How Malingering Claims Affect Genuine Personal Injury Victims

In most sports, football especially, you’ll hear coaches and analysts say, “The best defense is a good offense.” In the courtroom, you’ll find attorneys applying a similar strategy: going on the offensive to defend their clients.

In football, that maxim means that when your team dominates play, it keeps the opponent’s offense off the field where they can’t rack up points.

In the courtroom, a “good” offense means attacking the character and credibility of a plaintiff and in so doing, devaluing the extent to which their lives have been damaged. It’s not about proving the correctness of the defendants’ actions, but tearing down the victims’ plight.

What is truth and what is malingering?

One of the most pernicious ways defense attorneys try to disparage a personal injury claim is by accusing the victim of malingering. It’s a tactic that doesn’t rely heavily on evidence, but that doesn’t mean it won’t sway a jury.

When the defense brings up malingering, it is claiming that the plaintiff is either feigning an injury altogether or exaggerating its consequences.

The defense may trot out a doctor—normally a physician or a psychologist—who will testify that, according to his or her experience, there is no physical reason why the victim should be continuing to suffer from acute pain or disability resulting from the “accident” for which the defendant bears some responsibility.

The expert may even have examined the victim—physically or psychologically—and, based on the results of the testing and the expert’s own analysis of those results, claim to have “evidence” that indicates malingering is likely.

There is good reason to be skeptical of such claims: While it’s true that malingering is an accepted psychiatric diagnosis, there is no definitive method to test for it, physically or psychologically. The results are subjective at best, and the tests are just another example of what we call “junk science” in the courtroom.

Essentially, the defense’s medical expert is accusing the plaintiff of lying, without specifically using that language. In fact, in most cases, medical experts carefully avoid using the word “lying,” because such accusations, made openly, can make jurors more sympathetic to the victim. So instead, he or she calls it a case of malingering.

It’s a subtle and devious way of insinuating to the jury that the plaintiff doesn’t deserve compensation because their pain and suffering are not as bad as he or she would have people believe.

Such accusations can be devastating to a plaintiff’s case, unless the plaintiff’s attorney is ready to counter them—which, we always are.

Putting the defense on the defensive

As personal injury attorneys, we see this type of junk science far too often. And while we may not be able to dispute medical experts’ credentials, we can hold them accountable for their words.

We press them to explain themselves. What do they really mean by using the term “malingering”? How do they distinguish malingering from lying? Where is the medical evidence for malingering? What are the witness’ credentials for making a psychological—rather than purely medical—evaluation of the plaintiff’s condition?

Just because a doctor can’t find a medical cause for pain doesn’t mean there isn’t one.

And, regrettably, it’s not unheard of for medical experts to manipulate the results of a psychological test in favor of the defendant. The questions are sometimes asked repeatedly, until the defense gets the answers it needs. Even the way in which the results are interpreted can be used to sway the jury into believing what can’t be proven with valid evidence.

The malingering defense is not fair to victims, but it’s a defense tactic used with alarming frequency in personal injury cases. It’s an example of how even further injustice can be inflicted in the courtroom, and it is part of the reason why we’re fully committed to protecting our clients.

We give juries good reason to be skeptical of a defendant who relies on accusations of malingering, and we want jurors to see the malingering defense for what it really is: an insult without evidence. If you suspect that you have been a victim of negligence resulting in personal injury or a wrongful death, please give us a call.

Connect with us—we’re here to help.

The outcome of any client’s case will depend on the particular legal and factual circumstances of the case.

Credibility Abused: The Case Against Junk Science

We all enjoy a good story. But fiction has no place in the courtroom.

The quest for truth is the foundation of both science and litigation. Science depends on truths that are observable, repeatable, and beyond subjective interpretation.

Likewise, judges and juries depend on finding the truth through strict rules of evidence and testimony delivered under oath. Yet those restrictions, in themselves, offer no guarantee that truth will prevail.

What happens when questionable science is used in the courtroom to manipulate the truth and outcome of a personal injury or wrongful death case? The answers can vary, but we do whatever we can to protect our clients from being further victimized by what can best be described as “junk science.”

Junk science in personal injury cases

We label it “junk science” when the defense calls an expert witness whose testimony introduces a pseudoscientific explanation that reshapes the actual facts of the case.  It’s not unusual for that reshaping to strain credibility and even push the limits of common sense. But with enough credentials and sincerity, the witness can easily sell junk science to an unsuspecting jury.

Junk science isn’t really science at all. But the trappings are there, which is what can make it so effective in bending the truth—and so potentially devastating to a case.

Below are some examples and explanations of what experienced personal injury attorneys can do to help jurors see beyond the credentials and recognize junk science for what it really is.

The ‘agony’ of litigation

In one recent case, our client was in chronic pain months after an injury had occurred. The defense brought in a physician who testified that there was no physical reason why our client should still be in pain. By using his credibility as a doctor, he directly tried to minimize our client’s suffering and reduce potential damages.

The defense used the same witness to go even one step further.

He wasn’t going to call our client an outright liar because jurors don’t typically respond well to doctors who suggest that people in pain are lying. Instead, he speculated that our client’s pain was caused not by the injury, but by the stress of the litigation. According to his testimony, he believed the pain would almost certainly subside once the lawsuit was over.

There was no scientific or medical evidence to support that kind of claim. But the witness was a qualified medical expert. Who were the jurors to doubt him?

To counteract such blows, we must give the jurors good reasons to rely on their own common sense. There are a couple of ways we can go about it:

  • In the case mentioned above, we urged the jury to recognize the probability that this was not the first time the physician had been called upon to give this kind of testimony.

    We asked whether he had ever before made this kind of “diagnosis” in court. When he said that he had, we challenged whether he had ever followed up with those previous plaintiffs. Of course he hadn’t, so there was no way for him to confirm that his earlier predictions had been correct.

    Having done our homework, we had previously reached out to those plaintiffs and confirmed that their pain had not been the result of “litigation stress.”

  • Second, we have, on occasion, challenged an expert witness who suggests pain is a result of litigation, to back his or her claims with action. We ask if he or she would, under oath, agree to treat the plaintiff for any pain that might linger after the trial.

    Not surprisingly, they never commit. Their flimsy claims are exposed and the jurors are free to evaluate the testimony for what it is: junk science.

    On a more humorous note: Our request is typically met with strenuous objection from the defense, but by then our point has been made.

Knowing junk science when you see it

Frankly, our experience in recognizing and countering junk science in personal injury and wrongful death cases gives us an edge that our clients deserve. It’s bad enough that they’ve been wronged and injured by someone else’s actions or decisions. They don’t need to be wronged again by expert witnesses whose credibility doesn’t match their credentials.

If you find yourself needing someone to fight on your behalf for the truth, don’t hesitate to reach out to us with any questions you may have.

Connect with us—we’re here to help.

The outcome of any client’s case will depend on the particular legal and factual circumstances of the case.

Injured Youth: Representing Children in the Courtroom

We’ve talked before about how pain and its impact can be experienced differently, and be farther reaching for injured children and their families. As Ohio personal injury attorneys, it’s our job not only to understand the tactical legal implications of cases involving someone as vulnerable as a child, but also to responsibly and sensitively obtain justice for the child and the family.

From the law’s perspective, it may seem that a victim is a victim. There’s the physical damage—such as losing a limb or receiving a disfiguring scar; there’s the negative impact that an injury or death can have on the victim’s financial situation; and there’s the trauma that can haunt a victim for a lifetime.

All of these apply equally to cases involving children, with the added challenges associated with youth.

A grace period granted

One issue in any personal injury case is determining the extent of the injury and predicting how long the healing process will take to complete, so a jury can measure and determine adequate compensation.

How do you project future complications and costs from today’s injuries? The immediate effect of burns or broken limbs for adult victims can be fairly obvious. The impact of spinal or brain injuries, on the other hand, often don’t reveal themselves until months or even years have passed and, potentially, after the statute of limitations has run.

With children, the challenge of proving the impacts of an injury to juries becomes even more difficult. We must explain to the jury that certain injuries are more than just a temporary pain or inconvenience for a child—some injuries can affect a child’s natural growth and development. Burns leave scars that may be unsightly on adults. Other scars can be disfiguring and can even cripple a child’s physical growth. Scar tissue behaves differently than normal skin tissue and doesn’t stretch as the child grows. Beyond disfigurement, the child may require skin grafts and surgeries as part of a necessary, and painful, treatment regimen.

Fortunately, Ohio law recognizes these potential situations and extends the statute of limitations in cases where children have been injured due to the negligence or the malicious acts of others. But this legal reprieve is no guarantee of justice for the injured minor.

Calculating a victim’s potential in child personal injury cases

In any personal injury case, a “value” must be assigned to the injury in order to reach agreement on what constitutes fair compensation for damages. That goes far beyond medical costs and includes the loss of the parents’ or guardians’ income and even the potential income for the child.

If an injury leaves a child disabled, their entire future is changed. The loss of a limb could prevent the child from pursuing a chosen and lucrative career years down the road and the medical costs could follow the child their entire adult life as well. The younger the child, the more difficult it is to project how an injury could impact his or her future quality of life and career opportunities.

Projecting the long-term impact of an injury on an adult’s income can be done. Most adults have some sort of earnings “track record” on which to base meaningful projections. Children on the other hand, typically have no such record.

With a young victim, what constitutes “appropriate compensation” often depends on information we gather about the family. Are there family members who are engineers or physicians? Does the family value higher education and would they be likely to encourage the child to pursue a college degree?

The jurors’ perspective

Another potential obstacle when representing children is the jury itself. It takes a special approach to present a child’s case to a jury using conviction tempered by compassion. Jurors tend to bring a different sensitivity to the case when the victim is a child, and therefore evaluate evidence with different opinions and biases.

Some jurors believe a courtroom is no place for a young child. They can be offended if they think that the child is there simply to gain sympathy. As attorneys, we have a tough decision to make: Do we bring the child into the courtroom where they may possibly have to relive their trauma, or do we try to make a convincing case with photos and documentation?

There is no hard and fast rule, and it’s a situation that’s less likely to arise with adult victims. Understanding the nuances of representing children makes us better equipped to handle the unique legal challenges involved in representing child victims in the courtroom.

If you require assistance with a personal injury or wrongful death case involving a child, don’t hesitate to reach out. We’re here to help.

The outcome of any client’s case will depend on the particular legal and factual circumstances of the case.

The Far-Reaching Effects of Injuries for Child Victims

The thought of a serious or tragic accident involving children is a grim one, and dealing with the real-life consequences is downright sorrowful.

Over the years, we’ve gained valuable insight into how to approach cases involving child victims with special care and consideration. As Ohio personal injury attorneys, we intimately understand the extensive and often underestimated damage a child and his or her family can suffer. Physical pain, emotional trauma and financial hardship go hand in hand with injuries. All these things can be terrible for an adult to deal with, but for a child, the damage is arguably amplified.

Long-term pain and damage

What’s often overlooked is the fact that the very same injury suffered by an adult can potentially have further reaching implications for a child.

 An adult, for example, may suffer a broken bone as the result of an accident. A single surgery may be sufficient to correct the damage and thoroughly facilitate the healing process. But for a child, the same fracture may require multiple surgeries and/or subsequent physical therapy in the months or years following the incident. A substantial injury can also derail a child’s physical development.

Another consideration is a child’s emotional and cognitive development. A brain injury sustained because of a faulty bike helmet or a poorly constructed jungle gym could have impacts on the child’s mental and cognitive growth—ones that aren’t immediately identifiable, or don’t manifest until the child is much older.

Some injuries are coupled with events so traumatic that a child could later suffer from post-traumatic stress syndrome (PTSD) or similar scaring emotional effects. These impacts could impede the child’s ability to learn, cope and assimilate into society as they would have done prior to the incident.

The parents’ plight

Invariably, when representing children as victims in personal injury matters, attorneys have another important consideration: the parents and their often-overwhelming guilt. Guilt is a natural parental reaction, even when it’s unwarranted.

Maybe the child was seriously injured due to a defective toy. Or perhaps a household accident that the parent could not have reasonably foreseen resulted in death. We anticipate the parents’ guilt, no matter how unjustified it might be, and we’re prepared to help them navigate the complexities brought on by that guilt. Only experience can properly prepare an attorney to play a positive role in helping the family begin the process of healing.

Children deserve no less than our best

There is a notion that children tend to be naturally more resilient than adults. Supposedly, they can bounce back faster, heal quicker, and outgrow a traumatic experience with fewer emotional scars.

Even if that’s sometimes true, it’s certainly not assured for every child. We know better.

When a child is the victim of a malicious or negligent personal injury, there is plenty of pain to go around. Time and resilience can’t be used as excuses for not giving a child the best possible representation—and opportunity for justice.

If you require assistance with a child’s personal injury or wrongful death case, don’t hesitate to reach out to the Ohio personal injury attorneys at Cooper & Elliott. We’re here to help.

The outcome of any client’s case will depend on the particular legal and factual circumstances of the case.

Construction Errors, Carbon Monoxide Poisoning, and the Death of an Unborn Child

Few things in life are more joyous than the arrival of a healthy newborn baby. But that feeling of joy quickly dissipates when parents learn the awaited day of birth will never arrive.

In this case, our clients experienced that grief firsthand. Their despair was only compounded when they learned there was evidence—strong evidence—that the loss of their unborn child was likely caused by external conditions that could have been avoided.

How were they to react upon learning the loss of their child may not have been caused by a natural miscarriage? That the child could be alive if not for someone else’s negligence?

As Ohio wrongful death attorneys, we look at the facts of a case objectively and root out what happened and why. We then do what it takes to help our clients follow a path of legal action that can ease their suffering and repair their loss—and do it without amplifying their suffering.

A hidden threat to one family’s security

Mark* and Stephanie* were excited about moving into their brand-new home with their one-and-a-half-year-old son. Mark was a police officer and Stephanie was a nurse. Their future was bright.

When construction was completed, the family moved in to their new home. Shortly after that, Stephanie discovered she was pregnant with their second child. They were elated about their growing family, and particularly delighted when they learned the baby would be a boy. Ten weeks into the pregnancy, visits to the doctor confirmed the pregnancy was progressing normally. The baby Stephanie was carrying was healthy and growing.

This was in the fall of 2015. As the days turned colder, Mark and Stephanie noticed something odd was happening in their new house. A fine soot was accumulating on the walls and on the tops of cabinets. They would clean it only to have it reappear in a few days. With the windows of the house closed, they didn’t know how the dirt was getting in.

A nuisance turns fatal

Around that same time, their toddler became chronically cranky and stopped sleeping through the night. At first, they suspected a normal childhood malady such as an ear infection. Their doctor ruled out that diagnosis, but he wasn’t sure what was wrong. He prescribed antibiotics, but medication brought no improvement.

Stephanie was getting frequent headaches and experiencing bouts of nausea. She couldn’t understand the reason for her sudden discomfort. After all, she was nearly through the first trimester of her pregnancy. Why the nausea now?

A checkup at 11 weeks confirmed that everything was fine with the pregnancy. But at the 13-week checkup, Stephanie’s doctor couldn’t find a heartbeat for the baby.

A few days later, Stephanie underwent a painful surgery to remove the remains of the baby she and her family had already come to love.

The cause of a wrongful death

Mark contacted the construction company about the continuing soot buildup. An inspection of the premises revealed the problem: An air shutter valve in the gas fireplace had been installed improperly. The result was that the fireplace (which the family had been running in the colder months) produced an excess carbon residue that accounted for the “soot” accumulating in the house.

But the faulty valve had a much more serious consequence. It was leaking carbon monoxide into the house—at levels low enough to avoid setting off the carbon monoxide detectors or to be immediately fatal, but high enough to gradually poison the family.

And enough to lead to the death of their unborn son.

Seeking justice outside the courtroom

The improper installation of the air shutter valve was clearly a failure on the part of the construction company. And through Stephanie’s medical records, and research about the effects of carbon monoxide on infants in utero, we were convinced the miscarriage had been a direct result of the construction company’s negligence.

But Mark and Stephanie were reluctant to pursue a lawsuit. Stephanie had suffered enough trauma from the miscarriage and the surgery that followed it, and didn’t want to relive it in a legal proceeding. They agreed it wasn’t right for the contractors to get away with such negligence, but they didn’t want to bring public attention to their personal family tragedy through litigation, either. We understood.

The construction company’s insurance adjuster initially treated the incident as if it were a nuisance to be brushed aside. He offered a settlement amount that didn’t begin to address the family’s suffering. So we waited to respond and continued to gather convincing medical evidence as if we were going to court.

Finally, we were contacted by the insurance adjuster. We told him, in effect, that if he was anxious to close out this case (which he was), he would have to make a serious offer. We presented our evidence, and after several volleys of offers and counteroffers, the adjuster finally came back with a proposal that we felt was appropriate. The final offer was than seven times his initial offer.

Our clients accepted the offer—all without having to go through depositions and a public hearing.

Mark and Stephanie could use the settlement to repair and clean their home or seek out a new home. They could put the tragedy behind them and focus on their family’s future.

No two clients are alike

Whether a tragedy involves personal injury or a wrongful death, each family’s needs are different. Some need a trial and jury verdict to vindicate their suffering. Others, like Mark and Stephanie, simply want compensation that is just and discreet.

Legal counsel should be attuned to people’s individual needs. We believe that, to effectively represent our clients, we need to know not only the law and the facts of the case, but also where, for each client, healing begins.

Give us a call—we’re here to help.

The outcome of any client’s case will depend on the particular legal and factual circumstances of the case.

 *Names in this article have been changed to protect our clients’ privacy.

Helping Juries Measure and Calculate Pain

Getting a jury to think clearly about and fairly award damages for pain can be a complex process.   In a recent article we discussed the difficulties associated with the task of placing a dollar amount on a human life, which poses similar challenges.  As Ohio personal injury attorneys, it’s our duty to help people who have been harmed recover from the harm that medicine alone can’t fix: the distress and reduced quality of life caused by pain.  Over the years we’ve developed tactics which help better position the jury to understand and assess this harm.

Pain requires more than medical treatment

There are many types of injuries with different degrees of severity.  Minor injuries result in minimal pain which is easily alleviated and requires relatively little treatment.  More severe injuries on the other hand, may require more than just medical treatment or therapy for the healing process to occur.  Consequences resulting from major injuries may have a tremendous effect on the victim’s life.  Lost wages, emotional distress, permanent disability, or even a change in the way a person is able to function in daily life are possible byproducts of serious injuries.

Many of those consequences can’t be reversed or repaired—which is why our legal system is designed to remedy the injustices and hardships by awarding monetary damages.

To calculate damages, juries need information to help them measure the pain in some fashion.  Most doctors will agree that there is no purely objective process for determining the severity of physical pain.  When it comes to providing guidance for a jury, showing the concrete effects of pain on a client’s daily life is really the best tool we have to describe and quantify pain.

Using a sliding scale

We’ve established a series of questions that help us guide the juror’s thought process for identifying the intensity of pain.  These three questions allow for an evaluation of different aspects of pain on a sliding scale:

  • How intense is the pain? Is the pain a dull ache, or a burning, excruciating pain? A stiff neck might be aggravating, while a broken bone can be agonizing.
  • How long does the pain last? Is this pain of shorter duration, perhaps relieved by the time of the trial? Or is this a pain that may last years or even a lifetime?
  • How does this pain interfere with a normal approach to life? Is this an annoyance, a minor inconvenience or an incapacitating pain like that caused by migraines?

Once the jury knows the answers to these questions, we then talk about how to award money in proportion to the harm the defendant has caused.  What amount is reasonable in terms of compensation for each answer?  Thousands of dollars may be appropriate for pain that is on the lower end of the scale.  Tens of thousands of dollars may be more fitting for pain at the higher end of the scale.  And if the victim is suffering pain that will last a lifetime, an even larger amount is certainly in order.

Determining the dollar amount

Picking an amount to begin with is often the hardest part of the process.  Whether to suggest a specific amount to the jury depends on each individual case.  But in all cases, we remind the jury that the amount they choose to award should be proportionate to the pain suffered, valuable time lost, and emotional damage inflicted.  We frame our language in a way that allows the jury to understand that their decision will serve as the reflection of justice for a person who’s been wronged in a way that has impacted their life tremendously.

Our questions and tactics help jurors understand the gravity of their responsibility and enable them to rationally decide what amount is reasonable to award the plaintiff.  The objectivity required of jurors can be daunting—we take that into account and are proud to say we do our best to provide the jury with information about our clients that allows for the most optimal and just outcome.

The outcome of any client’s case will depend on the particular legal and factual circumstances of the case.

Placing a Dollar Amount on Human Life

If a person dies because of someone else’s negligence— a wrongful death—it’s the victim’s family that is left to suffer the grief and loss. So what is the remedy? Determining the value of a human life is no easy task, but it’s one that we, as wrongful death attorneys, often face. One thing is certain—people who have suffered the death of a loved one are looking for affirmation.

In the criminal justice system, when a wrong has been committed, a jury can punish the defendant with jail time. Civil cases are different. The only power the jury has to make things right is to allow money for damages. They can’t issue an advisory opinion or verdict that tells the defendant how to act in the future.

Calculating lost income

One relatively concrete category of damages in a wrongful death case is the loss of financial support and inheritance that the surviving spouse or family members would have received from the decedent’s wages or other income.  It’s possible to project, based expert economic and vocational testimony, how long the person would have been expected to work had they not died and the amount of wages that would have come from that work.  If the decedent would have had other income over their lifetime, testimony can also project what the surviving family members would have stood to inherit in the future.  A jury can allow these lost income amounts as part of the damages for the wrongful death.

Putting a dollar value on emotional loss

Although lost income can be important, we find that the emotional pain to spouses and family members from the untimely loss of their loved one is often the most significant harm suffered. Coming up with a dollar value to compensate for this emotional pain is a delicate process. Still, we have some methods to get the jury thinking of what a fair number might be.

We discuss topics that help remind them of what human life is all about. We talk about relationships—the simple pleasures we take from each other’s company. We talk about gatherings and holidays. We might even talk about the caring and guidance that adults give to younger people.

We remind juries of the emotional impact that somebody who’s lost a spouse, a child or parent must endure. It’s really important for jurors to understand and consider what makes life and relationships important, along with the emptiness felt in a person’s permanent absence. We remind juries of the countless interactions in a relationship that we often take for granted, until we ourselves have lost someone important to us.

Unfortunately, there is no formula or chart that can help a jury quantify this point, so determining a dollar value for life can be quite daunting. Our greatest charge is then to remind juries that while doing so is difficult, it’s also crucial. It is the responsibility of our justice system to ensure that when a wrong has been committed, especially one so egregious as to have cost a person their life, the community must try to compensate for that wrong.

Using examples for framework

To help jurors apply a value to something seemingly invaluable, we might point out items in the news that have sold for incredible sums of money. For example, the Honus Wagner baseball card that sold for 2.8 million dollars a few years ago or the abstract painting by artist Barnett Newman that sold for 43 million dollars. We remind jurors that these items are just ink on cardboard or flecks of paint on a canvas, and yet, they’re valued at millions of dollars. Why? Because they are rare—often masterpieces—and there may only be one in existence. It doesn’t take long for jurors to see the analogy and understand that people are rare and unique masterpieces as well.

Another way to show the value of human life is through the money spent on search parties for missing people. There was a recent news story about two military aircraft that crashed off the coast of Hawaii. Before calling off the search, the community spent millions of dollars and an incredible number of man hours looking for the missing soldiers lost at sea. This easily demonstrates the value we as a society place on life. Even when the hope of finding survivors is slim, we don’t hesitate to spend time and money to implement a rescue.

Conclusion

By giving jurors concrete examples, we can successfully help them understand how to place dollar amounts on things inherently difficult to value. In the end, the money juries allow is not a prize, but a reflection of justice. It shows the jury’s determination that somebody did something wrong, something that cost another person their life, and that the wrongdoer has been held responsible.

We like to focus on the human element, and do the best we can to make sure that our clients get what they need in order to recover and move on after the untimely death of a love one.

The outcome of any client’s case will depend on the particular legal and factual circumstances of the case.

Negotiating Confidentiality Provisions in Personal Injury Cases

One of the greatest challenges we face when dealing with personal injury cases is finding a way to effectively quantify pain experienced by our clients. The following case involves a victim who sought our help after a restaurant’s negligence left her with injuries that would potentially affect her for the rest of her life. The case also shines a light on the complexities of confidentiality provisions in personal injury settlements.

A head injury alters a woman’s future forever

Elise Jones* joined her father and fiancé at a Columbus-area restaurant for a late lunch on a cold day in February. The hostess was leading them through a poorly lit area to be seated, when Elise felt her foot slip from underneath her. As she fell to the ground, her head hit hard against a brick wall, and she completely lost consciousness for a few moments.

As people scrambled to help Elise up from her fall, her father and another patron noticed an employee surreptitiously place a “wet floor” sign in the area. The patron also mentioned that he’d seen another customer slip in that same spot no more than 10 minutes earlier.

Elise was taken to a hospital for examination and was later discharged. However, she soon began to develop terrible and frequent headaches. What would begin as a dull pain, escalated into excruciating migraines. At times, Elise would be completely incapacitated—forced to remain in bed all day. She was even hospitalized for the pain on a couple of occasions.

As a consequence of the increasing and frequent headaches, Elise was unable to concentrate and her work began to suffer. She became more irritable, and this affected her relationships.

Elise consulted multiple specialists, but none could offer her a cure. She was faced with the fact that she might have to live with the headaches for the rest of her life, and, at best, could hope to manage the pain with medication.

Confronted with that knowledge, and with the knowledge that the restaurant staff knew about the slippery floor, she decided to file a lawsuit against the restaurant.

Ohio personal injury attorneys tackle the difficulties of Elise’s case

Establishing that Elise’s fall was what led to her terrible headaches would be tough, but we had a little help because this was a civil case. Elise’s doctor agreed that the headaches were consistent with trauma to the head, but could not be certain if the trauma was linked to the fall in the restaurant. Medically speaking, a physician establishing certainty needs to be 90 to 95 percent sure that the fall led to Elise’s headaches.

In civil cases, only 51 percent certainty needs to be established in order to sway a court’s decision. In other words, if you tell a jury there’s a 51 percent chance event A happened and a 49 percent chance event B happened, the jury should believe that event A happened. The fact that Elise’s painful headaches started soon after her fall strengthened her claim.

Proving the very existence of Elise’s headaches, let alone their severity would be difficult. Most doctors and pain specialists agree that pain is very difficult to measure from an objective standpoint. Those who suffer unidentifiable pain face a common problem: not only has the quality of their life been compromised, but they struggle to prove to others that their pain is real.

Finally, “slip and fall” cases are notoriously difficult because of the “open and obvious” doctrine, a general set of rules that protect premises owners from liability for injuries if the danger was “obvious” or easily detectable. In Elise’s case, the hazard wasn’t at all obvious—it was 20-25 feet from the wet entryway. Additionally, the fact that an employee quickly set up a “wet floor” sign after Elise’s fall, suggested the restaurant staff was aware of the hazard and had failed to warn their patrons sooner.

Pros and cons of confidentiality provisions

Confidentiality provisions can work in a number of ways in a civil case. Unless our client really wants to keep a case quiet, we think it benefits the community to know what the facts of the case were. After all, one of the tenets of our legal system is to bring out the truth in order to achieve justice.

From a legal standpoint, keeping those facts open to the public is useful for attorneys attempting to evaluate similar types of new cases: What verdicts are they getting? Are they being settled or going to trial? In both cases, for what amount? More often than not a settlement agreement will have a confidentiality provision. Fortunately, this can actually benefit our clients. From our perspective, since defendants almost invariably want confidentiality as part of their settlement agreement, it becomes a valuable component for us to leverage.

In Elise’s case, we arrived at a number to settle the case, but when the defendant’s attorneys drafted an agreement, they slipped in confidentiality language. We in turn asked for and received a higher settlement because of it.

While confidentiality provisions are almost always proposed by the defendant, we’ve seen a number of plaintiffs readily accept them, and it has little to do with obtaining a larger settlement. Many simply want to avoid the stigma sometimes associated with a personal injury lawsuit. As we’ve written about before, cynical political and media organizations have constructed a perception of courts clogged with “frivolous lawsuits.”

Providing for an unknown future

Ultimately, we did reach a settlement for Elise, and it did contain confidentiality provisions. Given the fact that she has a lifetime ahead of her with unknown issues and expenses related to her injury, we knew it was critical that the settlement be sufficient to help her move on in a positive direction.

The close of this case represented a way for Elise to gain a tangible measure of control. It also represented a new beginning, a chance to put something bad behind her and move on. And she’s doing just that: she married her fiancé, and is slowly getting more involved in the business she started prior to the accident.

It’s gratifying for us to help people heal emotionally, financially, or in any other way that can be achieved through the civil justice system.

*Names in this article have been changed to protect our client’s privacy.

The outcome of any client’s case will depend on the particular legal and factual circumstances of the case.

A Private Correction Facility’s Extensive Negligence Leads to a Hostage Situation

Held at gunpoint

What began as a regular morning for Jackie Murdock* at the accounting office she and her husband operated in a Columbus suburb—resulted in unforgettable events. The sound of the low-flying helicopter was Jackie’s first clue that something strange was happening. Then she heard a loud bash as her front door was kicked in by a man wearing a corrections officer’s uniform and wielding a gun.

The man who entered was Bobby Ray DuPree*, a dangerous felon who had escaped from the Northeast Ohio Correctional Center (NOCC) and had randomly chosen the Murdock’s office as a place to hide from police pursuit. The uniform and gun were stolen from a guard he’d overcome in his escape.

Jackie, alone and terrified, suddenly found herself in a hostage situation. Through the window she watched as a SWAT team surrounded her office, and her unease grew. Her husband, Todd Murdock* returned from running errands to discover the house he and Jackie used as an office surrounded by the SWAT team. Police informed him that his wife was being held hostage by an armed fugitive.

After hours of negotiations with the police, DuPree agreed to let Jackie go unharmed—in exchange for a pizza.

Eventually, DuPree was apprehended, and with charges that included kidnapping, escape, and bank robbery (he’d held up two banks before breaking into the Murdocks’ office), he faced life in prison.

Personal injury attorneys uncover system of negligence

Struggling to recover from the psychological effects of the event, the Murdocks came to us for help.

We filed suit against CCA, the privately owned business in charge of operating the prison because it stood to reason that the corporation was ultimately responsible for DuPree’s escape. However, we knew the Murdocks’ case could be tricky because operators of state and federal prisons are afforded certain legal protections due to the nature of their profession—but it was unclear if those protections extended to privately owned corporations like CCA.

CCA’s attorneys filed a motion to dismiss the case, which was ultimately rejected by the Court.

Meanwhile, as we proceeded through discovery, the extent of the NOCC’s negligence became increasingly—and distressingly—clear. Among our findings:

  • DuPree was moved from a county jail to the NOCC because he had a history of hiding contraband on his body and threatening corrections staff. Such a prisoner required high-level detention, but the NOCC was only a low-to-middle-security facility.
  • A form was sent with DuPree from the jail to the NOCC warning that he should be held on the highest security level, be strip-searched and “black-boxed” (meaning his handcuffs should be covered to prevent him from picking the lock) during transport, but those instructions were ignored.
  • DuPree escaped after being moved to a nearby medical facility because he was found lying on the floor with blood on his forehead. After he was moved, a staff member who cleaned the cell discovered a razor blade with blood on it (likely used by DuPree to fake the injury), yet that person failed to inform anyone of the discovery.
  • The two corrections officers in charge of guarding DuPree at the medical facility were never warned that he was a high-level security risk with a history of hiding contraband.
  • DuPree was not strip-searched when he was transported to the medical facility or placed in his hospital room, his room wasn’t searched and nobody monitored him when he used the bathroom.

We discovered that the rate of escape from CCA-run facilities versus state or federally run prisons was abysmally high, with prior escapes taking place in Tennessee, Arizona, Florida, and Illinois. What’s more, many of those incidents were strikingly similar to DuPree’s: there was a breakdown in training and failure to follow proper procedures.

Justice for the Murdocks

Typically, if a case is going to settle, it happens before trial or at the end of the trial. This time, though, something odd happened: CCA chose to settle in the middle of the trial.

Our guess is that, given the strong case of negligence we had built against the corporation, it wanted to avoid the continued negative exposure it would receive in a lingering public trial—especially right before it was set to renew a valuable contract with the federal government.

From the perspective of our clients’ needs, the timing couldn’t have been better. Although the process of getting answers and preparing for trial helped Jackie tremendously as she tried to come to grips with the ordeal she went through, she was still terrified of testifying and having to relive the nightmare. Tom, on the other hand, did get to testify, and for him the process was cathartic.

In terms of the public good, the attention this case and similar ones received resulted in a noticeable slowdown in the privatization of prisons in Ohio. Whether those prisons have improved their procedures though, is still a matter of debate.

Moving onward and upward

We’re happy to say the Murdocks are doing much better now. Between the justice they received and that other great healer—time—they’ve managed to pick up where they left off and grow.

Not only have they continued their accounting practice and brought their three children into the family business, but they’ve also started another venture built around a passion of Todd’s: collectable coins.

As Ohio personal injury attorneys, winning cases and obtaining justice on behalf of our clients is what we live for. There’s something about seeing those positive “after” pictures—seeing people on the mend, as they move beyond their adversity and flourish—that is uniquely rewarding.

*Names in this article have been changed to protect our client’s privacy.

The outcome of any client’s case will depend on the particular legal and factual circumstances of the case.

Ohio Health Victimizes a Pedestrian Injured in a Car Accident

The car accident was bad enough, but what happened to the victim afterward was even worse. In this case, an Ohio hospital victimized its own patient. As Ohio personal injury attorneys, we were determined to make it right.

The pedestrian car accident

Freddie* was 30 years old, mentally disabled, and lived with his mother. Despite his limitations Freddie was a very productive young man. He had a job at a neighborhood restaurant and he went to work every day just like anyone else.

One day, Freddie was walking back to work after a break when a careless driver made a rolling right turn through the crosswalk Freddie was using, and hit him square on. It was a devastating accident. Freddie sustained a serious head injury, and his shoulder was hurt badly enough to require a replacement. Worse yet, Freddie lost his job because he was unable to work after the accident. In addition to his long and arduous recovery, the accident left Freddie with severe post-traumatic stress disorder. He didn’t want to leave his mother’s house, much less get in a car or cross the street—his life was totally transformed by the tragedy.

According to Ohio law, if a driver strikes a pedestrian who’s outside of a crosswalk, the driver can’t be held liable for the accident. That’s the position the driver and her insurance company took. We countered their position by hiring an accident reconstruction expert. Speed analysis measurement and eyewitness testimony were used to establish that Freddie was indeed in the crosswalk when he was struck by the driver’s car. By proving the driver’s negligence we were able to secure a settlement that would help Freddie on his road to recovery.

Establishing the driver’s liability was great news for Freddie, but it certainly wasn’t the last obstacle that he would have to overcome in regards to this accident.

Ohio Health preys on a vulnerable man

As a patient of Ohio Health, Freddie’s medical bills totaled over $110,000. If he’d had insurance, or if he’d been covered by Medicare or Medicaid, the insurer would have offered to pay a certain percentage of the bill, the hospital would have accepted it, and that would have been the end of the story. It’s a common practice in the healthcare business—hospitals bill one amount, but they take whatever the insurers are willing to pay. Because hospitals know they’ll only get a fraction of the amount billed, they have an incentive to inflate the bills.

Ohio non-profit hospitals have a state-required program called H-CAP, which is a charitable program that covers medical bills for those in our society who are uninsured or impoverished. The day after the accident, someone from Ohio Health’s billing office went to Freddie’s room with a form to determine if he was eligible for H-CAP. This person asked Freddy—who was badly injured, traumatized, and on pain medication—how much money he made. On the form, that person recorded that Freddie’s income was $18,000 a year, which made him ineligible for H-CAP.

But Freddie never made $18,000 a year in his life. Now maybe he said $8,000 and somebody wrote it down as $18,000. Or maybe he was on pain medication and didn’t say anything. (They never even tried to ask his mother, who was present and who certainly would have been able to provide that information.) Denying Freddie H-CAP assistance would be a big win for the hospital. H-CAP eligibility would eliminate his debt entirely, but if Freddie wasn’t eligible, the hospital would be in line for a big payday from the insurance company. So the hospital was financially motivated to keep Freddie from receiving H-CAP benefits, even though he was precisely the type of candidate the program was designed to benefit.

Freddie’s employer didn’t provide him with health insurance. So here’s a man with no private insurance and who, according to Ohio Health, is ineligible for H-CAP. It gets worse: Rather than trying to collect the amount that Ohio Health would have accepted if Freddie had been insured (something in the range of $40,000) Ohio Health demanded the whole $110,000. And it didn’t just try to collect, Ohio Health actually sued Freddie for everything—his medical bills, his therapy, for every last dime of the inflated bill.

Ohio Health’s financial greed led them to prey on an impoverished and mentally disabled young man in the midst of an incredible hardship, and it’s despicable.

Helping Freddie land on his feet

It was our goal to keep Freddie from having to pay the overinflated $110,000, which would have amounted to a significant portion of his settlement. He’d been through enough at that point and we believed his settlement should have been used to help him get back on his feet, not compensate the hospital at exorbitant rates. Fortunately, we were able to negotiate a much more realistic bill, and Freddie was able to retain the majority of his settlement.

Sometimes good people get taken advantage of, and we’re just glad to be able to our part in correcting these situations when we can. It hasn’t been easy for Freddie or his mother, who had to take a lot of time off of work to take care of him. Freddie has a lot to live for and we’re eager to see him recover physically, recover from his post traumatic stress disorder, and get back into the world.

*Names in this article have been changed to protect our client’s privacy. The outcome of any client’s case will depend on the particular legal and factual circumstances of the case.