Articles Posted in Damages – Personal Injury

Eric Turkewitz, a plaintiff’s personal injury lawyer in New York,  wrote about it first.  He told us about a plaintiff’s lawyer in New York who sought $30,000,000 for damages to a child who lost part of his ear lobe after a dog bite.

Eric was upset because this "courtroom bulldog who won’t be leashed" (according to her website) either didn’t know or didn’t care about a 9-year old law that prohibits mentioning the amount sought when filing a lawsuit.  These actions, in Eric’s view, make the job of plaintiff’s lawyers who choose to follow the law more difficult.  He is right.

Then, Max Kennerly, a plaintiff’s personal injury lawyer in Philadelphia, weighed in.  He agreed with Eric, but went on to explain that the $30,000,000 request bore absolutely no relationship to amount of the damages in the case.  Once again, I agree.

Tennesse law limits damages that may be recovered in personal injury and wrongful death cases.  The limits apply only to cases that arise from events that occur on or after October 1, 2011.

Medical expense and lost wages claims are not limited.  However, damages for pain, suffering, disfigurement, disability, loss of enjoyment of life and loss of consortium are limited to $750,000 unless one of the following apply to the case:

• there injured person was rendered paraplegic or quadraplegic because of a spinal cord injury in the wreck;
• the injured person had extensive three degree burns; 
• the injured person had two hands, two feet or one of each amputed in the wreck; or
• in wrongful death cases, the decedent is survived by a minor child and had custody of or visitation rights with the child.

If one of the exceptions apply, the damage limit is increased to $1,000,000.

You cannot try to murder your ex-wife and then avoid a judgment against you for compensatory or punitive damages by filing bankruptcy.

The Court of Appeals for the Seventh Circuit rejected the effort of David Larsen to use the bankruptcy system to avoid his financial obligation to his former wife.  Larsen tried to kill Teri Jendusa-Nicolai and, although his effort was unsuccessful, she suffered a miscarriage and the amputation of all of her toes.  The toes were amputated secondary to frostbite – the jerk beat her with a baseball bat and left her in a garbage can filed with snow, secreting the can in an unheated storage facility.

A civil suit was filed, resulting in a judgment of $3.4 million for her and $300,000 for her (then) husband and daughters for loss of consortium.  Larsen then filed a Chapter 7 proceeding seeking to discharge the judgment debts.

"Lost earning capacity is not a difficult concept to understand, but our friends in the defense bar sometimes are able to confuse judges and juries about what it means.  The United States Court of Appeals for the Sixth Circuit confronted in issue recently in a case involving Ohio tort law, and got it right.

Andler received broken bones in her feet at an event in 2004 and brought a premises liability claim. Prior to her injury, Andler worked part-time at a childcare center and earned between $9,000 and $10,000 a year.  According to Andler, her injuries forced her to switch jobs and, in the years following the injury, she worked full-time as a manicurist and pedicurist; she earned approximately $10,000 in 2006 and $25,000 in 2008.

At the first trial, Andler offered expert testimony of accountant Daniel Selby, who testified, using Bureau of Labor Statistics (“BLS”) figures, as to Andler’s lost earning capacity due to the injury. Selby testified that, but for her injury, Andler could have earned approximately $17,600 a year as a full-time childcare worker; post-injury, her annual earning capacity as a full-time manicurist and pedicurist was approximately the same.  When factoring in the effects  of her work disability, such as increased likelihood of missed work or longer-term exit from the workforce, Selby concluded that Andler’s damages for lost earning capacity totaled $232,346. 

The Tennessee Court of Appeals has ruled that if it is undisputed that the defendant caused circumstances requiring diagnostic tests to rule out injuries, and the undisputed evidence shows that those tests were reasonable and necessary, a trial court cannot affirm a jury verdict of $0 damages.  The trial court either must order a new trial or an additur.

Plaintiff was receiving treatment for chronic lower back pain before the accident.  The physician who treated her before and after the accident testified that he “believed” Plaintiff suffered a back strain or whiplash that caused chronic headaches and aggravated her existing lower back condition.  In addition, the physician testified that medical tests, including MRI and CT scans, were necessary to rule out hemorrhaging or fractures.  Defendant’s medical expert testified that the medical tests were reasonable and necessary, but that Plaintiff’s pain was ultimately due to her preexisting condition.

The Court of Appeals agreed with Plaintiff that there was no material evidence to support the jury’s finding of $0 in damages, as the undisputed evidence established that Plaintiff was at least entitled to the costs of the diagnostic tests.  The Court of Appeals noted that appellate courts lack the authority to award an additur, and therefore remanded for the trial court to order either a new trial or an additur.

Ronald Miller has a fascinating post on his The Maryland Injury Lawyer Blog about the value of knee injury cases  

Here is an excerpt:

According to a recent Jury Verdict Research study over the last ten years, the average verdict in a serious knee injury case is 359,149. The median knee injury verdict is $114,299. Eight percent of verdicts were over $1,000,000.

The Arizona Supreme Court has reversed prior law and held  that a claim for medical expenses arising out of a personal injury to a child may be asserted by the child or the parents, but not both.

The case is Estate of Madison Alexis Desela v. Prescott Unified School District,  No. CV-10-0172-PR  (AZ  1/18/11).

Historically, Arizona law provided that the medical expense claim belonged to the injured child’s parents, who had the obligation to assert that claim within the statute of limitations applicable to adults.