Is There Really a Right to a Civil Jury Trial?

I’m Katelyn Holub, an attorney focusing on personal injury law in northwest Indiana.

Welcome to Personal Injury Primer, where we break down the law into simple terms, provide legal tips, and discuss personal injury law topics.

You may have heard that the U.S. Constitution guarantees a right to a jury trial in a civil lawsuit. While that is technically true, judges have over 200 plus years greatly watered down that right.

One of the many ways judges have restricted jury trials is by entertaining a type of motion which asks them to summarily rule on a case and thereby take a case away from a jury.

The motion is not surprisingly called a summary judgment motion.

A summary judgment motion is treated differently in state and federal courts.

Not surprisingly, federal court judges step in to rule on cases, taking them away from the jury, much more frequently than do state court judges.

Under Indiana law, a party moving for summary judgment has the burden of establishing that no genuine issue of material fact exists, and once the moving party has met this burden, the burden shifts to the nonmoving party to establish that a genuine issue does in fact exist.

Let’s pause for a second.

Why does the rule require the court and parties to focus on whether a genuine issue of material fact exists?

Well, obviously all lawyers know that the Constitution exists and guarantees a jury trial.

Some lawyers see the Constitution as an obstacle. When people see an obstacle, their tendency is to find a work-around that obstacle.

So the traditional time-tested way around the Constitution is to file a motion with the judge saying in effect “Judge, the facts are so clear and not in dispute, so there is really no need, judge, to waste time calling together a jury. In fact, judge, the facts are so clear that no jury would ever rule in any way except in our favor, so we ask you to summarily rule in our favor, judge.”

As we just said, in Indiana, the nonmoving party can avoid summary judgment and still take their case to a jury by showing the judge that a genuine dispute as to material facts exists.

But the federal standard is much different.

If you are in a federal court, summary judgment is required to be granted against a party who fails to establish an essential element of that party’s case.

This may seem like a slight difference in language, but it is a huge difference. It gives a federal judge much more leeway to take a case away from a jury.

Why is this issue important?

Because if a defendant can somehow land a case in federal court, they have a higher percentage chance of getting the case tossed out of court and avoiding a trial by jury.

Defendants know that statistically, juries are much tougher on defendants overall.

Juries are made up of non-lawyers. Juries often see through legal smoke screens that big corporate defendants raise in court.

A plaintiff’s odds of winning increase greatly if they can get their case heard by a jury.

A defendant’s odds of prevailing increase greatly if a jury never hears the case.

I hope you found this information helpful. If you are a victim of someone’s carelessness, substandard medical care, product defect, work injury, or another personal injury, please call (219) 736-9700 with your questions. You can also learn more about us by visiting our website at DavidHolubLaw.com – while there, make sure you request a copy of our book “Fighting for Truth.”

Intentional Infliction of Emotional Distress

I’m David Holub, an attorney focusing on personal injury law in northwest Indiana.

Welcome to Personal Injury Primer, where we break down the law into simple terms, provide legal tips, and discuss personal injury law topics.

In our last episode, we discussed the subject of negligent infliction of emotional distress.

In this episode, we discuss intentional infliction of emotional distress.

Yes, in Indiana, if someone intentionally causes another to suffer emotional distress the law recognizes that as grounds to sue.

The key case discussing the subject of intentional infliction of emotional distress was decided in 1991. It involved the following set of facts:

A young man spoke with a 16-year-old girl. Later that day several members of the girl’s family came to the young man’s house and leveled a number of unsavory accusations at him. One of the group had a pistol strapped to his side. The young man was extremely frightened and feared he would be shot. The young man became nervous, depressed, and had difficulty sleeping, and required psychological counseling.

In deciding that the young man could sue, the court defined intentional infliction of emotional distress as follows:

one who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is subject to liability for such emotional distress.

What are the key takeaways?

First, the conduct must be intentional or reckless.

Second, the conduct must be extreme and outrageous.

Third, the distress suffered must be severe.

People often do things to cause emotional distress in others.

However, unless the conduct is extreme and outrageous, intentional, and unless the distress produced is severe, a person wishing to sue is going to have a difficult time prevailing.

Of course, it’s unlikely that anybody who engages in the type of conduct I’ve described will have insurance to cover such bad behavior.

Consequently, the person who obtains a judgment against another person for intentionally inflicting emotional distress may have difficulty collecting on that judgment.

I hope you found this information helpful. If you are a victim of someone’s carelessness, substandard medical care, product defect, work injury, or another personal injury, please call (219) 736-9700 with your questions. You can also learn more about us by visiting our website at DavidHolubLaw.com – while there, make sure you request a copy of our book “Fighting for Truth.”

Bystander Witnesses a Loved One Suffer a Severe Injury

I’m David Holub, an attorney focusing on personal injury law in northwest Indiana.

Welcome to Personal Injury Primer, where we break down the law into simple terms, provide legal tips, and discuss personal injury law topics.

Today’s question comes from a caller who was told her husband was seriously hurt at work.

When she got the call she was across the street from the work site. When she got to the work site ambulance personnel were attending to her husband, and a medivac helicopter was landing. She tried to speak to her husband but he was incoherent. There was blood all over his shirt and his leg was bent at a terrible unnatural angle.

She wanted to know her legal rights.

In a past episode, we discussed the availability of damages for negligent infliction of emotional distress.

Decades ago in Indiana, the path to obtaining emotional distress damages was narrow. To obtain such damages a plaintiff had to prove:  1) an impact to the plaintiff; 2) that causes physical injury to the plaintiff; 3) that in turn causes emotional distress.

This was known as the impact rule. And, it was very difficult to meet.

Under the old impact rule, the caller would have no case for the distress she experienced in seeing her husband hurt. Why? Because she was not directly physically impacted herself. She was just an observer.

In the last 25 years, Indiana court decisions have trended in the direction of allowing recovery of damages for emotional distress in circumstances that never would have been permissible under the older and stricter impact rule.

Now an emotional distress damage claim is available where a Plaintiff witnesses the serious injury or death of a loved one.

Here is the exact language from a key court decision on the subject:  -[W]here the direct impact test is not met, a bystander may nevertheless establish “direct involvement” by proving that the plaintiff actually witnessed or came on the scene soon after the death or severe injury of a loved one with a relationship to the plaintiff analogous to a spouse, parent, child, grandparent, grandchild, or sibling caused by the defendant’s negligence or otherwise tortious conduct.

Clearly, the caller’s circumstances fit the court test required to make a negligent infliction of emotional distress claim.

Keep in mind, if the caller had phoned our office 25 years ago and relayed the same facts, we would have had to report that it would be unlikely that she could succeed in bringing a negligent infliction of emotional distress damages claim.

In fact, we did get a call from someone 30 years ago involving a medical malpractice claim for emotional damages. At that time we had to tell the caller he had no claim.

Today the same caller would have a claim.

Here are the facts of that call. The caller went to the ER. They took blood. The doctor came back and told him he had only a week to live. The next day the doctor came in and said there was a mistake reading the blood test and the caller was going to be fine.

About 15 years after that call Indiana courts ruled that a mother who was not accurately told of fetal blood test results that indicated severe birth defects, leading to the delivery of a severely handicapped baby that died weeks after birth, could recover emotional distress damages due to her doctor’s failure to correctly report fetal blood test results.

I hope you found this information helpful. If you are a victim of someone’s carelessness, substandard medical care, product defect, work injury, or another personal injury, please call (219) 736-9700 with your questions. You can also learn more about us by visiting our website at DavidHolubLaw.com – while there, make sure you request a copy of our book “Fighting for Truth.”

In Rare Cases, Attorney Fees Can Be an Element of Damages

I’m David Holub, an attorney focusing on personal injury law in northwest Indiana.

Welcome to Personal Injury Primer, where we break down the law into simple terms, provide legal tips, and discuss personal injury law topics.

When people sue in court normally each party pays their own attorney fees.

This means that if a plaintiff files a lawsuit the plaintiff must bear the cost of their own attorney. Win or lose.

The same is true for the defendant.

There is an exception however in Indiana if the lawsuit filed is seeking damages for an adult wrongful death.

Indiana law says that attorney fees are an element of damages if a plaintiff’s estate pursues and wins an adult wrongful death lawsuit.

In other words, in Indiana, the estate may recover the cost of pursuing the case if the estate wins in court, and the costs it may recover include the cost of hiring an attorney to pursue the action.

Say an estate is opened by a widow to sue for the wrongful death of her husband. Say the estate wins at trial. After being successful at trial, the estate can petition the court for an order compelling the defendant to pay the estate’s attorney fees and other costs associated with going to trial.

The only reason this is permitted is because there is a specific statute that permits attorney fees to be recovered in wrongful death estate cases for adults. If you think this is a great benefit, it is not.

The same statute greatly restricts the other damage elements that can be recovered in a wrongful death situation. For example, the estate cannot recover for the pain and suffering experienced by the deceased.

But how are attorney fees calculated in this situation?

Typically a plaintiff’s attorney proceeds on a contingent fee basis.

But when an estate is seeking a recovery of attorney fees, the estate can submit evidence of the reasonable hourly rate for the attorney handling the case and submit evidence of the number of hours put in by the attorney handling the case.

Proof as to the value of attorney fees may require expert testimony.

This testimony may come from an attorney who has nothing to do with the case, who testifies in court as to the reasonable value of the services rendered to the estate by the attorney who handled the trial for the estate.

I hope you found this information helpful. If you are a victim of someone’s carelessness, substandard medical care, product defect, work injury, or another personal injury, please call (219) 736-9700 with your questions. You can also learn more about us by visiting our website at DavidHolubLaw.com – while there, make sure you request a copy of our book “Fighting for Truth.”

Disabling Injuries Can Impact Earning Capacity

I’m David Holub, an attorney focusing on personal injury law in northwest Indiana.

If a person suffers a long-term disabling injury, it becomes important to understand the negative impact the injury will have on their capacity to earn a living.

The federal government collects information about the impact of disabilities on the ability to work. The information is cataloged in tables on workforce statistics. Many businesses rely on such information including insurance carriers.

Not surprisingly people who experience a disabling injury do not participate in the labor market to the same extent as do able-bodied persons. Their lack of participation is not because they don’t want to participate, it’s because they qualify for fewer jobs.

Also not surprisingly, those who actually do find a job that will enable them to work within their medically stated work restrictions, experience lower earnings.

Let’s discuss an example.

A person disabled in an accident may be told by the doctor that they must take a job that keeps them sedentary for most of the day.

Before the injury incident, that now disabled individual was working full-time on a factory assembly line.

On the assembly line, they were making $50 per hour in part due to a well-negotiated union contract.

Following their injury they ask to go back to the assembly line, but they are told that there is no place on the assembly line for someone who must remain seated the entire work day.

The number of jobs now obtainable by the person disabled in the accident is now very limited.

They are foreclosed from doing the high-paying assembly line job.

Because they need to earn some income, they keep looking and they find a job where they sit at a cashier counter at a convenience store. They are very thankful to get the job, but it only pays them $12 an hour.

But pay is not the only benefit of working.

When the person worked on the assembly line they had a pension benefit, they also had paid health insurance, and they got five weeks vacation paid every year.

Not only does the sedentary cashier clerk job, pay less than ¼ the amount they were earning pre-injury, but now they have no pension benefits, no health insurance benefits, and no paid vacation.

Also, since their income is lower, the amount that social security will pay them at retirement is less.

For a young person a loss in earnings capacity, and loss in benefits, can add up to hundreds of thousands if not millions of dollars, over a lifetime.

The options for the person who is suddenly thrust into a job market where they must remain sedentary are also limited by their educational background.

In other words, there are many more sedentary jobs for people who have college degrees. If the person suffering a disabling injury has only a high school degree, the number of jobs open to them within their medical restrictions might be quite limited.

So how do attorneys explain to juries the full ramifications of a disabling injury?

Sometimes it is necessary to call as a witness an economist who can make calculations in detail so as to make clear the real loss flowing from a disabling injury.

These experts quantify the preinjury annual earning capacity and calculate the preinjury work life expectancy. Then they quantify the post-injury annual earning capacity and the post-injury work life expectancy.

You might be thinking that the work-life expectancy of a person won’t change just because of a disabling injury, but there actually may be a great change in work-life expectancy.

Where a medical doctor limits someone to sedentary work, they may also be able to state that due to the injury, the person will no longer be able to work until age 70, but rather will need to retire at age 60.

A lifetime loss can be complicated to calculate. But once you understand the factors that could affect the calculation most people called to serve on a jury will have no difficulty understanding the concept.

I hope you found this information helpful. If you are a victim of someone’s carelessness, substandard medical care, product defect, work injury, or another personal injury, please call (219) 736-9700 with your questions. You can also learn more about us by visiting our website at DavidHolubLaw.com – while there, make sure you request a copy of our book “Fighting for Truth.”

How Does a Jury Evaluate Scarring

I’m David Holub, an attorney focusing on personal injury law in northwest Indiana.

Welcome to Personal Injury Primer, where we break down the law into simple terms, provide legal tips, and discuss personal injury law topics.

One component of damage that we frequently encounter in injury cases is physical scarring.

Scarring, or disfigurement, is always compensable as an element of damage in civil injury cases.

Disfigurement of any type is unfortunate and certainly presents an element of damages to be considered by a jury charged with evaluating the harms and losses suffered through someone else’s negligence.

But, are all scars created equal? The answer is obviously no.

It would be reasonable to treat discoloration differently from a raised keloid-type scar. Discoloration scars can often be minimized with cosmetics. Keloid-type scars usually cannot be cosmetically addressed.

Additionally, scarring in an area of the body not normally visible in public will justify less compensation compared to a prominently visible scar on a public area of the body.

For example, a scar on the face will be treated differently than a scar on a buttocks. Especially if the buttock’s scar would typically be covered by the smallest of bathing suits.

Scars in children, often look particularly bad when the child is small. But as the child grows, the scar may become nearly invisible.

All we can do as attorneys is present evidence to a jury.

We can show the jury a scar. We can ask the jury to place a value on a person’s disfigurement. We can ask them to consider the impact of a scar on a particular individual as compared to the same scar on another individual.

For example, the very same scar visible on the face of a highly paid fashion model, that could be career-ending, might be considered a minor issue on the face of a 50-year-old soldier.

In addition, there is also the consideration of whether a particular scar might be further reduced in visibility by a skilled plastic surgeon.

Injuries that produce surgical scars are considered more severe than injuries that do not produce the same level of disfigurement.

There are also is a psychological component to disfigurement. Some scars might be more traumatizing to some people than to others.

In short, there is no hard and fast rule as to how a jury might value the harm posed by a scar.

Nevertheless, it is the attorney’s job to make sure that the jury has all the necessary information to arrive at a fair and reasonable assessment of an injury that results in scarring.

I hope you found this information helpful. If you are a victim of someone’s carelessness, substandard medical care, product defect, work injury, or another personal injury, please call (219) 736-9700 with your questions. You can also learn more about us by visiting our website at DavidHolubLaw.com – while there, make sure you request a copy of our book “Fighting for Truth.”

Medical Record Audit Trails

I’m Katelyn Holub, an attorney focusing on personal injury law in northwest Indiana.

Welcome to Personal Injury Primer, where we break down the law into simple terms, provide legal tips, and discuss personal injury law topics.

In this episode, we discuss medical record audit trails.

Before the age of electronic medical records, there was no need to maintain a medical record audit trail.

Years ago we tried a medical negligence case where we ordered a copy of a patient’s hospital chart before we sued the hospital.

The chart was approximately a thousand pages long.

After we sued the hospital on behalf of our client we again requested the patient’s medical chart.

What was produced for us was a chart that was mostly the same, except 15 to 20 key pages had been modified.

These changed pages were critical to explaining the care given to the patient and all of the changes favored the hospital.

Obviously, the changes were made to cover up the medical negligence of the doctors who treated our client.

When we studied the changes in the handwritten pages, it was clear that the pages were copied over from the original chart.

But subtle changes were made and key facts were either eliminated from the new record, or key facts were added to the new record.

All the changes combined painted a very different picture of what happened to the patient during her stay at the defendant’s hospital.

The changes to the chart were essentially lies. What we had was a hospital lying about the treatment given to its patient.

At trial, we admitted both sets of the two charts into the record.

At closing, we set both sets on the table in front of the jury.

We pointed out that key pages had been changed. We asked the jury to look at those changes to key pages.

We then asked the jury a rhetorical question: Why would an above-board and trustworthy hospital need to alter the patient’s chart after being sued for being careless in treating their patient?

Then we asked a second rhetorical question: What if the plaintiff had not had the foresight to get a copy of her medical chart BEFORE filing a lawsuit?

The jury rendered a very favorable verdict for our client.

Without an audit trail, electronic records could be easily altered.

Without an audit trail, there would be no way to pinpoint changes made in a patient’s chart AFTER the treatment is rendered.

When there are changes made to handwritten documents, an attorney will sometimes call a handwriting expert as a witness.

To explain changes made to an electronic medical record, you need an audit trail expert

The audit trail expert can explain who accessed what portion of the electronic chart on what day and at what time. The expert can show exactly what was changed in the chart. The changes can be projected onto a large screen to show a jury precisely what was changed and when it was changed.

An audit trail takes away a medical negligence defendant’s ability to lie and cover their tracks.

I hope you found this information helpful. If you are a victim of someone’s carelessness, substandard medical care, product defect, work injury, or another personal injury, please call (219) 736-9700 with your questions. You can also learn more about us by visiting our website at DavidHolubLaw.com – while there, make sure you request a copy of our book “Fighting for Truth.”

Structured Settlements

I’m Katelyn Holub, an attorney focusing on personal injury law in northwest Indiana.

Welcome to Personal Injury Primer, where we break down the law into simple terms, provide legal tips, and discuss personal injury law topics.

Today’s question is prompted by a client who, for a variety of reasons, wanted to settle her case under what is referred to as a structured settlement.

If you are not familiar with the term “structured settlement” it will take a few moments to explain.

It is basically the purchase of a long-term annuity contract. The annuity contract will pay out the settlement over a number of years in the future.

If you are wondering why anyone would want to settle a case and have a portion of the settlement be paid out over time we will give you some examples.

One reason why someone might want to do this is to preserve government benefits so they might continue to qualify for government assistance notwithstanding a settlement of their case.

Suppose an injured person is receiving a government-supplemented insurance benefit which has a qualification that insurance beneficiaries cannot have a checking account with more than a specified number of dollars each month. If they have more in their account than the amount of dollars required for eligibility they will be disqualified for the insurance benefit they desperately need.

The solution to this, especially where the injured party might require lifetime care, is to arrange for a settlement where the payout is spread over the lifetime of the client. This enables the client to get a steady stream of money that they can use to supplement their care without having a disqualifying amount in their checking account.

Here is an example. Suppose a client is a nursing home patient who was injured when nursing home personnel dropped them. Suppose they broke a hip. They may be entitled to a large settlement, but unless that large sum settlement is paid out over time, it might disqualify them from nursing home assistance, which they very much need.

In such a case, a settlement can be structured such that the settlement beneficiary receives only a specified amount per month. The settlement party can even assign substitute beneficiaries to receive any unpaid benefits should they die before the annuity is paid out.

There are many more reasons why an injured person may want to structure the way the payout on a settlement is made, but preserving governmental benefits is a big reason and we’ll leave it there for now.

I hope you found this information helpful. If you are a victim of someone’s carelessness, substandard medical care, product defect, work injury, or another personal injury, please call (219) 736-9700 with your questions. You can also learn more about us by visiting our website at DavidHolubLaw.com – while there, make sure you request a copy of our book “Fighting for Truth.”

High Interest Litigation Loans

I’m Katelyn Holub, an attorney focusing on personal injury law in northwest Indiana.

Welcome to Personal Injury Primer, where we break down the law into simple terms, provide legal tips, and discuss personal injury law topics.

Today’s question comes from a caller who is an existing client who called wanting to sign up for a litigation loan.

Every once in a while we have a client that somehow is located by one of these high-interest litigation loan companies. Perhaps these companies scan for police reports, or scan the court dockets for case filings.

However they find our clients, these companies send out loan paperwork directly to the client soliciting them to sign up for a high-interest rate litigation loan.

There really is no such thing as a low-interest litigation loan. These companies make their profits by requiring the payment of high interest over a short 2 – 3 year time window.

Typically the lowest interest rate is 15% per month. No, you heard that correctly, not 15% per year, but 15% per month compounded monthly.

This is a very very high interest rate. Typically a person accepting such a loan will usually owe two to three times what was received on the loan by the time the case goes to trial or settles.

Here is an example. Suppose you receive $1500 under such a loan, you could easily end up owning $5000 by the time the case gets to trial or settles.

These kinds of loans are legal, but they fall into the category of loans designed to take advantage of the victim of an injury.

In most situations, we tell a client that such loan arrangements are inadvisable.

Sometimes we have clients that want to accept such a loan even though we have advised them not to do it.

If they do want to go ahead with such a loan contrary to our advice we always require them to sign papers that confirm we have advised them of all the hazards associated with such loans, and that notwithstanding our advice, they have decided to go forward.

If an attorney fails to have their client sign such a document, the client could get to the settlement point, and wonder where all their money has gone.

When a person is desperate and signs to pay out high interest on a loan they might not be thinking clearly.

Sometimes attorneys may facilitate a client getting a low-interest loan from a relative. Perhaps a grandparent would loan money to pay rent and agree to get repaid at the time of settlement.

Many attorneys will charge a separate fee for filling out loan paperwork for a client. If the attorney was hired to move forward on a case and collect a recovery for the client, filling out loan paperwork serves as a huge distraction to proving a case in court.

I hope you found this information helpful. If you are a victim of someone’s carelessness, substandard medical care, product defect, work injury, or another personal injury, please call (219) 736-9700 with your questions. You can also learn more about us by visiting our website at DavidHolubLaw.com – while there, make sure you request a copy of our book “Fighting for Truth.”

Proving Why a Person Fell

I’m Katelyn Holub, an attorney focusing on personal injury law in northwest Indiana.

Welcome to Personal Injury Primer, where we break down the law into simple terms, provide legal tips, and discuss personal injury law topics.

Several of our episodes deal with people being injured after falling in a store, restaurant, or other building. Or, falling outdoors on a defective sidewalk, or a defective parking lot.

In many cases, the cause of a fall is readily apparent.

Suppose a person falls going down a staircase in an apartment building where the handrail is broken and there is nothing to hang onto. The failure to provide a handrail violates nearly every building code. Establishing that the lack of a handrail contributed to the cause of the fall is not terribly difficult.

Suppose someone falls on broken and cracked concrete on a sidewalk, or a large pothole in a parking lot. Again, it may not take an expert to prove what caused a fall in such a case. But, an expert may be needed to establish the level of reasonable care expected in maintaining a sidewalk, or parking lot.

Some fall cases can be very complicated to prove, however.

You might be wondering just how does one go about proving that a floor surface was unreasonably slippery and proving that the unduly slippery surface caused a person to fall?

In such a case, an expert engineer might have to be called in to scientifically measure the slip resistance of a surface.

How does such an expert do this? The answer is by testing the surface with equipment designed to quantify the slip resistance of a floor.

Scientists refer to a number called the coefficient of friction to describe the slipperiness of walking surfaces. The coefficient of friction is the ratio of the frictional force resisting the motion of two surfaces in contact to the normal force pressing the two surfaces together.

That definition is way too complicated. So let’s make it simple.

Everyone would agree that it is much easier to slide or glide across a wood floor wearing socks than it is wearing snow boots.

Why? In scientific terms, the socks have a lower coefficient of friction and are hence more slippery.

In fall cases not only is the condition of the floor important, but the type of footwear being worn is also important.

Cleaning chemicals can impact the slipperiness of a floor surface.

We once had a case where a person fell in a hotel bathroom. We discovered that the wrong cleaning chemical was used on the tile floor. An expert was able to establish that the floor was 3 times more slippery than normal because the wrong chemical cleaner caused a thin highly slippery sheen to build up on the floor tile.

Experts can prove helpful in other ways in fall cases.

Fall experts are typically extremely knowledgeable about building codes, and the impact of inadequate lighting on a walkway or stairway.

In sum, proving why someone fell might be easy in some cases, or extremely complicated in other cases. But in both cases, injuries can be serious. And keep in mind, building code compliance and maintaining floors in compliance with safety standards are critical in one other respect. – People tend to rely on the fact that all stairways they encounter will be built to the same standards and that all floor surfaces will likewise be maintained so as to not be unduly slippery.

I hope you found this information helpful. If you are a victim of someone’s carelessness, substandard medical care, product defect, work injury, or another personal injury, please call (219) 736-9700 with your questions. You can also learn more about us by visiting our website at DavidHolubLaw.com – while there, make sure you request a copy of our book “Fighting for Truth.”