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Accident Compensation for Reduced Ability to Become Pregnant [Lawyer Tutorial]

Posted on by Matt Hamilton

HOW TO WIN COMPENSATION WHEN AN ACCIDENT REDUCES YOUR ABILITY TO GET PREGNANT

The least visible injuries too often cause the greatest harm.  This is an unfortunate fact.  For example, an accident reducing the happy prospect of a future child is worse than a broken arm, or a cut leg.  Unfortunately, our legal and medical systems do a poor job of dealing with these serious injuries; injuries that reduce fertility.  This article teaches a manner of overcoming and winning compensation for the diminished ability to get pregnant.

Injury accidents cause severe changes in lifestyle and physical ability.

  • Accident injuries can cause a lengthy time period where the body undergoes great stress.
  • Disability reduces the ability to exercise.
  • Treatment can alter diet.
  • Medications alter your physiological condition.

Injury can Harm Fertility:  Any number of these factors can reduce the ability of a female victim to become pregnant.  Weight gain can alter menstrual cycles. Pharmaceutical drugs can negatively affect fertility.  Many injuries have the side effect of diminishing ovulation and other reproductive cycles.  Doctors, lawyers, and insurance adjusters often don’t think of this harm.  However, for a family, planning a child, this can be the single most important aspect going on in their lives.

No one would want to take a child away from someone and replace it with disability, pain, and medical treatment.  Unfortunately, this is too often the case.  To make matters worse, compensation is difficult to win through lawsuits if the courts do not allow physician testimony of the reduced ability to become pregnant.

There is a way to overcome the legal barriers.

First, a great accident lawyer will educate the court that the reduced ability to become pregnant is present in the “pleadings.”  This means that in his original petition for damages or complaint, the injury accident lawyer actually writes as an item of damages the reduced pregnancy disability.  This will allow an initial relevance finding by the court.

For example, the following courts have made similar rulings.

There are many Continuing Legal Education programs that teach how to create continuity of your pleadings from the beginning of the case until trial.  It is easy for the accident injury lawyer to get lulled into complacency and fail to do this.  True, each case is unique and has novel evidence.  However, most cases overlap with their concepts of fault, injury, and evidentiary concerns.  Most cases do not require lawyers to build the habit of a consistent case theme.  However, this should ALWAYS be on the list of things to do.

Remaining consistent in pleadings is especially important when the accident lawyer anticipates bringing an unusual claim, like fertility loss (reduced chance of pregnancy) as an item of damages.  This should be an ongoing theme among the pleadings, so your judge may more easily remember the case and be motivated to learn its merits.  A Trial Brief is not enough.  Start with your Petition for Damages, then include the concepts in injury interrogatories, requests for the production of documents, requests for admissions, motions in limine, and so on.  Ask questions about the fertility-loss theme in depositions, even when the witness does not directly have information on fertility-loss.  Remember, your case is about what your case spends time being about!

Second, the lawyer needs to gain an expert opinion from a treating physician (or recognized medical expert) as to the reduction of pregnancy possibility.  The relatively unknown, but instructive case of McKersie v. Barnes Hospital, 912 S.W. 2d 562 (Mo. App. 1995) is educational on this topic.  In McKersie, the Missouri Court of Appeals considered a victim who had an accident.  The accident reduced the victim’s ability to get pregnant.  Ms. McKersie was treated in an emergency room by an intern.  That intern was negligent and failed to diagnosis her appendicitis.  As a result, Ms. McKersie’s appendix ruptured.  This required her right ovary and her Fallopian tube to be removed.  Her appendix was also removed.

Her treating physician gave testimony that her lack of a right ovary and Fallopian tube reduced her statistical chance of reproducing and having a child.  The problem was that Ms. McKersie was still capable of having a child.  Indeed, her physician indicated that it was still “more likely than not” that she was capable of conceiving, in spite of her accident disability.  Nothing indicated an “extra problem” as to conceiving a child.

Still, Ms. McKersie sought money for compensation for the damage of reducing her ability to conceive.  The court agreed.  Her treating physician’s opinion was sufficient to support an item of future damages to Ms. McKersie.  Even though she was still more likely than not capable of having more children, Dr. Swartz’s testimony that her ability was diminished due to the loss of her ovary and Fallopian tube could be presented to the jury as an item of damages she suffered from this accident malpractice.

What You Should Do:  So too, in your case, the reduced statistical likelihood of conceiving can and should be an item of damages you claim.  It is harm you have suffered.  The mental stress will be certain; irrespective of whether you become pregnant.  The life stress will be certain; irrespective of whether you become pregnant.  So too, your reduced chance of pregnancy should be compensated.

reading law bookAuthor:  Matt Hamilton

of Hamilton & Associates, Lawyers

  • Juris Doctor
  • Trial Attorney

 

 

What are Litigation Costs for Accident Injury Cases [Explained]

Posted on 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:

  1. What litigation costs are,
  2. Why litigation costs are required,
  3. What common costs amount to, and
  4. 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:

  1. Expert Fees
  2. Deposition and Court Reporter Costs
  3. Filing fees from the Court
  4. Witness fees (requiring witnesses to show)
  5. Copying Costs (making duplicate documents)
  6. Exhibits
  7. 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

How a Claim of Ignorance can Kill a Defective Product Injury Lawsuit

Posted on by Matt Hamilton

HOW A RETAILER CAN KILL YOUR DEFECTIVE PRODUCT PERSONAL INJURY LAWSUIT BY CLAIMING IGNORANCE

Dangerous products commonly injure or kill innocent victims.  Our laws have set up many types of lawsuits which can compensate victims for unreasonably dangerous products.  In response, corporations, manufacturers, and their distribution chain advocate legal defenses to escape responsibility for the injuries and deaths their products cause.

Why Sue the Seller and Not the Maker?

It is often necessary to file a lawsuit against the retailer (the place where the product was purchased) rather than the manufacturer itself.  Sometimes, the manufacturer cannot be identified.  Other times, the manufacturer is located in a foreign country and cannot be legally held responsible.  Still other times, the manufacturer no longer exists.

Our laws allow for the retailer that sold the product to be sued directly in certain circumstances.  These circumstances include strict product liability, where the product is unreasonably dangerous when put to reasonably anticipated use.  Another lawsuit is for strict liability for the failure to warn.  A third type of lawsuit against a retailer would be for express or implied warranties and negligently supplying a dangerous instrumentality.

The Test for Suing the Seller for Strict Liability for a Dangerous Product

Strict liability for a product defect can be won when the evidence proves:

  1. That the retailer sold the product in the course of its business, and
  2. The product was in a defective condition unreasonably dangerous when put to a reasonably anticipated use, and
  3. The product was used by the customer in a manner reasonably anticipated, and
  4. The victim was damaged as a direct result of the defective nature of the product as it existed when it was sold.

Paraphrase of M.A.I. 25.04 (1978 Revised); Keener v. Dayton Electric Manuf. Co., 445 S.W.2d 362 (7) (Mo. 1969).

What Does “Unreasonably Dangerous” Mean?

There is no need to define the term “unreasonably dangerous” in dangerous product cases.  Unreasonably dangerous is determined by the jury.  If they think it is unreasonable; it is unreasonable.  If the jury believes it is dangerous; it is dangerous.  Speck v. Abell-Howe Co., 839 S.W.2d 623 (Mo. App. 1992).  The challenge then goes to your evidence and your lawyer’s persuasive abilities.

Failing to Warn the Victim

Retailers can also be found responsible for a personal injury from a dangerous product when the retailer fails to warn its own customers.  Remember, the retailer did not manufacture this product.  It may lack the ability to change it.  It may have only known or should have known of the dangerous nature of what it was selling and didn’t tell the victim.

The Failure to Warn Test

The Supreme Court has set out the failure to warn test for defective products.  To sue a retailer for failing to warn, you must prove the following:

  1. That the retailer sold the product in the course of its business, and
  2. The product was unreasonably dangerous when put to a reasonably anticipated use without the person using the product having knowledge of its characteristics, and
  3. That the retailer did not give an adequate warning of the danger, and
  4. The product was used in a manner reasonably anticipated, and
  5. That the victim was damaged as a direct result of the product being sold without an adequate warning.

Paraphrase of M.A.I. 25.05 (1978); Arnold v. Ingersoll-Rand Corp., 834 S.W.2d 192 (Mo. 1992).

What Is An “Adequate Warning?”

This is a matter for the jury to decide.  If the twelve people on the jury believe the warning was adequate, there is no failure to warn.  If the jury believes the warning, if any, was inadequate, you may win your case.  See Lay v. P & G Healthcare Inc., 37 S.W.3d 310 (Mo. App. 2000); Louis v. Envirotech Corp., 674 S.W.2d 105 (Mo. App. 1984).

Ignorance As A Defense

There is a general treatise on how lawsuits can be made.  It is known as the Restatement (Second) of Torts.  Section 388 of the Restatement of Torts covers how many state laws spell out their requirements for sellers to warn about strict liability defective products.  See W. Dudley McCarter, Seller of Product Not Liable Unless Reason to Know Product Dangerous, 71 J. Mo. Bar 76 (2015)(excellent discussion of this topic).  This part of the Restatement was adapted by our Supreme Court in the case of Morris v. Shell Oil Co., 647 S.W.2d 39, 42 (Mo. 1971).

In the Morris case, the Missouri Supreme Court ordered that the seller of the defective product is not liable for a resulting injury or death unless the retailer actually knew of the dangerous product or had reason to know.  See also Malone v. Schapun, Inc., 965 S.W.2d 177, 184 (Mo. App. 1997).

Deny. Deny? Deny!

A seller of a dangerous product can deny that it had any knowledge that the product was dangerous.  It may further deny that it had any reason to know of the dangerous nature of the product. It then falls upon the victim to show compelling evidence that the seller should have known.  Remember, the retailer likely did not have a duty to inspect or test the product it sold.

What Did the Seller Know?  When Did the Seller Learn?

It is not enough to show that a retailer sold a defective dangerous product.  That retailer must be shown to have information from which a person of reasonable intelligence or because of the superior intelligence of the retailer, should infer that the product was unreasonably dangerous.

As a practical matter, the lawyers and the representatives of the retailer that sold the dangerous product will prepare and sign an affidavit swearing they did not know of the dangerous product and had received no information that would allow them to conclude it was dangerous.  The manufacturer and retailer lawyers will then make what is called a “summary judgment motion” under Rule 74.04 of the Rules of Civil Procedure.  It will then be the responsibility of the victim to come forward with evidence showing that that retailer should have known of the dangerous nature of the product.  In other words, ignorance is a defense.

Mandatory Preparation

As one can see, it is necessary to prepare in advance and do a detailed investigation when bringing a defective product case against the retailer itself.  Witnesses need to be interviewed.  Documents needed to be researched and read.  Experts need to be hired and fully briefed.

This is the manner in which you can benefit society by holding the corporations and other entities that harm the public accountable for the damage they cause.  Inadequate preparation and evidence is merely a waste of time, money, and effort.  Remember, ignorance may be a defense; but don’t let merely the appearance of ignorance rob you of the justice you deserve.

Further information for Defective product lawyers and victims at the link in this sentence.

Matt in front of booksAuthor:

Matt Hamilton

  • Juris Doctor
  • Trial Attorney

 

 

 

 

 

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

Posted on 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