Missouri Injury Lawyer Blog

Gadolinium a contrast used in MRI's can cause nephrogenic systemic fibrosis and kidney failure. NSF is a tightening and swelling of the skin and other organs, including the lungs and heart. The American Journal of Dermatopathology, suggest a possible explanation for why some patients on kidney dialysis who are injected with a "contrast agent" during a magnetic resonance imaging (MRI) develop nephrogenic systemic fibrosis (NSF).

The U.S. Food and Drug Administration now requires a warning about the potential risk on the products' labels. NSF leads to thickened, rough or hard skin usually on the arms, legs or trunk. In some cases, the limbs can become difficult or even impossible to move.

It has not been known what causes NSF, but a risk factor is exposure to gadolinium, an agent injected into patent's veins during some MRI procedures to help improve the visibility of internal organs during the test. The condition occurs in about 2 percent to 4 percent of kidney patients on dialysis who are exposed to gadolinium.

The researchers tested the hypothesis that TG2 may be involved in the response. The enzyme is found throughout the body and is involved in blood clotting and wound healing. They hypothesized that gadolinium may activate the enzyme and cause NSF.

The group obtained skin biopsies from five people with NSF and three healthy people. All NSF patients had renal failure and had previously had imaging procedures using gadolinium. The researchers tested for the presence of TG2 in the skin samples.

"Compared to the healthy subjects, there was a marked increase in TG2 in the subjects with NSF," said Sane. "This suggests that activation of TG2 can produce the syndrome. TG2 is expressed in virtually all tissues and may explain why the fibrosis can occur in the heart and lungs, as well as the skin."

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Posted In: Drug Safety

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Tire blowouts are sometimes caused by defective tires and are a very serious road hazard. Tire blowouts often result in vehicle collisions causing injuries and even fatalities. The remnants of blown truck tire scattered across a highway are the signs that this is not an uncommon occurrence,

Debris littering the highways cause over 25,000 accidents and at least 100 deaths in the United States and Canada each year. A Foundation for Traffic Safety reported that blown tire pieces are the number one road debris. Various studies have shown that most tire and scrap rubber debris on the roadways is caused by under inflated tires, which makes tires susceptible to cuts and flats.

Most tire-related accidents are caused by improper tire inflation. These accidents are avoidable demonstrate the need to maintain the proper tire inflation.The air inside the tire carries the weight of the vehicle, absorbs shock and keeps the tire in its proper shape so it can perform as designed. This is the single most critical factor for getting the safest and longest life out of tires. Tires flex when they roll, bending the tire’s rubber and steel cords. The flexing generates heat, and tire wear is the result of friction created between the road’s surface and the tread as the tire rolls along

When tires are over-inflated, excessive wear occurs at the center of the tread because it will bear the majority of the vehicle’s weight. Over-inflated tires tend to not absorb road hazards like debris in the road and potholes, increasing the risk of sustaining a puncture or impact damage.

Tire pressure should only be checked when a tire is cold (before a vehicle is driven or has been driven less than a mile). Once a vehicle has been driven, tires warm up and there is an increase in air pressure resulting in an inaccurate reading. After being driven, a “hot” tire can take several hours to cool down .Tire pressure should be checked regularly. Alignment also needs to be checked on a regular basis.

When inspecting your tires, rub your hand along the tread and sidewalls to feel for problems like flat spots, cuts, shoulder wear, bulges, sidewall damage, etc. is a good way to check for obvious problems. These simple and quick checks can help you avoid, or at least minimize the number of accidents caused by defective tires. All drivers should stop immediately once a tire problem is detected. Even continuing on to the nearest rest stop or weigh station can be dangerous. Making sure your tires are properly inflated just may save your life and the lives of those traveling the highways with you.

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Posted In: Traffic Safety

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Personal injuries verdicts can be overturned for what is called juror misconduct. As a trial lawyer that is very frustrating to try a case and get a favorable verdict, but then have the defense lawyer investigate jurors background's and compare it to their testimony during jury selection.

In a recent decision the Missouri court of appeals held that nondisclosure can occur only after counsel asks the potential jurors a clear question that unequivocally triggers a juror's duty to respond. If the question asked was clear, and the juror failed to disclose relevant information, the trial court abuses its discretion in failing to overturn the verdict by ruling that the failure to respond was unintentional nondisclosure. Nondisclosure is unintentional when the potential juror does not remember "the experience, or it was insignificant or remote in time, or when the [potential juror] reasonably misunderstands the question posed." However, it is intentional when a potential juror "has no reasonable inability to understand the question and either actually remembers the experience or the purported forgetfulness is unreasonable." The juror's the experience was significant in that he wrote letters protesting the underlying claim and it should be in the juror's recent memory because he and his wife had two default judgments rendered against them and were still making payments to satisfy the judgments during trial. Thus, his nondisclosure was intentional; and intentional nondisclosure about litigation experience are per se prejudicial and require a new trial.

In the recent case Ms. Ilene Massey brought a personal injury lawsuit against Mr. George L. Carter. After a jury verdict for Mr. Carter, Ms. Massey filed a motion for new trial on the basis of juror misconduct. In the motion for new trial, Ms. Massey claimed that Juror Stephen Pack failed to disclose information about prior litigation experience. During voir dire, Ms. Massey's counsel asked the panel, "Have any of you ever been sued by anyone?" Juror Pack did not respond.

During a post-trial hearing, evidence was adduced that Juror Pack had five collection lawsuits filed against him and three of the five were recent lawsuits. A witness testified that Juror Pack knew about two of the recent lawsuits and the subsequent default judgments entered against him and his wife. Juror Pack testified that he remained silent when the question was asked because he did not consider debt collection as "being sued." He also stated that the collection lawsuits never came to his mind because he thought the question was limited to personal injuries, car accidents, or other matters similar to the trial. The trial court denied the motion for new trial, ruling the "question was not a clear question" and "Juror Stephen Pack's nondisclosure was unintentional." Ms. Massey appeals.

The court of appeal in reversing the case wrote: "In reviewing a denial of a motion for new trial based on juror nondisclosure, this court must determine whether the trial court abused its discretion in finding that the nondisclosure was unintentional and that the unintentional nondisclosure did not prejudice the movant. Ewing v. Singleton, 83 S.W.3d 617, 620-21 (Mo. App. W.D. 2002). Although this court reviews the finding of unintentional nondisclosure for abuse of discretion, we review the clarity of the question de novo. Id."

The court in its opinion also wrote: "A venireperson has a duty to fully, fairly, and truthfully answer all questions asked of him or her specifically, and those asked of the panel generally. Id. at 621 (internal quotation marks omitted). The duty to disclose is triggered only after a clear question has been asked. Brines v. Cibis, 882 S.W.2d 138, 139 (Mo. banc 1994). Failure to answer is considered nondisclosure, which can be either intentional or unintentional. Id. There is no nondisclosure if counsel does not ask a clear question. Id. A clear question is one that solicits a layperson to provide the undisclosed information. Ewing, 83 S.W.3d at 621. "The interpretation depends on the context of the question as well as the wording of the question." Id.

Based on the fact that the question asked was clear and called for the prospective juror to reveal any lawsuit they were involved , the court held that the prospective juror's failure to tell the trial court that he was a defendant in several collection lawsuits was intentional nondisclosure because the question was clear, and his inability to understand the question and his purported forgetfulness were unreasonable. Because intentional nondisclosure about prior litigation is prejudice per se, requiring a new trial." Based on that finding the court reversed and remanded the case for a new trial.

As a tip for how to try to avoid this, I make it a practice to ask a fuzzy question. I ask potential jurors if they have ever been a party to a lawsuit but I am not interested in domestic relations cases, collections cases, bankruptcies or thing of that nature. If a juror does not respond but had been sued before, you can make an argument that the disclosure was unintentional because the question was not clear as to what "things of that nature" means. Most defense attorneys will follow up with a more specific question but this strategy has worked for me in the past.

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Posted In: Missouri Legal Decisions

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In Chicago Illinois, a 19-year-old woman on a bicycle was struck and killed by a garbage truck while talking on a cell phone. The accident happened just after 4 p.m. when a garbage truck, was making a right-hand turn struck the woman, who was riding a bicycle.

The woman was taken to Advocate Illinois Masonic Medical Center, where she was pronounced dead at 4:37 p.m.. According to a spokesman for the Cook County Medical Examiner's office.
The garbage truck driver was cited for making an improper right turn, The victim, however, was talking on her cell phone before the garbage truck struck and killed her, police said.

Between 2002 and 2006, there was an average of about 22 fatal accidents per year involving bicyclists in Illinois, the majority of which were in Cook County, according to state transportation statistics. But that's not the whole story, said Randy Neufeld, chief strategist for the Chicagoland Bicycle Federation. According to statistics from the Illinois Department of Transportation, more than 3,000 cases per year result in serious injury to cyclists - slightly more than half the figure of accidents involving pedestrians, Neufeld said.

Some of those accidents, such this one may have been prevented if cyclists were more alert, But when it comes to avoiding accidents, some of the responsibility, lies with motorists who are responsible for making sure they see cyclists before making turns.. Bycilists also bear responsibility to make sure they ride carefully.

I live off of a two lane road on which bicylists love to ride. Many times they ride side by side and I have to pass them by diriving into the on coming traffic lanes. If you are a bicyclist and driving on a two lane road be respectful to the cars that have to try to avoid you on the roads. If there is no shoulder or bike lanes drive in a line as close to the side of the road as possible so that cars do not have to drive very far into the oncoming traffic to pass you. If you are respectful of cars they will be respectful of you.

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Posted In: Traffic Safety

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Medical malpractice cases require an expert who is a doctor to testify that the defendant doctor failed to use that degree of skill and learning ordinarily used under the same or similar circumstances by members of defendants' profession. In a recent case the Missouri court of appeals reversed the judgment and remanded the case for a new trial because the plaintiff's expert was asked whether he believed that the defendant doctor was negligent but the attorney did not define the term negligence for the doctor in answering the question

The plaintiff who was a gospel singer was diagnosed with possible thyroid cancer. The defendant doctor recommended surgery and was going to remove the right thyroid gland and if it was positive for cancer remove the left thyroid as well. The surgeon removed the right thyroid as planned and the pathology indicated that the tumor was cancerous and the surgeon then claimed he performed a total thyroidectomy, removing the right and left lobes.

Following plaintiff's surgery, he experienced complications that sent him to the hospital and almost caused his death, including a heart attack which caused damage to his heart. While in the hospital, blood tests were performed on the plaintiff and it was found that his thyroid levels were basically normal, did not decrease, and his THS levels did not increase as they should following a total thyroidectomy. While in the hospital an ultrasound was ordered, which showed that the plaintiff's left thyroid lobe had been removed, but that his right thyroid gland was still present. The ultrasound ultimately showed the right thyroid gland to be present in its entirety, although the mass was no longer attached to it. It also showed that the nodules that existed in the right thyroid were still present, and that the amount of right thyroid tissue that was left prevented effective radioablation.

Plaintiff was referred to a thyroid surgeon who reviewed the post-surgery ultrasounds and determined that the plaintiff needed to have a second surgery to remove the right thyroid that had been left during the first surgery. Because the surgery was much more complicated and risky, the plaintiff was referred to a surgeon in St. Louis, Missouri, who recommended a second surgery to remove the right thyroid to remove the cancer risk, and so that he could undergo post-surgical radioablation.

The plaintiff underwent a second surgery during which 8.2 grams of thyroid tissue measuring four centimeters by two and a half centimeters by two centimeters was removed, which was basically the size of the right thyroid lobe. Subsequent testing of the thyroid tissue removed showed it was cancer free.

Following the second surgery, plaintiff's voice was dramatically different, and he found that he had no endurance for singing, and that he had a significantly reduced vocal range for singing. He could no longer sing commercially, record music, or work as a full-time music minister.

The case was submitted to the jury and the jury returned a verdict for plaintiff for personal injuries against Defendant in the amount of $299,644.97. The trial court entered a judgment on the jury verdicts. Defendant appealed contending that the Plaintiff failed to elicit expert testimony describing and defining the meaning of the phrase "standard of care" so that the jury was properly informed of the meaning of the phrase and that the opinions offered by the experts were based on the correct standard. As a result, Defendant contends that Plaintiff failed to make a submissible case.

To make a submissible case, the plaintiff must present substantial evidence establishing each and every element of the claim. Id. The evidence is sufficient to make a submissible case if a reasonable probability that the defendant was negligent may be fairly inferred from it. Delisi v. St. Luke's Episcopal-Presbyterian Hosp., Inc., 701 S.W.2d 170, 173 (Mo.App. 1985). If, however, viewing the evidence in a light most favorable to the plaintiff, the question of negligence may only be determined by resort to conjecture and surmise, then the plaintiff has failed to make a submissible case. Id.

"To make a submissible case in a medical malpractice action, plaintiffs must prove that defendants failed to use that degree of skill and learning ordinarily used under the same or similar circumstances by members of defendants' profession and that their negligent act or acts caused plaintiffs' injury." Washington by Washington v. Barnes Hosp., 897 S.W.2d 611, 615 (Mo. banc 1995). Stated another way, the plaintiff must prove (1) an act or omission of the defendant failed to meet the required standard of care; (2) the defendant was negligent in the performance of the act or omission; and (3) the act or omission caused the plaintiff's injury. Montgomery v. South County Radiologists, Inc., 168 S.W.3d 685, 691 (Mo.App.2005).

As submitted to the jury, liability of Defendant was premised on whether he "failed to perform a total thyroidectomy" on plaintiff it was thereby negligent, and such negligence directly caused or contributed to cause damage to him. Negligence was defined for the jury in an instruction based on MAI 11.06 as "the failure to use that degree of skill and learning ordinarily used under the same or similar circumstances by members of defendant's profession."

In reversing and remanding the case the court held that plaintiffs' counsel did not provide the definition of the word "negligence" in the immediate context of the question. While [the expert] may have understood the definition of "negligence" which he was to apply in answering the question, the jury might well not have. The question was phrased in terms of "inadequately explored legal criteria." Plaintiff suggested on appeal that the lack of legal criteria is solved by the fact that the court, in the jury instructions, defines the term negligence. This misses the point. Without a definition of negligence supplied in the context of the particular question and answer, the jury may not be able to know what the witness means by the word "negligence," although it may later find out what the court means by that term.

The court of appeal held that because the plaintiff's attorney asked the expert whether the defendant doctor was negligent without defining for the expert how that term is defined under Missouri law, the jury was left to speculate as to whether the testimony of plaintiff's experts was based on the appropriate legal standard or on some other, inappropriate standard, and the reversed the judgment, but remanded the case for a new trial.

The lesson to be learned as a trial lawyer is don't ask a medical expert questions that require legal conclusions, but ask them whether the defendant is negligent using the language from the Missouri Approved Jury Instructions as it defines the term negligence. This applies not only in the Medical malpractice field but in any case that uses the term negligence and you need an expert to establish that the defendant was negligent.

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Posted In: Missouri Legal Decisions

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A motorcycle collided with a tractor-trailer severely injuring the Motorcyclist in March 2006. A Jury entered a $6 million verdict in favor of the motorcyclist.. The Jury verdict was against Colonial Freight Systems Inc. of Knoxville, Tenn., and its driver.

The motorcycle driver was riding a 2003 Honda Shadow when the truck changed lanes, striking the rider and knocking him off his motorcycle. The jurors rejected the truck driver's version that the motorcyclist entered an entrance ramp and drove directly into the tractor-trailer.
The Motorcycle rider was a 13-year Army veteran and former security guard, lost four fingers on his left hand and can no longer walk without assistance because of injuries to his left leg.
Jurors awarded the plaintiff damages for past and future physical injuries, disfigurement, physical impairment and medical expenses.

Motorcycles are uniquely dangerous because of the carelessness of cars and trucks and the difficulty they have in seeing motorcycle riders. Because of that always wear a helmet, drive with the headlights on, and us the turn signals. It is just a fact of riding a motorcycle that cars are not going to see you because you are in their blind spot or they didn't turn their head to look when they change lanes. Also resist the urge to take off your helmet when you are traveling in a state that does not have a helmet law. Doctors and nurses in emergency rooms don't call them donor cycles for nothing. Please don't become a donor, but if you are in an accident contact an attorney experienced in handling motorcycle accident cases.

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Posted In: Missouri Verdicts and Settlements , Traffic Safety

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The Missouri Court of Appeals Eastern Division in this personal-injury case against Federal Express, reversed and remanded the the trial court's entry of judgement in favor of the defendant. The plaintiff challenged the sufficiency of the jury verdict which assessed zero percent of fault to her, zero percent fault to the corporation, and then found her damages to be $150,000. The appeal was based on the fact that the verdict form instructed the jury to enter a finding as to her damages only if it had assessed a percentage of fault to the corporation.

The plaintiff was involved in an automobile collision between the car she was driving and a truck being driven by an employee of defendant FedEx. The plaintiff sued FedEx for negligence, seeking to recover compensation for her personal injuries. The trial court submitted the case to the jury against defendant FedEx, under instructions and a verdict form approved for use in comparative-fault cases. At the conclusion of the case the jury returned its verdict assessing no fault to either party, but awarded damages of $150,000 to plaintiff. Under the Missouri Approved Instruction for comparative fault, damages can only be awarded if the defendant is found to be at fault.

Plaintiff's counsel argued that the verdict was inconsistent and requested a mistrial. The trial court polled the jury which confirmed the verdict as its verdict, the court then accepted the verdict, and found that the $150,000 in damages was surplusage and meaningless, and entered judgment in favor of defendant FedEx.

The Missouri Court of Appeals in a two to one decision found the contradictory and that it could not fairly be resolved as a definite finding in favor of either party. The court then held that the verdict was inconsistent and a nullity, incapable of supporting the entry of any judgment. As a result they found that the trial court committed error in entering judgment upon this verdict and reversed the judgment and remanded the cause for a new trial.

It should be noted that at the time of this entry this is not a final decision and subject to modification. See

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Posted In: Missouri Legal Decisions

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