By Caitlin McNaughton • September 22, 2020
I am a Long Island personal injury attorney and as a result, I conduct a lot of depositions. Many of the depositions I handle relate to motor vehicle personal injury cases. In those cases, litigants need to prove that they have sustained injuries that breach “serious injury threshold” in order to recover in a lawsuit. In these kinds of cases, one needs to get to know their clients thoroughly in order to best advocate for them during depositions and throughout the litigation process.
One area where I’ve noticed a blind spot (both from defense attorneys and plaintiffs attorneys) is when it comes to Plaintiffs who are homemakers or primary caregivers and who are not employed outside the home. I was raised by a mother who did not work outside the home, and I have a clear recollection of applying for college and checking a box with regard to her profession that said “Homemaker/unemployed.” I distinctly recall that this categorization bothered me, because my mother is one of the hardest working people I know, and being a homemaker and primary caregiver for four kids is most certainly a full time job. The denigration of inside the house work can become especially relevant when litigating motor vehicle personal injury cases, because failing to adequately convey how much your client’s daily life has changed as a result of an injury can mean a dismissal.
In New York State, in order to prevail in a motor vehicle personal injury lawsuit, a plaintiff must prove that their injuries are “serious” under the law. What constitutes a “serious injury” under NYS law is defined by Article 51 of the New York State Insurance law, which states that a serious injury as defined as an injury that meets one of the following categories: 1) Death; 2) Dismemberment; 3) Significant disfigurement; 4) A fracture; 5) Loss of a fetus; 6) Permanent loss of the use of a body organ, member, function or system; 7) Permanent consequential limitation of the use of a body organ or member; 8) Significant limitation of the use of a body function or system; or 9) A medically determined injury or impairment of a non-permanent nature which prevents the injured party from performing substantially all of the material acts which constitute such person’s usual and customary daily activities for not less than ninety (90) days during the one hundred and eighty days (180) immediately following the occurrence of the injury or impairment. Many cases do not have a death, dismemberment, significant disfigurement, fracture, loss of a fetus, permanent loss of use of a body organ, member function or system, or significant limitation of use of a body function or system, eliminating categories 1-8.
For the purposes of this post, I am going to focus on how to establish that your client meets the burden imposed by category 9, or the “limitation of usual or customary activities for not less than 90 out of the first 180 days following the accident” category. If your client is traditionally employed (meaning attends a job outside the home) this category can easily be met if your client missed time from their employment, and you can substantiate the claim with payroll records and disability notes. But what if your client is not employed outside of the home? All too often, caretakers of children and homemakers, who are statistically predominately female, do not have their work inside the home respected on the same level as someone who is employed outside the home. There are ways to bring this out during a deposition in order to fulfill the 9th category of serious injury threshold. When taking a deposition, I always ask: “do you work outside the home” rather than “are you employed.” Phrasing the question in such a manner doesn’t have the same negative connotation as “do you work” or “are you employed”, as the answer to both of those questions may be “no”, particularly if the assumption is made that the only “work” that matters is something that occurs outside of the home, and the question may cause some discomfort for the deponent.
Further, given that there are no time sheets, payroll records or other documentation to substantiate a claim that work inside the home has been negatively affected by injuries sustained in an accident, you need to prepare your clients to respond in a manner during a deposition that accurately portrays the difficulties they may be experiencing during their day.
Specifically, many injured Plaintiffs describe trouble sleeping, carrying loads of laundry, moving heavy pots, bending down to tend to their children, difficulty walking dogs, difficulty bathing their children or lifting them to a changing table to change their diapers. Domestic work performed without remuneration (meaning household work performed for one’s own family), is simply put, work.
There are times when primary caregivers might rearrange their normal daily chores to allow for a spouse to complete them at a different time due to injuries, or a family member may be called in for assistance, or a babysitter/housecleaner may be hired. All of the above is a fundamental change to the daily activities of a primary caregiver/homemaker and can be used to meet the burden of threshold.
It is important not only to prepare your clients who work inside the home to properly advocate for themselves when deposed, but also important that while preparing them, that you as an attorney are appropriately giving value to their contributions and not minimizing the impact an injury can have on their lives, particularly when they are not employed outside the home. It can do wonders for a client’s confidence if their own attorney staunchly believes in the value of their work, and if needed, on a redirect, an advocate can elicit testimony that survives threshold from a well-prepared and confident client.