Psychological Injuries in Personal Injury

Claims: Navigating Litigation ComplexitiesAssessing 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 Defendant10

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

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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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Thank You!

Nicole D. Milos, PartnerCremer, 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 g e s ca lculat ions for

psycholog ica l injuries

Chr istopher Ke a n e

C hi ld a b u s e lawyer

w w w.kean elaw.c om

W h y the focus o n psycholog ica l

d a m a g e s ?

1) What 's the go a l?

Correct the injustice.

Money is the symbol.

Peo p l e h o l d i n g onto money, only wa nt to release it if they

have to....easier to justify p ay i n g b a s e d o n past

behavior.21

G o to war with the a r m y you have... not the

o n e you want.

If you have phys ica l d a m a g e s , roll wi th it b e c a u s e that is the

l a n g u a g e m o n e y holders understand.

B u t if not, a n d you have a n injust ice to correct, g o to war

with the a r my you have... psychologica l d a m a g e s .

There is n o inherent value in phys ica l injury versus psychologica l injury.

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If it's serious, people will g e t it. Ev e n a d o g

k n o w s the difference b e t we e n g e t i n g b u m p e d into a n d

g e t i n g kicked.

C hi ld Abuse.

Sexual harassment .

Psy c h d a m a g e s in deat h 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 p syc h injuries into the l a n g u a g e

understood by m o n ey h o l d e rs

D e m o n s t r a t e h o w psychologica l d a m a g e travels- g u e s s what, it travels o n real anatomy...get the brain out,

m a k e it real.

Adverse C h i l d h o o d Exper iences (ACE) l inked to

phys ica l health problems.

E m o t i on a l injury d u e to phys ica l injury: scarring.

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Are you h e l p i n g t h e m 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 g r o u p of c it izens w h o c a n correct this injustice. N o o n e else wo ul d

u n d e rsta n d the invisible injury unless they hear b o u t

the injustice....

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M O S T IMPORTANTLY: T H E R E A L I T Y O F

L I A B I L I T Y W I L L M A K E P S Y C H D A M A G E S 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 play27

Is the survivor m a k i n g the cho ice 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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B e s t pract ices for va lus ing cases for

set l e m e n t

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N o different t h a n a n y other case.

Cl ient driven attorneys

vs.

Mal ignant narcissists

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Fo c u s g r o u p or m o c k jury is the best practice.

If you are correct ing a n injustice, m o n e y s ho u l d never

b e the sole true north....

T he proper Plaintiff perspect ive is as C o a c h

Wo o d e n said it..."players with f i g ht never lose a ga m e , they

just r u n out of time."

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R i s k m a n a g e m e n t

W h a t do es the Plaintiff w a n t to risk?

How much could the Defense lose?

Chouporiancase: 168m

Carlson case: 20m

Sanders case: 11.5m

Gilbert case: 21 m

Alford case: 95m

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