I’m Katelyn Holub, an attorney focusing on personal injury law in northwest Indiana.

Welcome to Personal Injury Primer, where we break down the law into simple terms, provide legal tips, and discuss personal injury law topics.

Today’s question comes from a caller concerned about her daughter who was injured when the car her boyfriend was driving was hit by a train.

She wanted to know her daughter’s legal rights.

Railroad crossing crashes are often complex and require extensive investigation.

In the caller’s case, the boyfriend driver died, and the daughter who was injured as a passenger was in a coma in the ICU.

The caller said she knew of no witnesses to the crash as it happened late at night at a rural grade crossing.

The crossing did have a flasher and bells, but no gate.

The crossing had poor visibility due to its angle, steep incline, and overgrown brush. Though the crossing had an active warning device in the form of a flasher and bells, the caller said she has to cross at the same crossing every day and has noticed that sometimes the flasher does not come on at all, or comes on when a driver is so close to the tracks that you cannot see the flasher. She says she almost got hit the week before but was lucky and slammed on her brakes.

A police report that the caller obtained said the police asked neighbors near the crossing if they heard a train whistle at about the time of the crash. No neighbor recalls hearing a whistle or horn or any other sound besides the crash.

As we analyze the legal options of the daughter of the caller, it is fair to first observe that a driver traveling on a highway must exercise ordinary or reasonable care in approaching a railroad crossing to avoid injury.

It is possible that an investigation will reveal that the deceased boyfriend was at fault, in which case his auto insurance may be required to make good up to policy limits on a judgment obtained against the estate of the deceased driver. The caller did say that there were empty beer cans found in the car, so perhaps the boyfriend was drinking.

But, what is the duty of the railroad, and the railroad engineer?

An operator of a train has a duty to exercise the care an ordinarily prudent person would use, under the same or similar circumstances. The failure to exercise such care is negligence.

In the absence of legislation regulating the speed of railway trains in rural districts, a railroad company has the right, as between it and travelers on the highways, to run its trains over country crossings at any speed it may choose, subject to the common law rule of reasonable care.

Generally, speed alone is rarely negligence in the absence of a statute or ordinance limiting speed, but railroads must regulate speed with proper regard for human life.

It is also the duty of railroad companies to give signals required by statute when approaching a public crossing, and a breach of this duty constitutes negligence. So if a statute requires a horn or whistle, the train operator must give the signal required and it can be negligent if a warning signal is not given.

In the caller’s case, it also would be advisable to investigate federal law dealing with grade crossing protection. Perhaps the railroad was required to have gates. Perhaps the flashers were set to activate so as to give a motorist enough warning for a train going 45 mph but did not activate soon enough because the train was going 70 mph, as confirmed by the event recorder on the train.

Another area to investigate would be federal and state laws governing the removal of overgrown brush at a crossing. Especially brush that would block the view up and down the tracks by drivers stopped at the crossing. This may be grounds to hold the railroad negligent given the angle of the crossing and the steep incline, both of which would magnify the danger posed by failing to clear away overgrown brush.

I hope you found this information helpful. If you are a victim of someone’s carelessness, substandard medical care, product defect, work injury, or another personal injury, please call (219) 736-9700 with your questions. You can also learn more about us by visiting our website at DavidHolubLaw.com – While there, make sure you request a copy of our book “Fighting for Truth.”

I’m Katelyn Holub, an attorney focusing on personal injury law in northwest Indiana.

Welcome to Personal Injury Primer, where we break down the law into simple terms, provide legal tips, and discuss personal injury law topics.

We have alluded to in past episodes that Indiana has an evidence rule, called Rule 413, which provides that statements of charges for medical, hospital, or other health care expenses for diagnosis or treatment occasioned by an injury are admissible into evidence and constitute proof that the charges are reasonable.

The rule does not explicitly limit itself to medical charges that have already been incurred.

Can this rule be used to admit proof of medical bills likely to be incurred in the future?

I would argue no.

However, some attorneys have tried, so far unsuccessfully, to admit a letter from a doctor stating that in the future the injured person will need to have surgery and that the surgery will cost X dollars for the surgeon and hospital care required.

It makes sense to not permit future charges to be proven simply by a handwritten estimate of future charges.

The thing that makes existing charges credible is that they are for services already rendered and the charges can be compared against existing billing practices to determine if the charges are fair and reasonable.

No such protections exist for future charges.

So far, court decisions hold that the only way to establish future medical costs is through the admissible testimony of a competent medical witness.

The witness must be competent to testify as to charges for services. Further, the medical need for the future services in question must be supported by the testimony of a medical witness who has testified that the proposed care is reasonable and necessary and related to the injury incident in question.

Could Indiana courts change in the future, and rule that you can prove future medical bills by just submitting an estimate from a doctor?

I suppose anything is possible. That’s what makes the future such an interesting place to visit.

I hope you found this information helpful. If you are a victim of someone’s carelessness, substandard medical care, product defect, work injury, or another personal injury, please call (219) 736-9700 with your questions. You can also learn more about us by visiting our website at DavidHolubLaw.com – while there, make sure you request a copy of our book “Fighting for Truth.”

I’m David Holub, an attorney focusing on personal injury law in northwest Indiana.

Welcome to Personal Injury Primer, where we break down the law into simple terms, provide legal tips, and discuss personal injury law topics.

Often times when a case is taken to trial there will be an issue involving the admissibility of vehicle photos taken following a collision.

Usually if little or no vehicle damage is visible in the photos the defense will want the photos admitted into evidence. The plaintiff in such cases will typically want the photos excluded.

Why would the defense want a juror to see a photo that shows very little vehicle damage?

Usually, the defense will seek to admit a photo showing minimal damage in the hope that they can get the jury to draw an inference that the occupant of the car could not have been injured.

In other words, the defense will want to use the photo to argue to the jury that because there was no serious damage to the vehicle the occupant could not have been seriously harmed.

Keep in mind that this conclusion does not follow either logically or scientifically.

We’ve all seen an egg carton where the carton is undamaged but one of the eggs inside is damaged.

One cannot scientifically draw any valid conclusions from a photograph that shows little or no damage to a vehicle upon impact as to the nature and extent of any injuries suffered by the occupants.

Without an expert to link the vehicle damage photo to the forces felt by an occupant at impact, it is generally impermissible for a judge to allow a jury to see a photo that shows little damage on grounds of a lack of relevancy to the question of occupant injuries.

As a threshold matter to admissibility the defense must establish that a photograph is relevant.

Where the sole issue to be tried by the jury is the causation of the nature and extent of a plaintiff’s injuries, photos will not be relevant as photos cannot show whether an occupant was damaged.

However, if the suit is seeking compensation for vehicle damage, then of course the photos will likely be relevant.

The Society of Automotive Engineers has published papers on the subject and made it very clear that vehicle damage and occupant damage are not capable of being causally linked. Still, a juror might be tempted to link vehicle crash damage due to collision to the degree of occupant injury. Which is why a judge likely will exclude the photos from evidence.

Where medical causation is the only issue, then only medical causation evidence is admissible on the subject of occupant injury.

Unless one of the parties offers an expert opinion causally linking the property damage photos to the nature and extent of the injuries the photos will not be admissible.

Further, even if relevant, the photos may be unfairly prejudicial and thus excludable on the issue of unfair prejudice.

The reason is that a jury member, despite being instructed not to do so, may upon seeing the photos want to draw a causal conclusion.

I hope you found this information helpful. If you are a victim of someone’s carelessness, substandard medical care, product defect, work injury, or another personal injury, please call (219) 736-9700 with your questions. You can also learn more about us by visiting our website at DavidHolubLaw.com – while there, make sure you request a copy of our book “Fighting for Truth.”

I’m David Holub, an attorney focusing on personal injury law in northwest Indiana.

Welcome to Personal Injury Primer, where we break down the law into simple terms, provide legal tips, and discuss personal injury law topics.

Indiana is a farm state.

Agriculture is a big industry and includes not only farmers, but grain elevator operators, machinery manufacturers, and all the people who work in this sector of business.

There are many types of injuries which can occur on the farm.

Most of the agricultural machinery has safety guards in place to protect operators and those assisting the operators. However, often times the safety equipment does not work, or for a variety of reasons people end up getting injured.

Today most farm tractors have an enclosed cab, much like the inside of a car or truck. A farmer may take a child in the cab to ride the tractor with them as they pull tilling equipment around a field. But what if the cab door pops open, as the tractor hits a rough spot, causing the child to fall out and be injured? Can the manufacturer be held responsible? It will often depend upon the facts.

There are other types of equipment that can lead to injury. For example, a hay bailer is a complex machine with a lot of moving parts. Suppose a farmer reaches over a tying mechanism and his sleeve is caught in the gears. Such contact with spinning gears can result in amputation very quickly.

Consider another situation where a farmer is trying to remove a stump by wrapping a chain around the stump and pulling it with the tractor. What happens if the tractor flips and crushes the farmer or those standing nearby assisting the farmer? Is an injury of this type one where compensation can be obtained for the injury or death suffered? Would the chain manufacturer be potentially liable? Or, the tractor manufacturer? Or both?

As in most situations, the answers will depend upon the facts. But keep in mind that the statistics are very high for disabling farm injury and death claims.

Farm machinery is often extremely powerful. Sometimes safety mechanisms fail as the equipment ages. Sometimes safety equipment is bypassed.

Sometimes the equipment is so large that an operator will not be able to see around blind spots and may end up running over someone. This danger has led manufacturers to place remote Bluetooth-operated cameras at key points connected to a screen in the cab to enable the operator to essentially see around corners or see camera images when backing. But are such safety features enough? And, what if one machinery manufacturer offers such cameras, but competitors do not?

As in all equipment injury cases, the Indiana Products Liability Act will come into play. The Act applies where there is any alleged design defect in a product or a failure to provide adequate warnings or instructions regarding the use of the product or other circumstances that have led to the product being unreasonably dangerous to the ultimate users of the product.

Often you’ll find in these types of cases an injury involving a farm worker getting hurt, who is perhaps a teenager, or someone not well trained.

I hope you found this information helpful. If you are a victim of someone’s carelessness, substandard medical care, product defect, work injury, or another personal injury, please call (219) 736-9700 with your questions. You can also learn more about us by visiting our website at DavidHolubLaw.com – While there, make sure you request a copy of our book “Fighting for Truth.”

I’m David Holub, an attorney focusing on personal injury law in northwest Indiana.

Welcome to Personal Injury Primer, where we break down the law into simple terms, provide legal tips, and discuss personal injury law topics.

Experienced legal assistants and paralegals can be instrumental in helping a lawyer prepare a case for trial. But only lawyers can practice law.

Sounds simple, but just what does it mean to “practice law?” Is there a comprehensive definition of what constitutes the practice of law?

In simple terms, the practice of law includes having a license that permits the lawyer to appear in court and represent another person. But, in a broader sense, the practice of law is primarily characterized by the giving of legal advice and counsel.

But, if the core element of practicing law is giving legal advice and counsel, where do legal assistants and paralegals fit in?

Can assistants give legal advice?

The answer is a definite no. Legal assistants are not permitted to provide legal advice.

Giving legal advice and counsel is the sole role of the lawyer.

To be effective the lawyer has to have the confidence of the client, and the two need to establish a sensitive working relationship wherein the client feels free to share confidential information with the attorney, and the client feels comfortable letting the attorney manage the affairs of the client.

Nevertheless, a legal assistant can be extremely helpful in gathering information that the attorney and client need for the attorney to give advice and assist the client. A legal assistant can coordinate meetings, organize and summarize information, research aspects of the facts and law of a case, and report their findings to the lawyer.

Still, it is the attorney who must analyze the gathered information and advise and assist the client.

Legal assistants and other law office staff members cannot operate an attorney’s law office or conduct business on behalf of clients while an attorney is out of the office.

Nor can a lawyer delegate or subcontract out the management of a client matter to a non-lawyer.

A lawyer cannot leave non-lawyers in charge of a case.

In short, while the work of legal assistants is critical to the practice of law, the activities of legal assistants and other law office staff members must be carefully supervised by the lawyer.

I hope you found this information helpful. If you are a victim of someone’s carelessness, substandard medical care, product defect, work injury, or another personal injury, please call (219) 736-9700 with your questions. You can also learn more about us by visiting our website at DavidHolubLaw.com – While there, make sure you request a copy of our book “Fighting for Truth.”

I’m David Holub, an attorney focusing on personal injury law in northwest Indiana.

Welcome to Personal Injury Primer, where we break down the law into simple terms, provide legal tips, and discuss personal injury law topics.

In past episodes, we have discussed accident reconstructionists.

If you have watched home remodeling shows you have likely seen how they will use a computer-connected camera to scan a room.

They are taking laser precise measurements during this scan.

Once they have a scan of the room they will show computer simulations of how the room might look with different cupboards and fixtures.

The simulation or animation allows everyone to quickly visualize the room with different looks.

Accident reconstruction experts use similar technology.

They will scan a crash scene, scan in photos from the scene, grab data from Google Earth imagery, and reconstruct a crash scene. They can also use lasers to measure vehicle crush against the actual vehicles involved in the crash.

Once they have the scene and vehicle information, they can simulate different scenarios based on assumptions of vehicle size and weight, speed at impact, weather conditions, and the like.

The experts can use their 3D models of the scene and vehicles to illustrate their testimony in court.

An animation of this sort can be very powerful and instrumental in explaining to a jury what happened at the moment of impact.

The animation visually depicts what happened, and even can include several different views and slow-motion segments.

Animations are what is called demonstrative evidence. The animation visuals demonstrate the reconstruction expert’s opinion.

It can take much work to create an accurate animation, but it takes less than 5 minutes to display the animation to the jury.

I hope you found this information helpful. If you are a victim of someone’s carelessness, substandard medical care, product defect, work injury, or another personal injury, please call (219) 736-9700 with your questions. You can also learn more about us by visiting our website at DavidHolubLaw.com – while there, make sure you request a copy of our book “Fighting for Truth.”

I’m Katelyn Holub, an attorney focusing on personal injury law in northwest Indiana.

Welcome to Personal Injury Primer, where we break down the law into simple terms, provide legal tips, and discuss personal injury law topics.

Occasionally we have a client who asks if all of their medical records will be viewable by the defendant’s attorney.

The answer is that it depends on how the court rules.

But most of the time by filing a personal injury lawsuit, a plaintiff does not open up their entire medical record to pre-trial examination by the opposing party and counsel.

Absent litigation, medical records are protected by the physician-patient privilege. Courts generally hold that as to conditions relevant to the lawsuit, the party filing suit waives the physician-patient privilege.

However evidence regarding a prior physical condition not related to the injuries being claimed often is held to be not discoverable or admissible.

Only medical matters in the medical records, pertaining to the injury complained of, have probative value.

Unrelated matters would be calculated to mislead and confuse the jury and would work to the prejudice of the plaintiff.

Here is an example, a person complains of a back injury suffered in a car crash in 2023. In their medical history, they had a complaint of back pain in the year 2010. The record shows they had counseling for alcohol addiction in 2008.

A court might well find that the 2010 back pain complaint is discoverable, and at the same time find that the treatment for alcohol addiction in 2008 shall remain private.

Here is how a court will analyze the issue, where evidence of prior pain or conditions logically relates to the injuries complained of, the information will be discoverable and likely admissible.

An exception to allow discovery and admission of a seemingly unrelated condition would be if the condition reasonably would impact life expectancy.

Where a person is complaining they will experience back pain for the rest of their life, but their life likely will be cut short as a result of a terminal illness, then the condition is discoverable and admissible.

I hope you found this information helpful. If you are a victim of someone’s carelessness, substandard medical care, product defect, work injury, or another personal injury, please call (219) 736-9700 with your questions. You can also learn more about us by visiting our website at DavidHolubLaw.com – while there, make sure you request a copy of our book “Fighting for Truth.”

I’m Katelyn Holub, an attorney focusing on personal injury law in northwest Indiana.

Welcome to Personal Injury Primer, where we break down the law into simple terms, provide legal tips, and discuss personal injury law topics.

In Indiana, a catastrophically injured worker often will qualify for lifetime medical care.

What do I mean by catastrophically injured?

Take, for example, a worker who suffers an injury rendering them wholly or partially paralyzed. Such a worker often will qualify for paid medical care for life under the work injury laws in Indiana.

Such a catastrophically injured worker also will typically qualify for Medicare, or after a several-year waiting period will qualify for Medicare.

For a number of reasons, settlements of catastrophic work injury cases can be difficult.

Why? Because the attorney representing the injured worker must fashion a partial settlement that does not foreclose the catastrophically injured worker’s ability to get needed future medical care. At the same time, the attorney defending the claim will want to limit a payout on future medical care costs.

This typically leads to a stalemate.

What makes a settlement even more difficult is that Medicare will step in to make sure the burden of future medical care is not shifted to Medicare by the workers compensation insurance carrier as part of a settlement.

Medicare has great leverage to protect its interests. If the catastrophically injured worker were to run out of medical care money under a negotiated settlement with the workers compensation carrier, Medicare could penalize the insurance carrier and others involved in the settlement.

On the other hand, if a case is kept open and unresolved, both the catastrophically injured worker and the workers compensation carrier have ongoing risk, which is not good for either party.

A lack of proper medical care could lead to premature death. While a  family may be entitled to workers compensation death benefits under the Indiana Workers Compensation Act, this benefit rarely will compensate a family for the loss of a breadwinner.

On the other hand, if the catastrophically injured worker lives a normal life expectancy, the workers compensation insurance carrier may be required to spend millions of dollars to provide the required statutory medical care.

So the injured worker in need of ongoing care, and the insurance carrier paying out medical benefits, both have an incentive to arrive at a settlement under arrangements approved by Medicare.

The big question then becomes is there a middle ground where all parties can settle in a way that will garner Medicare approval?

Most of the time the answer is yes.

What does Medicare typically want to accomplish? It wants to see the workers compensation carrier fund the bulk of ongoing medical care, and make sure Medicare is only a last resort payor should settlement funds run out.

How can a settlement be accomplished in such cases? Typically it involves a structured settlement approved by Medicare, which we discussed in Podcast Episode 280.

I hope you found this information helpful. If you are a victim of someone’s carelessness, substandard medical care, product defect, work injury, or another personal injury, please call (219) 736-9700 with your questions. You can also learn more about us by visiting our website at DavidHolubLaw.com – while there, make sure you request a copy of our book “Fighting for Truth.”

I’m Katelyn Holub, an attorney focusing on personal injury law in northwest Indiana.

Welcome to Personal Injury Primer, where we break down the law into simple terms, provide legal tips, and discuss personal injury law topics.

You may have heard that at trial, upon motion of one of the parties, the court can issue an order separating witnesses.

What does this mean?

It means that if the court orders the separation of witnesses until a witness testifies, the witness needs to stay outside of the courtroom and not hear or see another witness testify.

The reasoning behind such an order is that it prevents witnesses from coordinating their stories.

In theory, a separation of witness order makes sense. But what about witnesses attending the depositions of other witnesses?

The same principle applies. Without a court order, a potential witness in a case can attend the deposition of another witness.

Of course, a party can seek a motion for a protective order to prevent one witness from attending the deposition of another witness or prevent the reading of a deposition transcript before testifying in a deposition themselves.

But in practical terms does this work?

Consider experts for example. Many experts must base their opinions on what witnesses testify as to their observations.

For example, in a medical negligence case, an expert consulted by the plaintiff will almost always need to know what the target defendant doctor has to say about the medical treatment or lack thereof at issue. It would be shocking if a court were to issue an order preventing the disclosure of a treating doctor’s testimony in such a situation.

A party to a lawsuit, however, can never be excluded from a proceeding.

For example, if a husband and wife are both suing for injuries suffered by the wife in a crash, a court cannot exclude either of them from attending each other’s depositions, or the depositions of the defendant, and cannot exclude them from being in the courtroom at trial while other witnesses testify.

I hope you found this information helpful. If you are a victim of someone’s carelessness, substandard medical care, product defect, work injury, or another personal injury, please call (219) 736-9700 with your questions. You can also learn more about us by visiting our website at DavidHolubLaw.com – while there, make sure you request a copy of our book “Fighting for Truth.”

I’m Katelyn Holub, an attorney focusing on personal injury law in northwest Indiana.

Welcome to Personal Injury Primer, where we break down the law into simple terms, provide legal tips, and discuss personal injury law topics.

You may have heard that the U.S. Constitution guarantees a right to a jury trial in a civil lawsuit. While that is technically true, judges have over 200 plus years greatly watered down that right.

One of the many ways judges have restricted jury trials is by entertaining a type of motion which asks them to summarily rule on a case and thereby take a case away from a jury.

The motion is not surprisingly called a summary judgment motion.

A summary judgment motion is treated differently in state and federal courts.

Not surprisingly, federal court judges step in to rule on cases, taking them away from the jury, much more frequently than do state court judges.

Under Indiana law, a party moving for summary judgment has the burden of establishing that no genuine issue of material fact exists, and once the moving party has met this burden, the burden shifts to the nonmoving party to establish that a genuine issue does in fact exist.

Let’s pause for a second.

Why does the rule require the court and parties to focus on whether a genuine issue of material fact exists?

Well, obviously all lawyers know that the Constitution exists and guarantees a jury trial.

Some lawyers see the Constitution as an obstacle. When people see an obstacle, their tendency is to find a work-around that obstacle.

So the traditional time-tested way around the Constitution is to file a motion with the judge saying in effect “Judge, the facts are so clear and not in dispute, so there is really no need, judge, to waste time calling together a jury. In fact, judge, the facts are so clear that no jury would ever rule in any way except in our favor, so we ask you to summarily rule in our favor, judge.”

As we just said, in Indiana, the nonmoving party can avoid summary judgment and still take their case to a jury by showing the judge that a genuine dispute as to material facts exists.

But the federal standard is much different.

If you are in a federal court, summary judgment is required to be granted against a party who fails to establish an essential element of that party’s case.

This may seem like a slight difference in language, but it is a huge difference. It gives a federal judge much more leeway to take a case away from a jury.

Why is this issue important?

Because if a defendant can somehow land a case in federal court, they have a higher percentage chance of getting the case tossed out of court and avoiding a trial by jury.

Defendants know that statistically, juries are much tougher on defendants overall.

Juries are made up of non-lawyers. Juries often see through legal smoke screens that big corporate defendants raise in court.

A plaintiff’s odds of winning increase greatly if they can get their case heard by a jury.

A defendant’s odds of prevailing increase greatly if a jury never hears the case.

I hope you found this information helpful. If you are a victim of someone’s carelessness, substandard medical care, product defect, work injury, or another personal injury, please call (219) 736-9700 with your questions. You can also learn more about us by visiting our website at DavidHolubLaw.com – while there, make sure you request a copy of our book “Fighting for Truth.”