Psychological Injuries in Personal Injury Claims: Navigating - - PowerPoint PPT Presentation

Psychological Injuries in Personal Injury Claims: Navigating Litigation Complexities

Assessing Value of Claim, Negotiating Settlements and Leveraging Expert Witnesses

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TUESDAY, FEBRUARY 5, 2019

Presenting a live 90-minute webinar with interactive Q&A Christopher Keane, Founder, Keane Law Firm, San Francisco Nicole D. Milos, Partner, Cremer Spina Shaughnessy Jansen + Siegert, Chicago

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Nicole D. Milos

Traditionally, compensation was denied for mental injury in tort cases unless the mental injury resulted from another independently recognized tort. However, this is no longer the case. Emotional distress need not be a diagnosable mental disorder to be compensable. Psychological damages are largely subjective and patient specific. Emotional distress damages in a personal injury case are monetary damages designed to compensate for the psychological impact has injury has had on the injured party’s daily life. The most commonly alleged psychological damages are: depression, anxiety, fear, phobia, or adjustment disorder.

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» Provide an understanding of the types of psychological damages being asserted in personal injury actions; » Discuss examples where psychological injuries have been claimed and awarded in personal injury actions; » Discuss strategies to defend against claims of psychological damages, » Discuss how jurisdictional damage caps impact these claims.

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• A mental harm, suffering, damage, impairment, or dysfunction

caused to a person as a result of some action or failure to act by some individual. The psychological injury must reach a degree of disturbance of the pre-existing psychological/ psychiatric state such that it interferes in some significant way with the individual's ability to function.

• Mental harm also commonly referred to as mental anguish is an

element of a non-economic damage that translates to certain types of suffering that may include: distress, anxiety, fright, depression, grief or trauma.

• Mental harm may be consequential to physical injury or stand

alone.

• Typically the damages claimed involve Posttraumatic Stress

Disorder (PTSD), Traumatic Brain Injury (TBI), a concussion, chronic pain, or a disorder that involves mood or emotions ie: depression, anxiety, fear, or phobia, and adjustment disorder.

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Facts: Husband and Wife injured while trying to evacuate their 3rd Floor Apartment by way of a Chicago Fire Department ladder. Premises liability claim filed against property management company. Allegation: Plaintiff (wife) missed the ladder and fell three (3) stories to the ground and Plaintiff (husband) was in fear of falling from the ladder and also claimed to suffer great emotional distress and mental anguish as a result of seeing his wife fall three (3) stories to the ground. Wife also claimed PTSD and other emotional distress. Psychological Damages: PTSD, fear, pyrophobia, acrophobia and claustrophobia Strategy: Demonstrate a lack of causation, demonstrate inconsistency of treatment Result: Jury Verdict for Defendant

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Facts: A woman pregnant at seven months with her first baby, went into labor at home. The baby asphyxiated and was pronounced dead on arrival at the hospital. Medical malpractice action filed against hospital. Allegation: Malpractice alleging improper evaluation and treatment by hospital where mother had presented several times complaining of abdominal pain (due to premature labor) in the week prior to death. Psychological Damages: Bereavement, PTSD and depression. Strategy: Lack of treatment and subsequent actions contradict mother’s claim as she returned to work and later gave birth to a healthy child . Result: $1 million verdict for emotional distress

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Facts: Anhydrous ammonia exposure following train derailment, father, mother and two minor daughters exposed, opt-out of class action. Allegation: Toxic Tort Psychological Damages: Depression, anxiety, insomnia, PTSD, nightmares Strategy: Focus on lack of treatment and social media evidence to contradict Plaintiffs’ claims. Result: Settled

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Facts: 35 year old woman, married and mother to three minor children died in a fire that occurred in the family’s home. Product liability claim filed against portable heater manufacturer. Allegation: Product liability, fire allegedly started by a portable home heater. Psychological Damages: emotional distress, grief, depression. Strategy: Defendant denied liability, contended husband’s negligence caused the fire and disputed nature and extent of damages. Result: Verdict for Plaintiff, $58,650,000 reduced to $5,536,000.

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• Develop evidence regarding:
• physical damages
• medical treatment
• diagnosis
• Inequity of injury v. damages
• Competent mechanism for causation
• Inconsistency of complaints/ADLs
• Expert
• Mitigation
• Surveillance
• Don’t forget about social media

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• 1. Intensity and duration of symptoms
• 2. Relation to quantifiable physical injuries
• 3. Medical diagnosis/treatment
• 4. History
• 5. Quantifiable compromise of ADLs/earning capacity
• 6. Consider the claim in context
• 7. Understand the jury instructions

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• Remember your audience
• Consider the impact of implicit bias
• Consider the impact of current events and

social trends

• Consider the visual presentation of your case
• Be aware of the applicable Mental Health laws for

the relevant jurisdiction

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• No Statutory Caps (16):

Arizona, Arkansas, Delaware, Georgia, Illinois, Iowa, Kentucky, Minnesota, Missouri, New Hampshire, New York, Rhode Island, Vermont, Washington, Washington DC, Wyoming

• Punitive Damages (21):

Alabama, Alaska, Colorado, Connecticut, Florida, Idaho, Indiana, Kansas, Montana, Nevada, New Jersey, North Carolina, North Dakota, Ohio, Oklahoma, South Carolina, Tennessee, Texas, Virginia, West Virginia, Wisconsin

• Medical Malpractice (20):

California, Florida, Hawaii, Indiana, Louisiana, Massachusetts, Michigan, Montana, Nebraska, Nevada, New Mexico, North Carolina, North Dakota, Oklahoma, South Carolina, South Dakota, Texas, Utah, Virginia, Wisconsin

• Non-Economic Damages (10):

Alaska, Colorado, Idaho, Kansas, Maryland, Mississippi, Ohio, Oklahoma, Tennessee, West Virginia

• Claims against Municipalities, Local Agencies or Commonwealth Parties (8):

Alabama, Indiana, Nevada, New Mexico, Oregon, Pennsylvania, South Carolina, Texas

• Wrongful Death (3):

Colorado, Maine, Oregon

• Product Liability (2):

Michigan, South Dakota

• Survival Actions (1):

Maryland

• Dram Shop (1):

Colorado 17

Alaska - $400,000 per claimant or $8,000 multiplied by the plaintiff’s life

• expectancy. For severe physical impairment or disfigurement, $1 million or

$25,000 multiplied by the plaintiff’s life expectancy Colorado -In most cases, the cap for non-economic damages is $468,010. This increases to $936,030 if the court determines that the increase is warranted. The cap does not apply to permanent physical impairment. Idaho - $250,000 Kansas - $325,000 Maryland - $845,000, except in wrongful death cases involving two or more deaths, $1,267,500 Mississippi - $1 million **reduces to $500,000 in medical malpractice cases. Ohio - $250,000 or three times the economic damages, with a maximum of $350,000 per person and $500,000 per incident Oklahoma - $350,000 Tennessee - 750,000 or $1 million if case involves serious burns, amputation, death of a minor child’s parent, or paralysis from a spinal injury. West Virginia - $250,000 except $500,000 in cases involving wrongful death and permanent injuries

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Th Thank ank Yo You! u!

Nicole D. Milos, Partner

Cremer, Spina, Shaughnessy, Jansen & Siegert, LLC One N. Franklin, 10th Floor Chicago, Illinois 60606 Direct: #312/980-3024 nmilos@cremerspina.com

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Analysis of d a m a ges calculations for psychological injuries

Christopher Keane Child abuse lawyer w w w.kean elaw.com

W h y the focus on psychological damages?

1) What's the goal?

Correct the injustice. Money is the symbol. People holding onto money,

• nly want to release it if they

have to....easier to justify paying based on past behavior.

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Go to war with the army you have... not the

• ne you want.

If you have physical damages, roll with it because that is the language money holders understand. But if not, and you have an injustice to correct, go to war with the army you have... psychological damages. There is no inherent value in physical injury versus psychological injury.

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If it's serious, people will get it. Even a d o g knows the difference between get ing b u m p e d into and get ing kicked.

Child Abuse. Sexual harassment. Psych da m a ges in death cases.

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Important factors:

Aggravating facts on liability: race, gender , age, disability Not punitives, but correcting an injustice forpunishment inflicted. Video - takes doubt out of it

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Translate psych injuries into the language understood by moneyholders

Demonstrate how psychological d a m a g e travels

• guess what, it travels on real

anatomy...get the brain out, m a ke it real. Adverse Childhood Experiences (ACE) linked to physical health problems. Emotional injury due to physical injury: scarring.

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Are you helping them tell their best story...

Have others complain for them: not only experts, but unimpeachable laypeople. No one likes a whiner. When talking about himself or herself, focus on what is being done to get beyond it. Heroes persevere.

This jury is the only group of citizens who can correct this injustice. No one else would understand the invisible injury unless they hear bout the injustice....

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MOST IMPORTANTLY: T H E REALITY O F LIABILITY WILL M A K E P S YC H DA M AGES R E A L

Audio/Photos or Re- Enactment - even playing video deposition Physical Blow Up of Documents on Boards: makes things psychological real Civil rights: show the law, use the court/judge as actors in your play

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Is the survivor m a k i n g the choice clear?

Emphasize thedefense position as simply an extenuation ofabusive behavior. You're with the (abuser , molestor, racist,etc.) or you're with the survivor. Don't give them a third choice...

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Best practices for valusing cases for set lement

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No different than any

• ther case.

Client driven attorneys vs. Malignant narcissists

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Focus group or m o c k jury is the best practice. If you are correcting an injustice, money should never be the sole true north.... The proper Plaintiff perspective is as Coach Wooden said it..."players with fight never lose a game, they just run out of time."

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Risk m a n a g e m e n t

What does the Plaintiff want to risk?

How much could the Defense lose? Chouporiancase: 168m Carlson case: 20m Sanders case: 11.5m Gilbert case: 21 m Alfordcase: 95m

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