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A week from today is voting day.
Will you be voting?
Will you be glad when the campaigning and rhetoric is over?
Seems like it’s a contentious and divided time in America – but we all passionately believe in our issues and passionately discuss them. Maybe less "discuss" than "post." I much prefer political discussions with friends than dogmatic social media posts.
I will be working as a lawyer at the polls again next Tuesday – I've done that for about 10 years. I've worked at other polling places over the years. My favorite was a resident's garage in the hill area at least 20 years ago.
Further below I discuss another interesting legal victory for a client, more news on our class action victory, class action podcasts and scuba diving, but first a little more on voting.
Midterm elections always generate lower voter turnout than presidential elections. While the latter have had turnouts of about 50–60 percent over the past 60 years, only about 40% of those eligible to vote actually go to the polls in midterm elections.
In addition to a 1/3 of Senators and all House of Representatives, almost 70% of states choose governors at midterms.
My friend Grant Doty wrote a great article this week, published this week in the St Louis American. Grant and I ran cross country in high school together (he was much better).
Since then, Grant served our country as a career Army officer, went to law school and now practices law in St. Louis. With all the news and fake news about voting, I thought I'd share Grant's three voting Myths for this election.
Voting Myth 1. If I moved and did not update my voter registration, I am no longer registered to vote.
Fact. The majority of people who move remain registered to vote in Missouri.
Voting Myth 2. If I have the wrong address on my driver’s license, this will prevent me from voting given Missouri’s new photo identification law.
Fact. A current address on your photo identification is not required to vote. The law does not even mention the voter’s address for any form of primary identification (e.g., driver’s license, non-driver license, military identification, passport, etc.). In fact, neither passports nor military IDs even list addresses.
Voting Myth 3. If I don’t have photo identification, lose it just before Election Day, or leave it at home, this will prevent me from voting.
Fact. It is estimated that 5 percent of registered voters in Missouri lack the prescribed non-expired Missouri or federal photo identification. But as long as those voters present a secondary form of identification – such as a college ID, the voter notification card they got in the mail, or a current utility bill, bank statement or other government document – they can still vote.
Our class action verdict for the biggest officer force in Missouri continues to make the news.
I was quoted in the New York Times: Josh Hawley, Missouri Senate Candidate, Oversees an Office in Turmoil. “One, two, three lead trial lawyers this year, at least three, it kept changing, and that was evident in the trial,” he said. “It’s highly unusual. This is a big case.”
We won our post-trial Motions in the case. Here's the order. The State will now appeal.
I have been a scuba diver for many years now. That journey began with a one-day dive in Mexico 10 years ago. I learned in a bay from a guy in a little skiff in Spanish. I went down and followed a turtle for 45 minutes and came up. The folks on the surface were scared and thought they lost me.
Since then, I have done well over a thousand dives, dove in many different oceans and seen many wonders under the sea. There's an amazing universe under water most people do not appreciate.
I have also trained and been certified as a cave diver. Again – amazing worlds and wonders underground in Northern Florida and Mexico. Cave diving is one of the most challenging and rewarding things I have done in my life.
I have had the good fortune of working at Bonne Terre Mine for years as a divemaster and dive guide. I led dives there on Sunday – a group of great divers from Pennsylvania. We have divers from all over the country and the world come to enjoy the Mine. It’s for open water certified divers who also get to experience deep earth diving.
The gratitude continues with being able to dive with my wife, Kristen, and son Jordan. In December my daughter Lucy is going to join us – we plan to have 4 certified divers in the family and spend New Year’s Day under water in the Cayman Islands. Really looking forward to that.
On November 16, 2014, my client was driving his vehicle southbound on South Breese Street in Waterloo, Illinois when another driver failed to stop at a stop sign and entered the intersection right in front of my client’s car.
The client had back injuries, and complained of back pain at the scene, stating he would seek medical attention on his own. The police report indicated our client had the right-of-way at the intersection.
I settled his claim with the liable party for policy limits of $25,000 with the consent of our client’s insurance company. We then asserted a claim against his med pay and underinsured coverage.
Before the crash our client had no neck or back problems or any treatment for such. Two hours after the crash, he went to Red Bud Regional Hospital with complaints of neck pain, upper back pain, lower back pain, and left leg pain.
He underwent CT scans of his cervical and lumbar spine, which revealed a “prominent bulging disk at L5-S1.” He was discharged that same night, prescribed Percocet for his pain and told to follow up with a doctor for his complaints.
Our client went to an orthopedic surgeon, a physical therapist and a chiropractor. He had injections to try to help control the pain.
Eventually he underwent a micro lumbar discectomy L5-S1 procedure at Christian Northeast Hospital. In his post-surgical follow up he still had symptoms - no back pain, but continued left leg and neck pain.
But he stopped treating – continuing to work and go to school (he is young). His doctor released Nicholas from all restrictions and told him to follow up if necessary. His medical bills were around $46,000.
His insurance company totally denied the claim initially. So, we filed suit in Illinois for the underinsured. Claim. Although a claimant can file a lawsuit, Illinois has mandatory arbitration if the policy so provides – and every policy does.
We kept up the pressure and obtained the medical payment benefits. Then we picked arbitrators and set the arbitration. We did additional discovery depositions etc. Well, shortly before the arbitration we settled the claim for $130,000 in new money. This is important as the insurance company had a credit for $75,000 against whatever we collected as we had already obtained that relief for our client.
We effectively obtained a $205,000 recovery for our client. But we navigated recoveries from the tortfeasor, big med pay, arbitration and litigation and underinsured recovery. Happy to get this good result for a great client.
Oh, and he had another lawyer before us. The other lawyer is a good and well-known firm – so we agreed to co-counsel with them and shared the attorney fee.
More awesome Lawyer v Lawyer podcasts.
We had Michael Flannery as a guest the last two weeks where we discussed a lot of details about our $113 Million verdict. There are two more episodes on the same topic coming out in the next two weeks. You can find them wherever you listen to podcasts.
Important to educate everyone about the vote. Can you believe women did not have the right to vote in America until 98 years ago?
–Gary BurgerAll of a sudden winter is here. I'd like to talk about slip and fall law in winter weather and a quick case success, but first let's honor our veterans and the 100th anniversary of the end of World War I.
America as the world leader rests on our democratic ideals, our constitution and freedoms and our resolve to fight for our way of life all over the world. Our military and veterans do the hard work in implementing democracy around the globe. We have unparalleled reach on our planet, and we have veterans to thank.
So, thank you. The toll of our wars in the last 100 years fell on our men and women who served our country.
I was moved by a Facebook post yesterday of my friend, Mark Schoon, about World War I. With his permission, here it is:
It was known as The Great War and The War to End All Wars. We know it as World War I.
70 million soldiers were involved. 9 million were killed over the 4 1/2 years of the war— an average of 6,000 per day.
For comparison 8,000 troops have been killed in Iraq and Afghanistan in 15 years. One battle had as many deaths as the entire Vietnam War.
Fighting stopped 100 years ago today. Never forget.
Missouri's most famous WWI veteran? Harry S. Truman. He fought in the Vosges Mountains, St. Mihiel and Meuse-Argonne offensives. Truman served in France from April 13, 1918, through April 9, 1919.
Picture this: it's a hot and sticky sunny day in June, you're walking down the street with your favorite soda in hand on your way back to your house. All of a sudden, a car slams into another car on the street beside you, sending one of the cars onto the sidewalk and onto you.
This is exactly what happened to Tony earlier this year. The impacted car hit our client and pinned him to a fence. He was just walking down the street coming back from the neighborhood 7-11 when the carelessness of a driver impacted his life forever.
Tony sustained massive injuries because of the recklessness of one of the drivers, and as a result had to undergo extensive medical care.
He had a number of fractures, but needed no surgery and thankfully recovered well. Tony even has little recollection of the incident due to the head trauma. As everyone well knows, the costs of medical treatment add up fast. We got our client a $100,000 settlement for the insurance policy limits and completed the case three months after the crash.
The driver's insurance company reviewed the details of the accident and the medical treatment, and offered the maximum bodily injury policy settlement.
Happy Veterans Day.
And thanks for reading.
--Gary Burger
I cannot believe it's already the holiday season. Below I introduce one of our new lawyers, talk about a recent case we settled for a client and some complicated law surrounding government immunity I keep running into.
Sometimes the defendant in a case is a city, county, state or an agency of one of them. This can complicate a lawsuit. We recently had a case go up on appeal on these complicated issues and wanted to talk about them.
There are 2 types of immunity government defendants might be entitled to. The first is called sovereign immunity. The Federal Government has broad immunity and carefully limits when it can be sued. Under the Federal Tort Claims Act, an administrative procedure is set up for claims when the U.S. government or its employees are negligent. 28 U.S.C. § 1346(b).
States are also entitled to sovereign immunity for negligence claims. Under the 14th amendment to the U.S. Constitution, States reserve their immunity. In Illinois the Illinois Court of Claims has been set up to address these cases.
No jury is permitted, a hearing officer conducts the hearing and Makes recommendations to the Illinois Claims Commission and that body renders a decision. We tried a case there which is pending now.
In Missouri, injured people can bring a civil claim in one of three situations – but they get a jury trial. RSMo § 537.600 sets out the immunity guidelines, damage caps and exceptions.
The first situation states are not entitled to immunity is regarding premise liability. For example, if you fall on a state property due to defects in the physical property. There could be a missing step, or a hole that hasn't been covered. Under those situations, Missouri law says sovereign immunity is waived by the state and they can be sued for any injuries that happened as a result of the defect.
The second situation is where a state employee is on the job and gets into a car accident. Missouri law says under those situations, the state is liable for its employees’ actions.
Finally, states waive sovereign immunity for governmental functions to the extent they are covered by liability insurance. Where a party can show the existence of insurance and that it specifically covers the negligence at issue, immunity for public entities is waived.
Under all other circumstances regarding negligence, however, a state is entitled to immunity and cannot be sued. We have come across this numerous times with state government, city government, county government, public schools, government buildings, etc.
Sovereign immunity is a doctrine that stems from old English law, where our laws originate, that the monarch can do no wrong.
To be entitled to official immunity, public employees must be carrying out a discretionary act for their governmental job. The law defines this as an exercise of reason in determining how or whether an act should be done or course pursued.
This is the counter of a ministerial act, which doesn't require any reasoning on behalf of the employee. During ministerial acts, a government employee is liable for any negligence. The latest Supreme Court treatment of this issue was in Southers v. City of Farmington.
We see this issue get litigated more often to try to determine what a ministerial act is in different public jobs. For example, one case it came up in involved EMS who failed to provide adequate treatment to a 9-month-old baby with a tracheostomy tube. Because of their negligence, the baby suffered prolonged oxygen deprivation and is now brain dead.
They argued that they used their discretion in determining what should be done, and felt as if doing nothing was an option, so that’s what they chose. Our argument was that their protocols demonstrated there was a clear set of guidelines on what to do, making it ministerial.
We have also seen this come up in a car accident involving a police car. While the police officer in the car is not liable for performing a discretionary duty, his employer has waived liability under the law and is the only defendant that can be sued.
These are difficult cases to try to win and immunity is often addressed on summary judgment.
We defeated assertions of summary judgment in our Hootselle class action trial as immunity does not attach to breach of contract cases.
We recently settled a case for a client who was rear ended on the highway while caught in traffic by a driver who was not paying attention and driving at an excessive speed. The force of the crash then caused our client to rear end the driver in front of them.
The client accumulated $7,000 in medical bills. The insurance company initially offered $12,357.34. the client was not that significantly injured. We continued to press and threaten litigation.
After several weeks of negotiations, we were able to settle the case for an additional $4,142.66 at $16,500.00. We were able to get a great recovery in the client’s pocket with will make the holidays a little brighter.
It’s the end of the year, and time to reflect. It is a good time to assess. Here's a great quote by actor Douglas Fairbanks: "In taking stock of ourselves, we should not forget that fear plays a large part in the drama of failure. That is the first thing to be dropped."
To that end, here is Burger Law’s 2018 by the numbers:
Q: Do you have to elect your remedy before going to the jury?
A: Sometimes.
Typically, you do have to elect your remedy and submit one legal theory for each claim of damages before going to a jury. Courts don't want double recovery or inconsistent verdicts.
However, a plaintiff may submit two different legal theories for the same injury so long as: 1) the theories are not factually or legally inconsistent, i.e., proof of one theory does not disprove the other; and 2) the theories do not permit the jury to award a double recovery. Whittom v. Alexander-Richardson Partnership, et al., 851 S.W.2d 504 (Mo. banc 1993).
In a case we tried two weeks ago, we submitted the case on two theories: 1) that the psychiatrist Dr. Mattingly committed medical negligence which resulted in the death of his patient and others, and 2) a legal theory under famous cases Tarasoff v. Regents of Univ. of Cal., 17 Cal.3d 425 (Cal. 1976), and Bradley v. Ray, 904 S.W.2d 302 (Mo.App. W.D. 1995), where because Dr. Mattingly knew or should have known of the risk of danger his patient presented to others, he was negligent in failing to warn them of that danger.
Because these two theories are not inconsistent (proof of medical negligence would not disprove failure to warn, and vice versa), and because we were only seeking one remedy (wrongful death damages), we were able to submit both legal theories to the jury.
An illustration in MAI guided us. Illustration 35.15 shows how you can submit two verdict directors and one verdict form to avoid multiple recoveries for the same injury. So, you structure your verdict directors so that the jury can elect two different liability theories but just have one amount of damages to assess.
We effectively did this by organizing our verdict form in three parts. Part I asked the jury to determine liability only on our medical negligence claim. Part II asked the jury to determine liability only on our failure to warn the claim. Part III required the jury to determine the total amount of damages, which would be the same for either (or both!) claims.
The jury was free to elect one or both theories of liability. Email me if you'd like a set of the instructions we used.
Submitting two different legal theories can give the plaintiff an advantage, because some jurors may resonate more with one theory than the other. The way we structured our verdict form alleviated the concern of a double recovery (which would lead to possible error), and also enabled us to determine which theory(ies) the jury relied on in the event of an appeal.
Other examples where you can submit two theories to obtain one recovery include:
Burger Law established a competitive scholarship to affect change surrounding social media and driving.
It began over a year ago and we have received 150+ applications from passionate young people all over the US. The scholarship awards $2,000 towards the education of a young student, either finishing their last year of high school or in an undergraduate/graduate institution, who demonstrates a way to effectively change the behavior of social media and driving.
There were 3,477 deaths and 391,000 injuries in the U.S. from car accidents due to distracted driving in 2015, and that number is only rising. Looking at your phone for only five seconds while driving at 55 miles per hour is equal to driving the length of a football field – with your eyes closed!
Our winner is Kate Kouplen from Jenks Oklahoma!
Kate is a senior in high school who really blew us away both with her submission and who she is in her community.
Kate is not only an academic superstar, she also tutors for Kumon, is involved in a long list of clubs, and has hundreds of volunteer hours with organizations within her community.
Kate’s solution presented for the Dangers of Social Media and Driving Scholarship is very compelling. She proposes to launch a public awareness campaign called “Focus on Your Speed, NOT on Your Feed.”
In this proposed awareness campaign, Kate calls for the use of billboards, tv, radio, and social media to promote the campaign. She also would call for the support of local and national law enforcement agencies to spread the message.
Working on both the national and local levels to spread the awareness, this campaign would permeate into the lives of drivers from every age and walk of life.
To address the dated laws that only limit texting and driving and not social media and driving, Kate would have driver’s education programs include this message to inform new drivers before they hit the roads. We are grateful for every application we received, and this choice was a difficult one to make.
Congratulations to Kate for her hard work and her creative solution! We will be taking action around Kate’s “Focus on Your Speed, NOT on Your Feed” proposal, so keep your eyes out for what we’ve got in store! Screen time is not drive time – be careful out there.
It’s the beginning of a new year – a time for renewal, resolutions and resolve. And for family and taking time out to enjoy life.
I write this email from a family vacation on Cayman Island. My family and my brother and parents are here for a week to scuba dive and hang.
Below I discuss that, a settlement and a great motion we won striking two of three experts on the other side of a case I tried as cumulative.
Our client Brad was injured in a crash on September 5, 2017. Everybody’s nightmare – the defendant swerved and crossed over the center-line into oncoming traffic and crashed into our client head on.
Brad was taken via ambulance from the scene of the accident to St. Anthony’s emergency room. He was bleeding from the laceration to the right side of the back of his head and had stitches.
During his transport and admission in the emergency room it was noted that Brad had pain in his neck, left shoulder, head, left chest, left tibial area, ankle and foot. He did a good job getting medical treatment and later had CTs and MRIs for continued symptoms.
He had lingering neck issues and a left Achilles tendon strain and left ankle instability. He was recommended to have a left ankle arthroscopy with debridement and left ankle Bostrom procedure. He had injections instead and eventually healed.
But he still had residual symptoms. Brad’s medical specials totaled $29,888.13.
We made a policy limit demand and threatened the defendant’s insurer, Allstate, with a bad faith claim if they did not settle. We prevailed and settled the claim for $100,000. We put a lot of that in Brad’s pocket before Christmas.
Q: Can a party have multiple experts testify in a medical malpractice trial?
A: Sometimes.
This is the second in a series of advanced trial articles. Last email we discussed multiple verdict directors for one verdict form. Here we show how we successfully struck two of three experts in a medical malpractice case we recently tried.
We wanted to as more expert witnesses create the risk the jury will resolve differences in expert testimony by the number of experts called, giving the defendant an advantage. And it's more expensive.
To avoid this, we filed a motion to strike the experts as prejudicially cumulative, even if they are otherwise qualified.
We designated one expert to testify regarding the psychiatric standard of care and causation. The defendant designated three: Dr. Adam Sky, Dr. Douglas Jacobs, and Dr. Leo Sher – all psychiatrists.
Prior to even taking the experts’ depositions, we filed a motion to strike, and the court entered an order striking one of the three experts as cumulative. We then deposed the defendants' two remaining experts, Dr. Sky and Dr. Jacobs.
When asked in his deposition, Dr. Sky testified that he did not disagree with any of Dr. Jacob’s opinions or have any additional different opinions. We attached that portion of the transcript to our second motion to strike, and argued that the experts’ opinions were nearly identical and thus cumulative: both thought the defendant did not breach the standard of care.
In response, the defendant claimed that the experts were not cumulative because Dr. Jacobs specialized in suicide, whereas Dr. Sky specialized in the clinical care of elderly psychiatric patients.
We argued there was no material difference in their testimony, and that the defendant cannot attempt to persuade the jury by the sheer number of experts when their testimony is the same. The Court agreed, and struck Dr. Sky as cumulative.
The defendant relied on the latest Supreme Court case on this issue, Shallow v. Follwell, 544 S.W.3d 878 (Mo. Banc 2018). There, the plaintiffs brought a wrongful death medical malpractice action alleging the physician negligently perforated the decedent’s bowel during hernia surgery, causing septic shock, and did not treat the bowel perforation after the decedent was readmitted.
In response to the plaintiff’s one expert, the defendant called four – a board-certified doctor in general surgery and critical care medicine, a cardiologist, vascular surgeon, and colorectal surgeon. The plaintiffs argued that allowing four experts to testify was needlessly cumulative.
The Court rejected this argument: “While the expert testimony overlapped at times, the experts testified about their own specialties and offered their own parts…when the expert testimony did overlap, the overlapping testimony went to the issue of the standard of care and causation – “the very root” of a wrongful death action arising from medical negligence.” Id. at 884.
Nevertheless, the Court acknowledged that the number of experts who may testify is not limitless; rather, the probative value of testimony must be weighed against the risks it poses of unfair prejudice. Id. at 885.
We distinguished our case from Shallow by emphasizing both of the defendant’s remaining experts were psychiatrists with materially similar opinions. In contrast, the four experts in Shallow practiced in different specialties, and although their opinions overlapped, they had unique testimony to contribute. The Court agreed.
Some takeaways from our experience include:
Note that in Missouri, a qualified expert may testify if “scientific, technical or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue…” RSMo. § 490.065 (2018).
The circuit court enjoys considerable discretion in the admission or exclusion of evidence, including expert testimony. Shallow, 544 S.W.3d at 885. As with other evidence, the probative value of admitting expert testimony must be weighed against the risks it poses of unfair prejudice, cumulativeness, confusion of the issues, misleading the jury, undue delay, or waste of time. Id. at 883.
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