News From the Front: Historians and Experts

All personal injury cases benefit from good historians and good experts. Sooner or later in the life of a case, a medical expert is going to be needed to testify on behalf of the injured individual as either the treating physician or as a medical expert retained to offer his or her medical opinion as to the gravity (or lack thereof if you are defending such a suit) of the injuries sustained by the client. From the perspective of the injured individual, as far as medical testimony goes, it is always best to bring in the treating physician(s) to testify at trial. The treating physician has seen the patient the most, and in the appropriate case, actually has looked into the operative site and is best situated to explain what he or she found during surgery and what the progress over time of the patient has shown. The physician will be essential at trial to determine whether the accident at issue was a substantial factor in causing the need for the surgery and whether, depending on the injury involved, the injury that gave rise to the need for the operation thereafter resulted in a permanent loss or an injury that has fully resolved.

But medical experts, while the most obvious, are far from the only types of experts that regularly testify at trial. Engineering experts may opine on the code compliance of an escalator or an elevator in an accident involving one or the other. Engineers testify about almost anything involving technical compliance, the height of the curb, the rise between sections of sidewalk, whether the train tracks are worn to a dangerous level or the brakes on the train itself too old to be safe, or if the metal in the bicycle frame was negligently weakened by some process in the manufacturing and/or design that caused it to break apart under the rider in normal riding conditions and for no apparent reason. The lists is endless. Economist may be called to testify on the future economic impact of a person's loss of ability to work or a weatherman on the past climate conditions at the place and time of an accident involving ice or snow. Life planners may be employed to show what will be involved in providing the severely injured individual with a modicum of dignity and function following a catastrophic injury. From a defense perspective, surveillance experts may be called in to testify as to video they have taken of the claimant doing back flips when a severe back injury has been alleged to establish that the person is a faker and when and where the video was acquired: was the video three years before the accident or was it taken last week?

I write about experts to highlight the complexity of even the simplest of personal injury claims and the importance of historians and experts. There are numerous facts and details that are crucial to the successful prosecution of a personal injury lawsuit. Chief among them is how did the person actually get hurt; was their shoulder jammed into the car door when they were T-bone on the driver's side in an auto accident or was it when they landed on their shoulder on a slick, slippery floor at the hotel? It is critically important that the injured individual keep a precise record of what happened, who and where they went for treatment, what type of provider they saw and how often they went for treatment and to be able thereafter to give the attorney an accurate history of the accident itself and the medical care and procedures they have had to endure following an accident where they were injured. A good historian is a godsend to the personal injury lawyer who seeks to capture every detail of the loss itself so that the appropriate expert(s) can be found to match the negligence alleged and the type of medicine involved after the accident to maximize the recovery for the person who has been hurt and to bring about full justice in the claim. 

News from the Front: The Examination Before Trial (EBT)

You have started your case and months have gone by and you haven't heard from your lawyer and you are wondering if anything is going on at all when you get a letter or a call telling you that you will have to appear to give testimony in your case at either the court house itself or at one of the many company settings that now exist to take testimony in cases in litigation. What do you do? You have never testified before and you are anxious and you have no idea what they are going to ask you or what you are going to say. 

Relax.

Your excellent trial lawyer is going to ask you to appear at his or her office a day or two before the day of testimony to review your case and make it clear to you what you can expect and what traps to avoid. Having just written "traps", I must digress: the classic trap in auto accident cases is the time, speed, distance trap. How far away was that vehicle when you first saw it prior to the crash? What was you speed at that time? How much time passed between the time you first saw that vehicle and the time the accident (I generally like using the word crash but accident will do)?

Many people will guess: Oh I don't know, 50 feet? Maybe 5 seconds? I was going 30 mph? They are not so much testifying as giving words they hope will be acceptable, which is dangerous in litigation. The problem is that annoying little area of law known as mathematics. A vehicle will travel approximately 1.5 feet for every mile per hour travelled, that is, going 10 mph equates to approximately 15 feet per second. How can that be you ask? Do the math.

At one mile an hour, your travel one mile in one hour. An hour has 60 minutes, a mile has 5280 feet, therefore dividing both values by 60 gives you the amount of feet one travels in one minute: 88 feet. Stay with me. A minute has sixty seconds so dividing one minute by 60 and 88 feet by 60 gives you the amount of feet covered in one second: 1.47 feet per second.

What does this all mean and how would they use it against me? So if you testify that the other car was one hundred feet away turning in front of you at an intersection and the crash happened "a second" after you saw them in a 30 mph zone; they have got you. If it was one hundred feet that you had to travel to reach the intersection and you arrived there "a second after seeing the car" you had to be traveling at least 66 mph (99ft/sec) or twice the 30 mph speed limit. Speed, distance and time rarely, if ever, line up in testimony and it is always a dangerous area. That's why guessing is not a good thing to do, even estimating time and distance are usually so inaccurate as to be hazardous to your case. If you know, tell the truth and say what you know but if you don't know, don't guess.

Back to the deposition prep, briefly. You will have three parts: your personal history, the happening of the accident itself and the medical attention you have received since the day of the accident. You should be fully prepared to testify about where you have lived for approximately the last ten years, where you have worked, what your responsibilities and duties are at that employment, etc. You should also review as many details about the day of the accident and the accident itself as you can, reviewing the relevant police report and any documents you may have that would refresh your recollection. Finally, you should be fully versed in the medical complaints you made to your provider, the emergency room and everyone thereafter, who the medical providers were or are that you used, any diagnostic tests, and any surgical procedures you went through since the accident in order to lay out a clear and detailed picture of your claim.

Should your attorney say that he or she will meet you a half hour before you are to testify to go over everything, run. The kind of preparation needed to professionally prepare you takes as long as it takes and never takes as little as a half hour.

New from the Front: How long does it take?

Everyone I represent hesitates to ask but always wants to know, "How long will this lawsuit take?" Like everything else the real answer is, it depends, but there are some generalities that may be worth noting. Assume there is 'no-question' that there is a serious injury at issue in the claim in a motor vehicle accident, a fractured limb comes to mind, and there is a 'no question' liability claim, a stand-still-hit-in-the-rear comes to mind or a gravity related labor law claim with strict liability also helps move things along as it will make summary judgment on the liability component more likely than not; it still could take a long time. There may be real questions as to the full value warranted to fairly and adequately compensate the accident victim for the consequences of their injuries and/or, in the construction case, the many possible defendants may have significant litigation to determine who is more responsible among the multiple responsible parties and who should bear the greater burden in satisfying the debt that has been created by the accident, general and sub-contractors may be at war for a while just figuring out what the contracts between themselves dictate before any discussion and resolution with the victim can reasonably be initiated, undertaken and reached. 

Still there are certain best case scenario timelines: Accident today, suit written tomorrow, service of the suit within two weeks, sued parties have thirty days to answer which, at least in my practice, if they want an extension of another thirty days to answer at the end of the initial thirty days I always allow. Discovery begins, an RJI (Request for Judicial Intervention) is filed to have a judge assigned and a PC (Preliminary Conference) is held to schedule when the parties will testify, when all the discovery should be completed, when the defendant Independent Medical Examinations (one or more) should take place, then the case is certified ready for trial (or no certification needed depending on the county where the action is pending), a Note of Issue is filed (saying the case is ready for trial) and the wait for a Jury selection date begins, a trial, a verdict and no-one appeals (this is best case fantasy remember) - 2 years.

It can happen in less time (I'm starting a trial on a 4-5-14 accident as I write), but the attorney that promises less than two years paves the way for a world of near certain grief as the calendar rolls on and the case continues into year three and on.

News from the Front: New Driver in an Accident

My 23 y.o. daughter recommended that I write and explain to people who have just gotten their licenses what they should do if they are involved in an accident.  The advice I would give her is, first, remain calm. Studies have shown that as the summer months arrive and the temperature rises, people actually get angrier more quickly (google it, I'm not kidding). As my daughter is barely 5'2", weighs nothing soaking wet and couldn't fight her way out of a paper bag, my second piece of advice is to stay in the car until you determine 1) that you can move without pain and 2) the other person seems sane and reasonable. That said, call some significant person in your family to let them know what happened and where you are and call the police, not necessarily in that order.

The police are going to want to see 1. your driver's license, 2) the registration on the car (paper the size of a deck of cards with the owner and car listed) and 3) proof that the car you are driving is insured. Toward that end, you should be aware of where those documents are in the car (glove box?) in any vehicle you are driving. If the other driver demands to exchange information before the police arrive, tell them who you are but indicate that you will be providing your identification to the police and would rather wait until they arrive.

While at the scene, provide the police with your thoughts on how the accident happened and tell the police of any injuries of which you are already aware. Every situation is different, if the cars appear to be smoking, it might be a good idea to get as far away from the vehicles as possible. On the other hand, if someone is complaining of neck or back injuries, the best advice is to let the emergency responders be the only people who attempt to move that person as they may need to be placed on a gurney or back board to protect against further injury.

If you do get out of the car and can safely move around (not on a parkway or high speed highway), use your smart phone to take pictures of the position of the vehicles, the damage to the vehicles and particularly, the license plates of the vehicles so that you can tie your photos to the cars listed in the police report that will generate. This may become especially important should the issue of who "caused" the accident come into dispute (as is likely). 

My singular piece of advice is to be kind. You are never wrong to do the right thing. Road rage is a real issue on the highways and parkways of Long Island and New York City and kindness can do a world of good when people are upset or in shock and may not be their kindest selves.

News from the Front: The "Independent Medical Examination" (IME)

Many of my fellow plaintiff's lawyers call the Independent Medical Examination (IME) that occurs in personal injury claims the "Defendant's Medical Examination." These medical examinations occur in two contexts in car accident cases and are never "independent". In the first case, an injured insured who is receiving treatment through his own auto insurance (No-Fault Coverage) is required to appear at a doctor of the insurance company's choosing in order to allow the insurance company to assess whether continued treatment is warranted. If the doctor they have hired decides that no further treatment is warranted, the insurance company can then discontinue the medical coverage and save money. If the doctor finds that additional medical coverage is warranted, then the injured individual can continue treatment using the insurance company coverage and the doctor who authorized it can begin looking for new employment. With only partial tongue in cheek, it is fair to say that the IME that the No-Fault provider uses is usually two or three minutes in duration and is a fair mockery of medical practice. The second case isn't much better and may be worse: When an injured individual sues another party asserting that the other party is responsible for the injuries and damages that follow from the negligence, the stakes on the IME go way up. This doctor is hired by the defense firm defending the lawsuit with the singular (there are rare exceptions) intent on finding that the injuries claimed are either preexisting, degenerative in nature, or unrelated to the trauma that gives rise to the litigation. Again, the honest medical practitioner (and this is just my opinion and there are a few) who finds that the injury is acute, is not degenerative, and/or is related to the trauma at issue, is a rare bird indeed and should be applauded in the face of the near certainty that if he continues to find claimant's injuries warrant compensation he or she can expect to see a reduction in his or her income related to doing further "liability" IMEs down the road. 

News from the Front: Prior Notice in Falls

Falling down outside in New York City or on Long Island raises innumerable questions about whether or not anyone may be responsible for the condition of the area in which you fell and for the injuries you sustained as a result of the fall. If you fall in NYC on a sidewalk, the adjacent property owner may be responsible for maintaining the condition of the sidewalk rather than the city itself. If you fall in a crosswalk, it may be the city or the town where you fall that is liable but there is a concept called prior notice of the condition (and its more difficult cousin with municipal owners: prior written notice) that may make it difficult to properly make a claim and recover for your injuries. Here is a simple example that I have used for years regarding liability and prior notice: You and I are talking in your living room and I get up to go into the kitchen and fall down on a banana peel that is lying on the floor and break my neck. You may or may not be liable for the consequences of my fall. If 1) you put the banana peel down yourself and created the dangerous condition that caused me to fall and didn't tell me about it as I left for the kitchen (assuming I can prove it), you are probably liable; or 2) the banana peel has been on the floor for weeks for God knows what reason and you knew or should have known that it was there (assuming I can prove it) but you failed to pick it up and remove the danger of the banana peel on the floor, you are probably liable; or 3) while we were talking the banana peel slipped off the counter and landed on the floor and you didn't have a clue it was there while I headed off to the kitchen, you have not done anything wrong and you would not be liable. I still have a broken neck but nobody did anything wrong in Scenario 3 so there would be no case. The same concept of prior awareness (and by extension the chance to correct the situation-- 'opportunity to cure') applies to slip/trip and falls in stores due to debris and to many different slip/trip and fall cases that arise in New York State. Each case requires careful analysis and discovery of the individual facts specific to the situation surrounding the fall to determine who if anyone is liable. 

News from the Front: New York No Fault

After you have been in an accident in New York while insured with a company that does business in New York and you have notified your insurer that you have been injured and that you are seeking medical attention, the insurer will send you a form (NF2 form) that asks you about what happened, what your injuries are, who the doctors are that you are using and whether the accident happened in the course of your employment. If it was in the course of your employment, it is not covered by No-Fault, stop here. If the accident was not in the course of your employment, which includes when you are heading to and from your home to the job but does not include as working when you are making personal stops along the way to and from the job, then your medical bills for the medical assistance you receive arising out of the accident will, theoretically, be covered up to the first $50,000.00, which is known in the vernacular as Basic Economic Loss (BEL). Optional Basic Economic Loss (OBEL coverage) is available above the state mandated $50,000.00 minimum for medical attention or lost wages for an additional fee. One of concerns to note on the NF2 is the list of injuries you identify on the application for benefits. The rule, like classifying documents at the CIA, is if in doubt, list it. If you think you may have injured your hand but you believe it will get better with time and think you might as well leave it out, it is probably a better idea to identify the injury right off the bat. The listing of medical providers, also called for in the initial application, is more difficult. Since you may not have seen anyone beyond the hospital where the ambulance took you, you may have to leave that area blank. When the insurance company seeks to cut off your benefits and stop paying the medical bills, they will have to send you to the same type of provider that you are using to stop paying for that type of care. If you list a chiropractor they will have to send you to another chiropractor in order to justify cutting off coverage for chiropractic care for example. Therefore, who you list makes a difference.