Proving Tinnitus in Personal Injury Litigation
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 the claim is presented will affect the jury’s evaluation of the damages.
How does one prove what the Tinnitus sufferer experiences? I was retained by a client who had incessant ringing in his ears after a simple fender bender. I contacted the American Tinnitus Association 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” is Latin for ringing, 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 and concerned with how a jury would react. The jury would be able to hear what the client hears, feel what the client feels. This would help them fully appreciate the effect the accident had on the plaintiff. It is always desirable to try to put the jury in the client’s shoes, to literally hear what the client hears. As a result, the jury would be more likely to return a large verdict. That is why this case settled successfully. Insurance companies often drag out litigation, but his case settled then and there.
Had the insurance adjuster made an inadequate settlement offer, I would have brought the CD to a settlement conference. I would have played it for the judge. I would have advised the judge that I intended to play the CD for the jury during the trial. This would have impressed the judge and helped to get him or her to apply additional pressure on the defense to increase the settlement offer. I have done this at settlement conferences very effectively.
Nowadays you can find something similar to this CD for free. Go to http://www.ata.org/sounds-of-tinnitus and see if you can find the sounds you hear. Then contact your lawyer and tell her about this. This will help your lawyer, the insurance company, its lawyers, the judge and the jury understand the extent of your suffering.
Here is another technique. I know of a case where the lawyer downloaded the Emergency Broadcasting tone we have all heard on the radio or television. That’s the sound this lawyer’s 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. If you need a reminder of how annoying this sound is, click below.
In closing argument during Tinnitus jury trials, I ask the jury what the injury is worth in dollars and cents. I tell them, “This tone is the first thing John 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 Mr. Smith rear ended him.” These techniques are very effective in producing large verdicts and settlements. In particularly bad cases, seven figure settlements are possible.
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, that is, to prove that the sounds played for the jury accurately represent what the client hears. This is quite simple. During my client’s ENT-Otolaryngologist’s 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. But beware. If you fail to authenticate this evidence, the Court will not permit you to use it. So make sure you take this necessary step.
There are other important steps to take in Tinnitus injury litigation. I always suggest that my clients become active with the American Tinnitus Association (ATA) and other support groups. Not only will they derive direct benefit from this, they will also indirectly help their litigation. It is important in injury litigation to show that you have done absolutely everything in your power to recover from your injury. By joining ATA and seeking solutions to your Tinnitus, you show that you have done this. That is something that will impress the jury. Conversely, if you fail to do what you can to get relief, the defense lawyer will point that out to the jury and attempt to blame you for your situation.
Keep a journal during your litigation that tracks all of the homeopathic and other treatments you have tried and what effect they had, if any. Your journal will document that you have tried everything to get better. 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, 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 assesses value.
Journals are very important in injury litigation. A thorough journal, supplemented on at least a weekly basis, creates documentary proof of the effect of Tinnitus. Litigation can last for several years. So often clients cannot fully recall the suffering they endured years before. It is natural to try to put that suffering out of your mind and move on. The journal will help to refresh your recollection so that your testimony before the jury will be complete and compelling. If the evidence effectively establishes the severity of the condition and its ramifications to the plaintiff, the jury may return a very large verdict.
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 M80 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. You can reach me at 215 563 7088.
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