There are no shortcuts in this business. You get no breaks as a Plaintiff or Plaintiff’s lawyer. In fact the deck is stacked against you on the Plaintiff side, because the burden of proof is on us to prove the case. The Defendants do not have to do anything and they can still win. That doesn’t ordinarily happen unless you have a statute of limitations problem, but this point of them being able to do nothing and still win, should drive home the idea about the burden of proof.

Let us consider REED v. SCHAEFFER No. 13-1923 from the plaintiff's perspective.

In this case the Plaintiffs needed one or two more experts to get to the jury on certain issues they chose to present; which because the experts were not called, the jury was not allowed to consider all the issues. In today's case of Reed v Schaeffer I do not know why the experts were not called to testify. The written decision gives some hints, but because I had no role in preparing the case, I am unwilling to speculate. Today let's look at a few reasons why experts may not be hired. 

Experts are expensive. Not everyone can afford to hire experts. A lawyer might spend $5,000 to hire a toxicologist. Experts in a personal injury case are similar to high-end options you can buy with the newest model of a car. We can equate the quality of litigating a case with the cars we drive. Not everyone can afford to drive a Mercedes, some people drive VW Beetles. Experts may not be hired because the decision is made that they are not a necessary expense. Some road trips do not require an RV. Just as you make comfort choices in planning a road trip there are similar trade-offs in litigation. With cars if you get in an accident you have a greater risk of loss in the smaller, lesser expensive car. Litigation is no different. I often ask myself, which car do you want to drive in this lawsuit? The Caddie or the VW?

When the decision to not hire experts is made the risk of loss will increase on these issues; sometimes dramatically. Litigation is work and clients need to appreciate their case will move ahead with some problems, especially if medical experts are not hired, asked to issue written opinions and then to present testimonial evidence at trial.

In this case it is not possible to tell why a toxicologist opinion was not timely provided to the opposition or why testimony was not offered at the time of trial. We can only read the Court’s opinion and don’t know if one was hired and the opinion wasn’t favorable or if the decision was made to just not spend the money to hire a toxicologist. Some cases are not worth hiring experts because the damages are not expected to be great enough to justify the cost. We do know the Court made a few pre-trial rulings concerning discovery answers that seemed to have hurt the Plaintiffs’ case. It is always best to move the case along and to serve expert opinions within a reasonable time after receiving an opinion from your expert. Do otherwise and it is sort of like playing Russian roulette. That is unfortunate because the punitive damages were only $2.00 and with expert testimony may have been higher.

Lawyers are called on to make difficult decision with unknown and sometimes unpredictable consequences.

For whatever reason it appears a toxicologist’s opinion was never entered into evidence and on the issue of punitive damages only nominal damages were awarded. In this case nominal damages meant $2.00.

Were there other options for litigating this case? 

There are several option lawyers make every day about case selection. First, you can turn down the case, but that won't pay the bills so it is often times not viable. Another option for lawyers who are either inexperienced, underfunded or who just don’t do enough personal injury trial work to be comfortable in trial is to associate with co-counsel to share the burden of work and expense. Both the work load and the expense are negotiable. Just keep in mind that whichever lawyer holds the laboring oar and who assumes the burden of advancing the litigation expense will get a larger share of the fee. We act as co-counsel in many instances and realize our brothers and sisters in rural Iowa need to earn a living while avoiding the risk of litigation. If we can help you don't hesitate to call us. 

Here is the case if you are interested to read it.

The defense attorney is Martha Shaff from Betty-Neuman, who is a very seasoned and competent trial attorney.

REED v. SCHAEFFER No. 13-1923 


            Appeal from the Iowa District Court for Scott County, Mark D. Cleve, Judge.  Heard by Tabor, P.J., and Bower and McDonald, JJ.  Opinion by Tabor, P.J.  (14 pages)  

            A jury awarded the personal-injury plaintiffs compensatory damages and nominal punitive damages following a car collision caused by the intoxicated defendant.  At trial the defendant stipulated fault, and the plaintiffs did not present any expert medical testimony.  On appeal, the plaintiffs raise numerous issues based on the district court's denial of their post-trial motions.  OPINION HOLDS: We decline to grant relief to the plaintiffs on any of their issues.  First, because the plaintiffs did not present evidence from a toxicologist on the effect of the defendant taking a prescription drug the night before the collision, the district court did not abuse its discretion in excluding this speculative evidence.  Similarly, the court did not abuse its discretion in excluding a police car video as a discovery sanction.  We also uphold the district court's ruling denying the plaintiffs' motion for a new trial based on allegedly inadequate damages.  Defense counsel's statements during closing argument were not false, nor did they misstate the record.  Assuming error was preserved on the issue of future damages, we uphold the district court's determination expert testimony was required before future damages could be submitted to the jury.  Finally, two of the plaintiffs' claims (PowerPoint and special master) cannot be considered on appeal because the plaintiffs did not preserve those issues for our review.

Steve Lombardi
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Iowa personal injury, workers' compensation, motorcycle, quadriplegic, paraplegic, brain injury, death
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