Presenting a live 90-minute webinar with interactive Q&A Psychological Injuries in Personal Injury Claims: Navigating Litigation Complexities Assessing Value of Claim, Negotiating Settlements and Leveraging Expert Witnesses TUESDAY, FEBRUARY 5, 2019 1pm Eastern | 12pm Central | 11am Mountain | 10am Pacific Today’s faculty features: Christopher Keane, Founder, Keane Law Firm , San Francisco Nicole D. Milos, Partner, Cremer Spina Shaughnessy Jansen + Siegert , Chicago The audio portion of the conference may be accessed via the telephone or by using your computer's speakers. Please refer to the instructions emailed to registrants for additional information. If you have any questions, please contact Customer Service at 1-800-926-7926 ext. 1 .
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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. 6
» 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. 7
• 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. 8
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Facts: Husband and Wife injured while trying to evacuate their 3 rd 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 10
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 11
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 12
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. 13
• 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 14
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 15
• 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 16
• 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 18
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