February 20, 2019

Spoilation of Evidence

In a personal injury case, if the defendant destroys evidence, there are two types of claims: (1) Intentional spoilation of evidence, and (2) Negligent spoilation of evidence.

For the plaintiff to establish a cause of action for negligent spoilation of evidence, s/he has to show that s/he reasonably relied on the party to preserve potential evidence. The plaintiff had to establish a duty by the defendants to preserve evidence. For example, if police officers voluntarily assumed responsibility to protect the plaintiff’s prospects for recovery by civil litigation, or their conduct prevented the plaintiff from conducting the plaintiff’s own investigation. Another example, a chair manufacturer, could have a cause of action against a hospital for losing or throwing away a chair if the manufacturer established that the hospital had a duty to maintain or secure the chair.

In determining whether a duty exists, the most important consideration is foreseeability of harm to the plaintiff. Foreseeability is measured by whatever a reasonably thoughtful person would likely take account of in his conduct in the setting of modern life. For example, a janitor throws away an unmarked bag containing a broken bottle, which was placed on top of an attorney’s desk. The bottle was valuable evidence in a product liability action. The janitor may not owe the plaintiff a duty to preserve the evidence. Rather, it was the attorney who was negligent in not maintaining the evidence. The janitor acted reasonably when he removed the bottle, as he would other trash. If the bottle was labeled, and not left lying about, a reasonable janitor would not have destroyed the evidence, which he was normally entitled to assume was garbage.

Other factors in determining duty include: (1) the extent to which the transaction was intended to affect the plaintiff; (2) the degree of certainty that the plaintiff suffered injury; (3) the closeness of the connection between the defendant’s conduct and the injury suffered; (4) the moral blame attached to the defendant’s conduct; and (5) the policy of preventing future harm.

Where spoilation of evidence enables the spoilator to profit from his own wrong, a duty to preserve evidence arises solely from foreseeability of the harm to the plaintiff. Undertaking to preserve evidence is not a prerequisite to liability for intentional spoilation of evidence. Intentional spoilation of evidence occurs when a defendant destroyed or lost evidence s/he knew was essential proof in a civil action. For example, the plaintiff is involved in an auto accident. The defendant agrees with the plaintiff’s attorney to maintain certain automotive parts (physical evidence), pending further investigation. Thereafter, the defendant destroys, loses or transfers the physical evidence, making it impossible for the plaintiff’s experts to pinpoint the cause of the failure of the automotive part.

The elements of intentional spoilation of evidence are analogized to intentional interference with prospective economic advantage. The elements include: (1) pending or probable litigation involving the plaintiff; (2) knowledge by the defendant of the existence or likelihood of the litigation; (3) intentional acts of spoilation, on the part of the defendant, designed to disrupt the plaintiff’s case; (4) disruption of the plaintiff’s case; and (5) damages proximately caused by the acts of defendant.

Collateral Source Rule

According to the collateral source rule, if an injured party receives compensation for injuries from a source independent of the tortfeasor, payment should not be deducted from which the plaintiff would otherwise collect from the tortfeasor.

The policy behind this rule is that a person who has paid insurance premiums to assure his medical care should receive the benefit of his investments. To encourage the purchase of insurance, the tortfeasor should not benefit from the victim’s investments. If the tortfeasor is permitted to mitigate damages with payments from a plaintiff’s insurance, the plaintiff would be in an inferior position to that of one who had not bought any insurance.

There is persuasive case law that the collateral source rule applies to insurance payments made in tort cases and other benefits which a plaintiff has paid for. Insurance is defined as a pooling of resources by individuals to provide a fund to pay losses due to certain risks.

A plaintiff’s attorney may analogize worker’s compensation to insurance payments in that worker’s compensation was deducted from the plaintiff’s paychecks. The plaintiff has paid for worker’s compensation benefits from deductions from paychecks. The paychecks would have been higher if the plaintiff did not have to pay for worker’s compensation. Further, worker’s compensation benefits are an independent source of a tortfeasor in that it is not paid by a party who is liable for the plaintiff’s injuries.

An argument of double recovery by a defendant is rebutted with the policy that the collateral source rule serves partially to compensate for attorneys’ contingent fees. Plaintiffs seldom receive the full compensations computed by juries.

Accident victims should not be naïve when a defendant’s money concerns override humanity. A plaintiff needs to be careful not to let a defendant know too early how much the plaintiff’s own insurance providers paid towards medical expenses and damages. With the information, the defendant might try to bargain down the settlement amount or damages award. Damages recoverable from a wrong are not diminished by the fact that the party injured has been wholly or partly indemnified for a loss by insurance effected by the injured party, and to the procurement of which the wrongdoer did not contribute.

The collateral source rule encourages citizens to purchase and maintain insurance for personal injuries. The tortfeaser should not garner the benefits of his victim’s providence. An injured party’s compensation from a source wholly independent of the defendant should not be deducted from damages otherwise collectible from the defendant.

Should Medical Providers Contribute to Attorneys Fees in a Personal Injury Case?

The Illinois Supreme Court recently decided a case in which the plaintiffs had received medical services at two Illinois hospitals after a car accident. The hospitals filed a lien against the plaintiffs’ possible recovery. Medical providers commonly file liens in this manner when a doctor, hospital, or other medical services provider is not paid for the medical treatment that s/he/it has provided. In accident cases, the medical services provider will file a medical lien on any insurance settlement or award that the injured person may receive as a result of a personal injury case.

In this case, the plaintiffs settled with the defendants but then disputed the hospitals’ liens, arguing that under the “common fund doctrine,” the plaintiffs’ attorneys were entitled to one-third of the amount that the hospitals were attempting to recover. The common fund doctrine is a longstanding rule of common law which allows a court to order an allowance of attorney’s fees to one who, at his own expense wins, a suit which increases or creates a fund in which others share. The rule is based on the idea that the person who has taken the risks and costs of litigation should not pay the expenses alone, while others share in the benefits.

In the case above, the lower court upheld this principle and ordered that the plaintiff’s attorneys were entitled to one-third of the plaintiff’s recovery, including that to which the hospitals were entitled. The appellate court affirmed. Surprisingly, the Supreme Court reversed, reasoning that the hospitals’ claim against the plaintiffs existed, regardless of the plaintiffs’ personal injury litigation, or its outcome. It further explained that, the hospitals were not unjustly enriched by the plaintiffs’ efforts to recover because, “the hospital … had no opportunity to choose their own counsel or to negotiate a settlement on their own terms.”

The result of this litigation is that the common fund doctrine is not applicable to health-care liens, as once thought. In light of this ruling, the existence of any liens should be carefully considered when calculating and evaluating a potential personal injury settlement. In the event of a settlement or judgment on behalf of an injured plaintiff, a medical provider’s lien must be paid in full, without any deduction for attorney’s fees or the costs of the litigation. It is likely that there will be attempts to enact a law which would circumvent the holding of this case by seeking to amend the Health Care Services Lien Act.

 

Property Damages to Trees

It happens every day between neighbors. Oak trees on private property get cut down. The diminution in the value of the property is the loss of the trees. Plaintiff wants to recover the cost of replacing the trees. Such a recovery would cost more money than the property’s value.

Are damages in the form of restoration of the trees reasonable if the cost of replacement would be worth more than what the whole property is worth?

If it is determined that Plaintiff had personal reasons for restoring the property to its original condition, and such restoration could be achieved at a cost that is not unreasonable in relation to the damage inflicted and the value of the land prior to damages, Plaintiff may be awarded restoration costs for the trees cut down.

The measure of damages for tortious injury to property is the amount which will compensate for all the detriment proximately caused thereby. There are two ways to determine such damages. The general measure of damages is the difference between the value of the property before and after the injury. An alternative measure is the cost of restoring the property to its condition prior to the injury.

As to restoration awards, courts will normally not allow costs of restoration if they exceed the diminution in the value of the property prior to the injury. This is because the basic objective of compensatory damages is to make an injured party whole, but no more than that. The Plaintiff may be awarded the lesser of the two amounts.

An exception to the general rule is that restoration costs may be awarded even though they exceed the decrease in market value if the owner has personal reason for restoring the original condition, or there is reason to believe that the owner has a bona fide desire to repair or restore. The personal reason exception has been invoked in cases involving destruction of shade or ornamental trees that were of personal value to the owner, but of little commercial value. Though, courts have stressed that only reasonable costs of replacing destroyed trees with identical or substantially similar trees may be recovered. These cases have also allowed recovery of the value of the trees or shrubbery without regard to the diminution of the value of the land, if restoration of the land to its former condition was impossible or impracticable.

If the trespass is found to be willful and malicious, the court may impose more damages. If the trespass is found to be causal and involuntary or under a mistake of fact, the court must impose fewer damages.

Second-Hand Asbestos Exposure

By now, nearly everyone is aware of the risks of asbestos exposure, and certainly many workers exposed to asbestos in the course of their work have now been compensated. But because the illnesses associated with asbestos take many years to manifest themselves, courts will continue to deal with the question of damages for such injuries long after measures have been taken to limit workers’ exposure. Since asbestos is easily communicated to others, courts have recently begun to address the question of second-hand asbestos exposure. If you’re loved one was regularly exposed to asbestos in the past, is it possible you have also been exposed? And if so, should you also be entitled to compensation for that exposure from your loved one’s employer?

This question was recently addressed by the Illinois Appellate Court (5th District) in Simpkins v. CSX Transportation, in which the plaintiff alleging injuries resulting from her husband’s (work-related) asbestos exposure. Specifically, she alleged that she developed cancer from the asbestos transported by her husband’s body and clothes. The lower court had dismissed her claim against one defendant on the grounds that, as a matter of law, an employer owes no duty of care to the families of its employees.

In reversing the lower court’s decision, the appellate court considered four factors in finding the existence of a duty to the worker’s family: (1) Was the risk of harm foreseeable? (2) Was the injury likely to occur? (3) What type of burden was it for the employer to protect its employee against this injury? (4)What consequences are there of imposing this duty? The appellate court reversed the lower court’s decision and ruled that the husband’s employer did have a duty of care toward its employee’s immediate family. This decision directly opposes that of an earlier Second District Appellate Court case, where it was held that an employer has no duty to protect when it has no direct relationship with the plaintiff.

Apparently, the Fifth District broadly interprets the term “duty.” In the court’s analysis, particular attention was paid to the first factor, foreseeability.  In the present case, the court found that the harm to the plaintiff/wife was reasonably foreseeable because the employer should have anticipated that she would be exposed to the asbestos, and should have known the risks associated with second-hand asbestos exposure.

Even though the court limited its ruling in this case to immediate family members, it expressly left open the question of whether employers could be found to owe a duty of protection to anyone who regularly comes into contact with employees exposed to asbestos-containing products. If you believe you have suffered injury from second-hand asbestos exposure, from a family member, or from anyone else with whom you’ve had regular contact, be sure to consult with an attorney to fully understand the implications of this split on your potential claim.

 

Incriminating a Witness For Testifying S/he Used Illegal Substances

Can a witness be incriminated for testifying in a deposition in a worker’s compensation, noncriminal proceeding that he used unlawful substances in the past?

There is persuasive authority that might allow a witness to be compelled to testify whether s/he used illegal drugs in the past. Liability for workers’ compensation may exist against an employer for any injury sustained by his or her employees arising out of and in the course of the employment in cases, including where the injury is not caused by the intoxication, by alcohol or the unlawful use of a controlled substance, of the injured employee.

If an employee’s injury is caused by his or her unlawful use of a controlled substance, it may be necessary for the employer to ask if the employee had used illegal drugs in the past since that would be a factor in determining whether the employee’s injuries resulted from his/her own intoxication.

If the workers’ compensation case involves a psychiatric injury compensable as a mental disorder which causes disability or need for medical treatment, in order to establish that a psychiatric injury is compensable, an employee may need to demonstrate by a preponderance of the evidence that actual events of employment were predominant as to all causes combined of the psychiatric injury. This may allow an employer to inquire into an employee’s past drug use to determine if the employee’s psychiatric injury was caused predominantly by the actual events of employment, or the employee’s own use of illegal substances.

If there is a witness’ communications to a psychotherapist as a patient, the evidence code may not provide for privilege as to a communication relevant to an issue concerning the mental or emotional condition of the patient if the issue has been tendered by the patient. For example, if the witness is a patient of a pschotherapist, by claiming that the patient has psychiatric injuries, the patient puts his mental condition in issue. There might not be privilege concerning communications with a psychotherapist.

As to the privilege against self-incrimination, the US Constitution states that persons may not be compelled in a criminal cause to be a witness against themselves. The self-incrimination privilege can be claimed in any proceeding, whether criminal, civil, or administrative.

However, the privilege against self-incrimination of a witness is not to keep out probative evidence. The privilege is only to prevent testimony which might be used against him in a subsequent criminal suit. A self-incrimination claim may be rejected if under the circumstances, the witness may not reasonably apprehend that the disclosures could be used against him in a criminal prosecution. For example, a warning against self-incrimination would not be required in a case involving narcotic addiction if narcotic addiction is not criminal conduct.

A party seeking civil relief may not refuse on the grounds of the privilege to testify on matters relevant to his recovery. Courts in several jurisdictions have recognized that injustice may result where the parties to litigation, exercising the constitutional privilege against self-incrimination, refuse to testify concerning matters relevant and material to the issues of the pending cause. To permit relief to someone who refuses to testify on matters which, if known, could prevent recovery, is unfair.

In a workers compensation case for civil relief, a witness who used illegal drugs in the past may be compelled to testify but may not be subject to criminal liability if narcotic addiction is not criminal conduct.

What Information Is Discoverable in a Personal Injury Case?

In a personal injury case, discovery extends to any information that reasonably might lead to other evidence that would be admissible at trial. Admissibility at trial is not a prerequisite. Public policy favors discovery. Any doubt is generally resolved in favor of permitting discovery, especially when the issues in the case are not clearly established.

The fact that the party seeking information does not know precisely what s/he seeks, but is attempting to obtain all possible information for the purposes of the case (i.e. on a “fishing expedition”), is no basis for holding, per se, that a discovery request is improper. Discovery of all relevant material during the time of preparation is the aim. Discovery intends that each party shall divulge the information in the party’s possession. Though, the method of “fishing” may be improper (i.e placing the burden and cost of supplying information equally available to both solely upon the adversary).

One limitation on the scope of permissible discovery is that the information sought be not privileged.

Where any of the following apply, information is absolutely protected from disclosure in a personal injury action. The court cannot weigh or balance the privilege against the need for the information sought.

• Self-incrimination
• Attorney-client
• Spousal communications
• Physician-patient
• Psychotherapist-patient
• Educational psychologist-patient
• Clergyman-penitent
• Sexual assault victim and counselor
• Official records

The following information receives only qualified protection from pretrial discovery. Disclosure may be compelled if the court finds the interest of justice in obtaining the information outweighs the interests sought to be protected.

• News reporter’s sources
• Official information
• Police personnel files
• Trade secrets
• Attorney work product

As to objections made during a deposition, which is a witness testimony outside of court, all objections made are to be recorded by the deposition reporter. However, an objection does not excuse the deponent from the duty to answer, unless the objecting party demands that the deposition be suspended to permit a motion for protection. This is why the attorney who defends the deponent usually may not do much except take notes. When there is a protective order motion, the deponent answers the question, and the testimony is received, subject to the objection. If the testimony is offered at trial, the court will rule on the merits of the objection.

Although not prohibited by statute or case law, an attorney who instructs a deponent not to answer a question may violate standards of professionalism. The federal rules prohibit instructing a witness not to answer except where necessary to preserve a privilege.

Recovering Damages for Scarring and Disfigurement

A medical malpractice lawsuit was recently filed in southern Illinois by a woman who claims that her doctor performed an unnecessary and costly surgery, which resulted in scarring and disfigurement. The doctor-defendant allegedly misdiagnosed the plaintiff as having one type of abscess (batholin gland), when in fact she suffered from a different type of abscess (vulva abscess). At the doctor-defendant’s recommendation, she underwent surgery to remove what was thought to correct the abscess which she did not in fact have. Not only was this surgery unnecessary, it failed to correct the abscess from which she did suffer, which continued unaddressed.

Moreover, the surgery left the plaintiff substantially disfigured. The term disfigurement implies the loss of a limb, burns, or scars. The plaintiff’s disfigurement, which was only a result of the surgery, not the condition itself, led to a multitude of damages, such as increased medical costs, pain and suffering, and other damages.

The case is still pending but it raises a good question: Under what category of damages do scarring and disfigurement fall? Scarring and disfigurement can actually fall under two categories: special and general. Special damages are easily determined monetary damages, consisting of medical expenses, lost wages, long-term care costs, and lost future earnings. Special damages can also include costs that aren’t as easily quantified, such as a loss in the quality of life, decreased self-esteem, and psychological damages. General damages, on the other hand, are less predictable, and can include compensation for emotional distress, pain and suffering, and loss of companionship. Because significant disfigurement can affect the victim in many ways, the resulting damages can fall into either or both categories.

Whether or not you may be entitled to damages for scarring and disfigurement will depend on the extent of your disfigurement, the impact the disfigurement has had on your overall well-being, and whether the disfigurement. Calculating damages for disfigurement is a complicated and imprecise endeavor, and will largely depend on how the jury perceives your injury.

 

Premises Liability

A personal injury case is usually based on strict liability, negligence, or intent. A case based on negligence is one where injuries happen by accident. An action in negligence requires a showing that a defendant owed a plaintiff a legal duty, that the defendant breached the duty, and that the breach was a proximate or legal cause of the injuries plaintiff suffered.

When persons or businesses own property, landowners are required to maintain land in their possession and control in a reasonably safe condition. This maintenance duty, owed to patrons, includes the duty to take reasonable steps to secure common areas against foreseeable criminal acts of third parties that are likely to occur in the absence of precautionary measures. There is persuasive case law that the existence of a defendant’s duty to keep premises safe is not precluded by the defendant’s lack of control over the exterior premises where the crime occurred. For example, if a mugging happens in a parking lot, the defendant may still be liable to the plaintiff even though the defendant does not own the parking lot. The question is whether the crime would have occurred in premises the defendant did not control, had the defendant provided security patrols in the common areas.

A duty to control the wrongful acts of a third party will be imposed only where such conduct can be reasonably anticipated. Foreseeability is a crucial factor in determining the existence of duty. For example, a landlord may have a duty to take reasonable precautions to safeguard common areas against crimes which it had notice and which were likely to recur if the common areas were not secure. Without foreseeability as a factor, an unfair burden would be imposed on landowners and, in effect, would force landownersto become the insurers of public safety.

Foreseeability is determined in light of the totality of the circumstances, including such factors as the nature, condition, and location of the premises. Random, violent crimes are endemic in today’s society. Because no one really knows why people commit crimes, no one knows what adequate deterrence is in any given situation. The scope of a defendant’s duty is determined by balancing the foreseeability of harm against the burdensomeness, vagueness, and efficacy of proposed security measures.

Because the monetary cost of security guards is significant, the hiring of security guards required to satisfy a landowner’s duty of care will rarely be a minimal burden. A high degree of foreseeability is required in order to find that a landowner’s duty of care includes the hiring of security guards. In other words, for there to be a duty imposed on a defendant to provide security guards, a plaintiff has to show that the presence of guards could have prevented the criminal incident.

Often the legal aspects of premises liability cases require prepared Chicago personal injury attorneys who do not surrender to the negatives.

Traumatic Brain Injury Witnesses

Sometimes a survivor of a traumatic brain injury looks and acts normal, but the person is actually suffering from an invisible injury. To a jury, the person may look like any other person, so to make the injury real, witnesses must testify to show how the person changed into a different person from before the traumatic brain injury.

Identify the witnesses to traumatic brain injury before filing a lawsuit. Expert witnesses explain the injury. An expert witness must have personal knowledge on what s/he is testifying to. An expert witness may state an opinion if (1) the witness has scientific or specialized knowledge on the subject in which he testifies that assists a trier of fact, (2) the witness qualifies as an expert, (3) the witness possesses reasonable probability regarding his opinion, (4) the opinion is supported by a proper factual basis.

A lay witness can only testify to what is within his/her personal knowledge. The lay witnesses for a brain injury case may be a parent, spouse, friend, or co-worker. A good lay witness is someone close to the brain injury survivor. The witness should know the survivor for many years before the head injury and have regular contact with the survivor after the injury. A witness who is not related to the survivor may be a better witness than a family member because the witness does not have any interest in the outcome of a case, whereas a family member living with the survivor may be frowned on as wanting money rather than making the survivor whole.

The witness should produce examples on how the injury affected the survivor. For example, when victims of head injuries survive car accidents, a nightmare starts with few residential treatment centers taking insurance or insurance not paying for brain rehab, according to The Virginian-Pilot. Treatment usually gets offered only to individuals with private money, workers’ compensation, or a lawsuit settlement. According to the news article, one man, age 23, suffered a brain injury in a car accident in 2006. After a hospital stay and rehab, he returned home to find the part of his brain that controlled impulses not working. When he got angry, he lashed out at people. His mother took care of him, and ended up with bruises, bites, and black eyes. For this man, his mother would be a potential witness on how the injury transformed the him from his prior life.

For a powerful brain injury case, obtain an experienced Chicago attorney who knows what to look for in “before and after” witnesses.