What is a Motion to Dismiss?

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 stated that his attorney dropped his case and told him he needed to get another lawyer. When asked why, the caller said that his lawsuit was challenged with a motion to dismiss. The attorney who no longer wanted to work on the case, said that he expected that the motion would be granted and saw no grounds to dispute the motion. The caller wanted to know his options.

We sometimes get calls like this where an attorney has decided to discontinue representing someone after filing a complaint and then receiving a response.

So what exactly is a motion to dismiss?

Well think of it this way, it’s a motion asking the court to look at the complaint and rule that the complaint itself is legally insufficient, so much so, that the complaint ought to be tossed out of court in its entirety.

To survive a motion to dismiss, the complaint must contain sufficient factual information, that if accepted as true, states a claim for relief that is plausible on its face.

In other words, the complaint has to set forth facts that will permit a court to conclude that if all of the facts alleged are true, the defendant could reasonably be held liable for the misconduct alleged.

Here’s a practical example, suppose when a complaint is filed the date is January 1, 2025. Suppose that the complaint itself refers to alleged misconduct that occurred on January 1, 2015.

If a motion to dismiss is filed, the court must take as true that the misconduct alleged occurred in January of 2015, but the court may also look at the two-year statute of limitations, and conclude that if the misconduct indeed occurred 10 years earlier, there is no way for the plaintiff to prevail.  In such a fact situation a court must dismiss the complaint.

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.”

Filing a Complaint

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 client whom we asked to review a complaint that we are preparing to file in her case. She wanted to understand what a complaint is and why it needs to be filed in court.

To initiate a lawsuit the party bringing the lawsuit, called the plaintiff, starts the lawsuit by filing a complaint in court.

A complaint is a document that sets forth the operative facts on which a lawsuit is based and describes the legal issues on which the claim is being made.

Indiana is a notice pleading state which means the complaint does not have to describe the situation in great detail. Instead, it must state sufficient facts to put the responding party, called the defendant, on notice of the claim against them.

For ease of reference, the drafter of a complaint usually will number each paragraph. Ideally, each numbered paragraph will focus on a particular fact.

Once a defendant is served with the complaint the defendant must file an answer to the complaint.

The more precision in drafting a complaint the more the defendant will have to respond point by point to the facts outlined in the complaint.

The defendant must choose to admit or deny the facts outlined in each enumerated paragraph of a complaint.

In Indiana, the complaint must not state a specific dollar amount sought in damages.

In years gone by, some attorneys would garner publicity by filing a lawsuit seeking an outrageous sum. The newspaper would report on the complaint and identify the attorney. But, putting in any amount, especially a low amount, also could be used to limit the plaintiff’s recovery to the stated low amount.

An additional thing about a complaint that is surprising to some people, is that the complaint may set forth alternative theories of recovery or inconsistent theories of recovery.

For example, a complaint may in one count describe an injury as being due to the negligence of a defendant and in another count state that the injury was due to intentional wrongdoing by a defendant.

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.”

Catastrophic Injury Claims

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 concerned about a child who suffered a loss of vision as a result of an injury caused by the carelessness of a driver who hit the child who was operating a bicycle.

The loss of vision is what rises to the level of what is described as a catastrophic injury.  A catastrophic injury could be any harm that stays with a person long after an accident. Some of the more common forms can include:

• Compound fractures
• Traumatic brain injuries or other head trauma
• Spinal cord injuries or severe nerve damage
• Partial or complete paralysis
• Damage to internal organs
• Loss of vision or hearing
• Severe burns or scarring
• Accidental amputations

Catastrophic injuries can occur as a result of a car wreck, construction or workplace accidents, and slips and falls. The harm that each of these incidents can produce may be lasting and affect an injured person’s cognitive and motor skills, ability to work, physical appearance, and other functions.

When another person is at fault for a serious accident that leaves you with a catastrophic injury, you deserve justice. The attorney you hire to assist you if you suffer a catastrophic injury must have experience dealing with such injuries. The expert testimony required to prove such injuries is sometimes difficult to find. All too frequently we find ourselves fighting with health insurers over payment for medical care needs. If the injured person has no insurance to cover initial treatment or provide short or long-term disability benefits, the attorney should be able to help find care solutions.

For these and many other reasons, handling catastrophic injury cases can be challenging.

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.”

Birth Injuries

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 concerned about an injury to a baby during delivery.

We frequently handle birth injury claims involving an injury to a baby at birth. We also deal with medical injuries suffered by the mother during delivery.

It is challenging work to hold medical professionals involved in the birth responsible who have inflicted injury as a result of medical malpractice.

Common birth injuries that can arise during the birthing process include:

• Injuries to the nerves surrounding the child’s shoulder caused by over-exerted pressure during labor and delivery (injuries like this may be referred to as a brachial plexus injury or erb’s palsy or shoulder dystocia)
• Impaired mobility and muscle development in the child due to a lack of oxygen during labor and delivery
• Injuries to the mother, such as uterine rupture or inversion, vaginal tearing, broken bones, or nerve damage
• Damage to the child’s nervous system due to an infection
• Swelling in the child’s brain

Families dealing with injuries of these types need a birth injury attorney who can work with medical experts to evaluate the extent of the injuries and determine the appropriate compensation.

Not every injury during pregnancy or birth leads to liability. Establishing proof of medical malpractice means proving that the medical provider who agreed to treat the patient, failed to live up to the standard of care and that this substandard care caused the patient’s injuries. Expert testimony is always required in these types of situations.

Birth injury litigation may involve the doctor in charge of the delivery, or anesthesiologists, midwives, nurses, and other hospital personnel.

Although some birth complications can be unavoidable, other birthing injuries are a result of medical malpractice.

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.”

Social Media Company Liability for User Suicide

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 past episodes we have discussed how social media account information posted by either party in a lawsuit can be used against that party at trial.

In this episode we discuss the hazards social media can present to teenagers and young children. Things posted can lead to online bullying, and other embarrassing circumstances that have in some reported situation lead a young person to harm themselves.

Many of the social media apps have been found to lead to addiction. Psychological harm has been associated with the addictive nature of the notification signals built into social media applications. People spend time online hoping that someone likes their post or will repost their post.

The problem has become so serious that cell phone operating system providers have started to allow ways a user can restrict the time available to access a social media account. Further most operating systems offer the ability for parents to block social media account access entirely.

Should a social media company be held liable under the law if someone loses their life or is injured as a result of a negative social media post?

Sophisticated formulas used by the online platforms are geared to sending the user a steady stream of tailored content. The algorithms can trigger compulsive behavior, they can lead a user to experience a lack of focus, depression, anxiety, suicidal thoughts, inability to sleep, and body dysmorphia. While social media platforms can be harmful to teens and those younger, there are reports of adults becoming addicted as well.

Can companies that create social media platforms be sued if someone loses their life as a result of the social media platform itself or others using the platform in a nefarious manner?

These questions are cutting edge. There have not been enough reported legal decisions to permit a definitive answer to that question.

But sooner or later a child’s wrongful death will be factually linked to gross negligence, or a violation of consumer protection laws, on the part of a social media provider. We would guess that a cause of action for negligent infliction of emotional distress would best fit the type of wrongful conduct in question. We discussed this particular tort in an earlier podcast episode.

What if a social media company engages in fraud, or fraudulently conceals information from a parent trying to supervise a child to prevent the child from engaging in harmful conduct?

There are certainly consumer fraud statutes that may provide a remedy is such situations.

Support for arguments against a social media company might be found in position statements published by the US Surgeon General. Studies commissioned by the US Surgeon General report on how mental health is affected by addictive apps. One study discusses kids, teens, and young adults and mental illness brought on by digital technologies.

This study suggests that parents:

• Be aware of the devices and content that a child accesses.
• Examine whether the child is getting something meaningful and constructive out of content they are looking at, creating, or sharing?
• Focus a child toward healthier ways to engage online, such as searching for meal recipes to make with a parent, researching options for a family outing, video chatting with a relative, investigating family history.
• Consider if their child has a mental health condition that might make them react more strongly to certain kinds of stressful or emotional content.

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.”

Nursing Home Responsible for Death Cause by Staff Negligence

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 concerned about a family member who was in a nursing home. The caller learned that a nurse on staff at another nursing home was murdering patients. Apparently, the nurse when arrested claimed he was engaged in mercy killings.

Tragically situations like the caller described happen. Can a nursing home be held strictly liable for the misconduct of a nurse that they have hired?

Under the law, the answer would generally be no. Strict liability is a concept that generally does not apply to a hospital or nursing home setting.

If a nurse hired by a nursing home is acting within the course and scope of his or her employment and does something to harm one of the patients, as a result of negligence, the nursing home may be held liable for the nurse’s wrongful conduct.

In a situation described by the caller, the nurse was engaged in intentional criminal conduct. If an employee such as a nurse engages in intentional criminal conduct and that conduct could include battery as well as murder, may the employer be liable?

Often the answer will depend upon the facts of the individual case.

Assuming the nursing home failed to use reasonable care in interviewing and checking the credentials of the person who was hired who committed the criminal acts, then the nursing home very well could be found liable.

However, if the nursing home did everything reasonably and carefully to vet the employee and had no warning of any danger as a result of things that the nurse was doing while working at the nursing home, then there is a possibility that a nursing home will not be held liable.

Cases like that described by the caller are almost always very fact-intensive.

There was a newspaper article not long ago about a nurse who was linked to 15 deaths across several nursing homes. That nurse had left each nursing home when questions were asked about the death of a patient in the nurse’s care. Unfortunately, no definite wrongdoing was uncovered to establish that the nurse was responsible for the questioned death.

When that nurse moved to the next nursing home, the prior nursing home was not contacted by the new nursing home interviewing the nurse. Thus, the new employer was negligent in failing to learn about the suspicious conduct of the employee seeking employment.

When a patient is at a facility, such as a nursing home, the nursing home operators are charged under various state and federal statutes to manage the safety of those who are placed in their care. In doing so they must carefully select staff members who are licensed, and properly credentialed.

When selecting a nursing home for a relative or loved one it makes sense to carefully interview the staff and management of the facility to make sure that they are properly vetting those whom they hire to care for patients.

It’s also important to look at any complaints filed with the state about the nursing home.

Many times we have helped clients who found that had they simply done their homework they would have discovered that the nursing home they selected was under investigation for sanitary condition violations as well as staff members being inattentive to patients.

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.”

Swimming Pool 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 reported an incident where she and her young child were at a hotel and using the hotel pool. Her child was swimming near the bottom of the shallow end of the pool and got trapped against an uncovered port in the circulation flow system of the pool. There was a suction flow drawing water and anything near it into a 6-inch diameter uncovered inlet. The child was drawn down to the inlet. Only through quick thinking by an older child also in the pool was the young child separated from the inlet and pulled free and brought to the surface. The child was extremely lucky as she was nearly out of breath when she was brought to the surface. The mother wanted to know her legal options.

Pool injury incidents like this due to the negligence of those operating and maintaining a pool are still common. Sometimes very small children have been pulled into an uncovered pipe and were unable to be rescued.

This type of injury is almost always the result of negligence. The hotel pool in the caller’s case was inspected by safety inspectors several months before the described incident and the hotel operator was cited for several safety violations. The pool should not have been open for swimming with an unsecured outlet. The diameter of the outlet was 6 inches in the caller’s case. In other cases publicly reported an outlet as big as 12 inches was left uncovered and was reported to have resulted in the death of a child.

In most cases, if the premises containing the pool are properly maintained and meet annual building inspections a situation like this will not happen. In almost every case a situation like that described by the caller would not happen but for the negligence of the property owner. Still, sometimes such dangerous conditions are due to a mistake made by a contractor hired to clean the pool in leaving a drain outlet uncovered.

Pool maintenance contractors have also been known to make other mistakes leading to injury. The situation described by the caller brought to mind another case where we obtained a recovery for our client.

In that case, a maintenance company had used the wrong chemical to clean a pool, and that chemical reacted with other chemicals in the pool to give off an odorless gas that was damaging to the lungs of those near the pool.

While cases such as these are governed by ordinary negligence principles and nearly always the fault of the premises owner, as a safety reminder, every parent should carefully check a pool before allowing a child to swim in the pool. Even if a child is a good swimmer, dangers as described by the caller could lead to serious injury.

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.”

Impeaching a Witness By Using a Prior Statement

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 client during a trial at a lunch break who asked what could be done about in-court testimony given by a witness that is inconsistent with prior statements made by the witness.

The evidence rules are quite particular about the way to impeach a witness through the use of a prior statement.

It is not how TV courtroom dramas depict the process.

When examining a witness about the witness’s prior statement, a party need not show it or disclose its content to the witness.

But the party must, on request, show it or disclose its contents to an adverse party’s attorney.

This is a smart rule. It allows the attorney to see the statement which allows the attorney to object.

But, it does not allow the witness to see the statement in advance of a question about the statement, and thus, forecloses the opportunity to fabricate an explanation.

The next question is, is the prior inconsistent statement itself admissible?

In other words, the witness testifies that Fact A is true, the prior statement of the witness is of the witness saying Fact A is false.

At trial, is an attorney simply limited to showing the jury that the witness has given conflicting stories, or may the attorney offer the statement into evidence so the jury might see and study it?

In short, the rule is that the witness’s prior inconsistent statement is admissible, only if the witness is allowed to explain or deny the statement.

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.”

Paying or Offering to Pay Medical Expenses

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 call by an existing client who said that the other driver immediately offered to pay for the cost of repairing his vehicle following the crash, and cannot understand how the other driver’s insurance company can deny the claim and argue that its insured driver was not at fault. He wondered if the insurance carrier will be able to take this inconsistent position at the trial of his case.

In the past, we discussed an evidence rule that provides that if a defendant repairs its premises after an injury is suffered as a result of a defect on the premises, the remedial measures taken to make the property safer are not admissible to prove negligence, a defect, or the need for a warning or instruction.

The reason is that as a society we have elected to do nothing to discourage people from repairing their property to make the property safer. The thought is that people will not take steps to keep their property in good repair if doing so could be used against them in court.

Proof of a repair is admissible, however, if offered for another contested reason, such as proving ownership of a property or that it was feasible to make the property safer.

Likewise, Evidence Rule 409 provides that evidence of paying, furnishing, promising to pay, or offering to pay for property damage or medical or hospital expenses resulting from an injury, is not admissible to prove liability for an injury or damages.

Similarly, evidence of compromise settlement proposals or even a statement made during compromise negotiations about a claim is inadmissible except in rare circumstances.

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.”

Reservation of Rights Letter

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 concerned about a car crash he was in. He said the crash wasn’t his fault. He said all he did was send a letter to the other driver’s insurance company putting them on notice that he intended to hire an attorney. The other driver’s insurance company sent him a copy of a letter sent to its insured driver notifying the driver of a coverage dispute. He wanted to know his legal options.

We asked the caller to bring in a copy of the letter so that we could analyze what was going on.

The letter, addressed to the at-fault driver who hit the caller, had the words – reservation of rights – in capital letters at the top.

If you’ve never heard the term reservation of rights here’s what it means.

The insurance company for the at-fault driver told the at-fault driver, that it believes it has a valid reason to deny coverage, but while it further investigates the matter, it will undertake to defend the at-fault driver if a suit is filed.

Oftentimes insurance companies send out these reservation of rights letters.

Once an insurance carrier serves a reservation of rights letter and then hires an attorney to defend their insured on a claim, there is a potential for a determination that the coverage is invalid or void and the party who receives such a letter should protect themselves by hiring counsel to make sure they are being properly defended.

As for the caller, it will be important for any attorney representing the caller to investigate the basis for the reservation of rights letter.

Perhaps there are legitimate grounds to deny coverage.

Perhaps the driver of the vehicle was not a named insured on the policy.

Perhaps the policy excludes coverage if a vehicle is used in the commission of a crime and the car at the time of the crash was fleeing the police.

If there is no insurance coverage, the next analysis would be to determine if the at-fault driver has assets and is collectible.

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.”