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The Value of Experts in Personal Injury Litigation

The Value of Experts in Personal Injury Litigation by Ozmon Law

Litigation is expensive. Speaking from the plaintiff’s perspective, costs related to a personal injury claim are steep. Plaintiff’s attorneys do not relish spending money; but the fact of the matter is that in order to prove (or disprove) a case, the parties must hire expert witnesses. Expert witnesses command fees in the thousands of dollars. Costs are driven by simple supply and demand.

Experts are pivotal in proving cases alleging medical malpractice, products liability, slip and fall, or negligent operation of a vehicle including cars, trucks, trains, motorcycles or airplanes. When an issue involves any matter outside of the ken of the average juror, like, stopping distances, the standard of care of a health care provider, or the defective nature of a product like a medical device or piece of machinery, a plaintiff is required to provide expert testimony supporting the cause of action. In the absence of such testimony the case will likely be dismissed well before trial and the plaintiff will get nothing.

Any personal injury case demands medical experts, from treating physicians to retained experts, who provide the testimony necessary to support the plaintiff’s claims for damages. A doctor who treated the plaintiff may testify to the nature of her injuries, but she may need to hire an expert to render an opinion on the likelihood of long term limitations, reduced life expectancy or future medical intervention necessary. Without such expert testimony the plaintiff may not even be allowed to ask the jury for an award of money damages to compensate him for the full extent of his injuries.

There is a direct correlation between compelling expert testimony from a qualified, convincing expert in the field and a jury verdict awarding full and fair compensation to the plaintiff. While the price tag is high, it is money well spent, and the plaintiff does not have to pay unless we win. Plaintiff’s attorneys willingly accept the risk as demonstrable evidence of their commitment to their client’s case.

 

Attorney Laird M. Ozmon

Who Wins When Punitive Damages Are Awarded?

Who Wins When Punitive Damages Are Awarded?

Recently a huge punitive damage award made the news. A groundskeeper sued Monsanto alleging its well-known weed killer Roundup caused his terminal cancer. The jury attributed $250 million of its $289 million award for the plaintiff to punitive damages based on the company’s conduct when it received reports about the adverse health effects of its product that remains in the marketplace today.

In October a California trial judge reduced the punitive damage award to match the award for compensatory damages (i.e. medical expenses, pain and suffering, lost wages, disability) of $39.25 million. The court ruled the ratio of punitive to compensatory damages should be 1:1.

To understand this result and its effects we must define punitive damages. Punitive, a.k.a. exemplary, damages are money damages above and beyond monies dedicated to reimbursing the plaintiff for what he or she lost or suffered. They are intended to punish and deter wrongdoers from repeating their conduct. Such damages are not often awarded, that’s why they are newsworthy.

Punitive damages may be a function of the net worth of a defendant. The size of the award may also correlate to the gravity of the wrongful conduct. Consequently juries may award punitive damages based on emotion rather than a logical equation. With these factors at play, trial judges have the power to reduce punitive damage awards to bring them in line with reason rather than passion. However, what the judge did in the Monsanto case is illogical and contrary to the intent of legal doctrine. Adoption of a 1:1 ratio would most often result in a punitive award insufficient to achieve its goal of deterrence. Maybe a ratio can be just, but 1:1 is a random choice that ignores underlying jurisprudence.

Whatever you think about the size of this award, or the judge’s decision reducing it, verdicts like this reverberate in corporate boardrooms, law firms, the offices of insurance companies and claims administrators, and anyone who serves their interests. So when corporate decision makers read a report potentially linking their product to health risks, or disclosing a defect that could cause injury, their cost-benefit analysis has been materially changed—in favor of the consumer. Regardless of whether you think the cost of any particular award trickles down to the consumer, there is a direct benefit from its impact on future corporate conduct. This is the U.S. tort system working to benefit the public, not the privileged few.

Attorney Laird M. Ozmon

STUDY GIVES SKEWED VIEW OF THE U.S. TORT SYSTEM

Beware of a recent study conducted by the biased U.S. Chamber Institute for Legal Reform claiming the costs and compensation paid for the U.S. tort system totaled $429 billion for 2016. In an effort to incite public outcry it implies it is scandalous that plaintiffs receive only 57 cents on every dollar paid in compensation.

In all of its hyperbole, the headlines ignore what the study does not reveal. First, let’s deal with the alleged amount of money that goes into plaintiffs’ pockets: 57%, leaving 43% for attorneys’ fees and litigation costs.

Plaintiff’s attorneys work on a contingency fee basis which ensures all citizens, not just the rich ones, have access to our justice system. The typical fee is 33% of the amount recovered plus costs of litigation. For complicated cases, the fee could be up to 40%. This means litigation costs, i.e. expert witness fees, transcripts, record production costs, account for the last 3-10% that did not go to plaintiffs. The figure appears to include insurance costs, which would include defense costs, including defendant’s attorney’s fees.

Remember, contingency fees provide that plaintiff’s attorneys get zero if the plaintiff does not recover any money, defense attorneys get paid by the hour, win or lose. In other words, the 57 cent figure, even if it is true, is deceptive.

Those who seek legal reform unfairly seek to marginalize plaintiff’s attorneys and ignore other significant facts. For instance, medical error is the third leading cause of the death in the U.S. The ability to sue health care providers who commit negligence has created a reasonable standard of care. While mistakes are not wholly unexpected, health care providers know the stakes are high in their profession. With life and limb on the line, if they make a mistake, that is what insurance is for (a $1.2 trillion industry according to 2017 statistics).

The public derives tremendous benefit from our current tort system that is rooted in our constitutional rights, including freedom of speech and unfettered access to a civil jury trial. Major corporations and health care providers wield tremendous power. They are for-profit entities concerned with the bottom line. Our tort system creates a necessary tension between serving the bottom line and serving the patient or consumer, while giving access to all, not just the rich and powerful.

Critics always ignore the successes, the demonstrable evidence the system works. For example, if it weren’t for our current system, companies would still be putting asbestos into buildings despite evidence that established they knew five decades ago it was detrimental to human health. It wasn’t until people suffering from a specific form of cancer started suing that the practices changed. There are countless incidents of litigation that resulted in positive change for the public.

Maybe legal reformers should be looking to the potential perpetrators, demanding proactivity, transparency, even apologies and swift action when they discover a defective product or professional negligence. Accountability is the key to lowering tort related costs. Through this lens, Plaintiff’s attorneys are the human equivalent of the body camera, exposing wrongs, and seeking justice for injured victims.

Attorney Laird M. Ozmon

MAKING OF A GOOD WITNESS

Ozmon Law - The making of a good witness

Recent news events have highlighted the importance of being a compelling witness on your own behalf. The quality of witness’s presentation both superficially and substantively directly impacts one’s ability to make a case. In the context of a personal injury claim, if the plaintiff’s case is populated by credible, quality witnesses, the likelihood of recovery and the value of the case increase substantially. In my experience, when a plaintiff makes an excellent presentation on deposition, I can expect an offer of settlement to come soon thereafter.

There is a lesson in how the witnesses have comported themselves at the Congressional hearings that have recently riveted the nation. Balancing thoughtful, thorough preparation with instilling the confidence in the witness to be authentically themselves takes the supreme skill and experience of a trial lawyer.

First, appearance matters. Well-groomed, appropriately dressed people exude confidence. Looking unkempt or wearing something extremely informal, or even too formal (picture an evening gown at a backyard BBQ) gives the appearance of being out of one’s element—the proverbial fish out of water.

Demeanor is key. Employ coping strategies tore main calm. It is key to tell your story clearly and concisely. Use tips to keep yourself from appearing too anxious, speaking quickly or without thinking, such as counting to three or taking deep breaths. If you find yourself so focused on the answer that you’ve stopped listening to the question, stop and reset, or ask for a break.

Confidence naturally flows from preparation. An excellent trial lawyer will patiently take a witness through the impending proceeding telling her what to expect, reviewing the facts, documents, proffering sample questions and practicing common scenarios, i.e. what to do when there is an objection, how not to guess.

Your attorney should discuss any potential weaknesses. You will strategize about how to respond truthfully while minimizing the shortcomings. A strategy common among defense attorneys is to trot out the complaint and go through each allegation with the plaintiff at a deposition. This is designed to undermine the credibility of claim if she is not prepared and/or hasn’t seen the document.

Being a good witness doesn’t come naturally topmost. This is a team effort, a plaintiff’s attorney cannot testify for his client, but he can give her the tools to be her most compelling advocate.

Attorney Laird M. Ozmon

 

Recent Changes to Illinois Tort Immunity and How it Affects You

Tort immunity is a concept created by lawmakers to balance the interests of a public entity funded by taxpayers against the interests of individual taxpayers in obtaining compensation for an injury caused by the wrongful conduct of a public entity or employee. It’s the classic tension between the common good and individual interest.

Breaking down the term, a “tort” is a wrong for which you may recover from a wrongdoer. “Immunity” is a legal shield from liability for that wrong.

The Illinois Local Governmental and Governmental Employees Tort Immunity Act (“the Act”) has a long, tortured history of interpretation by the courts. So when a plaintiff reports an injury caused by a condition of a roadway or sidewalk, or an incident involving a public official, plaintiff’s attorneys face an uphill battle.

Plaintiffs often base liability on the duty of a local public entity to maintain its property in a reasonably safe condition contained in the Act. Government defendants seek to undermine this duty by arguing discretionary immunity applies to the facts of the case. The Act provides immunity for an exercise of discretion (i.e. a decision not to repair a road based on expense) but provides no such protection for ministerial acts. “Ministerial acts” are performed in a prescribed manner, mandated by legal authority and without reference to the official’s discretion (i.e. failure to place road sign according to legal requirements).

Recently, the Illinois Supreme Court held in Monson v. City of Danville the City could not invoke discretionary immunity because it did not present any evidence documenting the decision not to make the repair at issue. This clarified the issue; even though a decision to repair would be discretionary, if the governmental entity did not consider the repairs it exercised no discretion, thus no immunity. Monson gives plaintiffs a new ray of hope for recovery against governmental entities.

If you think you were seriously injured and a governmental entity or employee was at fault, please call Laird M. Ozmon at 815.727.7700.

Attorney Laird M. Ozmon

The Survival Instinct is on Life Support, Let’s Come to Our Senses

gavel and stethescope on white background

My blogs this summer have touched on a recurring theme, how a plaintiff’s contributory negligence can diminish or defeat her case. As the best time of year to be in Chicago comes to a close, I have to bring this discussion full circle with one final observation I see in the great outdoors—the survival instinct is dying. And this evolutionary change will be judged in a courtroom.

You know what I’m talking about, it’s everywhere. Bikers wearing headphones, pedestrians looking at their phones oblivious to their surroundings, drivers texting, no one in the roadway using signals. I admit, I’m a student of the “old school” that taught engaging the human senses as a matter of life and death. “Stop. Look. Listen.” “Look both ways when you cross the street.” This is not just the stuff of Darwin, it’s what we learn in kindergarten. So why are people so willing to render themselves, deaf, dumb and blind and blithely entrust their well-being to the rest of the population?

While this cultural phenomenon did not start with the Smartphone (remember the Walkman?), it has proliferated in that tiny, powerful technological device. Studies have shown accidents due to distraction are on the rise: https://www.usatoday.com/story/money/cars/2018/02/28/pedestrian-fatalities/376802002/. Those who are so dependent on it, so addicted to it or the magnitude of distraction it provides, that they cannot tear themselves away need to . . . “step away from the phone.”

Illinois law does not allow you to relinquish responsibility for yourself and your own safety; thus the contributory negligence defense. For instance, if you are so busy looking at or talking on your phone that you enter an intersection without looking both ways or obeying a traffic control device, you will likely be found more negligent than the driver who hit you. Your mobile phone is no longer your closest confidante, it is a storage device for potential evidence against you, i.e. the time you sent or read a text, when you were on a call, etc. After being struck on your bicycle in the middle of the street, if you are found wearing earbuds or headphones (the noise-cancelling ones are really just insane), the driver who honked his horn as he was properly approaching when you made a sudden lane change may not be held responsible. All of this means you may not recover for your injuries because you were contributorily negligent.

So here’s my pitch, as a father, not a plaintiff’s attorney: reengage your senses.

STOP! Take in the world around you. LOOK! Use your eyes, not only to protect you from imminent danger, but to see that smiling stranger, carefree dog, or sunset. LISTEN! Use your ears, to hear warning signs or vehicles approaching, and the talented street musician, or old friend calling from across the street or train platform. I would be happy knowing you took this advice so you never needed my legal advice.

 

Attorney Laird M. Ozmon

3 Things To Do If You’re the Victim of a Construction Accident

3 things to do if you are injured on a construction job

Construction accidents typically occur due to someone’s negligent actions.  Negligence occurs when something is done that a reasonably careful person wouldn’t do, or when something isn’t done that should have been.  Damages to the person affected may include pain, suffering, disability, disfigurement, medical expenses, and loss of income.  If you’re the victim of a construction accident, here are 3 things you should do.

  1. Seek medical attention immediately.  This will document any injuries so that the evidence may be used at a later date. Don’t ignore medical treatments or doctor visits, and follow the prescribed treatment and medication plans.  Failure to do this can have a negative impact on any potential financial compensation.  Delaying medical treatment can have a similar negative impact, as the seriousness of the injuries will be in question.
  2. Preserve any evidence, and gather all relevant facts and documentation.  Take photographs of any serious injury or damage caused by a construction accident.  Create a written summary of the facts of the accident, including how and when it occurred, the type of injury, expenses lost, and any related insurance and medical information.  Document any witnesses to the accident, and request a copy of police reports and any incidence reports.
  3. The most important thing you can do if you’re the victim of a construction accident is to contact a personal injury lawyer to help build your negligence case.  Laird Ozmon, a personal injury attorney based in Joliet, has dedicated his practice solely to the representation of seriously injured victims and their families for over 30 years, and handles cases locally, regionally, and nationally as a top trial lawyer.  After seeking medical attention, contact Ozmon Law before speaking with or providing any recorded or written statements to insurance companies or anyone related to the construction company.  Don’t ever sign any legal or medical documents prepared by an insurance company, the construction company, or their lawyers without the presence or consent of your own personal injury lawyer.

Attorney Laird M. Ozmon

Contributory Negligence: Winning the Blame Game on Behalf of Plaintiff’s

Keeping Unsubstantiated Contributory Negligence out of the courtroom

In my last blog I touched on the concept of a plaintiff’s negligent conduct that can often derail his case and deflate expectations of a recovery. This is called contributory or comparative negligence, and, in the worse case scenario, it can be fatal to a plaintiff’s case.

Illinois is a modified comparative fault state. This means if an injured victim is determined to have been negligent and that negligence contributed, along with the defendant’s negligence, to cause the injury, the plaintiff’s recovery will be reduced. The jury must determine the percentage of negligence attributable to the plaintiff. Any recovery awarded to the plaintiff will be reduced by this percentage. BUT, and this is a big one, if the plaintiff is found to be more than fifty percent negligent, the plaintiff will recover nothing.

In my experience defendants will raise the specter of contributory negligence even if there is no evidence to support it. It is my job to keep this cancer out of the courtroom and out of the minds of jurors when the defendants have not complied with Illinois law in raising the issue. I’m a fierce advocate when it comes to filing pre-trial motions seeking to bar this evidence.

Illinois law requires the defendants to plead contributory negligence when they answer the plaintiff’s complaint in what is called an affirmative defense. If they don’t, then the law mandates they be barred from bringing the issue of blaming the victim before the jury. Ultimately, the defendant must offer evidence to support the contributory negligence affirmative defense, if they fail to do so, they cannot raise the issue before the jury.

This rarely deters defendants who masquerade it as something else. They claim the evidence that the victim of malpractice failed to follow-up with their physician is benign evidence describing their course of treatment and unrelated to their own negligence. Or they throw out an amorphous allegation unsupported by the evidence that a slip and fall victim failed to keep a proper lookout or exercise due care.

In the recent case of Lakin v Casey’s Retail Company, the Illinois Appellate Court sided with the plaintiffs. It affirmed the trial court’s refusal to allow the defendants to instruct the jury the plaintiff had the burden of proving he was not guilty of failing to keep a proper lookout or exercising proper care when he slipped and fell in a store. The court admonished the defendants for not pleading any facts beyond the vague and conclusory allegations of failure to keep a proper lookout or to use proper care that would substantiate contributory negligence. As plaintiff’s attorneys we must be vigilant in defusing this nefarious “blame game” seeking to shift responsibility to our clients who are innocent victims.

Attorney Laird M. Ozmon

 

As Summer Heats Up Laird Ozmon Guides Riders on the Rules of the Road

It’s a jungle out there. In the spirit of environmental consciousness our highways and byways are filled with bikes and scooters, E-bikes and motorized scooters, mopeds or skateboards, all in a state of frenetic locomotion. In my practice I have found these non-traditional vehicles, motorized or not, generate confusion concerning the rules that apply to them and how Illinois law treats a rider who is injured in accident.

The basic premise for anyone operating a vehicle on an Illinois roadway is they must follow the Rules of the Road—that means you: bikers, motor scooters, skateboarders, etc. So don’t think you can blow a stop sign at a 4-way intersection when a car gets there first. Yes, there is etiquette, for our non-traditional vehicles, a driver’s nod of recognition or a wave of the hand means she cedes the right of way to you. Notwithstanding this, you must always protect yourself by expecting to be treated like any other vehicle on the road even though you don’t have two tons of steel wrapped around you for protection.

All non-traditional vehicles must follow sidewalk rules. The general rule is, if its motorized, it is not allowed on the sidewalk. Think of your mom exiting the door of your local bakery and getting wiped out by a Boosted Board traveling at 20 miles per hour.

State law does not explicitly prohibit bikers from riding on sidewalks. Local ordinances dictate the rules. Some have age limits, others allow it in certain areas and prohibit it in others as dictated by signage. In all cases, when riding on the sidewalk, remember pedestrians have the right of way and the law protects them over riders. Of course, the proliferation of bike lanes has added a new wrinkle and pedestrians (and parked cars) must heed the markings specially dedicated to bikes.

With the invention of new and faster vehicles, i.e. Boosted Boards (motorized skateboard) and One-Wheels (motorized platform with a wheel), the definition of a vehicle and the rules that apply to it are more muddled. For instance, in the City of Chicago it is illegal to ride a skateboard on a roadway or sidewalk in a business district. Chicago Code, 9-80-200. The Illinois Vehicle Code defines a “business district” broadly where there is a roadway with buildings in use for business or industrial purposes within any 600 feet. Although the ordinance is not specific, this likely prohibits use of a motorized skateboard, or similar vehicle, on a street in a city business district. There goes your new ride to work!

Not following the rules that apply to you has consequences in the context of a claim or lawsuit following an accident. If you are considered more than 50% at fault, your recovery is barred. This means even if someone is found to have been 49% negligent when they struck you on your E-bike, you cannot recover any money. If you violate an ordinance or statute that is designed to protect human life or property, like the above skateboard example, that is presumptive evidence of your negligence, and potentially weakens your case. So for everyone’s sake, lose the earbuds, follow the Rules of the Road and sidewalks, protect yourself and watch out for others.

Attorney Laird M. Ozmon

UNDERSTANDING PERSONAL INJURY DAMAGES

Understanding Personal Injury Damages

Often when people are injured they have difficulty articulating their injuries. It’s usually a case of underreporting (failing to mention the MRI you had) or over reporting (trying to blame every ache and pain on the injury). My decades-long career as a plaintiff’s attorney has afforded me an ability to ask the right questions in order to gather the most relevant information. I then am able to assess all of the potential damages to which a plaintiff may be legally entitled to recover in a lawsuit. This process not only helps clients to know their rights but also to have reasonable expectations as to the amount of money they may expect to recover.

The law is very specific about the damages that are recoverable in a personal injury case. If the case goes to trial, the jury is instructed on the elements of these damages and plaintiff’s attorneys structure their closing arguments to seek an amount for each of these elements of damages which when totaled makes up the jury’s award. Similar arguments are informally made between lawyers attempting to settle a case.

Some damages are much easier to value than others. For instance, it is easy to seek reimbursement for all paid medical expenses related to the injury. This is a fixed amount supported by medical bills. It is more difficult to assess damages for future medical expenses, like a surgery that won’t become necessary for five years, but is nonetheless related to the claim. Here we have to seek the testimony of medical experts to support such a claim.

Likewise, lost wages for a fixed period off work after the incident are calculable, but if the plaintiff cannot return to work, we need to extrapolate a lifetime of loss using life expectancy tables and the future growth of earnings to calculate the future loss. In many instances, an economist is retained as an expert to explain the complex calculations.

Then there are less tangible elements of damages including: pain and suffering, loss of a normal life/disability, disfigurement. Victim’s loved ones may also suffer losses as acknowledged by the law. These are separate causes of action such as loss of consortium or loss of society in a wrongful death case. These damages focus on losses sustained by certain family members as a result of what a plaintiff is no longer able to do, i.e. give love, comfort, support or advice to a spouse, child or parent, and how this affects those loved ones.

The amount of money that may be recovered for each of these elements is highly subjective and determined by a unanimous jury’s verdict. For instance, a juror who suffers from a chronic pain syndrome may attribute a much greater value to pain and suffering than a 22 year-old healthy male who can’t relate. Or, conversely, the juror with the chronic pain syndrome may be reluctant to award money when they never received anything for their problems. These elements of damage are critical to the plaintiffs case and I spend a significant amount of time and energy developing them. This may involve interviewing loved ones, friends, colleagues, co-workers, clergy and/or consulting experts. Significant recoveries by plaintiffs result from well-supported and compelling evidence as to these elements of damages

Making the case for damages is the final and most important chapter in the plaintiffs story. Over my nearly 40 years of trial experience, I have always focused on making that chapter end with my plaintiff’s recovering the maximum fair and just compensation from the jury.

 

Attorney Laird M. Ozmon

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