where employers pay a flat rate into the fund. It allows employers to hire individuals with disabilities and preexisting diseases. If the employee is injured on the job, the employee is compensated out of the second injury fund. The standard workers' compensation fund is financed by a variable rate charged to employers, which is based on the probability that an injury will occur in their workplace.

Because of this difference in funding, employers are attempting to push more of their cases into the second injury fund to avoid paying the higher rate charged by the standard workers' compensation fund. The second injury fund has been completely liquidated and is now in debt. The fund currently owes more than $100 million in claims to injured employees. The new bill limits which types of preexisting conditions and disabilities will have access to the second injury fund. The act no longer allows claims for permanent partial disability against the second injury fund and only allows claims for permanent total disability when three conditions are met: 1) there exists a medically documented preexisting permanent disability caused by military duty or a preexisting permanent partial disability; 2) the preexisting disability equals a minimum of 50 weeks of compensation according to the medical standards that are used in determining compensation; and 3) a subsequent work-related injury occurs and, when combined with the elements of the prior injury, results in permanent total disability.

It is easy to see why some of the individuals who testified at the hearing were upset. Some people view this new bill as a way of giving employers a free ride and not holding them accountable when there are injuries in the workplace. The Missouri AFL-CIO has come out against the bill, saying that "All we're looking for is a fair shake when we are injured in the place where we work. We are not looking to break our employer."

Should this measure pass, it will be more difficult for injured workers to receive workers' compensation benefits in the future. An experienced Missouri injury attorney will provide you with the representation you need to fight for the benefits you deserve. A skilled St. Louis personal injury attorney is required to navigate the confusing codes and legal pitfalls. Contact Sansone / Lauber today for a free initial consultation at (314) 863-0500.

Source: "Debate Rages Over Missouri Workers' Comp Reform," by Tim Sampson, published at OzarksFirst.com.

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

Tue, 24 Jan 2012 15:22:03 -0600

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.

Premise Liability Injury at Hospital - Medical Malpractice or Common Law Negligence?

Sun, 22 Jan 2012 14:18:54 -0600

Injuries due to dangerous conditions are referred to as premise liability cases, and the distinction between a premise liability case and a medical malpractice case is generally obvious, however, if the dangerous condition on the property happens to be a healthcare providers property, they may try to argue it is technically a medical malpractice case, thus invoking a whole set of laws specific to healthcare providers that make it more difficult and expensive for an injury victim to pursue a personal injury cause of action. See What Constitutes a Healthcare Provider for Injury Claims?

Particularly, in order to pursue any medical malpractice case in Missouri you must have an expert that is in the same general field of medicine, usually an MD of some sort. That expert must sign an Affidavit of Merit under RSMo 538.225 stating that more likely than not, and within reasonable degree of medical certainty, the defendant breach the standard of care. For general negligence claims, such as auto accidents, slip and falls, etc ... this is not required.

The Missouri cases that have dealt with the issue of whether the provisions of §538.225 apply to a given case have focused on two (2) general areas of inquiry: 1) was the defendant at issue acting as the injured individual's health care provider at the time of the acts or omissions at issue - i.e., what was the true relationship between the plaintiff and the defendant at the time; and/or 2) was the defendant providing a health care service to the injured individual at the time of the acts or omissions at issue - i.e., was the act or omission at issue a health care service done as part of that provider-patient relationship.

For example, in Morrison v. St. Luke's Health Corporation, 929 S.W.2d 898 (Mo.App. 1996). a patient that was in the process of being discharged from St. Luke's Hospital fell over a briefcase that had been left in the hospital hallway and sustained injury. In finding that a 538.225 affidavit was not required, the Court of Appeals found that the patient's claim, despite the fact that the plaintiff was actually then still a patient of the hospital, did not arise out of the provider-patient relationship, but rather the owner/occupier-entrant relationship.

Another case, Meekins v. St. John's Regional Health Center, Inc., 149 S.W.3d 525, 533 (Mo.App. 2004). A hospital employee was required to undergo a drug screen test at the hospital as part of her employment, and she ultimately alleged a general negligence claim against the hospital claiming that the drug screen test had been performed incorrectly. In finding that the healthcare affidavit was not required, the Missouri Court of Appeals "determine[d] that a drug screen test performed by a hospital is not a health care service if such is not performed within the confines of a physician/patient relationship."

So even if an injury occurs on a medical providers premises and even sometimes when you were there fore medical treatment, medical malpractice laws do not apply in all situations involving healthcare providers.

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

Thu, 19 Jan 2012 13:03:33 -0600

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

80% OF MEDICAL ERRORS UNREPORTED according to US Department of Health and Human Services Report in January 2012

Sat, 14 Jan 2012 12:09:27 -0600

I personally see it all the time and in my experience as a St Louis med mal lawyer, most people are not surprised that doctors and nurses cover each other's backs to conceal mistakes and surgical errors even when the patient is severely injured or dies. Before I continue with this article, I must say that the vast majority of doctors and nurses are good, competent, and honest people. But when errors occur at the hands of the minority of incompetent medical care providers, it is not uncommon for there to be a cover up. Most healthcare providers justify the cover up, as to them the doctor or the nurse did not make the mistake on purpose and their intentions were to help the patient. They also feel that if a medical mistake is a "known complication", that automatically means they did not do anything wrong. Well.... as I like to say to a jury..... it is a "known complication" of driving a car that someone may be negligent, run a red light, and cause a car accident; that does not mean the driver who was not paying attention and who caused the "known complication" was not negligent. The same applies to healthcare providers. If they were accused of causing the injury on purpose, that would be criminal, not negligence. I am not exaggerating; I have had multiple defense expert doctors make that exact claim; that the defendant doctor did not do it on purpose, so he was not negligent. Amazingly, an educated person can say that with a straight face.

It is this attitude of many healthcare providers that leads to the justification to cover up 80% of medical errors. According to the U.S. Department of Health and Human services, not according to lawyers associations, 80% of errors are unreported. The under reporting percentages applied just as much to medical malpractice wrongful death as to minor mistakes and injuries. Meaning medical errors and doctor negligence are often covered up, not reported, or reported in medical records as something else to hide malpractice. There are numerous articles about medical errors going unreported and recently ABC News published a story: "Report: Hospital Errors Often Unreported".

I have personally been the lawyer on several cases wherein the operative report indicated something completely different than the post-op radiology images. The operative report will be written as the operation went perfectly, but the post-op radiology images show surgical clips left in, anatomy cut that was not reported as being cut, and so on. One example is a negligent lap-choli case I am currently handling, the doctor's op report was flawless, yet he left multiple surgical clips in the patient on her common bile duct, blocking her bile from her liver to her small intestine and causing a major complication. See Surgical Clips Left on Common Bile Duct by Missouri Surgeon

Keep this information in mind this election year as I am sure politicians will preach about the necessity of "tort reform" and limits on damages. What they are really saying is that their lobbyists paid them a lot of money to push laws that give them special treatment. Already healthcare providers, in most states, have special protections under the law that shield them from responsibility in many medical malpractice situations. Politicians and their surrogates try to scare you with the talking points of needed tort reform to keep doctors from fleeing the state and to keep health insurance premiums for all of us from going up. Before you listen to that propaganda again, see Medical Malpractice "Tort Reform" Myths Proven Wrong by Statistics

Missouri Personal Injury Trial Evidence: Increased Risk of Future Surgery Admissible When.....

Fri, 13 Jan 2012 15:45:32 -0600

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.

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

Fri, 13 Jan 2012 09:21:32 -0600

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.

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

Sat, 07 Jan 2012 08:24:46 -0600

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.

Death of Missouri Newborn Raises Formula Fear

Tue, 27 Dec 2011 10:34:10 -0600

According to a recent article in the St. Louis Post-Dispatch, Missouri health officials are anxiously awaiting word regarding tests on a batch of powdered infant formula that was recently removed from Wal-Mart stores nationwide following the wrongful death of a Missouri newborn who consumed it and later died of a rare infection.

The source of the bacteria has not yet been determined, but it is known to occur naturally in plants such as wheat and rice. Manufacturers routinely test for such germs but this may be one case where such precautions were not enough to avoid disaster.

Avery Cornett of Lebanon, Missouri died of a rare infection caused by bacteria known as Cronobacter sakazakii, according to recently released hospital reports. Though the infection is treatable, it is very dangerous to premature babies and those less than 1 month old.

Wal-Mart has decided to pull the Enfamil Newborn formula from its shelves as a precaution after the death of Cornett. However, the much bigger step of recalling the formula has not yet occurred as the manufacturer claims tests showed no bacteria was present in the batch shipped to retailers. Further tests to confirm or deny this claim are underway.

The death of another newborn, Ivyionna Ayne Marie Pinnix, from Granite City is also under investigation. Pinnix, born four weeks premature, appeared congested before she eventually stopped breathing sometime Wednesday morning. It remains to be seen whether she consumed the same Enfamil formula under investigation in this case.

A third infant, from Illinois, came down with the exact same bacterial infection as Cornett after consuming several types of powdered baby formula in the last month. Thankfully the Illinois infant has recovered after receiving treatment in a Missouri hospital.

Though no final results have been released, health officials suggest parents take the following steps to help guard against possible infection:

• Sanitize bottles and the nipples before using.
• Bring water that will be used in formula to a boil for two minutes.
• Discard any unused formula after 24 hours and do not make more than you intend to consume as leftovers can develop germs.

Customers who bought the formula in 12.5 ounce cans with the lot number ZP1K7G may return them for a refund or exchange.

If your child has been injured due to negligence of others you need an experienced St. Louis personal injury attorney on your side. For a free consultation, call our Missouri injury lawyers today at (314) 863-0500.

Source: "Baby formula pulled from shelves after Missouri infant's death," by Blythe Bernhard, published at STLToday.com.

Missouri Law on Suing a Property Owner for Negligent Security after a Criminal Attack - Assumption of the Duty

Fri, 23 Dec 2011 13:53:59 -0600

The general rule in Missouri is that a property owner is not legally responsible for injuries caused from a 3rd party criminal attacker just because the attack occurred on their property. However, in many situations such a duty can be establish through assumption of that duty by the property or business owner. Additionally, other factors and situations can create the duty, subjects for another article. This article focuses of assumption of a duty in Missouri negligent security cases. For information on special relationships and other law on negligent security cases see: Legal Elements and Issues Related to 3rd Pary Criminal Act Personal Injury cases in Missouri - Special Relationship or Circumstances Must Exist

Liability for 3rd Party Criminal Attack through Assumption of the Duty:

Under Missouri law a business or property owner can be legally liable, under a negligent security theory, for injuries resulting from a third party criminal attack if that business or property owner voluntarily assumed the duty to protect its invitees from criminal attacks and did not carry out that assumed duty with reasonable care. The assumption of the duty to provide security under Missouri law was established in 1990 by the Keenan v. Miriam Foundation case, which is still good law today.

Under the Keenan v Miriam Foundation case, a plaintiff does not have to establish prior violent crime as the Defendant assumed the duty, that assumption establishes the duty without prior violent crime, which is only required when the duty is established as a matter of law, not by assumption. Keenan adopted the Restatement 2nd of Torts approach, stating:

"One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of a third person or his things, is subject to liability to the third person or his things, for physical harm resulting from his failure to exercise reasonable care to protect his undertaking, if
(a) his failure to exercise reasonable care increases the risk of such harm,
or
(b) he has undertaken to perform a duty owed by the other to the third person,
or
(c) the harm is suffered because of reliance of the other or the third person upon the undertaking."

Therefore, even without prior violent crime the property owner knew or should have known about, they can assume the duty to provide security. If they assume that duty they must carry out that duty in a reasonable way.

A current case our injury law firm is handling arises out a of a violent sexual assault in St Louis that occurred at an apartment complex in north county. For background facts of the case see injury law article: Premise Liability - St Louis Missouri - Defective and Unmaintained Security Doors - Rape of woman inside her own apartment. In this case the St Louis apartment complex owner bought the apartment buildings about ten years prior to the assault. The evidence is that when the the property was bought all of the security doors and locks were in good working order and that the owner's intention was to keep them in working order - ASSUMPTION OF THE DUTY! The problem occurred because the owner did not maintain those security doors and locks and allowed the majority of them to go into serious disrepair.

Missouri Waiver of Personal Injury From Future Negligence Clauses in Apartment Lease Contracts - Are they Enforceable?

$54 Million Verdict - Premises Liability - Security Failure - 3rd Party Criminal Action

Role of Property Damage Pictures in Missouri Car Accident Injury Trials

Wed, 14 Dec 2011 10:53:59 -0600

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.

NTSB Advocates Complete Ban of Cell Phones in Cars, Even Hands free Operation, really?

Tue, 13 Dec 2011 15:00:21 -0600

Previously, we have discussed the recent ban on CDL driver's (commercial drivers of trucks and buses) from using hand held cell phones while driving. See "Truck and Bus Drivers' Use of Hand Held Cell Phones while Driving Banned". Now the winds are indicating that a ban, even more strict than this one, is being pushed for on a federal level and covering all drivers, not just commercial drivers, and even proposing a ban on cell phone use via Bluetooth. See US News: "US calls for ban on in-car phone use ... even with Bluetooth".

As a practicing St Louis injury lawyer handling all types of cases including Missouri car accident cases, I often do see cell phone use as a contributing factor in accidents. In fact, a few years ago I began routinely requesting or subpoenaing cell phone records for all defendant drivers to see if they were using there cell phone at the time of the car crash. However, banning 100% of all cell phone use and mandating car manufacturers and electronics manufactures to come up with ways to disable cell phones while a car is in motion is simply taking this too far.

"NTSB also urged consumer electronics manufacturers to figure out a way to "disable the functions of portable electronic devices within reach of the driver when a vehicle is in motion"

In support of this push the NTSB stated "no text, no call, no update is worth a human life." I can think of a dozen other things we can completely ban in society because a human life may be lost. Airline travel, recreational sports, medical treatment for non life threatening illness, highway construction, space travel ..... There is a risk versus utility analysis they are completely overlooking.

What is wrong with drawing the line at texting? and requiring hands free phone use, doesn't that solve the problem? I personally think the recommendation by the NTSB will never be enacted, it is too strict, can never be enforced effectively, and the political support may never be there. Personal responsibility and encouragement to use cell phones safely is the answer, not draconian mandates.

Initial Steps to Take When Injured on the Job: Workers' Compensation Benefits and Personal Injury Claims

Tue, 06 Dec 2011 13:29:03 -0600

Appropriate Steps if You are Injured on the Job

Millions of people are injured while performing work-related duties each year. If you become one of them, there are certain steps that you need to take to ensure that your rights are protected should you need to file a personal injury claim or apply for Worker's Compensation benefits. Though specific requirements will vary by state, there are four important steps to take if you are injured on the job (for work comp and personal injury claims) or performing work-related duties:

Get Medical Treatment

See St Louis Injury Lawyer blog article, Choice of Doctor Under Missouri Workers' Compensation. The first thing you should do is tend to your injury, especially if it is severe. Apply first aid on the scene, if necessary, then see a doctor. If your injuries are severe, see a doctor immediately. Even if your injuries seem minor, you should protect yourself by getting an independent evaluation by a qualified physician. Be sure to tell the doctor that your injury was sustained on the job, and remind him or her of this fact on follow-up visits if they are required. Your employer may also require that you visit an approved physician. If this is the case, be sure to make an appointment with one of these physicians and bring your medical records if necessary.

Report Your Injury

It is always best to tell your supervisor about your work-related injury as soon as possible. Communicate the details of the injury in person, preferably immediately following the injury, then follow up with a written report. If you have to file a claim later, a written document will provide proof that you notified your supervisor. No such proof is available if you have only make a verbal report, and your supervisor could deny your claim. State laws require that you report your injury within a certain time frame in order to qualify for compensation or other claims. A typical time frame is 30 days, but some allow a longer time period. The sooner you report your injury, the better.

Talk to an Attorney

A personal injury attorney can advise you about whether your injury entitles you to compensation or other claims. An attorney can also ensure that your rights are protected and can advise you on how to proceed with discussions with your employer, making decisions about continued working conditions, arranging for medical care, and more. If you have to file a Worker's Compensation claim or other legal claim, an attorney can assist you.

Keep Records

Be sure that you document all the circumstances surrounding your injury: all visits for medical treatment, discussions with your supervisor, discussions with your attorney, claims filed and so on. Maintaining proper records can provide proof for your claim and ensure that you are not denied any benefits based on technicalities.

Of course, a qualified personal injury attorney is your best resource if you are ever injured on the job. Set up a consultation immediately if you are injured for tailored advice on how to proceed with getting treatment, communicating with your supervisor, and filing any necessary claims.

Amanda Tradwick is a grant researcher and writer for CollegeGrants.org. She has a bachelor's degrees from the University of Delaware, and has recently finished research on teaching grants and student grants in maine.

Truck and Bus Drivers' Use of Hand Held Cell Phones while Driving Banned

Mon, 28 Nov 2011 14:31:28 -0600

U.S. Transportation Secretary Ray LaHood announced a new safety rule, in an effort to reduce truck and bus accidents. The rule prohibits interstate truck and bus drivers from using hand-held mobile phones while operating their vehicles. The joint rule from the Federal Motor Carrier Safety Administration (FMCSA) and the Pipeline and Hazardous Materials Safety Administration (PHMSA) is the latest action by the U.S. Department of Transportation to end distracted driving. See Driving while testing v Driving While Intoxicated

LaHood said:

"When drivers of large trucks, buses and hazardous materials take their eyes off the road for even a few seconds, the outcome can be deadly....I hope that this rule will save lives by helping commercial drivers stay laser-focused on safety at all times while behind the wheel."

FMCSA research shows that use of a hand held mobile phone while driving requires a CDL driver to take risky steps beyond what is needed for use of a hands-free mobile phone, including searching and reaching for the phone. Commercial drivers reaching for an object, such as a cell phone, are three times more likely to be involved in a crash or other safety-critical event. Dialing a hand-held cell phone makes it six times more likely that commercial drivers will be involved in a crash or other safety-critical event.

I believe this regulation is common sense. Most states already ban texting while driving and many require hands free use of mobile phones for phone call while driving. See Texting and driving bans by state. In 2009 almost 5474 people died, often a wrongful death case, and 500,000 suffered auto or truck accident related personal injury as a result of distracted drivers.

Hand Held Cell Phone Bann Rule for CDL Drivers can be accessed here.