Lawsuit Information Center

March 13, 2008

Delaware Law on Admissibility of Photographs in Car Accident Cases

Most jurisdictions leave the judge’s discretion whether to admit photographs from a car accident for the purpose of demonstrating the extent of the injuries of the occupants of the car. In Davis v. Maute, 770 A.2d. 36 (Del. 2001), the Supreme Court of Delaware took a minority view, holding that a party in a car accident may not directly argue that the seriousness of the injuries from an auto accident correlates to the extent of the damage to the cars, unless there is testimony from an expert witness that makes a correlation.

Accordingly, lawyers in Delaware may not argue by implication what the lawyer could not argue indirectly and attempt to suggest that the lack of property damage reflects the minor injuries.

This is great for Delaware plaintiffs’ lawyers in car accident cases who have minor property damage and claim injuries. Still, our lawyers prefer the majority rule because if you have a serious injury/serious impact case, you want to get the pictures to the jury to show the severity of the injuries and the Davis v. Maute holding can backfire on plaintiffs.

February 11, 2008

Average Jury Verdicts in Kansas City

by Ronald V. Miller, Jr.

The Kansas City Star reported last month that the average plaintiffs’ verdicts in the Kansas City metro area last year averaged nearly $1.3 million, nearly double the 2006 average of $688,337.

Does this mean that Kansas City juries have become remarkably more liberal? No. Now is the time to dust off all of those “you can prove anything with statistics” clichés.

Average verdicts are always misleading because they involve highs that completely distort the average which is why most statistical analysis of jury verdicts uses the median verdict, not the average jury verdicts.

January 9, 2008

Cost of Obtaining Medical Records in Florida

by Ronald V. Miller, Jr.

The Orlando Sentinel reports that Florida Medical Association is asking the Florida legislature to change the law to increase what doctors may charge to get copies of medical records. Currently, Florida doctors can charge $1 per page for the first 25 pages and 25 after that.

Believe me, I realize the retrieval costs are such that doctors are not making money producing medical records at this price. But should they be? Patients are entitled to their medical records. You need medical records for a lawsuit. Personal injury lawyers in Florida have characterized the Florida doctors’ request as a backdoor strategy to avoid medical malpractice claims. I’m not sure that an increase in the cost of medical records will do that. But I also don’t see why the current prices don’t adequately give reimburse doctors for their costs of producing medical records.

This is an older post, obviously. But this is the 2022 Florida statute on the cost of collecting medical records. The key language: “The exclusive charge for copies of patient records may include sales tax and actual postage, and, except for nonpaper records that are subject to a charge not to exceed $2, may not exceed $1 per page. A fee of up to $1 may be charged for each year of records requested…However, a patient whose records are copied or searched for the purpose of continuing to receive medical care is not required to pay a charge for copying or for the search. “

January 5, 2008

New Jersey May Join the Civilized World in Compensating Wrongful Death Claims

by Ronald V. Miller, Jr.

The New Jersey state legislature is considering a bill allowing wrongful death beneficiaries to recover damages for emotional harm. The bill, approved Thursday by the New Jersey State Senate Judiciary Committee by a 7-4 vote, would allow the families of those killed in auto accident, by medical malpractice, or other negligence to recover non-economic damages. Family members can only recover economic damages resulting from the death of a loved one.

Retired New Jersey Supreme Court Justice Alan Handler reportedly testified to this Senate committee that New Jersey’s Wrongful Death Act did not fairly and adequately compensate the families in wrongful death cases.

The New Jersey law may reflect common law traditions, but it does not reflect anything resembling the modern view on appropriate compensation for the greatest pain in a wrongful death case–the loss of someone you deeply loved.

January 4, 2008

Team Liability for Injury from Foul Ball

by Ronald V. Miller, Jr.

The San Diego Union-Tribune reported yesterday on a case pending in the Nevada Supreme Court which may have a major impact on the extent to which stadium owners can be held liable when fans are injured during sporting events.

Baseball-related lawsuits settlements and verdicts

The Turner Case

Five years ago, plaintiff Kathleen Turner (not the actress) was struck by a foul ball while she was sitting in a mezzanine seating area at Les Vegas’ Cashman Stadium. Turner’s attorney claims that the beer garden area, where fans can not see the baseball game being played on the field below, created a false sense of security for the spectators. Ms. Turner was struck in the face by a foul ball and lost consciousness. She suffered a broken nose and had to undergo reconstructive surgery.

Trial Court Ruling

The trial judge found that the Defendant did not breach any duty of care to Plaintiffs to protect them from harm. The court further found there was no duty in this case for the Defendant to protect Plaintiff Kathleen Turner from the foul ball. Moreover, the trial court found that even if there were any such duty, the foul ball is a known and obvious risk. Plaintiff appealed.

The Defense Argument

Thomas Dillard, the lawyer representing the park’s owner, argues that this case involves an implied assumption of risk. He states that although Ms. Turner could not see the game, she was repeatedly made aware of the risk of stray balls in the stadium. The stadium posts warning signs at the entrance to the park, screens, and plexiglass are installed in certain areas to protect fans, every ticket bears a notice of liability, and there are even warnings issued over the park’s public address system. He failed to add that common sense also tells you of the risk of a foul ball when you go to a baseball game.

The Nevada Supreme Court will decide whether or not implied assumption of risk can apply to Ms. Turner’s case, and in doing so, Nevada may become one of the many states that abide by the “baseball rule.”

The article seems to think the ruling is relevant to whether major league baseball comes to Nevada. I think it overstates the economics of the outcome of this case. This issue of baseball in Nevada involves one thing: gambling.

My Hypothetical

Generally speaking, we presume fans to have assumed the risk of getting hit by a baseball at a baseball game. In the Sports Law class that I teach, I argue that the best scenario for a plaintiff’s verdict would be if you came to the game and specifically requested a ticket safe from a potential foul ball and you still get hit by one. Like many of my best law school hypotheticals, this has probably never happened and could never be proved even if it did.