Personal injury cases can be confusing for jurors, who often must decide issues such as who is responsible and to what degree, the value of past and future medical expenses, and the value of pain and suffering. When trying cases in Buffalo, we make every effort to ensure that the jury fully understands what is going on and the implications of their decisions. A recent case from across New York State that has been overturned on appeal and ordered for re-trial offers a good example of what happens what jurors do not fully understand the issues in a case.
In Dessasore v. New York City Housing Authority, Davin Dessasore fell down a flight of stairs after tripping over a loose handrail lying on the steps. Mr. Dessasore suffered herniated disks in his back that required fusion of his vertebrae and was still reporting symptoms five years later. After trial, a jury awarded him $5 million for past pain and suffering.
Unfortunately for Mr. Dessarore, there was evidence that he had been talking on a cell phone when he fell. As a result, the jury had concluded that both parties were negligent, but also concluded that the use of a cell phone had no bearing on the fall and that the defendant was fully liable for the damages. On appeal, the court found the factthe jury’s belief that Mr. Dessarore was distracted while walking on the stairs but that this had no relationship to his fall to be “irreconcilably inconsistent” and required a new trial.
The court on appeal also upheld the trial court’s finding that the $5 million award for past pain and suffering was irrational. This conclusion was reached because despite this large award for past pain and suffering, the jury declined to award Mr. Dessasore any damages at all for his medical expenses or pain and suffering in the future.
Most residents of Buffalo are aware that medical treatment can be expensive. To protect individuals who have suffered a serious personal injury in an auto accident, New York State’s Insurance Law requires insurance companies to pay up to $50,000 over the first three years after an accident for basic economic loss to an injured customer or occupant of the customer’s vehicle. Generally, this basic economic loss consists of lost wages and medical expenses.
Unfortunately, when serious injuries occur, this $50,000 may not be enough to cover the insured person’s losses. To help protect against this, New York State also requires insurance companies to provide customers with the opportunity to purchase Optional Basic Economic Loss (O.B.E.L.) insurance. This insurance provides an additional $25,000 toward basic economic loss.
You are not required to purchase O.B.E.L. insurance, but if you can afford it, it is a good idea to do so. $50,000 may sound like a lot of money, but the expenses from a serious injury can mount quickly, and that money may soon be exhausted.
When considering this option, you should also be aware that there are different types of O.B.E.L. to choose from. You may, for example, choose to have this additional coverage available only for lost wages and not medical expenses. It’s a good idea to check with your insurance agent to make sure you have the coverage you desire when exploring this option.
In a Buffalo personal injury case, a Verified Bill of Particulars is one of the documents that the defendant may request from you and your attorney when attempting to gather information about your case.
The laws of New York State govern what type of information can be requested in a Verified Bill of Particulars, but these regulations are somewhat loose, and the defense may seek information that your attorney does not wish to disclose. When that happens, the intervention of a judge may be necessary to determine whether the defendant is entitled to the information or if it is beyond the scope of a Bill of Particulars.
Typical requests in a Verified Bill of Particulars include items such as the names of your doctors, what injuries you are claiming, and any names or statements of witnesses to the incident in your possession. The defense may also requests authorizations executed by you allowing them to obtain medical, employment or other records.
For it to be considered “verified,” you will be required to sign a notarized statement attached to the Bill of Particulars confirming that you have read it and its contents are, to the best of your knowledge, accurate.
Your attorney may also request a Bill of Particulars from the defense requesting additional details regarding any defenses they have raised in your case. This document will usually be submitted after the defense has requested its Verified Bill of Particulars from you.
If you suffer a serious personal injury in the City of Buffalo or elsewhere, it is likely that your case will reach the point where your attorney files a document known as a Summons and Complaint.
A Summons and Complaint is really two documents. The Complaint is a document setting forth some basic information about the event leading to your injuries, such as the names of the parties involved, the date of the incident, and the location where it occurred. It will also state that your injuries are the result of the negligence of the defendant and that you are seeking a judgment against the defendant as compensation for your injuries.
The Summons is a document requiring the defendant to provide an answer regarding the allegations in the Complaint. These two documents are served upon the defendant in your case, and they, usually through an attorney, are required to respond.
In some ways, the serving of a Summons and Complaint can be looked on as the point where a personal injury case really begins. While attorneys and insurance adjustors may engage in talks in an effort to settle a case prior to filing a Summons and Complaint, once the Summons and Complaint is filed, it initiates more formal legal proceedings. It does not necessarily mean the case will go to trial, but it does indicate that a court is likely to be, at least to some extent, involved in the settlement of the case.
Attorneys in Buffalo will occasionally be involved in personal injury cases that are resolved through a structured settlement. Simply put, a structured settlement is an agreement between the plaintiff and the defendant that the injured party will receive compensation through periodic payments instead of in one lump sum. A structured settlement most commonly occurs in cases that are settled for very large amounts of money.
There are several things for the plaintiff to consider when determining whether to enter into a structured settlement versus a lump sum payment. These include the tax implications of each type of payment and how good the plaintiff is at handling finances. Because structured settlement payments may cease upon the plaintiff’s death, life expectancy may also be a consideration.
Whether a structured settlement is to the plaintiff’s benefit hinges on the individual factors of each case. When determining whether to accept such a settlement, it is important to consult with an attorney who is not only experienced in this area, but one who will also take the time to develop an understanding of his or her client’s specific circumstances.
In Buffalo, and most other jurisdictions throughout the country, manufacturers are required to include proper warnings on labels on products or product packaging if that product presents a danger that is known to the manufacturer. As a result, failure to properly label a product may be helpful if you are seeking compensation in a product liability case.
When determining whether a product should have carried a warning or not, courts consider issues such as whether the product is inherently dangerous, whether the manufacturer is aware of that danger, whether the product is dangerous when used for its intended purpose, and whether the danger should have been obvious to the user.
As an example, objects such as knives generally do not need to bear a warning label because their danger should be obvious to anyone using them. Medication, however, is required to carry warnings about possible side effects since the potential problems that could arise from use are not obvious to the user.
If you suffer an injury while using a product as directed by the manufacturer, the danger of the product was not obvious, and the manufacturer failed to adequately warn you of the potential danger, you may have the right to file a product liability lawsuit against that manufacturer. In this situation, you should consult an attorney experienced in product liability law to help you evaluate whether you have a potential claim for damages.
The parties in a personal injury case have a right to trial by jury. This applies not just to cases in Buffalo, but throughout the United States under the U.S. Constitution.
In New York State courts, the usual procedure when making this decision is for the plaintiff to be given the choice of whether or not to seek a jury trial after the parties have completed discovery (the exchange of information about the case) and are preparing to go to trial.
If the plaintiff chooses not to seek a jury trial, the defendant may still exercise the option of having the case heard by a jury. In personal injury lawsuits, both parties have the right for the case to be heard by a jury instead of a judge. As a result, if only one party requests a jury, the case will be heard by a jury.
For cases in federal court or in other states, the time frame during which the decision to hold the trial in front of a jury or a judge may differ. As a result, you should consult with your attorney not just about whether it is to your advantage to seek a jury trial, but also about when that decision needs to be made.
If someone suffers a wrongful death in Buffalo, their estate can sue for the pain and suffering that individual experienced prior to death. This area of law may, however, be a very difficult to prove.
Unlike other issues that may form a basis for monetary compensation in a wrongful death case, such as loss of the deceased’s future income, pain and suffering is very subjective. This problem is compounded by the fact that, unlike a personal injury case, the individual who suffered pain obviously cannot provide testimony regarding the experience.
As a result, the degree of pain and suffering experienced usually can only be determined based on factors such as how long the deceased individual survived after being injured, whether he or she was conscious, and the testimony of other individuals about what that individual seemed to be experiencing.
Because of the variety of factors involved and its subjective nature, the amount of compensation awarded for pain and suffering in wrongful death cases varies greatly. An experienced personal injury attorney can provide guidance regarding how important a role this factor should play given the specific facts surrounding a wrongful death.
When personal injury lawsuits in Buffalo are preparing to go to trial, it is not unusual for the defense to request that the injured person be examined by one or more doctors chosen by the defense. Under New York State law, the defense does have a right to have such medical examinations conducted in most cases.
While you may be required to undergo this examination, bear in mind that the doctor conducting the examination has been chosen by the defense in the hopes that he or she will be able to provide medical evidence that your injuries are not as extensive as you claim. He or she is not your doctor and is not there to help you with your treatment or provide medical advice.
Because the defense has requested this medical examination in the hopes of developing evidence against you, your lawyer may wish to either attend the examination or have another person, such as medical person hired by your lawyer, attend it, to make sure that the individual conducting the examination does not overstep the bounds of the examination or treat you unfairly.
If you are required to attend such an examination, you should speak with your attorney. He or she can provide you with additional information and provide advice regarding how to conduct yourself at the examination.
Buffalo personal injury attorneys, and I suspect those elsewhere, can often develop the bad habit of using a form of “legal shorthand” when speaking to their clients. Another lawyer would know what an attorney means when he uses the term “Discovery,” but there is no reason a client would.
When your personal injury attorney says discovery is beginning in your case, he or she means that your attorney and the attorney representing the defendant will begin making formal requests for information from each other. The documents the lawyers submit on these issues carry names such as “Notice for Discovery and Inspection” and “Verified Bill of Particulars,” each of which is used to seek specific types of information.
These documents usually include requests for items such as a list of the injuries being claimed, who provided medical treatment, and the names of any witnesses to the accident leading to the injury. Once the lawyers exchange this type of information, they can better evaluate the strength and weaknesses of their position regarding the case.
