Truth, Justice and the American WayI'm cynical. In three days I'll turn 61. Like every young lawyer I graduated with ideals intact and ready to take on the world to right the wrongs of the world. Having a law license would give me a seat at the table where wrongs were righted and where the bigger they are the harder they would fall. But today I'm cynical.

I earned my cynicism the hard way, by trial and error. I used to think the Court system was here to administer justice through a search for the truth, but anymore I’ve come to realize it probably isn’t about fairness or truth from the Court’s standpoint. That’s up the Plaintiffs’ lawyers to try and get to in their case-in-chief or through cross examination. The defense could care less about truth and fairness because for their clients it’s all about saving money and getting out as cheap as possible. And I do understand and appreciate that point of view. And while I can see their point of view, I just can’t live it, because when I head to the hardware store and see a person who was involved in a case in which I was an attorney, I need to be able to look them right in the eye, smile and say hello. The defense lawyers don’t get that, they get a glare. And that’s why they hang out at the country clubs and play golf with the insurance elite. There they get a smile, “Hey nice work screwing that widow and those orphans! Can I buy you a martini?

Today’s question is about what happens when the main plaintiff dies during the litigation and whether the claim dies with them. Here, read with me.

Question: My mom was seriously hurt, we have a stack of medical bills to prove how much and how long she suffered just from the fall. She had her whole right shoulder replaced, physical therapy for months after, while she was battling cancer. I personally think they had more than enough time to settle or at least make an offer, over 3 years she waited for them to settle. She died Dec 29 2011 and her trial was then set for April 2012 and it was thrown out. Can I appeal it she has a will with my aunt to speak on her behalf and the deposition on file? My mom died of cancer and she had a pending personal injury case which she had her deposition can we use that and still settle?

My Answer: First know I’m sad your mother died and my comments are meant in no way to marginalize your pain and sorrow. I’m a litigator, a lawyer who for 35 years has been on the receiving end of callused defense lawyer arguments and the snide comments of insurance adjusters. They hate me, but not because I’m a bad guy, but because I take their nickels and dimes, rob from the rich and give to the poor. I’m not Robin Hood, but maybe what I do comes close.

In Iowa your mother's claim continues so long as you open an estate and substitute the executor of the estate as the named plaintiff. You're lawyer should either know how to do this or that he/she needs to hire someone that does. You will need to quickly open an estate and move to substitute the Estate Executor as the main plaintiff. So no your case isn’t over with, you simply have a few more hoops to jump through.

Now, let’s talk about the cancer and the three years the case has been in litigation. If the defense knew she had cancer there would be no incentive to pay her quickly unless she was willing to settle for a smaller amount than the case was reasonably worth. If there is one thing the insurance industry understands its death. If they knew she had cancer and was terminal they would just sit back and take a wait and see approach. Do I like that or condone it? No I don’t like it, but realistically if you were being sued and the plaintiff was terminal would you tell your lawyers to pay them or wait? You see it’s not fair to the plaintiff, but don’t ask the defense that same question because they will send you back to my hardware store and to the aisle with screws.

During pending litigation, if a party has terminal cancer, we always take their deposition in order to preserve their testimony.

I can’t blame your lawyers for any of this because they didn’t cause the cancer and are placed in a bad situation of having to deal with how it affects her lawsuit. Also consider the fact her case may have been a tough liability balancing act. While I have few facts to assess the type of litigation it appears it was tossed out but by whom; the court or a jury? Why was it dismissed? Was it a fact or a legal problem? Was the problem in the proof or with the legal cause of action? No case is a slam dunk and any case can be lost for any number of reasons.

I know little about the merits of your case but in any litigation the parties at some point need to consider a loss a loss and move on with their lives. Should you move on with yours? I have no idea, because again I don’t know enough about your case to give specific advice. But in litigation as in life, death is a fact that changes everything.

Best of luck, and sorry to hear about your Mom.

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