Chicago Accident and Injury Lawyer Blog

When it comes to the Fake Bad Scale (FBS), or the Minnesota Multiphasic Personality Inventory in general, one can almost always conclude that the administration and reporting of the results of these tests by defense expert witnesses will be biased. As a result, if a judge permits a defense attorney to present the biased results of such tests, the injured person's attorney must engage in careful and skillful cross-examination to impeach the results at trial. Additionally, like in Amadio v. Glenn, discussed in Part 1 of this blog, plaintiff's attorneys should have the plaintiff evaluated by a qualified expert as well. That expert should be prepared to testify about the extent and severity of the invisible injury at trial and to explain and refute the results of the FBS.

Over the course of his career, Jeffrey J. Kroll has lectured to expert witnesses regarding issues that arise while testifying in court, especially how expert witnesses should incorporate the use of demonstrative evidence into their testimony to persuade a judge and jury. As Chicago brain injury attorneys, our team understands the sequelae of invisible injuries, like traumatic brain injuries, and have experience maximizing recovery for injured individual. Often, this requires working closely with expert witnesses who assist in explaining to the jury the short- and long-term disabilities that may result from invisible injuries.

Defense attorneys often claim that people who suffer invisible injuries in collisions, such as plaintiffs who suffer traumatic brain injuries, are faking or exaggerating their life-changing symptoms. As a result, defense attorneys retain and pay experts to evaluate the injured person via a multitude of psychological tests. Those well-paid expert witnesses then typically testify at trial that the plaintiff's symptoms fail to comport with the injury.

One controversial test, the Fake Bad Scale (FBS), claims to identify malingerers (the term used for people who supposedly fabricate or exaggerate their symptoms of mental or physical disorders for secondary gain, including financial compensation). Unfortunately, the FBS is now a component of the Minnesota Multiphasic Personality Inventory (MMPI) personality inventories. Plaintiff's personal injury attorneys, like me, despise the FBS, as it misjudges legitimate health issues and almost always over-reports malingering.

The issue of real, yet, invisible injuries versus the FBS recently intersected in a case in the Eastern District of Pennsylvania: Amadio v. Glenn, 2011 U.S. Dist Lexis 9549 (February 2011). There, plaintiff claimed that he suffered worsening brain damage, which originally resulted from a collision six years earlier, when defendant-driver suddenly struck his car. Plaintiff's attorney and the defendants' attorney requested that experts evaluate the nature and cause of the collision as well as plaintiff's present injuries.

Defendants' experts subjected plaintiff to the MMPI- 2 personality inventory. It's not surprising that the defendants' paid experts later opined that the plaintiff's MMPI-2 results indicated "over-reporting and exaggeration of psychopathology," "extreme levels of exaggeration," "responding bias," and that "[plaintiff] skewed his responses toward greater psychopathology." 2011 U.S. Dist Lexis 9549, *11.

Prior to the commencement of trial, plaintiff filed a motion to preclude testimony related to the results of the MMPI-2 test. Specifically, plaintiff challenged the reliability of defendants' experts' methodology and the fit of their opinions to the evidence, arguing the experts' evaluation was flawed because MMPI-2 (1) cannot be validly used or interpreted in patients who are known to be brain damaged, and (2) the FBS sub-scale is scientifically invalid as it overestimates malingering.

Although the Court agreed with defendants that in general the interpretation of certain test results should not be precluded, but should instead be subjected to cross-examination, plaintiff's argument that the MMPI-2 test should not be administered to people with known brain damage caused the Court to pause. (Unfortunately, the Court did not address the plaintiff's contention that the FBS is scientifically invalid.)

In finding for the plaintiff, the Court stated the experts failed to show, pursuant to Federal Rule of Evidence 702, that (a) their opinion based on the MMPI-2 test consisted of a testable hypothesis with regard to brain damaged victims, (b) the MMPI-2 had been subjected to peer review on the subject of brain damaged people, (c) there existed standards controlling the technique's operation for brain damaged individuals, or most particularly and importantly (d) the method has been generally accepted for use on those who are brain damaged.

What is the best way to avoid a large truck striking your vehicle? Keep inexperienced and sleep-deprived truck drivers off the road. Many believe that a new rule proposed by the Federal Motor Carrier Safety Administration (FMCSA) requiring the installation of on-board electronic recording devices just might accomplish these goals and save lives.

Currently, truck drivers that operate in interstate commerce must maintain hand-written drivers' logs, which document Hours of Service (HOS) regulations that limit the number of consecutive hours that a commercial truck driver can operate his vehicle. Historically, the HOS rules have required drivers to document every part of the truck driver's day, including the time spent driving, on-duty but not driving, off-duty, the time spent resting in the truck's cabin area, miles travelled, and a variety of other things. 49 C.F.R. 395.8. Federal law currently limits truck drivers from working more than 14 hours at a time -- 11 of which can be driving hours. 49 C.F.R. 395.3

According to an NPR report, if the FMCSA has its way, the on-board electronic recording devices will systematically monitor compliance with HOS rules, but they will not completely relieve truck drivers of their reporting duties. Drivers will still have to self-report how they spent their time when the truck is not in transit.

If finalized, motor carriers would have 3 years to comply with the new requirements.

Hopefully, the use of electronic recording devices will more closely monitor HOS regulations. As the NPR report stated, the hand-written drivers' logs have become so unreliable that many in the industry call them "comic books." A close monitor of HOS compliance will lead to safer roadways and keep driver fatigue in check.

Continue reading " NEW RULE PROPOSED: TRUCKERS MAY NEED TO INSTALL ON-BOARD RECORDERS " »

The economic crisis has hit legal aid funding. Jeff Kroll authored an article for the May 2011 issue of the DCBA Brief, which is the journal of the DuPage County Bar Association. Jeff's article, entitled, "The Realities of Pro Bono Work and the Legal Aid Funding Crisis," explains how the poor economic climate is affecting legal aid organizations. For example, there has been a significant reduction in interest payments to IOLTA accounts as a result of the economic crisis. IOLTA (Interest on Lawyers Trust Accounts) was created by Congress in 1980 as a means to provide civil legal aid to the poor and support other justice system improvements. Interest earned in client trust accounts is allocated to programs providing legal services to the indigent. However, the program is in peril as interest rates have falled from 5.25% in September 2007 to .25% and lower.

Now is the time for lawyers to step up and do more. Although so many attorneys do provide pro bono work for those unable to afford representation, the time has come to step it up to help others.

Every month, Jeffrey J. Kroll contributes to the Chicago Daily Law Bulletin in his column "Balancing Life and the Law."

In this month's article, The "Pulp Fiction" approach to trying cases, Jeff discusses how the inevitability of the nonlinear structure of trials makes the opening statement so important.

Jeffrey J. Kroll is known by his peers to be a leader in Personal Injury and Wrongful Death. As a guest columnist for the Chicago Daily Law Bulletin, he writes about balancing the demands of the practice of law with the demands of personal life.

This month marks the one year anniversary of Jeffrey J. Kroll's monthly column "Balancing Life and the Law," in the Chicago Daily Law Bulletin. Last April, Jeffrey kicked off the series with a look into issues that arise when proving psychological damages at trial. The article highlighted a difficult Post Traumatic Stress Disorder (PTSD) case that Jeff and his associate, Heather, took to trial last year. Their client, a victim of the July 11, 2006 CTA subway train derailment, suffered PTSD after the incident. Jeff and Heather obtained a verdict of $135,000 for their client. The verdict was featured in the "2010-2011 Illinois Jury Verdicts" magazine published by the Law Bulletin Publishing Company.

Here is an excerpt from the article:

[S]cientific research suggests that "moments of overwhelming terror can alter brain chemistry for decades." Katy Butler, Psychotherapy Networker, "The Biology of Fear" (July/Aug 1996).

Recent technological advances in the study of the human brain have contributed to the treatment of PTSD victims. A new approach, called "brain-based therapy," combines "neuroscience, developmental psychology, psychotherapy research, and complexity theory." John Arden and Lloyd Linford, Psychotherapy Networker, "The Rise and Fall of PaxMedica" (Jan/Feb 2010). In short, therapists are now treating victims of PTSD by blending new information about brain development with talk therapy.

Thus, when trying a PTSD case, it is critical to have an independent psychologist and a treating therapist testifying at trial. The experts as well as the plaintiff must explain to the jury how the development of the therapeutic relationship led to the diagnosis of PTSD and how it assists the plaintiff in coping with the disorder.

Since it is possible to suffer from PTSD for a lifetime, the costs associated with maintaining such therapeutic relationships must be explored and presented to the jury.

Jeffrey J. Kroll, Dealing with post-traumatic stress disorder, April 20, 2010.

Several years back, Jeff obtained a $2.58 million verdict in a case involving two women who were involved in a car accident on the Kennedy Expressway in Chicago. As a result of the serious collision, one of the women died and the other woman suffered from significant post-traumatic stress.

We go to hospitals to get well when we are ill or injured; unfortunately, we all know that hospitals and doctors can actually be the culprits of other potential medical issues that may arise during hospital stays. In fact, Medicare has released its first study on patient safety, detailing the many things that can go wrong for hospital patients, including but not limited to, unnecessary falls, hospital-acquired infections, incompatible blood infusions, bed sores, and other potential medical malpractice issues. Medicare acquired data for the study by reviewing the hospital bills of elderly and disabled patients between October 2008 and June 2010.

According to the Chicago Tribune:

All of Chicago's top medical centers appear on the list of hospitals with safety issues, to one extent or another. For instance, the University of Illinois at Chicago Medical Center, the University of Chicago Medical Center and Rush University Medical Center all reported higher-than-average numbers of hospital-acquired bloodstream infections associated with catheters. Officials at each medical center questioned the government's method of counting infections while acknowledging mistakes in data they submitted to Medicare.

How can you protect yourself from further illness or injury while treating in a hospital? Be an advocate for yourself. Ask questions. Be proactive. If the treatment that you are receiving in the hospital requires the use of anesthesia or sedation, designate a family member or friend as an advocate. Patient safety issues are a consequence of the breakdown of communication between patient and health care provider.

Continue reading " MEDICARE RELEASES CHILLING PATIENT SAFETY DATA " »

In the closing argument of Mrs. Oglesby’s trial, her attorney requested an award of $75,000 for her loss of a normal life and $85,000 for her physical pain and mental suffering. The jury returned a verdict in favor of Mrs. Oglesby's estate. In addition to amounts for medical expenses and property damage, the jury determined the damages for her pain and suffering to be $42,000 and her damages for loss of a normal life to be $34,000, The jury further found Mrs. Oglesby 40% negligent and awarded her estate a total of $47,200.20.

Defendant appealed, claiming, among other things, that the evidence did not support the jury's determination of Mrs. Oglesby’s damages. Defendant requested an order a remittitur of 50% of the damages for pain and suffering and for loss of a normal life. The First District Appellate Court disagreed, affirming the damage award and stated:

The purpose of a remittitur is to correct an excessive jury verdict in limited and appropriate circumstances.… A verdict will not be set aside by a court unless it is so excessive that it indicates that the jury was moved by passion or prejudice or unless it exceeds the necessarily flexible limits of fair and reasonable compensation or is so large that it shocks the judicial conscience.

2011 Ill. App. LEXIS 274 at *13 -*14.

The Court further noted that a damage award is not subject to scientific computation. 2011 Ill. App. LEXIS 274 at *16. There is no equation that juries are provided for computing damages. In Mrs. Oglesby's case, plaintiff's attorney offered the testimony of her son as well as her doctor to show that the pain and injuries caused by defendant's negligent conduct lead to Mrs. Oglesby's loss of a normal life as well as pain and suffering, which are all compensable elements of monetary damages.

Continue reading " MAXIMIZING DAMAGES IS NOT A SCIENCE, IT'S AN ART (PART 2 of 2) " »

When dealing with the monetary value attributable to a person’s injuries in a personal injury action, the amount of money awarded (what we attorneys call “damages”) is generally for the jury to determine. The First District Appellate Court reminded us of this notion recently in In re the Estate of Oglesby v. Chicago Park District, 2011 Ill. App. Lexis 274 (2011). There, Mrs. Oglesby, a 60-year-old plaintiff suffering from cancer, was injured when defendant's van flipped onto her vehicle causing her face to hit the windshield. Paramedics rushed her to the hospital; she required medication for pain, was treated by two doctors and her son was forced to move in with her to care for her after the incident. She succumbed to a cancer-related death prior to the trial of the matter.

As for her treatment for injuries related to the car accident, the Mrs. Oglesby was initially seen by a Dr. Silverman on September 25, 1998, two days after the accident. Thereafter, she had 12 additional office visits between September 26 and October 27, 1998. During that time, she was treated with hot packs and joint mobilization. The total medical charges were $1,410.

At trial, Dr. Silverman diagnosed Mrs. Oglesby with soft tissue injuries in her neck and back areas. She also sustained acute contusions to her knees and left hand, as well as an abrasion on that hand. Although she suffered trauma to the left side of her head, the neurological test was within the normal range. She sustained secondary limitation of forward and backward motion in her neck area, which intensified with activity. She suffered pain as a result of these conditions, for which Dr. Silverman prescribed pain medication, rest, a course of physical therapy, and sitz baths. He advised her to avoid strenuous activity and wear a Stryker collar. Dr. Silverman continued to see Mrs. Oglesby periodically, but when she had no more complaints relating to the accident, he released her from his care with instructions to come back as needed. Yet, this is hardly the end of the story.

This post continues at DAMAGES IS NOT A SCIENCE, IT'S AN ART (PART 2 of 2)

Can children sue their parents for injuries suffered due to a parent’s negligence? Almost 20 years ago, the Illinois Supreme Court discussed this issue at length in Cates v. Cates, 156 Ill. 2d 76 (1993). There, a four-year-old plaintiff was a passenger in an automobile driven by her noncustodial father when she was seriously injured as the result of a collision. Her mother, who was not in the car at the time of the incident, filed a lawsuit against the other driver as well as the father on the minor’s behalf. The father filed a motion for summary judgment, arguing that the parental immunity doctrine prohibited the minor’s negligence claim against him.

The Illinois Supreme Court found that the negligent operation of an automobile is not conduct inherent to the parent-child relationship since such conduct does not represent a parent’s decision-making in disciplining, supervising or caring for the child. 156 Ill. 2d at 106. This parental immunity doctrine extends to foster parents, but not corporate entities and their employees, such as residential child care facilities. See, i.e., Wallace v. Smyth, 203 Ill. 2d 441, 452 (2002). What about others who stand in the place of a parent or in loco parentis? Aren't grandparents, teachers, babysitters, daycare centers, etc., often charged with a parent's rights, duties and responsibilities for a child when the parent is absent? As is common in the law, it depends.

To broaden the scope of the parent-child immunity doctrine to include all those who act in loco parentis clearly does not serve the best interest of the child. Only the legislature may provide parental immunity to individuals who are not parents or foster parents. For example, the Illinois School Code grants educational employees, such as teachers, the same immunity enjoyed by parents. That immunity however does not extend to private day-care centers, nursery schools or kindergartens governed by the Child Care Act. Possekel v. O'Donnell, 51 Ill. App. 3d 313 (1st Dist. 1977). As for grandparents, they have a duty to protect their grandchild from harm. Ryan v. Yarbrough, 355 Ill. App. 3d 342 (2d Dist. 2005) (a grandparent is normally not deemed a person "in loco parentis"); see also, Gulledge v. Gulledge, 51 Ill. App. 3d 972 (4th Dist. 1977) (finding that grandparents and other relatives having temporary care and custody of a minor grandchild are liable to the minor for injuries sustained by the minor as a result of the grandparents' ordinary negligence). As for everyone else, Cates is clear: "where the family relationship is dissolved or where the relationship has ceased to exist with respect to conduct giving rise to the injury, the immunity will not be applied." 156 Ill. 2d at 99. Thus, the application of the parent-child immunity doctrine depends upon more than the performance of so-called parental responsibilities. 203 Ill. 2d at 451.

Continue reading " MODERN FAMILY: SUING MOM AND DAD " »

Did you know that people riding bicycles must follow traffic laws and abide by the rules of the road just like motorists? In fact, Illinois law regulates everything from how many people may ride a bicycle at one time, the position bicycles must take on roadways, proper passage techniques and turn and stop signals, among other issues. See 625 ILCS 5/11-1501 through 625 ILCS 5/11-1516.

For example, Illinois statute 625 ILCS 5/11-1511(b) advises:

A signal of intention to turn right or left when required shall be given during not less than the last 100 feet traveled by the bicycle before turning, and shall be given while the bicycle is stopped waiting to turn. A signal by hand and arm need not be given continuously if the hand is needed in the control or operation of the bicycle.

The Illinois Secretary of State provides further information on bicycle riding rules, safety guidelines and advice on pertinent safety equipment.

As Chicago personal injury attorneys, the Law Offices of Jeffrey J. Kroll has seen too many devastating injuries from bicycle and vehicle accidents. According to the Chicago Tribune, there are thousands of cyclists on the streets of Chicago each day. That number is likely to increase as Mayor-elect Rahm Emanuel takes office. He has made the addition of new bike lanes one of his top transportation priorities.