Articles Posted in Damages – Personal Injury

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.

A Virginia trial judge refused to allow a podiatrist to give causation testimony in a FELA case where a railroad worker alleged his foot problems were caused by conditions in the workplace.  The Virginia Supreme Court has agreed to hear the case.

Here is the wording of the assignment of error that  the court has agreed to review:

The trial court erred in granting Norfolk’s motions in limine to exclude the testimony of Drs. Zelen and Steffan based upon its finding that they were not qualified, as podiatrists or otherwise, to render expert opinions as to the causation of plaintiff’s physical injuries, and in subsequently granting Norfolk’s summary judgment motion based upon plaintiff’s lack of causation testimony.

Here is a fascinating article from the New York Law Journal about an opinion by Judge Jack B. Weinstein objecting to a defendant’s use of race-based statistics on life expectancy to reduce a damage award in a quadriplegia case.

I am Columbus, OH today speaking an Ohio Association for Justice seminar program.  The hotel where I am staying is right down the street from the Ohio Supreme Court building.  It is appropriate, then, that I write about a new opinion handed down by that court on the issue of damages that may be recovered by a spouse who took off time from work to care for a spouse injured by the negligence of another.

The plaintiff was a financial planner who took off work to care for his injured wife.  He sought over $1,000,000 in loss of income.   A 5-2 majority of the court rejected his claim for this element of loss, holding instead that he could only recover the economic value of the care as if it had been provided by a non-family member.

To be more precise:  "part of the injured spouse’s damages against a defendant can include the fair market value of the home health care provided by the uninjured spouse. Damages are measured not by the lost income of the supporting spouse but by the market value of the services he or she renders."

Smart defense lawyers know that sometimes the best defense is to admit liabilitiy and talk about damages.  This article  – "Defending the Damages Only Case" – is written by Mercer Clark of Miami.  It appeared in the Winter 2008 edition of the Federation of Defense & Corporate Counsel Quarterly.

Defense lawyers:  read it and learn.  Plaintiff’s lawyers: read it and learn even more.

Note:  this is post number 1250 in the 43 month life of this blog.