Call Them Evil; Lose the Money – Insurance Policy Exclusions for Crime

Posted on May 8, 2020May 12, 2020 by Matt Hamilton

Calling Them Evil Will Cost you Money: Invalidating the Insurance Policy by Pleading Intentional Conduct

The victim of a personal injury accident must be careful about representing that the person that harmed them was intentionally evil, or intended to harm them. That kind of representation can activate an insurance policy exclusion and make the policy inapplicable to the accident.

Ensuring an insurance policy applies is a critical advantage of hiring a personal injury, accident lawyer. That lawyer can walk the tightrope between maximizing the fault of the person that hurt you (the tortfeasor), and maximizing damages (the amount of money you get) by focusing your claims of clear fault, lack of comparative fault, punitive damages, and insurance bad faith.

Why spend time focusing on fault when the case facts are clear? The benefit is that clear, intentional fault tends to “bleed over” into damages, and tends to increase the value of the claim. What is the risk? There is a dark-side disadvantage to any claim of clear fault. Pressing the fault advantage, too far, can activate an insurance exclusion and end the money available to the claim.

Our Example – A Motor Vehicle Accident

Shane Johnson is a 26-year-old man living in Raymore, Missouri. He visited with some friends at a tavern off Main Street in Belton, Missouri. He had six drinks, all mixed with whiskey. It was 9:00p.m on a Thursday. Shane was driving home on 58 Highway eastbound from Belton to Raymore.

Jennifer Miller is a 37-year-old, healthy, married, mother of two young children from Harrisonville, Missouri. She works in Belton. She is a nurse at a senior living center. She is driving home from work. She is headed towards Interstate 49 in Belton, Missouri, and plans to drive south into Harrisonville.

Shane Johnson, driving, weaves in his lane, crosses over into the left lane, and collides into a Ford F-150 truck driven by Mrs. Jennifer Miller.

The collision pushes Mrs. Miller’s Ford F-150 truck to the left, off the north side of 58 Highway, and into the clear zone near the Belton Target store. Jennifer Miller’s truck strikes a light pole at 40 miles per hour. The Belton’s Police and emergency ambulance respond to the accident scene.

Our Example – The Arrest

Shane Johnson was tested using field sobriety techniques by the Belton Police Department at the scene of this car accident. After leaving the car accident scene, Mr. Johnson was tested with an Intoxalyzer 5000 breathalyzer machine at the Belton Police Department. Shane blew a .18 blood alcohol content (B.A.C.), more than double the legal limit. Shane was arrested under suspicion of driving while intoxicated. Mr. Johnson was given tickets for Belton Municipal Court for careless and imprudent driving, driving while intoxicated (DWI, a second offense), and failing to keep a proper lane.

Our Example – Criminal Court

Shane Johnson hired a criminal defense lawyer for his Belton Municipal Court traffic tickets. The lawyer was able to keep Mr. Johnson out of prison. Shane avoided a felony charge for causing serious injury to Jennifer Miller while driving under the influence of alcohol (RSMo. 558.011 & 565.052). His criminal defense lawyer saved his driver’s license. However, Shane Johnson pled guilty in Belton Municipal Court, was convicted, and his record showed his driving while intoxicated (DWI), and careless and imprudent driving convictions.

Our Example – The Injury

Jennifer Miller suffered a comminuted, oblique fracture to her femur (a broken leg), and several crushed foot bones. Namely, Mrs. Miller had crushed the cuboid, and first, and third metatarsals in her right foot. The comminuted, oblique, leg fracture indicates it was not a straight across fracture but that her leg bone was broken in multiple pieces.

Our Example – Medical Treatment

Mrs. Miller was initially treated at Belton Research Hospital. She had follow-up care at Saint Luke’s East Hospital in Lee’s Summit, Missouri. Her medical treatment included an orthopedic surgeon. That surgeon performed an ORIF surgery (Open Reduction Internal Fixation) of the fracture of the femur in her right leg (a break in the biggest leg bone). Metal screws and plates were “fixed” to keep her femur, leg bone together. Mrs. Miller took prescription medications. Mrs. Miller had follow-up physical therapy in Belton, Missouri. She saw her primary care physician.

Our Example – Chronic Pain

The aftermath: Jennifer Miller suffers chronic problems in spite of the large effort she undertook to recover from her broken leg and broken foot. Mrs. Miller suffers complications by way of chronic knee pain (caused by nerve damage). She has chronic ankle pain from her broken foot bones. She has had to overcome a bone infection known as osteomyelitis. This has increased her medical treatment bills. It has increased her recovery time. She has chronic pain.

In Comes the Accident Lawyer

Mrs. Miller, as a victim of a motor vehicle accident, hired a personal injury lawyer skilled in Belton car accidents. His job was to help with the claim. The accident lawyer investigated. He gathered evidence. He submitted a detailed demand letter to Mr. Johnson’s insurer for his policy limits.

Why the Insurance Company Denied Her Claim

Mr. Shane Johnson had an insurance policy that featured a common policy clause. That clause reads that “bodily injury or property damage intended by, or reasonably expected to result from the intentional or criminal acts or admissions of an insured person, shall be excluded by this policy.” Exclusion policy clauses like this apply irrespective of whether the insured person was actually charged with, or convicted of a crime.

In this case, Mr. Shane Johnson was indeed charged with, and convicted of the crimes of driving while intoxicated, and careless and imprudent driving. The insurance policy exclusion specifically stated it precluded coverage for all insured persons, even if the person seeking coverage did not participate in the intentional or criminal act.

The insurance company denied Jennifer Miller’s claim. The insurer stated there is no policy money to give, because the policy did not apply, because Shane Johnson had acted intentionally and criminally.

The Law on Criminal Act Insurance Policy Exclusions

An insurance company, in Missouri, has a duty to defend an insured whenever there is a potential or possible liability to pay, based upon the facts known at the outset of the case. The duty to defend is not dependent upon the probable liability to pay, or based upon facts ascertained only through trial. It is from the initial facts. McCormick Baron Mgmt. Servs., Inc. v. Amer. Guarantee & Liab. Ins. Co., 989 S.W.2d 168, 170 (Mo. banc 1999).

An insurance company does not have a duty to defend a lawsuit; where the petition (or initial claim), upon its face, alleges a set of facts which fail to bring the case within the coverage of its policy. Train Wreck West, Inc. v. Burlington Ins. Co., 235 S.W.3d 33, 42 (Mo. App. E.D. 2007).

Merely mentioning the word “negligence” does not trigger the duty to defend or pay a claim. Instead, the duty to defend, or pay an insurance claim, arises from the actual factual allegations presented through the demand letter, or investigation by the insurer. If that demand letter, or investigation demonstrates intentional conduct, an insurance exclusion may apply. See Allen v. Continental W. Ins. Co., No. ED 99111, 2013 WL 1803476, * 6 (Mo. App. E.D. 2013). In our case, the claim of Jennifer Miller revealed facts of intentional, criminal conduct by Shane Johnson, which could activate the criminal and intentional act exclusion of his car insurance policy.

The Law Does Not Allow People to Insure for their Intentional Crimes

“Missouri courts have consistently held that an insured’s intentional infliction of damage … cannot be covered by liability insurance.” Easley v. Am. Family Mut. Ins. Co., 847 S.W.2d 811, 812 (Mo. App. W.D. 1992). “Permitting an insured to insure himself against his wanton, reckless, or willful acts would enable him to insure himself from bearing the consequences of his intentional acts and would therefore, be contrary to public policy.” Easley, 847 S.W.2d at 812. In other words, an insurer is not liable for an insured’s conduct when the insured acted volitionally and within intent to injure. See State Farm Fire & Cas. Co. v. Caley, 936 S.W.2d 250, 253 (Mo. App. W.D. 1997). What is more, under this case, intentional conduct cannot later be characterized by the victim or their attorney as negligence merely because the damage resulted was greater than or different then what was intended by the insured. Thus, Shane Johnson cannot say he did not intend to harm Jennifer Miller and did not intend to injury her so severely and therefore his conduct was not intentional or criminal. It is the act itself, rather than the consequences of the action, which determines insurance applicability.

No Insurance Duty to Defend or Pay for Crime

Under these circumstances, the insurer of the person that harmed Jennifer Miller was under no duty to defend him or pay the claim resulting from the Belton car accident he caused. Shane Johnson’s actions were intentional, criminal conduct. He admitted the criminal nature of his conduct by pleading guilty in Belton Municipal Court. Res judicata applied, as his intentional conduct was solidified by his conviction in criminal court. Thus, the insurance provided no claim money based upon the applicability of the intentional act exclusion under Shane’s insurance policy.

What To Do: Avoid the Policy Exclusion For Intentional Conduct

The best personal injury lawyer for a car accident should successfully avoid the criminal act insurance exclusion problem. The first step is to recognize the issue. Then, one must prepare in advance. At each stage of the investigation; the demand letter, the pleadings, and evidence presented, the facts should be framed to make the person that caused the injury look negligent, but not criminal. You make them look evil; you may lose all the money.

A competent car accident lawyer will begin by framing his demand letter by using the Missouri Approved Instructions for a jury verdict. This demand letter language, and the evidence supporting it will emphasize the negligence claims and not overtly claim intentional conduct. The accident lawyer should frame the guilty plea as a guilty plea to negligence. He should frame the conviction as deciding the issue of negligence. Under Missouri law, ambiguities in an insurance policy are interpreted to benefit coverage and to avoid exclusions.

Your In-Court Pleadings Should Allege Negligence and Not Intentional Crime

It is often the case that negotiations will not successfully settle a personal injury car accident. A lawsuit will need to be filed. A pleading called a “Petition for Damages” will need to be prepared and filed with the court. Your Petition will set out the ways in which the person (here, Shane Johnson) was neglectful in his driving and failed to drive as a very careful person with the highest degree of care (which is Missouri’s standard).

The Petition for Damages should not focus on intentional conduct. It should not focus on a crime or the conviction. The deposition of each witness should follow a similar strategy. A deposition, which is a formal, on the record, under oath recording of the person’s testimony, will occur. That deposition should focus on the neglectful and careless acts of the defendant, but not focus on intentional or criminal conduct.

Walking to the Precipice with Punitive Damages

Punitive damages often are and should be pled and pursued in a case. Punitive damage claims with an underlying criminal act insurance clause does require a very skilled personal injury lawyer. Punitive damages are damages at or above the amount actually suffered by the victim. They are additional damages to be paid, in part, to the victim to punish the bad acts of the person who harmed them. The policy supporting punitive damages aims to detour other persons from engaging in evil conduct in the future. Punitive damages help society.

The Test to Prove Punitive Damages

The test for punitive damages in Missouri requires clear and convincing proof of culpable mental state. Drury v Missouri Youth Soccer Association, 259 S.W.3d 558, 573 (Mo. App. 2008). The standard to prove punitive damages is very close to the standard to prove intentional, criminal conduct. The law requires a conclusion that the defendant had an “evil motive.” Davis v. Chatter Inc., 270 S.W.3d 471, 480 (Mo. App. WD 2008). The test is to show either that the defendant committed an intentional, wanton, willful, and outrageous act without justification, or acted with reckless disregard for the victim’s rights and interests.” Calus v Intrigue Hotels, LLC, 328 S.W.3d 777, 783 (Mo. App. W.D. 2010). One can see how the facts needed to prove a punitive damages claim mirror the facts to exclude insurance through intentional, criminal conduct. “Threading this needle” may take the skills of the best personal injury lawyer for a car accident. It should be planned for in advance, in great specificity.

An Example – Suing O.J. Simpson for Murder

One may remember from the early 1990’s; O.J. Simpson was accused of murdering his wife and her male companion. A trial resulted which ended in OJ’s acquittal on criminal charges. Fewer people know that a later civil case was filed against OJ Simpson by the wrongful death class of the victims’ heirs. This wrongful death civil case did not allege O.J. Simpson intentionally, criminally killed the two people. Instead the claim pulled back a bit. The wrongful death class asserted reckless conduct. A large settlement was paid. This is an example of careful pleading in the light of criminal act insurance exclusions.

What to do?

Most personal injury and wrongful death claims will not involve actions so egregious as to give rise to the potential for an insurance exclusion for intentional or criminal conduct. However; crimes occur. People harm intentionally. Bad people purposely injure, even kill others.

Those harms need to be compensated. Victim damages must be recouped. Families need to be helped. In these situations, one must not merely charge ahead and paint the person who did the harm as evil and intentionally acting. Care should be taken to plan the path to achieve the end result you wish. The goal should not be revenge. The goal should be successfully winning compensation, using the legal system to avoid these pitfalls. Begin with the end in mind.

Matt Hamilton

Juris Doctor
Trial Lawyer

Cheaper to Kill than Hurt: Why it is Less Expensive for a Doctor to Kill than Injure by Malpractice

Posted on April 18, 2019April 18, 2019 by Matt Hamilton

Why it is Less Expensive for a Doctor to Kill than Injure by Malpractice

Patient #1 – Stephens Johnson Syndrome

A patient goes to the doctor for a common cold.

He is sneezing; he is coughing.
He is running a fever.
He tells the doctor he is allergic to antibiotics.

In spite of this, the physician prescribes Ceftin for the infection, and Motrin for pain.

Patient #2 – Catheter Extravasation

A patient has cancer. She needs to take the chemotherapy drug Vincristine intravenously so that this liquid medication can reach the target cancer.

The medical professional erroneously administers this irritant solution. The Doctor pushes the needle too far. Instead of going where it’s supposed to, the chemotherapy medication drips into the body. There is progressive blistering, inflammation, dead tissue, and worse.

Cheaper Dead than Alive.

One of these patients lives; one of these patients dies. It may amaze you to learn that the patient that lives likely has a much more valuable case than the patient who died. This article explains the differences between damage awards in malpractice wrongful death cases and malpractice personal injury lawsuits.

The Test For Personal Injury Malpractice

To win a personal injury (non-death) medical malpractice case whether it be a situation like Stevens – Johnson Syndrome, a prescription drug error, or extravasation, the test is as follows:

First, the victim must show the physician did something or failed to do something his profession requires;
Second, the doctor must be found negligent. This means a “the failure to use that degree of skill and learning ordinarily used under the same or similar circumstances” by members of his profession.
Third, the victim needs to show she was damaged as a direct result of the doctor’s failure.

Paraphrase of M.A.I. 21.01 (1988 Revision) and M.A.I. 11.06 (1990 Revision).

Legislative Limits On Malpractice Compensation

Many states have enacted legislative “caps.” These caps place a ceiling on the maximum amount any innocent victim can recover for medical malpractice. For example, Missouri Statute § 538.210 places a cap on damages against any healthcare provider for injury or death they may cause. It also places a cap on the surviving spouse’s damages.

The cap on damages for 2018 non-catastrophic economic damages amounts to $420,749. This means a personal injury medical malpractice drug victim with a million dollars in damages can recover the full million dollars they have lost. If they die, the family can recover less than half that amount, even though the damages are far greater.

The Unconstitutional Cap on Personal Injury Drug Error Cases

The Supreme Court in 2012 found that for personal injury actions, any legislative cap on the total amount of damages a victim may recover violates their Seventh Amendment Right to Trial by Jury, also guaranteed by Article I, Section 22 (a) of the Missouri Constitution. Watts v. Lester E. Cox Medical Centers, 376 S.W.3d 633 (Mo. banc 2012). This constitutionally allows injury victims of drug errors full compensation up to the reasonable amount as determined by the judge or jury.

There Remains a Cap Limit on Death Cases

Why are wrongful death cases different? It is an old distinction from before the English Common Law. Traditionally, Julias Caesar is quoted as beginning the expression “mortui non postulant” translated as “dead men don’t sue.” In wrongful death cases, as opposed to personal injury cases, death mattered.

There was no right for the family to sue on behalf of a dead family member irrespective of the damage or how bad the conduct was. This led to many unfair situations. The legislatures stepped in and passed the wrongful death statutes.

Why Wrongful Cases Can Have Money Limits

The case of Dodson v. Ferrara, 492 S.W.3d 542, 544 (Mo. 2016) came along. In Dodson, the Supreme Court ruled that wrongful death remains a creature of statute. In weighing cap rights, you are not dealing with constitutional rights. The legislature of a state can control a lawsuit that it created by taking money away from innocent victims, if that is the legislature’s desire.

In short, lawmakers can define the recovery if the lawmakers create the type of lawsuit. Id. Here, since lawmakers passed the wrongful death statute, so too, the lawmakers can limit the death recovery. See Sanders v. Ahmed, 364 S.W.3d 195, 200 (Mo. banc 2012).

A Victim’s Constitutional Rights Don’t Matter.

Does equal protection matter?
How about separation of powers?
What happened to the victim’s trial by jury right?
What about cases with aggravating circumstances?

The Supreme Court considered all of these factors. It ruled no such Constitutional rights matter and only apply to personal injury claims. Watts v. Lester E. Cox Medical Centers, 376 S.W.3d 633 (Mo. banc 2012).

When Constitutional Rights “Stick”

Unlike wrongful death lawsuits, the common law existed before our Constitution. That court-created law recognized personal injury lawsuits. Therefore, the Constitution adopted those protections and a legislature cannot pass a mere law to limit those Constitutional rights.

This may seem unfair and a breach of essential rights. Indeed, the Supreme Court of Missouri has gone so far as to state “guarantees do not mean that the State may never make distinctions between individuals or groups of people.” Further, “the state may treat different groups differently. Comm. For Educ. Equality v. State, 294 S.W. 3d 477, 489 (Mo. 2009).

What to Do

It is important to have a lawyer with specific experience with both wrongful death and personal injury cases. Extravasation can cause injury. Extravasation can cause death. Drug errors can lead to Stevens – Johnson Syndrome. Stevens – Johnson Syndrome can progress to Toxic Epidermal Necrolysis. T.E.D. and can cause death.

The difference between an injury and death can mean millions of dollars of differences in case value, irrespective of other circumstances. This distinction must be looked at from early in a case to avoid the trap, when possible.

Author:

Matt Hamilton of Hamilton & Associates, Lawyers

Juris Doctor
Trial Attorney

How a Business can be Sued for the Criminal Acts of a Non-Employee

Posted on April 1, 2019April 1, 2019 by Matt Hamilton

How Can a Business be Sued for Criminal Acts by a Non-Employee?

Pedestrian Hit by a Car in a Parking Lot

It is Saturday night. Robert owns a local coffee shop. This coffee shop is a building and a parking lot next to a crowded street. Young people like to congregate and socialize in its parking lot Saturday nights.

Bob’s Coffee Shop tolerates the people hanging out in its parking lot. Perhaps Bob remembers when he was young. Perhaps it increases his customer base. Perhaps Bob is simply busy with the running of the business and tolerates their presence, having fun on his coffee shop property.

The kids like to stand around and socialize. Others “hot rod” through the parking lot. They speed; they play chicken; some even drive drunk.

One Saturday night is particularly busy. There are a number of people hanging out in the parking lot. Others are showing off driving through, speeding, drinking, and driving. A young girl gets hit by one of the drivers. Can the victim hire an auto accident lawyer to sue Bob for failing to kick the drivers or pedestrians out of his parking lot?

The General Rule; the Owner Cannot be Sued.

The general legal rule is that business owners do not have a duty to protect their invitees from the criminal acts of third parties. See Posecai v. Wal-Mart Stores, 752 So.2d 762 (La. 1999); Sturbridge Partners, Ltd., et al. v. Walker, 267 Ga. 785, (1997).

Owners do not generally have a duty protect their people on their property from the negligence of others who do not work for them or represent them. Burnett v. Stagner Hotel Court, Inc., 821 F.Supp. 678, 682 (N.D. Ga. 1993). There is an exception.

The “special facts and circumstances” exception that creates business liability.

A business owner can be liable to a victim on his property even when the perpetrator had nothing to do with the business owner.

The special facts and circumstances exception applies with the following test:

Is the perpetrator a third party? (Not the business itself or one of its agents)
Is the perpetrator known to be violent? Did the person behave in a way that indicated danger was on the premises?
Did the business owner have sufficient time to prevent an injury?

Ali Aziz v. Jack in the Box, 477 S.W.3d 98 (Mo. App. 2015).

Foreseeability is the Key

Our Supreme Court has spoken about this issue. The “touchstone for the creation of a duty is foreseeability.” Madden v. C & K Barbeque Carry-out, Inc., 758 S.W.2d 59, 62 (Mo. 1988). It’s all about the facts of the situation. Is there a foreseeable likelihood that failing to act will cause harm? Then you likely have a duty.

Can the business owner anticipate that acting in the way that he does will cause injury? Then there is duty. In Aziz, there was a fight in a parking lot and Jack in the Box was held $20.5 million dollars liable for the resulting harm.

In another case, an innocent victim was raped in a gas station parking lot by an unknown person. The court and the jury found the circumstances created a dangerous situation for the victim that the gas station owners could have fixed. Instead, the owners did nothing and she suffered great harm. Richardson v. QuikTrip Corp., 81 S.W.3d 54 (Mo.App. W.D. 2002).

Do We Actually Need To Know About The Threat?

Actual notice of a specific threat is not a requirement to be held liable for accident injuries on property. There is only the requirement that someone (a third party; not connected with the business) acts in a way that indicates a danger on the business owner’s property and that also there is sufficient time to prevent that injury.

Does The Danger Always Have To Be To The Actual Victim?

The law refers to these people as “invitees.” These are people who come to the property because the business invites the public generally. They may also come with a specific expectation of some benefit by being on the business owner’s property. We are talking more about customers and less about burglars.

The anticipated risk of injury does not have to be to the actual victim that winds up getting hurt. The victim merely needs to be in the class of people or the type-of-person who is put at risk.

Referring to our example of Bob’s Coffee Shop, the crowd generally was at risk for being hit by an automobile and creating a pedestrian auto accident. It is not necessary for the victim to have been there a long time or acted in a particular way. This is more about a duty of care to prevent an injury by a known danger or a danger that could have been revealed by an adequate inspection. The victim does not need to actually enter the business. They do not actually have to complete a transaction. Aziz, 477 S.W.3d 98.

Conclusion

Pedestrian auto accidents are some of the most harmful events caused by cars. The victims do not have the benefit of the protection of seat-belts and roll cages or airbags. Business owners need to be mindful of all types of injury on their premises and not merely turn a blind eye because they are not the direct perpetrator. If they do, they may find themselves with a personal injury lawsuit and claim against them.

Author:

Matt Hamilton of Hamilton & Associates, Lawyers

Juris Doctor
Trial Attorney

Bibliography:

Jessica Agnelly, Court Analyzes Business Owner’s Duty Owed to Invitees from Criminal Acts of Third Parties, Mo. Trial Atty., 16 (Winter 2016). https://www.matanet.org/

Sean Martin & Allison Carr, Are You as Guilty as the Criminal? Liability for Criminal Acts of Third Parties and Employees, FDCC Winter Meeting (2014). http://www.thefederation.org/documents/01.Are%20You%20as%20Guilty.pdf

What are Litigation Costs for Accident Injury Cases [Explained]

Posted on March 6, 2019March 6, 2019 by Matt Hamilton

EXPLAINED: LITIGATION COSTS IN ACCIDENT INJURY CASES

Accident Victims hire injury lawyers on a contingency fee, typically. As part of the attorney-client contract, something called “litigation costs” is mentioned. The client pays for this amount at the conclusion of their case, and should see the litigation costs itemized on their final paper breakdown.

This article explains:

What litigation costs are,
Why litigation costs are required,
What common costs amount to, and
Why litigation costs are necessity.

Rules 77.01 and 77.05 of the Supreme Court of Missouri dictate who pays for attorney’s fees. Typically, it is the party that loses at trial. These rules have been codified in Mo. Rev. Stat. § 514.070 and 514.260 of the Revised Statutes of Missouri.

Courts have also interpreted the litigation cost rule. For example, the Western District of Missouri in the case Baker v. Whitaker, 887 S.W.2d 664 (Mo.App. W.D. 1994) ruled that expenses should be deducted before the lawyer’s share is allocated.

What does this mean to you? This means when you are signing the litigation contingency fee agreement, it should contain a sentence indicating that you, (the client) will pay the litigation costs.

In practice, this means attorney’s fees are deducted first. Then, the litigation costs are paid for. Then, the remaining amount is paid to the client (you). This is the presumption. However, contingency fees can be negotiated and worded into other arrangements.

WHAT ARE INCLUDED IN LITIGATION COSTS?

There are several categories of costs that are included as litigation expenses. Rules 57.10 & 57.03 (g) are examples of civil procedure rules that govern these costs. They include:

Expert Fees
Deposition and Court Reporter Costs
Filing fees from the Court
Witness fees (requiring witnesses to show)
Copying Costs (making duplicate documents)
Exhibits
Miscellaneous expenses

While some litigation costs are inexpensive (filing fees) others can be extremely expensive (experts).

LITIGATION COSTS ARE ON THE RISE

WHAT ARE COMMON LITIGATION COST AMOUNTS?

Small cases should expect hundreds of dollars before litigation in litigation expenses. After litigation begins, it becomes thousands of dollars. If multiple experts are required and trials included, litigation costs can exceed $100,000 for a case.

I encourage you to ask your accident attorney how they break down litigation costs, what you will pay for, what the attorney will pay for, and the amounts the lawyer expects. Any competent attorney should be able to discuss litigation costs in detail with you. Do not expect much leeway regarding changing who will pay for litigation costs, what they will be and the amount. This is often outside of the control of the attorney.

Author: Matt Hamilton

Trial Lawyer
Juris Doctor

Stevens-Johnson Syndrome – Drug Replacement, Complications & Secondary Infection

Posted on January 8, 2019 by Matt Hamilton

Personal Injury Trial Attorney Matt Hamilton interviews Doctor Hamilton regarding Stevens-Johnson Syndrome and Toxic Epidermal Necrolysis. The following subjects are covered

Medication Replacement

Dr. Hamilton recommends the patient first consult their treating physician or pharmacist. It is necessary to replace the drug or other foreign body that is causing the stevens-johnson syndrome. It is important to replace the offending with a drug that is different in molecular structure. An example would be anti-biotics.
Second, Dr. Hamilton teaches that the drug that is used to replace the offending drug must remain effective to treat the illness that caused the initial drug prescription

Electrolyte Imbalance

Third, Electrolyte imbalance is emphasized. Electrolyte imbalance is important for cardiac function, maintaining blood pressure, supplying the body with oxygen and nutrients. Electrolyte imbalance can cause multiple organ damage to the kidney function, liver function and the renal system as a whole. Maintaining hydration is critical to electrolyte balance.

Steroid Use

Fourth, the Doctor shows steroid use in treating stevens-johnson syndrome and toxic epidermal necrolysis. Steriods are used to treat stevens-johnson syndrome to calm the bodily reaction and its immune inflammation process. It is used to interrupt the cascade process or inflammation, swelling, heat, and damage.

Secondary Infection

Fifth, the potential deadly effects of preventing secondary infections is taught. Infection is a primary concern because the barrier protecting the body, the skin, is weakened or gone. Infection can kill the patient as a secondary result of the Stevens-Johnson Syndrome. Infection is especially concerning because of the weakened status of the patient. The body is weakened because of toxins within the body as a result of the Stevens-Johnson Syndrome. The body is already weakened, and busy flushing toxins, and healing from the skin loss.

A Holistic Approach

Dr. Hamilton emphasizes a holistic approach to Stevens-Johnson treatment. Treatment is not a step by step process, like other afflictions. The location of treatment can be expected in the hospital, burn clinic, or intensive care ward.

Authors:

Dr. KK Hamilton, Pharm.D.

Matt Hamilton

Trial Attorney
Juris Doctor

How Lawyers Manage Governmental Immunity in Wrongful Death & Personal Injury Cases

Posted on December 19, 2018December 19, 2018 by Matt Hamilton

How Lawyers Deal with Government Sovereign Immunity for Wrongful Death and Personal Injury

Example: An IV catheter mistake leads to wrongful death

Bethany Johnson was a patient at a Kansas City, Missouri hospital. She was undergoing chemotherapy to treat her cancer. Her physicians decided to give her the cytotoxic chemotherapy drug Taxol through a peripheral vein.

They failed to check for leaks.
They failed to check for a back flow.

Ms. Johnson informed the nurses she was experiencing pain and burning in her arm that seemed to be spreading.

They continued giving the cytotoxic chemotherapy drug in spite of her report.

Ms. Johnson then reported blisters and ulcers on her arm that seems to be spreading. She felt sick like she had the flu.

Her nurses’ aides and the physicians did not switch to a central vein catheter.
Johnson was not treated.

Her extravasation injury led to the amputation of her right arm. This extended her hospital stay, caused an infection, and ultimately her death. Ms. Johnson was staying at a hospital owned by the government.

Can her survivors recover for their loss?

The History of Governmental Immunity from Wrongful Death and Injury lawsuits

“Sovereign immunity” has a long historical tradition in our court system. We adopted our laws from the British common court system. The British adopted its laws from Rome and the Catholic Church.

Each of these systems lived by the principle that “the king can do no wrong.” See Guy Seidman, The Origins of Accountability: Everything I Know About Sovereign Immunity, I Learned from King Henry the Third, 49 St. Louis U. Law J. 393 (2004). In short, the government cannot be sued in court for money unless it consents.

Governments Have Immunity from Wrongful Death Claims In Most Circumstances

Our legislature has enacted statutes following up injury accidents and wrongful death claims against the government. This is codified in R.S.Mo. § 537.600.

The sovereign immunity statute for wrongful death and injury lawsuits adopts the immunity of government as existed in the common law of courts prior to 1977.

Two Exceptions to Sovereign Immunity

“Sovereign immunity is the rule rather than the exception.” Benoit v. Mo. Hwy. & Trans. Comm’n, 33 S.W.3d 663,673 (Mo.App. 2000).

However, our statute carves out two exceptions where the government can be sued for wrongful death or injury. These exceptions are as follows:

Injuries caused by the negligence of a public employee while operating an automobile within the scope of their employment.
Injuries caused by the condition of a public property. This is when the premises is in a dangerous condition at the time of injury. The dangerous condition must have been created by a reasonably foreseeable risk of harm and be the type of injury that the victim actually suffered. The employees had to have actual or constructive notice of the condition with sufficient time to protect the victim but failed to do so.

Municipal City Governments Only Get Partial Immunity

State governments get full 100% immunity when they don’t carve out an exception for themselves. Cities are not so lucky. Municipalities only get sovereign immunity when they are conducting a “governmental function.” Richardson v. City of St. Louis, 293 S.W.3d 133,136-37 (Mo.App. 2009). Cities do not get immunity when they are merely providing a “proprietary function.” Crouch v. City of Kansas City, 444 S.W.3d 517,521 (Mo.App. WD 2014). This means a wrongful death or injury victim can sue a city if its negligent act was a proprietary function.

What Is a “Governmental” vs. “Proprietary” Function?

The distinction between a governmental function and a proprietary function for a wrongful death or a personal injury case against a city is the difference between you being able to have your lawsuit and collect money compensation and not having a lawsuit at all. The courts are highly inconsistent in making the distinction between governmental and proprietary functions. Jones v. State Hwy. Comm’n, 557 S.W.2d 225,229 (Mo. banc 1977). Worse, they even produce “uneven and unequal results which defy understanding.” Id.

Courts look to the nature of what the government is doing at the time it caused the injury to determine whether it is a governmental or a proprietary function. Courts look at what that government person was actually doing that caused the injury and why they were doing it. St. Joseph’s Light & Power Co. v. Kaw Valley Tunneling Inc., 589 S.W.2d 267 (Mo. banc 1979). The type of lawsuit does not matter.

When Is It a “Governmental Function?”

A governmental function that will allow the city to claim immunity from a wrongful death lawsuit or a personal injury claim will focus on whether the person doing the act was an agent of the state government. Bennartz v. City of Columbia, 300 S.W.3d, 259 (Mo.App. W.D. 2009). Look to who they were benefiting.

Were they benefiting the general public?
Were they benefiting the common good of all?
Was the person keeping the peace by enforcing laws and ordinances?
Was the person preserving public health?

Kunzie v. City of Olivette, 184 S.W.3d 574 (Mo. banc 2006); Parish v. Novus Equities Co., 231 S.W.3d 242 (Mo. App. 2007).

The city can claim immunity and dismiss your lawsuit if it can convince the court it was acting merely as an agent of the state government for the functions outlined above. It will claim that no exception is outlined in Mo. Stat. § 537.600 or anywhere else. The city will move to get a dismissal of your wrongful death or personal injury case.

What is a “Proprietary” Function?

A proprietary function does not have sovereign immunity. The city can be sued for merely providing a proprietary function that injures or kills. These functions are those that benefit or profit the municipality itself in its corporate capacity. In other words, they benefit or provide services or convenience to the city’s individual citizens.

Lawyers: Do Not Forget This!

A lawyer bringing a wrongful death or a personal injury case against a city municipal government must remember; governmental sovereign immunity is not an affirmative defense. Do not merely file your petition like normal and wait for an affirmative defense to be pled out under Rule 55.27. You will have your petition dismissed.

The victim has a requirement that they must plead, not only allegations of the waiver of sovereign immunity, but also the specific facts that give the victim the exception to sovereign immunity. Richardson v. City of St. Louis, 293 S.W.3d 133,137 (Mo.App. 2009). It is the victim’s burden to demonstrate that the city government was engaged in a proprietary function at the time that the person was wrongfully killed or injured. Cover this in advance before you get a motion to dismiss.

Conclusion

One can see from the case of Ms. Johnson that there is a vast difference between claims made for extravasation, wrongful death, personal injury, and other situations based upon the type of hospital or medical care provider that did the error. City hospitals may have partial immunity. State hospitals may have complete immunity. The specific but critical distinction must be prepared for and covered in advance.

Author:

Matt Hamilton of Hamilton & Associates, Lawyers

Juris Doctor
Trial Attorney

When Should I Lie to My Lawyer?

Posted on December 12, 2018December 12, 2018 by Matt Hamilton

Trial attorney Matt Hamilton explains the reasons, advantages, disadvantages, and issues that arise from the common occurrence of a client who lies to their own attorney.

The common reasons are explained. The repercussions of the lies on litigation, and case value are explored.

This is a good investment of time for any victim considering telling a lie to their lawyer. It is good knowledge for any attorney practicing in wrongful death, personal injury, or criminal defense; basically, any field where client interaction is high and the stakes are great.

Matt Hamilton

Juris Doctor
Trial Attorney

Unlock & Find Hidden Electronic Computer Files for Drug Error & Defective Product Claims

Posted on November 14, 2018November 14, 2018 by Matt Hamilton

How to Unlock & Find Hidden Electronic Computer Files

for Drug Error & Defective Product Claims

Drug errors are all too common in medical treatment. Mistakes cause Stevens – Johnson Syndrome. Extravasation errors can lead to amputation. Anti-coagulant drug errors can kill. Defective Products are hidden by the manufacturer and retailer.

The evidence of drug error malpractice is often stored electronically. All businesses communicates and stores files electronically, in the modern world. The medical-pharmaceutical industry relies particularly on electronic records.

It is normal to expect people to protect themselves and their jobs. It is expected for people to hide their errors. Businesses hide their mistakes, even when others are harmed. Too often, individuals commit unethical acts on behalf of their employers; unethical acts they would not do to protect themselves. This article teaches how to uncover electronic evidence others believe is deleted for drug error and defective product lawsuits.

Types of Electronic Records Containing Drug Error Evidence

Lawsuits are a search for the truth. A drug error attorney must know how to uncover the truth from those seeking to hide it. Drug error business records exist on electronic servers; often invisible to the naked eye. These records include files, such as:

Email correspondence
Private correspondence
Business documents
Spreadsheets
Presentations
Testing data
Prescription histories
The drug mistakes
The cover up of the drug mistakes

This field is known as Electronically Stored Information or “E.S.I.”

Companies tend to forget what they store electronically. Wrongdoers tell lies, presuming they have deleted the truth.

How Electronic Files Are Stored

Think of computer file storage as a book. Books contain a table of contents, the pages themselves, an index, and perhaps a bibliography. “Deleting” an electronic file does not erase the data within that file. That information is still stored on a computer disk. The act of deleting a file only removes a “pointer” that the computer uses to find that particular information’s location on the disk. The “disk” can be:

a flash memory card,
a hard drive on a desktop computer, or
many other forms of storage.

The key is that the data you are looking for continues to exist until it is both deleted and written over by the computer.

What Happens When You Press Delete?

When one presses delete on a computer, there is a data entry on the disk’s directory. This directory indicates each file as either “used” or “not used.” This status change tells the computer either it has permission to write over the data or it does not have permission to write over the data.

Either way, that data continues to exist until it is written over or the disk is physically destroyed. Because of this, investigators can recover data thought buried or lost even many years into the past. Insiders call this “residual data.” It is there until it is written over.

Think back to our analogy of a computer file like a written book. If I pull out the table of contents and burn it, the pages are still there. If I pour ink over the bibliography, I can still read the book. If I erase the contents of the index, the book’s story remains. It is just more difficult to find. This is where the experts come in.

The Critical Importance of Emails To Drug Error Cases

People are More Candid When E-Mailing

Emails and their cousins, text messaging, instant messaging and social media, are particularly important for drug error lawsuits. These electronic communications are by their nature informal. Many employees will speak their mind and disclose information they would rather keep secret in an email but never in a formal memorandum or business document. This is ironical because the email is invariably a business document and much more difficult to destroy.

People With Fewer Filters Use E-mail

Furthermore, nearly all employees have business email. However, the formal memorandums and documents from departments are often filtered through several layers of the corporate management. Because of this, the people writing emails are much more likely to admit the truth and discuss it, not knowing it may later be revealed. They might not even know of the cover up.

E-Mails Have a Smaller Radar Signature

Emails are also more likely to be overlooked. Because of the low corporate rank of many email authors, as well as their abundance; they often miss out on later corporate attempts to hide the truth in a drug error case.

Why Are Emails So Difficult To Delete?

Multiple E-Mail Copies

Email correspondence is difficult or impossible to entirely eradicate. Multiple copies are typically sent to various people. This means the same correspondence is on multiple devices, computers, and servers. There are even “blind copies” that may be sent out without others knowing.

E-Mails are Backed-Up

Emails are also backed up as a matter of policy. These backups exist on multiple users’ computer systems. When further backups occur, backup programs tend to take the most robust version of the backup; meaning the erased e-mails may be sent back to the main database.

Many People are Copied on E-Mails

Multiple edited copies of emails may exist. Each version of the email may be contained in a separate file and therefore may be discovered.

People Overlook E-Mail Permanence

Business executives often do not realize their emails create a semi-permanent record. Some treat emails as merely another form of verbal office banter. They assume after they delete the email from their own eyesight, it is deleted from computer storage entirely. Even email communication that is intentionally created as temporary (think Snapchat) leaves a permanent trail that can be recovered and used.

How Do Drug Error Law Firms Find Hidden Electronic Information?

E.S.I. or electronically stored information includes secret hidden data within it. This is known by many names:

Hidden data
Embedded data
Metadata

This secret hidden information contained in every file is a means by which deleted and hidden electronic files can be recovered.

What Metadata Reveals

Hidden Metadata contains information on the location and basic aspects of various versions of a file. It can contain who authored it. It can contain file size. It contains file location. It contains the identity of the computer that created it. Metadata can even reveal who opened and viewed the E.S.I.

Metadata or “embedded data” is often even more valuable than physical evidence. This is because it is more difficult to alter. It is more difficult to hide or fake.

Think of a physician who denies he saw prescription language for an antibiotic allergy, prescribes the antibiotic anyways, and causes Stevens – Johnson Syndrome in some poor victim.

The physician may deny seeing a physical prescription. However, Metadata may reveal that the physician opened the antibiotic allergy disclosure, viewed the allergy disclosure, as well as the date, time, and computer he used to do so. Such invaluable information not only would reveal the truth but also be persuasive to a drug error trial jury.

How Bad Guys Hide Electronic Information And How To Find It.

Expect for the party that committed the drug error or its insurer to try to hide or disguise electronic information of the wrongdoing. The following techniques are used:

Print And Forget

Defendants will offer to print out on physical paper the electronic files. First, this eliminates Metadata and prevents you from discovering useful information contained within it. It also hides their methods of obtaining the data, meaning more may be found that is not revealed in the physical printout.

This is a technique where they don’t intentionally hide information. They merely use an ineffective means of retrieving it and therefore it never reaches you.

The Changing File Types Shell Game

Drug error defendants may offer to convert electronically stored information to .tif files or .pdf files. This is because .tif imaging and Adobe .pdf files do not contain the Metadata stored within them. ‘

Since you cannot retrieve that data; you cannot use it against them at trial.

Hiding The Method

Any math student will know that to pass an exam they need to show the teacher their work. That is because it possible to guess an answer to a mathematics problem, or cheat off someone else and merely write down the answer. By showing your work, you can display your mastery of the subject.

So too, drug error defendants will not fully reveal the method by which they extract electronic data. By hiding their method, the drug error lawyer cannot determine whether the drug defendant’s method was what was agreed upon, whether the method was an effective means of searching, or whether the method covered all sources. Drug error lawyers must insist upon transparency on the method used.

Narrowly Construing Search Terms

Defendants seeking to hide electronic information may insist upon search parameters that are too narrow to find all of the pertinent drug error information.

In addition, they may request search terms that are too few in number. By asking too few questions of the computer; the computer gives too few answers.

How To Avoid Drug Error Electronic Information Hiding Techniques

It will be impossible for a drug error victim or lawyer to stay entirely up to date on electronic means of hiding, deleting, or altering evidence. I recommend realizing your shortcomings and hiring professionals to define the method and terms of the search and also carry out its implementation.

Such firms use software known as “predictive coding” and “technology assisted review programs” to effectively seek out the truth and reveal the drug error evidence.

Remember; you are typically fighting a professional, large corporation. This will not be its first drug error lawsuit. be aggressive and target your efforts to reveal the truth on their weaknesses. This is because you will have less experience with its computers, techniques and methods. You will have fewer resources. Use its size, confidence, and lies against it. Good luck and may you uncover the truth.

Author:

Matt Hamilton of Hamilton & Associates, Lawyers

Juris Doctor
Trial Attorney

Bibliography:

Christopher Dysart & Alexander Braitberg, Strike at the Core: Use e-discovery to exploit an opponent’s vulnerability, Mo Trial Atty. 8 (Winter 2016). https://www.matanet.org/
Butkiewicz, Restrepo, Haines, & Crawford, AMIA Jt. Summits Sci. Proc., 2016: 33-40 https://www.ncbi.nlm.nih.gov/pmc/articles/PMC5001747/
Hafeez, Paolicchi, Pon, Howell, Grinspan, Feasibility of Automatic Extraction of Electronic Health Data to Evaluate a Status Epilepticus Clinical Protocol, J. Child Neurology, (Oct. 2015). http://journals.sagepub.com/doi/abs/10.1177/0883073815613564
Jeffrey Slusser and Jeffrey Gardner, Systems and Methods for Retrieving Electronically Stored Information in Real Time for Electronic Transactions, U.S. Patent Application No. US20170004481 A1 (2016). https://www.google.com/patents/US20170004481

Are You Over Paying for your Accident Lawyer? [Analysis of Fees]

Posted on November 8, 2018 by Matt Hamilton

HOW MUCH SHOULD YOUR ACCIDENT LAWYER COST?

We have to pay for things every day. Plumbing breaks. Electricity fizzles in houses. Luckily, most of us do not experience frequent injury accidents. Handling injury accidents requires the expertise of an injury accident lawyer. Accident attorneys do not volunteer, but are paid. This article informs on how these lawyers are paid, the amounts, what is, and what is not reasonable.

THE OPTIONS: CONTINGENCY FEE VS. ATTORNEY FEE AWARDS VS. HOURLY

The Hourly Rate Method of Paying a Lawyer

There are three main ways on which attorneys are paid. The most common is an hourly rate. Hourly rates are determined by the amount per hour the attorney charges and the amount of time he spends. The more he works, the more you pay. Hourly attorneys will keep detailed records of exactly what they are doing and how long they are spending on a particular task. You should receive a monthly statement. That monthly statement will indicate the hourly rate and break down (typically in six minute intervals) what the attorney was doing and why he was doing it.

Rates for attorneys vary between $150 per hour and $500 per hour. How much an attorney charges hourly is based entirely upon what people will pay for his services. Shopping around can save significant money here. However, remember, the best attorneys are paid more for a reason. It is often financially better to hire the more expensive attorney and get the better result.

Remember also, you are paying the attorney for keeping close track of his time, which will be included in the hourly fee. Hourly pay is common for attorneys and clients who regularly work together. It is common for an hourly attorney to require a “retainer; an amount of money paid in advance to put towards the hourly fee.

Paying through an Attorney’s Fee Award Case

Sometimes you do not have to directly pay the lawyer at all. Certain types of cases (like vexatious refusal to pay by insurance) carry with them awards of attorney fees. This means at the end of the case, if you win, the other side pays for your attorney’s fees.

One would want to check with their particular jurisdiction and particular case type to determine whether an attorney’s fee awards can be expected. Few cases invoke statutes where attorney’s fees are mandated.

You should be able to understand the contract your own lawyer gives you. The vast majority of contingency fee lawyers contracts are pages long, with lots of fine print. Many have “tiered” results, with different payment amounts being paid based upon how far the legal claim proceeds. This, however, is unnecessary. For example, the contingency fee contracts my offices uses for personal injury and wrongful death cases, contains ONLY the following language:

I, We, _____________, hereby employ Matt Hamilton, Hamilton & Associates, Lawyers as my attorney to represent me in my claim against _________________, and all other persons considered liable by said attorney for personal injuries sustained by me on the ______ day of ________. It is agreed that said attorney shall receive ______ percent of whatever is realized on said claim for his services. Client agrees to pay for expenses incurred in pursuing the claim. Signed ______________.

Sometimes, simpler is better.

The British System Versus the American System of Paying Lawyers

There is an old philosophical difference between British law and American law. In the British model, the losing side always pays for the other person’s attorney’s fees. In the American model, typically each party (whether they win or lose) pays for their own attorney’s fees. The American model is preferred because it gives an advantage to the ordinary person who is the victim. Often, corporations will pay tens or hundreds of thousands of dollars to their attorney. This would mean that a person simply could not afford to take the risk of suing a large corporation and incur that level of expense under the British model.

Paying the Lawyers through a Contingency Fee

The contingency fee is the most common reimbursement for accident injury lawsuits. The contingency fee is governed by state law. In it, the attorney takes a percentage of the win; however large or small that may be. The attorney takes a considerable risk by fronting the expenses. He advances his efforts in hopes of winning. If the case loses, the attorney gets nothing, and loses his cost and time. If the case wins, the attorney gets a generous reward. Each attorney must take multiple cases in order to justify the risk of being paid through a contingency fee.

Complaints About High Pay Low Effort Contingency Fees

Sometimes clients complain about the generosity of contingency fee versus the amount of time their attorney has spent on it. This attitude presumes all cases will win. It also does not take in account the risks and efforts of the attorney. Lastly, there is the considerable time, training, and monetary investment for the attorney to get his skills to the level to allow for victory.

Contingency Fees are Sometimes Prohibited

Rule 4-1.5 (c) and Rule 4-1.5 (d) of the Supreme Court of Missouri prohibits contingency fees in certain types of cases. For example, family law and divorce cases cannot have contingency fees.

How Long is the Attorney Required to Work on a Contingency Fee Case?

The Supreme Court of Missouri in the case of In re Crews, 159 S.W. 3d 355 (Mo. 2005) speaks to this issue. The Supreme Court of Missouri ruled that it is presumed in an attorney contingency fee agreement that the attorney must represent that party through judgment.

This means if an appeal should be attempted after a judgment, a separate agreement should be reached. Naturally, contingency fee agreements are creatures of contract. The parties can agree to whatever specifics they may want if it expressed in the contract.

When is an Attorney’s Fee Unfair?

The Missouri Supreme Court in the case of Murphy v. Dalton, 314 S.W. 2d 726, 733 (Mo. 1958), spoke to the issue of fairness in contingency fee contracts. These include injury cases and accident cases. In Murphy, the Supreme Court ordered that every contingency fee contract must be viewed from the point and time and under the circumstances of the parties at the time of the execution of the contract. This means if circumstances later change, that does not matter. If certainty or uncertainty change later on that is not taken into account.

Neither the attorney nor the client can view in retrospect (after the fact) regarding the success or failure of the case to determine whether the contingency fee is reasonable. For example, if both parties are expecting long and drawn out litigation, a jury trial, and perhaps even an appeal, and signed a large contingency fee, the attorney cannot later complain. On the opposite side of the scale, if the case settles after a simple one page demand letter, the client can no longer complain. If ten years or fifteen years of litigation ensues and hundreds of thousands of dollars in expenses are incurred the attorney cannot later complain that he should have been paid more. The reasonableness of a contingency fee is taken at the time that the paper is signed.

WHAT ARE TYPICAL CONTINGENCY FEE AMOUNTS?

Like stairs, contingency fee amounts typically go up in steps.

Thirty Three Percent (33%) Contingency Fees

A one third contingency fee was once common and nearly ubiquitous. Almost all accident and injury lawsuits were signed up for a one third contingency fee. This was through the mid-90s. The philosophy was that one third went to the lawyer, one third went to the victim, and one third paid for past medical and other expenses.

In practice, this was never true. Some cases had large values and required small amounts of work. Other cases presented large amounts of work and small value. “Tort Reform” in the early 2000s vastly increased the cost of doing litigation and increased the cost of making claims for innocent victims. Many attorneys went out of business. The surviving law firms had to change, adapt, and improve, just to make less money. The cost of bringing lawsuits increased substantially. More experts are now needed. This requires greater expenses. One third contingency fees are still common. However, do not expect to get that amount as an offer from the attorney. Those are only when competition is high or the value of the case is high with little work.

Forty Percent (40%) Contingency Fees

Forty percent of the total take on the case (not counting expenses) is common nowadays. This accounts for the increased cost and expertise needed to be victorious in litigation.

Forty Five Percent (45%) Contingency Fees and Higher

Contingency fee agreements where the attorney takes forty-five percent or more of the take are uncommon. Typically, one will see this in strict product liability product defect cases and manufacturing defect cases. Medical malpractice and other professional liability cases also can carry contingency fee agreements of this high percentage. These higher fees are to offset the increased litigation costs (sometimes hundreds of thousands of dollars) and the risky of the case.

WHY SHOULD I PAY SO MUCH FOR A CONTINGENCY FEE LAWYER?

There is an old expression as a joke for divorces. The joke goes; “Why are divorces so expensive? Because they are worth it.” The opposite is true (with the same rational) in contingency fee cases. Simply put, the client gets more money at the end of the case, does less work, and has fewer headaches on average with a competent contingency fee lawyer working on their case compared to handling it on their own. High priced contingency fee lawyers tend to get better results and tend to get more money for their clients. In short, contingency fees are expensive because they are worth the investment.

Author:

Matt Hamilton of Hamilton & Associates, Lawyers

Juris Doctor
Trial Attorney

Five Reasons Why Insurance Companies Do Not Fairly Pay Accident Claims

Posted on October 18, 2018October 18, 2018 by Matt Hamilton

FIVE REASONS WHY INSURANCE COMPANIES DO NOT FAIRLY PAY ACCIDENT CLAIMS

You always do the right thing when making decisions, right? You are always fair minded and generous to people who are less powerful and in a vulnerable position, right? People are generally decent, right? Why is it, then, that insurance companies employing otherwise reasonable, fair-minded people do not give fair-minded value to the claims of innocent victims? This article reveals five reasons why systematic undervaluing of insurance cases occurs.

A MONEY MAKING ENTERPRISE

An overlooked motivating factor for low payouts on injury cases is our capitalist system for the insurance company. Corporations are entities, even referred to at times as “persons.” Insurance company corporations have one goal above all others: to make the maximum amount of money for their owners. Their owners are (typically) stock owners who pay money for stock shares and expect more money in return by way of dividends or increased stock value. From the executive desk of the president down to common employees, this money motivating factor colors all decisions of businesses. Insurance companies are no exception.

Insurance companies make money by charging their customers premiums. They also make money from investing the money that is given to them and making dividends or profits on that money. Insurers maximize profit by minimizing their expenses. Paying money for insurance claims is a large expense of an insurance company. The less that is paid out, the more money for their owners (the stockholders).

Insurance companies will deny paying more in payouts when the investment market is expected to do a down turn versus when money is to be made. However, in our experience, insurance companies do pay out differently for tax reasons, market force reasons, and investment timing. One way or the other, capitalism, money, and timing influence the fair value by which insurers assess to your case.

INSURER DELAY MEANS INSURER MONEY

You may notice the larger the insurance claim, the more time, procrastination, and delay the victim will experience. This is no coincidence. Remember, insurance companies do not handle just your claim. Insurers handle tens or thousands of claims at any one time. With any large population, emergencies for some claimants will occur. Financial troubles will crop up for some claimants. Some claimants merely drop out because of exhaustion. This means that the longer an insurance company can delay a claim, the more people will drop out for various reasons that are personal to each person.

Even claimants that do not drop out, may take less than the full value of their case for similar personal reasons. Some people merely get into a situation where they are desperate for money and will take whatever is offered. The longer the delay, the more likely this is.

We talked in reason number one (above) about how insurers make money from investments. Remember, the longer the delay in paying you, the more time the insurance company has to invest the money that the insurer would have otherwise given you. Simply put, delay pays.

THE DIFFUSION OF RESPONSIBILITY

We all feel guilt and negative emotions over decisions which harm others. Nobody wants to be the “bad guy.” We all like to point to the other person and say they are the “bad guy.” Others will say they simply were one piece in the cog of a big machine and did not make the final decision. This diffusion of responsibility is the genesis of many injustices perpetrated by insurance companies.

Remember, it is often the case that insurance claims are handled by many people. If not just one person makes a bad decision; it is a group decision. Guilt is diffused and can be blamed on others. The executive office can order managers who can then blame the executives. The managers can order employees who can then blame the managers. Employees are large in number and can blame each other. One way or the other, if no one person is at fault, no one person bears all the guilt. This diffusion of responsibility is one way in which innocent victims with the insurance claims suffer further injustice through an unfair evaluation or a complete failure to pay a rightful claim.

Natural Selection in favor of Unfair Insurance Employees

Please also note there is a natural selection issue with respect to insurance companies. Each employee will have employment responsibilities and guidelines. It is often the case that an employee gets better evaluations and a superior work relationship when the employee makes more money for their corporation.

Employees that lose money for their company tend to be fired. In an insurance situation, this means the less money is paid out to otherwise rightful claims; the more money the insurance company makes; the better the employee is viewed. I have personally seen this attitude in my insurance adjuster acquaintances. These are people that are otherwise good, well meaning, and have the victim in mind. They simply get overwhelmed by the money and the desire to please their bosses.

A DIFFERENCE IN VALUE OPINIONS

We all value our own family, our own friends, our own possessions and pets more than other people value them. Each of us has a personal affinity for the things closest to us. This creates a natural bias when those things are lost. The death of your own pet is more important to you than the death of a stranger’s pet.

So too is it true with injury accident claims. Your pain, your suffering, the accident’s effect on your life is more meaningful and valuable to you than a stranger. This results in claims adjusters at insurance companies who simply don’t share your value for your suffering as a victim. Therefore, insurance offers are made valuing an average payout rather than your particular experience.

Computers Affect Accident Claim Value

Computers are also the enemy of value! Many insurance companies have specific proprietary programs, such as Colossus, originally made for Insurance. These computer programs place values on many claims. Like all computer programs, they make mistakes and are imperfect. Insurance claim computers may simply fail to take into account all your particular circumstances. Remember, these computers were built and paid for to save insurance companies money. Their primary goal was not justice for an accident victim.

TOO FEW VALUE HEROES

Full value of case is often reached only after attorneys are hired, litigation is handled, a jury trial ensues, and a decision is given. Sometimes there is even an appeal! With so few people taking the full journey, accident claim values overall go down. This means even the few people that do go the distance see higher costs and less money in the end because they must make the added effort to “blaze the trail.”

It is understandable to identify with the people who take the money for less than full value. We all have stress in our lives. Few are highly experienced at insurance injury claims. We all want the pride of handling a claim ourselves. Unfortunately, this also tends to result in lower values for the claim. So many drop outs create a bias on the part of those who pay the claims (the insurance companies and lawyers). Insurers get accustomed to their own victories. The failure of large numbers of people forcing full accident claim values creates an average value payout that is less than reasonable.

I hope these five reasons have informed you. Others exist. None of them are equally important. However, remember that your decisions will also affect the justice that others will receive in the future. Good luck!

Author:

Matt Hamilton of Hamilton & Associates, Lawyers

Juris Doctor
Trial Attorney

How To File Your Wrongful Death Claim Past The Time Deadline

Posted on October 11, 2018October 11, 2018 by Matt Hamilton

How To File Your Wrongful Death Claim Past The Time Deadline

Grieving families delay hiring an attorney and filing a lawsuit for the wrongful death of a family member for many reasons. They may not realize how quick time flies. A delay in hiring a wrongful death lawyer can lead to the time to file the claim having elapsed. This article explains the time deadlines for wrongful death claims and when longer time periods may be used.

A Bicycle Pedestrian Accident Leading to a Wrongful Death

Tom is an eleven-year-old boy from Lee’s Summit, Missouri. He rides his bicycle to school. He crosses Mo. Highway 50 on his way to junior high school daily. Tom is a good boy and obeys the traffic signals.

School starts often before sunrise, while people are hurrying to work. One day while crossing an intersection, Tom and his bicycle are hit by an automobile following a motorcycle, both running a red light. The motorcycle gets away. The vehicle stops and waits for the police and ambulance to arrive.

Tom’s family is rightfully devastated and grieving. It takes a long time for them to get back on their feet. They delay seeking a lawyer because of the unpleasant nature of the claim. More than two years elapses.

Do they still have a claim?
How do they pay the bills?
What is a lawyer to do?

Statutes of Limitations; How they are Avoided; When they Bar Claims.

Claims for the death of a family member must be brought under the wrongful death statute. This is Mo. Stat. § 537.080. It states that when a person has died because of the wrongful act of another, the spouse, living children, or surviving relatives of the deceased may bring a lawsuit on the descendant’s behalf. Only one claim may be brought. The people who stand to benefit are “the wrongful death class.” Id.

Why History of Wrongful Death Statutes is Important to You.

Wrongful death lawsuits did not exist traditionally in America or Britain. There is some debate whether commong law courts in Britain and America recognized the right to sue for the death of a loved one. However, the majority of courts believe such “judge” court claims did not historically exist.

This lack of the right to sue when someone wrongfully kills another lead to many unjust results. In response, American State legislatures passed wrongful death statutes in the mid 1800s to allow justice for those who have suffered the ultimate loss.

The Purpose of Wrongful Death Lawsuits

The purpose of the wrongful death statutes is as follows:

Provide compensation to wrongful death class members for their loss
Ensure that wrongdoers pay for the consequences of their actions
To detour wrongful conduct that may lead to death.

O’Grady v. Brown, 654 S.W.2d 904, 909 (Mo. banc 1983).

What Is A Statute Of Limitation?

The term “statute of limitations” is a legal term defined as a time limit imposed by the legal system in which a claim, lawsuit, or criminal action can be filed in court. It is the maximum period of time a victim can delay before filing their lawsuit.

The History of Statutes of Limitation

Statutes of limitations have a history that goes back to the year 1066 in English common law. This is right after the conquest of Britain by William the Conqueror. This was the origin of the English law, what we call “common law.” America adopted it as colonies, then as a nation.

Why Do we Have Statutes of Limitations?

The idea of the statute of limitations is to ensure the parties will be diligent in their efforts. The purpose is primarily to protect the defendant, in criminal cases as well as civil cases. These laws encourage lawsuits to be filed while the evidence is still fresh and witnesses’ memories are still clear.

Time Periods for Statutes of Limitation

The statute of limitation time period differs from state to state. The time period differs from case type to case type. If the time period for a statute of limitation elapses, you can no longer file a valid claim in court.

Statutes of limitations can be as long as ten years for many contract disputes. Even longer periods exist for certain crimes such as under-age rape, murder, and other major felonies. Statutes of limitations can be as short as one year. For example, in Louisiana, there is a one year statute of limitation for most every case. Employment cases can be even shorter. Victims can have as short as 180 days to file a claim.

A wrongful death claim in Missouri must be brought within three years. R.S.Mo. § 537.100. There are many ambiguities in the law. Both a wrongful death statute and courts order that the statute be “liberally construed.” Section 1.010; O’Grady, 654 S.W.2d at 904. This means that whenever there is an ambiguity and the laws is not precisely on point, deference should be given to the victims.

How Can A Statute Of Limitations Be Longer Than The Deadline Ordered By The Law?

What Is Tolling?

A statute of limitation can be “tolled.” This is a legal term that means that the time limit deadline is paused. This “tolling” occurs, for example, when one party is under some sort of legal disability. For example, a personal injury victim may have a traumatic brain injury. They may lack the legal capacity to act, or be a child or someone with a mental illness.

Some statutes of limitations can be tolled for military members serving abroad. Tolling includes situations like the following:

Plaintiff is a minor (child) the statute does not begin to run until he reaches the age of maturity.
Plaintiff has been declared insane
The victim is in prison for a felony
Defendant has fled and cannot be found in a criminal case
Defendant is currently undergoing a bankruptcy proceeding

What Is Accrue? The “Discovery of Harm” Rule

“Accruing” is different than tolling. The wrongful death statute does not define what it means to “accrue.” Therefore, it is left to the courts to define it.

The courts define accrual as, in essence, when the statute of limitations clock begins to run. If a lawsuit has never accrued, there is nothing to toll, because an event or a circumstance cannot interrupt an event which is never started. Bowlin v. St. Luke’s Health System Inc., W.D. 75364 (Mo. App. W.D. 2013).

The Test to Accrue

A statute of limitations begins to accrue when one of the wrongful death class members either knows or can reasonable discover they have a wrongful death claim. See State Ex. rel. Beisly v. Perigo, 469 S.W.3d 434, 437-38 (Mo. 2015).

In the words of United States Supreme Court Justice Stevens, a wrongful death claim accrues when a “diligent plaintiff has knowledge of facts sufficient to put him on notice of an invasion of his legal rights.” U.S. v. Kubrick, 444 US 111, 126 (1979). In other words, a lawsuit “accrues when the right to sue arises.” Hunter v. Hunter, 237 S.W.2d 100,103 (1951).

How Defendants Conceal Their Wrongful Conduct, Causing Wrongful Death Statutes Of Limitation to Accrue

It is common for corporations and people to hide their wrongful acts. It is expected that employees, agents, and loved ones sometimes cover up the ill deeds of those whom they care for. Employees jump to the aid of employers to impress. Sometimes people cover-up merely out of spite.

Rather than curse such acts, we should reveal how they typically arise. This is as follows:

Threatening or coercing employees to conceal information concerning their error
Failing to request an autopsy of a deceased despite the suspicious nature of their death
Telling family members the death was “natural”
Failing to convene a committee to review the medical death, or code blue, or to determine how to prevent future deaths from similar circumstances
Failing to inform others of the wrongful conduct that caused the death
Failing to inform the medical community, such as licensing boards about the wrongful conduct
Failing to invest the perpetrator who killed
Impeding a police investigation
Failing to preserve evidence
Hiding evidence
Destroying evidence

See Joan M. Lockwood, Wrongful death causes of action timely filed though death occurs more than three years prior to suit, The Missouri Trial Attorney 16 (Winter 2013).

Actions and omissions such as these are critical evidence to convince a court to accrue a statute of limitations when the wrongful death time period has elapsed.

Is Fraudulent Concealment Needed to Delay the Start of a Wrongful Death Clock?

Fraudulent concealment is not needed. The law does not even require a “bad guy.” All that is needed to accrue a wrongful death statute of limitation is persuasive evidence that the class members were prevented from knowing or reasonably discovering that they had a wrongful death claim. See Jepson v. Stubbs, 555 S.W.2d 307, 311 (Mo. banc 1977); Nelms v. Bright, 299 S.W.2d 483, 487 (Mo. banc 1957); Beisly, 469 S.W.3d at 438.

Expect for the defendant to argue that the statute of limitations started at the time of death. Use the facts of the particular circumstance you are in. Try to fit them into the categories I have listed above. Therefore, argue the time of accrual and any tolling facts that may help you.

How To Survive an Allegation that Your Wrongful Death Claim Is Too Late

The following arguments should be proposed to the court and supported by evidence.

Argue that failing to allow the claim goes against the three purposes of the wrongful death statute (see above)
Accrue – display how the wrongful death claimants did not know of facts supporting the claim until a particular date
Accrue – demonstrate how the evidence revealing the claim was not reasonably discoverable until a particular date
Accrue – argue that actions taken by the wrongful death claimants would have revealed the wrongful death claim, but for defendants concealment.
Accrue – list out and explain the actions the wrongful death claimants would have taken, if the defendants would not have acted to conceal the deadly wrongful conduct.

The Need for a Wrongful Death Law Firm

As one can see, wrongful death actions vary considerably from ordinary personal injury automobile accidents. They involve different laws. They involve different fact searches.

There are ways in which a simple mistake can cause entire claim to be extinct. I encourage you; if you have a wrongful death claim, seek the services of wrongful death attorney so these problems can be avoided. The idea after all is to seek compensation for victims, and detour future deaths.

Author:

Matt Hamilton of Hamilton & Associates, Lawyers

Juris Doctor
Trial Attorney

5 Most Common Photo Mistakes Hurting Your Injury Case Value [Lawyer Tutorial]

Posted on April 30, 2018April 30, 2018 by Matt Hamilton

The 5 Worst Photo Mistakes that Harm Your Injury Case Value

Personal Injury and Wrongful Death cases are based on evidence. Evidence comes by what people have seen, heard, felt, and smelled (live testimony). Evidence comes by documents (police reports, death certificates, medical records, bills, and diagrams). Evidence comes by photographs and video.

Why are Injury Accident Photos So Important?

Photographs and video are the most perishable evidence one can assemble for your injury case. Opportunities often only occur once. Photos and video are key to case value. Photos and video prove live testimony is true. Photos reveal the lies told by others. Photos help the facts become memorable. Photos help testimony become understandable. Photos preserve where memories fade.

Two main case factors relate most directly to photo and video use. These are (1) liability (who is at fault), and (2) damages (how much money is your claim worth). Avoiding common mistakes is needed because of:

the direct relationship between the ease of proving an accident case,
the time an accident case will linger, and
what an accident case is worth in money.

What are the 5 Most Common Photo / Video Mistakes I Can Make for an Injury / Death Accident?

This is part of our continuing series to help auto accident attorneys, wrongful death lawyers, and injury victims maximize their success.

Mistake #1 – Taking Too Few Photos

Taking an accident or injury photo is free using today’s digital cameras. I can’t tell you how often I request an injury victim to take accident photographs, and they walk into my office with three photos. Taking too few photos is a common, critical error. Many things need documented for a wrongful death or auto accident claim. For example, you should photograph and video the:

Your property damage
Their property damage
Police vehicles
Ambulance/Fire Trucks
The accident scene (all 360 degrees)
The road/ground around the accident
Vehicle Exteriors (all accident vehicles; all the way around)
Vehicle Interiors (back, front sides)
Injuries you have
Injuries others have
Traffic
Any other item seemingly important

Mistake #2 – Delaying Too Long to Photograph

Injuries heal. Harm looks most graphic when it is new, and can go away in hours or days. You are not being morbid. Photograph what is going on, at the time it is going on and the victim will thank you later on.

Traffic conditions and road conditions change within seconds and minutes. These may be important to an auto accident or death case. Document these through photographs and video. They will show the reality of what happened to those who weren’t there. They’ll remind you of what you may forget!

Vehicles vanish after auto accidents. Insurers commonly buy them or junk them within days. In most auto accident claims, the insurance company is the only party with photographs of the vehicles. Those photographs show only what the insurer wants others to see. Preserve your case value and story through timely vehicle crash photos.

Weather is often an issue in cases. It only takes a moment to photo and video the conditions. Preserve them!

Medical treatment is only a one time only event. Show what the accident injury victim is going through for treatment so other can understand.

Mistake #3 – Thinking Too Narrowly in your Photo Choices

It is impossible to foretell what issues will become important in a personal injury lawsuit. Diligent, and copious photographing can save the day. Show both auto accident vehicles, and the scene, and the people. The easiest way to avoid this mistake is:

Take out your camera
Set is on video mode
Go to the accident scene center
Video 360 degrees … all the way around
Video up and down, high and low
Go the the far side of the accident scene
Repeat, with a second video all the way around, up and down

These two short video (a minute is all you need) will preserve more that one can imagine and avoid mistake #3.

Mistake #4 – Losing Interest in Taking Photographs After Time

Perseverance is key to much of life’s success. This is also true with accident claims and the evidence supporting them. Personal injury and wrongful death claims, (as their largest single aspect of money damages), claim long term suffering and changes over months and years. Early, quality photographic and video evidence is critical most importantly to show fault and severity. However, the best evidence of case money value comes in showing long term harm. Remember, you are telling the story of your life after your accident. Photograph your progression. One can show:

Rehabilitation
Daily Exercises
Family and Friend events without the victim
How other help where the victim cannot
Daily Limitation
How live has changed

Preserving the story will make the successful story end all that more impact. Make your photograph and video a weekly routine.

Mistake #5 – Failing to Photograph What Seems Unimportant

Being an accident victim does not require seeing the future. One cannot foretell all the issues which will become important.

What will you be accused of?

Comparative fault?
Faking your injury?
Exaggerating the impact of your injury on your daily life?
Falsifying how others must now help you?

Murphy’s Law states if it can happen; then it will happen. While this may be a bit paranoid, since photos and video are free and quick; incorporate a little positive paranoia into your evidence collection. Make a habit of photographing whatever events, routines, progresses, regression, and harm. You can always delete them later on it they prove useless. Photographing what seems important, however, can save you!

These Accident Photo Mistakes directly bear on case success and value.

Check out our Youtube channel for additional videos on accident investigation photographs.

Visit our website for additional detailed articles on your particular case type.

Matt Hamilton

What Lens to Use When Photographing an Accident Scene

Posted on April 26, 2018April 26, 2018 by Matt Hamilton

Choosing the Right Camera Lens to Photograph an Accident Scene

The success of auto accident and wrongful death cases depend upon persuasive evidence. In 1927, Fred Barnard pointed out that “a picture is worth ten thousand words.” This is very true in accident lawsuits. Good accident photographs:

Persuade judges, juries, and insurance companies
Increase your likelihood of winning
Increase the money value of your case
Help to organize trial presentations
Bolster witness credibility
Make your story more memorable
Discredit false evidence and testimony

The Mistake of Reliance on Camera Phones

It is now common for people to rely upon cellular “smart” phones with cameras. However, these camera phones have major limitations. Their largest limitation is the lens. This is why the best accident lawyers use DLSR cameras with multiple, high quality lenses. Better cameras with better lenses produce better photographs and superior results.

Lens Choice for Focusing attention

Camera lens choice for an accident scene investigation is critical to photographic success. Some lenses compress an image, making objects in the distance appear closer. Other camera lenses pull the light, making objects appear further away. When investigating, say a wrongful death accident scene, it is important to think through in advance what you want your audience to focus upon. Lens choice plays an important role here.

Lens Choice and Evidence Admissibility

An experienced trial attorney will always keep in mind the admissibility of any accident evidence he gathers. Remember, you may have a great witness statement, or video, or photograph, but it is meaningless if a court refuses to admit the evidence. Camera lens choice is important here. To admit a photograph, the accident lawyer should prepare to show the photograph is:

Accurate
Relevant
Probative, meaning it tends to prove or disprove an element of the case
Enables the judge or jury to better understand the facts
Corroborates Testimony
Fairly represents what it depicts

State v. Jaco, 156 S.W.3d 775, 778 (Mo. banc 2005)

Lens use can distort images. If the lens distortion creates a photograph that is inaccurate, the court may and perhaps should exclude it from the evidence. Courts have found that photographs what are confusing or misleading should be rejected. Jordan v. Abernathy, 845 S.W.2d 86, 88 (Mo.App. Page 779 1993); Bellistri v. City of St. Louis, 671 S.W.2d 405, 407 (Mo.App. 1984). Therefore, when choosing a lens, make sure your result accurately depicts what you wish to show.

Lens Choice on Credibility

Credibility is key to courtroom success. Your photographic evidence should bolster, not harm your credibility. Therefore, always be mindful that your lens choice does not create a photograph that can be challenged as distorted. What the video above for recommendations on what lenses to take, and choose for your particulra accident scene.

Harrisonville, MO Wrongful Death Attorney – Products Liability Case Analysis Letter

Posted on March 17, 2011March 30, 2018 by Matt Hamilton

January 30, 2011

Wrongful Death Attorney statement to a personal injury mediator in advance of mediation.

The following is a statement from a defective products liability attorney handling a Cass County at Harrisonville, Missouri wrongful death case after transfer from Cass County Circuit Court in Harrisonville, Missouri.

The names and some information has been changed to protect the identity of the wrongful death victim’s family. This will give the reader an example of the types of information considered by defective products liability attorneys in wrongful death lawsuits.

FAX: 776-3379

Mr. Bill Harrison

K.C. MEDIATION/ARBITRATION

430 Belleview, Suite 200

Harrisonville, Missouri 64701

Re: Case Style: Karen A. Stevens, et al. v. Cass County Paint Manufacturing, Inc.

Case No.: 98-7566-CV-W-BB in the USDC WDMo

Accident Date: August 11, 2011

Our File No.: 06427-2486

Dear Mr. Harrison:

This wrongful death products liability lawsuit is scheduled for mediation at our office on Thursday, February 1, 2011, beginning at 11:30 a.m. Pursuant to Ms. Johnnie Baker’s correspondence of January 10, 2011, here is our mediation statement. This case is pending in the United States District Court for the Western District of Missouri at Kansas City. This is after transfer from the Circuit Court of Cass County, Missouri at Harrisonville. It is presently set for trial on February 26, 2011, in front of Judge John Maughmer. The parties have agreed to participate in this mediation.

PARTIES

Karen Stevens and her children (Annette and Alex), represented by attorney Scott Mach, filed suit against Defendant Cass County Paint Manufacturing, Inc. (hereinafter “Cass County Paint”) for wrongful death based on defective product liability. Specifically, Plaintiffs contend that James Stevens died on August 11, 2007 while using Stain Paint Blocker 1000, a paint product manufactured by Cass County Paint. Mr. Stevens was married to Karen Stevens at the time and is the father of Annette and Alex. In their Harrisonville, Missouri wrongful death attorney’s first amended complaint, Plaintiffs assert the following claims against Cass County Paint: Strict Liability (Product Defect), Strict Liability (Failure to Warn), Product Liability (Negligently Supplying a Dangerous Instrumentality), and Negligence.

Cass County Paint is represented by Matt Hamilton, a Pleasant Hill wrongful death attorney. It is expected that Candice Hall, the adjustor handling the claim on behalf of Forge Insurance, will also be attending the mediation.

STATEMENT OF FACTS

At the time of his death, James Stevens was working for Harrisonville Painting, Inc., for whom he had worked for approximately eight (8) years. Mr. Stevens was Harrisonville Painting’s most experienced painter. Sometime between 3:00-3:30 p.m., Mr. Stevens went down into the basement of a residence in Lee’s Summit, Missouri to begin spraying Stain Paint Blocker 1000 on several doors and cabinets. At approximately 3:50 p.m., Matt Veisides, a co-worker, advised Mr. Stevens that he was leaving the house. While Mr. Veisides did not enter the basement, he could tell that Mr. Stevens was spraying and wearing a respirator due to the fact that Mr. Stevens’s voice was muffled when he acknowledged hearing Mr. Vleisides. At that point, Mr. Stevens was the only person at the Cass County, Missouri Harrisonville residence.

After Mr. Stevens did not come home that evening, his wife, Karen, and mother-in-law, Marcia Cass, went to the worksite at approximately 11:00 p.m. They found Mr. Stevens lying on the basement floor. They went to a nearby house to get help and to call the paramedics. Before the paramedics arrived, John Heisel, Jennifer Cunard and Mary Jones (who were at the neighboring house and who did not know the Steven’s) went down to the basement to check on Mr. Stevens’ condition and to perform CPR if needed. After partially removing Mr. Stevens’ respirator to attempt CPR, Mr. Heisel realized that Mr. Stevens had suffered a wrongful death.

Upon their arrival, Harrisonville, Missouri police and Cass County, Missouri fire department personnel confirmed that Mr. Stevens had been dead for some time. Due to there still being a strong odor of paint fumes, the fire department opened the windows and brought in a fan in order to ventilate the basement. There were two small windows in the basement, both of which were covered with plastic upon their arrival. Mr. Stevens was not using a fan when he was spraying.

The autopsy report indicated that the cause of death was hydrocarbon inhalation toxicity. A toxicology report acknowledged the presence of hydrocarbons in Mr. Stevens’ body similar to those contained in Stain Paint Blocker 1000. Karen Stevens told the investigating Harrisonville police officer that James Stevens “had told her the last time he used his respirator, it was not working properly.” A copy of the police report is attached hereto as Exhibit A. The autopsy report, a copy of which is attached hereto as Exhibit B, further indicated that the respirator straps were “less elastic than expected.”

Stain Paint Blocker 1000 is an undercoater paint product. It is white in color and is primarily used to paint over marks, spots, etc. The undercoater is applied and then paint can be applied over it. Prior to 1993, the product was referred to as “Wipe Out”. As indicated on its warning labels, Stain Paint Blocker 1000 is for professional use only. Furthermore, the back label on the container indicates, among other things, that users should use an appropriately fitted respirator and use only in well-ventilated areas to avoid breathing the product vapors. Copies of the front and back labels are attached hereto as Exhibit C. Finally, the material safety data sheet for Stain Paint Blocker 1000 indicates, among other things, that excessive/prolonged inhalation can cause brain and/or central nervous system damage and that intentional misuse through deliberate inhalation may be harmful or fatal. A copy of the product material safety data sheet is attached hereto as Exhibit D.

PROCEDURAL HISTORY

Plaintiffs originally filed their petition against Cass County Paint in October of 2008. In June of 2009, Plaintiffs joined 3-M and The Cass County Paint Company as co-defendants. 3-M allegedly manufactured the respirator that Mr. Stevens was wearing at the time of his wrongful death. Cass County Paint allegedly was the retailer from whom the respirator was purchased by Pro Painting. The court approved the wrongful death settlements between Plaintiffs and the co-defendants in September of 2010. 3-M settled the claims against it for $137,500.00 and Cass County Paint settled the claims against it for $115,000.00. Cass County Paint is entitled to a credit in the amount of those settlements ($42,500.00) against any verdict rendered against Cass County Paint.

In October of 2010, the wrongful death attorney for Cass County Paint filed a motion for summary judgment wherein it primarily argued that under Missouri law Cass County Paint had no duty to warn of open, obvious, and commonly known dangers and that Stain Paint Blocker 1000 is not unreasonably dangerous when put to its reasonably anticipated use. There is nothing to suggest that any additional warning would have altered Mr. Stevens’ behavior. It is apparent from the discovery conducted in the case that Mr. Stevens was well aware of the need to wear a respirator (he was wearing a respirator at the time of his death) and to spray Stain Paint Blocker 1000 with adequate ventilation (he had communicated the need for ventilation to others). Furthermore, Plaintiffs cannot establish that Mr. Stevens still would have died had he been spraying while wearing an appropriately fitted and properly working respirator and/or with adequate ventilation. Our contention is especially supported by the fact that Mr. Stevens had sprayed the product (while wearing a respirator) for more than seven (7) years without any prior problems. The court has not yet ruled on the motion.

Finally, in October of 2010, both parties filed Daubert challenges against each other’s expert. Plaintiffs have retained Dr. Patrick McIver to serve as their warnings expert while Cass County Paint has retained Dr. Dan Horst to serve as its human factors expert. Both parties contend that the opinions to be offered by both experts are not based on any relevant or reliable data, objective criteria, or authoritative publications. In particular, Dr. McIver could not cite to any authorities (other than Prosser on Torts) for his opinions and essentially acknowledged that whether the labels used the signal word “danger” instead of “warning” likely would not have affected James Stevens’ behavior. The court has not yet ruled on these motions.

PLAINTIFFS’ ALLEGED DAMAGES

The Harrisonville wrongful death attorneys for Plaintiffs have produced bills related to Mr. Stevens’ funeral expenses in the amount of approximately $7,000.00 which are not in dispute. Furthermore, Plaintiffs’ economist, Dr. John Ward, hired by the Lee’s Summit wrongful death lawyers opines that Mr. Stevens’ lost future income and lost future services to his spouse (who has since remarried) and children is $1,020,818.00. As with any economist, the adjustments given by Dr. Ward for inflation, wage growth, etc. and the values given by Dr. Ward for loss of services for household work, child supervision, and guidance and counsel are subject to attack. Nevertheless, Mr. Stevens, who was 30 years old when he died, presumably would have been able to keep working for another 30-35 years and would have provided benefit to his family if not for his wrongful death.

DEFENDANT’S PRODUCTS LIABILITY WRONGFUL DEATH DEFENSES

The Harrisonville personal injury attorneys for Plaintiffs are solely alleging that Stain Paint Blocker 1000 was unreasonably dangerous due to its inadequate warnings; they are not alleging that Stain Paint Blocker 1000 was unreasonably dangerous due to its chemical composition. Plaintiffs are primarily arguing that the product labeling and material safety data sheets do not warn a user that excessive inhalation can cause death. Furthermore, they contend that Cass County Paint did not follow the industry labeling guidelines since the product label has the signal word “warning” rather than “danger.” Cass County Paint concedes that the product label should contain the signal word “danger.” However, that concession should be irrelevant, and thus inadmissible, because Plaintiffs’ own warnings expert, Dr. McIver, acknowledges that research indicates that there is no significant difference in user behavior between the two signal words (e.g., the word “danger” rather than “warning” does not significantly alter user behavior). Based on their own expert’s testimony, even if the label contained the signal word “danger”, there is nothing to suggest that it would have in any way altered James Stevens’ behavior. Cass County Paint will file an appropriate motion in limine in this regard.

Even if Cass County Paint’s motion for summary judgment filed by the Cass County products liability attorneys is denied, the Harrisonville wrongful death attorneys for Plaintiffs will have a difficult time making a submissible case against Cass County Paint based on inadequate warnings. The Stain Paint Blocker 1000 warnings were adequate in that the most important thing they could communicate is for the user to wear a properly fitting and properly working respirator. Plaintiffs have no expert who will say that if James Stevens had a non-defective, properly functioning respirator on while he was spraying on August 11, 2007, then vapors from Stain Paint Blocker 1000 would have killed him. Mr. Stevens had used Stain Paint Blocker 1000/Wipe Out for seven (7) or more years without his wrongful death as long as he wore a respirator that fit and worked properly. If his respirator had been fit and worked properly on August 11, 2007, then he would not have died. The fact that his respirator did not firmly fit is supported by the following: (1) the respirator strap was less elastic than expected; (2) Mr. Stevens had complained of problems with his respirator the last time he used it before his death; and (3) Mr. Stevens had facial hair on the day he died even though the respirator warnings (copies of which are attached hereto as Exhibit E) advised against facial hair in order to ensure that the respirator fit properly. If it fit properly, then it necessarily follows that the respirator did not function properly since every other time Mr. Stevens sprayed Stain Paint Blocker 1000 while wearing a properly fitting and functioning respirator he did not die. Under both scenarios, James Stevens’ wrongful death was not caused by the Stain Paint Blocker 1000 warnings.

Furthermore, Cass County Paint is confident that even if the court submits this case to the jury, it will be exonerated. The evidence demonstrates that James Stevens and/or 3-M is liable for the majority, if not all, of the fault. As mentioned above, the evidence demonstrates that Mr. Stevens failed to ensure that his respirator was fitting and/or working properly on August 11, 2007. If it fit properly, then it necessarily follows that the respirator was defective, for which 3-M is responsible. Furthermore, Mr. Stevens failed to open all windows or use a fan in the basement where he was spraying, despite the fact that he was well aware of the need for adequate ventilation when spraying. Both of the windows in the basement were covered with plastic, thereby preventing ventilation. These facts can only demonstrate that Mr. Stevens’ death was attributable to his own negligence and/or a defect with the respirator rather than inadequate warnings on the Stain Paint Blocker 1000.

PRIOR SETTLEMENT DISCUSSIONS

The Lee’s Summit products liability lawyers for Plaintiffs initially demanded $1,000,000.00 and Cass County Paint responded by offering $50,000.00. Plaintiffs thereafter reduced their demand to $950,000.00. Cass County Paint has made no response to such demand. Plaintiffs’ Harrisonville personal injury attorney has acknowledged posturing the case for settlement in the neighborhood of $750,000.00. All of these settlement discussions took place before the filing of Cass County Paint’s motion for summary judgment and the Daubert challenges.

CONCLUSION

Plaintiffs should have difficulty in (1) avoiding summary judgment; (2) making a submissible case on the warnings issue; and (3) convincing a federal court jury that Stain Paint Blocker 1000 is an unreasonably dangerous product due to its inadequate warnings. There is a good chance that Dr. McIver, should he be allowed to testify at all, will not be allowed to testify regarding the improper use of the signal word “warning” rather than “danger”. Frankly, Plaintiffs have nothing which demonstrates that the warnings were inadequate, thus causing the wrongful death. Mr. Stevens was wearing a respirator, which he knew should fit and work properly, and knew to ventilate the area when spraying (yet did not do so on August 11, 2007) – what additional warnings could Cass County Paint have given? The simple fact is that everyone knows that breathing paint fumes, either intentionally or unintentionally, can be dangerous and that certain precautions need to be taken when utilizing such products. Mr. Stevens’ wrongful death in Harrisonville, though tragic, was not the fault of Cass County Paint.

I hope that the information set forth herein and in the attached exhibits will help clarify the issues we will be discussing on Thursday. I look forward to seeing you.

Very truly yours,

Matt Hamilton

matthamilton@law-kc.com

personal injury wrongful death attorney

Category: Wrongful Death

Calling Them Evil Will Cost you Money: Invalidating the Insurance Policy by Pleading Intentional Conduct

Our Example – A Motor Vehicle Accident

Our Example – The Arrest

Our Example – Criminal Court

Our Example – The Injury

Our Example – Medical Treatment

Our Example – Chronic Pain

In Comes the Accident Lawyer

Why the Insurance Company Denied Her Claim

The Law on Criminal Act Insurance Policy Exclusions

The Law Does Not Allow People to Insure for their Intentional Crimes

No Insurance Duty to Defend or Pay for Crime

What To Do: Avoid the Policy Exclusion For Intentional Conduct

Your In-Court Pleadings Should Allege Negligence and Not Intentional Crime

Walking to the Precipice with Punitive Damages

The Test to Prove Punitive Damages

An Example – Suing O.J. Simpson for Murder

What to do?

Why it is Less Expensive for a Doctor to Kill than Injure by Malpractice

Patient #1 – Stephens Johnson Syndrome

Patient #2 – Catheter Extravasation

Cheaper Dead than Alive.

The Test For Personal Injury Malpractice

Legislative Limits On Malpractice Compensation

The Unconstitutional Cap on Personal Injury Drug Error Cases

There Remains a Cap Limit on Death Cases

Why Wrongful Cases Can Have Money Limits

A Victim’s Constitutional Rights Don’t Matter.

When Constitutional Rights “Stick”

What to Do

How Can a Business be Sued for Criminal Acts by a Non-Employee?

Pedestrian Hit by a Car in a Parking Lot

The General Rule; the Owner Cannot be Sued.

The “special facts and circumstances” exception that creates business liability.

Foreseeability is the Key

Do We Actually Need To Know About The Threat?

Does The Danger Always Have To Be To The Actual Victim?

Conclusion

EXPLAINED: LITIGATION COSTS IN ACCIDENT INJURY CASES

WHAT ARE INCLUDED IN LITIGATION COSTS?

LITIGATION COSTS ARE ON THE RISE

WHAT ARE COMMON LITIGATION COST AMOUNTS?

Medication Replacement

Electrolyte Imbalance

Steroid Use

Secondary Infection

A Holistic Approach

How Lawyers Deal with Government Sovereign Immunity for Wrongful Death and Personal Injury

Example: An IV catheter mistake leads to wrongful death

Can her survivors recover for their loss?

The History of Governmental Immunity from Wrongful Death and Injury lawsuits

Governments Have Immunity from Wrongful Death Claims In Most Circumstances

Two Exceptions to Sovereign Immunity

Municipal City Governments Only Get Partial Immunity

What Is a “Governmental” vs. “Proprietary” Function?

When Is It a “Governmental Function?”

What is a “Proprietary” Function?

Lawyers: Do Not Forget This!

Conclusion

Matt Hamilton of Hamilton & Associates, Lawyers

How to Unlock & Find Hidden Electronic Computer Files

for Drug Error & Defective Product Claims

Types of Electronic Records Containing Drug Error Evidence

How Electronic Files Are Stored

What Happens When You Press Delete?

The Critical Importance of Emails To Drug Error Cases

People are More Candid When E-Mailing

People With Fewer Filters Use E-mail

E-Mails Have a Smaller Radar Signature

Why Are Emails So Difficult To Delete?

Multiple E-Mail Copies

E-Mails are Backed-Up

Many People are Copied on E-Mails

People Overlook E-Mail Permanence

How Do Drug Error Law Firms Find Hidden Electronic Information?

What Metadata Reveals

How Bad Guys Hide Electronic Information And How To Find It.

Print And Forget

The Changing File Types Shell Game