A New Addition to The Firm

NeuwirthLaw In the News

 

Edie. law dog in training

Edie, a new yellow Labrador Retriever has arrived at Chez Neuwirth. My older lab Louis went over the rainbow earlier this year and we were concerned that Yukon, who is also a yellow lab was lonely. We may have misjudged that. Edie is 9 weeks old and rather freestyling with her peeing and whining and generally being an infant. We are getting less sleep but taking lots of puppy photos and videos. Yukon does not seem too thrilled with the whole idea of a new puppy and is generally tolerating Edie.  I will keep you updated.

HIGH VALUE CASES?

NeuwirthLaw Case Matters, For Lawyers

excited accident victim shouting and showing win gesture near attorney in court

What makes cases more valuable in the eyes of both sides is whether the injured person has a permanent injury that will not resolve. Essentially, could both sides see a jury compensating the claimant for future pain and suffering beyond where the person is today? If so, then the person will have a case with unlimited damages. This poses a problem for valuation on both sides.

For the insurer, a permanent serious injury that will inflict obvious harm or disability is a case that needs to be analyzed and resolved if negligence is clear. So, what do these cases look like? Well, I am currently working on a case where a vehicle passenger’s right arm no longer fully rotates from palm up to palm down due to a crash. By any definition, he has a permanent and lifelong injury from this crash. The case will have to be resolved by the insurer. This is not a case that they will want to take to trial because it would not be hard for a jury to award large six figure numbers to my client for the injury.

On the Plaintiff’s side, these are high value cases depending on the extent of disability. However, they are also fraught with challenges. Often, clients with severe impairments are happy with lower numbers than the lawyer would like to achieve. The certainty of a settlement is important to the client, but most are unwilling to push cases to the courthouse steps or to a jury when there is real money being offered and the client knows that they have a real injury that will not go away.

Additionally, most plaintiffs’ injuries get better over time. People heal or adjust to their impairment. This means that the client will look better at trial than what they went through in the first two years of recovering. So, it is in both lawyer and client’s interest to get the case settled for the most amount possible before trial. But, from my perspective, it is always hard to judge when a client who is enduring a lot of pain and treatment is ready for settlement. Often, clients try to put off surgery as long as possible. Surgery increases case values, so putting it off makes valuation more challenging. A case where the client may have surgery is valued less than one where the client has already had two surgeries. But, as the lawyer, you don’t want to settle the case for the value of one surgery and then find out that the client had two more after that. That is either bad luck or impatience and costs both lawyer and client money. Doing a good job on these cases is a delicate balance and requires some really long discussions with clients about what they want, what their doctors want, and what they are realistically going to go through to get better.

CURIOUS PENNSYLVANIA EVIDENCE SITUATIONS

NeuwirthLaw Case Matters, For Lawyers

Female Traffic Police Officer Recording Details Of Road Traffic Accident On Mobile Phone

In Pennsylvania, for various evidentiary reasons, whether a vehicle occupant was wearing a seatbelt or not is inadmissible.  Pennsylvania’s seatbelt law is codified at 75 Pa.C.S.A. Section 4581. While the law makes seatbelt use in the Commonwealth mandatory, it also precludes evidence of a violation of this requirement in any civil action. In Gaudio v. Ford Motor Company, 976 A.2d 524 (2009), the Superior Court said simply that the statute applies and no deviation appears to be permissible. The evidentiary argument for this is that almost all of the time, the person who was not wearing a seatbelt was not negligent in the operation of their car and the burden of proof cannot and should not be shifted to an innocent or non-negligent passenger when the accident was caused by the negligence of another driver. Even if the passengers were not wearing seatbelts, the accident would not have occurred but for the negligence of the other driver.

However, there are innumerable situations where a lawyer or anyone paying attention to details will figure out that the injured person was not wearing a seatbelt. How? Well, in a lot of cases, people who do not wear their seatbelts have really serious fractures. The purpose of the airbag and seatbelt is really to avoid the really serious fractures. Can you suffer a fracture from an airbag? Yes, it happens all the time. But, it is usually a wrist or finger fracture. When you are not wearing a seatbelt, the fracture is your arm, your nose, a cheekbone etc. Essentially, if you are not wearing a seatbelt, you are going to hit the inside of the car really hard and the car does not give way. Now, would a juror figure out that the plaintiff was not wearing a seatbelt just from the injury? Maybe.  Maybe not.  In Gaudio, the case above, Ford Motor Co. argued that the passenger, who wasn’t wearing his seatbelt, would not have been injured by the airbag had he been wearing his seatbelt because the seatbelt and airbag work together as a system and someone too close to an airbag can be more seriously injured than intended. The Appellate Court disagreed.

Similarly, the findings on a police report are not admissible in Pennsylvania. Why? Well, the theory is that the police officer writing the report was not a witness to the crash and hence what they record is merely the product of hearsay. Plus, the authority of the police officer might make that hearsay more weighty than is warranted. So, if the police report says one driver is at fault, that cannot come into evidence. Similarly, if the officer wrote a ticket for running a red light, that cannot come into evidence for other reasons. Significantly, often, the police take down statements at the scene and record the weather and the position of cars etc. All of this information can be used to cross-examine the opposing party.

I recently had a defendant testify that everything in the police report was a lie. The skidding on gravel.. a lie.  The speed of approach? A lie. The fact that the person was on the phone at the time of the crash? A lie. So, what do I do with that information? Well, I deposed the officer who then verified all of the information in his report. Why? Because, now I do not need to deal with getting the report into evidence. Rather, I just have the officer testify, that I talked to the defendant, this is what she said, this is what I observed etc. Plus, it highlights that your average police officer is just recording facts, does not have an interest in the litigation, and would not fabricate what is in a routine report. Basically, it highlights that the Defendant is lying and makes her a witness you could not possibly call at trial.

Female Traffic Police Officer Recording Details Of Road Traffic Accident On Mobile Phone

WHEN CAN A LEAF HELP YOUR PERSONAL INJURY CASE?

NeuwirthLaw Sue The City

It’s almost slip and fall season again. Also known as “winter”, slip and fall season generates a lot of fractured arms, wrists, ankles, and noses. What does a leaf have to do with all this? Well, if you fall in a hole in the sidewalk, on the street, or trip on a hole due to a missing sewer or water utility line covering, there are several defenses that will be a part of any lawsuit defense.  The defense typically and rightly will raise the issue of whether you were looking where you were going? Lawyers will argue that the defect you fell in was open and obvious. There are multiple ways to deal with this problem. Was the hole actually open and obvious? I have had people call me inquiring about whether they have a case, but when they say that they were watching a video and fell in a hole, I turn them down. On the contrary, what happens if you were walking along and encountered a decent sized hole, but the hole was obscured by leaves? That makes it not open and obvious, right? Yes. As a result, anything obscuring a pedestrian’s vision of a hole or defect is powerful evidence for the plaintiff. There are innumerable other examples of things that obscure open and obvious defects. Shadows and darkness at night obscure most holes and defects unless there is a lamppost overhead. Rain obscures defects when it fills in a hole. Taking immediate photos of holes, defects etc. makes a big difference in these cases. I have had good success when clients photo the ice and snow, or leaves, or rain filled holes. Failing to do this makes a strong case weaker, but not a non-starter.

Here’s a photo with a partial doggie and a crumbling sidewalk . A lovely client was walking her dog at night and tripped on this broken up pavement and broke her wrist. The resulting settlement was about $50,000. While open and obvious, darkness prevented proper visibility of this defect.

Who was responsible here? The homeowner and their property insurer is primarily responsible. We often include the City of Philadelphia or other municipality in the lawsuit as they are liable if the homeowner does not have insurance or has insufficient insurance. Want to learn more? People often google sue the city and find me at this page: https://suephilly.com.

WHO LIKES ME LEAST?

NeuwirthLaw Case Matters, For Lawyers

This is not a popularity question because that line is too long. Nope. Where is your average personal injury lawyer least well received? I have found large property managers or landlords are probably those who like me the least. I have been to cocktail parties or chamber of commerce where I introduce myself and my professional work and the conversation just stops cold. It is a routine occurrence at this point.

So, why does a commercial landlord dislike me and my brethren? It is fairly simple. Business-people hate paying for insurance and perceive all slip and falls on their property as frivolous or filed by money hungry poor people, who don’t take personal responsibility for their actions. In truth, while there is always an element of personal responsibility that drives down slip and fall settlements, the secret to the landlord’s animus is that they could have avoided their sidewalk decaying, their walkways uncleared, etc. with the application of a little bit of money. When their conduct is indefensible, they get upset. Nobody likes to sit for a deposition. It is even worse when you are the property manager and your failures are just startlingly obvious.

I am always working on amusing cases where people fall on ice in parking lots. People walk into a parking lot and slip on black ice and break bones. I don’t take ice cases without fractures. The fracture tells the landlord it was a real fall with a real injury. The fracture also tells the jury that there was real ice there. The only remaining question is where and why and for how long. Usually, the cases are amusing for me because the defendant’s records are either non-existent, harmful to their case, or fabricated. Fabricated is my personal favorite. How or why does one fabricate a snow and ice record? Consider that someone falls and the boss says we need the snow and ice records for the day. The snow and ice records are not regularly kept or kept poorly and that is readily apparent when inspected. If and when I prove fabrication, the case is over and done with!

Pennsylvania has the hills and ridges doctrine and a bunch of other rules about snow and ice and the duties of property owners. Generally, the rule is that you cannot sue a property owner if there is ice on their property if it was snowing, raining on a frigid day or otherwise actively precipitating. You also cannot sue if the snow and ice developed naturally from snowfall. However, all bets are off when the snow and ice has been there for a day or so or has been moved around by shoveling, plowing etc. Basically, the Courts try to give the property owner leeway in clearing their properties during stormy weather. Generally slippery conditions is a bad factual scenario for a plaintiff’s lawyer. I recently turned down a case where a caller had undergone back surgery following a fall. After reviewing weather records for the day in question and going back over the client’s story, I was pretty sure that I would eventually lose the case if I pursued it to the end. So, I turned the client down and referred him out to another lawyer who might pursue it. But, I have better things to do than take a tough liability case for two years with an uncertain result. I had the tough conversation this week with the client rather than two years and a few thousand dollars lost down the road.

THE LAW OF WAR

NeuwirthLaw Case Matters, For Lawyers

 

There is a law of war? Who knew. In college, I read an interesting book called Just and Unjust Wars by Michael Walzer, who is a history professor. The book addressed the somewhat unwritten rules of war that unfortunately has persistent relevance to this day in light of Ukraine’s situation. Russia seems to persist in targeting civilians. Walzer is adamant that the Rules of War, such as they are, do not permit attacking civilians as a mechanism of war. It is okay to shoot combatants but not non-combatants. Walzer opines that it is a violation of the Rules of War to shoot an opposing soldier, who is merely bathing during wartime, but that seems a close call to me. Another interesting aspect of the book is a discussion of rules regarding reprisals. Reprisals are essentially a response in kind to aggression by the opponent. So, if the Palestinians killed an Israeli soldier on patrol, Walzer would permit the Israeli army to destroy a convoy of Palestinian militants. But, it would not be permissible to kill civilian Palestinians or to target a hospital.

Putin seems to have missed these lessons. The term scorched earth is essentially a violation of the Rules of War. It means that you are burning the enemy’s fields, land, homes, in an effort to beat their army. It is an impermissible tactic, but plainly Putin is seeking to reduce Ukraine to a fighting force and nothing more. It is not acceptable tactically or to a country that is complying with the rules of war. But, I think that Putin is way beyond the pale of upstanding nations at this point.

To connect this to law in Philly, there are certain rules of decorum for lawyers in depositions and other forums. We defer greatly to Judges when we are in front of them because they can make decisions that hurt you or your client’s case. We also generally defer to other lawyers in most professional courtesy situations. If I have to cancel a deposition on short notice, I expect opposing counsel will agree and we will reschedule. If they don’t agree or I don’t agree, both sides know that the courtesy will not be reciprocated when needed. Both sides need a break in most cases at some point.

But, in depositions with other lawyers, I find that I don’t miss the breakdown of some decorum. I find that defense lawyers for insurance companies are often ill-informed about their cases and not honest with themselves or their carrier about how the case is going to turn out. Every case has its little fights, but it is rare that disputes cannot be settled between counsel during depositions. I have not yet had a case where fights between counsel needed to be moderated closely by the Court. Usually, if the Court is involved, I turn out to be in the right as I try to avoid Court involvement.  The judges we appear before are far far less involved in our cases and while they are well-intentioned, they are just as likely to make a mistake as they are to make the right decision.

FOX News, Quack Treatments, and the Law

NeuwirthLaw For Lawyers, In the News, Medical Malpractice

 

If you are interested in how far down a rabbit hole Fox News can send you, kindly see the attached Shoemaker v. UPMC case. Our Superior Court had to take its time and overlook routine procedures to make the point that just because you want a treatment to be given to you, the Hospital does not have to give it.  In other words, let the doctors practice medicine as we have traditionally done here based upon evidence and research. If you would like to use Fox News endorsed treatments, go somewhere else. The facts of Shoemaker are sadly nutty. Mr. Shoemaker, in December of 2021, developed worsening covid. His vaccination status is unstated, but let’s assume he was unvaxxed. He got worse and worse and was placed into the UPMC ICU on a ventilator. His spouse demanded that he be given ivermectin, which is used for deworming horses. I give my dog ivermectin every month for heartworm. It is dipped in a nice meaty flavoring and my dog loves it. I cannot catch heartworm, so I abstain. Anyway, Mr. Shoemaker was in such distress that his healthcare power of attorney was making decisions for him. They went and found a New York lawyer and a local doctor to prescribe ivermectin. But, since Shoemaker was in UPMC hospital, the hospital said you cannot administer meds here that are not approved by modern medical guidelines. Essentially, UPMC said, we are not a vet and you cannot give this drug on our premises.

Shoemaker’s lawyer went to Court and the Court Ordered UPMC to give ivermectin. UPMC said you can bring your own doctor here and give him it but we are not responsible. So, the lower Court basically accepted the word of a local family doctor over the opinion of the head of the infectious disease and pharmacy committees at a major and reputable institution. This is really great if you are Fox News.  It is really ungreat if you are trying to practice medicine and get people better. So, here Fox News won the first round. Unsurprisingly, the ivermectin had no discernible effect and the studies upon which the medication was recommended were not up to snuff. Mr. Shoemaker died of covid, which was likely preventable had he been vaccinated, but that is a guess. Again, Fox News wins! They had convinced Shoemaker and his care givers that the most important things was ivermectin not vaccination. But, Fox News had lost what I can only guess was a die-hard listener.

The case should have ended there. Courts would not normally here a case about whether to give a drug to someone who is dead. It is considered moot. But, the Hospital, not wanting to repeat this scenario the next time Hannity’s producers find a new treatment for some random disease, decided to press the issue and asked the Court to continue the case.

The Court finally decided that a patient has no “legal right to demand a particular medical treatment against the advice of their treating physicians, to compel a hospital to allow the administration of a medical treatment that contravenes its own hospital policy, or to force a hospital to issue credentials to a physician to administer such a treatment.” Comically, the PA Superior Court cited to Texas, Florida, and other dark red states which had similarly concluded that you cannot force a hospital to deworm you.

We can all blame Fox or America’s crappy education system as it exists for most people, but at some point, I keep hoping that the Courts will stand against this wave of non-science based garbage that is simply not helping people other than Richard Murdoch, Hannity etc. It looks like the Appellate Court did the right thing here. Sadly for Mr. Shoemaker, he was so far down the rabbit hole, that he sacrificed his own life for Fox before real doctors had a chance to save him.

(null)

Here is the Appeal decision:

On a lighter note:

Go Phillies

Go Eagles

Charissa Thompson and the Left Turn Crash

NeuwirthLaw Auto Accidents

So, NFL sideline reporter and commentator was in a bad car crash recently. She happens to also be a spokesperson for Mercedes and was in one of their sedans. As you may see from photos, all her air bags went off following a crash in which an oncoming car turned left across her path and she had the right of way.

In Pennsylvania, the law on this is as follows: § 3322.  Vehicle turning left.

The driver of a vehicle intending to turn left within an intersection or into an alley, private road or driveway shall yield the right-of-way to any vehicle approaching from the opposite direction which is so close as to constitute a hazard.

Left turn cases usually make good personal injury cases. Essentially, when you are driving along minding your own business and an oncoming driver turns across your lane of travel there is going to be a big impact because you had the right of way and no warning that there was about to be a car in your way. So, you are doing about 35mph and just come to a complete stop impaling the other car.

Usually, people break their sternum, break fingers, wrists or have other medical problems directly related to the crash that are rapidly appreciable by a hospital.

These crashes usually occur because the person in oncoming traffic guesses that your lane was clear of traffic but did not make sure of that. So, there was usually a car in the left lane blocking their view of you in the right lane. Guessing it was safe to turn, they cause you to crash into them. Pretty straightforward, right?

Here the law says shall yield.  To lawyers, shall means MUST. Furthermore, a defendant in Charissa Thompson’s case would have to prove that her probably large black Merc was not close enough to pose a danger. The facts plainly disagree with that opinion, so the opinion probably ain’t worth too much right?

In medical malpractice cases, the easiest cases are ones where a bile duct or nerve or ureter or artery was cut and should not have been cut. Basically, the cross in those cases is you should not just blindly cut things, correct? The same is true here. You should not have turned across oncoming traffic until you could see that it was safe to do so, correct?

Occasionally and I mean rarely because it looks stupid, defendants will say that they did check to make sure the roadway was clear and that it was safe to turn. I am working on a case where the turning driver claimed to have had an unobstructed view for 100 yards of the lane of oncoming traffic, but turned across it anyway.  That was an inexperienced driver situation. If you say that you looked and 100 yards was clear and then you turned and it was not clear, either you are fibbing, which I frown upon, or the other car was going 300 miles an hour. It simply is not believable. Nobody who drives regularly will believe the fibbing driver.

In those situations, their lawyer, provided by their insurance company, has likely explained that they can say whatever they want but it will not be believed. Further, the defendant driver will say, I looked left, looked right, looked left, and then proceeded. Every word gets less and less believable when you have a big impact like this.

I am usually working on two or three left turn cases during the year and they are often truly devastating impacts. Sometimes, the insurer will bring up the speed at which my client was traveling, but it is usually hard to determine and the left turning car is so obviously at fault to render any comparative negligence largely irrelevant.

I am currently working on a case involving a left turn resulting in a fatality. There is a grainy surveillance video of the crash in the distance. The insurer may argue that my client was speeding, but the penalty for speeding is a $150 ticket, not death. In personal injury law, where death is the injury, it is very, very difficult for a defendant or their insurer to argue that my client bears full responsibility for a crash where he died. This is even more true where the offending driver was making a left turn. So, more often than not, policy limits should be offered in those sorts of situations by a prudent insurer. We shall see how that one turns out.

Recent Case Results for Neuwirth Law (Oct. 2022)

NeuwirthLaw Case Matters

Neuwirth Law Offices delivers favorable awards for personal injury victims and their survivors in Philadelphia and surrounding Counties.

If you or a loved one have been injured in an accident, contact us today to receive just compensation. 

2022 – $500,000 – Pedestrian hit by truck pelvic fracture with surgery. – Montgomery County.

2022 – $300,000 – Car crash with car-carrier trailer fractured ribs, knee and back pain – Berks County

2022 – $ 42,000 – Car crash wrist bone fracture from airbags no surgery – Bucks County

2022 – $ 15,000 – Motorcycle crash policy limits – Philadelphia County

2022 – $750,000 Single vehicle motorcycle fatality on 76 West Exit. – Philadelphia County.

2022 – $500,000 – Pedestrian hit by truck pelvic fracture with surgery – Montgomery County.

2022 – $300,000 – Car crash with car trailer fractured ribs, knee and back pain – Berks County

2022 – $300,000Novice driver causes crash resulting in cervical fusion surgery. – Bucks County.

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