“common, but elusive and mysterious, disease. . . its cause or causes are unknown, there is no cure, and, of greatest importance to disability law, its symptoms are entirely subjective. There are no laboratory tests for the presence or severity of fibromyalgia. The principal symptoms are "pain all over," fatigue, disturbed sleep, stiffness, and--the only symptom that discriminates between it and other diseases of a rheumatic character--multiple tender spots, more precisely 18 fixed locations on the body (and the rule of thumb is that the patient must have at least 11 of them to be diagnosed as having fibromyalgia) that when pressed firmly cause the patient to flinch.”

Judge Posner also noted that the Administrative Law Judge in Sarchet exhibited a “pervasive misunderstanding of the disease” by “depreciate[ing] the gravity of Sarchet’s fibromyalgia because of the lack of any evidence of objectively discernible symptoms, such as swelling of the joints.”

Some 11 years after the decision in Sarchet Administrative Law Judges still look, for "objective" signs and symptoms when confronted with a disability claimant who has fibromyaliga. Failing to find the requisite abnormalilties in tests, the claimant's disability clam is denied. It is very important to help educate the Administrative Law Judge both before and during the hearing about the nature of fibromyaliga and the current state of the law.

In four different personal injury trials in Nevada, a defense attorney made similar arguments during the trial. These arguments included an attempt at "jury nullification" [the Nevada Supreme Court defined jury nullification as "[a] jury's knowing and deliberate rejection of the evidence or refusal to apply the law either because the jury wants to send a message about some social issue that is larger than the case itself or because the result dictated by law is contrary to the jury's sense of justice, morality, or fairness." Black's Law Dictionary 875 (8th ed. 2004). Examples include arguments that these cases wasted taxpayers' money and jurors' time. The defense attorney also argued that the cases were examples of people "looking for an excuse to sue someone at the drop of a hat" and that society now believed that "Americans have become a society of blamers."

The Court also found that the defense attorney impermissibly injected his personal opinion about the justness of plaintiffs' causes when he said that he had "a real passion for [these] case[s] and cases like [them]," because these were the types of cases that cause people to be distrustful of lawyers and legitimate plaintiffs and lead to what the defense attorney argued was the public's negative perception of the legal system.

Finally, the Court ruled that the defense attorney's closing argument, which contained a statement to the jurors, "You send your son or daughter" to a friend's house, where he or she was injured, and questioned, "[D]oes that mean you just go out and sue[?]" (Emphasis added.) invited the jurors to make a decision as if they and their children were involved in his hypothetical situation-a situation that somewhat paralleled the scenario of the plaintiff's daughter's injuries. The Court found that this question indicated that the jury could make a decision based on the personal hypothetical designed to trivialize the daughter's injuries instead of deciding the case on negligence law and the evidence.

This case underscores the obligation of defense attorneys to defend cases based only on the evidence and the law. The problem with defending against such unscrupulous tactics is the requirement of making timely objections to such argument. Most trial lawyer do not wish to make objections during the trial. This problem is actuated when the offending attorney makes repeated objectionable comments after an objection has been sustained. In cases where the comments rise to the level of "plain error" the Nevada Supreme Court created an exception of the need to object.

One method to deal with this type of conduct is to address it within the context of a motion in liminie prior to trial. In that way it is possible for the trial counsel and the court to be reminded of the rules before the "heat of battle".

In Thompson, Nicole was severely bitten by a neighbor's dog as she rode her bike down her street. The dog had a history of being vicious. That is the reason that his owners had leashed him inside a fenced yard. The dog broke the leash, ran out of the fenced yard, onto the street and attacked Nicole. Indiana Insurance Company, the insurer for the dog owners, took control of the defective leash when it learned of Nicole's claim. During the course of the investigation, it lost the leash. We added the insurance company to the tort action against the property owners and claimed that to the extent Nicole was unable to prove her case of a defective product against the manufacturer due to the fact that the product was no longer available, then the insurance company should be responsible for what Nicole's case would have brought had the absent leash were present.

The Indiana Court of Appeals found that there was a special duty on the part of the insurance company to preserve evidence. To do so, the court found that there was a special relationship between the claimant and the insurance company, that the harm involved in loss of evidence was foreseeable and that the recognition of duty is consistent with Indiana's policy of accountability. The court wrote "[liability insurance carriers are no strangers to litigation, and it strains credulity to posit in a motion to dismiss that a liability carrier could be unaware of the potential importance of physical evidence.."

The Indiana Supreme Court, has a 2-2 tie vote on whether to accept transfer on Thompson. As a result, Thompson became the law in Indiana.

Chief Judge Posner of the U. S. Court of Appeals for the Seventh Circuit Court wrote in Sarchet v. Charter, 78 F.3d 305, 306 (7th Cir. 1996) that fibromyalgia could be the basis for an award of disability. Judge Posner described fibromyalgia as a:

“common, but elusive and mysterious, disease. . . its cause or causes are unknown, there is no cure, and, of greatest importance to disability law, its symptoms are entirely subjective. There are no laboratory tests for the presence or severity of fibromyalgia. The principal symptoms are "pain all over," fatigue, disturbed sleep, stiffness, and--the only symptom that discriminates between it and other diseases of a rheumatic character--multiple tender spots, more precisely 18 fixed locations on the body (and the rule of thumb is that the patient must have at least 11 of them to be diagnosed as having fibromyalgia) that when pressed firmly cause the patient to flinch.”

Judge Posner noted that "some people may have such a severe case of fibromyalgia as to be totally disabled from working. . . but most do not and the question is whether Sarchet is one of the minority."

Without question, fibromyalgia is a disease which can have debilitating consequences. It certainly can serve as the basis for a disabilty claim. The question is how severe is the disease at the time a claimant is seeking disabilty.

Do not admit responsibility. Exchanging information and giving facts in not the same thing as admitting responsibility! you may think that you were responsible for the accident and later learn that the other driver caused it or that the other driver was equally at fault.

See your doctor. It is always wise to have a physical exam after an accident. Your doctor may recognize injuries, sometimes serious, that are not apparent to you.

Do not sign anything. . . until you understand the full legal consequence of what you are doing.

Call your lawyer. The event of an accident has created certain legal rights and liabilities as to each driver. It is important that you know and understand what those are. A lawyer will tell you not only what your rights and obligations are, but will tell you whether further legal help is needed on merited.

If you are injured in an accident, never settle without talking with your lawyer.

Buckle up! It's the law.

Speed kills! Slow down.

Check brakes and lights to make sure they work correctly.

When an accident happens, make sure you follow the requirements outlined in the Glove Box Accident Handbook.

Be sure your children are secured in child restraints.

1. Immediately stop as close to the accident scene as possible without obstructing traffic more than is necessary.

2. Remain at the scene until: a) the driver has given his or her name and address and registration of the vehicle; b) if requested; the driver has shown his or her license to the driver or passengers of the other vehicle; and c) reasonable assistance has been given to each person injured in the accident including the removal, or making arrangements for removal, of the injured to a doctor or hospital.

3. Notify the police immediately.

4. File a report with the Indiana Bureau of Motors Vehicles, PRF/Crash Report Section, P.O. Box 7169, Indianapolis, Indiana 46204 within 10 days after the accident. The written report can be found at http://www.in.gov/icpr/webfile/formsdiv/52441.pdf

If the driver is physically incapable of reporting as required by law then the passenger of that vehicle must file the report. If there is no passenger and the owner is someone other than the driver, the owner must file the report within 10 days after the accident.

1. Immediately stop as close to the accident scene as possible without obstructing traffic more than is necessary.

2. Locate and notify the owner or driver of the vehicle of the name and address of the driver and owner of the vehicle striking the unattended vehicle.

3. Leave in a conspicuous place on the vehicle which was struck, a written notice giving the name and address of the driver and the owner of the vehicle mentioned above. In the note, include an explanation of how the accident happened.

1. Immediately stop as close to the accident scene as possible without obstructing traffic more than is necessary.

2. Remain at the scene until: a) the driver has taken reasonable steps to locate and notify the owner or person in change of the property that is damaged; b) the driver has given that person his or her name, address and registration; and c) if requested, the driver has shown his or her license to the person.

If the driver cannot find the owner or a person in charge of the property, then the driver must notify either the Sheriff or a member of the State Police Department and give them the information outlined above.

1. Immediately stop as close to the accident scene as possible without obstructing traffic more than is necessary.

2. Remain at the scene until: a) each driver has exchanged names and addresses and vehicle registrations; and b) if requested, the driver has shown his or her license to the driver or passengers of the other vehicle.

3. Send a written report to the Indiana Bureau of Motor Vehicles, PRF/Crash Report Section, P.O. Box 7169, Indianapolis, Indiana 46204 within 10 days after the accident, if the accident, if the accident results in total property damage of at least $1,000. The written report can be found at http://www.in.gov/icpr/webfile/formsdiv/52441.pdf

While $1,000 in property damage may seem like a lot, it is not. Often times it is hard to decide, particularly after just having been involved in a crash, whether the damage it $1,000. I believe that it is better to error on the side of caution and report the accident if there is any property damage. If there is any question, call the police to the scene!