The "$4 Million Dollar Stairs"

Attorney Daniel Malis of MALIS|LAW, with the assistance of  Attorney Frederick Fairburn of Fairburn & Dyke in Lawrence, announced the culmination last week of five years of litigation involving the collapse of a stairway on a construction project in Hampton, NH which injured a Massachusetts plumber, though a settlement from various defendants totalling $4.1 million.

SERIOUS INJURY ON CONSTRUCTION SITE: The wood framed, 17 stair staircase collapsed after framing contractors, under the instruction of the general contractor, disconnected the stairs from side supports to insert fireproof drywall, but left the stairs in that disconnected fashion for a period of time between 1 day and more than two weeks depending upon which witness was believed.  My client, a plumber, was climbing the staircase when it collapsed.  When the staircase struck the landing below, the small of his back struck the edge of the stairs, crushing one of his vertebrae.  Following the collapse, the general contractor immediately re-erected the stairway; secured all stairways at the sides with extra nailers; and did not disclose the accident to local inspectors or the project engineer during a site visit the following day.

Demonstrative Evidence Showing the Damage to Client's Spine

MY CLIENT’S SPINAL INJURY: My client, a married 35 year old Massachusetts apprentice plumber, suffered a crush injury to his L1 vertebra when a 17 stair wood frame staircase gave way.  He was med-evacuated from a NH hospital to Beth Israel Hospital where he underwent the first of three surgeries over 5 years to stabilize his back, including, by the time of the final surgery, a four level lumbar fusion, with fixating steel rods extending over 7 vertebrae, and with additional surgery likely in the future.   While his motor functions were preserved, the employee remained in chronic, debilitating pain, with narcotic pain relief as his only medical recourse, and, according to Plaintiff’s vocational expert, was permanently totally disabled.  Plaintiff’s vocational expert and economist calculated the present value of his earnings loss over his career at $1.7 million which, with his $400,000 in medical expenses to date and continuing, presented special damages in excess of $2.1 million.

FINDING THE BEST FORUM FOR MY CLIENT: Rather than bringing suit in New Hampshire, we brought suit under diversity jurisdiction in federal court in Massachusetts against the engineer, architect and general contractor.  The New Hampshire-based design professionals claimed that Massachusetts had no jurisdiction over the case, and that the lawsuit belonged in New Hampshire, with a local judge to decide my client’s fate.  Despite the presentation of carefully worded affidavits from the architect and engineer which distanced the ‘design team’ from Massachusetts, our own investigation showed that both professionals were licensed in Massachusetts and had substantial contacts with this state, and the court denied their motion.

BUILDING A STRONG CASE: Vigorous discovery disclosed the identity of a Massachusetts –based framing supplier who had contracted to perform the framing, along with two NH-based framing subcontractors hired by that company to do the actual work.  These companies were joined as third party defendants.  The general contractor blamed the framers for the collapse; the framers claimed that they destabilized the staircase at the general contractor’s instruction.

THE CONTRACTORS’ NEGLIGENCE: Depositions of witnesses and other site contractors revealed that the staircases were not built according to plan or specification.  Testimony and post-accident photographs taken by a separate plumbing contractor who was first on the scene revealed that the subcontracting framers had sloppily  ‘toenailed’ the bottom of the stringers at an angle into plywood on the platform, instead of using a cleat or nailer which would have allowed the stringers to be nailed straight through the plywood platform securely into the carrying  beam. This substandard bottom connection of the staircase,  allowed the stair bottom to slip and kick out over time once the general contractor ordered the staircase to be disconnected for drywall installation, and was a major contributing cause of the staircase collapse..  The framing contractors’ departure from site plans and use of substandard attachment methods were not detected by the general contractor; the framing supplier, who contractually agreed to supervise the framing work; or the architect and engineer, who had contracted to inspect the site.

During a day-long deposition, the framing contractor who disconnected the stairs at their sides for drywall installation finally admitted that he knew that he had rendered the staircases unstable.  He admitted that while he would normally block off stairs left in this precarious shape, he could not explain why he did not do so on the stairs at this site.  These admissions established clear liability on the framing subcontractors, as well as confirmed the general contractor’s negligence for ordering the disconnection and failing to observe the improper staircase installation.     .

THE DEFENDANTS TRY TO EVADE LIABILITY: While the Plaintiff had established uncontroverted evidence of a drastic injury, the extent of his disability was disputed by the Defendants with a vocational assessment which, despite the Plaintiff’s dependence on narcotic painkillers, alleged that he still had the ability to consistently perform light duty work.  This was rebutted not only by the Plaintiff’s sympathetic appearance and supporting opinions from two orthopedic surgeons, as well as a vocational expert, but also by the graphic evidence shown above demonstrating that his seven level spinal fusion was unstable, with the securing screws shifting in his vertebral bodies and eroding the bone in which they were secured.

Following discovery, the parties attended a day long mediation, which was initially sought by the Defendants to settle the claim.  However, negotiations were reduced to a full day of finger pointing among the Defendants, with no real offers made.   We took advantage of this apparent disaster by sending demand letters under c.93A to the insurers for the general contractor and the framing supplier, based upon their complete failure to promptly evaluate the Plaintiffs’ claim and accurately address their exposures.

Eventually, on the date that responses to Plaintiff’s demand letters were due, the dispute (which at end turned out to be an argument over legal fees between the Defendants) was tabled between the insurers, and the general contractor and framing supplier tendered their full policy limits of $2 million to resolve both parties’ liability.  This opened a window to settle with the erring framing joint venture for $1.6 million, leaving the so-called ‘design professionals’, the architect and engineer, who had yet to tender an offer.

THE ARCHITECT AND ENGINEER’S NEGLIGENCE: The so-called ‘design team’ initially declined to settle, and presented a vigorous defense, despite admissions from the architect that the project engineer should have detected the improper staircase installation.  Counsel for the designers sought summary judgment, alleging that the entire cause of collapse was the building contractors’ negligence, and that the architect and engineer played no role in the staircase’s collapse.  Plaintiff presented countering affidavits from a construction expert and design experts initially presented by the settling Defendants and then retained by Plaintiff.  Summary Judgment was denied, and the case scheduled for trial in early 2010.

Plaintiffs further sought an order from the Court pending trial seeking to prevent offset of the settlement against any jury award, based upon New Hampshire’s ‘hybrid’ contribution statute, which awards damages based upon a contributing defendant’s percentage of negligent contribution to an accident (so-called ‘pure contribution’) but does not credit the settlement contributions of other settling parties.   While this motion was pending, the parties attended a half day mediation session with the previous mediator, Attorney Mulvey, and, over the strenuous objections of the architect and engineer, their insurers settled the remaining claims for $500,000, bringing the my client and his wife’s total recovery to just over $4.1 million.

They shredded his arm. Then we shredded their defenses.

Our client was a 51 year old worker at a paper plant who assisted a fellow worker in clearing an industrial shredder which was repeatedly jamming at his workplace.  After clearing pounds of paper out of the teeth of the device, he turned the machine on and off quickly to make sure that it was clear, and then attempted to screw its cover back in place.  He had no idea that the blades continued to spin after being turned off.

When the cover slipped, his arm was grabbed by the spinning blades and was shredded up to his elbow.

To his co-workers, who saw him running through the plant screaming holding his flayed arm,  it looked like he was fighting with a strange bird.

He was flown to the hospital, where doctors saved his life, but could not save his arm.

MALIS|LAW took the lead in the litigation, working with a team of lawyers. We repeated our partnership with Lawrence attorney Frederick Fairburn, this time joined by local attorney Robert Armano, a professor at the Massachusetts School of Law, to whom our client originally came.

We conducted investigation which revealed the poor design of the hatch of this industrial shredder, which brought workers’ arms dangerously close to sharp cutting blades without adequate protections or interlocks to prevent the machine from functioning with the hatch open.  Discovery disclosed that the manufacturer had literally stolen the 30 year old design of a competitor without incorporating the security features that the competitor added to later models, such as an electronic interlock connected to the door; magnets designed to hold the door shut while the shredder blades were rotating; and a hinged wide clamshell housing to prevent workers’ arms or bodies from being caught in pinch points.  The critical “smoking gun”, though, was in the manufacturer’s own marketing on the internet — the company’s site boasted that the machine was equipped with “important safety features” such as a “door interlock”.

Depositions of the manufacturer and installer, which specialized in equipment for paper plants, disclosed further problems.  The installer knew that the paper plant did not have sophisticated workers operating this machine, which was essentially intended to get rid of trash and recycle it.  Despite that, the installer provided the machine without adequate warnings or instructions.  Furthermore, the installer did a poor job of incorporating the shredder into the manufacturer’s existing air conveyor system, which was too undersized to adequately pull paper out of the machine after it had been shredded.  Worse, the installers altered the system by blocking part of the inlet of the shredder with a solid metal plate, cutting airflow through the shredder which, in turn, caused the shredder to jam.  Earlier emails from the installer had recommended use of a perforated plate, which would have restricted feeding of the machine without cutting airflow.

The shredder manufacturer had been sued many times, and in many courts, after injured parties lost eyes and limbs because of their defective machine.  They had never paid a substantial settlement.  As with the other cases, they blamed the installers and our client for the injury.  We knew better.  We sued both the installers and the manufacturer, claiming that all were collectively responsible for the product’s poor design and installation.

We were quickly dragged into a hailstorm of cross complaints and procedural motions, including a separate lawsuit between the plant where our client worked and the installer, where the installer claimed that the plant owners had offered to “lose” embarassing documents if they dropped their claim; indemnity claims between the manufacturer, installer, and the paper plant; and varying stories about how the accident occurred, some of which turned out to be outright lies by employees trying to protect their jobs.  The defendants’ ultimate response was that an uneducated paper plant maintenance worker who did not speak English should have known better than to help a co-worker fix a machine.  We countered with documentation showing that the manufacturer and installer had misrepresented critical facts about the product in their marketing, exposing them to multiple damages under the Massachusetts Consumer Protection Act, G.L. c. 93A.

We hired a team of experts, including several mechanical engineers, hand surgeons, and vocational and economic experts, to prove that this new American citizen who, at the time of his accident, worked two jobs to support his children, had lost his arm, his livelihood, and his quality of life because of the poor design and breaches of safety warranties of the manufacturer, seller, and installer of the shredder.

At the end of the day our team of lawyers prevailed at a mediation in which the defendants offered $1.7 million — the largest amount paid for a lost arm in the Northeast – to settle his case.

The best part, other than seeing our client well compensated for a terrible injury, was “shredding” the manufacturer’s usually successful defenses.  Although the shredder manufacturer had escaped judgments for years in other lawsuits, this time they paid several hundred thousand dollars to avoid the risk of a trial.

Why telling your lawyer the truth is a very good idea.

Here’s a client guide I recently posted on Avvo.com concerning the importance of making a full disclosure to your lawyer:

Often, clients feel that they have to present the facts to their lawyer in the best possible light, or the attorney might not want to represent them. Your best bet is to give your lawyer ALL the facts. Here’s why:
1.  TRUST.

The attorney-client relationship is primarily based on trust. It goes BOTH ways. If you are concerned about your lawyer’s loyalty or motivation, you probably shouldn’t hire him or her. If you’d like to see your attorney become truly unmotivated, lie to him or withhold evidence and watch what happens when the truth comes out …
2.  TRUTH = SUCCESS.

Most litigation is not won or lost based upon the merits of the claim; it’s won or lost based upon whom the jury believes. Document trails, witness statements, photographic evidence, scientific evidence, are all support structures for the ultimate issue — who’s lying, and who’s not. If you initiate your relationship without disclosing all you know or strategically withholding evidence, the lawyer will build the case on that structure. If it’s an inaccurate or untruthful “foundation”, the case becomes a house of cards, and you’re sure to lose.
3.  YOU’LL HOGTIE YOUR LAWYER WITH A LIE OR INCORRECT FACTS.

Even the most skilled advocate is only as good as the case his client gives him. If a lawyer knows about a problem early in the case, a good lawyer will know how to deal with it or recast evidence or strategy to minimize the “blemish”. If he doesn’t know the problem before it shows up during the case, that little “blemish” will overwhelm the rest of his evidence. Trust me, I’ve seen it happen, and often on the most insignificant of facts (like Furman lying about racial bias, which had nothing to do with the OJ Simpson investigation).
4.  JURIES LOVE FULL DISCLOSURE.

Abraham Lincoln once said that if he were to be accepted as President, he would have to be accepted “warts and all.” It’s not coincidental that while he was certainly controversial as President, he’s gone down in history as one of the most beloved. Juries are no different; they want to see the entire person, not just what’s been carefully sculpted and scripted for trial. A few “warts” tend to humanize someone seeking justice. A perfectly groomed candidate becomes suspect.
5.  YOU’LL FEEL BETTER.

Do you remember when you were kid and threw out a fib, and spent the rest of the day worrying about whether you’d be caught? A courtroom’s far worse than your parent’s living room. The constant fear of the strategically omitted fact or outright lie’s disclosure will affect your testimony and your entire case. It’s better to have it disclosed early, when your skilled lawyer will know how to deal with it (See Section 3, above).
6. YOUR LIE WILL BE DISCOVERED — THAT’S WHY THEY CALL IT “DISCOVERY”.

Civil and criminal cases require that lawyers exchange information about their cases in a process called “discovery”. In my field, civil practice, discovery is very extensive, with subpoenas, written questions, document requests, and lengthy depositions, all designed to ensure that there are no surprises at trial. Everyone leaves some kind of paper trail, especially someone who’s been untruthful. Don’t think you can hide a secret in civil litigation; they inevitably come out, whether it’s through finding a contradictory business record; a subpoena of your email records or Facebook postings (and don’t think THAT doesn’t happen!), or just your squirming in the witness chair when asked just the right question.

7. A COVER-UP CAN BE MORE POWERFUL THAN A TRUTHFUL ADMISSION — REMEMBER WATERGATE?

Although I wasn’t his biggest fan, Richard Nixon was an innovative and creative president. His domestic agenda was actually quite literal; the Environmental Protection Agency, Planned Parenthood, and many extensions of Lyndon Johnson’s “New Society” were actually enacted on Nixon’s watch. He was re-elected in a landslide. What brought him down? It wasn’t the “third rate” burglary; it was the COVER-UP. A lie becomes magnified by the series of lies a witness or party has to tell to keep the lie secret. In that sense, it’s far more powerful against you than early disclosure of the truth should be.
8.  A DAMAGING TRUTH MAY ACTUALLY INCREASE YOUR SETTLEMENT.

One of the greatest problems with our justice system is the delay involved in getting a case to court. Skilled defense lawyers can tell early on whether a case is legitimate, and they pay people who present honestly and truthfully faster and more than people who don’t. An example: I had a client who had a drug problem after a serious injury. If we’d tried to hide it, the defense would have pounded his character at trial. Instead, we freely admitted the problem; described his detoxification and the “sobering up” process in intimate detail in his deposition; and brought forth members of his family to describe how difficult it was for him to quit and how hard he’d worked to stay straight. The result; the Defendants ended up settling the case for over $4 million, fearful that the jury would blame THEM for causing the addiction. And the case settled far faster.

Failure to post warning signs yields $575,000 for nursing home employee

In a recent settlement, MALIS|LAW obtained $575,000 for a client who had seriously injured her low back after falling on a wet floor in a nursing home, after receiving a $262,500 settlement from the home for workers’ compensation benefits.

Our client, a 41 year old nurse’s aid, was in the process of helping a patient when she entered a bathroom which connected the patient’s room with another nursing home patient. The floor had been left wet by a cleaner working for a contractor hired by the home to do its housekeeping. She slipped and fell, badly injuring her lumbar spine.

MALIS|LAW was able to demonstrate that the client was permanently totally disabled from her injury, and that the accident happened because a cleaner failed to follow the cleaning company’s protocols and post warning signs in every room where wet-mopping was conducted. In discovery, we obtained contradictory testimony from the cleaning company’s manager (who insisted that the signs were required, and contradicted his own testimony early in the deposition and admitted that they hadn’t been posted); the cleaning company supervisor (who stated the signs weren’t present in the bathroom, but contended that they were placed in front of the hallway doors, which was sufficient under the company’s policy); and the actual cleaner (who stated that signs were necessary, and that a warning sign had been placed in the bathroom prior to our client’s fall). These contradictions were sufficient to outweigh a comment by our client in deposition that she “didn’t notice” whether there were signs in the hallway adjoining the rooms, but not the bathroom, prior to the accident.

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Another story ‘ripped from the headlines;’ this one about manufacturers paying kickbacks so that nursing homes will prescribe their medications.

Johnson & Johnson Accused of Drug Kickbacks
By NATASHA SINGER
Published: January 15, 2010
Johnson & Johnson paid kickbacks to the nation’s largest nursing home pharmacy to increase the number of elderly patients taking the antipsychotic Risperdal and several other medications, according to a complaint filed Friday by the office of the United States attorney in Boston.

J.B. Reed/Bloomberg News
Risperdal is approved to treat schizophrenia, but not specifically approved to treat problems in elderly people with dementia.
The payments violated the federal anti-kickback statute and led Omnicare, a pharmacy company specializing in dispensing drugs to nursing home residents, to submit false claims to Medicaid, the complaint charged.
The government’s civil complaint joins a whistle-blower suit against Johnson & Johnson brought by two former employees of Omnicare, which has headquarters in Covington, Ky.
Johnson & Johnson said Friday it was reviewing the complaint and intended to address the government’s lawsuit in court. The complaint charges that Johnson & Johnson, based in New Brunswick, N.J., and two of its subsidiaries, Ortho-McNeil-Janssen Pharmaceuticals and Johnson & Johnson Health Care Systems, paid tens of millions of dollars to induce Omnicare to buy and recommend Risperdal for elderly patients as well as the drug maker’s prescription pain relievers Duragesic and Ultram, and the antibiotic Levaquin.
The complaint charges that Omnicare’s pharmacists engaged in intensive efforts to persuade physicians to prescribe the drugs from 1999 to 2004, a period in which the pharmacy’s annual purchase of Johnson & Johnson medications nearly tripled to more than $280 million, from about $100 million. During the same period, the pharmacy’s annual purchase of Risperdal rose to more than $100 million, according to the complaint filed in United States District Court in Massachusetts.
“Kickbacks in the nursing home pharmacy context are particularly nefarious,” Carmen M. Ortiz, the United States attorney for Massachusetts, said in a statement Friday. In return for Omnicare’s efforts, the drug maker allegedly paid the pharmacy company kickbacks in the form of rebates based on the market share of some Johnson & Johnson drugs, sponsorship of Omnicare meetings, grants and payments for Omnicare data, like the prescribing habits of doctors, of the kind that Omnicare had previously provided the drug maker for free, the complaint said.
“When it comes to the sometimes questionable practice of promoting brand-name drugs to doctors and their patients, this case represents the lowest of the low,” Senator Herb Kohl, the Wisconsin Democrat who is the chairman of the Senate Special Committee on Aging, said in an e-mail message sent Friday in response to a reporter’s question. “Nursing home residents comprise a vulnerable population that should be able to trust that their physician’s advice is based on medical expertise, not financial self-interest.”
Although the events described in the complaint took place several years ago, Mr. Kohl wrote that the aging committee was continuing to investigate the issue of the overuse of antipsychotic drugs in nursing homes.
Johnson & Johnson issued an e-mail statement in response to a reporter’s question.
“We believe airing the facts will confirm that our conduct, including rebating programs like those the government now challenges, was lawful and appropriate,” the statement said. “We look forward to the opportunity to present our evidence in court.”
Omnicare, with a market capitalization of about $3.1 billion, serves more than 1.4 million residents of nursing homes, assisted living and other health care facilities in 47 states and Canada, according to the company’s Web site.
Last November, Omnicare paid $98 million to settle civil charges by the government that it had violated the False Claims Act for engaging in kickback schemes with Johnson & Johnson and a smaller drug maker.
The settlement agreement did not include any finding of wrongdoing or any admission of liability by Omnicare, the company said in a statement issued in November. Omnicare denies the contentions of the federal complaint settled last fall and denies any liability related to those contentions, the statement said.
The government has regulations in place to protect nursing home residents from medication mismanagement, like being sedated with psychiatric drugs for the purposes of discipline or convenience. The Department of Health and Human Services requires nursing homes to arrange for an outside consulting pharmacist to review a patient’s medication regimen at least once a month.
These outside pharmacists have a duty to report any irregularities to the attending physician; the pharmacists also have the ability to recommend that a physician remove, change or add medications to a patient’s drug regimen, the complaint said.
But the government’s complaint in the Johnson & Johnson case raises the question of whether some companies have used the consultant pharmacists — the very people entrusted by the government with safeguarding the integrity of nursing home drug prescriptions — for corporate gain.
In this case, according to the complaint, Omnicare’s consultant pharmacists worked to increase Risperdal’s market share.
“If true, these allegations represent a cynical manipulation of the laws intended to protect nursing home residents, as well as yet another rip-off of the Medicaid program,” Senator Charles E. Grassley, the Iowa Republican who has investigated the corporate conduct of certain drug makers, said in a statement Friday in response to a reporter’s question. “If consultant pharmacists aren’t independent, both the patient and the taxpayer lose.”
In one company document among the court exhibits, for example, Omnicare said that its efforts generated a record market share high of 55.5 percent for Risperdal in the first quarter of 2000.
“This market share represents Omnicare’s ability in persuading physicians to write Risperdal in the areas of behavioral disturbances associated with dementia,” the Omnicare document said.
But Risperdal, which is approved by the Food and Drug Administration to treat schizophrenia and bipolar disorder, is not specifically approved to treat behavioral problems in elderly people with dementia. In fact, in 2005 the F.D.A. required that the labels of certain antipsychotic drugs, including Risperdal, carry a black box label warning that elderly people with dementia-related psychosis treated with such drugs were at an increased risk of death compared with those taking a placebo.
In the e-mail message to a reporter, Mr. Kohl noted that the government’s complaint was not the first charge against a drug company for improperly marketing antipsychotic drugs to aging populations.
Last January, the drug maker Eli Lilly pleaded guilty to a misdemeanor and paid $1.415 billion to settle criminal and civil charges that the drug maker had marketed its antipsychotic Zyprexa for the treatment of elderly people with dementia.
The exhibits attached to the complaint depict the efforts of Omnicare and Johnson & Johnson to increase market share for Risperdal against competing antipsychotics like Zyprexa and Seroquel from AstraZeneca.
In an Omnicare letter to Johnson & Johnson in 2001, an executive wrote that the pharmacy planned to spend about $173 million on Johnson & Johnson products.
The executive wrote in capital letters, “We are selling more high-priced drugs (read Risperdal here) for the pharmaceutical industry!!”

Just to show that I understand the ‘other side’ of what I do, here’s a very compelling story from the New York Times about a doctor in Massachusetts who was sued because of the death of a patient.  This story underlines why people shouldn’t assume because an adverse result occurs that the doctor must have malpracticed, and explains why I’m very, very selective when it comes to medical malpractice claims.

A Patient Dies, and Then the Anguish of Litigation

A Typical Insurer's Private Investigator (no, I'm just joking . . . )

A LETTER FROM THE INTERNET: I’m often asked about the role of ‘private investigators’ in personal injury claims.  In response, here’s a letter that I responded to on Avvo.com, a web-based attorney information service that I participate in, that might interest readers:

“hello,

i was involve in a car accident. i know that sometimes insurance companies hire private investigator if they think that there is a fraud or the case amount is high. i was wondering what is high amount?

thanks
emmy”

SETTING THE RECORD STRAIGHT ON INVESTIGATORS:

Here’s my answer to Emmy’s letter:

Dear Emmy,

Sorry for your accident. Of course, my naturally suspicious mind is driven to this question: why are you worrying about an investigator? In the words of most defense attorneys and insurance adjusters: ‘Do you have something to hide’?

WHAT A PRIVATE INVESTIGATOR DOES: To answer your question more seriously: having worked as both a defense lawyer, representing insurers, and as a plaintiff lawyer representing injured persons, I can tell you with some measure of certainty that there is no ‘high amount’ that triggers an investigation. The insurance adjusters will deploy investigators when a claim ‘looks’ suspect (for an extreme and somewhat exaggerated example, a person with a sprained pinkie saying that they’re disabled for life will likely be subject to surveillance if there’s an ongoing claim). The decision to send out someone to follow a claimant and see how they’re spending their time in real life is based on subjective criteria, and, in my experience, is often left to the adjuster’s discretion.

DOES “SIZE MATTER”: Of course, if a claimant is seeking minimal compensation, an insurer may decide that it’s not cost efficient to spend $2,000 – $3,000 to deploy an investigator, and might decide to settle the claim at a low level rather than incur that cost on top of the settlement cost. However, increasingly insurers seek to ‘send a message’ to claimants by aggressively investigating what they feel are suspect claims.

These ‘investigators’ are an annoyance. They’re hired to develop evidence, whether by observation or often by photograph or video, that a person isn’t as badly injured as they claim. In my practice, from both sides of the aisle, I’ve rarely seen an investigator hired by an insurer who was an accurate, independent, direct and honest reporter of what they observe.

THE INSIDER’S GUIDE TO INVESTIGATORS: More often, in my experience, these ‘investigators’ (really, paid spies) recognize who’s paying the bill, and rather than acting as independent witnesses, they turn themselves into advocacy witnesses to try to help the insurance companies or defense firms who pay for their services. These ‘investigators’ (sometimes retired adjusters; often, retired or disabled former law enforcement or private security officers) often hide or selectively record evidence of a claimant’s activity in an effort to try to ‘amplify’ the actions of an allegedly injured person. In other words, when the person looks healthy, they start the video recorder; when they look injured, they turn the recorder off. Not only that, but insurers and defendants, under the rubric of ‘work product’, try to hide the existence of such ‘spies’ and their videos until the eve of trial (a process I’m very critical of, and which I believe is based on old and discredited practice).

MALIS|LAW PUTS THEIR INVESTIGATORS TO WORK — FOR YOU!: I’ve developed several pre-trial techniques for ‘smoking the investigator out’, and if your attorney is savvy, he or she will know what to do to make sure that there are no rude surprises as you approach trial or settlement of your case.  The good news is that often these investigators can be discredited by good, aggressive cross-examination in discovery or at trial; their bias exposed; and their opinions weakened. Even better, their ‘spying’ sometimes proves disability, rather than disprove it.

In many of my larger cases, I’ve been able to take this investigative evidence and use it to coerce the insurer to pay more for the claim, by showing that the ‘paid spy’ actually learned that my client was more severely injured than even the insurer thought.  MALIS|LAW bloggers can see an example of this in practice in my December, 2009 post about a construction accident case that we settled for $900,000 in total benefits that we already published in this blog, “The Case of the Deleted Defect” .

HONESTY IS THE BEST POLICY; YOU HAVE NOTHING TO HIDE: Despite this pernicious practice, although in my experience these investigators may occasionally disclose someone working when they claim to be disabled, it’s never happened to me or my clients. As I advise clients and others often, an injured person’s best weapon in personal injury litigation is their honesty.  If you can perform an activity, admit it.  If you can’t, tell your lawyer what you can’t do and why.  Ultimately, frank and honest disclosure of the extent of your injury is always to your benefit, and will generally help your lawyer obtain a fair and full settlement for you.

Happy New Year, to clients, attorneys, and readers all!

RESPONSIBILITY IS A SOCIAL ISSUE: As I sit here reflecting on the lessons of the past and hopes for the future (a traditional New Year’s meal if there ever was one) I wanted to talk to you a bit about a concept near and dear to my heart — personal and social responsibility — the essential social contract that our system of civil responsibility is founded upon.

I am no paragon of virtue, but I recognize that I have a broader duty than to simply make money for my clients. I hope that my upcoming post on the ‘maligned medico’ makes it clear that I, like many of my brother and sister attorneys, see the other side of what I do (watch for that next week!). Of course there is more than one side to any story, or any case. And, of course, no case is perfect, which means, often, that there will always be defenses to any claim asserted by any party I sue.

HAVE WE LOST SIGHT OF ‘TRUTH’ IN OUR SYSTEM? — If there’s any theme that keeps surfacing in some of my major cases, though, it’s that of insurers, defendants and, sometimes, attorneys on the other side trying to seek any possible excuse for deflecting blame, instead of stepping up, assuming ownership of what they’ve done wrong, and trying, through the best means possible, to make things right. Over and over again, I’ve seen sued parties fail to produce, ‘lose’ or destroy evidence which would demonstrate their negligence or wrongdoing; pointed fingers in any other direction than their own; and, at times, negligent and liable parties even denying their own confessions of fault at some point after the accident.

At the same time, I must be as honest as I can and admit that I sometimes encounter this same kind of behavior from clients, especially the occasional ‘player’. As my article on ‘prior pain’ indicates, I preach to all of my clients that the truth will ‘set them free’, and that fibbing or distortion, in the face of dedicated and careful investigation, will always harm them. Unfortunately, that advice isn’t always followed. Invariably, my prediction of the dangers of a client discrediting themselves by distortion generally come true. I feel little comfort in knowing that when it happens, ‘I told them so.’

I tell attorneys on the other side of my cases that ‘we’re all pilgrims in search of the truth’, and despite the hokiness (or pompousness) of that claim, I truly believe it. I govern my behavior with other attorneys, defendants and insurers on that principal, with the knowledge that my clients, both in the short and longer terms, benefit from that policy and from my reputation, which I hope is a strong one.

THE SOCIAL PRESSURE TO ‘SPIN‘:  While it would be easy to blame this kind of ‘spin’ on defense attorneys or insurers (and believe me, I often do) I think that there’s another dynamic in play, that’s more social and socialized. Whether our political system, our media, or perhaps my profession have made this happen, I can’t say, but truth telling has become less a social imperative and more of a strategic weapon to be deployed (or withheld) at a party’s option.  Our system is designed to frustrate lies.  Sometimes, whether you’re on the inside (like myself) or on the outside, you have to ask; is it doing a good job?  Or has winning become so paramount in our society that we’ve made the truth forfeit to our chance of winning?

A HOPE IN THE COMING YEAR: From today’s public perspective on attorneys, this may sound ironic coming from a lawyer, but in the new year, I hope to see fewer insurers preaching ‘responsibility’ and more practicing it; fewer defendants ducking responsibility and more accepting it; and, overall, more seeking of the truth and less attempts at selective, self-advantaged distortion of it. Short term, some individual parties, whether claimants or tortfeasors, will be unfairly disadvantaged (although I highly doubt it!)   In the long term, though, I remain convinced that the wrongfully injured, and justice, will benefit most.

THE SETTLEMENT: MALIS|LAW, hired as trial approached, working with Attorney Dean Brunel,  has obtained a $285,000 settlement from a mental hospital on behalf of a cleaning contractor with a significant knee injury.  The cleaning contractor’s knee was significantly injured when he was assaulted by a psychotic patient who was allowed to walk freely in the corridors of a mental hospital while being admitted.

THE HOSPITAL’S NEGLIGENCE: The patient was being transferred from the open unit of the institution to the ‘closed’ unit on an involuntary admission, with a known history of violence, especially towards people of color.  The institution had few formalized guidelines for such transfers, developing them after the patient attempted to strangle my client as he cleaned the hallway.  As a result of the assault, my client suffered a stretched and torn ACL (anterior cruciate ligament) of his left knee, which an orthopedic surgeon addressed by reattaching and treating the fibers with heat.

CREATING A WINNER: Attorney Brunel approached me to try the case about one month before trial.  The client had not treated with a physician for several years, although he had complaints of knee pain.  Given the imminent trial, we mounted a ‘full court press’ to make the case trial ready.  I approached his original surgeon, who ordered a newMRI of his knee and found that the surgical repair, which had been performed with an experimental technique that has since been abandoned, had again failed, requiring additional procedures.  Within that month, I also developed expert psychiatric testimony of the hospital’s failure to follow proper procedures for communication of information about a committed patient between outpatient and inpatient wings of the hospital, which accounted for the lack of proper security and the patient’s being allowed in the vicinity of other persons at the hospital.  Literally on the eve of trial, I was contacted by the institution’s insurer, which agreed to settle.  The settlement was paid by the insurers for the institution; the admitting psychiatrist, who was sued for negligence; and the facility’s security company for negligent security.

A PAIN IN THE BACK: I’m not a doctor — I’m an attorney who represents injury victims.  However, for many, many years, first as an attorney for an insurance company, now for victims of negligence, I’ve dealt with the anatomy of the back, and particularly with an ongoing problem — the bulging or herniated disk (what some people call a ‘pinched nerve’ in their back.)   Here’s a working explanation of what happens:

A CLOSER LOOK: Take a look at this anatomic diagram, which shows the structures of the spine and spinal column from the side, or profile view, as well as from a cut-through view from the top of the spine, looking down.

Here's a view of a spine with a herniated disk shown from the side and in a cutaway view for illustration.

UNDERSTANDING THE ANATOMY: The spine is made up of bony segments, or vertebrae, which house and shield the spinal column, a bundle of nerves which conducts sensation and motor signals to various parts of the body.  This particular section is the lumbar spine, or the low back (the ‘bottom’ portion of the spine).  Everyone (with certain very limited exceptions) has the same number of vertebrae, occurring in the same order.  Each vertebral is numbered so that doctors can keep track.

THE DISK’S ROLE: The disks are jelly-filled spongy shock absorbers between the vertebrae that cushion the spinal column as you move and are jarred.  (In the diagram, they’re the greyish, rounded objects between the vertebrae).  Among other purposes, they prevent the spine from crushing the ‘nerve roots’, which are the branches that come off the spinal column, out through the spine openings, and radiate out to various parts of the body.

HOW A DISK HERNIATES, OR ‘BULGES’: When a person suffers an impact or trauma, they can wrench or compress their back, causing the disk  (think shock absorber) to ‘squish’ outward or inward.  Since the outer surface of the disk is fibrous and tough, the disk can generally handle that and spring back.  However, sometimes the twisting or compression is so forceful that the disk’s outer fibers tear, and the inner ‘jelly’ escapes outward.  The disk will appear out of round and deformed, or ‘herniated’.  Depending on which physician you talk to, the terms ‘protruding disk’ and ‘herniating disk’ may be used alternately.

GETTING THE WHOLE PICTURE: The diagram shows a disc herniation at the space below the L5 vertebra.  You can see, in the right hand drawing, that the disk is protruding, or bulging outward.  In the cutaway view, (the middle picture on the right side) you can see that the disk has broken out of its round shape and is pushing forward.  Since the spine is closely ‘engineered’, there’s not a lot of room for this bulge, so that when the disk pushes out of its normal shape, or ‘herniates’, it can press on the nerve roots.  The results:  a distorted signal is sent back to the brain, resulting in the body experiencing pain, numbness, tingling or weakness in the area that the nerve root ‘feeds’ signals to.  (In the case of the L5 herniation shown here, the person experiencing the herniation would also tend to feel pain radiating down the back of their leg.  The side that experiences the herniation will likely experience the pain (a right sided herniation could produce pain or symptoms in the right leg; a left sided, the left leg).  With a lumbar herniation, this experience is often called ‘sciatica’, since the nerve that radiates out from this area is called the sciatic nerve.

This is an overly simplified explanation; there’s lots more that goes into diagnosing, assessing and treating spinal injury. The body’s natural degeneration over time, or spinal abnormalities which you’re born with but which don’t surface until you’re older, can also cause this phenomenon, for example, and many people walk around their whole lives with protruding disks that, because of their own particular anatomy, don’t trouble them at all.   But it’s a useful one, and I hope that it helps your understanding of what’s involved in a disk herniation, and how it can affect you.