eric m. belk. i. a home opener is always exciting, no matter if it’s at home or on the road –...

A BILLY GOAT IS THE DEVIL’S CREATION

(TRYING A SMALL CASE COST EFFECTIVELY)

Eric M. Belk

I. A Home Opener Is Always Exciting, No Matter If It’s At Home Or On The Road – Yogi Berra

Knowing Your Venue, Judge and Local Rules

Change the Venue in Counties of Less Than 75,000. State ex rel. Audrain Healthcare, Inc. v. Sutherland, 233 S.W.3d 217 (Mo. Banc 2007)


Local Counsel

Examples: Greene County - $820,000 – soft tissue hand

injury - $8,000 in meds, $0 lost wages Dallas County - $100,000 jury verdict – soft

tissue back injury - $0 meds, $0 lost wages Greene County - $200,000 – soft tissue -

$6,000 in meds, no lost wages


Examples Jasper County - $335,000 – soft tissue -

$20,000 in meds, minimal or no lost wages Greene County – $1.8 million – 20k offer - no

lost wages, low medical - 70 year old man with 4 prior back surgeries)

Polk County - $2.4 million – $450,000 offer with meds $40,000 and tenuous lost wages

II. Naivete: That Fabulous Quality That Keeps You From Knowing Just How Unsuited You Are For What You Are About To Do – Steve Martin Time With Your Client At Their Home Lay Witnesses: Co-Workers (not always

friends and family) Embrace Negative Facts & Conservative View Show the Injuries – Internet Images

Google Earth - Scene Photos and Area PhotosFacebook and Other Social WebsitesMechanism of Cervical Muscle Injury

II. Naivete: That Fabulous Quality That Keeps You From Knowing Just How Unsuited You Are For What You Are About To Do – Steve Martin

Explain the Injuries Summaries of Injuries and Damages Chicago & Northwestern Transportation

Company v. Barclay-Moore Company, 688 S.W.2d 805 (Mo. App. W.D. 1985)

II. Naivete: That Fabulous Quality That Keeps You From Knowing Just How Unsuited You Are For What You Are About To Do – Steve MartinUse Literature on Direct and Cross – Pub Med Kelly v. St. Luke’s Hospital of Kansas City,

826 S.W.2d 391, 396 (Mo. App. 1992) Hemminghaus v. Ferguson, 215 S.W.2d 481,

489 (Mo. 1948) Powers v. Ellfeldt, 768 S.W.2d 142, 178-148

(Mo. App. 1989)

II. Naivete: That Fabulous Quality That Keeps You From Knowing Just How Unsuited You Are For What You Are About To Do – Steve Martin Wilson v. ANR Freight Systems, Inc., 892

S.W.2d 658, 672-673 (Mo. App. 1995) Stallings v. Washington University, 794

S.W.2d 264, 270-271 (Mo. App. 1990) Affidavits for Business and Medical records

(Exhibits A & B)

II. Naivete: That Fabulous Quality That Keeps You From Knowing Just How Unsuited You Are For What You Are About To Do – Steve Martin Affidavit for Billing & Value records (Exhibit

C) How to File with Court (Exhibits D & E)

Sigrist v. Clarke, 935 S.W.2d 350, 353 (Mo. App. S.D. 1996)

Stipulation – Jury Believes the Case is About What They Hear Evidence About

II. Naivete: That Fabulous Quality That Keeps You From Knowing Just How Unsuited You Are For What You Are About To Do – Steve Martin Caused or Contributed to Cause – 19.01

MAI – it is sufficient if the jury believes a proximate cause merely contributed to the injury and need not be the sole proximate cause. Long v. Missouri Delta Medical Center, 33 S.W.3d 692 (Mo. App. S.D. 2001); Carlson v. K-Mart Corp., 979 S.W.2d 145 (Mo. Banc 1998).

IME or Doctor’s Testimony Live vs. Video

III. Always Live Up To Your Standards – By Lowering Them When Necessary – Mignon McLaughlin

High School Physics Teacher

Extra Paralegal In Every Case

Governmental Agencies – Rule Violators

(Exhibit F)

To Rent/Buy/Borrow Equipment

IV.A Calculated Affection Is Never Trustworthy – John Irving

Information On The Other Side’s Expert Witnesses

Efforts of other side to Evaluate

Binding Arbitration, Mediation

V. Something From This Presentation That Might Help You

Sigrist v. Clarke - Medical Record Diagnosis - “It is well established in Missouri law that ‘[a] proper expert medical opinion contained in a hospital record should ... be accorded dignity equal to that of a similar opinion from the witness stand; ...’ ” Sigrist by Sigrist v. Clarke, 935 S.W.2d 350, 353 (Mo. App. S.D. 1996) (citing Koenig, 682 S.W.2d 96, 100 (Mo. App. 1984.)


In Sirest, the plaintiff’s expert was asked on direct examination whether a diagnosis contained in hospital records was consistent with his opinions; however, the trial court excluded those diagnosis in the records as hearsay.

The appellate court reversed.

V. Something From This Presentation That Might Help You The court stated: “The mere fact that

the records include a statement of expert medical opinion does not bar admission of the records. Once the hearsay objection is overcome by qualifying the document as a business record, it is of no consequence that the expert witness is not available for cross‑examination.” Sirest at 353 citing Miller v. Engle, 724 S.W.2d 637, 640 (Mo.App.1986).


See also, Smith v. Wal-Mart, 967 S.W.2d 198, 205 (Mo. App. E.D. 1997) (Medical record containing a diagnosis of disc hernia ion and opinion as to its cause was properly admitted into evidence when there was no issue as to the authenticity as a business record.)


Visual Aid – Brandt v. Csaki, 937 S.W.2d 268 (Mo. App. W.D. 1996). Plaintiff offered a visual aid, specifically a medical illustration that was prepared with the assistance of its expert.

V. Something From This Presentation That Might Help You Plaintiff contended the illustration was

demonstrative evidence and should be admitted into evidence because it helped the jury’s understanding by explaining an area of discussion and it is an accurate portrayal of what it is deemed to be. On appeal, the defendant challenged the trial court’s decision and lost.

V. Something From This Presentation That Might Help You The Csaki court noted that the trial court

had broad discretion in the admission of demonstrative evidence, even though there was testimony by the defendant doctor and a medical expert that the drawing was not an accurate depiction of what it purported to portray. The court stated that the admission of “exhibits like the one in question has long been upheld by Missouri courts . . . “

V. Something From This Presentation That Might Help You Much like the situation here, Csaki

involved alleged medical negligence by a healthcare provider: “This case involved complicated medical terminology and concepts for which the presentation of illustrations would have assisted the jury’s understanding . . .”


The court cited the exhibits ability to assist the jury, and the court referenced other instances where Missouri courts have allowed the admission of drawings that helped explain complicated concepts to the jury.


It was sufficient that the illustration plaintiff wanted to submit to the jury as demonstrative evidence was an accurate portrayal of what it purports to be and would aid the jury in understanding the complex medical concepts involved in this case.

V. Something From This Presentation That Might Help You Use of Blow-Ups from Medical Literature

on Cross Plaintiff intends to offer blow-ups of excerpts

from medical literature that will be established as authoritative.

Missouri courts have long recognized that learned treatises, including medical literature, may be used during cross-examination to test or challenge an expert’s testimony.

V. Something From This Presentation That Might Help You Use of Blow-Ups from Medical Literature

on Cross Kelly v. St. Luke’s Hospital of Kansas City,

826 S.W.2d 391, 396 (Mo. App. 1992) (citing Hemminghaus v. Ferguson, 215 S.W.2d 481, 489 (Mo. 1948) and Powers v. Ellfeldt, 768 S.W.2d 142, 147-48 (Mo. App. 1989)). Establish authoritative with your expert or other side. Portion of text may be admitted but not entire text.


Use of Medical Literature on Direct Missouri law is clear that medical journal

articles may be used on direct examination of an expert witness to test the knowledge of the expert witness and the reliability of his or her opinion. Wilson v. ANR Freight Systems, Inc., 892 S.W.2d 658, 672-73 (Mo. App. 1995) (citing Stallings v. Washington Univ., 794 S.W.2d 264, 270-71 (Mo. App. 1990)).


Use of Medical Literature on Direct

In Stallings, 794 S.W.2d at 270, the plaintiffs argued that the trial court improperly admitted medical literature and medical reports, over hearsay objections, as substantive evidence during the direct testimony of the defendants’ medical experts.

V. Something From This Presentation That Might Help You Use of Medical Literature on Direct

The Stallings court ruled that expert medical witnesses were properly permitted, over the plaintiffs’ hearsay objections, to testify on direct examination about a) the contents of a lecture delivered during a medical seminar one of the experts attended and b) recent medical studies the experts had reviewed to explain part of the information and knowledge upon which they based their medical opinions in the case.


Use of Medical Literature on Direct

The Stallings court noted that § 490.065.3 RSMo. authorizes testimony on direct about medical studies relied upon by a physician to explain the basis of his opinions, and this would even be true absent the specific provisions of § 490.065.3 RSMo. Id.


The Stallings court then concluded that “to allow an expert to rely upon published or reported data is a matter of necessity and to rule otherwise would set impossible standards with regard to proof.” Id. (citing State v. Greenshaw, 553 S.W.2d 318, 327 (Mo. App. 1977)).


Any “disadvantage which might result from the use of such evidence is more than compensated by the advantage of the more enlightened basis for [the fact finder's] ultimate determination of value.” Id. (quoting Empire District Electric Co. v. Cox, 588 S.W.2d 263, 268 (Mo. App. 1979)).


Use of Medical Literature on Direct Other Missouri courts have reached a

similar conclusion: “It is, after all, proper to allow into evidence hearsay that is otherwise trustworthy and necessary for the purpose of providing the foundation for an expert opinion.” Albers v. Hemphill Contracting Co., Inc., 740 S.W.2d 660, 663 (Mo. App. 1987)).

V. Something From This Presentation That Might Help You Caused or Contributed to Cause

19.01 MAI - It is sufficient if the jury believes a proximate cause merely contributes to the injury and need not be the sole proximate cause. Long v. Missouri Delta Medical Center, 33 S.W.3d 692 (Mo. App. S.D. 2001).

V. Something From This Presentation That Might Help You Violation of Regulations as Evidence of

NegligenceVintila v. Drasson, 52 S.W. 3d 28 (Mo.

App. S.D. 2001). Missouri Courts often hold that regulations such as those promulgated by 7 CSR 10-2.010 establish our evidence of negligence) Nguyen v. Haworth, 916 S.W.2d 887 (Mo. App. W.D. 1996) Evidence about the Plaintiff’s plans to sue following incident or the date that the plaintiff was hired should be excluded.

V. Something From This Presentation That Might Help You Summaries of Voluminous Evidence

Chicago & Northwestern Transportation Company v. Barclay-Moore Company, 688 S.W.2d 805 (Mo. App. W.D. 1985) - Basic evidentiary requirements are that the summaries contain information from authenticated admissible documents, such as medical records, business records and also that they aid in the orderly presentation at trial.

V. Something From This Presentation That Might Help You Summaries of Voluminous Evidence

The summaries may be a good compromise which protects the rights of both litigants. For example, summaries of accident data may allow the plaintiff to show evidence and/or notice without unduly prejudicing the defendant with repeated specific similar instances

V. Something From This Presentation That Might Help You Sudden Onset Rule

Tucker v. Wibbenmeyer, 901 S.W.2d 350 (Mo. App. E.D. 1995). Causation may be inferred without the aid of medical testimony where the obvious symptoms of the injury follow the trauma immediate or with only short delay and the injury is of the type that is naturally sustained in the kind of trauma involved.

V. Something From This Presentation That Might Help You Sudden Onset Rule

These would include things like broken bones, cuts or scrapes, localized soreness occurring immediately or only after a short delay is sufficient to fit within the rule.

V. Something From This Presentation That Might Help You Demonstrative Evidence

State v. Hahn, 35 S.W.3d 393 (Mo. App. E.D. 2000). Admissible when it helps to explain a concept or area of discussion. Also referred to as a visual aid. The foundation is (1) does it aid the process of understanding and (2) is it an accurate portrayal of what it is deemed to be

V. Something From This Presentation That Might Help You Expectancy Table

Strycharz v. Barlow, 904 S.W.2d 419 (Mo. App. 1995). A life expectance may be introduced in a personal injury case if there is evidence of permanent injury

V. Something From This Presentation That Might Help You Character evidence such as recreational

drinking or drug use should be excluded - Daniels v. Dillinger, 445 S.W.2d 410, 418 (Mo. App. 1969); Fry v. Meramac Marina, Inc., 673 S.W.2d 451 (Mo. App. 1984).

V. Something From This Presentation That Might Help You Conduct for Which a Party Received an

SIS is not Admissible as a Conviction - State v. Frey, 459 S.W.2d 359 (Mo. 1970).

Municipal Ordinance Violations are not Admissible - Commerford v. Kreitler, 462 S.W.2d 728 (Mo. 1971)

V. Something From This Presentation That Might Help You Improper Arguments and References to

Collateral Source to imply that the individual suing is somehow greedy should be excluded - Washington v. Barnes Hospital, 897 S.W.2d 611 (Mo. Banc 1995).

V. Something From This Presentation That Might Help You Evidence of Unrelated Medical

Procedures and/or medical conditions not claimed in a lawsuit should be excluded from evidence - Senter v. Ferguson, 486 S.W.2d 644 (Mo. App. E.D. 1972); Sampson v. Missouri Pacific Railroad, 560 S.W.2d 573, 586 (Mo. Banc 1978).

V. Something From This Presentation That Might Help You General Negative Character Evidence is

not admissible - Reynolds v. Jobes, 565 S.W. 2d 690, 694 (Mo. App. 1978)

Arrests that don’t result in convictions are not admissible - State v. Massa, 512 S.W.2d 912 (Mo. 1974)

V. Something From This Presentation That Might Help You Use of Graphic Aids is admissible when

charts diagrams plats have not been put into evidence, provided they are used merely to illustrate a point in counsel’s argument based on the evidence and provided they are not used in such a manner as to tend to confuse or mislead the jury into considering them as evidence - Friend v. Yokohama Tire Corporation, 904 S.W.2d 595 (Mo. App. 1995).

eric m. belk. i. a home opener is always exciting, no matter if it’s at home or on the road –...

Documents

fabulous quality

lost wagesgreene county

home opener

lost wagesdallas county

surgeriespolk county

steve martinaffidavit

steve martinwilson

steve martinexplain