Environmental Law FAQ

    What is environmental law?

    Environmental law is a very broad area of the law consisting of federal and state statutes, regulations, and case law relating to the prevention and cleanup of contamination of the environment–including the ground, water, and air–by chemicals, hazardous wastes, and other pollutants. It is dominated, but not completely controlled, by federal and state governmental agencies. These include the Environmental Protection Agency (EPA), and state agencies, such as the Missouri Department of Natural Resources (MDNR), or Kansas Department of Health and Environment (KDHE), who administer a large body of federal laws and regulations. Environmental law also includes private actions which can be brought by citizens to force the cleanup of contamination or pollution. Such suits are provided for in a number of federal statutes. Environmental lawsuits can also be brought under the common law for damages to person or property resulting from contamination of water, land, or air, or exposure to harmful substances.

    What kind of actions can be brought by an individual for environmental harm?

    Under several federal environmental statutes, including the Clean Water Act (CWA), the Clean Air Act (CAA), the Resource Conservation and Recovery Act (RCRA), and the Comprehensive Environmental Response and Liability Act (CERCLA), among others, an individual may bring a “citizen suit” to force the cleanup of environmental contamination. These lawsuits are brought on behalf of the government and are limited to enforcement of either state or federal environmental laws or regulations. For example, a citizen suit may be brought under the Clean Water Act to stop a polluter from illegally discharging hazardous waste into a stream. If the government has already taken action against the polluter, a citizen suit is generally not allowed to proceed. Private individuals may also file lawsuits to obtain compensation for damage caused by environmental contamination to their property or for personal injury under the state common law. For example, an individual whose private property has been affected by the release or discharge of toxic chemicals from a manufacturing or other business concern may have recourse, not only by a citizen suit under federal law to force a cleanup, but can also under state common law bring a claim to recover for property damage, bodily harm, or personal injury caused by the contamination.

    What kinds of claims can be brought under the common law?

    Most individual lawsuits for environmental harm caused by a third party are brought pursuant to state common law and include claims seeking recovery for damages to property, for personal injury, or bodily harm. Such lawsuits are often based upon several theories of liability, including nuisance, trespass, negligence and/or strict liability.

    Nuisance

    Under the common law, a claim for nuisance is based on the unreasonable interference, or the loss of use and enjoyment, of one’s property because of the actions or unlawful conduct of a nearby landowner. A simple example of a nuisance case would be a pig farm that moved in next to a residential area. The interference with the homeowner’s right to peaceably enjoy their property caused by the odor of a pig farm could be actionable as a nuisance. Damages in a nuisance action may include the diminution of property value associated with contamination, as well as damages for the loss of use of the property and its peaceful and quiet enjoyment, or other environmental complications involved in a cleanup. Nuisance is closely related to the doctrine of trespass, but does not necessarily require a direct physical invasion of the claimant’s property. Both nuisance and trespass can provide damages for the difference between the value of an individual’s contaminated property and the value of the property were it not contaminated.

    Trespass

    Trespass is a claim under the common law for direct, physical invasion or contamination of a person’s property. A trespass would occur when one neighbor throws their trash into another neighbor’s yard without permission to do so. Damages for trespass are generally measured as the cost to repair or clean up the property to its former pre contaminated state. Some states limit damages to the value of the property. In other words, where the cost to clean up the property exceeds the market value of the property, the property owner is limited to recovering the fair market value, even if that is less than it would cost to clean up the pollution. Other states have held that in pollution cases this rule should not apply, and the cost to repair should be awarded as damages even if that amount exceeds the market value of the property.

    Strict Liability

    A lawsuit may be based on the theory of strict liability for environmental harm if the potential defendant used a substance considered so hazardous that the law will award an adjacent property owner damages as a matter of course if the hazardous substance escapes and migrates to someone else’s property. If strict liability applies, fault is not an issue, and the reason why the substance was released by its owner does not matter. The defendant will be held liable for damages even if they were not negligent. As in trespass, damages to property are generally measured in terms of the cost to repair the property to its former pre-contaminated state.

    Negligence

    Under a negligence theory, the person bringing the lawsuit must prove that the defendant acted, or failed to act, in such a manner as to cause the harm complained of. The defendant will be held liable for contamination only if they used the contaminant in question in a manner that falls below the standard of what a reasonably prudent person would have done under the same or similar circumstances. Under a theory of negligence, a defendant will be liable for the damages, or harm, reasonably foreseeable to occur based on their conduct. In environmental actions, that can include damages for cleaning up the property, the diminished property values, or for bodily injury caused by exposure.

    What must be done to bring a lawsuit to force a cleanup or recover for environmental damages?

    The party, or parties, who are responsible for the contamination must be identified before a lawsuit can be brought for environmental damage. Often the federal or state governmental agency in charge of environmental enforcement will have identified parties potentially responsible for the contamination problem. If the government has not identified those responsible, an independent environmental investigation must be undertaken to identify those responsible. This entails consulting with environmental scientists to locate the source of the contaminant. For example, the source of a chemical, like trichloroethane (TCE), found in drinking water wells, can often be tracked back to its source using geological and hydrological scientific methods. Our firm has retained expert consultants with the scientific expertise needed to determine the source of contamination in environmental litigation involving contaminated drinking water.

    Once a source is isolated, what can be done?

    Depending on the wrongdoer and their financial resources, the pollutants can often be removed through a remediation program (where the pollutants are removed from soil and groundwater to levels that are considered safe by the governmental environmental agencies). In addition, the landowner can be compensated for the diminution in the value of their property as a result of the contamination. Often the property will continue to have damages based on the “stigma” associated with the fact it was contaminated, or associated with, a contaminated site for which compensation can be awarded.

    If I suspect my groundwater or property may be contaminated, what should I do?

    You should contact your local governmental agency in charge of handling environmental pollution for assistance. If you are using groundwater as a source of drinking water, that will include the local health department. You should also contact your state environmental agency, and/or the United States Environmental Protection Agency to report the problem. It would be advisable to contact a law firm with experience in environmental law if you feel that your property, or health, have been damaged as a result of the contamination or ingestion of contaminants. Our office would be available for consultation, and we can often recommend whom to contact in terms of state agencies. Once information regarding the nature and extent of environmental contamination is documented, we can assist you in evaluating the source of the contamination and determining whether a lawsuit against those responsible for damages is appropriate.

    What about toxic mold claims?

    Mold is a naturally occurring growth that we are exposed to throughout our environment. Some molds, such as stachybotrys or aspergillus (among others) are classified as toxic molds because they contain substances that are toxic to humans and/or animals. Over the last several decades, construction techniques and concerns over energy efficiency have made homes, offices and other structures more airtight. The increased use of fireboard and other cellulose-based material in construction has provided a medium for mold to grow. When water leaks into a building through a pipe, soffit, windowsill, roof or otherwise, it can create an environment conducive for the growth of stachybotrys and other toxic molds. Documented exposure to toxic mold can cause adverse health consequences. Thus, if present, the mold needs to be removed and the property damage needs to be repaired. In extreme cases, toxic mold has been shown to cause lung damage in infants and those with impaired immune systems.

    How long do I have to bring an environmental claim?

    All states have statutes of limitation which specify how long a person has to bring a claim for personal injury or property damage before it is time-barred. Given the length of time that can pass from the time a pollutant is put into the environment and when it is discovered, it is often very difficult to determine when a claim for contamination must be filed in order to be within the limitations period. For example, contamination of soil or groundwater by chemical solvents may occur years, or even decades, before it is discovered in someone’s well water. In some states, the statute of limitations period is modified in environmental claims to allow for latent “discovery” of contamination beyond the limitations period that would otherwise apply. These “discovery” rules apply to “save” a claim from the expiration of the statute even if the contamination was actually present for longer than the statute of limitations would otherwise allow. Generally, the discovery rules only apply if, prior to the expiration of the statute of limitations, the contamination was unknown or undiscovered by the plaintiff. Other states do not have “discovery” rules and would bar claims based on undiscovered releases of hazardous substances into the environment that occurred years ago, because the ordinary statute of limitations for injury to person or property would have expired. In 1986, Congress attempted to remedy this situation by including a uniform discovery rule in the CERCLA federal environmental statute relating to cleanup of hazardous substances. The federal “discovery” rule applies to state law claims brought with federal actions for cleanup in federal court. It does not apply to all types of environmental cases. Therefore, if you believe you have an environmental claim, you should contact a law firm with experience in this area immediately to best avoid having the statute of limitations expire.

    How long does it take to prosecute an environmental law action?

    Environmental law cases often involve complex legal and scientific issues and can take several years to work their way through the courts. Because of the complex nature of contamination problems, expert consultants in environmental science, geology, hydrology, or related fields are often required. The investigations of these experts are often time-consuming. If you have any questions about whether or not you may have an environmental law cause of action, please feel free to contact us through e-mail or by telephone at (913) 642-0600 or 1-800-642-0601.

    Qui Tam Cases FAQ

    What is a Qui Tam or False Claims Act case?

    During the Civil War, military officers had the authority to purchase supplies and equipment from local vendors and from farmers and landowners. Military quartermasters often issued receipts to these individuals who presented these receipts for payment to the United States Government. However, many unscrupulous individuals routinely marked up or falsified these claims and they were bleeding the treasury dry. As a result, President Abraham Lincoln asked for, and received from Congress, a bill which deputized every citizen of the United States as a private attorney general. The Act provided that the citizen who reports the fraud to the government could share in a portion of money that is returned to the federal treasury. Although modified several times since the 1860’s, the Qui Tam or False Claims Act still exists today and rewards “whistleblowers” who bring the existence of fraud by government contractors to the attention of the federal government.

    How is a False Claims Act case filed?

    Under the False Claims Act, a relator, or an individual with knowledge of fraud on the government, can make his or her allegations known in a lawsuit filed in a federal court. This lawsuit specifies what the government contractor did wrong. A “disclosure statement” is also filed which is a document that explains how the defendant defrauded the government of money by making false claims for payment of goods or services. This information is then communicated under seal to the United States Attorney’s Office and to the United States Department of Justice who ultimately makes a decision with respect to whether to “intervene” in the case. The term “under seal” means that the information is kept secret and is not disclosed to anyone other than the United States Attorney’s Office. This gives the government time to investigate the allegations in the Complaint prior to any public disclosure.

    What is intervention?

    Intervention is the process by which the United States Department of Justice takes over the prosecution of a False Claims Act case on behalf of the federal government. Specifically, a Department of Justice lawyer will enter an appearance on behalf of the government and will undertake all of the costs and investigation necessary to litigate the claim. Intervention typically takes place several months after a case has been filed and after the government has conducted its preliminary investigation of the allegations made in the lawsuit.

    How does intervention under the Act work?

    As explained above, a copy of the Complaint and all of the evidence compiled in a disclosure statement is sent to the Department of Justice. Both documents are filed “under seal,” meaning they are disclosed only to the government. The Department of Justice then makes a decision whether or not to intervene in the case after the case is filed, usually within 60 days to nine months. If the Department of Justice intervenes, they take over the case and the percentage of an award to the relator is between 15 to 25% of the amount recovered by the government. If the government does not intervene, then your lawyers have the option of prosecuting the action on your behalf. If your lawyers successfully prosecute the action and obtain a verdict at trial or settlement with the contractor, the claimant (referred to in qui tam cases as the relator) would be entitled to somewhere between 15 and 30% of the total amount of money recovered for the federal government.

    Is intervention in the best interests of the claimant?

    Intervention is almost always desirable because it means that the federal government will undertake all of the costs of prosecuting the action. Intervention does limit the amount of money that the claimant can obtain from the federal government. One of the benefits of the qui tam or false claims provisions is that an individual who reports government fraud can obtain a reward between 15 and 25% of the amount recovered by the federal government.

    How much money can be recovered for the federal government?

    The False Claims Act includes provisions that triple the amount of false claims recovered by the government plus civil penalties designed to punish the government contractor for making false claims. For example, if a contractor files a false claim with the federal government and cheats the treasury out of $100.00, under the tripling provisions of the False Claims Act (which multiplies the amount of the false claim by three times), the $100.00 false claim becomes a $300.00 false claim and that is the amount that the government obtains in damages. In addition to the tripling provision, a guilty party who submits a false claim to the federal government is liable for a civil penalty between $5,500.00 and $11,000.00 for each violation of the False Claims Act. Thus, an individual who submitted five false bills for $100.00 to the federal government could be liable for up to $1,500.00 in “tripled” damages and between $27,500.00 and $55,000.00 in civil penalties. If the full $70,000.00 was awarded by the court, the relator would obtain somewhere between 15 and 30% of that amount, depending on whether a private attorney or the Department of Justice prosecuted the action.

    What if I saw this on 60 Minutes and want to bring a qui tam action?

    Under the False Claims Act, publicly disclosed fraud (such as that shown in an investigative magazine) does not qualify for citizen recovery under the False Claims Act. The government may still be able to bring an action for violation of the False Claims Act, but individuals are barred from participating in a recovery because it has already been made public. The purpose of the Act is to reward those individuals with knowledge of fraud being perpetrated on the government who come forward and inform the governmental authorities of what is occurring. These individuals are often referred to as “whistleblowers” and in the past have saved taxpayers millions of dollars by reporting fraud and abuse.

    I have information about unreported government fraud. What should I do?

    Contact a law firm with experience in handling this type of case. Our firm has experience in bringing and prosecuting False Claims Act cases and we may be able to assist you in evaluating your case.

    Crash Worthiness FAQ

    What is crashworthiness?

    Crashworthiness means the protection that a motor vehicle (or other means of conveyance such as an airplane or train) affords its passengers against personal injury or death as a result of an accident. An automobile accident can often be broken down into two collisions. In the first collision, an automobile collides with another automobile or with a stationary object. The occupants of the vehicle usually sustain little or no injury at this stage. Personal injuries occur most frequently in the second collision, in which the occupants are thrown against or collide with some part of their automobile. Crashworthiness is concerned with those injuries resulting solely from the second collision, over and above those suffered in the first collision.

    What must manufacturers do to protect vehicle occupants from injuries?

    The law of nearly every state imposes a duty on automobile manufacturers to use reasonable care to make a reasonably crashworthy automobile. Courts have stated on numerous occasions that collisions are readily foreseeable as part of the normal and expected use of an automobile. And while automobiles are not made for the purpose of colliding with each other, an inevitable part of normal automobile use results in collisions and injury producing impacts. A manufacturer’s liability (legal responsibility for injuries) in a crashworthiness action is limited to the injuries caused by a defect; those injuries over and above the injuries that would have occurred as a result of the collision alone, absent a defect (unless the defect also caused the collision).

    How does your firm investigate a crashworthiness action?

    The most important evidence in a crashworthiness action is the vehicle(s) involved in the accident. We typically locate and purchase the accident vehicle and have it evaluated by automotive design experts. We inspect the accident scene, interview witnesses and hire an accident reconstructionist to assist us in determining how the accident occurred. We also use “biomechanical engineers,” people who are experts in the area of injury causation. They assist us in determining how a person’s injuries were caused and whether a defective design or manufacturing defect played a part in causing the injuries.

    What if the accident vehicle no longer exists?

    Although it is very important to preserve an accident vehicle in its post-accident condition, the accident vehicle may be at a location which you are not aware of, such as a salvage yard. Even if the accident vehicle no longer exists, if there are adequate photographs of the accident vehicle, sometimes these are enough to pursue a crashworthiness action. Although it is very difficult, we have successfully prosecuted crashworthiness actions without an accident vehicle.

    What types of crashworthiness actions does your firm handle?

    We handle all types of crashworthiness actions. We have represented plaintiffs in cases against General Motors, Ford, Chrysler, Subaru, Honda, Yamaha, Nissan and Toyota. We have investigated and pursued crashworthiness cases that involve failure to install appropriate safety equipment (such as seat belts and air bags); cases where a vehicle has caught fire after an accident; rollover accidents caused by an unstable vehicle, such as a sport utility vehicle; rollover accidents wherein the roof collapsed during the accident; accidents in which air bags have failed to deploy; and accidents involving safety equipment failure, such as the failure of a seat belt to properly restrain an occupant. We have even pursued a claim that the design of a locomotive engine with a nose door unnecessarily exposed the crew in the cab to risk of death by fire.

    What things are necessary to bring a crashworthiness lawsuit?

    To successfully prosecute a crashworthiness action, we must prove three things: (1) a defect in the automobile or a breach of a warranty regarding the vehicle; (2) causation; and (3) damages.

    What is a defect?

    There are three types of product defects: First, a “manufacturing defect”; a flaw in the manufacturing process, resulting in a product that differs from the manufacturer’s intended result. For example, the failure to include welds in the roof support structure of a vehicle, despite design drawings calling for the welds. Second, there are products which are “perfectly” manufactured but are nevertheless unsafe. This is called a “design defect.” For example, a vehicle designed with its fuel tank in an exposed place vulnerable to impact and rupture in foreseeable collisions. Third, products that are dangerous because they lack adequate warnings or instructions. A manufacturer who fails to warn users and consumers about potentially dangerous aspects of an automobile could be found responsible under a failure to warn theory. Crashworthiness claims are also sometimes founded on breach of warranty theories. Although there are many types of warranties (express, implied, etc.), the essence is that an automobile manufacturer promises that a vehicle will perform in a certain manner. If the vehicle does not perform as promised, and causes injuries and damages, the manufacturer may be liable under a breach of warranty theory.

    What is causation?

    Causation is a legal term which means that there must be a cause and effect link between the failure of an automobile manufacturer to provide a safe vehicle and the injuries that an individual suffered. For example, if a person is involved in an automobile accident and suffers serious head injuries because the air bag failed to deploy, it must be proven that had the air bag deployed, the driver or occupant would not have sustained the head injuries or that the injuries would not have been as severe.

    What are damages?

    There are two kinds of damages: economic and noneconomic damages.

    What are economic damages?

    Generally speaking, economic damages are anything that can be replaced with a checkbook. For example, if an individual loses two years from their job and they sustained the lost wages associated with a two year loss of employment, then an economic factor in their loss is lost wages; economic losses are easily measured in dollars. Similarly, where an individual performs normal household chores around the house, for example, cutting the lawn or doing the dishes, those tasks have an economic value and the economic harm associated with a person’s inability to perform those tasks can be recovered by the plaintiff in a crashworthiness action. So can any loss associated with a person’s inability to perform work in the future. For example, a housewife who is injured by a defective automobile may not have any income and so may not have any lost income. However, her earning capacity, if impaired by the defective automobile, can be a source of recovery even if the spouse was not working at the time. The nature of economic injuries is very broad and is beyond the scope of this small FAQ. If you have additional questions with respect to economic damages, please contact us by e-mail.

    What are noneconomic damages?

    Non-economic damages are those damages which cannot be quantified in a dollar amount. For example, the amount of pain that a person suffers as a result of an injury may or may not have an economic value, but it certainly has a non-economic value. In some states (Kansas, for example), non-economic damages are capped in all personal injury cases at $250,000.00. Thus, regardless of how severe the injury to the plaintiff, the maximum amount that person can ever recover for pain and suffering is $250,000.00. In Missouri, in crashworthiness actions, damages are not capped.

    What are punitive damages and may they be recovered in a crashworthiness action?

    Punitive damages (sometimes called exemplary damages) are awarded to persons over and above what fairly compensates them for their personal injuries. Punitive damages in crashworthiness cases are intended to punish an automobile manufacturer in situations where the manufacturer knew the automobile contained a defect but made a conscious decision not to warn about or correct the defect, or in situations where an automobile manufacturer knew of a certain design characteristic but recklessly disregarded the information and failed to take reasonable steps to prevent the harm. Punitive damages are rare, but available in appropriate cases.

    What if I caused the accident?

    This may not be the whole story, or fair to you. The crashworthiness theory recognizes that every accident has multiple causes, and focuses on the enhancement of resulting injuries caused by the defective vehicle. It is enough if the defect increased a person’s injuries. Any “fault” by a driver in causing the accident might not prevent one from recovering for injuries in a crashworthiness action. The extent to which your fault or the fault of another driver can be compared varies according to state law.

    If I bring my crashworthiness case to you, what will you do?

    The first thing we do is take steps to make sure the vehicle is preserved, if possible. We then interview the client to start the process of gathering facts and circumstances surrounding the accident, and to assess the severity of the client’s injuries. After we are comfortable that the case warrants further investigation, we get the police reports, interview witnesses, find and secure the accident vehicle, and then work with experts to reconstruct the accident, evaluate the vehicle’s design, and answer the biomechanical questions of injury-causation. After the investigation, if we believe there is a strong probability that a defect in the automobile caused or contributed to cause the client’s injuries, we meet with the client again and offer to pursue a crashworthiness case on their behalf.

    How do I know that you will do a good job on my case?

    We believe that experience and results count. Our firm has placed our biographies and several of our Newsletters on this website, which will give you a good sampling of our experience and results. Few law firms have the specialized knowledge, experience and resources needed to handle a crashworthiness case. We do. We are proud of our reputation as one of the premier crashworthiness law firms in the Midwest. We have a commitment to getting an excellent result in every case we decide to pursue, and our track record and credibility are extremely important to us. Please keep in mind, however, that every case is different and no result is guaranteed. All we can promise is our best effort and the benefit of our experience and resources on each and every case.

    Premises Liability FAQ

    What is "premises liability" law?

    “Premises liability” is the body of law that determines the responsibility of a property owner for injuries suffered by others while on his property. It includes circumstances arising while an individual is in the home or on the property of another individual, and while an individual is at another’s place of business.

    Under what circumstances is a property owner responsible for injuries occurring to individuals while they are on his or her premises?

    A property owner is not necessarily responsible simply because someone has been injured while on the property. Generally, a property owner is responsible for injuries on the property if the owner was “negligent.” A property owner is negligent if the property owner breached a duty of care owed to the injured individual. For example, an owner of a grocery store would likely have a duty to keep the floor dry (or post a warning if the floor is wet) in order to prevent shoppers from slipping and injuring themselves. An owner of an apartment of complex might have a duty to repair a broken stair so that a tenant or visitor descending the stairs would not get hurt. An office building owner would probably have a duty to comply with electrical safety codes in order that tenants in and visitors to the building would not be placed in harm’s way.

    What duty of care does a property owner have?

    The law that governs a property owner’s duty of care may vary depending upon the jurisdiction. In many jurisdictions, a property owner owes a property entrant a different duty of care depending on the status of the entrant as a business invitee, a social guest or a trespasser. A business invitee is on the property owner’s premises at the invitation of the property owner, and ordinarily for the mutual economic benefit of both. A social guest is on the premises at the invitation of the property owner, but not for the economic benefit of the owner. A trespasser is on the premises without permission. In those jurisdictions that base a property owner’s duty of care on the status of the entrant, the property owner generally owes the highest duty of care to a business invitee, and the lowest duty of care to a trespasser. Some jurisdictions no longer consider the status of the entrant and hold the property owner to the same duty for all entrants on the premises.

    How does our firm determine whether to file a premises liability lawsuit?

    We will recommend filing suit if we can meet our burden of proving (1) that the property owner was “negligent”, which means that the property owner breached the legal duty owed to the injured individual; (2) there is causation–meaning that the property owner’s specific act or acts of negligence caused the alleged injuries and damages; and (3) there are substantial damages which justify pursuit of such a case.

    What is "causation" in a premises liability case?

    Causation is an important legal principal which means the injured party must establish a direct connection between the negligent act or acts of the property owner and the injuries and damages claimed. For example, if the property owner defendant is able to demonstrate that the damages the injured plaintiff is claiming resulted from something other than the property owner defendant’s acts of negligence (i.e., the plaintiff had a preexisting physical condition that explains all of the plaintiff’s injuries and damages), causation would likely not be proven to exist.

    What damages does the law allow a plaintiff to recover in a premises liability case?

    Generally, the plaintiff is to be reasonably compensated for all injuries and losses resulting from the occurrence in question. Damages are divided in most jurisdictions between two general categories: economic (past and future), and noneconomic (past and future).

    What are economic damages?

    Generally speaking, economic damages include almost everything that can be replaced with a checkbook. This category of damages is very broad and will vary from case to case. Economic damages can include the reasonable expenses of necessary medical care; hospitalization and treatment; loss of income or earning capacity; the reasonable value of services provided by family members for free; the cost of hiring others to perform normal household duties; and the loss of the injured person’s services to his or her spouse. These losses are projected into the future based, among other factors, on medical testimony regarding continuing disability and future needs.

    What are noneconomic damages?

    Noneconomic damages are those losses which cannot be quantified in a dollar amount. The most prominent examples are pain and suffering, mental anguish, inconvenience, physical impairment or disability, disfigurement, and loss of enjoyment of life. The importance of categorizing damages as economic or noneconomic lies in the fact that noneconomic damages are often capped under state law. For example, in Kansas, noneconomic damages are capped in all personal injury cases at a maximum of $250,000, no matter how many defendants contributed to cause the injuries, and no matter how serious the injury. We often see cases where people’s lives are devastated by catastrophic injuries, but if they are children or elderly, economic losses are limited and the capped amount of noneconomic damages is unfairly inadequate. In contrast, Missouri has no caps on noneconomic damages in premises liability cases.

    Can punitive damages be recovered in a premises liability case?

    Punitive damages are allowed in order to punish the defendant and deter others from engaging in similar conduct. Ordinary negligence on the part of a property owner is not enough to allow a plaintiff to recover punitive damages. Rather, most jurisdictions require proof of misconduct beyond ordinary negligence. This would usually mean proof that the defendant acted in a “wanton or intentional” way, which would include the “reckless disregard” of a known danger to the plaintiff’s health and safety. It is often difficult to establish conduct on the part of the defendant sufficient to allow recovery of punitive damages.

    Is it necessary to use expert witnesses to prove a premises liability case?

    Experts witnesses are individuals specially qualified by experience or training who possess knowledge on matters not commonly understood by the general public. Experts can be used in premises liability cases when the experts’ testimony can educate the jury about matters not commonly understood by the general public. For instance, an expert might assist the jury in determining whether the property owner defendant complied with building codes and local ordinances. Medical experts and economists are usually necessary as well.

    Can a property owner be liable for criminal acts which occur on the property owner's premises?

    In many jurisdictions, a property owner can be liable for criminal acts committed against a person on the property if the property owner knew or had reason to know that an attack by a criminal was likely. This might require that a plaintiff establish a significant period of criminal activity on or about the premises that would put a reasonable property owner on notice that security measures were necessary to protect property entrants. Such liability on the part of a property owner might also arise in a case where a specific individual has threatened to do harm to the property owner, or someone else on the property owner’s premises. For example, if a property owner knew that someone had placed a bomb on his property and failed to evacuate the premises, he might be liable for injuries and damages that occurred as a result of the bomb.

    How do I know whether I have a premises liability claim that should be pursued?

    The best way for an individual to evaluate a premises liability claim is to discuss the matter with an attorney. An attorney will evaluate the matter through an investigation of the facts surrounding the potential premises liability claim, exploration of issues of “causation”, and assessment of the extent of injuries and damages resulting from the alleged “negligence” on the part of the property owner. Our firm handles such cases, and would meet with prospective clients to discuss and evaluate a potential premises liability claim.

    How do I know that you will do a good job on my case?

    We believe that experience and results count. Our firm has placed our biographies and several of our newsletters on this website, which will give you a good sampling of our experience and results. We have a commitment to getting an excellent result in every case we decide to pursue, and our track record and credibility are extremely important to us. We have handled a number of premises liability cases over the years, and have the experience and knowledge it takes to pursue such claims in an effective manner. Every case is different, however, and no result is guaranteed. All we can promise is our best effort and the benefit of our experience and resources on each and every case.

    Automobile Accidents FAQ

    Who Was at Fault And Does it Matter?

    Fault is always important. You should discuss the details of the accident with an attorney to assist you in making a decision about responsibility for the accident. In Missouri you may be able to bring a lawsuit even if you were equally or more at fault than the other driver. In Kansas if you are found to be 50 percent at fault or more, you will not be able to make a recovery.

    Are There Special Considerations in Serious Injury or Death Cases?

    In serious injury or death cases having an experienced, knowledgeable attorney is more vital than ever for many reasons. 1. These cases need aggressive, early investigation, which will include interviews with you, potential witnesses, and police officers. The investigation may also include a visit to scene with accident reconstruction experts and an examination of roadway or landscape features that may have contributed to the accident. You can be sure that the insurance company for the other driver is investigating for their side and you should have a lawyer looking out for you. 2. Serious injury and death cases involve complex medical issues on the injured person’s current condition, prognosis, and future medical care. It is important in these cases to have an attorney with the resources and experience to hire healthcare experts, life care planners, and economists who can evaluate what your future needs may be. 3. Insurance coverage issues also become extremely important in serious injury and death cases. A lawyer can examine the facts relating to the accident, take statements or depositions of the other driver and verify his insurance coverage, whether his employer may also be responsible or provide coverage for the accident, and evaluate whether your own insurance can help contribute to your compensation. Aggressive, thorough investigation also sometimes leads to the discovery of additional insurance coverage. 4. Product Liability and Roadway Defects. Many times an automobile accident was caused or contributed to be caused by roadway defects, missing traffic signs, or improperly maintained landscape. An attorney can visit the scene of the accident shortly after it occurs to document the conditions with photographs and videotape. Your accident also may involve product liability issues, where your vehicle did not protect you from the crash in the way it should have or perhaps a defect in the vehicle caused the crash. For example, an air bag may not have deployed, or the vehicle may have rolled over improperly and experienced roof crush that caused additional injury. Maybe the vehicle lacks certain safety features like electronic stability control (ESC) which are highly effective in preventing accidents. There are many possible product liability and roadway defect theories and in a serious accident it is important to have an experienced lawyer examine your potential claims.

    Will I Have to Go to a Jury Trial to Resolve My Case?

    Most lawsuits involving automobile accidents have an opportunity to be settled prior to a jury trial. However, many times to get the fair compensation that you are entitled to, you and your attorney must be prepared to go to trial and explain to the jury why you should receive a fair amount of compensation for your injuries and damages. In selecting an attorney it is important to find an experienced attorney with the resources and experience to take your case to a jury trial. Some lawyers are only interested in settling cases and do not have the resources or experience to take your case to trial. While no one looks forward to the prospects of a jury trial, in a serious injury or death case, you should be prepared to work with your lawyer and take your case to a trial if necessary.

    Who Will Pay My Medical Bills?

    Following a serious automobile accident, a family can be faced with mounting medical bills and questions about who will pay them. Consulting with an attorney about your accident can provide a valuable resource on several important issues. First, in some states like Kansas, there is “no fault” or “personal injury protection benefits” under your own insurance that can pay a limited amount of your bills right away. These benefits may also be available to pay you for wage loss and other types of out-of-pocket expenses. Your health insurance company may also pay medical bills, and this raises an important issue called “subrogation” or “right of reimbursement.” Subrogation or right of reimbursement means that if you are injured as a result of the negligence of another party and you make a monetary recovery from that party, your health insurance company may have a right to be paid back for some of its medical bills. Usually an experienced and competent attorney can evaluate your health insurance contract to see whether or not your case would be subject to subrogation or right of reimbursement, and if so, can work with the health insurance company to reduce or minimize the amount of money you may have to pay back after your case is resolved. We also assist our clients in obtaining Social Security disability benefits where appropriate, along with other government benefits to which they are entitled. Ultimately, you should keep careful records of your medical bills and out-of-pocket expenses and you can make a claim for these items against the driver who is at fault for your accident.

    How Do I Select the Right Attorney?

    Your selection of an attorney is an important part of getting your case resolved satisfactorily for you or your family. You can be sure that in a case of serious injury or death the insurance company for the other driver will have an investigator and an attorney working on their side of the case right away. You should move quickly to get an attorney who can represent you and protect your interests. In automobile accidents involving serious injury or death, you should look for an attorney and a law firm who has the knowledge, experience and resources to fully investigate and pursue your claims. You should find an attorney and law firm with experience with jury trials and also with the resources and experts necessary to help to stand up to the big insurance companies. Personal injury cases are frequently handled on a contingent fee basis. This means there is no charge to you for the attorney’s time or expense in pursuing your case and you only pay a fee when an attorney makes a successful monetary recovery.

    Product Liability FAQ

    What is product liability?

    Product liability is the body of law that provides for compensation for physical injuries and property damage resulting from defective and unreasonably dangerous products and from the failure of a manufacturer or seller to warn the consumer of product dangers.

    What is a "failure to warn" or "defective design" claim?

    Failure to warn is the claim that a manufacturer failed to provide directions for the safe use of a product or failed to warn the consumer against dangers inherent in product misuse. For example, a manufacturer who sells a pain killer without warning that use of the drug could impair the user’s ability to drive a car or operate machinery may be liable if the consumer is injured. Defective design is the claim that a product is, at the time it is sold, in a defective condition, unreasonable dangerous to the ordinary consumer. For example, a seller who designs a circular power saw which does not include a blade guard may be liable if the user suffers an injury from the unguarded blade.

    What if the consumer uses the product in a way which is not intended by the manufacturer and the consumer is injured?

    This is a concept known as “foreseeable misuse.” Manufacturers are required to anticipate the real world uses of their products and are responsible for “foreseeable misuse” by the consumer. Foreseeable misuse includes foreseeable product alterations by the consumer. A manufacturer must also warn a consumer of dangers associated with product misuse.

    What kind of claims can be brought for product liability?

    The alternative theories of liability in a product liability case are (1) strict liability; (2) negligence and (3) breach of warranty. Sometimes all three theories are pursued in one case.

    What is strict liability?

    Strict liability is the legal principle that a person or company which sells a product in a “defective condition” that is unreasonably dangerous to the ordinary user may be liable for any resulting property damage or physical injuries. The defect may be in the product’s design or manufacturing, in the product’s container or packaging, or in the instructions or warning necessary for the product’s safe use. In a strict liability case, the injured person is not required to prove the manufacturer or seller was negligent.

    What is negligence?

    Negligence is a breach of a duty owed by the manufacturer to the user in light of the reasonably anticipated harm arising from all reasonably foreseeable uses of the product. The duty includes design, manufacture, assembling, instructing and warning. In a negligence case the injured party must prove a violation of a standard of reasonable care by the manufacturer in the design or manufacture of the product.

    What is breach of warranty?

    A warranty is an expressed or implied representation about the product to the consumer. Common warranties are that the product is fit for the ordinary purpose for which it is used or that the product is fit for a particular specific purpose. Breach of warranty generally means that the product did not perform as represented or expected.

    What damages does the law allow in product liability cases?

    Generally, the plaintiff is to be reasonably compensated for all injuries and losses resulting from the occurrence in question. Damages are split into two general categories: economic (past and future), and noneconomic (past and future).

    What are economic damages?

    Generally speaking, economic damages include almost everything that can be replaced with a checkbook. This category of damages is very broad and will vary from case to case. Economic damages can include the reasonable expenses of necessary medical care; hospitalization and treatment; loss of income or earning capacity; the reasonable value of services provided by family members for free; the cost of hiring others to perform normal household duties; and the loss of the injured person’s services to his or her spouse. These losses are projected into the future based, among other factors, on medical testimony regarding continuing disability and future needs.

    What are noneconomic damages?

    Noneconomic damages are those losses which cannot be quantified in a dollar amount. The most prominent examples are pain and suffering, mental anguish, inconvenience, physical impairment or disability, disfigurement, and loss of enjoyment of life. The importance of categorizing damages as economic or noneconomic lies in the fact that noneconomic damages are sometimes capped under state law. For example, in Kansas, noneconomic damages are capped in all personal injury cases at a maximum of $250,000, no matter how many defendants contributed to cause the injuries, and no matter how serious the injury. We often see cases where people’s lives are devastated by catastrophic injuries, but if they are children or elderly, economic losses are limited and the capped amount of noneconomic damages is unfairly inadequate. Missouri does not have a cap on noneconomic damages except in medical negligence cases.

    What are punitive damages, and may they be recovered in product liability cases?

    Punitive damages are not based upon the severity of the injury to the plaintiff, but rather upon the need to punish the defendant and deter others from engaging in like conduct. Before punitive damages may be awarded, the plaintiff must prove that the defendant acted in a “wanton or intentional” way, which includes the “reckless disregard” of a known danger to the plaintiff’s health and safety. This must be proven by clear and convincing evidence. Punitive damages are extremely rare, but available in appropriate circumstances.

    If I bring my case to you, what will you do?

    We start with an interview to determine the facts as you know them, and make a judgment about whether the case is one which falls within our expertise and interests. The ensuing investigation begins with the collection of all pertinent records, including accident reports, product literature, company brochures, and medical records. We ask you to sign releases authorizing us to obtain these records. We then review and analyze the records. If we believe there is a strong possibility that a product was defective, we will submit it to the appropriate experts for review, asking them for their opinions on the issues of the defective nature of the product, damages and causation. This review can be quite expensive and time consuming (anywhere from $5,000 to $10,000 per expert and up, and often taking several months). The financial arrangements for investigations are determined on a case-by-case basis. If, after consultation with experts, we believe that we can satisfy our burden of proof, we recommend that the case be filed. We handle these cases on a contingent fee basis.

    What considerations are taken into account in determining whether you will file a case?

    There are legitimate and meritorious cases of product liability which we do not take as a matter of firm policy. We try to balance the probable result of a case, either by settlement or by jury verdict at trial, against the cost of obtaining that result. Product liability cases are extremely time-consuming, and absorb a tremendous amount of our firm’s resources. We handle product liability cases by a “team” approach, usually involving a principal attorney, an associate attorney, a paralegal, and one or more secretaries. In addition to our time and resources, product liability cases have a high out-of-pocket cost for experts, depositions, travel, research, trial exhibits, and many other things. In all cases, we must determine if the matter is “economically feasible.” We do not handle cases where the time, resources, and expense at risk outweigh the probable result we can obtain on behalf of our clients.

    How do I know that you will do a good job on my case?

    We believe that our experience and results in product liability cases count. Our firm has placed several of our newsletters on this web site, which will give you a good sampling of our experience and results in the product liability area. We have a commitment to getting an excellent result in every case we decide to pursue, and our track record and credibility are extremely important to us. Please keep in mind, however, that every case is different and no result is guaranteed. All we can promise is our best effort on each and every case.

    Medical Malpractice FAQs

    What is medical malpractice?

    In general, the terms “medical malpractice” or “medical negligence” refer to negligence cases brought by an injured patient against a health care provider or health care entity such as a hospital.

    What is negligence in a medical malpractice setting?

    In a malpractice case, the jury is instructed that negligence means the failure to use that degree of skill and learning ordinarily used under the same or similar circumstances by members of the defendant’s profession. This degree of skill and learning is called the “standard of care.” “The standard of care” is generally proven through the testimony of expert witnesses who establish the applicable standard and explain how the health care provider deviated from that standard. For example, the standard of care generally requires a physician to take an adequate medical history, to do perform an examination, order necessary laboratory studies, properly interpret the results and to evaluate the data in order to form a “differential diagnosis,” or list of possible explanations forth the patient’s presentation. A physician should also disclose significant risks and obtain informed consent from patients, give treatment only for proper medical reasons, prescribe correct medications, provide proper follow-up, obtain appropriate consultations, and provide patients with current therapy or treatment options.

    How does our firm determine whether to file a medical malpractice lawsuit?

    First, we must determine if we can meet our burden of proving three things: 1) that the health care provider breached the standard of care; 2) that there are substantial damages; and 3) causation, meaning that the breach of the standard of care caused the substantial damages.

    How do you select and find experts?

    “Experts,” in court, are people who are specially qualified by experience or training and possess knowledge on matters not commonly understood by the general public. In medical malpractice cases, there are often numerous experts needed on a variety of issues, including negligence, the nature and extent of the damages, and the causal link between the negligence and the damages. Our firm attempts to bring the highest caliber of expert witnesses to each case.

    What is causation?

    “Causation” is an important legal concept that means the negligent act of the health care provider must have caused, or contributed to case, the injuries and damages claimed by the patient. Many cases are defended on the ground that there is no causal relationship between the claimed damages and the alleged negligence. Consider, for example, a case claiming negligent failure to diagnose lung cancer resulting in a delay of a year or more in treatment, where the patient eventually died. The defense may contend that there was no causal relationship between the year’s delay and the death. The physician’s defense could be that the original cancer was not treatable in the first place, so the delay in starting treatment, while negligent, was of no causal consequence.

    What damages does the law allow in medical malpractice cases?

    Generally, the plaintiff is to be reasonably compensated for all injuries and losses resulting from the occurrence in question. Damages are split into two general categories: economic (past and future), and noneconomic (past and future).

    What are economic damages?

    Economic damages include almost anything that can be replaced with money. This category of damages is very broad and will be variable from case to case. Economic damages always include the reasonable expenses of necessary medical care, hospitalization and treatment; loss of income or earning capacity; loss of time; the reasonable value of services provided by family members for free; the cost of hiring others to perform normal household duties; and the loss of the injured person’s services to his or her spouse. These losses may be projected into the future on the basis of expert testimony regarding continuing disability and the cost of future needs or losses.

    What are noneconomic damages?

    Noneconomic damages are those losses which cannot be quantified in a dollar amount. The most prominent examples are pain and suffering, mental anguish, inconvenience, physical impairment or disability, disfigurement, and loss of enjoyment of life. The importance of categorizing damages as economic or noneconomic lies in the fact that noneconomic damages are often capped under state law. For example, in Kansas, noneconomic damages are capped in all personal injury cases at a maximum of $250,000, no matter how many defendants contributed to cause the injuries, and no matter how bad the injury. We often see cases where people’s lives are devastated by catastrophic injuries, but if they are children or elderly, economic losses are limited and the capped amount of noneconomic damages is unfairly inadequate. In Missouri, while most personal injury cases are not subject to damage caps, noneconomic damages in medical malpractice cases have a cap of approximately $350,000.

    What are punitive damages, and can they be recovered in medical malpractice cases?

    Punitive damages are not based upon the severity of injury to the plaintiff, but rather upon the need to punish the defendant and deter others from engaging in like conduct. While negligence by a health care provider may entitle the injured party to compensatory damages, both economic and noneconomic, negligent conduct does not subject the defendant to punitive damages. Before punitive damages may be awarded, the plaintiff must prove that the defendant acted in a “wanton or intentional” way, which includes the “reckless disregard of a known danger” to the plaintiff’s health and safety. This must be proven by clear and convincing evidence. Punitive damages are extremely rare in medical malpractice cases, but available in appropriate circumstances.

    I got worse after seeing my doctor, and I think my doctor made a mistake. Do I have a case of medical malpractice?

    Most people who come to us have both a poor treatment outcome and an unsatisfactory explanation of the reasons (or no explanation at all) from the health care provider. A poor outcome, in and of itself, is not medical negligence. An investigation of the true facts is necessary before we can say if you have a case. There are many explanations for poor outcomes. Sometimes conditions are not easily treatable and treatment simply fails. Doctors are not guarantors of results of even the best therapy. Sometimes treatment, like surgery or chemotherapy, carries a risk of complications, like infection, for example. As mentioned earlier, in some cases, the health care provider may, in fact, have been negligent, but the negligence may not have caused injury. Finally, there are some cases where there is clearly negligence that caused injury, but the damages are not sufficiently severe to justify the response of a medical malpractice case.

    Explain what you will do if I consult with you, and how much it costs?

    First of all, we will not charge you for any of the time we spend visiting with you or in the investigation of your case. We work on a contingent fee, meaning we are careful about what cases we accept because we only earn a fee if we win a recovery for our clients. We start with an interview to determine the facts as you know them, and make a judgment about whether the case is one which falls within our expertise and interest. The ensuing investigation begins with the collection of all pertinent medical records directly from the health care providers. We ask you to sign releases authorizing us to obtain these records. We then review and analyze the records to determine exactly what happened, and then research the medical literature to identify questionable areas of medical practice. If we believe there is a strong probability that medical malpractice occurred, we will submit your records to appropriate experts for review, asking them for their opinions on the issues of negligence, damages and causation. This review can be quite expensive and time-consuming (anywhere from $2,000 to $10,000 per expert). The financial arrangements for investigations are determined on a case-by-case basis. If, after consultation with experts, we believe that we can satisfy our burden of proof, we recommend that the case be filed.

    What considerations are taken into account in determining whether you will file a case?

    There are legitimate and meritorious cases of medical malpractice which we do not take as a matter of firm policy. We try to balance the probable result of a case, either by settlement or by jury verdict at trial, against the cost of obtaining that result. Medical malpractice cases are extremely time-consuming, and absorb a tremendous amount of our firm’s resources. We handle medical malpractice cases by a “team” approach, usually involving a principal attorney, an associate attorney, a paralegal, and one or more secretaries. In addition to our time and resources, medical malpractice cases have a high out-of-pocket cost for experts, depositions, travel, research, trial exhibits, and many other things. As previously mentioned, in all cases, we must determine if the matter is “economically feasible.” We do not handle cases where the time, resources and expense at risk outweigh the probable result we can obtain on behalf of our clients.

    What is the possibility of a quick settlement if my doctor made a terrible mistake?

    In our collective experience, quick settlements can occur, but almost never in amounts that are realistic or reasonable. If you are willing to deeply discount and compromise your claim, there are health care providers and insurance carriers who will be glad to buy you off very cheaply. If you want a settlement that is fair and reasonable, do not expect that to happen quickly. Health care providers are reluctant to admit mistakes, and almost routinely insist that their insurance companies defend them aggressively. It is usually not until thirty days before trial that serious settlement discussions occur. In the venues in the Kansas City metropolitan area, most medical malpractice cases can be resolved within eighteen months to two years, more or less. Therefore, we tell our clients not to anticipate a quick settlement, but rather to get on with their lives and be very patient in regard to settlement. Impatience can be extremely costly, considering what is at stake in these cases.

    How do I know that you will do a good job on my case?

    We believe that experience and results count. Our firm has placed our biographies and several of our Newsletters on this website, which will give you a good sampling of our experience and results. We have a commitment to getting an excellent result in every case we decide to pursue, and our track record and credibility are extremely important to us. Please keep in mind, however, that every case is different and no result is guaranteed. We can, however, promise our best effort and the benefit of our experience and resources on each and every case we accept.