PROVING TINNITUS IN PERSONAL INJURY LITIGATION: ONE LAWYER’S EXPERIENCE
Tinnitus is an injury commonly resulting from trauma. If that trauma was caused by negligence, it can form the basis for a personal injury lawsuit. If you are pursuing injury litigation, there are steps you can take to maximize the settlement value and jury appeal.
How does one prove what the tinnitus sufferer experiences? Here is a personal example from a client who had incessant ringing in his ears after a simple fender bender. I contacted the American Tinnitus Association (ATA) and purchased a CD called “Sounds of Tinnitus” for $10. I sent the disc to my client and asked him to identify the sounds he hears. Although tinnitus has many different sounds, the client was able to find multiple sounds on the CD similar to what he heard after the accident. I then sent the disc to the insurance adjuster, indicating the sounds my client had identified.
The claims representative was impressed with the CD. It also provided a way for a jury to be able to hear what the client hears and feel what the client feels as a result of his tinnitus. This would help them fully appreciate the effect the accident had on the plaintiff. That is why this case settled successfully. Insurance companies often drag out litigation, but his case settled then and there.
While ATA does not sell this particular CD any longer, if you find yourself in a personal injury situation, you can find something similar to this CD for free at ATA.org/sounds-of-tinnitus which can help you demonstrate the sounds you hear. This will help your lawyer, the insurance company, its lawyers, the judge and the jury understand the extent of your suffering.
Another example is a case I know of where the lawyer downloaded the Emergency Broadcasting tone we have all heard on the radio or television because that’s the sound the client heard all day and all night. By placing this sound on a loop and playing it for the jury, the jury literally got into the head of the plaintiff.
In closing arguments during tinnitus jury trials, I tell them, “This tone is the first thing my client hears in the morning, and the last thing he hears at night. More often than not, it’s what he hears all night as he struggles for blissful relief in sleep. His ears will stop ringing when his heart stops beating, and then, but only then, will he have peace and quiet for the first time since he was rear ended.” These techniques are very effective in producing verdicts and settlements.
You might be asking yourself, if it is permissible to play the “Sounds of Tinnitus” for a jury. Isn’t it prejudicial? Isn’t it unfair? The answer is yes and no. This evidence is prejudicial, but not unfairly. It accurately allows the jury to assess the plaintiff’s situation and that’s always permissible.
As long as the lawyer accurately simulates his client’s experience, it should be admissible as evidence. It is necessary in crafting demonstrative evidence tools like these to authenticate them to prove that the sounds played for the jury accurately represent what the client hears. During my client’s Otolaryngologist’s (ENT) deposition, I played the disc and the doctor testified that it was accurate. The client also testified that this is what he hears. That’s all there is to it.
I also always suggest that my clients become active with ATA and tinnitus support groups. Not only will they derive direct benefit from this but it shows that you are doing everything in your power to recover from your injury. By joining ATA and seeking solutions to your tinnitus, you show that you are doing this.
Another thing that may help is to keep a journal that tracks all of the treatments you have tried to alleviate your tinnitus and what effect they had, if any. You can log how tinnitus affects your daily life. If your tinnitus causes you to sleep poorly, experience weight gain because of fatigue and not being able to work out, or weight loss, etc., note that in your journal. The loss of quiet time, the inability to sit and read a good book, watch TV, engage in quiet conversation, etc. all figure into how a jury decides.
Tinnitus can be caused in many ways, sometimes as the result of the carelessness of another. In the last few months I have been retained by people whose tinnitus resulted from:
Entry into the ear canal by a rat tail comb at a beauty salon
Explosion of an M 80 thrown by a neighbor on New Year’s Eve
A simple car accident in which a piece of luggage struck my client’s head
A fall down at a Dunkin Donuts in which the client’s laptop smashed into his face
A car accident with air bag deployment
If you are pursuing tinnitus injury litigation, feel free to contact me to discuss how to prove your case.
Evan Aidman is the founder and principal of the Law Offices of Evan Aidman. Mr. Aidman received his Bachelor’s Degree in psychology from the University of Florida where he was elected to the Phi Beta Kappa Scholastic Honor Society. He graduated with a 4.0 average. He received his Juris Doctor degree from the University of Pennsylvania Law School in 1983.
Mr. Aidman is an adjunct professor at Peirce College where he teaches Civil Litigation. He has lectured extensively on topics connected to personal injury litigation, most recently addressing Drexel Law students on the topic of opening a personal injury practice.
Original Article: http://www.ata.org/litigating-tinnitus