Posted by Sansone / Lauber Trial Lawyers on June 18, 2011SHARE IT
An important issue in a St Louis car accident injury claim, or any personal injury claim, is causation and proof of damages through medical testimony. The legal and medical professions both play major roles in a car accident lawsuit. You need a good personal injury attorney and you need a doctor that is willing to back you up and testify on your behalf. See previous article by St Louis injury lawyer Ben Sansone: Proving Medical Damages in a Missouri Personal Injury Case and The Sudden Onset Rule in Missouri Auto Accident Claims.
The plaintiff (injured party bringing the case) has the burden of proof, meaning they must prove their case before a jury can find in their favor. So the plaintiff’s car accident lawyer will put on evidence that the accident was the defendant’s fault and then medical evidence, through doctor testimony, that the Plaintiff is injured from the accident, current state of their injuries, and likely future problems.
Oftentimes, Defense counsel for the insurance company will send the Plaintiff for an IME (Independent Medical Examination) especially when there were pre-exisitng and related injuries or the defense disputes causation.
But what if the defense does not do an IME and does not call any doctor to dispute causation, yet the lawyer argues causation at trial to the jury? As a St Louis personal injury lawyer, I have run into this situation a few times and I argue to the jury to draw an adverse inference from their failure to bring evidence to the trial but still argue that defense.
This argument to the jury about the failure to bring in a doctor to support their causation defense is supported by Missouri case law. In Hemann v Camolaur, Inc., 127 S.W.3d 706 (Mo Ct. App WD 2004), the Plaintiff’s injury attorney argued to the jury in closing argument that the defense failed to call a doctor or provide any evidence to support their defense of causation. However, this is a fine line that needs to be walked by a personal injury trial attorney; if the argument jumps from pointing out the lack of evidence to telling the jury to actually draw an adverse inference from the lack of evidence, a court could determine that the argument went too far and was too prejudicial.
The above argument and many others need to be made at an injury trial and the extent you go with each argument depends on the facts of the case and the particular judge that you are in front of. To what extent a lawyer can make many of these trial arguments depends on the judge as the extent a lawyer can make certain arguments or pursue a certain line of questioning oftentimes lies within the discretion of the trial judge. For example, as discussed above, make an adverse inference argument about failure to call certain witnesses without actually asking the jury to draw an adverse inference.
Ben Sansone is an experienced St Louis car accident and personal injury lawyer. If you have been injured as the result of an auto accident call today for a free consultation with an experienced and skilled Clayton trial lawyer.