DOES DR. STRANGE HAVE A WORKMEN’S COMP CASE?

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Marvel’s ‘Doctor Strange.’ All images © 2016 Marvel. All Rights Reserved.

TEXTING AND DRIVING CAN CRUSH YOUR HANDS BUT SAVE THE PLANET?

So, the opening five minutes of the original Dr. Strange movie shows our hero, Benedict Cumberbatch as the future Dr. Strange, distractedly driving his Lamborghini on a country road while reading brain CT scans on his phone on his car console.  He then proceeds to crash because he is distracted from watching the road.  His hands are crushed, which makes him unable to do his job as a neurosurgeon. So, he goes to Kharmataj and is able to save Earth. Yay earth.

Anyway, so, don’t read CT scans and drive or some similar statement by me.

Texting and driving has revived a whole swath of personal injury law practice. Society had finally moved towards drunk driving being culturally unacceptable and the DUI numbers were down over the past decade. Unfortunately, texting or snapchat or other distractions have more than replaced DUI crashes. So, the texting and driving cases usually involve hitting other cars from the rear at high speed or swerving into oncoming traffic.  Both of these are bad for the victims.

In this photo, a texting driver pushed a car into oncoming traffic.  In the second photo, a texting or distracted driver just sort of drifted into oncoming traffic lanes. In both situations, there were multiple fractures and serious injuries.  Both of my clients had strong cases and were wholly blameless.

There is a presentation done in person with local high schools and on youtube called “End Distracted Driving”.  It is run by fellow lawyer Joel Feldman, whose young daughter was killed by a man who was fiddling with his GPS device.  It is a tragic and upsetting presentation, but one that will change how you drive as an adult.

DOES DR. STRANGE HAVE A WORKMEN’S COMPENSATION CASE?

                What does a workman’s compensation case get Dr. Strange? Workmen’s Compensation is no fault as long as you are working at your job. Worker’s Comp pays 2/3 of your lost wages, all of your medical bills, and may result in a lump sum payment.

Here, Dr. Strange was on his way to a speaking engagement. It is not clear to me that he would have been covered as he was not actually working, but given the severity of his damages, it might be worth looking into.

He would have a sizeable lost wages claim given that he would have been a surgeon for a long time after the crash.

CAN DR. STRANGE PURSUE A PERSONAL INJURY CASE?

That depends.  If Dr. Strange had no memory of the cause of the crash AND he had uninsured motorist coverage (UM), then he could make a claim. Uninsured motorist coverage is for hit and runs or what we call phantom vehicles, when you swerve to avoid someone drifting into your lane but they leave the scene after the crash.  He certainly has a lot of pain and suffering and clear fractures.  He will have a huge wage loss claim in the millions of dollars for future lost earnings and he will have a huge medical lien or bills because of the surgeries he undergoes. So, can you make a case for a UM claim if you are unaware of the whole texting and driving thing? Absolutely.  And, will a UM insurer pay out on a claim to Dr. Strange given his wage loss, medical bills, and surgeries? Probably.  I give it a 50% chance of success.

Dr. Strange would have to prove he was not negligent or less than 50% negligent. Most likely, he would have no memory of the incident and the whole looking at the CT scan in the car might be forgotten, unless wily defense counsel contacted the person sending him the CT scans. Wily defense counsel usually do not do that much investigation in my experience.

Ethically, can you pursue a case for Dr. Strange if you did not know about the whole texting and driving thing? Absolutely. Can you pursue a case for him if you do know about the texting and driving? Yes, you can. BUT, you will want to settle that case before trial.

Do you want Dr. Strange as your client at Trial? Nope. He seems like quite a jerk and a demanding one at that.  Pass on him as a client.

SHOULD DR. STRANGE PURSUE A PRODUCTS LIABILITY CASE AGAINST LAMBORGHINI?

Usually, these cases against car manufacturers require something to have structurally failed in the vehicle. For example, the seat belt did not function properly. Or, perhaps the airbag was situated wrongly so as to cause more injury than needed.  It’s a tough call. In a products case, you would have to prove either a defect in the design of the vehicle or airbag or a manufacturing defect, meaning there was a failure in operation of the airbag or the metals used in the car etc. Significantly, in a products liability case, the negligence or contribution of the injured plaintiff is not the issue.  The only issue to address is whether the vehicle suffered from a defective condition.

 

 

Considerations in Cases Involving Minors or Children

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Kids and Dogs

Most of my serious dog bite cases involve children for various reasons. Children are shorter and hence get face to face with dogs more readily and are more prone to be bitten in the torso, hands, head etc. whereas an adult will take an attack on the legs. Secondly, children are more trusting or less self-protective around dogs and do not perceive potential dangers like adults do.  Children are often the most sympathetic victims and most lawyers on both sides are very careful and receptive to settlement in these cases.

Orphan’s court

Before any case involving a minor ends with a settlement check, the case must go to Orphan’s Court for review by a common pleas judge. This is a nice protection to have for several reasons. First, it reassures the child’s parent that their lawyer, me, did a good job for them, as the judge usually says you are receiving a nice sum of money and you should be satisfied with the settlement. Secondly, it allows both me and opposing counsel a chance to gain the blessing of the Court over the whole settlement. Courts usually require that plaintiff’s counsel take a reduced fee of 25 percent rather than the usual 33 percent or higher. This is also a selling point to the family as they know that their child is getting a break from the lawyer and the blessing of the Court. Finally, and somewhat frustratingly, usually, no matter how rich or poor, the Court usually requires the minor’s settlement money to be put in a savings account for the day they turn 18. At that point, the funds become theirs with no strings. Sometimes, certain judges will allow money to be placed into college savings accounts and sometimes some money is set aside for care of the child if the family is in abject poverty. But, those situations are the exception to the rule.

Reduced negligence standard

There is a reduced standard for children’s negligence in a comparative negligence situation in Pennsylvania. What does this mean? Well, your typical negligence standard is what would a reasonable person due in this situation. However, for minors, the reasonable person standard is revised to reduce the amount of reasonableness that can be attributed to a minor because of their youth. I look at the reduction as a sort of sliding scale. Children under 7 cannot be held responsible for any sort of comparative negligence. Plus, they cannot be sworn unless they are voir dired on the oath and it takes a lot of special focus. Children under 12 will have a reduced culpability even when they are negligent. For example, when a child darts out between cars and is struck by a passing car, the age of the child is a very important factor in their comparative negligence. Usually, I will argue for no culpability at all, but there must be some reduction considered as a strategic matter. When a child of 13 is involved in an accident, but bears some responsibility, defense counsel will often not be aware of or familiar with the reduced negligence standard and it is a point of education for them from my perspective.

Thankfully, kids heal quickly

Generally, children in car accidents are less likely to be injured than adults. This is only my experience over the past decade, but it is still experience over a long time. Kids may be in car seats or are much more flexible and less arthritic than the rest of us. Kids do seem to suffer a bit more post-traumatic stress from car accidents, but do seem to heal from that over time. Nevertheless, a little family therapy seems to go a long way in most cases.

When minors are injured, they do heal much more quickly as they are still growing. When I was a young assistant district attorney, we had a crime victim come to the office. He had been slashed across the face by a criminal with a box cutter on a New York City subway. Box cutters make clean long slashes. I thought the kid was permanently scarred. My boss said you better take a lot of photos because it will heal and you won’t see the scar at trial. He was right! When we next saw the kid, his face was nearly totally normal except for a faint line that was still healing. So, the moral of the story is preserve your evidence by photos or records or videos and make sure the case settles sooner than later, unless you have permanent injuries. Otherwise, a jury will see a happy, healthy healed kid and that is not a case you want to be trying.

THE HARDEST CASES (AND THE EASY ONES TOO)

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THE EASIEST CASE FOR THE LAWYER:

The easiest case I encounter is one where the insurance does not nearly cover the value of the injury. So, let’s say that you are a pedestrian and a car jumps the curb in center city Philadelphia, hits you, and breaks your leg. You have surgery and need three months to recover. You have a lien on your settlement of $30,000 and the driver who hit you has the Pennsylvania state minimum auto insurance coverage of $15,000. I would estimate your injury as having a value of $200,000 or so. Since your injury far outweighs the insurance, the insurer will tender or just pay the fifteen thousand to me for the client upon me producing medical records showing the fracture and surgery. Maybe your own car insurance has additional underinsured motorist coverage, but it still likely will not be sufficient.  This is my easiest case. It is not the best case for the client because they will walk away with far less than the full value of their injury, but that is how the world works in personal injury. If the person who hit you had minimal coverage, it is unlikely that they will have any assets worth even thinking about pursuing.

THE HARDEST CASE FOR THE LAWYER:

The hardest cases are usually the limited tort cases where we have to prove serious impairment of a bodily function in a conservative county. Basically, if you select limited tort, you will get a fight from start to finish on the value of your case unless you have surgery. It is a royal pain. We fight these cases routinely, but they are truly tough because there is always the possibility that a jury finds the defendant negligent, finds your client injured, but finds that they did not breach the limited tort threshold. To my lawyer brethren, it is a lot like filing a lawsuit and losing at summary judgment. It just stinks. So, there is a serious effort to settle these cases to obtain something for the client rather than have them get nothing.

ANOTHER HARD CASE:

The other hard situations usually involve clients who think they will get better and don’t seek treatment between the time of the accident and several months later when they are frustrated and not improving.  For example, a delay in diagnosis of a concussion can be devastating to the valuation of your case. Insurers simply will harp on the delays between the accident and the first diagnosis and it is easy for a jury to defer to or rely on in giving your client nothing.  The reality is that it is better to seek immediate care and lay out every little bump and pain and then narrow down your serious injuries instead of toughing it out on your own at home. The same injury with two different treatment scenarios will result in vastly different settlement numbers.

THE HARDEST CASE FOR THE FAMILY:

Cases involving fatalities are always hardest on all involved. I regularly am working on a handful of cases involving deaths from various causes. I am currently working for families whose loved ones died in car crashes, motorcycle crashes, and carbon monoxide poisoning incidents. These are tragic and sad cases, usually involving people in their prime of life. I usually go to the funeral as a token of respect for the deceased and to understand how the deceased lived his or her life. Both sides in these cases recognize the gravity of the damages and often liability or negligence is the issue to be evaluated and is where the case is defended.  Nevertheless, as our most important and significant cases, the fatality cases get tremendous attention and focus from all involved. I am blessed to have a great supporting cast of fellow lawyers who can help with trusts and estates and other areas of the law that these cases require. Interestingly, since the deceased is not able to assist in the case preparation, a tremendous amount of work in evidence preservation is needed at the outset of the case. Videos have to be collected, text messages, accident investigation, and other areas all have to be examined in the initial month after the incident to ensure that the story of the death can be told fully and properly without the victim.

Lawyers: Let’s Network at Scarpetta’s: May 12, 2022

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As Lawyers, we know that the best cases come from colleagues, and so I thought I’d invite a few of you Neusletter subscribers to dinner. I’m hosting a table May 12, 6:30 PM at Scarpetta, and the first seven people to respond will be my guests. we’re going to do a bunch of these, so if you don’t get in the first go, we’ll have you out soon!

To attend, fill out the form below:

Networking Dinner at Scarpetta: May 12, 2022, 6:30 PM

Suing the City: when Motorcycles Hit Potholes

Andrew Neuwirth Ask Andy Podcast, Auto Accidents

This episode tackles motorcycles hitting potholes and suing the city to me as a serious injury lawyer.

Transcript

Good morning, welcome to Ask Andy, this is a daily podcast about personal injury practice in Philadelphia, Pennsylvania. I’m Andrew Neuwirth. This podcast is sponsored by my law firm, Neuwirth Law Office. King of Prussia, Pennsylvania.  We are in the suburbs of Philadelphia. You can reach me at 267-3563-1735 or at my office 215-259-3687. So I wanted to talk to you today about motorcycle accidents caused by your local city. So I handle a fair amount of motorcycle accidents and I handle a fair amount of kind of pothole caused injuries, and oftentimes they come together with obviously expected bad results. So,  what’s the typical scenario? I see the typical scenario is motorcycle riding along clear road. No bad weather, no cars around hits a pothole, flies off the motorcycle and breaks a toe, breaks a leg, hits a guardrail and dies and everything in between. So the question is like, well,  know from the lawyer’s point of view, am I interested in that? Is that something I want to work on? And the answer generally is yes. I mean, a lot of people,  car drivers will generally tell me just in passing, though, I don’t like motorcycles. Don’t put me on your jury because,  to some extent, people say, well,  you’re riding a motorcycle, you kind of assume the risk of whatever happened to you. So, you know, one that’s not what the law says, but that may be what the average person thinks.

The second part of the equation is,  people who have motorcycle crashes usually have pretty serious injuries. I mean, I’ve been to visit clients in burn units. I’ve been to funeral homes and I’ve,  seen people who are friends and family of clients who’ve lost limbs from motorcycle crashes. So,  the injuries can be pretty devastating, mostly because you’re on a motorcycle as opposed to a car,  you’re exposed. But the flip side of that is that,  the people who maintain the roads are the townships or the City of Philadelphia, and they know that, motorcycles are going to be on these roads. So, is the motorcycle responsible for the road condition? No. Is the motorcycle responsible for being careful about the roadways? Yeah, there’s some responsibility placed on the motorcycle rider. But what happens if you’re, buzzing along doing the speed limit and you hit a pothole that  just can’t be seen well and you fly off your motorcycle,  were you doing anything wrong as the motorcycle rider? No. So the law in Pennsylvania allows you to sue the township or the city for roadway defects or potholes. So that’s what,  as lawyers, that’s how we end up kind of trying to resolve the situation. We don’t really negotiate with the City or the township because they never really get around to paying attention to the case. So those cases go into suit and the inside kind of baseball.

Part of what happens is that the city has a few defenses. The city has to be on notice that there was a pothole there. So let’s say you want to sue Upper Darby or Norristown or the City of Philadelphia. Those areas have to be on notice. It doesn’t have to be written notice. It just has to be constructive notice so knew or should have known is kind of the standard I use. And then  one of the first things we ask for once discovery gets rolling in a  pothole type case is,  send me every complaint made by anyone about that intersection. And inevitably,  there may not have been a specific complaint about that particular pothole. But,  you can pretty much show that there were complaints about the area or that there were city personnel passing through the area. So,  city personnel passing through the area are supposed to make reports about potholes, et cetera. So let’s say, for example, I’m working. I worked on a case a while back where people were complaining about the exact pothole that caused my client to fly off his motorcycle. All right, so that’s the perfect situation. What’s the the less perfect or the worst case scenario is that there’s really nothing there. But, maybe you have Google images going back six years showing that you’ve got potholes in that exact location. Ok? Is that helpful? Yeah? Is a city employee charged with knowing or should have known about that? Maybe.

But  the City of Philadelphia, particularly less so out in the suburbs is, pretty strapped for road paving money. So there are some, indications on a roadway that that road should have been repaired five years earlier. If you see sort of cracking in a roadway outside of the potholes or just around the potholes, that’s a sign that the roadway is, is done, is cooked, should have been repaired a long time ago. So,  can you blame that on the city yet? Do the little potholes that open up after wintertime? Do those usually cause accidents? Yeah, I don’t know. It just depends on where you are and what your potholes look like. But the potholes I deal with are generally kind of long standing, deep problems that really should have been repaired. And  the question really is like, Look, what are we doing here? We’re paying taxes, we have a streets department or we have a roadway highway department. There have been complaints about this stretch of roadway. Why isn’t it getting repaired? and usually there’s no good reason for that. And,  usually in the cases where you have a serious injury and a pretty direct notice to the township of a of a pothole, you’re going to get your case is going to be settled.  the harder ones are where there’s kind of less direct knowledge chargeable to the township or the city. So, maybe there’s a sidewalk that’s kind of not quite flush or not quite straight.

Maybe that’s the responsibility. And a lot of townships outside of Philadelphia County, the homeowner is responsible for the sidewalk, not the township. And so there’s just a lot of kind of smaller, more important rules. But there are a lot of people call me and say, Well, I can’t sue the city because I didn’t have a serious injury. Well, that’s not actually my experience. I mean, the law says, Yeah, you fly off your motorcycle when you have a booboo, on your on your elbow, you can’t sue the city. Ok, well, what are the rules? The rules are you got to have serious impairment or serious physical injury. All right. Well,  can your average person do that to your average person to prove that? Maybe not. But can I as a lawyer? Yeah, probably, because I’ve read the cases and I can tell you what the cases say, and a lot of times it’s just,  scarring–permanent scarring–is enough to surpass that hurdle. So, obviously, a broken toe is enough. Road rash is enough. You know, there are a lot of things that are scarring. That’s easy enough,  so it’s like you’ve got to talk to a lawyer, you’ve got to run your cases by a lawyer. You’ve got to ask someone, you know what? What does the law really expect when the law says serious physical injury? That’s a pretty nebulous or mushy term.

So,  look, you fly off your motorcycle, you have a booboo on your elbow. Is that enough? No, I don’t think so. Like, why would why would you bother pursuing that case? What about you fly off your motorcycle, you break a toe? Is that enough? I’ll tell you, I settled a case a couple of years ago for a hundred grand for that. You know, now I have to give you the usual sort of shtick about past performance is not a predictor of future results. But why? Why’d that case settle? Well, it’s settled because, you know, I had actual notice that the pothole was a problem. My guy flew off. He was in the burn unit. You know, he ended up recovering from his burns and he had a broken toe and the toe wasn’t going to work. So  that it is what it is. Is it serious physical injury if your toe doesn’t work? I think so. He thought so. He couldn’t ride his motorcycle anymore. So look, there are a lot of things that go on that really. It’s not kind of a DIY system. There’s a reason lawyers exist in any system, but it’s definitely worth any motorcycle accident happening to you, your friends, your family is worth checking out with me or some other personal injury lawyer. All right, that’s enough for today. Again, I’m Andrew Neuwirth. This is a daily podcast. I hold people accountable for their negligence. Have a great day.

Sovereign immunity: You Need Permission to Sue the Government

NeuwirthLaw Case Matters

 

           An age-old concept from olde England.

 

Suing the City of Philadelphia:

I get a lot of calls from people wanting to sue the City of Philadelphia or other municipalities. For various reasons, good and bad, there are limits on when you can sue the City.  First, you must fall into one of the exceptions to sovereign immunity or the Tort Claims Act.  The primary exceptions I deal with are the vehicle exception, the sidewalk exception, and the real property exception. So, if you are hit by a police car or garbage truck, slip in a hole on a sidewalk, or drive your motorcycle into a pothole, you can pursue a case provided you meet certain threshold requirements.

The threshold requirements to pursue a case are as follows:

First, you must file a notice with the City alerting them to your claim within six months! Failure to do this is a problem. It is less of a problem if the client was unrepresented and was not aware of the requirement. It’s more of a problem if the lawyer fails to file the notice. So, we prefer to file the notice in every case, no matter how big or small. Sometimes, the City helps your case by responding to these notices and telling you that PennDot or someone else was at fault. There is a line of case law addressing how to deal with failures to provide the City with notice, but it is not an area of law you want to be researching.

Second, you need to have $2500 in medical bills. That is easy these days.

Third, the City needs to have had actual or constructive notice of the defect. This does not mean actual complaints about a defect, but that is obviously helpful. Constructive notice are things like there were multiple city employees in the area who should have seen the defect or the defect was there on google earth for a decade.

Fourth, a plaintiff needs to demonstrate permanent impairment of a bodily function or scarring. Even a little bitty scar will do. I had a client once who was heavily freckled and following a serious motorcycle accident caused by a huge pothole, his freckles were permanently wiped off of his back due to the severity of the road rash he suffered. That would have satisfied the scarring requirement. The City chose to settle that case. The permanency requirement is usually satisfied by fractures, as the bone is permanently altered, or by torn ligaments etc.

As you can see, these requirements filter out many minor injury cases, as plaintiffs will be unable to clear these threshold requirements. Clearly, the purpose of these requirements is to protect the City from too many lawsuits. While I understand this goal, the City of Philadelphia does a poor job in my opinion of handling cases on a pre-suit basis. Other cities have made a serious effort to engage in pre-litigation negotiation. Philadelphia really has not done so in my experience. Further, in dealing with the City, often serious cases are not really focused on for settlement purposes until the Thursday before jury selection. So, the moral of the story for cases against the City is file the tort claims notice and then file suit. There is no reason to wait.

What else is important to know?  The City has a cap on damages of $500,000. This has been challenged on several occasions recently without success. So, the constitutionality or validity of the cap is settled law. What does this mean for plaintiff’s? If you have a life long injury or death case, you better find someone else to contribute to a settlement, because $500,000 is not sufficient. Strangely, I saw a lawyer recently proclaiming that he won a $2.3 million verdict for a client against the City as the only defendant. He even said that the City tendered it’s cap of $500,000 before trial. To me, this is simply poor client management or poor communication. What is the point of going to trial and winning millions when as the jury walks out the door, the judge reduces your judgment to $500,000 that you were already offered?

Suing the Commonwealth or PennDot

So, filing lawsuits against the Commonwealth of Pennsylvania for personal injury is fairly routine. However, the Commonwealth protections are more stringent than those for the City. In brief, a Plaintiff must show actual written notice of a real estate or roadway defect to prevail. This is a truly tough requirement. This means that someone complained about your pothole or other defect and it was recorded by some entity. Finding and obtaining that documentation is often a challenge in and of itself.

Secondly, the Commonwealth has a cap of $250,000. So, the payoff for your client will potentially pale in comparison to their actual damages and medical bills.

As with the City, pre-suit negotiation of cases is not “a thing” at least in my decades of experience. If you have a case, notify the Commonwealth and file suit. There is no reason to delay.

The one workaround for the written notice requirement is if you can establish that the Commonwealth agency, like PennDot, created a dangerous condition, such as a defective roadway etc. that led to your injuries. This follows a long line of cases, which stand for the proposition that if you create a dangerous condition, you cannot hide behind a lack of notice. So, I am working on a case where there is an exit ramp that is plainly not up to current standards and created a problem for a driver. In that case, notice, though it exists, is not needed. You will however need expert support for this approach.

Suing the Federal Government:

So, as with the above situations, there are wrinkles to these cases.  I just filed suit on a case where my client was told by TSA at the airport to take her shoes off and she proceeded to slip on the slippery floor and fracture her knee requiring surgery and a lifetime of pain and arthritis. This would not have happened, but for the silly shoe removal requirement and TSA’s willful ignorance of what might happen on the off chance that you make sock wearing people walk on a marble high-gloss floor. I expect to win.

As with the other sovereign immunity statutes, the Federal Tort Claims Act provides that you must give the feds time to evaluate your case and act before you do anything in Court. While theoretically, this gives the government time to do something, in reality they do nothing on personal injury cases. Nevertheless, you have to wait or “exhaust” your remedies with them. So, you give notice, wait for them to act and they don’t. You follow up and they don’t respond. Then, you file suit.  Or, you can theoretically wait forever for your case to be evaluated by a claims person and then they will give you a poor offer based on their poor evaluation from their position in Kansas.  The statute of limitations does not actually start to run until the case is evaluated by the feds and they give you an offer.

What else is curious about suing the federal government? Well, in personal injury cases, you are only entitled to a bench trial. No jury for my plaintiffs in these cases. So, at the end of your case, you have to convince a federal judge to award damages and not just a jury of your peers.

Finally, the claims people love to remind me that we are only entitled to a legal fee of 20% on these cases instead of our usual 35% or more fee.  I guess if you are a claim rep in Kansas and a federal employee on salary, you might think that this would dissuade a personal injury lawyer. It does not. Frankly, it annoys me that the government gets to dictate what I get paid, but it doesn’t make my client’s case any weaker and generally an annoyed Andrew is more dangerous than a non-annoyed Andrew. I promise you.

 

 

STATE vs. FEDERAL COURT VENUE/JURISDICTION DECISION

NeuwirthLaw Uncategorized

 

“COMBAT TACTICS, MR. RYAN” from The Hunt For Red October starring Sean Connery and Alec Baldwin:

Jones (VO): Torpedo in the water.  High speed screws.  Bearing zero-two-zero.  I estimate range at eight thousand yards.
Mancuso: You’re heading straight into that torpedo.

Ramius: I know.

The torpedo hits the sub, but it does not explode.  Instead, it breaks-up on the hull without a detonation.

Mancuso: I’ll be damned.

Ryan: What happened?

Mancuso: Combat tactics, Mr. Ryan.  By turning into the torpedo, Ramius closed the distance before it could arm itself.

So, intelligent tactical use of all available options is the moral of the story.

As a general rule, Plaintiffs’ lawyers do not want to be in federal court because the consensus is that state court is better for our clients.  Why? Well, federal judges are far more likely to grant summary judgment or take seriously the myriad speculative or scattershot defense arguments why evidence should be inadmissible or generally take the insurance industry’s claims as legitimate, when they are normally hackneyed boilerplate attempts that are routinely dismissed in state courts. Forgive me my prejudice in this.  Nevertheless, there are exceptions to every rule and knowing the playing field is critical.

So, why choose Federal Court? Speed is the hallmark of federal cases. What may take 36 months in Montgomery County takes 9 months. Second, there is tremendous pressure applied to cooperate with opposing counsel and move the case along. So, what might take motion practice for multiple delays in discovery simply does not occur with regularity in Federal Court. Further, if my client’s case is in a jurisdiction that I do not generally like, Delaware County, I will have a more sympathetic jury pool in Federal Court, if I can get there.  Finally, many defense lawyers simply have much larger case loads than I do and the federal venue forces them to pay far greater attention to my case than they would if we were in state court with its slower timelines and more lax enforcement of the rules of civil procedure.

 

VENUE AND WHERE YOU FILE YOUR CASE MATTERS

NeuwirthLaw Case Matters, For Lawyers

I went to Cornell Law School and in first year civil procedure there was a lot of discussion of the impropriety of forum shopping from the academic perspective.  Fast forward a few decades and forum or venue shopping is a major component of my decision-making on cases.  Our judicial administrators all keep track of how many cases are filed, how many go to trial, how many are defense verdicts and how many plaintiffs’ verdicts.  The actual numbers are combined with our experience and that of our colleagues of what sort of settlement and verdict values to expect in a particular county. For example, Philadelphia is always the preferred venue for filing cases because of its reputation for outsized verdicts against corporations. However, times are changing and the makeup of the Philadelphia jury pool is changing as well.  Nevertheless, the goal is always to find a way to place your case into Philadelphia if you are a plaintiff’s lawyer. Simply put, the insurers will attach a higher value for the identical case in Philadelphia County than they will in Delaware County.

The rules on venue are that you can file suit in any county where one of the parties resides, regularly conducts business, or can be served. So, while usually, one cannot create venue, there are ways to achieve the venue you want if it matters. To my cases, it often matters a lot. For example, a torn rotator cuff with surgery in Philadelphia may be worth $200,000, while the same injury may be valued at $75,000 in Chester County. So, if you are the client, the wrong venue choice by your lawyer may cost you $80,000 (the difference between 2/3 of a settlement number in Chester vs. Philadelphia Counties after reduction for my fee). Are you doing anything wrong by creating venue, as long as you are within the Rules of Civil Procedure? Absolutely not. In fact, in my mind, failing to make a sincere effort to create venue in Philly or the best jurisdiction is not doing your best.

So, how have I created venue? Well, on several occasions, I have had my private investigator track a defendant from their home in the suburban counties to their offices in Philadelphia and then had the defendant served in person in Philadelphia County. And then, tada! You have venue that is really unassailable, though defense counsel may be upset on behalf of their client. My investigator once ran out into traffic and served a person with a Complaint in traffic on Chestnut Street! Those efforts, while fun, have been hampered by the new work from home thing, but those are reasonable efforts in my book to get venue.

PRACTICE TIP: BOILERPLATE PLEADINGS

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   Boilerplate is just part of being a lawyer. There are tried and true ways of doing things that save time and money and protect us from missing routine things. I have a fee agreement that is tuned just the way I like it after many years of use. Now, it’s essentially boilerplate. However, boilerplate is often used by the defense bar to assert every possible affirmative defense under the sun, to protect unanticipated developments down the road. Often, I see affirmative defenses asserting that the statute of limitations has expired when it plainly has not. I basically ignore it though some of my colleagues get bent out of shape about it.

Recently, however, I had filed a federal court lawsuit and defense counsel had asserted the usual litany of all possible affirmative defenses applicable to an automobile case, though my case involved premises liability. Unfortunately for my opposing counsel, the Court chose to go line by line through every affirmative defense and suggesting that asserting inapplicable defenses was sanctionable conduct, if they were not withdrawn at the conference. Certainly, it was an uncomfortable phone conference! So, watch out and don’t do that in Federal Court.

 

Wrist Injuries From Car Accidents and Airbags: What are they Worth?

Andrew Neuwirth Ask Andy Podcast

Crash test  dummy hit with air bag

This episode addresses wrist injuries from car accidents and from airbags and how much they are worth to me as a serious injury lawyer.

Transcript

Good morning, welcome to Ask Andy. This is a daily podcast about personal injury practice in Philadelphia, Pennsylvania. I’m Andrew Neuwirth. You can find me on the web at Neuwirth Law.com. So I wanted to talk to you today about the basics of kind of wrist injuries from car accidents. Now, it doesn’t seem like something you’d normally think about associated with the car accident, but a lot of people come to me with, you know, pretty serious crashes. A lot of times when someone turns left in front of you across your lane of traffic and you’re driving straight. A lot of people seem to end up with wrist injuries. And you know, the question is, well, why does that happen? So I’ve had a couple where people are grabbing the steering wheel to kind of brace themselves and turn away. And in that situation, you can imagine that. You know, the force of the crash comes through your car through your wrists, and either you’re bracing your wrist and so your risk takes more of the impact energy or, you know, you’re braced against the back of the car seat. And there’s really nowhere for the energy to go other than into your wrist, which is kind of more brittle than your shoulder, your elbow or other things like that. So what happens? Well, the past few cases I’ve had with wrist injuries, wrist injuries are a little weird because, you know, people are in a car accident, they’re all banged up.

Maybe their leg hurts, maybe their head hurts. Maybe they’re just shocked and kind of happy to walk away. They go to the E.R. and everything seems fine, and then the wrist doesn’t get better. Why is that? Well, there are lots of like kind of tiny little bones that make up your wrist and hand. It’s like kind of cobblestone if you look at an X-ray of your of your hand and wrist area. So that’s one thing. The other thing is that holding the cobblestones together are a lot of tendons and ligaments, and those ligaments are pretty prone to getting injured in in trauma or in high speed crashes. And high speed doesn’t mean, you know, 100 miles an hour into a wall like a NASCAR driver. The high speed can mean you’re driving thirty five miles an hour and you don’t know someone’s turning in front of you because you can’t see them and you basically drive into their car. So you went from thirty five to zero, you know, in the blink of an eye, if they were carrying five or 10 miles an hour, maybe that’s forty five miles an hour. So, you know, what’s the problem with wrist injury as well? It takes a while for them to be diagnosed because usually there’s just a lot of swelling. So let’s say you have. I had a client once with a TFCL tear. So she had a wrist injury. It wasn’t getting better.

She went back for an x ray. There was nothing fractured. She went back again. They finally diagnosed her with a a torn TFCL ligament. And, you know, she went through some steroid injections. The only real fix for her at her age was surgery, and so she eventually had to have the surgery. I had another lady who came in recently and, you know, at the last second, she saw the accident developing and she put her arms up to kind of block her face. And you know, what happened was that the airbag actually exploded into her wrist and broke her wrist. So. You know, airbags are there to save your life, but not necessarily to save your wrist, and she has a broken bone in her wrist now. And, you know, because that kind of wrist is like a cobblestone, you know, small space swelling causes other problems. Swelling can press our nerves and cause nerve damage. Nerve damage is sometimes permanent, sometimes temporary. But nerve damage is, you know, often things like numbness, tingling or, you know, unexplained pain. It means that pressure is compressing your nerve or there’s swelling, you know, compressing that nerve and that compression of the nerve causes numbness, pain, tingling, et cetera. So. But from my perspective, as a lawyer, those wrist injuries are those are really good cases for the client and for me, because, you know, look, you had an accident, it was serious enough that, you know, the vehicles are going to look pretty destroyed.

And you know, inevitably the person went to the ER and had some complaints about their arm or their wrist or their shoulder. And then, you know, it may take some time to figure it out, but there’s really no question in anyone’s mind about what happened. So, you know, as the lawyer, what do you do in that situation? Well, as soon as you get the fracture diagnosis, I think in just about any of my cases, as soon as I get a diagnosis of fracture, I make a demand for policy limits in a way is that, well, look, you’ve got a car crash that wasn’t your fault. You’ve got a clear injury. That’s a fracture. There’s no point in messing around and delaying and seeing what happens because, you know, you know, the negligence, you know, the damages boom. Make your demand for limits. If you know you’re not making a demand for limits, that may mean that there’s two things going on. One, there may be more serious injuries going on. Two there may be more insurance than you expected. So let’s say you have a broken wrist case or broken wrist after a car accident and there’s one hundred thousand dollars of insurance on the other side. I’m making my demand for policy limits. You know, as soon as I hear that the wrist is broken, I’d usually have to wait for medical records, which takes 30 to 60 days to get these days.

But you know what happens if there’s fifteen thousand dollars of insurance on the other side? You know that that resolution of that case, that settlement, they should tender those limits fairly quickly once they have the medical records. What happens if there’s two hundred and fifty thousand dollars of insurance on the other side? Ok, so you got hit by a Lexus SUV, for example. You know, is your broken wrist case worth two hundred fifty grand? That depends on where you are, how committed your lawyer is to work in the case and how much time you can wait. But certainly, you know, it’s a demand for limits. Whether you actually need to wait for limits or not is a different issue. But you know, you’re going to be making that demand for limits on a fractured, you know, wrist because most times what most people will tell you is that, you know, wrists don’t feel great, especially when you’re over like 50 or so ankles, wrists, things don’t. The small, delicate bones of your body don’t heal as well when you get older. So that’s pretty much wrists and car accidents for the day from the perspective of me as a personal injury lawyer, and I hope you have a great day. Stay safe. And if you need counsel, give me a buzz. Again, this is sponsored by my law firm Neuwirth Law Office. We are a King of Prussia, Pennsylvania, personal injury firm in the suburbs of Philadelphia. Have a great day!