Proof Of Loss Earning Capacity In a Self Employed Situation

Loss earning capacity refers to those situations where the plaintiff has suffered a permanent injury which prevents him from earning the same income he had prior to the injury. It is not an issue of loss future wages. It is an issue of loss earning capacity. And oddly, in a Maryland personal injury case, you can get the damages in a self employed situation even when there is no history of income earnings. See ANDERSON, et al.v. LITZENBERG 694 A.2d 150 (1997). I suggest the necessary proof is as follows: (1) proof of permanent injury as established by a doctor's testimony who is familiar with the physical demands of the Plaintiff's prior employment the current physical limitations; (2) testimony from a vocational rehab expert as to the value of the services the plaintiff was performing prior to the injury as compared to the value of the services the plaintiff is capable of performing with his new physical limitations; (3) an economist to testify to the present value of the loss future earning capacity and the Plaintiff's work life expectancy.

Copy Right 2007 Your Maryland Lawyer and Maryland Injury Attorney

Discovery Admission of Fact

I have often had limited success using this form of discovery in personal injury cases. Defendants normally simply deny all requested admissions. There is no penalty in the rules for a denial that ends up being true, other then the potential that I can recover cost incurred in proving a fact denied. However, I came across an idea from a very good blog that sent me to another blog that proposed an interrogatory question to be filed post the admission denials. The author of the blog proposed an interrogatory as follows:
"To the extent that any of your responses to any of Plaintiff's requests for admissions is other than an unqualified admission, list all facts on which you based any part of your response that is not an unqualified admission, identify all documents memorializing each such fact, and identify all persons with knowledge of each such fact."

This is interesting enough to try. After all I like the idea of an admission of fact. But what value when the dog has no bite.

Copy Right 2007 Your Maryland Lawyer; Maryland Injury Attorney

Discovery Of Pre-Existing Conditions

I normally propound an interrogatory question to the defendant requesting information they may have regarding my client's pre-exisitng conditions, if any, or if they contend a pre-exisiting condition was aggravated by the accident. Generally, the defendant objects, stating this is work product. I came across a Discovery opinion that states the defendant is required to answer. However, their response is limited to information provided by the plaintiff. I agree this is maybe of limited value to the plaintiff absent the defendant failing to identify the condition in their answers to interrogatories, post plaintiff's disclosure, and later being denied the opportunity to make the argument at trial. Daily Record Sperti v Muhr August 10, 1966.

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Pre-Existing Conditions and Damages

Yep here we go again. Plaintiff with a pre-existing condition gets into rear end accident. Plaintiff says you are responsible for my subsequent surgery. Defendant says we did'n't do nutin, ya'll had dat conditin prior too da axel dent. Wrong high insurance premium breath. Take me as I am and love me with all my susceptible body parts. You think I aggravate you well guess what you aggravate me and my pre-existing condin tin too. See MPJI 10.3 SUSCEPTIBILITY TO INJURY The effect that an injury might have upon a particular person depends upon the susceptibility to injury of the plaintiff. In other words, the fact that the injury would have been less serious if inflicted upon another person should not affect the amount of damages to which the plaintiff may be entitled. See MPJI 10:4 AGGRAVATION OF PREVIOUS CONDITION A person who had a particular condition before the accident may be awarded damages for the aggravation or worsening of that condition. And just to mention all foreseeable consequences. See Empire Reality 305 A 2d. 144 (1973). I ma comin ta geet ya boz and hidden hind dem pre-sistin arguments ain't stoppin me no wayza.

Copy Right 2007 Your Maryland Lawyer and Maryland Injury Attorney

You Gotta Love Property Damage Photographs

I start every liability theory with a complete evaluation of those property damage photographs. You know how they say a picture is worth a thousand words. Well they were right. The damages tell you everything. Direction, speed, point of impact, not to mention that they don't lie. I have a case now where the plaintiff says the defendant was backing up from a side street while turning into traffic. The defendant says the plaintiff rear ended me and I was not backing out I was simply making a turn. Even in this very close call case, I can tell you the PD photographs will win this case for my client. You watch and see if I'm right.

Copy Right 2007 Your Maryland Lawyer and Maryland Injury Attorney

Finding Hay in a Needle Stack

I spent several hours late Monday evening outlining medical records for a very serious personal injury case I am preparing to file suit on. I was most curious to track the causation issues from initial treatment at the hospital to final discharge. My client ultimately had surgery to the c6-c7 disc as a result of herniation caused by the accident. The initial presentment at the hospital immediately post accident had my client complaining of finger numbness. Not every day I find such a clean connection. I was pleased. Next, as a matter of habit, I outlined all post hospital release treatment records looking for symptom inconsistency between doctor records and physical therapy records. I can not tell you the number of times I have a doctor's report saying he is doing better and a PT report saying the patient is unimproved and both occur on the same day and sometimes only hours apart. Finally, I look for symptom exacerbation and on this point I often notice the medical records state things like much improved released to full work only to find two weeks later problems worse with activities. Also, for serious injuries such as this case, I always find worsened conditions between October and March. The cold weather is a killer. I review the records in this manner because I know already the records are in evidence and some defense attorney is going to stand in front of the jury and say see he's lying look at the records better one day worse the next. I need to explain that apparent inconsistency. Now I can argue see his symptoms are affected by activities and weather. Argument preplanned is not paranoid. Unless it wakes you 2:30 am every night for a week.

Copy Right 2007 Your Maryland Lawyer and Maryland Injury Attorney

Taking the Case

I met with a potential client a few days ago regarding a personal injury accident that had happened nearly 3 years prior. In fact when I met him he was 9 days from expiration of the statute of limitations. After meeting the gentlemen, I had to declined to accept the case. Normally, I would not meet this close to an expiration of the limitations. However, my office always accommodates when a former client referrs a friend or family member as a matter of policy. Prior to finishing the meeting I had the potential client execute a notice of limitations to be sure he acknowledged the time frames for filing suit and the consequences of not filing suit. I declined the case not so much due to the limitations period, which was a significant issue, but also due to the intensity of his demeanor in proclaiming his damages. It was a very odd contradiction that a person would wait 3 years post accident with no more then soft tissue injury and now be outraged at the damage he suffered. Not that he was not truthful. In any event, I came upon a list of the difficult cases many personal injury attorney look at twice before accepting. Red/Light Green/Light cases, lane change cases, slip and fall cases, delayed treatment cases, client ticketed cases, low property damage cases, uninsured vehicle cases, and pending personal injury cases from prior accidents.