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.

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.

A Wrongful Death Illustrates the Importance of Caring for Our Independent Seniors

Societies have long wrestled with how to best care for senior citizens, but we are truly headed into uncharted territory as the Baby Boomer generation gets old. The largest generation in American history will also be the longest-lived—and they’re approaching their retirement years. For many, this may entail finding living arrangements that will provide varying degrees of assistance.

That’s the big picture, but of course it comprises millions upon millions of individual human lives. And when you filter those personal stories—such as the wrongful death case of Dorothy Kramer*—through that larger statistical prism, one thing becomes clear: We, as a society, are going to need to make some changes.

An inexplicable, avoidable loss

Dorothy Kramer enjoyed living independently. Her housing solution was similar to that chosen by many of today’s seniors: an independent living facility, where she lived alone in her own room, and could come and go as she pleased.

One of the advantages of this facility was its emergency services. In addition to a cord in her bathroom that she could pull in case of an emergency, Dorothy was given an alarm to wear around her neck or wrist. If she were in an emergency medical situation, Dorothy could push a button and emergency medical services (EMS) would respond.

One morning, around 5:00 a.m., Dorothy pressed her emergency medical button. About fifteen minutes later, EMS personnel responded—to the wrong address. Dorothy’s alarm had been programmed incorrectly to the address across the hallway. When EMS arrived, they found that the resident across the hall didn’t need help, they deemed the call a false alarm, and left without helping Dorothy (or even knowing someone still needed help).

Later that afternoon, one of Dorothy’s daughters received a call from the facility. Dorothy wasn’t answering her door and the staff couldn’t get into her locked room. Finally, the director was able to let them in. There, they found Dorothy, who had died sitting in her chair, clutching her alarm.

Pointing fingers

Obviously, this was a terrible situation which never should have happened. To make matters worse, nobody was willing to take responsibility for the egregious mistake.

Both the independent living facility and the alarm company blamed each other for the procedural failure that led to Dorothy’s wrongful death. As part of our ongoing investigation, we’re obtaining information from the independent living facility, the alarm company, and others in order to put together a complete picture of just where the breakdown occurred.

Aftermath of a wrongful death

As might be imagined, Dorothy’s loved ones—her two daughters and her grandchildren—were in shock. How could such a tragedy occur in spite of the supposed safety measures that were in place?

Dorothy’s death caused a lot of pain for her family. Especially for her daughters—Dorothy had always been their rock, their anchor. One daughter has even had to seek medical treatment to deal with the depression that resulted from her mother’s death.

We’re determined to obtain the justice Dorothy’s family deserves. Healing from such an inexcusable loss is never a simple matter, so we’re also dedicated to providing the emotional support they need to weather these difficult times. Whether they need to talk about what they’re going through, or what Dorothy meant to them—we’re here to listen. If they simply need advice, we do our best to provide that as well.

Lessons for an aging population

Besides being frustrating and tragic, we think cases like these should serve as a wake-up call for those of us who are blessed enough to still have one or both parents in our lives.

The reality is we haven’t yet had to face the challenges involved with accommodating such a large group of aging seniors. With all of our advances in medicine, nutrition, and preventative health care, people are staying healthy and independent much longer. Many senior citizens own their own home and want to stay there as long as possible.

As Ohio wrongful death attorneys, we’ve seen numerous cases involving elderly victims, whether it involved medical malpractice, nursing home neglect, or other forms of harm, like conning a senior citizen out of her home.

We need to look out for our elderly loved ones and be vigilant on their behalf. In today’s specialized world, we’ve been conditioned to defer to the “experts,” but it’s important to remember that, when it comes to your parents, you’re likely the most informed. Ask hard, smart questions to ensure the people you’re sharing caregiving duties with are doing their jobs correctly. This holds true whether your parents are living at home, in an independent living facility, or in an assisted living community.

There’s another perspective to this as well: In the future, we will have a responsibility to our children and loved ones to allow them to care for us in our senior years. This could entail everything from recognizing and accepting when we’d be better off moving to an assisted living facility, to willingly giving up the keys to our car because we can no longer drive safely.

In terms of the nearer future, plan ahead. Make sure you have a will. Establish a health care power of attorney. Communicate with your loved ones what kind of living arrangement you want in your later years. These can be tough discussions, but avoiding them now can lead to much worse circumstances down the road.

We’re all caregivers

Growing old is one of those paradoxes of the human condition. Most of us don’t want to grow old, yet at the same time we usually want to live as long as possible—provided we’re cared for.

Dorothy Kramer’s daughters thought their mom was being well cared for, only to have their trust senselessly betrayed. Our primary goal at this point is to secure justice for her family and help them find a way to start healing. We’ll keep you updated on how they’re doing.

In the meantime, this story should serve as a reminder to us all to be watchful. We all have loved ones who are getting older, and some of us are getting older ourselves. While paid caregivers provide an admirable and invaluable service, they’re not infallible. We should all consider ourselves caregivers, and be diligent in that role. It’s our loved ones’ well-being on the line, after all—is there really too much we can do for them?

*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.