Using Personal Computers To Produce Graphics Exhibits

Using Personal Computers To Produce Graphics Exhibits

With the rise of a television-dominated society, people have become accustomed to receiving information in a visual form. Lawyers have responded by using photographs, enlargements, videotapes, slides, and transparencies. Unfortunately, high quality graphics sometimes are expensive and time consuming to prepare when they must be drawn by graphic artists or medical illustrators. A personal computer is the solution to this problem.

We frequently require medical illustrations for client meetings, taking depositions, preparing settlement brochures, or during trials. In the past we relied on photocopied drawings or spent hundreds of dollars for a professional medical illustration Now, we use a collection of computer-prepared anatomical drawings. These are easily printed and modified, and are available in a matter of seconds. We keep all of our computer illustrations on our file server and attorneys, legal assistants and secretaries may access and modify them. The illustrations also may be kept on a single personal or portable computer. Figure 1, an unlabeled illustration of the ankle joint, is an example from one of our collections of anatomical drawings. We use such illustrations for many purposes. During a meeting with a client we print an illustration and ask the client to mark the location of pain, numbness, scars or other symptoms. Using a computer graphics program, the illustration then may be modified to record accurately the information obtained from the client. When we receive x-rays, particularly of fractures, we modify skeletal illustrations to show the location of the injury. Prior to medical depositions, we print out various illustrations for use by the physician to explain a surgical procedure or permanent injury. Figure 2 shows a modification of the ankle joint illustration depicting an area of numbness, the location of a fracture, and the identity of the tibia and fibula. This illustration could be photocopied onto transparency film or enlarged for use at trial or a videotape deposition.

We also have a set of labeled anatomical drawings that are sold to health care providers for the study of anatomy and preparation of custom illustrations. The complete series of labeled anatomical drawings may be loaded onto the hard drive of a portable computer and used for reference when traveling. We find that one of the advantages of working with a computer illustration is the increased understanding of a particular anatomical structure that comes with studying, modifying and labeling the drawing yourself, as opposed to simply photocopying one from a book.

 Many law offices already have sets of anatomical drawings purchased from a legal publisher for use as exhibits. A scanner may be used to convert these drawings to an electronic form that can be modified using a personal computer. Photographs and printed documents also may be scanned and then used in pleadings, settlement brochures, or newsletters. Because prices have fallen significantly in the past year, while image quality has improved, any law office producing computer graphics should consider purchasing a scanner.

We use Macintosh computers and notebooks, but IBM compatible computers offer similar software. For modifying PostScript anatomical drawings we use Aldus FreeHand and Adobe Illustrator. For bit-mapped images we use Aldus SuperPaint. Sources for collections of PostScript anatomical drawings are MediClip^TM and LifCART^TM A helpful source for labeled bit-mapped drawings is MacAnatomy^TM. If you are using a computer only for word processing, consider expanding its function to include graphics. Once you purchase the software, it is easy and inexpensive to produce custom illustrations comparable to those you might otherwise purchase from an anatomical illustrator.

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Wrongful Death Cases and the "Cap-Trap"

The Kansas wrongful death statute sets a cap of $100,000 for all nonpecuniary damages, including loss of society, comfort, companionship, and protection of the decedent, and the court cannot instruct the jury on this limitation. K.S.A. 60-1903, 1904; Wentling v. Medical Anesthesia Services, 237 Kan. 503 (1985). This nonpecuniary cap has produced a misconception and a trap.

In cases where the decedent, such as a young child or a retired person, did not make financial contributions to the plaintiff, we often hear the argument that the value of the case is limited to the $100,000 cap for nonpecuniary damages. This is a misconception because the legal definition of pecuniary damages goes well beyond mere financial contributions. Pecuniary damages include loss of financial contributions; marital care, attention, advice or counsel; loss of filial care; parental care, training, guidance, or education; plus funeral expenses. K.S.A. 60-1904. Thus, even in cases where there is no loss of financial support, pecuniary damages are recoverable based on the relationship between the decedent and the plaintiff. The jury will be allowed to assign a value to this pecuniary loss even without expert testimony, so the value of a Kansas wrongful death case is greater than the $100,000 nonpecuniary limit.

More important is the trap. The trap is that, by statute, the jury is not entitled to know about the cap in considering its verdict. The danger is that the jury will return a substantial verdict, and not appreciate the importance of putting the verdict on the pecuniary side of the ledger, rather than the nonpecuniary side. Any verdict for nonpecuniary loss in excess of $100,000 must be reduced by the court to $100,000 when judgment is entered. There have been cases tried in the past where verdicts of several million dollars have been reduced to $100,000 because the jury allocated the majority of the damages to nonpecuniary loss.

A strategy to avoid the "captrap" developed by Vic Bergman and successfully used at trial by our firm is to waive the claim for nonpecuniary loss, so it is not listed on the verdict form. Because of the definition of pecuniary loss, most of the evidence relevant to nonpecuniary damages will be admissible to support the claim for pecuniary loss. In this way, a jury which is motivated to return a sizable verdict will not inadvertently award the plaintiff substantial damages for nonpecuniary loss.

Several caveats apply to this strategy. First, the decision should not be made until the time of trial, or just before trial, because opposing counsel will evaluate a wrongful death case based on the pecuniary and nonpecuniary loss. Opposing counsel understand the difference between the two types of loss, so there is no need to lose this negotiating point. Second, be prepared to be candid with the court when explaining why you are waiving the claim to nonpecuniary loss. Our experience is that most judges understand why a plaintiff wants to avoid the cap-trap, and recognize the plaintiff's right to make or withdraw any claims. It is difficult for the defendant to argue prejudice when a $100,000 damage claim is being withdrawn. Finally, be sure that you have discussed the cap-trap and this strategy with your clients, and obtain their consent to the waiver of the claim for nonpecuniary loss.

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In This Issue

• State of Kansas Settles Litigation Over Pollution From KU Landfill
  
• Thyroidectomy Case Concluded in Federal Court
  
• Wrongful Death Cases and the "Cap-Trap"
  
• Protecting Our System of Justice
  
• Trial by Fyre: Adventures of Jack Fyre - Litigator
  

State of Kansas Settles Litigation Over Pollution From KU Landfill

On September 3, 1992, the firm concluded a significant environmental case, in line with our interest in pursuing environmental litigation on behalf of individual victims of pollution. Dave Morris and John Parisi obtained a settlement on behalf of the Martin family in their case against the State of Kansas. The settlement included the purchase of a portion of the Martins' property, damages, litigation expenses, attorneys' fees, and response costs associated with medical monitoring and the cost of obtaining alternative water supplies.

In 1964, the University of Kansas began operation of a landfill for disposal of low level radioactive wastes, including radionuclides contained in an organic chemical solvent, primarily toluene or dioxane. The landfill is located less than 250 yards from Jean Martin's home and 160 acres of property. Over the years, radioactive and chemical wastes leached into the groundwater beneath the dump site.

The Martins were aware of the presence of the KU landfill. In 1982, the Martins were told the landfill was leaking but were assured by the State of Kansas and the University that it would have no impact on their health or property. Until 1990, they were never informed of the extent of groundwater contamination at the site, or that radioactive and chemical wastes were migrating off the site from the backhoe trenches. At that time, a newspaper reporter presented the Martins with documentation that concentrations of dioxane, a suspected carcinogen, had been routinely detected for nearly ten years within monitoring wells surrounding the landfill. A number of other chemicals, as well as radionuclides, were also detected in the groundwater monitoring wells. The Martins also learned that several surface water samples, taken from a small intermittent stream that ran from the landfill across their property, were contaminated with levels of dioxane which exceeded the maximum levels allowed by federal drinking water standards.

Dave Morris and John Parisi filed a lawsuit on behalf of the Martins in Kansas Federal District Court on July 24, 1990, to force a cleanup of the KU landfill. The suit was filed under the citizens' suit provisions of the Clean Water Act (CWA), 33 U.S.C. ß 1365, the Resource Conservation and Recovery Act (RCRA), 42 U.S.C. ß 6972, and the Comprehensive Environmental Response Compensation and Liability Act (CERCLA), 42 U.S.C. ß 9659, alleging that the KU landfill was leaking hazardous chemicals and radioactive nuclides into the groundwater and surface water in violation of federal law. The suit also sought response costs for an alternative water supply and medical monitoring. After Judge O'Connor of the Kansas Federal District Court denied the defendants' motion to dismiss these claims, the Kansas Department of Health and Environment (KDHE) and the Board of Regents entered into a consent decree, setting in place a detailed timetable for cleanup or "remedial action" to be undertaken at the KU landfill.

 A second lawsuit was filed by the Martins in state court, seeking damages for diminished property value and the loss of use and enjoyment of their property. This suit was brought in Johnson County District Court using theories of trespass, nuisance, strict liability for ultra-hazard ous activity, negligence per se, and inverse condemnation. A related administrative action was also filed for the Martins, seeking to intervene in the cleanup process as affected parties to assure that it proceeded on schedule.

Both the federal and state lawsuits, as well as the administrative proceeding, were settled. In addition to achieving a timetable for the cleanup of the KU landfill, the Martins were compensated for the expenses of the lawsuit, attorneys' fees, and a portion of their response costs. The State of Kansas also purchased the portions of the Martin property located closest to the landfill, allowing Jean Martin and her son, Steve, to escape residing next to a leaking toxic waste site.

The Martins have mixed feelings regarding the settlement. Even though leaving the land is painful for both Jean and Steve, all the Martins are proud that, through their efforts, a consent decree is finally in place between the KDHE and the Board of Regents. The consent decree provides legal assurance that the KU landfill will be cleaned up, and that contaminated groundwater and surface water will no longer be allowed to flow from the site.

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Thyroidectomy Case Concluded in Federal Court

Lynn Johnson and Ben Kieler recently settled a medical malpractice/wrongful death action on behalf of the heirs of a 51 year-old woman who died within 12 hours of a thyroidectomy at Allen County Hospital in lola, Kansas. The heirs included the husband and two adult sons.

Our investigation disclosed that the decedent developed postoperative bleeding, swelling and upper airway compression. Medical research established that a well recognized complication following thyroidectomy, is post-operative bleeding into the soft tissues of the neck that, if undetected, will eventually result in obvious swelling and upper airway compression. We contended that this complication should have been discovered by defendants, and when upper airway compression occurred, cardiopulmonary resuscitation should have been implemented on a timely basis.

Our factual investigation also revealed that Research Development Group, a Missouri Corporation, leased the Allen County Hospital and had assumed responsibility for the operation of the hospital and its staff. During the past few years we have found that an increasing number of rural hospitals are entering into management agreements with regional or national hospital corporations. The existence of such a management agreement may provide a basis for diversity jurisdiction and permit a lawsuit for medical negligence to be filed in federal court.

Because this case was filed in federal court, pursuant to Rule 214 of the District of Kansas, as modified by order of the court on December 16, 1991, a settlement conference was conducted. As a result of the settlement conference procedure, the parties agreed to a settlement of $875,000.

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Protecting Our System of Justice

Lawyer bashing is afoot in America with a vengeance. Now that the Soviet Union has disintegrated and communism is dead, lawyers stand revealed as the evil responsible for the decline of the economy and lack of international competitiveness, among other national ills. Whereas in the 1980's lawyers were blamed for only crime and climbing insurance rates, we are now a threat to America's future economic survival.

The attack on lawyers is calculated. History shows that frequently political leaders find it all too easy to convince people that an insidious minority is preventing their prosperity or cultural harmony. Fortunately, most Americans no longer tolerate overt attacks on members of racial, religious or ethnic groups. So, our politicians now attack others, such as lawyers, doctors, movie actors, investment bankers, and federal and state employees.

We are proud to be members of the legal profession, which throughout its history has contributed significantly to the freedom and economic success of America. We are proud that you are our professional colleagues and friends. We are not blind to the continued need to improve our system of justice and pledge ourselves, as we know you do, to that effort. Finally, we reject the conclusion that lawyers, whether they be prosecutors or criminal defense lawyers, tax lawyers, corporate lawyers, bond lawyers, or civil trial lawyers, have caused the economic decline of America and other assorted national ills.

Members of our profession have given America a legal system that we all have an obligation to preserve. While all of us cannot be a Jefferson, Hamilton, Lincoln or Darrow, we can stand up and speak out in defense of the legal profession and our system of justice, so they may be preserved for future generations.

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