Getting $$$ for spilling coffee in your lap

Stella Liebeck is the 79 year old woman who famously sued McDonald’s after spilling hot coffee in her lap. Ms. Liebeck has become the poster child for all that is wrong with the civil justice system. Let’s look a little closer at this fascinating case.

Ms. Liebeck hadn’t originally planned on going to a jury trial. She had asked only that McDonald’s pay for her skin grafts for her third degree burns throughout her groin, but McDonald’s offered only $800. After hearing all the evidence, the jury was convinced that she was entitled to $200,000 for her medical costs, which they reduced by $40,000 because she was partially to blame for having spilled the coffee.

The punitive damages awarded was $2.7 million, equal to 2 days worth of McDonalds’s coffee sales. McDonald’s knew that its coffee, served 20 degrees hotter than the industry standard, had resulted in hundreds of second and third degree burns. The judge reduced the punitive award to $480,000, even though he called McDonalds’ conduct reckless, callous and willful. Even this amount was appealed by McDonald’s, who settled ultimately for an amount it insisted remain confidential.

For another side to this story, go to:

Stella Awards

a self-proclaimed “tort reform” site. It entitles personal injury cases as “OPPORTUNISTS AND SELF-DESCRIBED VICTIMS v. ANY AVAILABLE DEEP POCKETS AND THE U.S. JUSTICE SYSTEM.”

For yet another side, see:

http://www.lectlaw.com/files/cur78.htm

That site discloses that Ms. Liebeck was in the passenger seat of her grandson’s car, not in the driver’s seat as many have claimed. The grandson pulled his car forward and stopped momentarily so that Liebeck could add cream and sugar to her coffee. Liebeck placed the cup between her knees and attempted to remove the plastic lid from the cup. As she removed the lid, the entire contents of the cup spilled into her lap.

No Lawyer? No Problem!

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Doctors and Lawyers Perfect Together

A neurologist recently asked me to help him write a medical report for one of my injury cases.  Every medical report in a legal case must cover certain key points.  Here is what I told this neurologist. 

A medical report to be useful in litigation must cover the following:

• History
• Description of complaints of pain, symptoms and loss of function
• Diagnosis
• Statement of causation
• Degree of medical certainty

A final report must also contain a sixth element, a prognosis.

1. Let’s start with history.  The medical report must describe the cause of the
 injury in a very general way.  For example, it should indicate that the client was
 involved in an accident.  It should not be too detailed since the more detail there is,
 the more chance that a defense lawyer will be able to point out inconsistencies between
 what the client says happened and what the doctor has written in his report. 
 
 The history should also briefly describe how the client was feeling before the accident and
 should also discuss prior treatment and any prior relevant medical conditions.  These
 would include symptoms and findings in any parts of the body that were injured in the
 accident.   Finally, the history should include what the client did immediately after the
 accident, for example, called 911 and went by ambulance to the emergency room.
 
2. The report should include a complete description of the complaints of pain,
 symptoms and loss of function as of the time of the visit with the doctor.
 
3. The doctor should indicate a diagnosis. This can be a brief statement as to each and
 every part of the body affected by the accident.  If the client aggravated body parts
 that were previously injured, this should be clearly stated.
 
4. The report must indicate clearly how the accident affected the client, that is, it must
 describe the causal connection between each separate diagnosis and the
 accident. 
 
5. At the end of the report, the doctor must state that all of the opinions in the report
 are stated to “a reasonable degree of medical certainty”.  That is the standard in my state, Pennsylvania.   Something similar is required in every other state.

When the neurologist is preparing his report after the client’s final visit, he will need to state a prognosis.  This involves what he expects the future to hold for the client with regard to his accident-related injuries.  This would include the need for additional therapy, surgery, etc.  It should state that the prognosis is excellent, good, guarded or poor, depending on the reality at that time.

Properly armed with a well written medical report, the attorney will be well on the way to  successfully settling the case.

The “Vision Thing” Part II

I told you about the woman who suffered permanent damage to one of her eyes after being struck by a car. Crucial to the large settlement of this case was the manner in which I was prepared to demonstrate to the jury how drastically this woman’s life was changed by the accident. It was essential that I rebut any attempt by the insurer to minimize the effect of loss of vision in one eye.

I used two novel techniques to put the jurors in this woman’s shoes, to literally see through her eyes. I retained an expert in vision loss from Pennsylvania College of Optometry to craft goggles that simulated my client’s vision impairment. With a simple pair of goggles and some plastic wrap, we were able to motivate the insurance companyto settle the case for what I believe was fair value. Fear of a large jury verdict is the strongest motivator when it comes to insurance companies.

See Pennsylvania College of Optometry.

Imagine the jurors putting on the goggles and trying to maneuver through the courtroom. The goggles create a jarring effect on the wearer. The first reaction is dizziness. Once the wearer regains her composure, she is confronted with the task of moving through open doors, down steps, up ramps, etc. Simple tasks of daily life take on new complexities when one loses depth perception and full field of vision. Try closing one eye. Notice how your depth perception immediately disappears.

I also had an expert produce photographs that simulated the client’s blurry vision and loss of peripheral vision. This evidence was very important in convincing the insurance company to settle this case.

If you or someone you know has suffered vision loss due to someone’s negligence, please contact me. I can help.

The “Vision Thing” and Personal Injury Litigation

It’s the “vision thing”.  No, I’m not talking about George H. W. Bush.  I’m talking about vision loss and legal rights.  I recently handled a piece of litigation involving a woman who suffered permanent damage to one of her eyes after being struck by a car.  She was left legally blind in that eye, although she retained “light perception”, that is, the ability to discern the source of light through that eye.  Everything else is just an extreme blur.

This unfortunate elderly woman made a very poor decision.  She chose to cross busy City Avenue in Philadelphia just as the light for vehicular traffic turned green.  Although she was struck at low speed, the force of the collision caused her to flop onto the street face first. 

The case ultimately settled for $325,000.  This was quite a feat given that she began crossing this four-lane street when it was not safe to do so.  Crucial to the settlement was the manner in which I was prepared to demonstrate to the jury how
drastically this woman’s life was changed by the accident.

It was essential that I rebut any defense attempt to minimize loss of vision in one eye.  I anticipated that the defense attorney would point out that some jet pilots fly with only one good eye.  Individuals from all walks of life are able to live normal lives even though they are legally blind in one eye.  Next month I’ll tell you how I did just that.

Lawyer Lies Exposed

We interrupt this discussion of medical malpractice litigation so that I can tell you about an amazing discovery I made via the Internet. I recently filed a lawsuit against a lawyer who refused to pay me a referral fee for a personal injury case I had referred to his firm. He had agreed to pay me one third of the total fee. When the case settled, he conveniently forgot about me.

I decided to sue him in Philadelphia in order to gain the “home field advantage”. This lawyer practices in New York and New Jersey. He filed objections to my lawsuit, claiming that he did no work in Pennsylvania, had no connection of any kind to Pennsylvania and that, therefore, the Pennsylvania courts had no jurisdiction over him. “Jurisdiction” is defined as the power, right, or authority to interpret and apply the law. He seeks transfer of the case to New York or New Jersey.

I decided to “Google” him, just to be sure. I tried “Googling” his name and his law firm’s name, but found nothing helpful. Finally, I added his middle name, and struck pay dirt. It turns out that thislawyer was licensed to practice law in Pennsylvania in 1998. I learned this from his advertisement on:

www.lawyers.com

He currently holds himself out on that website as a “specialist in personal injury in NY, NJ and PA”.

Also, the Disciplinary Board of the Pennsylvania Supreme Court recently transferred him to “inactive status”, for reasons I have yet to determine. I found this information on:

www.Pabulletin.com

Since jurisdiction in Pennsylvania is proper over any person who engages in any business or profession in this Commonwealth, I believe the Pennsylvania courts have jurisdiction over him.

Do I Have A Case? – Medical Malpractice Litigation

There are many factors that affect whether a lawyer will accept your case.  First, despite what you may read in the newspapers, a medical malpractice case is not a guaranteed lottery ticket worth millions.  Medical malpractice cases are among the hardest types of personal injury cases to win.  The doctor prevails in most cases that go to trial.  

Since most cases take a number of years to resolve, the cost of preparing and presenting the case through trial is a major factor in whether a lawyer will accept your case.  Medical malpractice cases are taken on contingency fee.  When the case is resolved, the lawyer is reimbursed for her expenses and paid a percentage of the award or settlement as the fee. 

These cases are very expensive to pursue because they require the lawyer to gather the medical records, hire medical professionals to review the records, write reports and testify as expert witnesses.  The lawyer must also pay the costs of pretrial preparation and trial.  It simply does not make sense to pursue a case that has a potential value of $50,000, if the cost of pursuing and presenting the case is $20,000 or more.  Consequently, many smaller cases are not pursued, even if the negligence is clear.

If the case is particularly difficult, the attorney may ask the client to put up at least some of the costs of the suit.  This not only makes the case more economically viable for the lawyer, it causes the client to feel more invested in the process.  If the case is quite strong, the attorney may be willing to front the costs himself. 

You should not expect that the case will settle quickly.  It will not.  Most of these cases must be tried before a jury before compensation can be obtained.  This is primarily because, in many states, the doctor’s insurance company cannot settle the case without the express consent of the physician.  Since it is not the doctor who actually pays any judgment in the case, the doctor has little risk if the case actually goes to trial.  The doctor may want to preserve his or her reputation for providing quality care, rather than accept a settlement that implies malpractice. 

Clients Say the Darnedest Things

I got these gems off of my trial lawyers listserv.

Client on date of accident:
“It’s not about the money”
Client on date of settlement:
“I thought the costs come out of your share?”

One client advised that she just got back from the “choir practor.” And then there was the client who had a “tubal litigation.”  And the client who had a mental condition said she was “bipoland”.

One of my colleague’s ads used to seek Workers Comp “hearing loss” claims.  One day a guy called, said he had “lost” his Workers Comp “hearing”, and asked if the lawyer would take his case.

A former client once asked about a deflamation case.  The lawyer told her to call the fire department.

The mother of a kid that got bit in the face by a dog stated that after he was bit he had a foreskin over his eye.  Guess she should have called a mohel rather than a doctor.

A male client told his attorney that he injured his cervix in a car accident, “the cervixial part of his neck”. 

And I’ll never forget the client who broke “the femur in my leg”.  Good thing the femur in her arm was ok.

Here are some other stories:

Client at deposition:
Defense attorney:    When were you born?
Plaintiff:    1948
Deft attorney:    How old are you?
Plaintiff:    Do the math!
Defense attorney at deposition: 
Is my client the driver who rearended you?

Cambodian client at deposition (through
translator): 
I’m not sure.  All you white people look alike.
Defense attorney at another deposition: 
What do you do for a living?

Plaintiff: 
I take stuff from the dump to the recycling
place.

Defense attorney: 
Is that called short hauling?

Plaintiff: 
No.  It’s calling taking stuff from the dump to the
recycling place.
Plaintiff’s attorney: 
How far were you from the back of Ms. B’s car
when you first noticed it?
 
Defendant: 
About 30 feet.
 
Plaintiff’s attorney:
What happened then?
 
Defendant:
I don’t know.

Plaintiff’s attorney:  
Why?
 
Defendant:
I passed out because I was so drunk.
 
KA-CHING

On the subject of drinking, there was this lawyer who had prepped his client extensively to testify that he coped with his pain from back surgery by the use of medication, hot showers, laying down etc.  So here’s how it went:
 
Q:   Tell the Judge how you cope with your pain on
a daily basis.
 
A:    Alcohol.

Construction Accident

I was retained several years ago by the parents of a 7 year old boy who suffered severe injuries to two of his fingers during a construction accident when an improperly mortared cement block fell on his hand. I did not feel that I could properly assess the value of this case until the boy reached his full height. When he turned 18, I began settlement negotiations.

It is essential in every legal case in which suit is filed to serve the lawsuit papers on the defendant. I needed to locate the homeowner who had long since moved. I was amazed to find that by “Googling” this person, in a matter of seconds I had found her. The case settled soon after I filed suit.

Whether you are acting as your own lawyer or looking for one, you never know what you might find when you surf the crest of an Internet wave. And it’s all at your fingertips. Although I don’t recommend you pick a lawyer this way, there are many websites that purport to help you find legal representation. For example, for national search visit FindLaw.com Website and for Philadelphia you could try Philadelphia Lawyers Search.

You certainly should use the Internet to research any lawyer you are considering. You should also look at the firm’s website, understanding that the firm is putting its best foot forward in its website.

The bar association in your area may have a website you can search for the disciplinary record of any lawyer you are considering. I also suggest that you simply “Google”
any such lawyer and firm.

Philadelphia Accident Case

I recently tapped the Internet to help defeat a motion to transfer a case from Philadelphia to a rural county. The defendant claimed that trial would be improper in Philadelphia since the accident happened in the rural county. Historically, jury verdicts are much higher in urban settings so I set about to deny the motion to transfer.

First, I accessed the Philadelphia Court website.I was quickly able to discover that one of the other defendants in the suit had filed 973 lawsuits in Philadelphia in the last 8 years.This helped me to convince the Court to deny the motion to transfer.

Imagine the agony of poring over thousands of files in City Hall trying to discover what my computer revealed in a matter of seconds.