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Infertility Damages in Personal Injury Cases

Infertility can be a shocking side effect of many types of personal injury. Whether as a consequence of direct physical injury, or due to necessary courses of treatment, infertility may be a significant contributing factor in a person’s post-injury recovery. Someone who was planning to have children and no longer can, or who must now go through expensive fertility treatments to do so, may have the option of adding those issues to a list of demands in litigation.

Infertility as a form of damages

In a personal injury lawsuit, the injured plaintiff demands compensation for the damages associated with the injury that can be attributed to the defendant’s bad behavior. Plaintiffs typically base their claims on a range of well understood things like medical bills, property damage, and lost wages. A lawsuit may also seek recovery for so-called noneconomic damages, like a plaintiff’s suffering. Infertility can be a factor in both types of damages. This is because infertility can have elements that are relatively easy or relatively difficult to quantify. On the one hand are cases where an injury forces the plaintiff to undergo expensive fertility treatments or psychological therapy to overcome emotional trauma specifically stemming from loss of fertility. The costs of such treatments have clear sources. On the other hand, the plaintiff’s emotional suffering may have an abstract dimension as well. The costs of losing the ability to have a child can in many ways be more abstract than concrete.

The problems of proof

To receive compensation for any type of damages a plaintiff in a personal injury case must be able to prove the damages with reasonable certainty. Infertility is an example of an injury that raises challenges of proof for a plaintiff. There are several reasons why this can be so, including these:
  • Causation. A plaintiff’s fertility problems may have more than one cause. In cases where a clear line can’t be drawn between the plaintiff’s infertility and the defendant’s negligence, the plaintiff will need additional resources, such as the testimony of a medical expert. Likewise, a defendant likely will try to raise doubts about whether the plaintiff has proven the case, for example by asking for evidence that the plaintiff had no fertility problems prior to the injury.
  • Emotional harm is harder to prove. For plaintiffs who seek damages for suffering of any kind, issues of proof can raise extra challenges. Infertility may raise especially difficult questions, as plaintiffs may need to “prove” their interest in having children and how infertility has affected them. A plaintiff’s attorney can take steps to protect the client from overzealous defense lawyers, but ultimately the client will need to decide whether pursuing these sorts of damages is worth the emotional cost.
The law firm of Greenman Goldberg Raby Martinez represents clients in the Las Vegas area in personal injury and auto accident litigation. We are proud of our firm’s long history of providing clients with complete, personal service.  For a free attorney consultation about your case, call us today at 702-388-4476 or contact us through our website.

Gross Negligence in Nevada Personal Injury Cases

A personal injury lawsuit usually involves making a claim of negligence against a defendant. For negligence to apply, the defendant must have breached a legal duty of care owed to the plaintiff. Many legal duties require a person to act reasonably with respect to some hazard: a driver is expected to take reasonable care to drive safely, a homeowner is expected to take reasonable precautions to prevent injuries to guests. In an ordinary personal injury case, the reasonableness standard can lead to close calls, requiring careful argumentation and a close analysis of the facts of the injury. Sometimes a personal injury results from behavior that is well beyond what anyone could term “reasonable.” In such cases a plaintiff can pursue a claim of gross negligence, which is distinguished from ordinary negligence by the availability of punitive damages to a successful plaintiff. In many respects a gross negligence case is no different from an ordinary negligence case. The plaintiff still has the burden of proving each of the elements of negligence in order to prevail. The defendant must have owed the plaintiff a duty of care, as determined by statute, regulation, or legal precedent. The defendant must have breached that duty of care, and as a consequence of that breach the plaintiff must have suffered a harm that can be compensated through the legal process. A claim of gross negligence must be supported by an additional set of facts laid on top of the ordinary negligence case. In 1941’s Hart v. Kline case, the Nevada Supreme Court explained gross negligence as “an act or omission respecting legal duty of an aggravated character as distinguished from a mere failure to exercise ordinary care. It is very great negligence, or the absence of slight diligence, or the want of even scant care.” In essence, gross negligence is behavior that falls just below an intentional act to hurt someone. This is an important distinction for plaintiffs, who don’t need to prove the intent of the defendant. Instead, they need only show that the defendant’s behavior reflected an indifference toward the potential risks posed to others. A plaintiff in a gross negligence case can seek compensation for damages related to the injury, such as medical bills and consideration for pain. The prevailing plaintiff can also ask the court to grant punitive damages. Punitive damages may be granted in cases where the court determines that the defendant’s actions were so wrongful that the defendant should be required to pay what is effectively a punishment. Punitive damages are intended to send a signal to the rest of the world, to deter the behavior that led to the plaintiff’s injury. Note that statutes sometimes limit the availability of punitive damages, or limit how large a punitive damages award can be. For more than 45 years the law firm of Greenman Goldberg Raby Martinez has represented clients in personal injury cases. If you have been injured by someone’s gross negligence, please reach out to us today for a free attorney consultation. Call us at 702-388-4476, or ask us to call you through our contact page.

How Fault is Determined in Nevada Auto Accidents

Determining fault is a key component of deciding who pays for injuries and property damage that result in a car crash. Deciding who is at fault requires an analysis of the facts surrounding the accident: who was involved, what were they doing at the time of the accident, where did the accident occur, and so forth. As in many states, Nevada applies rules of negligence to determine who is at fault in an accident.

Accidents typically happen due to negligence

Like many personal injury cases, a car accident often happens because at least one driver was acting negligently. In Nevada every driver has a duty to operate his or her vehicle in a careful manner. This duty is owed to other drivers and their passengers, as well as pedestrians, cyclists, and anyone else who happens to be on or near the roadway. For negligence to apply, the duty to drive with care must have been breached, and as a consequence of the breach the plaintiff suffered an injury. In some accidents, determining fault is a fairly straightforward matter. If a driver who was involved in the accident was breaking a law or regulation at the time of the accident, that driver may be said to have been committing negligence per se. This moves the burden of proof from the plaintiff to the defense and makes a successful outcome for the plaintiff significantly more likely. Examples of this sort of behavior might include driving under the influence of alcohol or drugs, running a red light, or speeding.

Is it true that everyone involved in a crash is at least partially to blame?

A truism says that in an accident there’s always an element of blame shared between everyone involved. The assumption is that even an injured bystander might have done things differently to prevent the accident or at least reduce the harm done. For legal purposes, the reality is that some accidents are entirely the fault of one driver. But there are cases were blame can be spread around, least to a degree. Nevada is a modified comparative negligence state. This standard says that a court can reduce a plaintiff’s recovery from the defendant by the extent to which the plaintiff’s negligent actions contributed to causing the accident or the resulting damages. If the plaintiff is found to be 50% or more at fault, the defendant can walk away without owing anything. As an example, if both the defendant and the plaintiff were speeding at the time of the accident, a jury may conclude that the plaintiff’s breaking the speed limit contributed 5% to the cause of the crash. In any auto accident case involving serious personal injury, it’s important to consult with an attorney even if an insurance company appears to be handling the case the right way. For more than 45 years the law firm of Greenman Goldberg Raby Martinez has represented Las Vegas clients in personal injury and auto accident cases. Reach out to us today for a free attorney consultation about your accident. We can be reached at 702-388-4476 or through our site.

Lane Departure Warning Systems Can Prevent Accidents

Lane departure warning systems are among the new innovations auto manufacturers are building into their cars to help drivers avoid accidents. The systems use sensors built into the car to detect a lane and sound an alarm if the driver veers out of the lane. Some systems will even take partial control of the vehicle to keep the car moving in a straight line. For drivers who are distracted or tired, this feature can be a significant safety enhancement. Lane departure systems raise interesting legal questions that can become important in the event that a vehicle equipped with such a system gets into an accident. Here are some potential issues that can arise:
  • The system doesn’t work as intended. Perhaps the most interesting question for drivers is how reliable a safety feature like lane detection really is. Will the car always know what a lane is? If the car can impede steering in some way, could that create its own safety hazards? For someone who is injured in an accident where a safety system may not have worked correctly, a products liability case against the manufacturer of the car or its safety system may be an appropriate remedy.
  • A driver disregards warning signals. How much liability does a driver have if a lane departure system provides an audible warning, but the driver ignores it? Drivers may have a good argument that having an optional safety system does not create an explicit legal obligation to pay attention to it. However, disregarding a car’s warnings may provide one important piece of evidence that a driver was not paying attention at the time of the accident. As such, ignoring the lane departure system may form at least part of a foundation for a claim of negligence against the driver.
  • The system was turned off at the time of the accident. Lane departure systems are typically equipped with a switch to turn them off. Some drivers don’t like to hear alarms every time they change lanes. Some don’t the idea of the car taking control. And as already mentioned, just because an optional system is onboard doesn’t mean that the driver has an obligation to use it. That a system is disabled could be a factor in an accident if a driver is used to having it on, but for whatever reason it has been turned off and the driver isn’t aware of it. In such cases, the driver may be relying on the system to drive in an irresponsible way, such as texting while driving with the expectation that the system offers a degree of extra safety. In a sense, this kind of driver may actually be less safe as a consequence of placing too much reliance on a safety feature.
When an accident involves complex questions of technology, it’s important to have an experienced accident attorney at your side. For more than 45 years the law firm of Greenman Goldberg Raby Martinez has represented Las Vegas clients in personal injury and accident cases. Reach out to us today for a free attorney consultation about your accident. We can be reached at 702-388-4476 or through our site.

Using Cell Phone Memory as Evidence in an Accident Lawsuit

Cell phones are constantly gathering and sending data. Last year a Princeton study determined that some phones even track their users’ location if GPS and location tracking is manually disabled. An individual’s every screen view, not to mention texting or other forms of deliberate use, can be recorded in a phone’s memory. After an accident, all of this data can sometimes offer insights into the causes and responsibility for the accident. In the aftermath of an accident the people involved in the incident typically turn to their insurance companies for help resolving issues of fault and compensation. In a minor accident, such as one involving damages that don’t exceed the at-fault driver’s policy limits, questions of evidence may not arise. The two insurers may simply resolve the case following a routine process. A more complex accident case, however, may hinge on a close analysis of the facts surrounding the case. This can be especially important if the accident involved significant personal injuries, where the amount of potential liability is large. In such cases, both sides have a substantial incentive to uncover evidence that is favorable to their position. Cell phone data can be one source of such evidence. Here are some examples:
  • Phone data that shows that the individual was texting or using data functions, like a web browser, at the time of the accident.
  • Data that contradicts testimony. For example, if a defendant is suspected of having been under the influence of marijuana at the time of the accident, but there is no police toxicology report in evidence, the defendant’s phone may reveal that the defendant visited a pot dispensary shortly before the accident.
  • Data to prove concrete details about the accident itself. An individual may have taken video or photographs in the lead-up to the accident, or afterward. If those records don’t support the individual’s case, the individual may unlawfully try to delete them.
Getting ahold of cell phone evidence can be a challenge. Evidence can be subject to a subpoena, a court order that requires a party to provide the evidence to the other side even against objections. Some forms of data are not readily accessible to users and may require additional technical steps that require the help of outside consultants. If an individual has tried to delete information, the information may need to be recovered using special software. If the evidence can be used to prove a key component of a case, these efforts are worth the customary expense. For more than 45 years the law firm of Greenman Goldberg Raby Martinez has served clients in the Las Vegas area in personal injury and accident cases. We are happy to provide free attorney consultations to individuals who have been injured in an accident. Call 702-388-4476 or contact us through our website.

Obligations to Preserve Evidence After an Accident in Nevada

When someone is injured in an accident the first priority is always to ensure that the injury is promptly treated. As the aftermath of an accident unfolds, a potentially huge array of important information can be generated and recorded. Things like photos of the scene, the identities of witnesses, and specific conditions of the drivers and their vehicles can all play important roles in any ensuing litigation. If one side of the litigation deliberately or negligently destroys or loses track of evidence (what the legal community calls “spoliation” of evidence) the consequences for that side of the case can be significant.

Intentional versus negligent spoliation of evidence

Spoliation of evidence falls within a spectrum. At the most serious end are acts to deliberately destroy evidence that might serve to help the other side or hurt your own. For example, if a driver potentially caused an accident while distracted by his cell phone, he would commit spoliation if he threw away the phone to eliminate the possibility of it being investigated for evidence of his use at the time of the accident. In such cases the party that has committed the willful act of spoliation will be subject to a rebuttable presumption that the evidence so destroyed would have been adverse to the party. In short, the plaintiff in the case could rely on the defendant’s missing cell phone to prove that he was using it, even though the phone itself was not available. NRS 47.250. At the less extreme end of the spectrum lies negligent destruction of evidence. In the cell phone example, if the defendant simply lost his cell phone, perhaps because it fell out of his pocket on the bus leaving the accident, he might argue that the loss of the phone wasn’t deliberate. Courts have leeway to hold negligent spoliation against the party that caused it, but absent proof of intent there may be more leniency given depending on the circumstances.

What sort of evidence should you preserve?

Spoliation of evidence works in both directions in a trial. The plaintiff and the defendant each have an obligation to take steps to ensure that evidence doesn’t get lost or destroyed before it can be analyzed and made a part of the litigation. Any evidence that could be used to tell the story of the accident and the injuries suffered by the plaintiff could be subject to spoliation. In addition to the cell phone example cited above, there are many other kinds of evidence that could be germane, such as these:
  • Photos taken after the accident.
  • Damaged cars themselves, especially if the damage tells a story and is repaired without at least first being photographed and documented.
  • Notes taken after an accident, especially if they include the names and contact information of witnesses who otherwise are unknown.
When a defendant causes spoliation of evidence the plaintiff can gain a significant advantage. Someone who has been injured in an accident and feels that important evidence has been lost or destroyed should not give up hope of recovering compensation. An attorney can examine the facts of the case to determine whether a claim of spoliation is likely to succeed. The law firm of Greenman Goldberg Raby Martinez has represented clients in personal injury and auto accident cases for over 45 years. We are happy to provide free attorney consultations to help injured individuals examine their legal options. Call us today at 702-388-4476 or through our contacts page.

Suing for Psychological Harm After an Accident

An accident that results in serious physical injuries often does considerably more harm than what may be outwardly visible. People who have been in an accident can suffer a broad range of psychological effects from the accident. Some effects stem directly from the accident itself, like post-traumatic stress disorder (PTSD). Others can be a consequence of living with the limitations that come with a serious injury, or from side effects of treatment. Depression, emotional imbalances, and struggles with interpersonal relationships are just a few examples of the kind of psychological harm an accident can cause. Accident victims may have the option of pursuing damages for their psychological suffering as part of their lawsuit to recover compensation for other costs associated with their injuries. In a personal injury lawsuit, damages typically fall within one of two categories. Economic damages cover concrete costs that have been or are reasonably expected to be incurred by the injured plaintiff as a consequence of the defendant’s negligence. Economic damages include things like medical bills, lost wages, and property damage. Noneconomic damages capture the more abstract categories of harm for which a straightforward “invoice” isn’t readily available. Compensation for pain and suffering is an example of noneconomic damages. A psychological injury may have components of each type of damages. To the extent that the plaintiff’s psychological harm can be established as a medical problem, its associated costs may be regarded as a form of economic damages. If the psychological harm is less a matter of medical diagnosis and more a question of subjective opinion, it may be more likely to fall within the scope of noneconomic damages, as a form of “suffering.” The distinction between economic and noneconomic damages is important in part because Nevada caps the amount a plaintiff can recover for certain types of damages. For example, in Nevada a plaintiff cannot recover more than $350,000 for pain and suffering damages. If a damages cap applies to a specific category of damages it’s important for the plaintiff’s attorney to ensure that damages are not miscategorized to the client’s detriment. Proving psychological harm can be a challenge in any personal injury case. Psychological problems are often difficult to diagnose. Among other things, the plaintiff must be able to prove that the psychological harm was caused by the defendant’s negligence and not another cause. For example, a plaintiff who had an existing alcohol problem before the accident may have a hard time arguing that the accident triggered a more serious alcohol dependency. To prove psychological harm, the testimony of a psychiatrist can assist the court’s analysis. Testimony from friends and family about how the accident affected the plaintiff can also be valuable. For more than 45 years the law firm of Greenman Goldberg Raby Martinez has represented clients in personal injury and accident cases. We take care to ensure that each client is given the attention they deserve. In pursuing our clients’ interests we take into account every aspect of their wellbeing, including the kinds of psychological effects that the accident may have had. For a free attorney consultation about your case, please call us today at 702-388-4476 or reach us through our contact page.

Proving Causation in Challenging Personal Injury Cases

In every personal injury case the plaintiff must be able to prove that the defendant’s actions (or inactions) was the legal (or “proximate”) cause of the plaintiff’s injuries. Causation is always an issue, even if it is relatively simple. Not every case is as straightforward as “A struck B and B was hurt.” When connecting the dots from the defendant’s negligence to the plaintiff’s injury is not easy, the plaintiff’s attorneys must focus on establishing a strong case for causation. Tracing the consequences of a defendant’s negligence can be difficult for a number of reasons. That is because causation is complicated by a number of related factors:
  • Time. When time passes between a defendant’s negligent action and the resulting injury, showing causation can be more difficult. This is partly because important evidence can be lost to time, as physical evidence can be destroyed, memories can fade, and important witnesses cease to be available (for example, if a key employee of a business defendant is no longer working there).
  • Intervening causes. For a defendant to be held liable for an injury there must not be an intervening act of negligence that could also have caused the injury. Sometimes the plaintiff’s own negligence may have contributed to some or all of the damages suffered by the plaintiff. Other times another person’s wrongful actions were the real cause of the injury, but that person hasn’t been identified. The more time that has passed, the more likely the defendant will argue for intervening causes.
  • Scientific proof. Causation can require a highly technical analysis. The analysis may be of mechanical evidence, such as the failure of a product’s components. Or it may be medical, as in cases involving cancer or other illnesses that are slow to develop. When specialized knowledge is required to prove causation, the plaintiff’s team must make provision for it in their case if they hope to prevail.
Plaintiffs faced with complex causation challenges can overcome them using several approaches. The first is simply the process of uncovering evidence through discovery. In discovery both sides in the litigation ask for documents and conduct interviews (depositions) of individuals with knowledge about the facts of the case. Discovery often uncovers important facts that can be useful for establishing causation where it might otherwise remain hidden. In many cases an expert witness can help the plaintiff provide technical analysis of the causal elements related to an injury. Experts are often invaluable in assisting judges and juries as they examine issues that require more than a commonsense understanding of the facts. Experts are hired by the plaintiff’s attorneys and their fees are typically taken out of the final award, but because their input can be decisive, they are often worth the expense. Proving causation is at the core of a personal injury attorney’s practice. Experienced attorneys know how to use the tools at their disposal to craft winning arguments. For more than 45 years the law firm of Greenman Goldberg Raby Martinez has represented Las Vegas clients in personal injury cases. For a free attorney consultation about your case call us at 702-388-4476 or contact us through our site.

Admissions of Fault After an Accident in Nevada

Although it isn’t necessarily enough to build an entire case upon, a defendant’s admission of fault can be a powerful piece of evidence in litigation following an accident. An admission of fault might be as simple as an apology, or as detailed as a description of exactly how the fault took place. After an accident if the at-fault driver says something like, “I wasn’t looking where I was going and ran into you!” that statement will be a key part of making sure the defendant is held responsible for paying for the plaintiff’s damages. An admission of fault can come in several forms. Any of these could be used as an admission of fault:
  • Apologizing after an accident. Although many states have what are called “apology laws” that prevent a simple “I’m sorry,” from being used to prove fault, Nevada is not one of them. That means that an apology can be used to help show fault.
  • Posting about an accident on social media. After accidents many defendants make the mistake of admitting fault to their friends and family in emails or social media. Such admissions are discoverable by plaintiffs in litigation, and can undermine the defendant’s contrary arguments in court or in depositions.
  • Admitting fault outside privileged contexts. Beyond electronic communications, admitting fault in a conversation that isn’t covered by a legal privilege—a discussion with an attorney, for example—can serve as evidence just as effectively as a social media post. OF course, the plaintiff needs to know about the conversation to use it.
Just because the defendant admitted fault doesn’t mean that the plaintiff has a slam dunk case. A defendant can always provide countervailing evidence that explains the alleged admission in a variety of ways. A reflexive “I’m sorry” may have little evidentiary value once examined in the context of other facts. The admission may have been made before the individual had a chance to fully understand all the facts of the accident. For more than 45 years the law firm of Greenman Goldberg Raby Martinez has helped clients in the Las Vegas area recover compensation for injuries suffered in auto accidents. If you have questions about your legal options following a serious accident, we are happy to examine your case. Please call us today for a free attorney consultation at 702-388-4476 or reach us through our contact page.

I Don’t Recall: Handling an Imperfect Memory in Litigation

The fallibility of memory has far-reaching influence on how the legal system works. It is one of the important justifications for statutes of limitation, which limit the amount of time someone has to file a lawsuit. It shapes rules governing how evidence is gathered and used. And it plays a significant role in shaping the burdens each party to litigation must bear as they work to establish the facts of the case. Memory is almost always an issue in litigation. Oral testimony about events necessarily requires witnesses to remember events that happened months or even years before. Mistaken impressions can render a particular memory unreliable. For example, it’s easy to not see every detail of the roadway even in normal driving conditions, but someone who has been in an accident may be sure about important details that in fact were quite different than what memory retained: a light that she remembers being red was actually green, and so on. But intervening events can also shape memory. People telling their stories about events may embellish facts, and in time those embellishments could become part of the memory itself. People will also protect themselves from painful memories by unconsciously forgetting or changing details. Everyone has a different aptitude for remembering things. At one end of the spectrum are people with the rare gift of remembering tiny details many years later. At the other end of the spectrum are people suffering from brain injury or disease, who might not be able to remember what happened to them just a short time earlier. Most people fall in the middle: they’re able to remember important facts, but they might not recall the small details that are critically important to the case. Because memory is so complicated and diverse, attorneys use a number of strategies to verify information, including these:
  • Giving witnesses access to records. If it’s helpful to a witness, lawyers can provide them with documents that are already in evidence, such as letters, notes, emails, and so on, to give them a reference that might help them remember important details. This process always requires care, because showing a witness a record can alter the witness’s memory. The adversarial context of litigation serves to limit the potential for distortion.
  • Finding corroborating evidence. If oral testimony raises inconsistencies it can be helpful to examine other sources of information to compare with what witnesses have said. As they say, a photograph is worth a thousand words.
  • Examining the witness. In some cases, especially those where the most important evidence is oral testimony, the witness may be asked many questions that are designed to test the witness’s overall reliability. Ultimately the power of oral testimony is determined by how reliable it appears to be. Attorneys may try to undermine the value of a given witness by demonstrating that the witness’s memory is highly faulty.
For over 45 years the law firm of Greenman Goldberg Raby Martinez has represented Las Vegas clients in cases involving personal injury, workers’ compensation, and other controversies. Our attorneys work with clients to determine how memory may play a role in their case, so that solutions can be found to potential challenges before they become problems. To learn how we can be of help in your case, call us today for a free attorney consultation. We can be reached at 702-388-4476 or send us a request through our site.