Cooper & Elliott Blog

Credibility Abused: The Case Against Junk Science

Posted on Wed, Aug 23, 2017 @ 3:51 PM

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.

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Injured Youth: Representing Children in the Courtroom

Posted on Mon, Jul 31, 2017 @ 2:58 PM

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.

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The Far-Reaching Effects of Injuries for Child Victims

Posted on Tue, Jul 25, 2017 @ 9:39 PM

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.

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

Posted on Fri, Jun 30, 2017 @ 5:56 PM

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.

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Keep the Jury Out: Why Settlements Are Often Better Than Verdicts

Posted on Wed, May 31, 2017 @ 7:59 PM

It’s a suspenseful moment. The jury members file into the jurors’ box. The judge asks the defendant to rise. And then the jury’s foreman reads the verdict. The revelation of the jury’s verdict has been a staple of television courtroom dramas from “Perry Mason” to “Law & Order.”

It can make for gripping television. But in the real world of civil litigation, where real people have suffered actual (often devastating) harm and seek just compensation, a jury verdict is not always the best outcome for our clients—even when that verdict is in our clients’ favor.

Why? Because, more often than not, what clients really want is to take something meaningful from a personal, professional, or family tragedy. A jury’s verdict cannot begin to match the healing potential of a carefully crafted settlement agreement.

Let’s give you some examples.

These three cases involving wrongful deaths show what settlement agreements can do that jury verdicts can’t. They also demonstrate how the impact of those agreements can reach beyond the victims’ families.

Ensuring proper testing of life-saving technology

One case involved the death of an elderly woman whose family had entrusted a senior living facility with her life. One night, the woman experienced a medical emergency and used her personal alert pendant to call for help. The alarm summoned an emergency medical squad, but sent them to the wrong address. Sadly, the woman was found dead hours later, still clutching the pendant that was supposed to help protect her.

None of the parties involved—the senior living facility, the company that made and installed the alarm system, or the company that monitored and responded to the system’s alarms—was willing to accept responsibility for the woman’s death. It took a lawsuit to sort it all out.

As part of the settlement agreement, the senior facility, at the family’s insistence, agreed to execute routine testing of the alarm systems in all its 300 nationwide facilities. The company agreed to provide signed and notarized certifications proving that testing had been completed.

The family wanted their mother’s death to mean something more than what financial compensation could provide. They wanted to ensure that such avoidable heartbreak would never be repeated.

Holding property management accountable for safety protocol

Another case involved the tragic death of a 4-year-old boy that could easily have been prevented. In his family’s apartment, the child tried to climb onto an electric stove, which tipped over and killed him.

The potential for this type of accident was known and could have been avoided easily had the apartment’s management company installed the recommended brackets that would have kept the stove from tipping over.

The case was resolved with a settlement that included a unique provision. Because their loss was so preventable, the family insisted that the property owners produce and broadcast a public service announcement to alert other property owners about the importance of using the anti-tip brackets. Again, they wanted their son’s death to have real meaning in helping to protect the lives of others.

Impacting legislation to prevent future wrongful death

One final example involved the death of a tow truck operator. He was hitching up a disabled vehicle on the side of the road at night. Even though all his warning lights were working as required, a passing car failed to change lanes and struck the operator. He was killed instantly.

To help the victim’s mother cope with her terrible loss, the settlement agreement in her case included the opportunity for her to meet with legislators. She lobbied for legislative changes in her state’s Move Over Law so that drivers would be required to change lanes not only for law enforcement vehicles, but also when seeing the flashing yellow lights of any emergency vehicle.

Turning grief to good is beyond the scope of juries

What all three of these cases have in common is that the surviving victims of the wrongful deaths were looking to take something meaningful—and even positive—out of their personal tragedies. That is not unusual.

Answers and assurance can provide healing that a monetary award cannot, and the litigation process helps produce both. Those remedies—and provisions for their enforcement—are simply not available in the courtroom. In civil litigation, juries have no power to compel specific actions on the part of any of the litigants. They can award compensation for damages, and that compensation is critical and necessary for the survivors. But it is also, too often, not enough.

That’s why settlements may provide a more appropriate resolution for clients. It gives survivors the best opportunity to make provisions that draw meaning from tragedy and, hopefully, accelerate the healing process.

If you find yourself in a situation involving personal injury or a wrongful death, don’t hesitate to reach out to the Ohio civil litigation attorneys at Cooper & Elliott for legal assistance. We’re here to help.

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

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

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Untying a Legal Knot in the Utah Supreme Court

Posted on Thu, May 11, 2017 @ 12:23 AM

The law is a tool. As with any tool, you use it to fix what is broken or to maintain what is working (i.e., to secure justice). And as with any tool, the law can be used in the “wrong” way. A clever, unscrupulous party can apply the law in ways not intended, thereby doing harm to a business and the people behind it.

Fortunately, through business litigation, the law provides ways to remedy harm that laws themselves—when misused—may have helped to create.

A sweet deal turns sour for International Confections Company

International Confections Company (ICC) produced and sold candy throughout North America, and did so successfully, growing from nearly nothing to more than $40 million in revenues in a little over three years. Part of that company’s most recent success could be attributed to an exclusive licensing agreement with Mrs. Fields Franchising.

It was supposed to be a 17-year deal, but it didn’t last that long. Mrs. Fields hired a consultant who determined that a 17-year exclusive arrangement would render the company undesirable to potential buyers. As a result, Mrs. Fields manufactured default and informed ICC that the exclusive agreement was to be terminated. ICC’s protests were ignored, and by means of a legal loophole, Mrs. Fields was released from the agreement.

Losing the Mrs. Fields business was devastating for ICC. Things then got dramatically worse, thanks again to direct actions taken by Mrs. Fields Franchising.

Mrs. Fields Franchising acquires a devalued ICC

To fund its growth, ICC had negotiated a large line of credit which was conditional on its exclusive licensing agreement with Mrs. Fields. When the bank learned the licensing agreement had been terminated, it immediately put ICC into receivership (as per the terms of its line of credit), and then put ICC up for sale.

While ICC was negotiating to repay the outstanding portion of the line of credit, the auction to sell the company proceeded. An hour before the bidding closed, a new buyer swooped in with the winning bid. That bidder was Mrs. Fields Franchising.

Things only got worse for ICC when its attorney withdrew from the case without proper notification, even though such a notification was required by law. ICC wasn’t even informed about the final court hearing confirming the sale to Mrs. Field’s until January 2015, nearly a month later.

Mrs. Fields wriggled out of its licensing agreement with ICC, which in turn greatly devalued the company. Then, in the final moments of the auction to purchase ICC, Mrs. Fields took advantage of the low price and purchased ICC for $2 million (the company had been valued at $40 million prior to the termination of the licensing agreement).

Ohio business attorneys build a strong case

At that point, International Confections Company (which was headquartered both in Utah and Ohio) became our client. We immediately saw the inequity of the entire situation. The sale should never have gone through for two reasons:

  • First, when ICC settled its debt with the bank, the company should have been removed from receivership. At that time, the bank had no jurisdiction to continue the sale. Yet ICC’s attorney, for reasons that remain unexplained, waived the “no jurisdiction” issue and allowed the sale to continue.
  • Second, the hearing that confirmed the sale to Mrs. Fields was conducted without proper representation for ICC. Utah law allows a client 21 days to secure new legal representation when an attorney withdraws. Yet the hearing was held less than a week after the attorney notified the court (but not ICC) of his withdrawal. ICC did not even have an opportunity to appear pro se at the hearing.

We appealed the case to the Utah Supreme Court. And while getting the court to reverse a decision is always an uphill battle, this case had one other huge obstacle to overcome.

Overcoming ‘equitable mootness’ through business litigation

“Equitable mootness” is a doctrine that we believe is seriously flawed, though it has been followed by appellate courts for more than a quarter century. Essentially, it says that once a deal (particularly with regard to a bankruptcy) has been completed and a substantial period of time has passed, you can’t go in and undo it, even if some injustice had been done as part of that agreement. Unraveling a complicated deal at that point, so the thinking goes, would not be equitable to all the parties involved.

But what is equitable about allowing an injustice to stand? Where is the relief for a business that was the victim of such an injustice? That was essentially what we argued before the Utah Supreme Court on behalf of ICC.

If parties in this case were allowed to get away with wrongdoing for the sake of equitable mootness, what would prevent future parties from maliciously bending the law regarding jurisdiction and legal representation when they could cite this case as a precedent?

A decision from the Utah Supreme Court is pending. However, we are prepared to pursue justice through other avenues if the court doesn’t recognize how unfairly ICC has been treated.

The business of helping good people

A final note about ICC: It is “our kind of client.” Not just because it has a problem that calls for experienced Ohio business litigation attorneys. But because of the character of the people behind it.

The owner of the company is a stand-up person who built a business from scratch only to have it ripped away through business and legal shenanigans, and through a legal process that faltered rather than adhered to the law. He’s concerned about what happens to the ICC employees who invested their own time and energy in helping to build the business. Legally he could have walked away from ICC and discharged its remaining debts, but he wants his creditors paid in full. He wants justice, from the Utah court and from Mrs. Fields Franchising, even though that’s not the easiest path.

That kind of client deserves business litigation attorneys who will go to Utah—or as far as it takes—to win the justice he deserves.

If you find yourself in a similar situation, don’t hesitate to reach out to the Ohio business litigation attorneys at Cooper & Elliott for legal assistance. We’re here to help.

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

 

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A Conditional Settlement Helps One Family Heal

Posted on Thu, Apr 20, 2017 @ 6:48 PM

As Ohio civil litigation attorneys, our focus is always on one thing: to help our clients find justice and hold the wrongdoers accountable. That means taking the time to understand our clients’ point of view and the extent of their pain. It means digging for the facts and going beyond the obvious to uncover what’s critical.

It also means, for each case and every client, determining what constitutes genuine justice.

Money alone is rarely sufficient, especially when the case involves a wrongful death or life-altering injury. What makes someone whole after a devastating loss? Are there ways not only to compensate for damages but also open possibilities for bringing an individual or family closer to healing?

A case of mistaken location

Let’s revisit a case we first brought to your attention last year. It’s a case rapidly moving toward a final resolution. It provides a prime example of how a settlement agreement can not only compensate for a loss but begin to render meaning to a family tragedy.

The case involved the wrongful death of Dorothy Kramer*, an elderly woman who lived in an assisted-living center. One morning, alone in her apartment, Dorothy pressed the emergency pendant she wore around her neck to summon emergency medical attention. The alarm was one of the services provided by the center, and it summoned an EMS unit just as it was supposed to do.

But it failed to bring them to Dorothy.

The EMS team was directed to the wrong address, across the hall from Dorothy’s apartment. Because false alarms in these situations are not uncommon, the EMS team decided that they must have been called in error, and left the premises. No one checked on Dorothy.

She was discovered hours later—alone, sitting in a chair, still clutching the alarm that she and her family had believed would prevent her from dying unattended.

Plenty of blame to go around in wrongful death

Of course, Dorothy’s passing in this manner was a tragedy. It certainly didn’t have to happen the way it did. Safeguards had been instituted to assure that appropriate emergency medical attention would be available as needed. Yet somewhere there had been a breakdown in the system, leading to a result no one wanted.

Naturally, the Kramer family wanted answers. Why did this happen? How could this have happened? But satisfactory answers were not forthcoming, so the family came to us.

There were three main players in this drama, and instead of accepting appropriate responsibility, all three were busy pointing fingers of blame. The company that owned and operated the senior living center denied any responsibility for the failure of the alarm system to perform as promised. The company that manufactured and installed the alarm system denied any responsibility for the failure of the EMS response team to make sure it had arrived at the correct address. And the company that monitored the alarm system and sent the EMS unit denied any responsibility for the system’s failure to correctly identify Dorothy’s location.

With each of the parties refusing to accept responsibility, we filed a civil lawsuit against all three companies.

Settlement discussions have been under way with the three companies, each of which is finally beginning to cooperate. In fact, we’re nearing the point of closure and don’t anticipate this case going to trial. And here, that’s a good thing. We think a settlement—without a trial—will be in the best interest of our client because a settlement is the only way to achieve an important condition that doesn’t involve money.

Salvaging some good through a settlement

Money will always be part of the compensation for damages in a civil litigation case. But so often, that’s only the starting point. What families, victims, and survivors really need is the closure that must happen before real healing can begin. They need answers. They need meaning, drawn from the knowledge that some good can be salvaged from their loss.

In this case, the Kramer family found some additional meaning through a condition we negotiated as part of the settlement. The company that owns the senior living facility will be required to test the alarms it provides its residents. To assure enforcement of this provision, the company must produce a signed, notarized certification that the tests were completed successfully.

This provision applies not only to the facility where Dorothy lived but to all the facilities owned and operated by the company. That amounts to more than 300 facilities in 38 states.

Such a requirement is possible only when there is a settlement agreement. A jury’s scope is limited to determining responsibility and awarding suitable financial compensation. What the jury can’t do is impose a condition on any of the parties in the litigation.

A condition such as the certified testing of literally hundreds of alarm units must be agreed to by the parties involved.

It represents an extra step in the civil litigation process, one that the client’s attorney must be committed to pursuing. But as in the case of Dorothy Kramer, it’s one step that will benefit all parties involved, including future residents of Dorothy’s senior living facility. Their lives will be better protected because of the Kramer family’s foresight and its commitment to doing what’s right.

If you find yourself in a similar situation, don’t hesitate to reach out to us. We’re here to help.

*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.

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Seeing is Believing: The Benefits of Forensic Animation

Posted on Tue, Mar 28, 2017 @ 3:19 PM

In a personal injury or wrongful death case, the jury must understand the difference between what happened and what should have happened in order to deliver a just verdict. It’s our job to make sure jurors understand the evidence so they can sort out the truth about a case. Our success hinges on establishing a connection with jurors, and then effectively communicating to them the significance of the evidence we present.

We work with expert witnesses to help explain evidence. Sometimes the timing and physical nature of events in a case are complex, and demonstrative evidence, such as images and video, comes in handy. Visual evidentiary exhibits often have more power to communicate and can be more memorable than words alone. But static images and videos taken from a single point of view have limitations.

Enter forensic animation, an emerging technology in demonstrative evidence, which is playing an increasingly larger role in civil litigation.

How forensic animation brings a case to life

Video or photos taken at the scene of an event can only present facts from one perspective and therefore can’t always tell the whole story. Forensic animation, on the other hand, virtually recreates events—and can do so from multiple perspectives. In addition, it can slow down action or zoom in to reveal critical details.

Using full-motion computer graphics to recreate events, forensic animation can help jurors visualize a car crash or an assault crime, and it can even demonstrate a product failure that resulted in a personal injury or wrongful death.

Forensic animation relies on the same computer-driven technology used in action films and the same advanced forensic science used by law enforcement. The images are compiled from a variety of sources and perspectives: police officers, forensic experts, engineers, eyewitness statements, security and body cameras, even autopsies.

For a car crash, the simulation would include data gathered at the scene, details about the terrain, weather, and traffic conditions at the time of the accident, police photographs, and more.

In medical malpractice cases, computer-aided animation, or medically demonstrative technology, is used to explain medical conditions or injuries.

In other types of civil litigation cases, the goal is the same but the subject matter is different. Take an example from a few years ago. It involved a high-speed car chase in Cleveland that led to officers shooting a suspect. Because there was sufficient video of the chase and the shooting, from several perspectives, an animation was made that re-created the event in comprehensive detail—even to the point of following the paths of individual bullets. Forensic animation filled information gaps, leaving little doubt as to how the event played out.

There is usually a wealth of information available with which to build an animation if attorneys are willing to put in the effort to find it. (And, of course, we are.)

Demonstrative evidence provided, jurors decide the truth

Forensic animation likely never will replace other types of evidentiary exhibits in civil litigation cases. Nor will it replace expert testimony. But it is a powerful tool that enhances both. There will still be times when we want to use a good old-fashioned photograph, blown up, mounted on poster board, and placed in front of the jury for an extended period of time. We can’t do that with an animation.

Civil litigation attorneys can use these tools to support their respective cases, but at the end of the day, it’s up to the jury to determine the truth.

The key for us is knowing which demonstrative evidence tools to use, and when, in order to build our clients’ cases most effectively.

 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.

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Going the Distance and Then Some

Posted on Thu, Feb 9, 2017 @ 5:18 PM

When beginning the process of buying a car, you go in with an idea of what you want and what is available. You research makes and models and learn about what they offer—you might even visit a dealership and do test drives. “Shopping” for an attorney is more complex. You don’t really know what “features” you will need or what kind of questions you should ask.

If you are in need of a civil litigation attorney, chances are your frame of mind is teetering between stress and anger and perhaps even grief. All you really know is what you want in the end: justice.

Once in a while, we’re asked, “What makes your law firm different from any other?” It’s a fair question. Sure, we can talk about what we do that makes our firm different—but it’s how we do it that’s more important.

Most law firms talk ‘what,’ not ‘how’

When prospective clients ask what makes us different from other law firms, it’s difficult to make that comparison. But we do know there is a difference—an important difference—that comes across when we face other attorneys in negotiations and in the courtroom.

It’s the difference between “what” and “how.”

Most legal firms are happy to tell you all about “what” they do: the cases they take, the number of cases they’ve won, the expertise they will bring to your case. That’s all fine, and even necessary. But we think it’s more important to talk about “how” we do our job, and what clients can expect when working with us.

The differentiating “how” for us is two-fold: how we get the information that makes or breaks a case, and how we relate to our clients.

Tenaciously pursuing facts

When you’re going into battle, there is no such thing as having too much ammunition. In civil litigation, the same is true with information—it’s the ammunition we bring to fight for our clients’ causes. We always want more information, and we nearly always have to dig to find it. (And then dig some more.)

We take nothing for granted. We never really know where information will lead us until we start digging. We try to interview every potential witness and talk with every expert who can help us gain insights that opposing counsel may not have.

We push for every document we can get. For example, we represented a family in a wrongful death case that involved an emergency unit that responded to the wrong address. At first, we were told that critical documents no longer existed. But we weren’t satisfied with that answer and continued to push for information. When the defendants started pointing fingers of blame at each other, those documents “miraculously” appeared.

We also make site visits. If a case involves an automobile accident, we go to the site of the crash. We want to be at that intersection, see the traffic and landmarks that our client experienced. We want to understand what happened better than the opposing attorneys (who, often, haven’t been there at all).

Behind every case is a person

When we represent businesses that have been victimized by neglect or fraud, we keep in mind that behind every business is a business owner, employees, and their families. In each case, there are real people who have suffered harm they didn’t deserve.

The same is true in wrongful death cases. We represent grieving survivors who are trying to put their lives back together, often financially as well as emotionally. It’s not just a matter of applying the law to achieve justice. We’re in the business of helping people heal their lives.

It means understanding our clients on a deeper level—their lives, their relationships, the pain they’ve endured. In one case, we visited the grave site of a young boy who had been killed when an unsecured stove tipped over onto him. We saw toys and other mementos placed at the grave by the family, and that gave us the opportunity to ask about those special things and learn more about the family and the child they had lost.

Our professional DNA aligns with the Golden Rule. We ask ourselves important, fundamental questions: How would we want to be represented? If we were the victims, how far would we want our civil litigation attorney to go for our case? How much time and commitment would we want them to dedicate to our healing?

That’s not just our practice. It’s who we are.

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.

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A Child’s Wrongful Death Leaves a Legacy of Hope

Posted on Tue, Jan 31, 2017 @ 7:40 PM

The death of a small child is a tragedy no family should have to endure. But sometimes it happens, and the family members must carry the grief with them for the rest of their lives.

In a wrongful death case, a family sues the party responsible for the death of their loved one. If during the lawsuit, the family decides to settle the case, they might insist that part of the settlement includes action that will make such tragic events less likely to happen in the future. To look beyond your own grief and try to do what’s right for others takes a special kind of strength—and it helps to have Ohio wrongful death attorneys who are willing to look beyond the obvious to make it happen.

A family’s daily struggle turns tragic

It was fall when the Smith* family moved into an apartment complex in central Ohio. The complex, which had been purchased three years earlier by an out-of-state company, was run down, and the new owner did little to make upgrades or basic repairs. On moving day, the Smiths found themselves in a unit that was in much worse condition than the one they had been shown when they signed their lease.

As winter came and the temperature dropped, the Smiths noticed the heating system for their apartment was not working well. They made numerous attempts to get the property’s management team to address the issue, but by February the heating system was still not fixed.

The Smiths—with three small children, ages 2, 4 and 7—did what other families in the complex were doing to make their winter days livable. They used an electric space heater, covered drafty windows as best they could with plastic, and, on the coldest days, resorted to turning on their apartment’s old electric stove.

One morning, Mrs. Smith was in the back bedroom with her 2-year-old daughter, while her 4-year-old son was playing a video game in another room. At one point, Mrs. Smith heard the game become idle and asked her daughter to find out where her brother had gone.

The little girl came back and said, “He’s in the oven.”

Wrongful death and a family’s grief

Mrs. Smith rushed to find her 4-year-old son with the stove tipped over on top of him, his lower half trapped in the oven. While we may never know exactly what happened, it seems the boy had tried to climb on the stove, causing it to tip over onto him and pin him to the floor. He couldn’t call out, or even breathe.

His mother tried to administer CPR and called 911. The emergency squad arrived, but it was all to no avail. The little boy had died from asphyxiation from being pinned under the stove.

The Smiths struggled with their grief and feelings of guilt for nearly 18 months before they contacted us about a potential wrongful death action. That kind of delay is not unusual in cases like this. Families need time to deal with the impact of the tragedy, and with feelings of guilt that, in cases like this, are unavoidable but never deserved.

The weight of property management negligence

As the Smiths’ attorneys, we investigated how a stove could be tipped over by a 4-year-old child. We talked to maintenance personnel, responders to the scene, and officials for the city where the apartment complex was located. We interviewed industry experts and spent a great deal of time putting together the history of stoves, how they’re made, and if there were steps that the property owners should have taken to prevent the child’s death.

As it turned out—there were.

Older models of electric stoves were prone to being top heavy, and to prevent them from tipping, oven manufacturers began requiring that anti-tip brackets be installed to secure the stove to the floor. That safety standard had been in place since 1991. The Consumer Product Safety Commission did a study about anti-tip brackets, and there have been several notable lawsuits filed over the years regarding failure to use them.

It’s a fix that takes about 10 minutes and costs about $10. And in this case, the brackets would have saved a child’s life. But they were never installed.

We learned from members of the maintenance crew that they had started to install the anti-tip brackets in some units but were instructed not to because it was slowing down their work orders. That left some stoves in the apartment complex with brackets. It left others, like the Smiths’, without brackets, waiting to tip.

A settlement for the sake of safety

We filed a wrongful death suit on behalf of the Smiths, but after much investigation and a round of mediation, the family reached a settlement with the property management company.

In cases like this, a settlement has some advantages over going to trial. First, it’s less time consuming and costly for all parties. It also allowed the family to avoid reliving their trauma again and again while preparing for depositions and trial. But, perhaps most importantly, a settlement allows plaintiffs to ask for conditions beyond money. In a trial, all a jury can do is award money. It’s a horrible substitute for the loss of a child, but it’s all a jury can do.

The Smiths, to their credit, wanted something more. They wanted to be sure that some good could come out of the tragedy of their son’s death. As part of their settlement, they asked that the property management company prepare and issue a public service announcement to alert other property owners about the importance of using anti-tip brackets.

Hopefully, you never find yourself in a similar situation, but if you do, don’t hesitate to reach out to 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.

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

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