Missouri Injury Lawyer Blog

As a St. Louis head injury lawyer, I know head injuries are complex injuries that often seem like they come from unrelated causes, or more than one cause. That was why I was interested to see the Missouri Supreme Court’s ruling in State ex rel. BNSF Railway Co. v. Neill, a case in which a railroad wants to see the psychiatric records of a brain-injured worker suing for his injures. Michael Patton sued BNSF over injuries sustained in an August 2001 fall resulting in injures to his head, neck and shoulder. Patton was already under psychiatric treatment, and BNSF wanted to argue at trial that the fall was caused by Patton’s use of psychiatric drugs. The trial court prevented the records’ discovery, but the high court reversed in light of the specific circumstances.

Patton, whose job was not specified, was performing heavy manual labor in the heat of a Missouri August when he fell in August of 2001. He fell again at work in October of 2002 when he discovered that colleagues had filled his car with garbage as a prank. In both cases, he alleged that BNSF had negligently failed to provide a safe workplace, which he says has caused recurring seizures or fainting spells. BNSF argues that Patton’s problems stem from abuse of, or withdrawal from, prescription drugs, a theory supported by records of an unrelated previous lawsuit and by medical records, which showed that Patton was receiving powerful prescription medications from two different doctors before the doctors learned of one another’s existence. Patton’s first accident happened shortly after those doctors scaled back his access to the drugs. He later sought the drugs at several emergency rooms.

Patton later began treatment with a psychiatrist, Dr. Shankararao Rao, who had prescribed drugs for depression and anxiety when Patton’s second accident happened. BNSF subpoenaed all records from Rao’s office related to Patton, believing they would have admissible evidence. The trial court instead granted a protective order to Patton’s records, ruling that Rao’s records were irrelevant.

BNSF petitioned the Missouri Supreme Court for a writ of mandamus reversing that decision. A temporary writ was granted, and in this decision, the writ was made permanent. It first noted that even when information is not admissible at trial, it may still be discoverable if it contains discoverable information. The trial court felt that Patton’s mental condition must be irrelevant to a claim that is solely for physical injuries, but the high court said it had failed to consider the relevance of the information BNSF actually sought. Documents sought must be “reasonably calculated to lead to the discovery of admissible evidence,” the court noted, and these documents meet that test because they are relevant to causation. Trial courts must use their discretion in each case about whether the discovery request meets criteria or is just a “fishing expedition,” the Supreme Court said — but it was incorrect for the trial court to deny discovery simply because Patton made no psychiatric claims.

One dissent argued that BNSF’s request was overly broad, particularly considering that it already had Rao’s prescription records and may have abused the discovery process. Another dissent argued that the situation is not extraordinary enough to justify interference with the trial court.

As a Missouri personal injury attorney, I’m very interested in the issue of when discovery steps over the line. When an individual sues a large company, as in this case, the deck is stacked for the company because of its greater financial resources and legal firepower. This can give the stronger party an incentive to drag out discovery, picking fights over requests it knows very well will not be permitted by a competent judge. One dissent in this case suggests that BNSF abused the discovery process in several ways, and thus the denial of this discovery request may have been a sanction. Whether or not that’s true, it pays for plaintiffs like Patton to have an experienced southern Illinois bran injury lawyer by their sides so they can fight off abusive, invasive discovery requests.

Continue reading "Missouri Supreme Court Allows Employer to View Psychiatric Records in Workplace Injury Case – State ex rel. BNSF v. Neill" »

As a defective products lawyer in Missouri, I’m quite familiar with the issue of lead paint in older buildings. Before the 1970s, paint often contained lead as one ingredient. However, its use was banned because lead is a neurotoxin that can cause brain damage; the danger is particularly acute for young children, who may eat or suck on sweet-flavored lead paint chips and peelings, and remodelers who stir up dust. Lead poisoning is permanent and causes brain damage; neurological symptoms like delirium and hallucinations; and physical symptoms like anemia, hearing loss and stunted growth. Lead poisoning was the allegation made in Sherwin-Williams Co. v. Gaines, a Mississippi Supreme Court ruling sending Trellvion Gaines and his mother back to lower court for further evidence.

Gaines was born in 1991, making him 20 years old at the time of the ruling. Early in his life, he lived with his mother and grandparents in a home built in the early 1900s, but which burned in 1994. Blood tests in 1993, when Gaines was two, found elevated blood lead levels; at 20, he has significant cognitive problems that he claims are the result of lead poisoning. Witnesses for Gaines testified that they had painted the home with Sherwin-Williams lead paint; Sherwin-Williams replied that it had stopped manufacturing interior lead paint in 1954 and all residential lead paint in 1972. After this court reversed a summary judgment decision, a trial court heard the case and a jury awarded $7 million to Gaines. Sherwin-Williams appealed, arguing that Gaines used witnesses who were unreliable, prejudicial and disclosed in an untimely manner; it also claimed the jury pool was biased.

On appeal, the Mississippi Supreme Court focused on the issue of whether Gaines sufficiently proved that his injuries were caused by exposure to lead paint. Gaines had just two lead tests, five days apart, showing elevated blood lead levels; his experts opined that he had been exposed from birth to the 1994 burning of the home. Sherwin-Williams argued that Gaines had been exposed only once, which is not enough for lead poisoning to cause brain damage. The high court found the experts employed by Gaines unreliable, in part because they relied upon one another for their diagnoses and in part because they were self-contradictory in places. Because Gaines underwent only two blood lead tests, both in the same week in 1993, expert testimony saying he had been chronically exposed to lead was speculation. And because speculation is inadmissible, and the experts did not sufficiently prove the connection between lead exposure and mental problems, the court said their testimony should not have been admitted. Thus, the high court reversed the verdict and remanded on the issue of causation.

Cases like this are important for me as a southern Illinois product liability attorney, because lead paint is one of the most widespread dangers for children in the United States. Any home old enough could have lead paint, and parents don’t always realize the problem exists. Lead paint lawsuits are not as common as other product liability lawsuits, like defective toys or unsafe drugs, but they still affect families all over the United States. Like almost all product liability cases, poisoning of children from lead paint is tragic and completely unnecessary. The same child growing up in a different home could easily avoid lead poisoning and live up to his or her full potential, including mental potential as well as physical health. As a St. Louis personal injury lawyer, I always prefer to prevent harm — but if it happens anyway, I believe the at-fault people should be held legally responsible.

Continue reading "Mississippi Supreme Court Reverses Verdict for Lead Paint Victim Based on Experts’ Speculation – Sherwin-Williams v. Gaines" »

A recent article in the St. Louis Post-Dispatch touched on a subject important to Missouri head injury attorneys like me. According to the Jan. 5 article, the family of a boy who fell from playground equipment at the City Museum has settled a lawsuit against the museum under confidential terms. Gavin Kirk was 10 when he fell from the museum’s outdoor jungle gym and hit his head. His mother, Michelle Kirk, said MRI tests showed that he suffered brain damage from the incident. The settlement came during jury selection for a trial in the case, which was expected to take a week and start Jan. 4.

The City Museum is an unusual mix of playground, museum and activity center for kids. The article said the Kirks were visiting from Lawrence, Kansas in 2006 when the accident happened. Gavin was climbing on the outdoor jungle gym, but climbed farther than he was supposed to and fell. He spent four days in the hospital. The article did not say whether the accident had permanent effects, although Michelle Kirk did say that Gavin suffered some permanent damage. An expert witness in the case estimated his lifetime damages, for medical care and other costs, at $400,000. The family’s lawsuit argued that the museum should have taken clearer steps to protect children from this type of accident, such as erecting signs to show where climbing isn’t permitted. A museum co-founder said it’s no more dangerous than a playground and that visitors should be sensible as they play.

As a St. Louis brain injury lawyer, I agree that museum visitors have an obligation to take reasonable care. But in an environment like this one, in which children are encouraged to climb and play, it’s not difficult to predict that kids might climb too far. Under Missouri (and Illinois) state law, everyone who invites the public onto their property must make sure visitors aren’t subjected to unreasonable or predictable hazards. That means cleaning up slippery spills, providing handrails on stairs and posting signs warning visitors of risks that can’t be taken away. If they fail to take these precautions, property operators are exposed to lawsuits like this one, from anyone who is hurt as a result of that failure. In most cases, this means slips and falls -- but as Gavin Kirk’s case shows, falls and slips can have very serious results.

Continue reading "City Museum Settles With Family of Boy Who Suffered Brain Damage in Fall" »

After more than a month of waiting, Gov. Jay Nixon has vetoed the Legislature’s decision to repeal Missouri’s mandatory motorcycle helmet law, the St. Louis Post-Dispatch reported July 2. The vetoed legislation would have given riders 21 and older the option to not wear helmets, except on interstate highways. With the veto, riders of all ages must continue to wear their helmets in Missouri, although they may take them off in many neighboring states, including Illinois. Lawmakers may still override the veto when they convene in September, but the newspaper suggested that this will not be easy.

News reports suggested that Nixon had genuine doubts about the law, which may explain the long gap between the veto and the Legislature’s passing the law in early May. Supporters of the repeal argued that it was a question of freedom; adults should be able to choose whether to take the risk of riding without a helmet. Opponents, who included the Missouri Department of Transportation, countered with statistics showing that helmets substantially reduce motorcyclists’ risk of death and brain damage in an accident. Nixon cited some of those statistics when he vetoed the bill, adding that he was concerned about the likely increase in the financial cost of treating motorcycle accident victims.

As an American, I sympathize with concerns about where individual freedom ends and responsibility to others begins. But as a Missouri brain injury attorney, I believe that voluntarily using a helmet is the smartest choice for motorcyclists (and bicyclists and ATV riders). As the article points out, the federal Department of Transportation has found that helmets cut the risk of death by in a motorcycle accident by 37% and the probability of brain injury by 67%. They also cut costs to public health programs, as well as to riders and insurance companies. One DoT study estimated that helmet use saved $1.3 billion in 2002 alone in the U.S., and universal helmet use could have saved $853 million more. That’s a high price to pay for feeling the wind in your hair.

Continue reading "Governor Vetoes Repeal of Motorcycle Helmet Law, Leaving Helmets Mandatory for All Riders" »

Legislation repealing Missouri’s mandatory motorcycle helmet law has passed the Legislature and is headed for the desk of Gov. Jay Nixon, the St. Louis Post-Dispatch reported May 1. The legislation, passed 95-63 in the Missouri House, makes helmets optional for riders age 21 and over. Riders below age 21 would still be required to wear helmets. If the bill is approved, Missouri would become the 31st state with partial or no helmet laws, including almost all of our neighboring states.

The law has provoked several disapproving editorials in the past few days, with the Post-Dispatch claiming that the repeal is “a spectacularly bad idea.” I know this is a sensitive subject for those who ride, many of whom feel strongly that they should have the right, as adults, to make their own decisions. The issue pits public safety arguments against freedom arguments, and both are worthy goals. I do not wish to comment on whether helmets should be mandatory. But, using my experience as a Missouri brain injury lawyer, I would like to explain why I believe that motorcyclists in our state should freely choose to wear helmets when they ride.

Helmets protect the brain, one of the few tissues in the body that cannot heal in the same way a cut or bruise heals. Once the brain is damaged, the abilities controlled by the damaged parts of the brain are most likely gone forever. Practically speaking, that translates to a lifelong disability of some kind -- physical, mental, sensory or emotional. In mild cases, this could leave the victim functional but with a permanent loss of abilities, personality changes or trouble controlling emotions. In serious cases, the victim will need lifelong care in an institution or with a live-in helper. It is also extremely expensive to treat -- hospital costs for a serious brain injury easily total five or six figures, and the lifetime cost reaches into the millions.

It’s well-established that states with mandatory motorcycle helmet laws have much higher helmet use rates than states without. It is more controversial, but still well-established, that helmets save lives and prevent brain injuries without adding risks. Studies by the federal Department of Transportation have found that an un-helmeted rider is 40 times more likely to suffer a fatal head injury and 15 times more likely to sustain a non-fatal injury than one wearing a helmet in the same crash.

Furthermore, of the states that have repealed their universal helmet laws, all have seen a pronounced rise in motorcycle crash fatalities -- a 31% rise in fatal motorcycle injuries in Texas, for example. And according to a 2002 study by the federal DoT, just under half of motorcycle accident victims have no health insurance, meaning that hospital charity care and government health programs pick up their bills. Given the staggering cost in abilities and money, I believe the protection a helmet offers is well worth the cost, both financially and philosophically. Riders may soon have the chance to make this choice for themselves, but as a St. Louis brain damage attorney, I hope they do it with full awareness of their risks.

Based in St. Louis, the Lowe Law Firm represents clients throughout Missouri and southern Illinois who have suffered brain injuries through another person’s careless actions. In addition to motorcycle accidents, this includes car and truck accidents, crashes with semis and big rigs, ATV crashes and accidents in the workplace. In a Missouri brain injury lawsuit, we can help our clients win the money they need to pay their sky-high medical bills, make ends meet while they cannot work and ensure that they get the care they need throughout a lifetime of disability. If this sounds like your situation and you’d like to know more, please contact the Lowe Law Firm today for a free, confidential consultation.

Survivors of serious brain injuries and their supporters rallied in Jefferson City in favor of state legislation that would restore services for head injury victims, the Columbia Missourian reported March 5. The state bills would restore funding that was cut three years ago by Missouri Medicaid. HB 530 and SB 77 would allow Missouri brain injury patients to once again attend day rehabilitation, by adding the service to the MO HealthNet program and by covering more services. The move comes during Brain Injury Awareness Month, declared by the Brain Injury Association of America.

The article starts with the story of brain injury survivor Lisa Miller of Illinois. Miller was on her way to a meeting for work when her small car may have been hit by two semi trucks -- she can’t remember. She also can’t remember giving birth to her three sons or many other things that happened before her accident, and she now has significant short-term memory problems. This is not uncommon for brain injury patients, who may lose memory, cognitive and physical abilities or other functions because of their injuries.

Patients like Miller cannot be completely cured, because brain tissue doesn’t heal the way other tissues do. They can only learn to live with their injuries, a process that may take years of physical or occupational therapy. In some cases, patients may never be able to return to work, school or other activities that were important to them before the injury. These are emotionally devastating losses -- but they’re also very expensive. Over a lifetime, therapy bills, medical treatment and the cost of missed work can add up to hundreds of thousands or even millions of dollars. If this was caused by another person’s carelessness, victims can and should hold that person legally responsible for the results.

Based in St. Louis and Belleville, Ill., the Lowe Law Firm represents clients in Missouri and southern Illinois in all types of personal injury lawsuits, including Missouri brain injury lawsuits. If you or someone you love has been hurt by someone else’s carelessness and you’re ready to protect your rights, you can contact us for a free, confidential consultation.

A middle school girl outside Kansas City died in early December after suffering a head injury. The girl had been sent home from school early after hitting her head against a wall during gym class. According to the Kansas City Star, she woke with a headache and stayed home from school again the next day. When her mother checked on her later that morning, she was unresponsive. Emergency workers could not revive her and the death is under investigation.

Unfortunately, this terrible tragedy follows a pattern that’s not unusual for brain injuries. As a brain injury attorney in St. Louis, I know it’s not unusual for patients with serious head injuries to report only a mild headache, or even no problems at all, at first. It’s only later that they and their loved ones begin noticing permanent effects from the injury, including personality changes, damage to sight or other senses or trouble controlling emotions. And in many cases, a blow to the head is only the trigger for a secondary brain injury caused by lack of oxygen to the brain, swelling or other events that can make a minor brain injury substantially worse.

According to the U.S. Centers for Disease Control and Prevention, sports and recreation cause as many as 3.8 million traumatic brain injuries (TBIs) every year. Many of these patients may go untreated because they don’t seem or feel seriously hurt, or because coaches and teachers may have a “tough love” mentality. Unfortunately, TBIs are a leading cause of injury and death among young Americans, sending 435,000 kids ages 14 and under to emergency rooms each year and killing an estimated 2,685. Some TBIs don’t cause lasting damage, but others leave their victims disabled or with permanent changes to their abilities and personalities.

At the Lowe Law Firm, we represent patients whose lives have been changed by brain injuries sustained through sports accidents, car crashes, medical mistakes and many other causes. Our attorneys have the experience and resources necessary to thoroughly prove the serious injuries associated with a TBI. If you or someone you love has sustained a serious head injury (including a wrongful death) and you would like to speak with us about your options, please contact us today for a free evaluation of your case.